Douglas Edlin: The Substance of Things Hoped For.

One reason that the film V for Vendetta resonated so powerfully with Americans was its presentation of such a plausibly dystopian future history.  The US might descend into chaos, but England would endure, because that is what England does.  As Roger Allam declares with utter conviction in his character Lewis Prothero’s gripping catch phrase in the film: “England prevails!”

The England that prevailed in the film was a fascist oligarchy.  The England that actually prevails, however, is a much more interesting form of government.  A constitutional democracy without a written constitution, the English government can occasionally strike an American as something that could exist only in a film.  Yet there it is.  And there it has been.  The endurance of the English constitution challenges several assumptions of the American constitutional mind: (1) that a legally unlimited legislature will abuse its power; (2) that a written constitution is the best protection against abuses of government power; (3) that a bill of rights is the best guarantee of individual rights; (4) that judicial review means voiding the effect and existence of government acts that violate the constitution.

We can easily imagine some slightly timid American, who has just heard about the English constitutional system for the first time, venturing a question: “Pardon me, but, what happens over there when Parliament violates English constitutional principles?”  This is the traditional response: “Oh, Parliament would never do that.”  Then the American finds herself waiting for a smile.  But the smile never comes.  So now the American is feeling a bit uneasy and somewhat emboldened, so she replies, in a very friendly but slightly more urgent tone: “No, seriously, what HAPPENS if Parliament DOES do that?”  And then she receives the same patient rejoinder: “You simply must understand, Parliament would never do that.”

The American’s discomfort is easy to understand.  The US government was famously conceived and framed on the assumption that government cannot be trusted, so its power must be divided and diluted and thereby controlled.  And, of course, the US government was created in a deliberate effort to avoid the perceived problems of the British system of government.  Americans needed to write down what the government could not do, because they could not trust the government not to abuse its power without these written limitations.  The writtenness of the US Constitution reflects this lack of faith.  In contrast, the enduring unwrittenness of the UK constitution reflects, in a meaningful sense, the presence of faith.  Britons don’t need to write down what Parliament cannot do, because they can trust that Parliament will not abuse its power: “Parliament would never do that.”

Please don’t misunderstand me.  Parliament has sometimes passed legislation that Britons find detestable.  But imagine saying to an American, “Congress legislates responsibly in the best interests of the American people.”  A likely reaction would be laughter (or outrage).  If you said the same to a Briton about Parliament, I don’t think you would hear laughter.  Just look at the difference in the titles each legislature gives to its legislation and the differences in approach and self-perception and public reception become so evident.  (Compare, for example, the Anti-Terrorism Crime and Security Act of 2001 in the UK with the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 in the US.)  Now, this may seem a small difference.  I believe it is actually a very revealing one.  Electoral politics in the US has become polarized to such a degree that the arguments tend to be about defining the problem (or denying its existence) rather than differing solutions, because winning elections is the goal of the process rather than having the opportunity to address the policy issue in accordance with a party’s view of the public interest.  So the title of the legislation itself becomes a partisan statement rather than a simple declaration of the issue addressed by the statute.  If we get the government that we deserve, then perhaps Americans have no one to blame but themselves.

Or perhaps the blame belongs to the framers of the US Constitution.  What if they did not assume that government could not be trusted?  What if they had a little faith?  Then what would the US constitution say?  What would they have felt the need to write down?  Would they have chosen to write a Constitution at all?

Nevertheless, Americans are proud of their written Constitution, especially after it was amended to eliminate slavery and to provide equal protection, but they do not generally trust the officials who populate the institutions their Constitution created.  (Of course, they elect most of those officials, but let’s not talk about that right now.)

Americans’ pride in their Constitution stems importantly and inescapably from the fact that it is written.  In his famous decision in Marbury v. Madison (1803), which is commonly held to establish American-style judicial review in the US, Chief Justice John Marshall based his reasoning on the written nature of the Constitution: “Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.  This theory is essentially attached to a written constitution, and is consequently to be considered, by this court, as one of the fundamental principles of our society . . . It is emphatically the province and duty of the judicial department to say what the law is . . . Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law . . . would subvert the very foundation of all written constitutions . . .”

In other words, the Constitution is a law.  As such, it is the business of courts to interpret the written Constitution and to enforce it when a statute is deemed to violate it.  That is what it means for courts to be courts and that is what it means for the Constitution to be a constitution.  At least, that is what these things mean in the US.

Americans’ faith in their Constitution is doctrinal, as a source of legal rules that they can read and enforce in court.  The meaning of their Constitution is determined primarily by the decisions of judges, because through their interpretations of the written text the Constitution exercises its force in the people’s lives.  And since the US Constitution is deliberately difficult to amend, its development is entrusted principally to the judges who articulate its meaning.

