There has been a small demand by some academics in recent times for writing or codifying the British constitution. While I have made an effort to familiarise myself with the literature of those proponents of the merits of written constitutions (Paine especially), I haven’t found anything of enough substance to outweigh the arguments given by Burke and especially de Maistre on the virtue of unwritten constitutions and the uselessness of the written kind.
In the next instalment of this series I will be talking more about what I see as the prime reason that Britain needs to defend the unwritten tradition, drawing heavily on citations from de Maistre who my own thoughts on this subject are thoroughly indebted to. For this short instalment I wanted to say a little about why I think that a project towards codifying the British constitution and doing away with the unwritten tradition would be a bad idea.
One of the reasons is that there are certain constitutional rights that I maintain myself and the other citizens of this country have, that are not up for negotiation. If a leader or a representative interferes with our ancient constitution, I can point to them as a tyrant. I can call them illegitimate, I can rebel, I know where I stand. As a democracy, if the public (especially that part of the public that is not aware of Britain’s history and its constitution) badly compromises our constitution unknowingly having been convinced by a figure or group capable of stirring up populist fervour that persuades people to vote in a way that would not be in their interest, it’s harder to argue that this is not legitimate, because it apparently reflects the will of the people, and once again a small interest group could use and mobilise the masses to violate the individual, and we know how well that bodes for liberty.
Seriously consider this scenario, a campaign by a special interest group convince a relative majority to vote habeas corpus out of the constitution. It is an unlikely situation, but it is not impossible. As far as I am concerned, the main principles of our constitution (which we can identify because we can look back and see that the British people have reclaimed them time and time again over a very long period of time, as far back as we can see) are individual rights and are not up for debate. Equality before the law and God, habeas corpus, freedom of speech, due process, private property, rule of law, these are all outside of the reach of democracy for me. These are my rights, they’re not group rights, and I consider them inalienable, and no majority however great will ever legitimise their compromise for me.
My second main objection would concern the constitution’s duration. Written constitutions don’t usually last very long (the Constitution of the USA being an exceptional miracle as far as I’m concerned), and if a constitution was written with cross-party longevity in mind I would have no faith in it whatsoever. If the constitution was only expected to remain so long as that government and the composition of parliament remained the same, then that’s different. Our constitutional history has contained many documents, of course, some looking very much like clear constitutions. Two obvious examples are Magna Carta and the Bill of Rights 1689. Yet neither of these documents actually bind us, despite them both being key components of our constitution. We don’t still live by most of the provisions of Magna Carta, yet it remains a fundamental part of the constitution, due to the British constitution’s organic and (in agreement with the critics) quasi-mystical nature.
But suppose a party decided that Britain needed a codified constitution for good, and proceeded to compose one (whether it was assembled through a direct democratic process or not). They set up a rule, that two thirds of constituencies or a certain percentage in a referendum are required to amend the constitution and the way it configures our political system. Even if they establish such an arrangement, why would any future government or parliament have to honour it? At the time of establishing the constitution, the former government had no prerogative to bind future parliaments in the first place. So what legitimacy would it have? What force (now that the former government has lost its power) could stop the next government from simply sweeping away the supposed constitution like some trivial piece of minor legislation?
Habits, instincts and manners cannot simply be swept away at all in the same way, and our real constitution is an expression of our habits, instincts and manners because we’ve been reclaiming them since time immemorial and there is no reason at all to see that tendency, that propulsion, that national spirit as anything but both providential and eternal. As de Tocqueville concludes:
“Laws are always unstable unless they are founded upon the manners of a nation; manners are the only durable and resisting power in a people.”
Perhaps it is that people are using the term constitution differently, and those wishing for a written “constitution” (like a modern Magna Carta) are not actually thinking of doing away with any of our inheritable constitutional principles, but they may be inadvertently opening up a door to it. These are just two of the main reasons I think that codifying the constitution would be folly, but before I go into this any further I’d like to expand on the utility and rectitude of unwritten constitutions with some help from Joseph de Maistre and both his magnum opus Considerations on France and the later essay On the Generative Principle of Political Constitutions and Other Human Institutions that he wrote as a more sweeping expansion of the same principles.
Maistre, Joseph de (1797) Considerations on France
Maistre, Joseph de (1809) Essay on the Generative Principle of Political Constitutions and Other Human Institutions
Paine, Thomas (1776) Common Sense
Tocqueville, Alexis de (1835) Democracy in America Vol. I