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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