After England’s Glorious Revolution of 1688, when the monarchy was reinstated but under the watchful eye of Parliament, the country decided against drafting a new written constitution. Previous written constitutions under Oliver Cromwell’s rule had proved challenging, and by some accounts, disastrous—problems included the inadequate balancing and division of powers, and interpretative confusion and contradictory decisions in the courts. Almost a century later, America’s own revolution decided on a different course, drafting the U.S. Constitution, which has remained in place since 1789. This document almost immediately became a deeply revered symbol within America, and many of its features have been widely emulated around the globe.
But not every country possesses a single, written constitution, and some countries possess them in quirky forms. The United Kingdom famously does not have such a document. New Zealand possesses only a decorative one: an ordinary statute that’s been labeled a constitution, and that can be amended the same as any other law. And Australia’s 1901 constitution lacks what many consider the crown jewel of such documents: a bill of rights. Nonetheless, these countries remain some of the most free and democratic in the world.
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.
The U.S. Constitution’s “We the People” framing has long been its driving force, used domestically as a powerful rhetorical device and widely adopted internationally as a constitutional gold standard. But as scholars such as George Thomas of Claremont McKenna College have shown, James Madison often boasted about the fact that the U.S. Constitution did not allow “the People”—in their collective capacity—to possess any share of government, and Madison considered this exclusion as one of the document’s “great virtues.” Madison also recognized, however, that the best way to capture the public’s collective voice would be through representatives in Congress, the institution that was supposed to be the “great engine of government.” Thus, in some ways the U.S. Constitution started out quite close to the U.K.’s model, which centers on Parliament as the highest legal authority and the closest possible realization of popular sovereignty.
And these ideas around popular sovereignty were present in England and Scotland well before the U.S. Constitution was conceived. The Scottish Declaration of Arbroath, in 1320, contained similar language, and in two 17th-century events in England—the Civil War and the Glorious Revolution—numerous accounts of such language have been documented. Although the idea that citizens possess ultimate constitutional authority may have been a central focus of these events, the U.K. never felt the need to write this commitment down.
It's not clear that the presence of “We the People” in a constitutional text actually matters. Advocates maintain that the phrase ultimately grounds the Constitution in “the People," producing better outcomes for ordinary citizens. But as a practical matter, the rhetorical invocation of “the People” does not confer any enhanced powers or special treatment on the citizenry. Nevertheless, the U.K.’s governmental system is regularly mocked—even by its own citizens—for not possessing a constitution that identifies the people as the underlying authority.
Yet if the United Kingdom decided to draft a constitution incorporating the words We the People, members of Parliament—especially those in the House of Commons—would likely lose power. As Jutta Limbach, a former president of the German Federal Constitutional Court, identifies, constitutional supremacy “means the lower ranking of statute,” and also a “lower ranking of the legislator.” This presents clear problems for the U.K.’s unwritten constitution, which relies on parliamentary sovereignty and highly values both statutes and legislators. Without such a written document in place in the U.K., no intentional lower ranking of statute and legislator takes place. This means that the governmental institution most accountable and responsive to the people, the legislature, retains the most power within the U.K. system. Judges remain unable to strike down legislation, and if laws need to be amended or repealed, the legislature must take action.
Finally, single, written constitutions often stifle much-needed constitutional maintenance. The lack of formal constitutional change in the U.S. over the past few decades has produced a strong form of constitutional disillusionment, both with the written Constitution and with the Supreme Court. The main problem is that formal amendment procedures are so exceedingly difficult, but a 5–4 Supreme Court decision can produce significant constitutional change. Further, a focus on elusive constitutional moments—in which there must be intense and widespread constitutional discussion and debate among the citizenry—as opposed to constitutional maintenance, has obscured the need for regular constitutional change to take place.
In the U.K.’s unwritten system, however, virtually nothing is too sacred to be amended: The prescribed length of time between general elections has fluctuated; reform of the U.K.’s top court has taken place; historical government positions have been altered or eliminated; the role of the monarchy has changed significantly; and even major constitutional principles, such as parliamentary sovereignty, have shifted throughout the years as political and economic developments arose. Most of these have been responses to societal change, and did not require tidal-wave constitutional moments.
Although the longevity of America’s written Constitution remains impressive, many of its structures and operations have always been highly questionable. But recent events seem to have only exposed and exacerbated its flaws: A popularly elected leader should not be able to receive 3 million votes fewer than the challenger but still win the electoral contest; a system of checks and balances should ensure effective and responsible government, not sow political dysfunction; and generations of Americans should not have to live their life without a practical and reasonable opportunity to amend their Constitution. None of those outcomes advances “We the People.”
The U.K.’s unwritten constitution remains far from perfect; mistakes happen, much-needed reforms often stall, and reliance on politics can prove extremely frustrating. But when it comes to educating the citizenry, facilitating a focus on popular sovereignty, and providing a means of regularly updating the constitution, unwritten constitutions can go head to head with written documents any day.
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