Saturday, October 10, 2020

The Truth About Unwritten Constitutions

One of the basic maxims of American political thought is that having a written constitution is necessary to protect a nation from tyranny.

My own view of the utility of written constitutions is more nuanced. In the real world, there are times when written constitutions are necessary, but there are also times when they are useless, or worse than useless.

Imagine, for a moment, that you are brought back in time to late 1945, and given a choice of living in one of two European countries. One of these countries is a federal republic with a written constitution which guarantees freedom of speech, the press, and religion, the separation of powers, and all the other rights and liberties which citizens of a modern liberal democracy generally expect to have. The other country is a monarchy with no written constitution.

Most Americans wouldn’t know any better than to say that they would prefer to live in the federal constitutional republic. Only a minority would recognize that the first country I described is the Soviet Union, and the second one is Great Britain.

Yes, you read that right. The Soviet Union had a written constitution (actually, it had several written constitutions; new ones were adopted in 1924, 1936, and 1977.) Its constitutions protected freedom of speech, freedom of the press, and freedom of religion. They enforced the separation of powers, and limited the role of the head of state. (The head of state at the time was a man named Mikhail Kalinin, who held that role from the USSR’s creation in 1922 until his death in 1946. Most westerners have never heard of him.)

Also, none of that had much practical impact on the way that the Soviet Union was governed. That was because, under the soviet system, while the constitution might say a lot of nice-sounding things, those things meant whatever the Chairman of the Communist Party wanted them to mean.

If the Chairman interpreted “freedom of speech” in a way that still allowed for the summary execution of dissidents, then the summary execution of dissidents was constitutional. The Chairman’s interpretation was the only interpretation that mattered.

So while the USSR had a written constitution, it also had an unwritten constitution. And during that particular period of soviet history, the unwritten constitution could be summed up in a single sentence: Josef Stalin must be obeyed.

Great Britain also had, and still has, an unwritten constitution. Unlike the USSR, Britain never had a written constitution to go along with its unwritten one.

Also, the unwritten British constitution differed from the written soviet constitution in that it provided meaningful protection to the liberties of the people. How was it able to do that, despite being unwritten? Because the British constitution consisted of a set of commonly accepted norms of how a government should function, and deviating from those norms could cause civil unrest, mutiny in the armed forces, or the removal from office of the party responsible, even if that party was the King. (Have you ever wondered why the Stuarts no longer sit on the British throne?)

What am I getting at here? Well, written constitutions are simply not as important as many Americans think. What matters most, in the end, is not whether the people’s rights are written down in a single place, but whether or not the government can violate them with impunity.

As I’ve said before, a constitution that means whatever the people in power want it to mean is the functional equivalent of no constitution at all.

Which is not the same as having an unwritten constitution.

For example, the unwritten British constitution has done a fairly good job of protecting freedom of speech, within reasonable limits. The United States, with its written constitution, has also protected free speech, within reasonable limits. (Remember that Justice Holmes’ famous remark about there being no right to shout “Fire!” in a crowded theatre dates from 1919, long before the present age of judicial activism, and the First Amendment has coexisted with libel law since 1791).

Both countries, then, accept limits on free speech; the difference lies only in who gets to decide what is an appropriate limit. In Britain, Parliament does the deciding; in the United States, it’s the Supreme Court.

Now, I happen to believe that, at least in the case of free speech, there are some benefits to doing things the American way. The fact that a law limiting speech has to first be passed by a legislature, and then upheld in court, provides a layer of double security that the British don’t have. Still, the difference isn’t as big as it may seem.

Even though most written constitutions are not mere formalities like the Stalin Constitution, their meaning is always heavily filtered through unwritten assumptions about how the government should work. Or in other words, even a country like the United States will still have a constitution which is, in large part, unwritten.

It has been this way from the beginning. While the constitution of 1787 is fairly specific about things for which tradition could provide no guide – for instance, that the President should serve a four year term – other things, just as important, are mentioned without ever being defined. For example, all that the constitution has to say about Habeas Corpus is that it is not to be suspended except in times of rebellion or invasion.

            Now, for another example of just how much faith in commonly-held, unwritten rules of good government went into the US constitution, take a look at the clause in Article IV which says: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

            Is there any specific listing of these privileges and immunities? No; that is left to tradition and custom. The people who wrote the constitution were less concerned about listing privileges and immunities – something in which they had the whole body of the English Common Law to look back on – than they were about making sure that each state allowed the inhabitants of other states to enjoy the same rights as its own inhabitants.

            Bushrod Washington, a nephew of George Washington who sat on the Supreme Court from 1798 to 1829, once wrote an opinion in which he talked for a while about the Privileges and Immunities Clause. Here is some of what he had to say:

“What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state….”

