A Tale of Two Constitutions

Britain, land of freedom.

Blair: bowed to public opinion

Two countries. One has a constitution with a bill of rights. These documents limit the power of the elected branches. They cannot be repealed or easily amended. Although neither one says so explicitly, there is a rock-hard tradition that the courts, and not the legislature or the executive, have the final say over their interpretation. No elected official would claim more authority than the Supreme Court in interpreting the constitution. (The only important national institution that claims a right to disregard Supreme Court rulings is the New York Times.) Put it all together, and an individual citizen can feel pretty secure against the tyranny of the majority or a runaway government. Or so we suppose.

The other country has what it calls a constitution, but it is a metaphysical conceit—an ill-defined set of ideas and values floating in the ether, not an actual document. Courts do refer to it in deciding cases, but there is no certainty about what the words are, let alone what they mean. There is no established principle that the courts may declare acts of the legislature unconstitutional. The legislature, meanwhile, is sovereign and can trump this constitution by passing an ordinary law. In effect, the individual has no legal protection against the tyranny of the majority.

Or at least he or she didn’t until recently. The first country is the United States. The second is Great Britain. In recent decades, Britain has ceded some of its sovereignty to what has evolved into the European Union. This includes some Europe-wide human rights, enforceable by courts even to the point of overturning acts of Parliament. But it’s all pretty new. And all these constitutional arrangements, including ours in the United States, require what they call in the theater a “willing suspension of disbelief.” They work because we all have agreed that they should work. As Stalin allegedly said about the pope, how many divisions has the Supreme Court?

So, in which country are individual rights more secure? Legally, the clear answer is the United States. But there’s something else, something hard to describe because it’s essentially a “love of freedom,” but it’s earthier than that, which I think is more deeply rooted in the older country than the newer one, which broke itself off from the old one over precisely this issue of human freedom. Maybe it’s because they don’t have the crutch of a real bill of rights. Or maybe it’s because their freedom was seriously at risk in the memory of many who are still alive (i.e., in World War II). Or maybe it’s tied in with the landscape and the national character in a way that Orwell was able to describe but I cannot.

Anyway, the contrast between the two countries was on display this week. On Wednesday, the British Parliament humiliated the prime minister, Tony Blair, by solidly rejecting his proposal to let police keep someone in custody for up to 90 days without bringing charges. Although the political interest was in how many members of Blair’s own Labor Party deserted him, it was the overwhelming opposition by Conservatives that killed the thing. To an American, it takes a bit of effort to wrap your head around this: The prime minister, who leads the rough equivalent of the Democratic Party, said that the sacrifice of freedom was necessary to the war on terror. But the rough equivalent of the Republican Party said that individual rights are more important.

We need not leap to the assumption that this was entirely a matter of glorious principle. No doubt opportunism and the yin/yang of politics played a role: Blair became a ferocious supporter of George W. Bush’s war in part to show that a party of the left could be hard-nosed about this sort of thing. And once the war became the dominant issue of British politics, it became only natural that the Tory opposition would find reasons to oppose it. But even if opportunism is what led Conservatives to oppose 90-day detention, there was a language and a set of values available to them to make the case seem at least principled and sincere. It has to do with the traditional conservative suspicion of government and respect for the individual—even the individual accused of terrorism.

Meanwhile, the United States, which once held these truths to be self-evident, is running prison camps in Eastern Europe and telling nobody about them until the Washington Post finds out. President Bush says that we don’t and never would practice torture, but he is against outlawing it, for reasons he is unable to articulate but must add up to “just in case.” And Vice President Cheney lobbies to exempt the CIA. So, it’s good to know that the Department of Transportation will not be torturing people. And perhaps the CIA could get people to wear seat belts. (If Bush and Cheney get their way, the agency will certainly have ways of making you buckle up.)

It could be that all these developments are constitutional. Maybe you can’t enforce the U.S. Constitution in Poland. But the Constitution is not supposed to be just an obstacle course for officials who are trying to get around it. It ought to inspire policy even when it doesn’t impose policy. Ditto the Geneva Conventions. Why would you even want to be clever about reasons it might not apply here or there? Nor is the Constitution supposed to be divvied up like patronage, with the First Amendment for liberals, the Second Amendment for conservatives, and so on.

Laws, including constitutions, are supposed to have sharp edges. Even without the help of clever lawyers, they define what is permissible in the process of defining what is impermissible, and they send a strong message that if it’s not impermissible, it’s OK. By contrast, a bone-deep desire to be left alone, a tolerance for eccentricity, a quick resentment of bullies—these are qualities that Britain has more than America, I think. And they may be more important.