Summer solstice, 2021
One of the themes of my law and policy commentary on this blog and elsewhere is that a culture of ‘constitutionalism’ is more important than constitutions – and that demands for a ‘written constitution’ should be not be seen as more urgent than demands for a constitution that works.
Constitution-mongers – to use the pejorative phrase of Edmund Burke – may serve up for sale eloquent and elegant texts, detailing which institutions should do what in an ideal polity.
But the basis of any worthwhile constitution is not the exposition of what each institution of the state can and should do, but what will check and balance each element of the state.
A worthwhile constitution is one that goes along with the grain of political behaviour, and not cut across it on the basis of what ‘should’ happen.
Those with executive power will naturally resent those who can hold them to account.
Those with legislative power will naturally be at odds with those who interpret and adjudicate upon their legislation.
Those with judicial power will often want to substitute their views for those who are charged with legislative power or executive power.
And so on.
The value – the merit – of any constitution is how well it deals with conflict between the elements of the state.
Like a contract, the purpose of a constitution is not to provide for what happens when the relevant parties are in harmony – for then there is no recourse to any legal instrument or set of arrangements.
A constitution – like a contract – is there to regulate the consequences of things going (foreseeably) badly.
The quality of understanding which things can go (foreseeably) badly is worldliness.
And constitutional worldliness, in turn, is the characteristic of those who realise that the content of constitutional texts is not enough – it is more about how the rules and values set out in those texts are enforced.
Those constitutions which have as their premise that there will be conflicts, and then provide how those conflicts will be practically regulated and resolved, are more likely to endure than those with heady, eye-catching lists of rights and freedoms and neat lists of separated powers.
Constitutionalism is the belief that there are principles and rules about how a political system is arranged that have a greater priority than the partisan interests of any politician or party.
Constitutionalism is a way of thinking – and so a polity with few formal checks and balances can have a stronger constitution than one with lots of glittery provisions that are ignored and derided.
Those with the power of the state will tend to want to abuse the power of the state.
Constitutionalism is about how this tendency is, in the real world, checked and balanced.
And any constitution without such worldliness is hardly a constitution at all.
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One of the most important things about a constitution is that it must be accessible, a thing of the people.
If it is not written, it is unlikely to match that description, as it will be practically impossible for the people to see it in its entirety.
And to that end — and to the end that David Allen Greene describes in his original posting, there is also in my view a need that not only must it be seen it must be understood, at least vaguely. Say, for example, in the way that democracy is understood, at least vaguely, in the sense that people vote. I can see no logical basis for not teaching how to handle money and how Laws work in School, because these two things crop up in life far more frequently than does, say, algebra. And I’m not decrying the teaching of algebra. A Constitution few understand, such as we have at present, cannot lead to a Constitutional way of thinking.
One might make an equally good case for the basics of economics to be part of the National Curriculum.
The Head of the Art Department when I was at school back in the early 1980s was a Labour Councillor and he gave a talk to the whole of my year group about what was required of a Councillor.
There was nothing party political about his presentation.
Some of us went around the Houses of Parliament with our then constituency Member of Parliament, Jeff Rooker.
You might think in the 2020s that the basics of economics, beyond personal finance and careers advice, and the political structure of the country; the roles of individual parts of government and how to vote would form part of the Personal, Social, Health and Economic element of the National Curriculum.
Not, according to the PSHE Association’s website:
“The statutory guidance is comprehensively covered by learning opportunities for each key stage across the Programme’s three core themes: ‘Health and Wellbeing’, ‘Relationships’, and ‘Living in the Wider World’,
Even though much of ‘Living in the Wider World’ is not included in statutory requirements, this core theme is equally important. A high quality PSHE programme will also cover economic wellbeing, careers and enterprise education, as well as education for personal safety, including assessing and managing risk.”
Living in the wider world does not on the face of it seem to cover topics like the law or government and certainly not what is meant by our unwritten constitution, matters which impact all on students. However, it does cover enterprise, something that will never be anything, but theoretical for the overwhelming majority of them.
My Dad, four years as a Birmingham Labour Councillor takes the view that most of the electorate, most of the time are not incapable of rising to the challenge of participating fully in our representative democracy, but they are woefully ill informed and equipped to do so.
“Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.”
There really ought to be a mandatory place in the National Curriculum for practical discussion of the limits placed on Government in a mixed economy (I would say that, though, as a former civil servant in an economic department); Burke on the difference between a representative and a delegatory democracy; Churchill on democracy as the worst form of government except all the others that have been tried; Bevan on the virtues of an unwritten constitution; Churchill, again, on the perversity of the average voter; and certainly, instruction in the rights and responsibilities of a citizen in our democracy.
“If Men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and the next place, oblige it to control itself.”
The last two quotations come from James Madison, one of the Founding Fathers of the United States of America, who has been called the Father of the Constitution.
Madison, it is said, saw himself as a law student, but never as a lawyer so he was not all bad!
