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.
*
But.
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.
But.
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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I would tentatively suggest that most important factor is not the existence or absence of a written constitution, but rather the respect that is shown to the rule of law and to the norms and conventions of behaviour.
In the US, most citizens place enormous value on the US constitution, over and above partisan loyalty to a person or a party. Much of the Trump support is couched in terms of the election being “stolen” and “fraud” (that is, somewhat ironically, concerns that the constitution is being breached or subverted by the other side).
In other countries, an elected authoritarian will fix the election commission, stop electable opponents from standing (perhaps by imprisoning them on trumped up charges, or exiling them, or poisoning them), control the media to make sure the ruling party’s message is the only one that people see, disenfranchise supporters of the opponents, and as a last resort stuff the ballot box, control the election counters, or simply ignore the actual votes and declare victory anyway.
Trump’s continual baseless attacks on the US election result is having a similar toxic effect on the constitution as his continual baseless attacks on the US media have had on public discourse. “Fake news” and “stop the steal”. The liar says his interlocutor is lying as cover for his own lies. The thief says his opponent is cheating to conceal his own guilt.
Thanks for the thought provoking article, but there is one area that I think misses the point.
Yes, all the abuses that Trump did were allowed by the Constitution (and a partisan senate that refused to impeach), but there is an assumption in your writing that Trump did all that he would have liked. In fact, many times the courts slapped him down for unconstitutional actions.
If they had not been in the Constitution he would have done them.
And he might well have find much worse but that was precluded by the Constitution.
So, a well written Constitution, whose authority comes from the people, not parliament (to address another point you make) can help.
*”In fact, many times the courts slapped him down for unconstitutional actions.*
If they had not been in the Constitution he would have done them.”
Does that follow? In recent history the Supreme Court and the Scottish Court Of Session have both ruled definitively on matters of constitutionality, without there being a written constitution here.
Point being, this is what courts are able to do _whether or not_ a constitution is codified.
As I understand it the Supreme Court was created by an act of parliament? And therefore could be dissolved or restricted in its judicial review by a simple majority vote in parliament again? Parliamentary sovereignty I believe?
It can´t overturn any primary legislation only secondary legislation? And the current British government – according to British media – has been trying to insert language into primary legislation to restrict judicial review even of secondary legislation?
If true that sounds as if a British government with a large enough majority and a disregard for unwritten traditions and conventions could turn the Supreme Court (or other Courts) into a hollow shell. Still there but not allowed to vote / judge on things that matter. Am I wrong here?
As I am a German let´s compare that to Germany. The German Basic Law / Constitution creates in Art. 92 the Federal Constitutional Court. Art. 93 defines its main competencies. And Art. 94 says how the judges are chosen. To change these articles you´d need a two thirds majority in both the Bundestag (parliament) and the Bundesrat (federal states council) representing the German states. Each of the 16 German states – depending on population get between three votes (minimum) and six votes (maximum). You would need to control the ten most populous German states governments to get a two thirds majority in the Bundesrat. If you lose one of the five most populous states (5-6 votes) you´d need two smaller states (3 votes) to compensate for it. If the four most populous states vote against you (24 votes out of 69), you won´t have a two thirds majority.
Which is kind of difficult anyway if not impossible since we have proportional representation. You´d need other smaller political parties as coalition partners to support your power grab.
Smaller parties that then would have lost their ultimate protection and appeal court against being declared illegal in a worst case scenario (Weimar Republic).
I should perhaps add that the Federal Constitutional Court in Germany consistently polls higher than German political parties and politicians. It´s one of the most trusted institutions in Germany. A German politician who dares attack the Constitutional Court essentially commits political suicide.
A national newspaper declaring them “enemies of the people” would simply be unthinkable in Germany. They might simply declare bankruptcy in Germany and move to the UK where such things are apparently tolerated.
All the above may have some foundation but it is also true that the Republicans tolerated Trump simply because he could deliver a majority view in their favour on the Supreme Court but that body also tests its opinions against the written constitition.
