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.