Written Constitution

The Constitution – Part 3

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noobminster constitution 3

Alright, so last time we looked at the things that make America’s written constitution a marvel of the modern world, but this time we’re going to look at where it falls down and the unwritten British version comes into its own as well as why both countries ended up with their respective systems. Off we go.

Unsurprisingly, things change…

I’m sure you’ve noticed how the front page of The Daily Mail has this bizarre thing going on where one day a glass of red wine can spell instant death while the next it’s being hailed as the secret to a long and disease–free life? Well politics is no different – things change and for countries with a written constitution this can be a big problem, particularly if your constitution is laden with stacks of idealism in the way the American one is.

Probably the most famous example of this is the Second Amendment – a particularly concise section of the Constitution that says the following:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

At the time of its adoption, this Amendment made a great deal of sense for the following reasons:

  1. America was a pretty wild place back in the day: Not only did you have all the problems associated with being a frontier nation (untamed wilderness, lawlessness, bears), there was also the small matter of the continent’s original inhabitants and their less-than-thrilledness at their new neighbours’ expansionist tendencies. For that reason, it paid to have an organised body of armed men kicking about at a local level.

  2. They really didn’t have much in the way of an army so if things did go pear-shaped, it was liable to be the militias who would have to do the bulk of the heavy lifting1 (the same was true of law enforcement).

  3. Some of the Founding Fathers viewed militias as the best defence against a tyrannical government – one of the driving concepts behind the Constitution.

From this point of view, maintaining a system of armed militias was seen as a bit of a no brainer and the Second Amendment was ratified so that the people would be able to defend themselves against any wayward government or threat to the country itself.

Fast forward a couple of hundred years though and it’s pretty clear that things are different these days:

  1. Unless you consider a strip-mall to be a ‘frontier’, America is no longer quite as wild as it was. On top of that, the problems with the neighbours seem to have been solved with the liberal application of genocide.

  2. If there’s one thing that America isn’t short of it’s cops and soldiers.

  3. Having been largely replaced by the National Guard, militias have gone from being the True Defenders of Liberty and Freedom to The Last Resort of Cranks, Crackpots and Kooks.

So if this rule seems pretty redundant, why haven’t they ditched it? Well, as I mentioned last time, changing the Constitution is very difficult as it requires a 2/3rds majority plus ¾ of the States to go along with it. That’s the first big problem with a written constitution – despite (usually) being created with the best of intentions, history has a nasty habit of turning yesterday’s cherished values into tomorrow’s awkward anachronisms – and governments can find themselves hamstrung by concerns that ceased to be relevant hundreds of years ago. That, however, isn’t the only problem.

The Letter of the Law is an often an ‘F’ followed by a ‘U’…

While the Constitution’s low word count makes it a very effective document for

encapsulating the spirit of a nation, it does suffer from a certain vagueness (and necessarily so – the Founding Fathers were smart enough to realise that a little wiggle room goes a long way when fashioning a new nation). Take another look at the full text of the Second Amendment:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

And that’s literally it. That’s all there is to it – one sentence that says that States are entitled to have well regulated militias and these militias can be armed, end of. Except that this isn’t the end of anything at all because there are a number of ways you can interpret that sentence – a matter not helped by the fact that the text of the Second Amendment as written in the Constitution differs from the version ratified by Congress in certain capitalisations (the Constitution refers to ‘Militia’ and ‘State’ while the Congressional version goes for ‘militia’ and ‘state’).

For example, you could quibble over whether a ‘well regulated Militia’ means an official body sanctioned by the ‘State’ (i.e. the Federal State in which it resides) or whether a ‘well regulated militia’ is just a bunch of heavily armed pals with a dress code and a mission to protect ‘the state’ (whatever that may be). However, let’s say you’re not really bothered about militias one way or another but you are very concerned with your right to own a weapon – all you really need to do is put the focus on those ten little words: “the right of the people to bear and keep arms’.

