The vote taking place tomorrow in Scotland to decide whether that country will claim (and receive) its independence of the United Kingdom of Great Britain and Northern Ireland deserves the attention that the world has given it. Many of the reasons for that are pretty obvious, considering that the United Kingdom is one of the world's most influential states and that the independence of Scotland would most likely reduce that influence (or at least change the effect that the combined influence of those countries has). The independence of Scotland would have a significant practical impact on the world and, of course, on the countries of which the United Kingdom is now composed.
However, the vote has also made me think about what we can learn about the nature and extent of the powers of the UK Parliament (and its predecessors, the Parliaments of Great Britain and of England), the Constitution of those countries, and the implications of the theory of government behind them, from the chain of legal authority for the vote and for the potential for all of it to actually result the independence of Scotland. I am particularly interested in the lessons to be learned from it because of what those lessons ought to mean for certain doctrines of law and theories about government in the United States -- doctrines and theories which define legislative power in America as inherited from or analogous to that of the former Parliament of Great Britain.
For now, the prevailing creed in the American legal system in relation to the scope and extent of the legislative power in the abstract is that while the government of the United States has no authorized powers other than those which are authorized by the Constitution, the legislative power of each state is limited only by its own constitution and by the United States Constitution (or laws made pursuant to the Constitution, under its authority). With those exceptions alone, the legislative power of a state is said to be "plenary", or complete, and "complete" is made to refer either to the legislative powers belonging to Parliament or else to the complete set of all legislative power conceivable. On this site, I have often pointed out that that idea of what "plenary" legislative power includes is flawed (at least if it is limited to legitimate legislative power -- it does not make sense to me that a legal system might choose to make no distinction between what is legitimate and what is illegitimate, but when a legal system has chosen that, it will undoubtedly regard the power of a legislature as incomplete if it has legitimate power but not illegitimate power). The problem with that idea is usually in one way or another that it depends upon the false and unfounded assumption that the natural or logical baseline or default for legislative power is "omnipotence" like that which has for centuries been attributed to Parliament.
American courts might not have found that theory so persuasive or appealing if it weren't for the extent to which American constitutions reject it and limit the damage it could otherwise have done. After all, while it is only the legislative power of Parliament which is used as the measure of plenary legislative powers, all governmental power in Great Britain had been either directly or indirectly under the control of Parliament long before American Independence. In general, the executive and judicial powers were not directly administered by Parliament, but the executive officers and members of the judiciary were not only not guaranteed any amount of independence of Parliament by the Constitution of Great Britain -- they held their offices and powers subject to the absolute power of Parliament to alter, transfer, or annihilate those offices and powers and to annul or reverse any act of law which they had taken (or to take any such act which had not been taken), and to the absolute power which Parliament possessed over every subject -- including bills of attainder. (Parliament ultimately proved to have power to alter its own composition, though that had not been established at the time of American Independence.) Most of this was done by passing bills into law in a way which Americans might not think qualifies as legislation but which did follow legislative forms and seems as eligible to define "plenary" power in America as would be anything else Parliament did under those same forms. Because higher American positive law (either the state or U.S. Constitution or valid, constitutional federal law) would regulate and restrain that power as it exists in each of the states, it would not necessarily make a practical difference in America whether the plenary power of a U.S. state would in the absence of any higher law extend to everything which Parliament might have done. However, though this limits the potential injustice and damage which imagining a U.S. state's legislature's plenary power to be equal to the vaunted powers of Parliament can actually cause, it also protects that notion's adherents ever being under any serious pressure to think it through or to explain to the rest of us why we should agree with them that such an absurd, unjust conception of rightful state power is the proper measure of the power of each of the U.S. states (other than to the extent to which we have succeeded in expressly repudiating that conception and forbidding our governments to operate that way) simply because Parliament wielded such power and claimed that it did so by right.