Britons’ faith in their constitution is functional, as a conventional dynamic of institutional relationships.  The meaning of their constitution is demonstrated primarily in the operation of its Parliament, because self-regulated and theoretically unbounded legislative power is the foundational principle of the UK constitution.  The English constitution is written in deeds not words.  In continuing to function as it has functioned, the British Parliament demonstrates the enduring value of the English constitution.  And since English constitutional rights are unentrenched, Parliament can alter them whenever and however it chooses.  So constitutional development is entrusted primarily to the legislators whose enactments define and redefine the meaning of English constitutional rights.

Of course, this is an oversimplification, but perhaps a useful one.  To be sure, English courts have played a significant role in defining the meaning and values of the English constitution.  And this role has increased in recent years, and can be expected to expand further with the creation of the Supreme Court of the United Kingdom.  But so long as parliamentary sovereignty remains the fundamental doctrine of the English constitution, constitutional development will belong primarily to Parliament.

In the end, though, the UK and US constitutions are aspirational.  The US Constitution is aspirational in allowing Americans to imagine what their government might be, if only their institutions functioned as they could, if only Americans had faith in them.  The UK Constitution is aspirational in allowing Britons to imagine what their constitution might say, if it were written in a manner that expressed their faith in the customs and traditions from which their institutions evolved.

Grounded on the assumption that Americans cannot trust government, and written down to define what its institutions can and cannot do, the US Constitution helped Americans to have faith in the document as a protector of their rights from a government they cannot trust.  By acting in a manner that respects the rights of Britons, the UK government continues to function in a manner that reflects and justifies their faith in the English constitution.

All of this leads me back to questions that have fascinated me for some time.  Does the US have judicial review (in the American sense) because Americans cannot trust their government or do Americans not trust their government because they have judicial review?  Does the UK not have judicial review (in the American sense) because Britons can trust Parliament or can Britons trust Parliament because they do not have judicial review?

And this leads me back to V for Vendetta.  Constitutions exist to ensure that those disturbing scenes of government failure in the film – anarchy in the United States and fascism in England – remain fictional.  The film highlights the concerns reflected in each nation’s constitutional system.  When faced with a national crisis, which constitution seems most likely to protect the nation’s values and citizens?  Will a crisis force the nation to choose between protecting its values or its citizens?  Without a written constitution, what is there to prevent the English government from descending into totalitarianism?  Might an attempt to preserve the provisions of the written constitution prevent the US government from protecting its citizens and allow the United States to descend into chaos?  Which constitution, unwritten or written, stands the best chance of preserving values and protecting citizens while preventing fears from becoming facts?

Ultimately, I think, the answer to these questions is a matter of faith.

Douglas Edlin is an Associate Professor and Chair at the Department of Political Science, Dickinson College, Carlisle, Pennsylvania.
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6 Comments

Filed under Comparative law, UK Parliament

6 responses to “Douglas Edlin: The Substance of Things Hoped For.

  1. David

    I think you get (understandably) muddled between the terms ‘UK’, ‘British’ and ‘English’. This is not just because these designations have traditionally been viewed by many people (including the English) as interchangeable, but because the UK / British constitution, as such, has evolved from constitutional principles and statutes that were originally specific to England (i.e. date from before the Union between England and Scotland).

    You perhaps underestimate the degree to which British – and more specifically, English – people have lost faith in their parliament and the institutions of government. There are obviously many reasons for this, but not the least of them, in my view, is that Parliament has ceased to be, and even ceased striving to be, a parliament and government of and for England. Since devolution in particular, it has sought to govern in the name of a Britain / UK that accords no official status or recognition to England as a nation, and has put England at a serious democratic and fiscal disadvantage compared with the UK’s other nations via abuses such as the West Lothian Question and the Barnett Formula.

    In other words, to refer back to your term again, Parliament has broken faith with the English people, and – as opinion polls over the last few years have continually demonstrated – English people are now strongly in favour of an English parliament to take over responsibility for the England-specific areas of government. Whether Parliament and the British establishment will ever willingly recognise that and reform by their own initiative is, however, highly moot.

    These could be interesting political and constitutional times in England – by which, this time, I definitely do mean England.

