Sunday, September 27, 2009

How's Your Constitution

How do you prefer your Constitution - Written or Unwritten?

This week Iota of Not Wrong, Just Different shares her views on the written vs unwritten constitution issue.

Iota:

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

This is how the US Constitution begins. It’s beautiful language, and I’m sure I’d be proud of it, if I were American. I’ll be interested to read what Mike has to say on that subject.

I’ve occasionally been asked how the British government works, and I find myself fumbling rather. The workings of the ‘Mother of Parliaments’, its relationship with the judiciary, the European Parliament, and the Monarchy: that is not an easy topic. There are two points which seem bizarre to Americans – and I’m not surprised. The first is that we don’t have a constitution, and the second is the role of the Monarchy in governing the country.

In reply to the first point, I say that we do have a constitution, but it’s an unwritten one. I can see how if you are used to the idea of a written constitution, it’s very odd to think of an unwritten one. I explain how there are centuries of precedent that can be called upon to challenge or justify a procedure or action, but that in practice, it just isn’t an issue. The government of the day proceeds with business, and nobody checks to see whether what they are doing is in line with a constitution or not. I was in the Civil Service for five years, in Whitehall, so I suppose I should know more about this. But I think that just proves my point. Whether something is constitutional or unconstitutional isn’t a question that comes up in the day to day workings of government. I can’t be more specific about how we manage without a written constitution. We just do.

As for the role of the Monarchy, I find myself agreeing with the point that Americans have made to me, that it’s not very democratic to have an unelected person signing every Act of Parliament. I explain that the government passes laws, and that the signature of the Queen is just a formality. She isn’t involved in the law-making process. In practice, it doesn’t matter whether she was elected or born to her job. I’ve been asked what would happen if the Queen refused to sign an Act. I honestly don’t know. I’m assuming it will never happen, but of course, we can’t guarantee that there won’t be a future Monarch who would try to wield real power. At that point, we would have to decide how to enforce democracy in the modern age, but for the time being, tradition and convention are doing the job for us.


Mike:

A few years back I watched a show on BBCi called “How to Start Your Own Country.” It was a humor show featuring comedian Danny Wallace attempting to put a country together. I found it very humorous, especially their national anthem, which featured the line, “we’ve done a constitution and we even wrote it down.” This was funny to me because, of course you would write down your constitution. It wasn’t until later that I discovered it was an ironic statement on the fact that Great Britain does not have a written constitution.

(Click to see Danny's National Anthem.)

Now, the British Empire seems to have done fairly well over the past thousand years or so without the advantage of a written constitution but, as an American, I find it a strange concept. To an American, The Constitution is a sacred document; it’s always there, protecting us, keeping the government from confiscating our guns or quarter soldiers in our spare room and providing employment for an army of constitutional lawyers and a handful of Supreme Court judges.

The Founding Fathers were pretty smart guys, but they knew they couldn’t foresee every problem their new country would encounter, so they left us with this elegant document to provide a solid foundation of laws and parameters of what the government can and cannot do.

The phrase “That’s unconstitutional” is as much a part of American life as “I pledge allegiance to the flag” and “Do you want fries with that?” and I don’t think there are many of us who would want it any other way. No Constitution? There may as well be no “Rugged Individualism,” or “Protestant Work Ethic” or Santa Claus.

I can’t say the Brits experience any sense of Constitution Envy because they don’t have one, and I don’t know if there’s any advantage one way or the other. On the one hand, I have never heard anyone counter an argument in a pub with the “That’s unconstitutional” line, but on the other hand, they have taken our guns away.

And if they try to insist we let a couple of squadies bunk down in our back bedroom, I’ll know something went horribly wrong.


Got something you want us to address? E-mail your suggestion to us or just pop it into the comment box.

5 comments:

  1. Actually...England does have a constitution, it's juat not contained in a single document. We have the Magna Carta, which was originally signed by King John in 1215. Many scholars believe that the MC merely encoded what was already in place in the country. It was reissued several times and the final version dated 1297. Many of its clauses have been repealed, mainly because they weren't relevant to the times (eg. feudal death taxes), but the Magna Carta covered every thing from false imprisonment (Habeus Corpus - a foundation of the legal system) to the court system.
    Today England upholds Common Law in its legal system as well as Statutory law, and precendents set in court decisions are as binding as anything on the books.
    In recent years there have been calls for a Bill of Rights to encode everything currently in place and to tighten up Human Rights legislation.
    (I knew that Law Degree would come in useful some day!)

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  2. I'd forgotten about Magna Carta.

    I can see how legal precedents function as a constitution, but I still think they're not A Constitution, as such. And not in the public consciousness, at any rate.

    (But you can tell I don't have a Law Degree.)

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  3. Yes, it's a common misconception that the UK doesn't have a constitution, or if it does, that it is unwritten. As the Wiki article says:

    "The constitution of the United Kingdom is the set of laws and principles under which the United Kingdom is governed.

    The UK has no single constitutional document comparable to those of most other nations. It is therefore often said that the country has an "unwritten", uncodified or de facto constitution. However, the majority of the British constitution does exist in the written form of statutes, court judgments and treaties. The constitution has other unwritten sources, including parliamentary constitutional conventions and the royal prerogatives." The rest of the article is worth a read; it's at http://en.wikipedia.org/wiki/Constitution_of_the_United_Kingdom

    One important constitutional document is the English Bill of Rights 1689 ( http://avalon.law.yale.edu/17th_century/england.asp ). Americans may be interested, in reading it, to see how much their own Bill of Rights was based on it. (Or they can find a summary of the similarities at http://en.wikipedia.org/wiki/United_States_Bill_of_Rights#English_Bill_of_Rights .)

    > role of the Monarchy in governing the country

    Of course the Monarchy doesn't govern in any normal sense. The way that this has been put by various constitutional experts is "The monarch reigns, but does not rule."

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  4. An unwritten constitution has the great advantage of being flexible. GB could never find itself in the dilemma the US is in over firearms - stuck with an outdated and dangerous law because the constitution is seen as Holy Writ, not just another bunch of laws made by some WASPS a few hundred years ago.

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  5. However, once you get something established as case law, it's a bugger to overturn, no matter how outdated.

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