The Constitution – Part 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?!?!?