The significance of the vote in Scotland is that it provides us with another illustration of how the theory of governmental power whose advocates attributed "omnipotence" to the imperial Parliament is irrational and, as a result of the theory's own defects, could not be made to comply with reason even if it could be made to comply with justice. Though efforts have always been made to dignify and reinforce the powers claimed or actually wielded by Parliament, as its powers grew and developed over the past eight hundred years, those powers and the changes in them over time have in truth been defined by and have depended (as is generally true of the acknowledged, established sovereign powers anywhere) prospectively on the powers asserted by it and all of the factors which affect whether the behavior of the people in its jurisdiction would become consistent with that which its lawful use of those powers could have been expected to bring about and then retrospectively on whether people would later look at what followed the assertion of the power and then agree, "Yes, it did have that power," even if no one could have been able to say that for certain until Parliament had managed to make that power "stick". Before the last years of the 17th century, though Parliament had already become very powerful in theory (and to a lesser extent in practice), this power was not infrequently challenged by the king. The kings' challenges to that power did not come in the form of arguments in front of a judge but instead in that of a denial of Parliament's power and of conduct in disregard of Parliament's claims of power and right. The kings' success in all of this was variable, but the controversy was settled not when a court decided in Parliament's favor but rather when a revolution took place, Parliament made its claims of rightful power "stick", and the king fled the country. Within two decades, Parliament proved that it had authority to 1) enact into being its own legitimate identity as the English Parliament, 2) conclusively establish that the throne of the kingdom had become vacant, 3) invite its choice of royalty from outside the kingdom to ascend to that throne, 4) establish and define the bloodline along which the crown would descend (from the new king and queen), 5) impose a permanent limit on the length of time which may be allowed to pass between the beginnings of successive parliaments, 6) replace that permanent limit with a different, higher permanent limit, 7) unite the kingdoms of England and Scotland (with the concurrence of the parliament of Scotland), and 8) make further changes to the future descent of the crown.
Just for now, I'll skip about three centuries (including that time when Parliament attempted to exercise powers over America which were relatively plausible compared with the rest of what it supposedly had the legitimate power to do but which Americans determined were instead arbitrary and illegal -- and which Americans slowly and carefully but firmly began to treat as such -- leading to Parliament escalating the conflict again and again with more severe, more unreasonable measures, which Americans resisted as arbitrary and illegal, with American Independence ultimately resulting from it all) to the present. One of the reasons why it seems so strange to me that the vote in Scotland is even taking place is that as a general rule, though there have been exceptions (which often would only have been possible to identify in retrospect), the power of Parliament does have one limit: it cannot take away the powers of later Parliaments. Parliaments have often attempted (by enacting laws) to bind future Parliaments. What exactly resulted from those attempts varied in the specifics from instance to instance, but in most matters, I do not think an earlier Parliament has ever prevailed against a later Parliament which chose to defy the earlier one. However independence of one of the component kingdoms of the United Kingdom is not an ordinary matter. Now, if Parliament itself had simply granted independence to Scotland, that would have presented an issue interesting enough: an attempt by Parliament to retract independence that it had granted (Canada's, for example) could very easily fail, even if Parliament were to enact that retraction. It would discover that it isn't quite that omnipotent. The independence of Scotland, however, would deprive future Parliaments of power in another way: it would prevent the existence of any future Parliaments of the United Kingdom. Scotland and the remainder of the United Kingdom could always vote in the future to reunite, but otherwise, no future United Kingdom Parliament would have the power to undo what the last United Kingdom Parliament had done because no future United Kingdom Parliament would exist.
Even though the issue of independence for Scotland is about to be decided by a vote of Scotland's electors rather than by an act of Parliament itself, the issue just discussed will still be present if Scotland ultimately does choose independence, but there will be an additional issue as well: Parliament gave to another body authority which that body used to authorize Scotland to vote on assuming its independence. Parliament could presumably retract the authority of that body or retract that body's decision to authorize Scotland to grant itself independence, but it could not retract independence (probably) after Scotland opts for it (if it were to do so). Considering only this, Parliament still ultimately seems to have all the power. However, authority which it has already given to that body may soon be seen to have been enough to allow that body to set into motion the dissolution of the United Kingdom and the abolition of the Parliament of the United Kingdom of Great Britain and Northern Ireland.
