CONLAWPROF: Americans Arguing Over Brexit

Dear Professor,

I did not “prais[e] the process that brought Brexit to the UK.” I will say that the process was not “stupid” and it was not “criminally stupid.” Why do you use this hyperbolic language? It was just a referendum. Cameron did not surprise the country (the UK) by putting the decision to the People. It was a long-standing promise of the Tory Party to do just that. That promise was made by the Tory Party in the two party manifestos in the two prior general elections. After the first election, Cameron’s Tory Party did not have an absolute majority on the floor of the Commons, and his Liberal-Democratic coalition partners did not back a referendum. So nothing happened. After the second election, Cameron had a majority—and the referendum was a simple expression of a well known campaign pledge from the most recent general election. I see nothing “stupid” about this; I see nothing “criminally stupid.” Why this hyperbolic language?

The bill to implement the referendum (i.e, to put the question to the People) had overwhelming majority support of the Tories, the Labour Party, and even the Liberal-Democrats. These two latter parties chose to vote for the referendum. They did so for reasons they thought good, not because of internal squabbles in the Tory Party. The only major party to vote against the referendum was the Scottish National Party (“SNP”). 

Was it wrong for the referendum not to have a floor in regard to a minimum percentage of voter participation? Eg 2/3 of all eligible voters? Was it wrong for the referendum not to require a supermajority of those voting? I would think that such privileging (or, possibly, gerrymandering?) of the status quo is the sort of thing reasonable minds could disagree about. I don’t remember any major voices calling for such requirements ex ante. (Except the SNP: calling for a majority vote in Scotland and in each of the 4 “provinces” before the UK were to leave the EU as a whole. Yet, as I remember, when voting on Scottish independence: SNP wanted simple majority rule.) I don’t hear about such American-style supermajority requirements now from the voices in the UK calling for a second referendum. I don’t say the referendum process was perfect, but I don’t see it as unreasonable either. I see no reason for you to use hyperbolic language like “stupid” or “criminally stupid.”

Why would you call Cameron “inept”? The continued participation of the UK in the EEC/EU is a long standing divisive issue in the UK. It divides the People, and it divides Parliament. It has brought down several ministries—not just Cameron’s. (In the end, it was this issue which brought down Thatcher.) It divides the Tory Party, and it divides Labour. There is a long history of left-of-center and left-wing parliamentarians who opposed the UK entering and staying in the EEC/EU. Yesterday’s Michael Foot & Tony Benn, and today’s Kate Hoey & Frank Field come to mind. 

Why would you call this process “thoughtless”? There was endless debate in every type of media. Both sides had funding from the Exchequer to conduct campaigns.

Whether there should be a second referendum or not is an entirely different question from whether the process already engaged in so far was “stupid.” I am sure there are arguments for both sides. Why would you say: a “second referendum is almost self-evidently the best option save for idiots.” Moreover, why this strong language? How is it “self-evident”? The people who prevailed in the referendum want the referendum vote implemented—how is that “idiotic”—they want the UK to “Leave” the EU. That is in line with the vote which was already held. That does not mean that there can’t be a second vote—either before “Leave” goes into effect, or during a delay if a delay can be negotiated with the EU to extend the deadline, or after the UK leaves—which would, in effect, be a vote to apply for re-entry. Whether implementing “Leave” is a good thing or a bad one is exactly what the referendum was about—so it is not stupid that those who prevailed (i.e., those who believe that result a good thing for the UK) should want to see it implemented without delay. This is particularly true where (as here) none of the major parties prior to the referendum said: if my side loses, then we get another bite at the apple.

I think your first point was strongest. You asked: “Does Seth deny that the leading leavers simply fabricated arguments that have been shown to be demonstrably untrue?” The answer is that nothing was sprung on the voters last minute. The process played itself out in a normal way. If bad arguments were made by one side, the other side had a full, free, and fair opportunity to make frank and meaningful counterarguments. The Remain side did not lack time and resources to make those arguments. 

For example, HMG was for Remain. 
The leading opposition parties were for Remain. 
The regional parties in Scotland, Wales, and Northern Ireland were all for Remain. 
The bureaucracy and the Bank of England were for Remain. 
The labour unions were for Remain. 
Academia was for Remain. 
Industry (e.g., the CBI) was for Remain. 
The BBC and the largest part of the media was pro-Remain. 

Given all that, it seems to me that holding a referendum to a perfectionist standard seems misplaced. But if the standard is perfectionism, then no process will make the grade. 

Again, I don’t claim to know how the British people ought to have voted. I am not British, and the UK is not my country. I was not born there; I am not a citizen by naturalisation or otherwise; I was not educated there; I do not have any higher degrees specialising in British history, government, culture, etc; I do not live there; and, I do not pay taxes there. It is not my job to tell them how to vote. I see no reason to call their elected politicians and their public “inept” or “stupid” because the People voted in a way which was not expected by those who think or thought they know or knew better. So I am left wondering why you continue to use such strong language about a foreign country’s politics and politicians? Is it that you believe the result was obviously wrong?—How did you reach that conclusion? Or, is it that you believe the process was substantially defective (a process wholly free of gerrymandering—a subject which is a frequent source of complaint by academics here on Conlawprof)?—How did you reach that conclusion? And even if you think the result wrong or the process defective, why are you using such strong language? When you use such strong language about Brexit, and you do so for reasons that are (in my opinion) entirely opaque, it sort of undermines the force of the similar hyperbolic language you use in regard to Trump. You do see that, right? 

Seth

Seth Barrett Tillman, CONLAWPROF: Americans Arguing Over Brexit, New Reform Club (Jan. 16, 2019, 2:19 AM), <https://reformclub.blogspot.com/2019/01/conlawprof-americans-arguing-over-brexit.html>. 

Welcome Instapundit Readers.

I have a series of prior posts on Brexit. Have a look around New Reform Club to see them and other interesting posts -- by my co-bloggers and me.

See, e.g., Seth Barrett Tillman, A Letter to George F. Will, New Reform Club (Jan. 13, 2019, 10:27 AM); 

Seth Barrett Tillman, Brexit And The “Flailing” United Kingdom, New Reform Club (Nov. 30, 2018, 4:05 AM), <https://reformclub.blogspot.com/2018/11/the-flailing-united-kingdom.html>; 

Seth Barrett Tillman, Trump, American Greatness, and Brexit, New Reform Club (Nov. 30, 2018, 12:01 AM) <https://reformclub.blogspot.com/2018/11/the-united-states-and-brexit.html>; 

Seth Barrett Tillman, A Response to Megan Nolan’s: “I Didn’t Hate the English—Until Now,” New Reform Club (Nov. 4, 2018, 10:58 AM), https://reformclub.blogspot.com/2018/11/a-response-to-megan-nolans-i-didnt-hate.html; 

<https://reformclub.blogspot.com/2016/07/the-libertarianpopperian-case-for.html>; 

<https://reformclub.blogspot.com/2016/06/the-message-of-uks-brexit-referendum.html>; 

Seth Barrett Tillman, Melodies for Brexit, The New Reform Club (June 24, 2016, 1:40 PM);

Seth Barrett Tillman, Dewey beats Truman ... Dewey beats Truman ... Dewey beats Truman ..., The New Reform Club (June 24, 2016, 10:32 AM);

Seth Barrett Tillman, Betting on Brexit, The New Reform Club (June 24, 2016, 3:49 AM); and,

Seth Barrett Tillman, Alexander Hamilton on Brexit, The New Reform Club (June 22, 2016, 3:30 PM).