Politicians in a Fix

Valéry Giscard d’Estaing begins his generally sensible if utterly hideous preamble to the new draft European Constitution with a line from Thucydides’ History of the Peloponnesian War. ‘Our Constitution is called a democracy because power is in the hands not of a minority but of the whole people.’ It is hard to know what to make of this. In any other context one would have to suppose it was intended ironically. That at least is how the words must have been intended by their author. Although Giscard’s text attributes the line straightforwardly to Thucydides, it is not the historian himself speaking here, but Pericles, in his celebrated funeral oration for the Athenian dead. Thucydides allows the Athenians to be told that theirs is a true democracy by the individual who had, with his oratorical gifts and other political skills, taken it over, leaving them with ‘in name a democracy, but in reality a government in the hands of the first man’. One presumes Giscard knows this, unless the preamble to his preamble was chosen by some exhausted functionary from the dictionary of useful quotations for occasions when jokes are not required. But then again, as, on this occasion, jokes were not required, it is difficult to understand why Giscard would have included this one. Constitutions are not usually ironic documents, and this draft is no exception. So what was he thinking of?

It is possible that this is simply another marker in the ongoing dispute between Europe and America as to who has the oldest democracy. The preamble reminds the world in a rather roundabout way that the ‘democratic nature’ of Europe’s public life was ‘nourished first by the civilisations of Greece and Rome’. But no one doubts this, least of all in the United States. Certainly, the framers of their Constitution knew it well enough, because they, too, had read Thucydides, who loomed large in their discussions. But he loomed for the fairly obvious reason that although democracy had been born in Europe, it never lasted all that long there, because Europe, from the very earliest days, was always being torn apart by war. The History of the Peloponnesian War was thought to be instructive reading for 18th-century constitution-makers who could learn from it what not to do. As the Pennsylvanian Benjamin Rush put it, in a knock-down response to the anti-Federalists who were jealously clinging on to the independence of their separate states: ‘A passion for separate sovereignty destroyed the Grecian Union.’ And although it was not exactly a passion for separate sovereignty that Pericles was celebrating (‘Our city is open to the world,’ he declared, ‘and we have no periodical deportations in order to prevent people observing or finding out secrets which might be of military advantage to the enemy’), in the end separate sovereignty destroyed democratic Athens as well.

Is, then, Thucydides there at the beginning of Giscard’s preamble to remind the recalcitrant leaders and populations of Europe what is at stake in the ratification of this new blueprint for a united continent? Perhaps, except that it is not a blueprint for a united continent that is on offer from Giscard, but a tortuous attempt to avoid the question of unification altogether, mainly as a sop to the British Government. If memories of ancient Greece are there at the start of the Constitution in order to stiffen the sinews of the federalists against the anti-federalists, it would have made sense to provide something in the main text for the federalists to work with. But in the main text, all the irrelevant bits (concerning existing competences and bureaucratic aspirations) are much too long, while the relevant bits are far too short (Article 1.6 on ‘Legal Personality’, for example, reads in its entirety: ‘The Union shall have legal personality,’ which only raises the questions ‘When?’ ‘Where?’ and ‘How?’). This is not a document that can be put to the people to force the issue of European integration. But it can be put to the people in order to force them to confront the question of whether they want to get out altogether. Giscard has surprised some people by announcing that he thinks it might be a good idea if the British Government put the new Constitution to a referendum. This is also the demand of British anti-Europeans, including the proprietors of a number of national newspapers, who like to think they carry some weight in these matters. Both sides see a referendum as a way of calling the other side’s bluff. For pro-Europeans such as Giscard, a referendum would force the British people to confront the real choice that faces them, which is participation or exclusion. For the antis, a referendum would force the British Government to declare its hand, and to establish a clear position on further constitutional change. But both sides also, inevitably, dress up their calls for a referendum as a simple plea that democracy in its true sense, in its classical sense, should be given its head. Enough of politicians say the politicians, enough of bureaucrats say the bureaucrats, enough of elites say the elites. It is time to remember where democracy came from and what it means. It is time to let the people as a whole decide.

It is unfortunate, then, that a referendum has no more connection with where democracy came from than Giscard’s draft Constitution has with Thucydides’ History. ‘Referendum’ is a modern word – it dates from the middle of the 19th century – to describe a modern phenomenon. It has nothing to do with classical democracy, which was distinguished above all by the practice of election by lot (this is one of the reasons Pericles, who recognised that ‘when it is a question of putting one person before another in positions of public responsibility’ what counts is ‘actual ability’, was not exactly a democrat). You don’t often get to hear classically democratic solutions to contemporary political problems, and when you do they tend to be laughed out of court – the idea that the House of Lords should be replaced with an assembly drawn at random from among members of the population was greeted with a mixture of derision and silence. A referendum is certainly not a classically democratic idea, because it presupposes the absence of democracy in any real sense: it is a ‘referring back’ of a decision to the people, precisely because any original ability to take decisions has long since passed out of the people’s hands, and into the hands of politicians, bureaucrats and other elites.

