Changing the Constitution is a Bad Idea
16 Jun 2003
[751w]
If you think deeply about the constitution, last Thursday's bit of knife work might make you wonder whether writing it down might be not such a bad idea after all. The trouble with an unwritten constitution is, you can never be quite sure if you're operating within it, or altering it. Was the Prime Minister carrying out his executive function by arranging the offices of state in the best way to meet the challenges of the time; or was he altering the balance of power between executive and judiciary? Search me.
Writing our constitution down offers two advantages. First, the Prime Minister, or whoever turns out to be the proper person, has to think through the big constitutional changes a bit more. Second, most of the rest of us have a chance to be involved, one way or another. So the changes are more intelligent; and if we don't like them we have a chance to stop them.
There are countries where it works like that. It might be a good idea for America to abolish its Supreme Court and replace it with a committee of the Senate (imagine how much more legitimate George Bush would be if the decision whether he'd won Florida had come from an elected body). On the other hand it might be a bad idea. What you can be sure of, though, is that it would only happen if two thirds of Congress and three quarters of the States made up their minds to it.
That's several thousand elected representatives in more than four dozen deliberative assemblies. That's enough people thinking and arguing about the change that, at the very least, any ways in which it's plain stupid come into the light. And if most informed people in the country don't like it, chances are it won't happen after all. In Britain, on the other hand, we made up our mind to a change of the same weight between breakfast and elevenses, as part of rearranging chairs round a table.
This is not to say we should have a written constitution. There are many reasons why we should not and I hope for a chance to go into them later. It is to say that we should operate our unwritten constitution in the right way.
A constitution is not just a body of basic law. It is a habit of mind which respects that law. The words of the basic law may be etched in brass, but the habit of mind only lasts if our polity practices it daily. Any constitution, written or unwritten, if it is too often altered, and particularly if it is altered capriciously, weakens.
In the second world war parliament prolonged itself beyond five years. This was a big bend in the constitution, but it didn't corrupt our political culture because everyone could see why it was a good idea. But Tony Blair is not just making large and sudden changes to our institutions; he is making changes that serve no purpose. The House of Lords was not making stupid or evil decisions. Very few people were marching under banners demanding a parliament in Cardiff. I think nobody in his right mind would doubt the British judiciary is independent of the executive. Yet we keep changing the constitution.
The result is that a change in the constitution seem less and less of a big deal. We are less shocked today by the eradication of the Lord Chancellor than we would have been five years ago. If we go on bending the constitution back and forth for another decade, so we get the idea it's a naturally bendy thing, then we will grow unshockable by restrictions on jury trials (vexatious and expensive as they are). We will no longer fret at suspension of Habeas Corpus (whatever that is). In the end we might not even falter if parliament prolonged itself by more than five years (laws don’t make themselves you know).
This is not happening at once, or even over years. But over decades, this is the direction we are going in. The end of this road is a political culture with no idea which way is up. This will mean a constitution that, though much more clearly written down, is also a good deal weaker. It will be a sad irony to get in this state by our Prime Minister wantonly pulling the one lever of the unwritten constitution he seems to approve of – his power to alter it at will.
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Mark wrote on 3 Dec 2008
Leave it alone! Please don't change just for the sake of change. It is a superb constitution,mmmmmmmm, it does not need to be change - it works
Tyrone wrote on 17 Nov 2008
It needs to be changed, too one-sided, taboo views of everything, someone else is opposite,
So I have to suffer, no I think not!
dede wrote on 6 Feb 2008
Yeah i am totally con for changing the Constitution too...
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Kari wrote on 28 Sep 2006
I truly Dont understand why the constitution today is changing. So, i was woudering if you
Could tell me why is it changing today. I dont think that the constitution should even
change like you were saying, if we keep on changing the constitution today then its going to be
nothing anymore and keep doing it.
Thanks,
Kari Rosa
wrote on 25 Jun 2005
wrote on 18 May 2005
Ed King wrote on 6 Oct 2003
Only wanted to remark that the Supreme Court is part of our checks and balances system of government. Though it is technically an unelected body, it still is pretty much of the people's choice in that they are nominated by the President and approved by the Senate. The Supreme Court may be over-ridden in a decision by Congress and President so long as it is ratified by the states, and to remove it removes the check on the Congress