“(Of course, the tyrant can seek to amend such a constitutional provision – but at least it provides an additional high hurdle.)” It wasn’t much of a hurdle for that other tyrant Putin.
David could you take Tony Benn’s questions and consider them with respect to the governments consultation and general dislike of Judicial Review?
Apologies for this being not directly relevant to this piece but seeing them written out made me think of this.
Excellent article, many thanks.
It’s certainly true that a written constitution wouldn’t be a panacea. However it might be worth positing the reverse case, even if it sounds a little absurd: is there any country with a written constitution that would prefer to replace it with an unwritten one? Unless we think obscurism is a virtue in this area of the law, I find it hard to see why this might be so.
The practical difficulty, to my mind, is that codifying our present rather ramshackle constitution into a more definitive written version could be fraught with danger. Those charged with the task may well find it hard to agree on exactly what our constitution currently is, even before they got round to considering any proposed amendments to it. And I certainly wouldn’t trust the present government to be in charge of such a process in any case. So on these grounds it may be wise to leave well alone.
Having a written, codified constitution does seem to make it easier to enforce the provisions of that constitution. Compare and contrast with the UK, where the Supreme Court had to opine on whether the Queen had correctly been advised to prorogue parliament, and if not to opine on whether she had actually done the thing she did. A bit of a mess, I think we can probably agree.
I still wouldn’t think it prudent for the UK to try to codify its constitution. The dangers of the ruling party amending or developing the constitution to give itself additional powers would be enormous. For example, a constitutional development our current charlatans seem keen to promote is restricting the power of the judiciary to review actions of the executive.
The time for writing constitutions is when you’ve just become a country or had a civil war or just lost a war. I hope we aren’t nearly at that point.
As always, interesting.
Yesterday, you made the point that almost nobody had read the totality of the “covid” laws, but that they carry criminal sanctions. This is worrying; if only for the fact that ignorance of the law is no defence.
In the absence of knowing what the law is and having the people, on-side, as it were, the value of legislation is diminished (I hope I am paraphrasing you!). Surely, a similar argument pertains to the constitution. If I remember correctly, you have argued that the UK does have a written constitution, but not one gathered together in a single opus. Wouldn’t it be logical to gather these strands together into a single text (or perhaps one for each constituent part of the union and a further one for the body as a whole) such that lawyers and interested members of the public, or parliament, could better understand it?
As to Trump (and Johnson), it seems to me that to an extent (possibly a very signigicant one), they are beyond the law whilst in office. Given the apparent loyalty of the party machine, both the US citizens and the British citizens have little recourse but to wait for an election to sanction the wayward leader. It remains to be seen if Mr Trump will be sanctioned for criminality in office, or on-going as he took office – I would be pleasantly surprised were he to be convicted, jailed – and in that unlikely circumstance, not immediately pardoned.
As always, I find your post wonderful and truly intellectually worthwhile. That said, I’ll throw in my penny’s worth here more in favour of a written constitution.
In many ways, your post really points out, if I can put it in a simplistic, trite way, that “bad people will always find ways to do bad things”. Of course, the world is more complex than that. Even the reviled Donald Trump has done some good things along the way.
But the nature of corruption is always that people will try to find ways around things. From bosses in the workplace right up to the PM or POTUS, the ‘rules’ are reinterpreted, if not even deliberately wrongly so. It is for this reason, after all, that we have lawyers, surely? Constitution or no, this is the nature of man and nothing will change that.
I contend then that at least with the written constitution Trump just could not ‘get away with it’ in a very clear, very certain way. The mechanism is absolutely in place and there were few loopholes he could try to exploit – legally or otherwise.
But with the UK situation the ground is considerably murkier. The arguments about whether or not the Government has done something wrong or not are so protracted that the damage is almost always done by the time decisions are made. In terms of public confidence, the matter is more or less forgotten by then. This is how so many governments have sidestepped their dodgy dealings.