I do not deny that it is possible to maintain a functioning system of government with parliamentary "omnipotence" as its supposed first-principle, but I do think that participating in that system makes it necessary to make peace with the reality that the theory of the system often will not make any sense.
However, the vote has also made me think about what we can learn about the nature and extent of the powers of the UK Parliament (and its predecessors, the Parliaments of Great Britain and of England), the Constitution of those countries, and the implications of the theory of government behind them, from the chain of legal authority for the vote and for the potential for all of it to actually result the independence of Scotland. I am particularly interested in the lessons to be learned from it because of what those lessons ought to mean for certain doctrines of law and theories about government in the United States -- doctrines and theories which define legislative power in America as inherited from or analogous to that of the former Parliament of Great Britain.
For now, the prevailing creed in the American legal system in relation to the scope and extent of the legislative power in the abstract is that while the government of the United States has no authorized powers other than those which are authorized by the Constitution, the legislative power of each state is limited only by its own constitution and by the United States Constitution (or laws made pursuant to the Constitution, under its authority). With those exceptions alone, the legislative power of a state is said to be "plenary", or complete, and "complete" is made to refer either to the legislative powers belonging to Parliament or else to the complete set of all legislative power conceivable. On this site, I have often pointed out that that idea of what "plenary" legislative power includes is flawed (at least if it is limited to legitimate legislative power -- it does not make sense to me that a legal system might choose to make no distinction between what is legitimate and what is illegitimate, but when a legal system has chosen that, it will undoubtedly regard the power of a legislature as incomplete if it has legitimate power but not illegitimate power). The problem with that idea is usually in one way or another that it depends upon the false and unfounded assumption that the natural or logical baseline or default for legislative power is "omnipotence" like that which has for centuries been attributed to Parliament.
American courts might not have found that theory so persuasive or appealing if it weren't for the extent to which American constitutions reject it and limit the damage it could otherwise have done. After all, while it is only the legislative power of Parliament which is used as the measure of plenary legislative powers, all governmental power in Great Britain had been either directly or indirectly under the control of Parliament long before American Independence. In general, the executive and judicial powers were not directly administered by Parliament, but the executive officers and members of the judiciary were not only not guaranteed any amount of independence of Parliament by the Constitution of Great Britain -- they held their offices and powers subject to the absolute power of Parliament to alter, transfer, or annihilate those offices and powers and to annul or reverse any act of law which they had taken (or to take any such act which had not been taken), and to the absolute power which Parliament possessed over every subject -- including bills of attainder. (Parliament ultimately proved to have power to alter its own composition, though that had not been established at the time of American Independence.) Most of this was done by passing bills into law in a way which Americans might not think qualifies as legislation but which did follow legislative forms and seems as eligible to define "plenary" power in America as would be anything else Parliament did under those same forms. Because higher American positive law (either the state or U.S. Constitution or valid, constitutional federal law) would regulate and restrain that power as it exists in each of the states, it would not necessarily make a practical difference in America whether the plenary power of a U.S. state would in the absence of any higher law extend to everything which Parliament might have done. However, though this limits the potential injustice and damage which imagining a U.S. state's legislature's plenary power to be equal to the vaunted powers of Parliament can actually cause, it also protects that notion's adherents ever being under any serious pressure to think it through or to explain to the rest of us why we should agree with them that such an absurd, unjust conception of rightful state power is the proper measure of the power of each of the U.S. states (other than to the extent to which we have succeeded in expressly repudiating that conception and forbidding our governments to operate that way) simply because Parliament wielded such power and claimed that it did so by right.
