A Scottish Lesson

The United Kingdom is still united. The Scots decided that by a decisive vote. David Cameron won his gamble; Alex Salmond lost – and has quit. Sore loser? Perhaps; but he pointed out something important we would be wise to heed.


There are lessons for those of us across the pond in the Scottish independence movement, and we should take them seriously. We had our own secessionist movement a century and a half ago. That secession, however, was driven not by popular referenda, but by the political elites, though perhaps a majority of the non-slaves in many of the former Confederate states would have voted for it. It’s fairly certain that Tennessee would not have. There is today an occasional mutterance among those unhappy with our version of Westminster (whose initial is also a “W”) that secession would be a good idea. Most are hyperbole, though there is undercurrent of seriousness. A true, fair referendum in a state for secession might be hard to ignore. A Russian academic during the 1990s predicted that the United States would break up into four separate nations by 2010. He was wrong – so far.

One downstream result of the Scottish referendum might be increasing autonomy from the central government in London. Not just for the Scots, who were promised increased devolution of power to their parliament if they stayed, but also for other parts of the UK. This would be a good thing. Unified commerce, currency, and defense, together with an apparatus to protect fundamental rights are national responsibilities. The rest, usually, are better left to regional and local control.

That has not been the case in Britain, and is a large part of the dissatisfaction that fueled the Scottish independence movement. The Parliament in Westminister may be democratically elected, but is subject to no restraint on the whims of 50% plus 1 of the members of the House of Commons. There is no judicial review. There is no executive veto because the government is formed by the majority party or coalition of parties, and thus no law gets passed without executive consent anyway. The power of the House of Lords to even delay a bill passed by the Commons has been eliminated. As for the Queen, she theoretically has a veto – all laws are formally given her consent – but no monarch as exercised that power since Queen Anne did, around the time Scotland joined England and Wales to become the UK.

The result has been one-size-fits-all administration, and bureaucratic sclerosis. Since World War II, save for the Thatcher interlude, the nation has been in almost constant economic trouble. This seems to be mainly because innovation and entrepreneurship are stunted by oppressive administrative rules, and the insensitivity of bureaucrats to differing local conditions, and proclivities.

Here in the United States we have been experiencing what might be called the “British Effect,” an increasing centralization of power and governmental functions. Our federal system of governance has been eroding for the past 80 years. A result similar to the British experience is looming, if not already here. Economic sclerosis is taking hold.

Many are quick to denounce the current Congress as “do-nothing” and “grid-locked” because of the partisan divide. Well, during the first two years of the present administration, the “do-anything” Congress created the AHC (“Obamacare”) which has so-far been a fiasco in its rollout, and promises to be a continuing bureaucratic nightmare. And I am not giving the Bush (father as well as son) administration a pass. Both permitted, and abetted, Congressional and bureaucratic overreaching. Actually, Bill Clinton’s administration where we had divided government was an almost halcyon time for federalists. That was, of course, mainly because Clinton had much better political judgment than his current successor.

This nation must return to more respect for federalism. Ironically, we are seeing some progress in that regard with the trend to decriminalize marijuana by individual states. So far, this Administration has declined, wisely I would argue, to enforce federal laws against simple possession, use, and sale in accordance with state law. This trend may well evolve into decriminalization of other controlled substances and the end of the War on Drugs.

Actually, the entire U.S. criminal code should be revised, and nearly all regulatory offenses that prescribe prison sentences be repealed. Many serious offenses that are proscribed by state law should not be federal offenses. The sight of armed federal agents raiding Gibson Guitar Company because of its suspected use of wood obtained from foreign country, even though that country says it was perfectly legal, and the story of the building custodian who faced a prison term for inadvertently releasing sewage into the Potomac River are horrific examples of the former. Wasting resources trying a man for carjacking in federal court when he is facing trial for the same offense in state court is one of the latter. (For more on this topic I recommend Harvey Silverglate’s Three Felonies a Day (2009). It’s an eye-opener.)

Americans take heed. The Scottish independence movement may have been quixotic; it might have been ill advised. But it was symptomatic of a problem long festering in Great Britain, and may have a salutary effect there. We in the United States have similar maladies. The big difference is that in the U.K. there is no constitutional solution, so one must cut from whole cloth. The United States has a Constitutional federalist structure that can be respected and provide the basis for reform. Too often has our founding document been treated like it is a mere nuisance or infinitely elastic. A lot of flexibility was desired by the drafters and built into the Constitution. The basic structure of government that provides for separation of powers between and among the nation and the states, however, is not mutable absent an amendment passed in the manner prescribed. To regard it otherwise and to stretch it beyond all logic and reason, means we have no law, only caprice.

Thanks to Scotland the Brave for, however obliquely, pointing this out. Maybe we will get it. Hope springs eternal.

 

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