Fifth Amendment

In the last post we looked at both the American written constitution and Britain’s unwritten counterpart – an exercise in bafflement that probably left you mulling over whether it might be a good idea to emigrate. However, things in politics are rarely straightforward and in this post we’re going to dig a little deeper into the benefits of a written constitution while in the next we’re going to look at its drawbacks. Ready to get your head all bent out of shape again? Good – because you don’t really have a choice in the matter. Or maybe you do.

Doin’ things the ‘Murican way…

The big thing that stood out when looking at the American constitution was just how simple it seems in comparison to Britain’s fiendishly complicated excuse for a political settlement. Just to recap, all the rules for the running of America are fairly straightforward in nature and exist in a single document know as the Constitution of the United States. As blueprints-for-a-nation go, you’d be hard pushed to find a text that comes close to the Constitution in terms of brevity (the whole thing weighs in at a very svelte five pages), not to mention the fact that it’s got an absolutely killer first line: “We the people…”. Just hearing that makes me want to dress up like the Statue of Liberty and tear around in an outsized pickup whilst listening to Ted Nugent.

And that’s the thing about the US Constitution: Not only does it provide a technical explanation for how the country should work, it also gives you a very unambiguous sense of what it means to be American – or at least what the Founding Fathers of the United States took to be American ideals. On top of that, it’s actually tangible – a real thing that you can see and hold (well, not quite ‘hold’, unless you fancy trying to bust it out of its bulletproof case in the National Archive). Contrast this with Britain’s unwritten constitution – a sprawling miasma composed of thousands, disparate, unconnected documents and a nebulous clutch of ideas that exist only in the minds of people who can be bothered to grapple with its absurdity – and you begin to realise why Americans hold a 227 year old stack of parchment in such reverence (it’s also why the US Constitution gets a capital letter in front of it while the British one is just a boring lower-case affair).

Let Freedom ring with a formalised legal framework…

So anyway, what did the Founding Fathers think their nation should look like? Well, for one they were very interested in personal liberty – the idea that people can pretty much do what the hell they want providing that it doesn’t get in the way of other people’s desire to do whatever the hell they want. This idea is enshrined in a section of the Constitution known as ‘The Bill of Rights‘ and it essentially says that people have the right to say what they want, believe in what they want and that there are very strict rules that government has to play by when it comes to throwing its weight around. Obviously there are limits to the ‘do what you want bit’ (if your hobby happens to be ‘homicide’ then I’m afraid you’re out of luck) but in general, Americans see the role of the state as something that protects your freedoms and they took this seriously enough to make it part of the Constitution.

Here’s a good example of how deep this notion of formalised and entrenched individual rights runs in American society: Ever heard of ‘pleading the Fifth?’. You’ll always hear the bad guys in American movies saying it when they’ve just been nicked and a sweaty copper is screaming at them to come clean. What the alleged bad guy is doing here is invoking the Fifth Amendment of the Constitution which (among other things) states that no-one can be forced to divulge information that could incriminate them. The police can huff and puff all they want, but the bad guy’s right: If he doesn’t want to tell you anything then it’s his legal right not to and this idea is so deeply engrained in American society that even the most dumb-as-rocks street crim can reference the relevant Amendment correctly.

It wasn’t just personal liberty that the Founding Fathers were concerned with either – they were also very wary of institutionalised power in general (that’s why they had a revolution in the first place) and went to great lengths to design a system that ensured no part of the government could grow too dominant. This is known as ‘the separation of powers‘ and this is laid out at the start of the Constitution along with the notion that the states that compose the Union should also have certain rights and powers that the central government can’t meddle with (this is the basis for what is known as a ‘federal‘ system). Now, these are pretty big and complex ideas in themselves which we’ll save for another day, but the main thrust of it is that the little guy is protected from the very big guy by the Constitution and that the Constitution itself is more important than any government – which is why the President has to swear that he or she will “preserve, protect and defend the Constitution of the United States”.

Meanwhile, back in Blighty…

Now, compare that to Britain for a second: Over here, a government can essentially make any law that it wants, providing it can get it through Parliament because our constitutional settlement means that any law passed by Parliament is then considered a part of the constitution. So, for example, let’s say that there’s a party in power with a Parliamentary majority (that means they have more MP’s than all the other parties put together as well as a majority in the House of Lords) and they are well-disciplined (meaning that all of that party’s MP‘s and Lords will vote with the government, come what may). This government essentially has the power – in theory at least – to do just about anything¹. Want to make use of the phrase ‘bantz’ an offence punishable by death? Boom – done! How about rounding up everyone with a topknot and shipping them off to the Falklands? Again, if you’ve got the votes then you’re golden because in Britain, the buck stops with Parliament itself and if Parliament says it wants to send hipsters to the South Atlantic then to the South Atlantic they go. In fact, there’s nothing that can really stop Parliament from voting on a bill that says ‘To hell with democracy! From now on we’re not having elections and if you don’t like this government then tough luck – there’s nothing you can legally do about it!’². This would result in a situation known as an elected dictatorship and it’s one of the classic arguments against an unwritten constitution.

In the States however, these laws would never see the light of day because they both violate The First Amendment which is the part of the Constitution that enshrines an individual’s’ right to express themselves. In effect this would make such a law unconstitutional and thus a thing that cannot be. Sure, I guess if they really wanted to get this done, they could try to change the Constitution but this is highly unlikely as you need the agreement of a two-thirds majority in both the Senate and The House of Representatives and then the agreement of three-quarters of the states in the Union. To put it bluntly, that’s not going to happen in a month of Sundays.

So it’s game, set and match to the Yanks then?

Looking at the above, it’s pretty hard not to conclude that the American’s have devised a far better system of government since it actual gives the individual very robust protection against a government that has the potential to get too big for its boots. But is the whole story? Well no, not quite as there’s an equally valid set of points that run in our favour that we’ll come to– along with some of the reasons why both countries ended up with their respective systems – in the next post.