Danielle Allen: The flawed genius of the Constitution
What, if anything, does this reveal about the value of written constitutions? The point is not that written constitutions are inherently bad, but that unwritten constitutions can result in systems that are equally enduring. Over the past five years I’ve been analyzing the advantages and disadvantages of written versus unwritten constitutions, with a special focus on the United States and the United Kingdom, for my recently published book, Constitutional Idolatry and Democracy. Without a written constitution in place, statutes are the U.K.’s highest form of law, and its unwritten constitution is a combination of legislation, conventions, parliamentary procedure, and common law. To some this setup may be odd or confusing, but my book’s conclusion is that unwritten constitutions can perform just as well as written ones, and that Britain’s unwritten constitution may be just as good as America’s esteemed document. Indeed, for all their grandeur, written constitutions do not produce better democratic outcomes and can sometimes entrench significant mistakes, rather than help facilitate resolutions to complex problems.
Of course, unwritten constitutions also contain difficulties: They may produce an overreliance on convention; often, they have no agreed-upon standard for constitutional change; and they frequently require trust in politics and the political process to resolve conflicts. No doubt the chaotic process of Brexit has exposed these issues many times over. But Brexit may have also accentuated the U.K. constitution’s bend-but-don’t-break quality. For all the economic, societal, and technological change that has taken place since 1688, Britain’s unwritten constitution remains intact.
One commonly cited benefit to states possessing written constitutions is that such devices perform an educative function, because citizens can easily consult and reference the documents. Indeed, the American Constitution is widely available on countless apps and websites, and its physical form consistently lands on best-seller lists. And yet, single, written constitutions do not inform citizens on political structures or constitutional operations any better than unwritten or partially written ones. A number of large comparative studies have found that those living in the United Kingdom, New Zealand, and Australia are just as knowledgeable, if not more, about politics, political structures, and constitutional operation as citizens in countries governed by easily accessed written constitutions.
In fact, a large portion of citizens in countries with written constitutions do not even know these documents exist. In 2015, in celebration of the 800th anniversary of the Magna Carta, Ipsos MORI and the Magna Carta Trust sampled a number of jurisdictions around the world on how familiar they were with various constitutional documents. The poll found that at least a third of citizens in Australia, Belgium, Brazil, India, and South Korea had never even heard of the constitution governing their country. In Romania, only 38 percent of citizens were familiar with their present constitution. These results call into question the significance and effectiveness of drafting written constitutions.