Coming from a country, Italy, with a written constitution whose main principles (including the roles of and constraints on the free branches) used to be taught (from the document itself) first in low and then in high senior school, I completely agree. Whether it makes a difference to the final outcome in light of Italy’s recent history…
Thank you David, this bears repetition.
Constitutionalism is the belief that there are principles and rules about how a political system is arranged that have a greater priority than the partisan interests of any politician or party.
(1) Die Würde des Menschen ist unantastbar. Sie zu achten und zu schützen ist Verpflichtung aller staatlichen Gewalt.
(1) Human dignity is inviolable. It is the duty of all state authorities to respect and protect them.
the most remarkable point is it talks about all Human Being not just German citizens. Sure you could say it is naive and unachievable in reality. But as a German I stand 100 % behind the 1 Paragraph of our constitution and I am fully aware that our constitution wasn’t our own Idea, actually UK helped allot
Coming from a country with a written constitution, perhaps the best thing about it is that it is accessible to everyone and is not seen by the populace as some dark art reserved only for the privileged few who have both the knowledge and education to delve into a myriad of laws and past precedents in order to arrive at a finite and correct conclusion on a contentious matter of a constitutional nature.
This is not to say that our Constitutional Court is not constantly called upon to rule on matters,
Accessibility doesn’t seem to have stopped the routine abuse, of and deviation from, the written constitution of the USA in recent years.
As has been pointed out here before, whether a constitution is formally documented or not makes little or no practical difference unless the will is there to abide by it and that’s equally true of written and notional constitutions.
You use the terms ‘abuse of’ and ‘deviation from’ the written constitution (of the US), I don’t think they are the appropriate terms except perhaps in a few instances.
The real issues in the US are matters such as,
1.) what the wording of the Constitution means – a good example being ‘the right to bear arms in a well regulated militia’
2.) what to do on contemporary matters such as GLBT rights over which the constitution is silent and at the same is very clear on the right of citizens to freedom of religion which a large number then interpret as the right to impose the outworkings of their beliefs on others in the public square.
Thought-provoking and insightful as always. Would you consider writing a new (and perhaps more liberal) Bagehot?
There may be a misspeak in the third limb of your triskelion of power. Should it perhaps read “Those with judicial power will often want to substitute their views for those who are charged with legislative power or executive power”?
I think what you are saying is that having a definition of what should be done is pointless unless it is done (a failing I find prevailing in the UK justice system).
If so, I agree.
David – thank you for your continuing series of interesting blogs on constitutionalism.
I wonder what you think of Linda Colley’s new book:
“The Gun, the Ship & the Pen: Warfare, Constitutions and the Making of the Modern World”.
I found this via her recent Talking Politics podcast discussion with David Runciman (amazing series by the way for your readers who don’t know it – including an extraordinary set of History of Ideas podcasts, sponsored by the LRB).
LC takes a somewhat different position to yours when it coms to the importance of written constitutions, and I wondered if you could treat us to a book review.
That is a good idea.
What’s in it for Boris et al?
If I were the executive in and around No 10 I would avoid any concept of ‘rights’ or ‘duties’ like the plague. I would want to do as I please for as long as possible. I would play the ‘confidentiality’ and the ‘national security’ cards for all they were worth.
The question then becomes how to persuade or force the executive into handing over such rights. I believe King John got the hint – the nasty end of a sword is a good persuader. Not an easy game to repeat with our well supported and well protected executive.
So? What bargaining chips do we have? Who is going to twist Boris’s arm (hard). How do we corner the blighters – legally speaking.
For once (am I really saying this?) Dr. Green seems to me to be mistaken, particularly the core principle of his post, when he says “. . .the purpose of a constitution is not to provide for what happens when the relevant parties are in harmony – for then there is no recourse to any legal instrument or set of arrangements.” Those who have managed the contract of a continuing project, and the State is certainly such a project, continually consult the document to get a sense of what they, and all the participants, understand their situation to be. It is an essential element of the harmony that everyone is clear about where they stand. A contract, like a strong fence, is the basis of a good relationship. A well written contract will rarely need change but will be regularly consulted by all affected. Such a contract is not a panacea of course, for nothing under the sun is panacea, but it is certainly a help.
Thank you for the doctorate!
Another important advantage of a written constitution is that it usually prescribes that amendments to it require a supermajority.
I don’t have knowledge of enough countries’ constitutions to know whether “usually” is correct, but I doubt it.
I do grant you that changing a federal constitution like that of the US possibly requires more safeguards, but I am presuming that it is a possible new UK constitution that David has in mind. Which at this point of time is unlikely to be a federal constitution.
In which case I don’t see why the citizenry shouldn’t be allowed to change their constitution on a simple majority. After all a simple majority is generally seen as the very basis of democracy.
A constitution can always be changed back again if the amendment doesn’t work out and/or times change. See Ireland’s 8th Amendment and its later repeal, both changes on foot of a simple majority of votes cast.
My view, limited since I don’t have a law background but shaped by growing up in Continental Europe, is that a Constitution codifies a set of shared values/metanorms and, for this reason, its amendment requires a new wide agreement. Eg legislation aimed at voter suppression is much more unlikely to pass in such a system.