Now, I don’t know if the Founding Fathers were trying to ensure that militias could have guns, or whether they really meant that the whole population should be tooled up to the nines, but one thing is clear: No-one else knows and that makes legislating anything about gun ownership into a total nightmare that is heavily dependent on what a judge has to say about it.

Off to court we go…

As mentioned last time, legislating is pretty easy in Britain if you’ve got Parliament behind you – basically, if you’ve got the votes in Parliament, then you’ve got a law and that law is then considered to be part of the constitution. In America it’s different: Any law you propose is liable to be pored over by an army of lawyers, some of whom are liable to say ‘Hold on a sec, this sounds suspiciously like it might be breaking Amendment X or Article Y of the Constitution’. Should this happen and the courts are willing to hear the case, your law is in the hands of a judge and how they interpret the relevant part of the Constitution. Given that the Constitution is so hazy on pretty much everything, that’s an awful lot of power in the hands of not very many unelected people, not to mention the fact that it just gums up the law making process and makes legislating on anything even remotely controversial into an expensive, time-consuming Shangri-La for lawyers.

Wordiness – the ultimate paradox…

Here we find one of those weird, perverse, by-products of our own unwritten constitution: Despite the fact that it runs into thousands and thousands of different documents, it’s incredibly quick on it’s it feet and can move with the times in a way that anything bar a one-party state or absolute monarchy can. Something terrible’s happened that requires immediate legislation? No problem, we can turn it around tomorrow. An old law is being used in a way that it wasn’t really intended for? Then get the hell out of here Old Law, you’re through! Honestly, it never ceases to amaze me that this 800 year old nag can run rings around pretty much any other constitutional settlement in the world in terms of nimbleness. Granted, this comes at a hefty price in that we need to be constantly vigilant that governments don’t abuse this inbuilt strength because the law isn’t going to protect us (well, it might, but there’s nothing to stop the law being changed). By-and-large though, it works.

Ha! So one in the eye for Yankee Doodle Dandy then?

Well, not quite. The American system has its merits and more importantly, it works in their historical context. For example, the American Revolution would have looked a little lame if, at the end of it all, the Founding Fathers turned around and said “You know what? Let’s do things in exactly the same way that our newly deposed tyrannical overlords did.”. That sort of negates the point of a revolution and instead, they used the demise of their one-time oppressors as an opportunity to fashion not only a political system but also the basis for a national identity. In fact, this holds true for the vast bulk of constitutional arrangements around the world: They all tend to be the result of some grand, seismic shift in politics like a revolution or obtaining independence from a foreign power and it is here where we begin to see how truly unique Britain’s system is.

It all comes down to the fact that the British don’t really do revolutions. We had a good stab at one with the Civil War – a conflict that led to the Monarchy being abolished for a good 12 years along with a little regicide – but in the end we decided that actually, we rather liked the old system and wouldn’t it be nice if we restored the Monarchy to its original position (hence The Restoration)? Then we had the Glorious Revolution, but this turned out to be much less of a pitchforks/braying mob affair and more of a gentlemen’s agreement where we simply traded one unpopular domestic monarch for a far more flashy and palatable foreign one while the underlying system of government remained unchanged.

What this means is that we’ve never really had that Year Zero scenario, no real point where the slate’s been wiped clean and we’ve had to start from scratch (in fact, it can be argued that it’s the constitution’s flexibility that’s made Britain so resilient to revolution). Instead, our political history can be summed up as a centuries long tussle between the power of the Monarchy and the will of the people as expressed through Parliament, all mediated by a system of rules that allow for a great deal of bending without the risk of breakage. It’s a strange, arcane and quite often absurd system based on inordinate quantities of trust, but for all its faults it has outlasted every other constitution on Earth with its counter-intuitive agility.

Alright, so that’s the constitution in a rather-longer-than-I-expected-nutshell and next time we’re going to start looking at the major institutions that make up the British political system. Will it be the Monarchy?! Will it be the judiciary?! Will it be Parliament?! I don’t know yet but isn’t this exciting?!?!?