There are essentially two types of referendum. The most common, in those places that allow for them, are ‘initiative’ referendums, which permit the voters to propose and pass pieces of legislation for themselves; or, at least, as in Italy, to use their own initiative to repeal an already existing law they don’t like. Popular initiatives of this kind allow the electorate to remind their representatives of things they might not otherwise notice or might have forgotten: most often, that people don’t like paying tax, but also on occasion that they don’t feel as warmly about certain minorities as their representatives might like them to (most notoriously, gays in Colorado or immigrants in California). This type of politics is mainly associated with certain of the more prosperous American states, and above all with Switzerland, which explains some of its appeal to outsiders. But while Switzerland and California are obviously excellent places from which to learn about making money, it is not so clear that they are the best places from which to learn about how to do politics (unless, of course, you think the two questions are the same).

The other type of referendum, which almost all states have been tempted to try at one time or another, is not popular, but plebiscitary. This kind of vote has almost the opposite purpose of an initiative referendum: far from being intended to draw the attention of representatives to something they might have missed, it is designed to use the electorate to put to bed something that representatives can’t stop thinking about, and which they can’t otherwise get rid of. The standard form of plebiscitary referendum relates to matters of constitutional change, or the redrawing of territorial boundaries, and though these are often dressed up in grandiose democratic terms (it is sometimes said that a referendum is required when representatives are about to hand over powers which are not theirs but the people’s to dispose of, and many states have provisions in their constitutions to this effect), discretionary plebiscites are almost always undertaken for reasons of pure political pragmatism. Indeed, while initiative referendums can plausibly be understood as a kind of rebuke to high politics, plebiscitary referendums are usually an extension of high politics by other means. The people are brought in to rescue the politicians from intractable disputes within or across political parties, or to rubber-stamp some especially high-handed act of government by decree, or to assert the will of the majority against some recalcitrant minority either within or outside parliament. It doesn’t always work. Charles de Gaulle was the master of this kind of politics until he called one plebiscite too many in 1969 and was finished. It is also easy to forget that the first referendum held in the British Isles took place in Northern Ireland in 1973, on the question of whether the province should remain part of the United Kingdom or be joined with the Republic of Ireland. This was not a propitious time or place to start experimenting with more direct forms of voter participation, and the result (98.9 per cent for staying in, on a 58 per cent turnout, following a Catholic boycott) was more like a very crude census than a means of eliciting the collective will of the people.

British referendums on Europe, past or to come, are clear instances of plebiscitary politics. The first, and so far the only one, in 1975, was designed to get the Labour Party out of a hole caused by the split within its ranks over Europe, and employed the collective will of the British people (just over two-thirds were for staying in the European Community on a just less than two-thirds turnout) to this end. Not everyone at the time thought that the use of this device by politicians in a fix was encouraging, and by no means all of them were anti-Europeans. For those who opposed it, it seemed certain that if one referendum was too many, a hundred would never be enough. Once tempted, politicians would be unable to keep their hands off what Roy Jenkins called ‘a more powerful weapon against progressive legislation than anything we have known in this country since the curbing of the absolute powers of the House of Lords’. But it turned out that one referendum was exactly enough and the people’s elected and unelected representatives were quite capable of blocking progressive legislation without any direct help from the electorate themselves. That is, it was enough until the arrival on the scene of James Goldsmith and Tony Blair. It is a sign of how little referendums have in common with fully democratic politics that a one-man, one-note band like Goldsmith’s anti-federalists were able to call themselves the Referendum Party and get away with it. (Emboldened by this, the Referendum Party became after Goldsmith’s death the Referendum Movement, before merging with Paul Sykes’s Euro Information Campaign to form something called the Democracy Movement, which seems to be a step too far even for the British electorate.) Tony Blair, by contrast, has embraced the referendum as a means of tinkering with the Constitution without quite being sure why he is doing it – so let the people decide! (As they did in Wales, by demanding a new Assembly with a 50.3 per cent majority on a 50.3 per cent turnout; or in Hartlepool, where they showed their gratitude by electing a man in a monkey-suit as mayor, an event which may finally have sent Peter Mandelson round the bend.) But Blair has not yet been able to embrace the referendum that Goldsmith among others forced him to sign up for, the one on Britain’s entry into the euro. The reason, of course, is not the will of the people, but the will of the politicians, and of one politician in particular, without whose endorsement the assent of the people cannot be assured. If either Gordon Brown or Tony Blair needs to summon the British electorate out of their armchairs in order finally to see the other off, then he will. But otherwise we probably shouldn’t wait by the phone.