I go back to one of your opening ideas: the fifth question – how do we get rid of you. A written constitution may not stop ‘bad people doing bad things’ but it would make the pathway to their removal considerably clearer and faster. As you have pointed out many times, Trump is going, like it or not, by due process of law. A written constitution for parliament would surely be a good thing to allow governments to be held to account faster and more clearly? In the end, it is about expediency.
All fascinating stuff. I continue to find your posts absolutely invaluable to my understanding of current political affairs – thank you David!
Thanks, illuminating as always. Slowly inch by inch.. the need for us to codify will convince you I hope. The key thing is 1) all constitutions are unwritten as well as codified and the political culture matters more than what is written down. 2) US constitution is 2nd worse after UK and no model for us. Cheers
Tony Benn was a curious friend of democracy. He used to say that he didn’t like the EU because it wasn’t democratic enough. But he would have liked it even less if it was more democratic. That would have made it more difficult for him to pursue his national agenda. He was one of those who saw the EU as a capitalist plot, in the same way that other Eurosceptics see it as a socialist plot. His complaint about insufficient democracy was his respectable-looking excuse for wanting to leave, not a manifesto for trying to increase its democracy. As such, it concealed his real reasons for disliking the EU.
His tests of democracy do include the question “in whose interests do you use it?” I take that as a recognition that majoritarianism – winner takes all politics – is not good democracy. But it was not consistent with the policies he promoted, which tended to be an offence against this criterion. The things he liked, such as nationalising lots of things, would have a tendency to concentrate power, not disperse it. It is dispersal of power that protects against majoritarianism. That is why so many authoritarian rulers pretend to be socialists, because it seems to give them an apparently respectable reason for taking control of everything.
I don’t suspect Benn of being a closet authoritarian. Rather I think he took a naive view of socialist policies, failing to see that what he wanted would inevitably lead to a concentration of power, which has an inherent tendency to turn bad.
Again, another excellent piece on a contentious subject.
Mankind’s ingenuity is boundless: it appears we can align planets!
Or more reasonably, when complicity is added to the mix extraordinary things can happen; and, clearly, they do, because the events we have witnessed in very recent years feels very much like ‘the alignment’, and I would posit that these events have been *allowed* to happen.
1. Trump should have been removed as a result of his impeachment, or 25th Amendment (the Goldwater Rule presented a problem for many in this regard), but it was Bob Mueller who came to the rescue as provider of the excuse for inaction and conflict avoidance which was to highlight Trump’s immunity as President. The absurd jingo-hubris of GOP representatives has been an execrable thing to behold.
And now: 2. (some folk won’t like this at all, but facts are facts) Brexit is a criminally orchestrated exercise in coercion: Cameron announced a non-binding referendum the result of which he would act upon. Really? (yes, reader, some voted for it for a bit of fun to dish out some bloody noses). Carole Cadwalladr has meticulously followed the money and demonstrated the deception, so where is the inquiry? for the birds, apparently. Something as cataclysmic as leaving the EU does NOT occur without a quorum (at least! for gawd’s sake! even a sophist like Farage knows 52-48 is “unfinished business”!), discussion and voting in Parliament on any deals that could be struck, a second confirmatory referendum vote on any deal that may in principle have been agreed. The righteous indignation and subsequent fury is justified, and it is a *normal* reaction – don’t make the mistake of believing it to be irrational.
