Written or unwritten - is there a perfect constitution?
- 17 February 2011
- From the section US & Canada
Like most folks who end up living across an ocean from where they were born, I find myself occasionally frustrated by the sheer pig-headed, stubbornness by which people in my new country, the UK, cling to the customs that clearly have no value in the modern world.
In Britain, these customs often revolve around outmoded political structures traceable to the fact that this country somehow has made it to the 21st Century without a written constitution.
When I find myself dissecting some political or legal problem with British colleagues, I have been known to throw up my hands and say: "What this country needs is a new constitution and this time you need to get it in writing."
Of course, most British people think they do have a constitution. Why else would politicians constantly talk about reforming it?
Back in the mid-90s, as it became clear that Tony Blair was going to lead the Labour Party to electoral victory, and "constitutional reform" was high on his agenda, I proposed to my editor at National Public Radio a piece on the British constitution.
"They don't have one," she chortled. Eventually she agreed to let me do the piece and, as she listened to my interviewees explain how a vast array of legal and historical precedents can make up a constitution even though they weren't codified in a single document, she would snort: "They actually believe this?"
Gaps for interpretation
I did take her point. As someone born and educated in the US, who was taken as a schoolboy to see the original document in its bullet-proof display case in the National Archives in Washington DC, I regard the American constitution as the most perfect political document ever created.
My feeling for the constitution is akin to the reverence that most British people have for the monarchy - whatever its flaws in reality, it is the symbol of a national ideal.
But increasingly, I am beginning to see the imperfections of the document at the heart of the "more perfect union". A constitution is a legal contract. It is a statement of the terms and conditions under which a society agrees to govern itself. The constitution of the United States may be elegantly written and succinct, a superb example of Enlightenment philosophy in pragmatic form, but it is a contract, no more, no less.
Like any contract it can be amended or re-interpreted or broken as the times demand. In these contentious times - given how many lawyers there are in America, certified by the bar association or tutored at home by talk radio, the constitution is looking decidedly frayed and unsupple. It turns out that even in this most elegantly terse document there are gaps for interpretation broad enough to drive a legal tank through.
Rights of the states
Around 15 years ago while on assignment in Mississippi for the BBC World Service, I got invited to the monthly camp meeting of the Natchez chapter of the Sons of Confederate Veterans. After the meeting, some of the fellows and I got into a "discussion" about the US constitution. Anticipating this, I had brought a pocketbook edition of the document with me.
In Mississippi, the cause of states' rights still burns brightly, and one fellow went off on a tear about the encroachment of the federal government in Washington DC on Mississippi's sovereignty. It would have done no good to remind him that some of the most powerful people in Congress were conservative Republicans from Mississippi and that the fine roads, new airport and the rapidly improving living standards of this historically poorest of states were down to federal government help.
"States' rights, that's what the constitution guarantees. Now the federal government wants to take away our guns."
I deftly produced the copy of the constitution from my jacket pocket and demanded that he show me what he meant. He flipped through it and then came to the Bill of Rights, the first 10 amendments to the constitution. No bit of the American constitution is more contentious today than the second amendment. That is the amendment about gun ownership.
Here's what the Second Amendment says: "A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."
For Second Amendment absolutionists, meaning the National Rifle Association Sarah Palin, and every person at the meeting in Natchez, that sentence is simply interpreted.
The fellow who was hammering on about states' rights focused on the final two clauses, turning them into a declarative sentence: "The right of the people to keep and bear arms shall not be infringed."
I have no problem with gun ownership. I enjoy hunting. But I still think the qualifying phrases at the start of the Second Amendment pretty clearly explain what the amendment means - "well-regulated militia" and "security of a free state" as preconditions for keeping arms.
The first phrase especially implies that some regulation was always intended for gun ownership. Both phrases seem paramount especially in this day and age where some individuals and groups - not part of a regulated militia and not involved in maintaining the security of the state - have small arsenals at their disposal.
I made that point to the increasingly incensed great-grandson of a confederate veteran. He grabbed my copy of the constitution, rifled back and forth, muttering states' rights, states' rights. I took the document back and found the 10th Amendment, the states' rights amendment. It says: "The powers not delegated to the United States by the constitution, nor prohibited it by the States, are reserved to the States respectively, or to the people."
"You see, states' rights," my opponent said triumphantly. "To the people," I pointed out, egging him on a little, "what does that mean? The people could decide they want something and that would supersede states' rights."
We had reached the point where fisticuffs might have been the next level of argument and the fellow who invited me to the meeting suggested it might be time to move along.
The memory of that long ago evening remains clear as America has become more polarised and the arguments about the constitution have grown more bitter. We have no such problems here in Britain. No single written document called a constitution means fewer arguments and armchair lawyers misquoting their favourite bits.
Last May as it became clear that the General Election would yield a hung parliament, a number of constitutional "experts" were consulted about what was constitutionally correct for dealing with the situation - who had to speak to whom and when, how a minority government could be formed or a coalition.
No-one seemed to find it unusual or suspect that the main "expert" was Oxford University Professor Vernon Bogdanor, who had been Prime Minister David Cameron's tutor. Mr Bogdanor was already on the record calling Mr Cameron one of the "ablest students" he had ever taught. But since Mr Bogdanor had no statutory power to make a judgment in the case there was no need for him to recuse himself. He was just giving advice.
That's how the British constitution works and by extension British society. The establishment decides and the people go along. Anyway, the unusual election result was resolved amicably. Lawyers didn't dig their heels in and argue for hours. No-one went to court.
Compare what happened in Britain to the constitutional legal process surrounding the 2000 presidential election in America. You can understand why I now question - just a little - whether explicit written constitutions are perfection. Perhaps a little opacity at the heart of the contract forces everyone to behave in a more gentlemanly fashion in order to make things work.