net.wars: Constitutional convention
by Wendy M Grossman | posted on 13 July 2007
One of the things that surprises outsiders most about Britain is that there is no written constitution. I can only judge what that discovery is like for an American, and in the US in particular our written constitution is regarded with such reverence that the notion of not having one is kind of shocking.
There have been various efforts to change this situation. The best known in the time I've been hanging around Britain is, or was, Charter 88. Founded (logically enough) in 1988, the group seemed to fizzle out in the 1990s, though apparently not entirely. The ideas didn't die, in any case, and the dear departed Blair had been making constitutional noises, and now his replacement, Gordon Brown, has made a commitment to constitutional reform.
Wednesday, July 18, therefore, sees the first of what will doubtless be a series of events at the LSE, organised by Fellows Simon Davies and Gus Hosein and featuring a raft of interesting speakers: Exploring options for the process of constitutional change. The project, known as Future Britain, will launch its Web site on Monday, July 16.
It was only after I'd been living in Britain for a while that it occurred to me that the unwritten constitution is that most quintessentially British thing, a gentleman's agreement. The principles by which Britain is governed have accreted over nine centuries, and for much of that time the people in charge of making decisions based on those principles were in fact gentlemen. I always had the sense that Britons regarded our constant American perusal of the Constitution's text as rather childish, a petty, dogmatic insistence on the exact terms of our written contract. Grown-ups trust each other.
Things are of course different now. The country is no longer so homogeneous; you can't count on the people in charge of making laws to be gentlemen. It was, I think, no coincidence that Charter 88 started up during Margaret Thatcher's years as Prime Minister. She did things that would simply not be possible under the American Constitution, mostly notably abolishing the Greater London Council and several other local governments. That was the moment when I understood just how centralised British government is. It was, or had been, inconceivable to me that in an old and famous democracy a properly elected leader could be deposed in such a way. What was even more amazing was that despite a few protests, these actions were accepted and the country went on as usual. There is no local government if it can be abruptly terminated in that single-handed way, only delegated authority. Britain, I learned from that, is an elected dictatorship.
Writing down a constitution is not the same as reforming one. A constitution is not a blueprint; it has to be flexible enough and general enough in its principles to be adaptable to changing conditions. One of the significant failures of the US Constitution in today's world is that the Founding Fathers left no room for controlling large, multinational corporations. It would not have mattered that there were no such things in the 18th century if they had simply allowed for the possibility of third-party private interests of economic power. But they thought they had it covered when they put in the clause to separate church and state, since at the time the church was the only multinational corporation in town.
Brown's list of desired reforms does not make the kind of deep-rooted change that Charter 88 was calling for. The case for that is made on Open Democracy, by Neal Ascherson, who argues that this is really just an English problem.
The US Constitution, when I read it now, seems to me to be focused on prohibiting the kinds of abuses its drafters had experienced. Separating church and state, limiting the power of government to interfere in individuals' lives, guaranteeing freedom of speech and of assembly – these all speak of bitter experience. Ascherson's argument seems to suggest that something similar happened in creating Britain's undocumented government: the abuse to overthrow was the power of the king. Parliamentary absolutism was an adequate answer. Even the US's Founding Fathers didn't trust the people unless they were sufficiently wealthy land-owning men.
And that's the thing about constitutions: they are not enough by themselves even if they are written down. This point was made to me by the Campaign to Separate Church and State when I was living in Ireland in the late 1980s. The lifetime of the Irish constitution is still measured in decades, and the clause guaranteeing freedom of religion clearly meant the freedom to be Catholic after centuries of British Protestant rule. It did not guarantee equality for atheists, agnostics, or even Jews. So the broader point my Irish friends made was that the constitutional guarantee was meaningless without supporting legislation to enforce it. A constitution is, therefore, only a beginning.
As a foreigner, I don't think it's up to me to say what a British – or English – constitution should be. But I do know it shouldn't be written by the elected dictatorship in power. To have meaning, a constitution must be written by the people. It's our chance to devise a governmental design to which we give consent.
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net.wars: Constitutional convention