Wow! So here we have a US Supreme Court justice listing scads of unwritten constitutional rights, long before the invention of substantive due process, or emanations and penumbras, or Footnote 4, or any of the other mainstays of twentieth century jurisprudence. And it wasn’t even controversial, because Bushrod Washington didn’t use his authority as a Justice to push through new policies without the consent of the elected legislature; he just defended rights that were clearly based in the English Common Law.

(The actual dispute here, in case you were wondering, was over whether or not New Jersey had the right to prohibit non-residents from collecting oysters and clams on its beaches; Justice Washington ruled that it did.)

One might wonder how many times the English Common Law, important as it is to American jurisprudence, is mentioned in the original text of the constitution? The answer is zero. Everybody knew that America was using, and would keep using, a Common Law system, so there was no need to write this down and vote on it.

Now, did the fact that the American constitution relied so heavily on unwritten rights mean that judges could interpret these rights however they wanted? No.

Suppose, for example, that a circuit judge has arrived in some frontier settlement in the Appalachian Mountains in 1798, where he announces that, in his court, a jury will henceforth consist of five men, empowered to convict or acquit the defendant by a simple majority vote. He explains that the constitution mentions juries without giving any details as to how they should work, and that, as a federal judge, he can rule on constitutional questions as he pleases.

Everybody knows that a judge who did this would have been run out of town on a rail, because by longstanding tradition, a jury had to consist of twelve men, and it had to give its verdict unanimously.

Americans living in 1798 still had the courage to fight for their liberties. Their willingness to resist abuses of power put a practical limit on what the government could do – and it protected both written and unwritten rights.

In the year 2020, America is in a very different situation. Our written constitution is a largely meaningless formality, with most of its provisions having been interpreted out of existence. And the unwritten constitution that we have adopted in its place is rooted in progressive ideology rather than the English Common Law.

Is it a problem that, in our system, judges have the authority to rule on constitutional questions? No, not really. The judiciary had that power under George Washington; the main difference is just that, nowadays, the checks and balances are gone. The impeachment of judges on a charge of “unlawful rulings” hasn’t been seriously discussed since the Jefferson Administration; the Exceptions Clause hasn’t been used since Reconstruction; and court packing, apart from some recent talk from Democrats, hasn’t been a live issue since the New Deal.

To get a better grasp of the idea that the present state of judicial supremacy arose over time, and wasn’t built into the system from the beginning, just think about the following alternate-history scenario.

Imagine that, at some point in America’s history, each house of Congress has started using its constitutional power to be “the Judge of the Elections, Returns and Qualifications of its own Members” to disqualify new Senators and Representatives whenever the outgoing Senators and Representatives believe that their replacements won office by lying to the electorate. Then, to the surprise of nobody, this gimmick is used to ensure that the same party always maintains control of Congress, no matter what the citizens do in the voting booth.

You could argue that the founders didn’t intend for it to work this way. “What they really meant,” you could say, “was that Congress needed to have the power to resolve good-faith disputes about who had the most votes.” On the other hand, the power of judging elections belongs to Congress, and if you’re not a member of Congress, then your opinion about how that power should be used doesn’t really matter.

Everyone knows that if this happened, the United States would no longer be a constitutional republic in any meaningful sense of the word.

As it turns out, a very similar thing has happened with the part of the constitution that says: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution…” – i.e. the clause that provided the seed for the Supreme Court, by means of creative interpretations of various parts of the constitution, to give itself unlimited legislative authority.

That the Court was able to do this isn’t an indictment of the American founders; it’s just one more piece of evidence that the ability of written constitutions to restrain the abuse of power is not unlimited. (If it was unlimited, then Stalin would not have been willing to put up with a written constitution.)

The plain fact is that a man, or group of men, may hold legitimate power under the constitution, and still abuse that power so badly that, unless resistance is in the offing, the country no longer has a constitution in any real sense.

The truth about unwritten constitutions is that they can protect a nation's rights just about as well as written constitutions. And the truth about written constitutions is that, in the hands of sufficiently ambitious and unprincipled men, they can be perverted just as easily as unwritten constitutions.

In the end, the question of which, if any, of your rights are enshrined in a written document is not the most important question. Rather, in the long run, the only rights that matter are the rights which the government can’t violate without risking an insurrection. This is why, when the English barons made King John grant the Magna Carta in 1215, he had to include a clause authorizing them to renew their war against him if he violated the rights he had just granted.

It is also why the American founders were willing to wage a War of Independence against Britain in order to protect traditional rights that weren’t part of any written constitution, and which Britain’s highest legal authorities – the Houses of Parliament – said did not exist.

And it was the absence of serious resistance when the First, Second, Fourth, Sixth, and Tenth Amendments were gutted and stuffed by the mid-twentieth-century judiciary and an alphabet soup of regulatory agencies that has given America its present form of government: a post-constitutional oligarchy.