9. Criteria for a constitution part 1: Creation (there’s a first time for every one)
What Makes a constitution?
There is no official, or even objectively agreed, list of criteria by which we can identify a constitution – and by the same token distinguish a “non-constitution” – but we can organise the definitions given by leading authors on political theory and practice into 15 headings which I have grouped into three categories covering the creation, conception and operation of an instrument of government.
Creation of a Constitution
1. Origin
Every constitution has a point of origin and is born of intentionality; its creation or adoption is a deliberate act. It cannot emerge “somehow” out of nowhere as a haphazard improvisation.
The origin of a constitution is almost always associated with “a new beginning” (Bogdanor) involving the rejection of an antiquated ancien regime.
The British constitution has no precise origin and was not consciously enacted. It “developed over centuries, indeed a millennium” (Norton) and is “an accident of history in some senses” (Young, quoted on a BBC Radio 4 episode of Analysis). “It is not possible to point to an indisputable founding charter and to say when and how such a birth certificate was drawn up and brought into effect,” says Johnson.
2. Ownership (sovereignty), unity and unanimity
A democratic constitution is the property of everyone in the polity ie “the people”. It cannot be owned by an elite; and certainly not by a monarch. It implies or stipulates at least notional equality. The constitution is for everyone and applies in the same way to every citizen. It is a common, shared resource.
It’s not clear who owns the British Constitution. It would not be right to say “the people” because nowhere is this stated as a fundamental, inalienable principle. The more usual answer is the Crown-in-Parliament or some variation of this phrase. The operators and interpreters of the constitution are attached to one or the other of these institutions. The people are treated as appendages, to be consulted at general elections.
3. Legitimacy and Consent
A democratic constitution must be consciously and overtly approved of by those whom it serves ie everyone in the polity. It must be legitimised so that acts carried out within its terms are legitimised.
This validation process may have been carried out by ancestors but it cannot be sidestepped. Each new generation accepts the constitution it inherits because it knows when, how why, by whom and for whom it was generated.
Ideally, the constitution is periodically re-legitimised. Jefferson recommended that every new generation (once every 19 years) should reaffirm its commitment to the constitution or write a new one.
Every actor in the political system must be able to answer certain key questions: “Where did you get your power from? On whose behalf do you operate it? How can the giver or lender of your power be sure you are using it in the manner intended?” Etc. It would be a weird system that allowed an individual to give his or her own idiosyncratic answers and for them to vary over time; or to give no clear answer at all. A constitution specifies the answers so that there can be no misunderstanding.
The British Constitution has never been put to a vote. Each generation is presented not with a rationale, but with a rolling, mystifying fait accompli.
Only a few bits of it – the voting system and relations with the European Union – have been treated to partial public debate and scrutiny.
The perpetuation of the monarchy as the apex of the political system – powerless but still the personification of a wide ranging prerogative – has never been validated by the people is in a permanent conflict of legitmacy with the requirements of democracy.
Traditional constitutionalists fall back on notions of “acceptance” as a form of legitimisation but are coy about how this acceptance is measured. H.L.A. Hart states that the general acceptance is “a complex phenomena, in a sense divided between official and ordinary citizens, who contribute to it and so to the existence of a legal system in different ways…the ordinary citizen manifests his acceptance by acquiescence in the results of these official operation. He keeps the law. Crudely put, the facts are that the rules recognised as valid at the official level are generally obeyed” – an analysis that could apply to any authoritarian state.
Similarly, Johnson suggests we should take acceptance for granted. Because, he says, “most or at least many of the people have given their consent directly or indirectly,” it can be said to be “a presumptive construction”. Which is it, you may well ask: “most and directly” (democratic) or “many and indirectly” (anecdotal)?
4. A Higher Body of law
The constitution must stand, as Paine demands, above and outside day-to-day politics. It must be independent of all players whose actions are dictated by it. They must not say what it should be; they must be obedient to it.
To ensure there is no quotidian inference, constitutional law is in a different class to “ordinary” law. The United Kingdom takes the exact opposite approach.
In Britain, there is no distinction made by jurists between ordinary law and constitutional law; no higher set of rules that are beyond the reach of everyday politicians. Young notes the problem this poses: “the absence of this kind of supreme instrument in the governmental system of the United Kingdom is unusual, leaving many observers to wonder where our constitution is to be found and, indeed, whether we have a constitution at all.”.
Johnson again: “The law courts do not recognize any statute or other legal instrument as indubitably superior to all other law, even though there are some legal documents and statutory provisions which by virtue of their antiquity or their content and all-embracing effects are sometimes treated as ‘constitutional’ by learned judges in search of a clinching argument.”
The executive acting in the name of the monarch is the highest rung of decision-making. Any decree of the constitution can be changed by legislation of the House of Commons or by the executive using various extra-parliamentary methods including orders of the Privy Council and application of royal prerogative. Barendt worries at great length, and with good reason, about the loose leash given to the executive in this sense. When Lord Hailsham diagnosed an “elective dictatorship”, this is what he meant.
5. Entrenchment and durability (future proofing)
The reason why constitutional law is of a different nature to ordinary law is to future proof arrangements. A constitution is intended as a permanent, stable, quasi-imutable arrangement to guide the political system now and in the future. Provision is made to prevent any individual or institution tampering with it without good reason. The typical constitution cannot be easily re-written or altered – it would have no purpose or value if it was being constantly changed. It can only be amended if exceptional reasons call for it and then usually with extraordinary majority approval.
Supporters of the British constitution seek to have their cake and eat it. They praise the constitution’s endurance and continuity, but at the same time its flexibility or malleability. This is made possible by an indefinite and ambiguous nature. It is at once dependent on tradition and open to unpredictable change, as we saw in the aftermath of the 2016 referendum when no one could agree what the constitution said about the procedures that needed to be followed. For three years the “constitution”, which is backward looking, proved a hopeless set of instructions to navigate the unforeseen.
The Cavalier Constitution 