The Daily Mail has taken advantage of this hiatus in the high politics of the state to sneak in its own ‘referendum’ on the new Constitution, in order to embarrass the Government. This has been a wholly fraudulent business, not because the desired result is so manifestly contrived – that, after all, is the point of this kind of referendum – but because the Mail is trying to pass off a piece of plebiscitary politics as some kind of popular initiative. To read the right-wing press in Britain you would think that they were forcing the Government to listen to the people’s muffled cries of anguish, rather than trying to use the people to muscle in on the high politics for themselves. If it were really true that the politicians hadn’t noticed how exercised the public are about Europe, then there might be some point to this enterprise, but given that the public can hardly be more exercised about Europe than the politicians, there isn’t. The Mail is fighting a losing battle anyway, not because European unification is such a great idea, but because this is not the way to stop it. Plebiscitary referendums can put an issue to bed, but only if the people vote with their political masters. A full referendum on Giscard’s final draft might well result in a defeat for the pro-European elite, but that would not stop them, or someone else very like them, trying again, any more than the failed referendums on Scottish and Welsh devolution in 1979 stopped Scottish or Welsh devolution, or the failed referendums in Denmark on Maastricht and Ireland on Nice prevented those treaties from being ratified when the people were given time to reconsider their verdicts. In 1955 the Swedish people were asked by their Government in a referendum whether they wanted to continue driving on the left, or whether they would be willing to switch over to the right, as the Government preferred. Eighty-five per cent said they would like to stay on the left. Twelve years later, the Swedes, as good Europeans, found themselves driving on the right.

A referendum is not a good way to invigorate either democratic or constitutional politics. There is a much better alternative, so outlandish that no one has given it a second thought, even though it is suggested by the most obvious historical precedent. Benjamin Rush made his speech about the perils of copying the Greeks in the Philadelphia Constitutional Convention, which sat in the last months of 1787, having been called by the Philadelphia legislature to decide whether or not the Constitution should be ratified. As in the other states, the US Constitution was not to be ratified by the people, but by representatives elected on their behalf for that purpose, on the same principles that lie behind the electoral college which is supposed to choose the president. The Presidential electoral college is now (particularly now) a joke, because the party system that it was supposed to guard against did for it a long time ago. But there are some things that the party system cannot cope with, and in Britain the question of Europe seems to be one of them. When a Constitution worthy of the name emerges from the European Convention, why shouldn’t the British Parliament call an election to a British Constitutional Convention, where ratification would be decided? Each European Parliamentary constituency in Britain could choose a delegate, whose job would be to scrutinise and discuss the Constitution, before voting on it. God knows whom the people would choose, but given the current standing of professional politics there must be a good chance that not many of them would be professional politicians. Maybe most of them would be Daily Mail-reading Europhobes, the very people the Government is now meant to be ignoring. Maybe they would be celebrities, or journalists, or bishops, or footballers’ wives. Eddie Izzard could stand, and so could Charles Moore, and so could you or I (though we probably wouldn’t win). The point is that it wouldn’t much matter, because whoever it was would at least have to read the damn thing, and whatever their views they would at least have to listen to some others, and think about defending their own against them. It might be pretty ugly, as were some of the elections to the American Conventions of 1787-88, and if the American example is anything to go by, not many people once elected on a particular platform would change their minds. But it would be more democratic, in the classic modern sense, than a referendum.

This is pure fantasy, of course. Calls to go back to the way the Americans did it in 1787 don’t carry much weight, except with Americans, who already have their Constitution. Perhaps the best account of the American ratification debates is given in a book called The Great Rehearsal. It was written in 1948 by Carl van Doren, now probably best known as the uncle of the man who cheated in the quiz show that was made into a film by Robert Redford (in Quiz Show Carl van Doren is played with magnificent stateliness by Paul Scofield). The book is straightforward narrative history, but it takes its curious title from the fact that it was written at the birth of the United Nations, on whose fledgling constitutional efforts van Doren wished to throw some light. ‘It is impossible,’ he wrote in his preface, ‘to read the story of the making and ratifying of the Constitution of the United States without finding there all the arguments in favour of a general government for the United Nations, as well as all the arguments now raised in opposition to it.’ Van Doren believed that ‘no difficulty in the way of a world government can match the danger of a world without it,’ and that this was the case the Federalists had had to make on the continental level in the winter of 1787-88. He tells his story beautifully, but no one was listening. No one is any more likely to be listening now. But The Great Rehearsal is a nice title all the same. Those who opposed the Constitution, van Doren writes,

came naturally to call themselves anti-Federalists . . . Some of them thought the Constitution not strong enough. Some of them thought the country was too large for a single central authority, and talked again of regional confederations. Some of them were jealous for their states and their own rank in them. Some of them were theoretical republicans, who distrusted the novelties in this federal scheme. Most of them were simply conservatives, disturbed by a threat to their peace, suddenly fond of the traditional ways of life in their separate states, afraid of taxation and tyranny from a superstate, and genuinely unable to form in their minds a new pattern . . . in which the individual states would gain more than they would lose by a federal union of the kind proposed.