Preliminary Warnings on 'Constitutional' Idolatry
(Forthcoming) Public Law (January 2016)
21 Pages Posted: 15 Mar 2015 Last revised: 23 Jul 2015
Date Written: 2015
Although contemporary societies covet the notion of a written constitution, the UK still stands as one of the few jurisdictions not in possession such a single document. Yet recently there has been renewed discussion regarding whether the UK should draft its own constitution (or at least entrench some form of constitutional law). A recent House of Commons committee report thoroughly analysed this prospect, and many scholars and practitioners consider such a result inevitable. This piece argues that such a document should not be drafted, but if it is, it should surely not be called a “Constitution”.
Difficulties arise because over centuries the word “constitution” has evolved from a largely structure-based meaning into a widely expansive symbolic meaning. Beyond merely delineating the structure of a state, the word now carries a variety of connotations. Some see it as the ultimate illustration of “we the people” popular sovereignty or as a vindication of the rule of law, while others see it as the completion or ultimate formation of a state or a government. Indeed contemporary constitutions, and especially Constitutions, serve highly symbolic functions that can manifest into significant issues for law, politics and the wider democratic state. Nowadays the word “constitution” is often used as a legal, political, and psychological truncheon: it has been employed to have ordinary documents masquerade as constitutions, been brazenly used to hollow out jurisdiction, and also been applied to have legislators think in legal, as opposed to political, terms. Given some of the rhetoric in the UK surrounding the possibility of a written constitution coming into being (i.e., “A New Magna Carta”, “Constitution Carnival”, “Commission for Democracy”), this article concentrates on a few acute examples of “constitutional” fetishism the US is currently grappling with; problems which could become substantially more relevant if a founding British document is enacted.
This article is divided into four primary sections. The first explores how the word “constitution” has changed meanings over time. Once used primarily to refer to a country’s form or arrangement of government, the word now carries a tremendous amount of weight. It also discusses how the legal, political and psychological effects of a written “Constitution” go beyond being firmly entrenched positive law. The following section explains why a written document with “constitution” on its face may have implications for the judiciary, including: placing increased constitutional review in the hands of judges and also allowing the document to be seen as the ultimate interpretative device. Next, the article discusses constitutional change. The considerable amount of change the UK experienced over the past couple decades would not have been possible with a written constitution, especially not an enduring document seen as a prominent national symbol. Finally, constitutional reform discussion often only discusses levels of “constitutional” documents while neglecting more sensible options, such as incremental organic laws (the latter of which, this article recommends). Ultimately, the piece demonstrates that even in this day and age, constitutional distrust remains alive and well.
Keywords: written constitution, unwritten constitution, constitutional worship, constitutional idolatry, parliamentary sovereignty, judicial review
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