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 initiated 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.
An excellent analysis, as usual. I think we can say that a written constitution makes it harder for people who want to violate the rights it supposedly protects. They have to go through an extra layer of rationalization, to argue that what the constitution really means by 'X' is 'Not-X'. But of course there is no magical power that can force people to be faithful to a written document.
ReplyDeleteThere is, perhaps, an analogy in formal logic, which Lewis Carroll expressed as the "Achilles and the Tortoise" paradox. [https://en.wikipedia.org/wiki/What_the_Tortoise_Said_to_Achilles]
The Constitution says, "Congress shall make no law ..." etc. But for this to be effective, there has to be a sort of 'meta-Constitution' which says, "You must follow the Constitution...". And a meta-meta-Constitution which says, "You must follow the meta-Constitution."
Of course, this is just semantic fun. The key fact is: if you, and millions of others, don't believe in free speech ... then you won't really care what the Constituion permits and prohibits.
There are two approaches to countering this trend: (1) to try to persuade people of the value of free speech, perhaps using the same arguments that persuaded the authors of the Constitution. (2) to try to persuade people of the value of assigning special weight to the wisdom of the authors of the Constitution -- perhaps by pointing out how long the Republic they founded has endured. This is, of course the 'Arguement from Authority', which generally has a bad name. But in reality, most of the things we claim to believe come because we trust certain Authorities. And if these Authorities have shown in other ways that they are generally sound, we have a rational basis for doing so. This is why I generally follow the advice of the Medical Establishment: they've proved, over the last century, that they're usually right. So also with the Founders.
Doug,
DeleteYou're right about there being no magic power that can force people to be faithful to a written document. That is one of parts of the argument that I've made in this post.
The other is that - whether or not any government actually writes down its constitution anywhere - there are going to be a lot of unwritten rules and norms that determine how power is actually wielded. Sometimes, the unwritten norms and rules are all that there is: for example, in Britain, and also in every country before written constitutions were invented.
Sometimes, the written and unwritten rules exist in relative harmony with each other, such as when the men at Philadelphia wrote the American Constitution in the clear (though unwritten) expectation that everything in it would be interpreted according to the various Anglo-American traditions embodied in the English Common Law.
And sometimes, the written constitution is a total sham and the unwritten constitution - based on unlimited obedience to a single man or small committee of men, is all that matters, as was the case in the USSR.
But if posts like this one can help wake people up to the extremely limited role that written constitutions play in defense of our liberties, then I figure it was a task well done.