My point, which I hope hasn’t been as rambling as it seems it may be to me, is that, seen in as wide a perspective possible, as history rhymes so tides turn, and the world as we know it is turning, in case no one had noticed, and whilst we may appear to have difficulty stopping it, those pushing this turn have been surprised by how easy it has been. For what it’s worth, my rationale for what is going on currently is that buried in the subconscious is the realisation of the crushing inevitability now of climate crisis which has manifested as an inward looking, hand-wringing mass psychosis, and it has firmly taken hold: we are like rabbits paralysed in the headlights, and young Greta is in every respect too little (to take on corporations and Koch-types), and too late…..for me, this has been an inevitability since first picking up a copy of A Blueprint For Survival as a kid
If you got this far, thanks, and all the best for ’21. I’m not doing much today because I was tested on Monday and have Covid for the second time (thankfully, pretty much asymptomatic this time around, just a nagging cold) and am isolating, so I shall watch Mank this afternoon. Keep well, folks, and keep reading/supporting George Monbiot ;-)
Surely supporters of a written constitution don’t have to prove that it would be a panacea, merely that it would be better than not having one. And, of course how effective written (and indeed unwritten) constitutions are depends on what is in them, rather than their mere existence. The USA constitution, being extraordinarily hard to change, particularly in times when politics are highly polarised, might not be the ideal model.
A written constitution is a double edged sword.
Its provisions may be more unequivocal, but as such they can be unequivocally wrong.
The US constitution got rid of President Hilary Clinton before she was even sworn in.
The electoral college, the possibilities of gerrymandering and voter suppression are all serious flaws within the US constitution.
The US constitution, therefore, is in need of improvement.
The legal emancipation of women, of people of colour and of sexual minorities in many democracies is testament to the fact that constitutional improvement is feasible.
But the road to improving a constitution is potentially the same road to it being tampered with.
In the end it comes down to civic vigilance.
Anton Scalia (who I disagreed with but was a thought provoking judge) made this point well:
“If you think for a minute, is it not the case that every dictator in the world has a bill of rights, every banana republic, every republic has a bill of rights?” Scalia said. Even the bill of rights for the former Soviet Union, on paper, “was wonderful; it was better than ours.”
In this quote he says “Bill of Rights” but his point was broader
It is not the theoretical principle of “let’s have a written constitution”. It is the mundane details of “if we have a written constitution what does it say?” and “would those details make a difference?”
…. which I think is a principle you have made in other circumstances before.
I wonder if you would agree that your position on the British constitution has evolved over the past four years? While initially you expressed confidence that it was already robust enough to withstand the Brexit assault, more recently you have gone so far as to specify a number of constitutional ‘tweaks’ you feel might be called for.
I want to go further, and suggest that there are more ‘tweaks’ needed than could ever be accomplished by normal processes. We have crossed a rubicon, and cannot ‘return to normality’ without exceptional effort. Parliament has been sidelined, and attempts are being made to do the same to the judiciary. We have made a radical change to our relationship with the rest of the world without much honest democracy, and thousands have died in a pandemic that others have handled far more humanely. We are in a serious mess, and I think it is up to constitutional experts (and others) to propose ways out of it. Politicians can’t work in a vacuum – they need ideas to work with.
Super interesting piece which I have been meaning to get to.
My thought on it which I would be v interested to see you discuss is similar to Andrew’s above. I don’t think it was the written nature of the US Constitution which made the transfer of power so clean cut, I think it was the rule of law. I don’t think it matters much whether your Constitution is written or unwritten as long as the rule of law is operating – and for that you the absolutely key thing you need is an independent judiciary. In that respect, the UK is in a much better position than the US because our judiciary is independently – not politically – appointed and is not elected. Further, they can’t be sacked so they are not afraid of anyone (this obviously has some downsides for the odd crap judge, but overall it’s very beneficial).
For that reason they have no problem holding the govt to account. Lots of great judgments giving the govt a proper bollocking and setting out what the UK constitution consists of – there’s a dead cool one where the House of Lords say that if you’re British the way it works is you have freedom to do anything except where there’s a specific statute saying you can’t – can’t remember which judge – you’ll know. Plus the Spycatcher case on freedom of expression. And the one which says no evidence which was obtained by torture is admissible. Those are obviously not on transfer of power but I’d be v interested in your views on what the UK system/courts would actually have made of the US situation, with a real risk that the incumbent was going to refuse to leave office.