7. The Oxymoronists: there’s a constitution even though there isn’t
Defenders of the constitution know there are two problems with the object of their admiration: that it is not entirely written – it is not a single document and that it is uncodified. This last should give anyone cause for concern as every other constitution in the world (with the two quasi-exceptions mentioned previously) is codified. To argue that there really is a constitution when faced with these and other problems, writers on the subject adopt one or more of six strategies of explanation.
Strategy 1 is to say that the constitution is “what happens”. It is a description of the political system. This is one of Blondel’s (1969) three methods of identifying a constitution and, as Wolf-Philips (1984) shows a tautology that explains nothing. A constitution is what should happen. As Tom Paine (1791) pointed out, it must precede the political system.
Strategy 2 is to describe the constitution as long-lived and continuous. “Our methods of government and legislation have been developed gradually through our history,” writes Low. “Our constitution has been a growth, not a deliberate creation. (Low, 1928). In some aspects, the constitution was rather frozen in the middle ages (Ullmann, 1965)
How can we doubt something which has been an existence for so many centuries? Again, this is fallacious. The history of the political system is discontinuous; often chaotic; and for the most part excludes most of the people of the polity. To cite longevity is to own everything that has ever happened, politically speaking, including religious repression; state sponsored atrocities; and the monstrosities of Henry VIII’s rule. Most elements of the “constitution”, notably Erskine May, were formulated long before the advent of democracy; and this raises the question of their validity.
Strategy 3 is to argue that although the constitution is not fully written, it is largely written and become increasingly written. The debate on proportions of written to unwritten can go on for ever; but what is clear is that the written part of the constitution are not coherent with the non-written parts. A variant, favoured by legal scholars (Blackstone 1765, Austin 1832, Dicey 1885, Hart 1961, Eliot 2020 and others), is to equate the constitution with a set of laws. This enables them to leave out the problematic parts, notably conventions.
Strategy 4 is to list the constituents, or ingredients, of the constitution (Cabinet Office, 2011) . This gives the appearance of coherence but these ingredients are chosen by the list-compiler. All such lists differ slightly from one to the other and the invariable include problematic items. Wolf-Phillips, for example, names “basic rights and liberties” as a component. As examples he gives Magna Carta (a charter of rights for aristocrats); the Bill of Rights (a charter of rights for a small percentage of the population); and habeas corpus – which has been suspended several times by parliament and is therefore not a right at all.
Strategy 5 is exemplified by Bogdanor (2009) who invents a new definition for the word “constitution”: a category with only one instance of it in reality. The British Constitution is a constitution, he says, in the sense of being a British constitution. If we allow the creation of new definitions of existing words, we risk defeating the purpose of language.
Strategy 6 is a modification of strategy 4: to suggest that there are different kinds of constitution. All sorts of nuances are possible – rigid/flexible (Bryce 1901, Low, big C and little c (Oliver) , living and dead (Foley 1999, Turpin), formal/customary (Johnson 2004) but all of these re-definitions are simply ways not to ask the central question.
Strategy 7 is to plead that although the constitution isn’t up to scratch it is becoming so. This is the thrust of Bogdanor’s book (2009). The trouble with this is that it means the constitution is never complete; it is never fully the thing it is supposed to be.
Strategy 8 is to steer round the problem as if it doesn’t exist. This involves using phrases that imply there is a constitution without committing to there being one. “Constitutional arrangements” (Green, Eliot and Thomas), “a constitutional system”, “the constitutional monarchy”, “constitutional principles” (Johnson, Eliot and Thomas), “constitutional propriety”, “constitutional understanding” “culture of constitutionalism” (Johnson, Norton) ““previously established constitutional norms” (White) “constitutional understanding” (Johnson): all these expressions appear in mainstream political works.
Very few authors tackle the issue head on but two attempts are worth singling out. Barendt (1997) offers a tour de force of constitution studies, starting with a French Revolution definition – “Any society in which the safeguarding of rights is not assured, and the separation of powers is not established, has no constitution”. He presents many compelling arguments against the existence of a British Constitution but comes to an extraordinary conclusion which defends the status quo:
“From a formal perspective UK constitutional law is a hotchpotch of statutes, case law, and miscellaneous rules (such as the privileges of the Houses of Parliament) which are, it is said, made intelligible by reference to a number of conventions of uncertain scope and inconsistent application. With regard to its substance, the Constitution fails to guarantee fundamental rights such as freedom of speech and the right to a fair trial, and, as Bagehot observed, it is characterized by the fusion, rather than the separation, of powers. Without doubt it fails the test of the French Declaration of the Rights of Man. Yet it seems unhelpful to withdraw from it the title ‘Constitution’.
Wolf Phillips (1984) provides an exhaustive history of the alleged constitution showing that its development was not deliberate. After trying to scotch the theory that it is “unwritten”, he claims there is “a large measure of agreement” as to the constituents of the constitution without saying who is doing the agreeing. He finishes his essay by exposing the Westminster model as a sham that doesn’t work as it should. He is not sure whether the Whitehall model is any better a description of the constitution. In this he follows Birch. All such failed attempts to establish which is the operative model open up a dangerously subversive possibility: that there is not one British Constitution but two or, at the very least, a British Constitution with a split personality. The concept of the Schizophrenic Constitution is the masterful insight of Walter Bagehot (1867) that fascinates today’s scholars but it almost universally disowned by them even though it would help explain the monarchical-democracy that is said to operate today.
Really, all the above comes down to an attempt not to grapple with the precise, universal definition of the word “constitution.”
The Cavalier Constitution 