bella gerens

In the wake of the recent shenanigans in Westminster, there has been renewed speculation about whether or not Britain ought to have a written constitution like the US does, codifying individual rights (and, if you’re Gordon Brown, duties) in contradistinction to the state. I’d link, but I can’t remember where I read most of the speculation.

At present, whilst Britain has a constitution, it is a mixture of ancient and modern charters, common law based largely upon precedent, and legislation. Certain rights are defined in Magna Carta, the Bill of Rights of 1689, and of course these days in the European Charter of Human Rights, Britain’s participation in which David Cameron has said he would repeal. The question, then, is whether Britain ought to have a single, all-encompassing document that sets out the rights of the citizen, the responsibilities and powers of the state, and defines the nature of the relationship between the two.

In my own opinion, the answer is no.

If one uses the US constitution as a basis for judgment, one runs into problems immediately. The first, and most obvious, is that the existence of such a document does not in any way guarantee against its infringement or selective interpretation. There are many schools of thought in the US about the purpose, place, and meaning of the constitution, ranging from the strict constructionist, the Founders’ intent, all the way to the ‘living document.’ The fact that there is a document – a particularly clear and well-composed one, I might add – has not stopped anybody from reading his or her own wishes, intentions, and prejudices into its text. Even if Britain were to generate for itself such a constitution, endless wranglings over its necessary ambiguity would result in there being no clearer understanding of rights (and/or responsibilities) than already exists.

It is also the case in the US that the provisions of the constitution are routinely, one might even say ritually, infringed. There has never been a point in history at which the liberties outlined therein have been available to all Americans at all times. Politicians are very good at coming up with reasons and justifications, however spurious and transparent, for circumventing, withdrawing, or otherwise ignoring the protections set out in the constitution. I see no reason to suppose a British constitution would be immune to similar manipulation.

If one reads the Federalist and anti-Federalist Papers, one discovers that there were concerns even at the time the American constitution was drafted about the wisdom of setting out rights and liberties in a universal document. Whilst it is important to note that one of the motivating factors behind the creation of the constitution was to eliminate ambiguity regarding traditional liberties – ambiguity that, under the prevailing British system, had resulted in the suppression of a number of freedoms to which the American colonists believed they were entitled – a large contingent at the constitutional convention was wary of codifying any rights. The anti-Federalists were worried that, in setting out the rights of individuals, a constitution would limit individuals only to those rights, and prevent people from claiming those traditional liberties which had never been legally stated but had always been understood to exist. Their worry turns out to have been true: as the constitution is interpreted in the US today, an American citizen possesses only those rights which are detailed in the first ten amendments to the constitution, and no others. Right to property is conspicuously absent. To codify a constitution in Britain would lead, more than likely, to the same problem.

Then, naturally, one must consider who would be writing the British constitution. The organisation of the British polity would seem to demand that this be undertaken by the Government, which undertakes all other matters generally, whether by use of executive privilege or its majority in the House of Commons. A Government-composed constitution would naturally result in a highly-politicised, fad-filled document reminiscent of the European Charter of Human Rights, which includes absurdities like the right to an education and the right to healthcare. Many of the ‘rights’ described therein can only be guaranteed and provided by a collective entity – the state – at the expense of others. What it would come down to is a pitting of right against right, liberty against liberty, entitlement against entitlement, wherein your right to your property is overridden by my right to healthcare, just to name an example. A true constitution would include as rights or liberties only those things which are universal to all people at all times, and thus do not conflict with one another. Call me sceptical, but I doubt that any British Government of whatever party would produce anything of the sort.

One must also consider the issue of parliamentary sovereignty. Even if such a document were to be produced and ratified, one parliament cannot bind future parliaments – unless that traditional convention were to be specifically negated in the new constitution. Given the current disagreement about the Lisbon Treaty, I’m not sure that the binding of future parliaments is a precedent that ought to be set, let alone codified in a constitution. It is a distinct advantage and disadvantage of the British system that change in laws and institutions can occur quickly and without warning; take away that ability to institute the good and eliminate the bad, and one ends up with a petrified, moribund system like the US has, where even necessary change is slow to take place and the checks and balances on each and every branch of government mean that very little growth and evolution are possible. This works in the US because we’re used to it – it’s always been that way – and because the original system was conceived of and implemented by men who were steeped in Enlightenment thought and truly wished to create a polity whose values and operation would be acceptable to all people at all times. So far, they have been more or less successful. But I consider it very unlikely that any constitution the British government produces would have this aim in mind, much less achieve it, and thus I think it very unwise of the British people to bind themselves to a document of the times and the prevailing political and social mentality.

In the ratification process of the American constitution, the federal system meant that a majority of the legislatures in a majority of states had to agree to provisions and amendments before they could take effect; this condition prevented the social and political attitudes of particular regions or population groupings (urban v. rural, for example) holding sway over the entire nation. The aim was, of course, to ensure that only those proposals which were demonstrably acceptable to the vast majority of the population were implemented. Britain does not have a federal system. Will a putative constitution need to be ratified by a majority of councillors in a majority of county councils? Will it need to be ratified by the regional assemblies of Wales and Scotland? How is it possible to ensure that such a constitution truly is acceptable to the majority of the British population? How would such a constitution be reconciled with the principles of devolution that have become so popular? A strong central government could certainly impose a constitution on the populace without taking into account the wishes of particular regions or localities, but if a constitution is imposed on the people without their manifest consent, whence does it derive its legitimacy?

All of these problems suggest to me, at least, that any attempt to codify a constitution in this country would be an absolute shambles, if not an outright disaster. The current system is cumbersome, inconvenient, draughty, and malleable, but I consider all of those things preferable to a political philosophy imposed from the top down that will by any reasonable assumption be hideously illiberal, fashionable, asphyxiating – and ignored when convenient anyway. I will leave it to others to speculate on what a British constitution might or ought to say.

UPDATE: Errata here.