It has been interesting to see the cries of outrage in the newspapers since Thursday’s ruling by the UK High Court, which affirms that the Westminster parliament is obliged to make the decision on the UK’s exit from the EU, in accordance with the constitution. Almost all of the negative reaction to the Article 50 judgment has pitted the ‘people’ against the ‘judges’, casting the judiciary as an establishment that is somehow determined to thwart the will of the people. The Daily Mail ran the most outrageous headline accusing the judges of the High Court of being ‘enemies of the people’. This indicates a fundamental misunderstanding, or mischaracterization, of the role of the judiciary in the British constitution, and it also reveals a real misunderstanding about the place of the ‘people’ in the British political system.

Front cover of the Daily Mail, 4 November 2016.

https://en.wikipedia.org/wiki/Enemies_of_the_People_(headline)#/media/File:Daily_Mail_-_Enemies_of_the_People.png

Tensions between ‘the people’ and a more remote political elite are not new. These tensions are escalating, though, as economic alienation, changing demographics, and rampaging nationalism increase the gap between the promise and the delivery of the social contract that underpins the ideal of democracy. What is new is the idea that the will of the British ‘people’ is sacrosanct. Unlike Switzerland, and even neighbouring Ireland, referenda are rare here. The will of the people is moderated through an electoral system and a constitutional arrangement which has traditionally emphasised that democracy, UK style, is far from direct. To suggest otherwise in a constitutional monarchy, supported by parliamentary democracy and an unwritten constitution, is ludicrous.

Across the Atlantic, in the cradle of modern democracy, the will of the people is similarly moderated through a complex set of voting regulations. The promise of direct democracy plays out in every electoral cycle through ballot initiatives, caucuses and primaries, and Americans have a system of recall, in which elected officials (including judges) can be recalled or impeached if they transgress their constitutional duties. Yet even from the foundation of the state, direct democracy has been limited, to mitigate the risks that a tyranny of the majority might pose. This was a particular preoccupation of James Madison in The Federalist Papers, and the architecture of the US constitution is designed around periodic consultation of the people (elections) and balances between the will of the people, of special interests, realpolitik and the branches of government. The promise of American democracy has never been one of direct democracy, or even participatory democracy.

This last concept was popularised in the 1960s by the Students for a Democratic Society, one of the key student groups of the New Left ‘movement’. Their manifesto, The Port Huron Statement, outlined a proposal for participatory democracy, which they argued was the opposite of a ‘politics without publics.’ The Statement, written in committee but principally drafted by Tom Hayden, complained that in the ‘American political system is not the democratic model of which its glorifiers speak. In actuality it frustrates democracy by confusing the individual citizen, paralyzing policy discussion, and consolidating the irresponsible power of military and business interests.’ Tom Hayden died last week at the age of 76, just over two weeks before the US general election which has positioned the ‘people’ against its enemies, the special interests of the state. Donald Trump’s blunt messaging makes a lot of sense to people who feel that the system is confusing and privileges these special interests. But his candidacy also reflects the ways in which irresponsible business interests and the political system are intertwined. If Americans think that by electing Donald Trump, they are somehow going to wrest control back within a system that was never designed for their voices to be heard, then they are going to be disappointed, even if he is elected.

The problem is outlined in detail by Noam Chomsky in his recently released documentary Requiem for the American Dream. Available now on Netflix, the documentary allows Chomsky to communicate quite dry and complex ideas about the American system in a very accessible way. Chomsky’s searing message is that the mythology of the American dream has always been about exclusion: of the ‘people’ from politics, of specific marginalized groups (especially people of colour). It has always been a system that favoured business over people, even to the point that the Supreme Court declared that corporations could be treated as ‘people’ under the law. Chomsky reminds us that in representative political systems, the voice of the people is only heard periodically (as Madison explicitly suggested it should be) and it is curbed by the system itself. In the American context, the vote has been compromised so often in history that it is very debateable whether the US has ever really been a functioning democracy in the true sense of the word. Even now, systems of power ensure that the voices of the ‘undeserving’ (read: criminal) remain unheard. When we worry about the numbers of dead people still on the voter registration lists, we should pause and think of all the citizens in the US who cannot be on the voting lists because they have been stripped of their citizenship through criminalization.

Ava DuVernay’s recent documentary 13th (also available now on Netflix) explores this theme in detail. Prompted by Michelle Alexander’s excellent book, The New Jim Crow (2010) DuVernay’s scholars, experts and activists piece together the ways that the political and corporate systems work, and have worked for generations, to exclude large numbers of people — especially people of colour — from the body politic. Tracing the exclusion of African Americans from voting during the slave period, Reconstruction (through convict-leasing) and the Jim Crow era, the documentary makes three compelling arguments. First, that the systematic criminalization of people, and communities, of colour has left them disconnected from the mainstream of American society, or from what we might call the American dream. Second, that the positioning of these communities as ‘other’ creates the conditions in which black lives do not matter, because they are perceived to be inherently criminal. Thirdly, that there is enormous political and economic profit to be made from this exclusion. Watching the story of how an organization called ALEC brings together political and business interests in order to develop legislation that will guarantee the profiteering of the now privatized incarceration sector in the US makes one think of the SDS concern about ‘politics without publics’. It calls to mind Madison’s fear over the primacy of special interests in the political sphere.

But the extent of the problem is almost too much for the mind to process. It is certainly impossible at this stage to solve it without wholesale change, in which money interests lose out. So, it is unlikely to happen without totally re-writing the rules. It is true that Hillary Clinton represents this inherently unfair system. But it is also true that Trump represents this system: his ‘outsider’ status only holds true if you believe that politics and business are not in cahoots with each other. DuVernay and Chomsky remind us that they are, and that this collusion between business and legislature, upheld by the courts and essentially written into the DNA of the constitution, thrives upon the exclusion of the people, especially people of colour and poorer people.

But who are the people? And who are the ‘enemies of the people’? The phrase conjures up Robespierre who declared, in justification of the Terror in 1793, that nothing but death would be good enough for the enemies of the people. It recalls Nigel Farage’s boasting that the referendum result in June was a victory for the ordinary decent people (whoever they are). The problem is that there is no such thing as ‘the people’. It is a useful construct for representative democracy, which relies on the periodic engagement of voting citizens in a system that seeks to keep them as far away from power as possible. The job of the justices of the High Court was to define the obligations of the parliament in the context of the constitution. They did that, and the government is following constitutional process by appealing. But the real enemy of the people is the system itself. Will getting out of Europe change that? Or will we find that with no other system to blame, we recognize that the problems are much more difficult to solve?