1…Or if you couldn’t enlist the French to bail you out. Without their substantial military support, it’s doubtful that there’d even be a United States of America today – a fact conveniently overlooked by most Americans these days.

The Constitution – Part 2

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noobminster constitution 2

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.

1 I say ‘in theory’ because a) there are pitchfork-based alternatives that exist outside of law b) no-one can quite agree on how EU law affects the constitution and c) there’s the small matter of Royal Assent – topics we’ll cover further down the line.

2 In fact, this has happened in living memory. During WWII, the electoral process was suspended pending the outcome of the conflict. As a result, there were no elections between 1935 and 1945.

Click here for the third and final part on the constitution…

The Constitution – Part One

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noobminster constitution

Interesting word, ‘constitution’: Ask an American what they think of the constitution and it’s likely that they will start mumbling something about ‘muh freedoms’ while gazing off into the middle distance as The Star Spangled Banner starts playing from nowhere. Now try it with someone from the UK and marvel at how quickly their eyes glaze over. Why is this? Why does its mere mention send Americans into spasms of starry-eyed partriotism while most of us would have a hard time even defining what the damn thing is? Let’s start with the real basics…

Fun and Games…

Have you ever witnessed small children trying to play a boardgame they’re not really ready for, like three year olds trying to navigate their way around a Monopoly board? At first it’s all rather endearing as they bicker over whether the racing car’s better than the dog (idiots – the battleship trounces all) but it gets old pretty quickly. First there’ll be the plucking of arbitrary rules out of the air, swiftly followed by the equally arbitrary breaking of said rules before the inevitable tears before bedtime as houses are forcibly lodged into ear canals and hotels disappear up nostrils. In short, it’s not much fun and it’s also what a country looks like when it doesn’t have a constitution – just with more guerrilla warfare, roving banditry and ethnic cleansing.

From this point of view, a constitution is a pretty big deal as it is essentially a rule book that lays out how a country is to be governed. They let us know (among other things) who is in charge, how they get to be in charge, what they can do, what they can’t do and how they can be removed – simple, right? Well, sort of… While nearly everyone agrees that rules are generally a good thing for societies to run on, as to how you make, change and record those rules isn’t quite so straightforward and every country has their own take on it.

To write or not to write?

Let’s say you want to set up some rules for your country – it doesn’t take a genius to figure out that it’s probably quite a good idea to write them down, hopefully all in the same place so you know where they all are. This is the route that Americans went down after they overthrew their British rulers and what they ended up with was a written constitution – a single document where all the rules of the game were recorded. In Britain however, we have a different beast called an unwritten constitution and this is where things start getting complicated. Really complicated.

Let’s stick with Monopoly for a second and pretend that two games are about to start – one in America and one in Britain. For the Americans, setting up is a breeze: They open the box, retrieve the rulebook and then set about divying up the money in the manner intended before rolling to see who goes first. Sure, there are minor quibbles about who gets to be banker and a few harsh words exchanged over ownership of the racing car, but by and large it is easy. Not sure what you’re supposed to be doing? Fine, just go and look it up in the concise little rulebook. Simple.

In contrast, the Brits are having an absolutely torrid time getting the game off the ground, mainly because instead of finding a tidy little rulebook inside the box they discover thousands of tiny scraps of paper scattered all over the place, each one scrawled with a number of rules that were made up by players of previous games by putting them to a vote. These represent what are known as ‘statutes‘ (essentially laws made by Parliament) and there are literally thousand of the buggers, all spilling out in no particular order. Worse still, some of them have been scribbled out as players have voted to scrap various laws over the years so a good few hours is spent just trying to sort out exactly what rules still apply and which ones don’t. Oh, and on top of that, some international treaties also have the same impact on the constitution and European law complicates matters even further.