The significance of the vote in Scotland is that it provides us with another illustration of how the theory of governmental power whose advocates attributed "omnipotence" to the imperial Parliament is irrational and, as a result of the theory's own defects, could not be made to comply with reason even if it could be made to comply with justice. Though efforts have always been made to dignify and reinforce the powers claimed or actually wielded by Parliament, as its powers grew and developed over the past eight hundred years, those powers and the changes in them over time have in truth been defined by and have depended (as is generally true of the acknowledged, established sovereign powers anywhere) prospectively on the powers asserted by it and all of the factors which affect whether the behavior of the people in its jurisdiction would become consistent with that which its lawful use of those powers could have been expected to bring about and then retrospectively on whether people would later look at what followed the assertion of the power and then agree, "Yes, it did have that power," even if no one could have been able to say that for certain until Parliament had managed to make that power "stick". Before the last years of the 17th century, though Parliament had already become very powerful in theory (and to a lesser extent in practice), this power was not infrequently challenged by the king. The kings' challenges to that power did not come in the form of arguments in front of a judge but instead in that of a denial of Parliament's power and of conduct in disregard of Parliament's claims of power and right. The kings' success in all of this was variable, but the controversy was settled not when a court decided in Parliament's favor but rather when a revolution took place, Parliament made its claims of rightful power "stick", and the king fled the country. Within two decades, Parliament proved that it had authority to 1) enact into being its own legitimate identity as the English Parliament, 2) conclusively establish that the throne of the kingdom had become vacant, 3) invite its choice of royalty from outside the kingdom to ascend to that throne, 4) establish and define the bloodline along which the crown would descend (from the new king and queen), 5) impose a permanent limit on the length of time which may be allowed to pass between the beginnings of successive parliaments, 6) replace that permanent limit with a different, higher permanent limit, 7) unite the kingdoms of England and Scotland (with the concurrence of the parliament of Scotland), and 8) make further changes to the future descent of the crown.
Just for now, I'll skip about three centuries (including that time when Parliament attempted to exercise powers over America which were relatively plausible compared with the rest of what it supposedly had the legitimate power to do but which Americans determined were instead arbitrary and illegal -- and which Americans slowly and carefully but firmly began to treat as such -- leading to Parliament escalating the conflict again and again with more severe, more unreasonable measures, which Americans resisted as arbitrary and illegal, with American Independence ultimately resulting from it all) to the present. One of the reasons why it seems so strange to me that the vote in Scotland is even taking place is that as a general rule, though there have been exceptions (which often would only have been possible to identify in retrospect), the power of Parliament does have one limit: it cannot take away the powers of later Parliaments. Parliaments have often attempted (by enacting laws) to bind future Parliaments. What exactly resulted from those attempts varied in the specifics from instance to instance, but in most matters, I do not think an earlier Parliament has ever prevailed against a later Parliament which chose to defy the earlier one. However independence of one of the component kingdoms of the United Kingdom is not an ordinary matter. Now, if Parliament itself had simply granted independence to Scotland, that would have presented an issue interesting enough: an attempt by Parliament to retract independence that it had granted (Canada's, for example) could very easily fail, even if Parliament were to enact that retraction. It would discover that it isn't quite that omnipotent. The independence of Scotland, however, would deprive future Parliaments of power in another way: it would prevent the existence of any future Parliaments of the United Kingdom. Scotland and the remainder of the United Kingdom could always vote in the future to reunite, but otherwise, no future United Kingdom Parliament would have the power to undo what the last United Kingdom Parliament had done because no future United Kingdom Parliament would exist.
Even though the issue of independence for Scotland is about to be decided by a vote of Scotland's electors rather than by an act of Parliament itself, the issue just discussed will still be present if Scotland ultimately does choose independence, but there will be an additional issue as well: Parliament gave to another body authority which that body used to authorize Scotland to vote on assuming its independence. Parliament could presumably retract the authority of that body or retract that body's decision to authorize Scotland to grant itself independence, but it could not retract independence (probably) after Scotland opts for it (if it were to do so). Considering only this, Parliament still ultimately seems to have all the power. However, authority which it has already given to that body may soon be seen to have been enough to allow that body to set into motion the dissolution of the United Kingdom and the abolition of the Parliament of the United Kingdom of Great Britain and Northern Ireland.
I do not deny that it is possible to maintain a functioning system of government with parliamentary "omnipotence" as its supposed first-principle, but I do think that participating in that system makes it necessary to make peace with the reality that the theory of the system often will not make any sense.
