6th January 2021
Imagine – just for the sake of this post – that the United States did not have a written constitution.
And now imagine that there had been a president like Donald Trump in office over the last four years who had pretty much done what Trump had done – every outrage, every attack on a minority, every sacking and every appointment, every manipulative or threatening telephone call, every high crime and misdemeanour, and so on.
There would be pundits who, when presented with such a catalogue of wrongful conduct, would assert confidently: ‘you see, this shows the need for a written constitution!’
But the thing is: there was a written constitution, and all these bad things happened anyway.
Back in November 2020 – and more in hope than expectation – my column at Prospect magazine was entitled ‘Why we need to stop talking about a written constitution’.
My three main contentions were as follows.
First, a written constitution (that is, for the purpose of discussion, a codified constitution) is inherently neither a good nor a bad thing – and, indeed, such a constitution can either entrench or mask illiberalism or tyranny.
Accordingly, the knee-jerk demand for a written constitution at every constitutional trespass is misconceived, as such a constitution is not a panacea.
Second, in England (and, as presently constituted, the United Kingdom) there is no plausible path to entrenching any constitutional code, regardless of any theoretical attractions.
And third, the demands for a written constitution whenever there is a constitutional trespass are too often a substitute for attempting any actual constitutional improvement.
All a pundit will announce is ‘you see, this shows the need for a written constitution!’ and nothing else will be said.
And this insistence on an absolute ideal in any conversation about the constitution, instead of any practical suggestions, was and is (in my view) part of the problem.
Regardless of the (provocative) title of that column, there are times to revisit the debate about the merits and otherwise of a codified constitution.
This morning, the news reports from the United States are that the Democrats may have won both Georgia senate seats – and, if so, that would mean the Republicans will lose control of the senate.
Today the United States congress will meet and it is expected that the electoral college vote will be certified, meaning Donald Trump has lost and Joseph Biden has won.
The Trump presidency will thereby end, and the Biden presidency will begin, on 20 January 2021 by automatic operation of law.
These are welcome political developments for anyone opposed to the nasty authoritarian nationalist populism of Trump and his Republican supporters.
They have lost.
So surely: this shows the merits of a written constitution?
Tony Benn famously posited the five questions of any democracy:
‘What power have you got?’
‘Where did you get it from?’
‘In whose interests do you use it?’
‘To whom are you accountable?’
‘How do we get rid of you?’
Of these five questions, the one which (in my view) has the most power is the last one: ‘How do we get rid of you?’
And applying this question to the Trump experience, the answer is stark and indeed unavoidable.
Donald Trump has been got rid of because of the provisions of the constitution of the United States.
As the events since his election defeat have shown, there is nothing he would not resort to doing so as to keep office.
In an extraordinary and significant intervention, all living former United States defense secretaries wrote in the Washington Post warned against the armed services being used to affect the result of elections.
The same newspaper also released a similarly extraordinary and significant telephone conversation where Donald Trump was placing illegitimate pressure on the Georgia secretary of state to overturn an election result.
The grim reality is that if Donald Trump could find a way to stay in office he would use it.
And if this grim reality is accepted, then it must also be conceded that the only reason he has not stayed in office is because there was something more powerful in his way.
And that thing which is more powerful is the (codified) constitution of the United States.
Being, on one hand, critical of constitutional trespasses and abuses and, on the other hand, sceptical of the claims made for codified constitutions, has the merits of being an independent and (I hope) intellectually consistent point of view – even if it appears not to have the benefit of also being a popular one.
The Trump experience does not show (at least to me) the merits of a written constitution – every single bad thing that has happened over the last four years has happened despite there being a written constitution in place.
Every single one.
And this evidences, if not proves, that a written constitution is not a panacea – and those in favour of codification should stop pretending otherwise.
Taking the last of Tony Benn’s questions seriously, it also has to be admitted that codification, in certain extreme situations, can help in getting rid of those in power who seek to abuse power.
(Of course, the tyrant can seek to amend such a constitutional provision – but at least it provides an additional high hurdle.)
The outstanding constitutional question, however is not about how Donald Trump was finally removed from office, but how he was allowed to get away with so many wrongs in the meantime?
And that is a far more difficult question for supporters of codification to answer.
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