  2. Doug

    David,

    Thank you for your comment. I want to reply briefly to two important points you raise. First, I attempted, although evidently without complete success, to remain sensitive in the post to distinctions among the English, British, and UK constitutions. Where I refer to the English constitution, I mean (as you correctly indicate) the body of constitutional concepts and principles that evolved largely and historically in England. Of course, these principles continue to inform and influence understanding of the modern British and UK constitution (recognizing, of course, that Britain and the UK are not precisely the same constitutional entity). Second, in relation to your point about the seeming erosion of faith in the UK constitution, I relied primarily upon the poll data I could locate. I can see that public approval of Parliament has waned recently. However, at least in comparison with Americans’ attitudes toward the US Congress, which is the comparison I was most interested in pursuing here, Britons still seem more favorably inclined toward Parliament than Americans are toward their national legislature. That said, it remains to be seen how this will develop in the future. In any event, thank you again for reading and commenting on the post.

    Kind regards,

    Doug

  3. Carolus

    The English constitution grew out of, and sometimes in conflict with, the common law. Thus, it is bound by custom and past practice. A considerable measure of public consensus must then be built to make important changes to a custom-restrained set of rules, and the UK seems to abide by that. But UK customs appear to be less binding these days.
    In contrast, the US constitution was built on revolution, or a deliberate rejection of existing rules and customs. A society built on revolution has set a dangerous precedent, for it has legitimized violent social change. That, I suggest, is one important reason why the US had to rely on a written constitution, and why it had to constrain and define the branches of government — as far as that is possible, and the US constitution has evolved considerably since its inception. Further, the federal structure of the US was meant to provide considerable independence to the several states through protection against centralization — a feature that is increasingly rendered weaker over time. The stable foundation the US constitution sought to provide seems, however, to be eroding over time, perhaps approaching more of a UK-like custom-based society.

  4. Sander Hjortshøj

    Your otherwise thoughtful post fails to account for the fact that most Americans in the 1770s and 1780s were Britons, legally and culturally, prior to the Revolutionary War. Seen through the lens of their eyes, the written constitution was necessary because they, as Britons, had just experienced living under a government that had massively abused its power over them–most decisively by denying them representation in it. Having learned from the experience that government indeed cannot be trusted to comply with unwritten rules requiring it to treat its people fairly, they reacted by writing rules under which government could in future be held to account.

    (And the United Kingdom does the same, more narrowly. For example, when Charles I dissolved the Short Parliament against its will in May 1640 because it was deliberating topics he did not want it to consider, the next Parliament reacted by enacting a statute prohibiting its dissolution without its consent. It likewise reacted to the twelve-year gap between the Short Parliament and its predecessor by enacting the Triennial Act. So viewed, taking in the whole of parliamentary and non-parliamentary reactions to governmental abuses, the UK constitution not so much unwritten as simply not written in a single place.)

    Your post also fails to account for the function the American constitution serves as a treaty between equal sovereigns (i.e., the respective, independent, post-colonial states) to create a federal government by delegating their individual powers. But because most Americans themselves neglect that important and novel function, it is perhaps irrelevant to your post about constitutional perceptions.

    Finally, to address one of the questions you find fascinating, American distrust of government and American judicial review is not a chicken/egg dilemma: Marbury was decided in 1803, well after the constitution was written and ratified. Marbury would not have been necessary–indeed, the questions it answered would never have arisen–if government had not again been abusive (i.e., had not Mr. Madison, as secretary of state, declined to deliver a judicial commission to Mr. Marbury).

  5. Not to be rude, but your idea that parliament would never violate constitutional principles is to put it mildly laughable. What about the protection of trial by jury? How many crimes are still tried by jury in the UK. Or what about the Lords attempt to usurp the power of the purse in the dispute over income taxation and the “people’s budget” in 1909. Or what about the defenestration of the hereditary peers in the House of Lords “Reform Act” of 1999. The rest of your article is interesting, but I think largely incorrect, the US system worked better when judicial review was stronger prior to the “switch in time that saved nine.”

    • Doug

      Steve,

      Just to be clear, I don’t say anywhere in the post that Parliament would never violate constitutional principles. What I say is that “Parliament has sometimes passed legislation that Britons find detestable . . . [but] Parliament can alter them [constitutional rights] whenever and however it chooses.” My point is not that Parliament would never violate constitutional principles. I was trying to compare the different approaches to constitutional development in the US and the UK, to contrast different institutional roles in performing that function, and to think about this in relation to the underlying constitutional form of the two systems. As far as whether the US system worked better when judicial review was “stronger” prior to the “constitutional revolution of 1937,” we may have to agree to disagree. For what it’s worth, not many American lawyers or citizens would wish to return to those days. There is pretty overwhelming agreement, over here at least, that the US Supreme Court functions better since reorienting its institutional self-perception to focus on civil rights and liberties, rather than economic rights, in the “Carolene Products Footnote 4″ sense.

      Doug

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