PRESTOPUNDIT

Jacob Levy reflects on the tension between Liberal reform and Conservative institutional reverence as the British Constitution undergoes a new round of revolutionary change concocted on the fly by Tony Blair:

In the past the system has tottered along largely on the strength of British institutional conservatism. The traditional constitutional order exercised a hold on the political imagination; upheavals were out of character. But New Labour's modernizing project shows that this Burkean conservatism has dwindled, and it's further contributing to its diminution. Whatever emotional attachment Britons might have had to the centuries-old Lord Chancellorship--with its pomp, circumstance, and Great Seal--they are unlikely to extend to the new Minister of Constitutional Affairs.

It's long been known that the British system allows for rapid and extreme swings in economic policy; the postwar move to socialism went further faster than the New Deal or Great Society, and the Thatcherite reforms went further faster in the opposite direction than did the Reagan so-called Revolution. With the old attachments falling away and no new restraints developing, constitutional policy now looks to be moving the same way. The most obvious red flag here is the absence of a bill of rights and a prime ministers' ability to curtail traditional criminal procedural protections (e.g. the right against self-incrimination) and freedom of speech in response to short-term concerns. And though at least some in Britain are mollified by the entrenchment of European human rights law as a constraint on Parliament, that may be small comfort in a country that has seen many civil liberties have been eroded in the past twenty-five years. Meanwhile, the possibility of wild gyrations in institutions and procedures--swinging from quasi-federalism back to centralization and back again, partisan back-and-forth over the rules governing the upper house, delegations of power to and reclamations of power from Europe, instability in electoral rules or the place of the monarchy or the Anglican Church--is even more worrying. Democratic politics depends on moderately stable background procedures, and Britain is losing its ability to treat those procedures as settled.

Keynes, the political insider, reassured Hayek, the foreign-born theorist, that "dangerous acts can be done safely in a community which thinks and feels rightly, which would be the way to hell if they were executed by those who think and feel wrongly." By contrast, Hayek was concerned with how institutions altered character, and how reliable action depended on a firm background of stable and well-adapted principles, institutions, and practices -- e.g. things like the system of the rule of law. He saw danger in a more "pragmatic" system which depended so much on the whim of particular men -- and which increasingly privileged ever changing particular purposes, undermining a system ordered largely according to long proven principles and institutions. It was no secondary accident, of course, that Hayek had witnessed what had happened on the Continent in the 1930's as the deeply stressed German Liberal system was progressivly betrayed -- and power came to be concentrated in the hands and at the whim of a single man.

Is Blair strengthening or weakening a system of checks and balances in Britian? Tradition and the institutions of the past have been themselves one of the strongest of various checks and balances in the British system. The paradox of Liberal constitutional reform is that you can always be charged with weakening this genuinely important check on arbitrary power -- when in other respects you you aiming to add weight and legitimacy to institutions which had steadily been losing their authority. My own sense is that Blair on many fronts has been going in the right direction, if not according to any well considered blueprint. For example, I give Blair very high marks for his move giving autonomy to the Bank of England. And in general I support his move toward a Federal system. How things work on the ground is a different issue -- all be it a very important one. I'd welcoming hearing from folks on the ground in Britain -- what's the feeling out there among "right thinking people"?