However, that’s only the start of the trouble as it turns out that there’s another box marked ‘Common Law‘ and it is equally full to the brim with similar scraps of paper that also have a bearing on the way the game is played. The thing that makes them different from statutes (which are made by Parliament) is that these rules are the result of disputes that a judge has presided over. So, let’s say that in a previous game, an argument broke out over who gets custody of the old boot and it was so intractable that the players had to call in the next door neighbour to make an impartial decision as to who gets the most rubbish piece. Once that decision is made, it becomes the template for how that dispute would be settled if it ever occurred again and it is also another component that makes up the British constitution.

So, another hour goes down the pan but the group seem to getting on top of the legal situation – that is until the host says ‘I assume we’re putting all our fines in the middle and whoever lands on Free Parking gets to keep them all, right?”. At this point, another player pipes up and demands to know why we would do that when there’s been absolutely no mention of the Free Parking rule in either statute or common law. “Because that’s just how we do it here” replies the host and the rest of the room nod along in agreement. This is what’s known as a ‘convention‘ and it’s probably the most vexing aspect in what already is a fairly bonkers constitutional set up.

Basically, a convention is a ‘rule’ that isn’t written down anywhere but is generally accepted to be valid and binding. For example, after a general election the Queen is supposed to hand the keys to No. 10 to the person most likely to ‘command the confidence of the House of Commons’ and this is usually considered to be the leader of the party with a majority of MP’s (so more MP’s than all the other parties all together). However, in the case of a ‘hung-Parliament’ (i.e. a situation where no party has a majority), this tantalisingly vague convention becomes a little problematic and is usually resolved by taking advice from a number of leading civil servants and constitutional experts as to who is best placed to become PM.

So far, she’s always done this so it’s never really been an issue but it does raise the question of what would happen if she didn’t – after all, she’s not breaking an explicit law and there’s no prescribed punishment for breaching a convention. In fact, no one really knows what should happen after a breach of convention, yet conventions are a central plank of our constitution.

Anyway, the uppity player is silenced by the nodding of his peers (that how we get things done in the UK – silently nod all opposition into the ground) and the first roll of the dice is about to happen when another player comes in clutching a copy of a book called The Experts Guide to Monopoly.

“Hold up.” she says. “This book mentions that some people play a rule when you get £400 for landing on Go. Can we do this?”

What she’s done here is invoke a ‘work of authority‘ and this is the final source of the constitution. Simply put, there are a number of very old and very wordy books – such as Walter Bagehot’s The English Constitution – that are considered to be guides on how the constitution works and they can be drawn in order to interpret the constitution. For example, if there’s a situation where the constitutional process appears to be rather ambiguous and no clear answer can be found in law or convention, one of these works can be referred to in order to help clarify the situation. Quite how a book becomes a work of authority is – like many things pertaining to British politics – as clear as mud.

Back to the game and as it happens, the group appear to be the sort of joy killing squares who always scupper my attempts to instigate the £400 rule every Christmas so the matter is dropped and the Brits finally get round to the first roll of the dice… 5 hours after the Americans have finished up and gone to bed. Despite this though, they have provided a pretty good breakdown of what our constitution is based on. To recap, while the American has one, central, unifying text that you can actually touch and exists in the physical world, the UK Constitution is drawn from the following sources, some of which only exist on a strange, metaphysical level. These are:

  • Statutes (the laws that Parliament has already made, treaties and to a very complicated extent, European law)
  • Common Law and precedents (essentially ‘how things have been done in the past’)
  • Conventions (agreements which aren’t written down but are supposedly binding)
  • Works of authority (worthy tomes written about our political system although these are only considered to have ‘persuasive authority)’

It’s also worth mentioning that there are many other constitutional arrangements around the world that have all sorts of craziness going on, but these two will do for now.

Madness! Madness I tell you!

If you’ve taken anything from all the above, I’d wager that it’s along the line ‘What the hell are we playing at?!’ and I can see why because it seems an extremely cackhanded way to govern a country. However, there is method behind the madness and in the next two posts we’ll look at how all of this stuff works in practice and why things might not be quite as harebrained as they initially seem.

 

Click here for Part 2 of The Constitution