This week, the United Kingdom’s Supreme Court heard arguments over whether Prime Minister Boris Johnson unlawfully misinformed the queen when he asked to suspend Parliament for five weeks in order to limit parliamentary debate over Brexit. At the court’s disposal as it deliberated was a record of statutes, conventions, and common law that express the norms of British constitutional law. Notably missing was a written constitution that explicitly delineates the full reach of executive power. Britain doesn’t have one.
Last Thursday, John Bercow, the outgoing speaker of the House of Commons, entertained the possibility of adopting a written constitution to stop “executive malpractice or fiat,” suggesting that a constitution enshrined in ink may have helped the United Kingdom avoid its present constitutional crisis. Many in the United Kingdom take pride in their unwritten constitution; unlike the Americans, the French, or the Germans, they don’t need codified rules to guarantee stable government. Things have been just fine. Now, the ongoing predicament provides an argument for doing things differently.
But first, we should ask ourselves, why do we assume that written constitutions are the norm at all? How did the U.S. end up with one?
That question is the subject of a recent article by legal historian Nikolas Bowie that exhumes a novel origin story of our written Constitution. Disputing the orthodox story that the Framers “discovered” written constitutionalism, Bowie argues that the American Constitution is a descendant of the 17th-century Massachusetts Bay Company charter, which functioned as a “Charter Constitution” a century and a half before the founding of the nation.
Corporate charters, issued by the English crown, gave municipal and trading corporations like the Massachusetts Bay Company special permission to govern people and territory on the crown’s behalf. Bowie claims that the Massachusetts Bay Company, which governed most of New England from 1629–86, was unique in that its founders “took their charter and corporate government out of Europe and across the Atlantic Ocean so that residents of New England could govern themselves.”
For the company’s founders and the residents of New England, the text of the corporate charter served a dual purpose: as a consensual source of sovereign authority that safeguarded them from English rule and as a constitution of their civil government. The charter gave the corporation “full and Absolute power and Authoritie to correct, punishe, pardon, governe, and rule” all New England residents, granted the authority to pass “Lawes and Ordinances,” and bestowed upon British residents in the colonies “all liberties and immunities of free and naturall Subjects … as if they and everie of them were borne within the Realme of England.” As the colonists faced greater threats of dissolution from the crown, the “Charter Constitution” gained increasing importance in the social and political culture of New England. And although the Massachusetts Bay Company charter was unique in its independence from the crown, by the 1760s, almost all the colonies were governed by “charter governments.” Bowie shows that these charters provided the templates for America’s first written state constitutions, and the modern U.S. Constitution as it exists today.
The story Bowie tells illuminates two initial advantages of written constitutionalism: clarity and accessibility. Thomas Paine proudly compared the unseen British Constitution with the American Constitution “to which you can refer, and quote article by article in a visible form.” Similarly, the Massachusetts Bay Company charter clearly expounded the rules of civil government and delineated the limits of the crown and Parliament’s authority in New England. Colonists frequently referred to the written text of the charter constitution to explain how the British had overstepped their constitutionally delegated authority. The clarity advantage is what motivates Bercow’s proposal for a written constitution today: The prime minister’s authority to suspended Parliament for an extended period of time should be clearly expressed.
The written constitution also possesses the virtue of accessibility. Put simply, everyone can read it. Everyone has access to the rules and principles that constitute the polity. Bowie points out that the residents of New England turned to interpreting their charter “in domestic debates over immigration, voting rights, the separation of powers, and virtually all other controversial issues.”
Understood on their own, clarity and accessibility are not the most eye-catching perks. Their importance, however, is tethered to the more fundamental value of democratic self-governance—that is, our ability to live according to rules realized by the various channels of political participation. This weightier end is served well by a constitution that is clear and accessible. Clarity limits the kinds of executive discretion that are conducive to arbitrary and unaccountable rule. Accessibility ensures that the people are aware of the terms of agreement against which representatives can be held accountable and the terms in which to engage in political argument.
Put together, these benefits make possible a population actively engaged in constitutional politics and self-governance. One of the most striking aspects of Bowie’s story is the degree to which colonists revered their corporate charter and treated its text as the focal point of public discourse.
Modern American political discourse is similarly gripped with the meaning of our written Constitution. Think of the ongoing and heated debates about the right to bear arms, free speech, or equal protection of the law. The debates we have about who we the people are, and what we the people stand for, are in reference to a written constitutional text.
The story of charter constitutions also reminds us that a written constitution on its own is not enough for a flourishing democracy. A clear and accessible constitution is only valuable when paired with an engaged public that cares about preserving constitutional norms. It also depends on the participation of other public actors—politicians and judges, for instance—who have fidelity to the constitution.
It’s also worth mentioning that our written Constitution set a new norm for written constitutionalism abroad. In the centuries following ratification, global constitutional drafters often used the U.S. Constitution as a template, emulating its enumeration of the separation of powers and the basic rights of citizens.
The U.S. and the U.K. share a culture of constitutionalism. The constitutional conventions that uphold parliamentary supremacy in the U.K. have no doubt stood the test of time. Underlying these conventions is the simple principle that sovereignty resides within Parliament, not the executive or the crown.
In theory, it’s legal for the queen to refuse to give her assent to a bill passed by both houses of Parliament, but that hasn’t happened since 1708. When Johnson suspended Parliament last week, the House of Commons acknowledged the breach of implied constitutional decorum, breaking into chants of “shame,” with one Labour MP throwing himself across Bercow’s chair in an attempt to prevent the Speaker from leaving. An estimated 10,000 protestors gathered in central London in response to Johnson’s prorogation announcement.
If British constitutional culture is intact, why adopt a written constitution?
The problem is that the unilateral suspension of Parliament is itself a reason to think that there are cracks in the British constitutional infrastructure. It suggests that greater clarity around the delegation of power is desirable.
I’m not saying that writing down a constitution is, on its own, a quick fix to democratic defects. Clarity is not often the first word that comes to mind when we think of the U.S. Constitution. Although we may have more specific words to latch on to in public debate—the right to bear arms or freedom of speech—these concepts are themselves highly ambiguous. Our Constitution suffers from serious interpretative ambiguities and an overly burdensome amendment process, among other issues. But these are not problems with our Constitution being written; rather, they are problems with the way our Constitution is written. This isn’t to say that the United Kingdom, in committing its constitution to ink, should copy the written content of the U.S. Constitution. Surely, if done right, Britain will come to see its constitution as superior.
Some may object that Americans’ reverence for the Constitution’s text is overly zealous. It keeps us anchored to an unfamiliar and largely irrelevant time, when political values were very different than what they are today. Unreflective reverence of the written text is no doubt a challenge. In order to realize more fully the virtues of written constitutionalism, the text itself must be realistically amendable—responsive to the changing public will. But the question is, given an unwritten constitution, how should constitutional decision-making take place—at a constituent assembly or behind the closed doors of the judge’s chambers?
There will always be constitutional shortcomings. But they should be resolved by the people in a democratic process of writing and rewriting, rather than solely through judicial clairvoyance.
As difficult as it may be, it’s worth stepping back for a moment from the present constitutional dispute in the U.K. and remembering that the core of the case for written constitutionalism transcends this specific dispute. A written constitution would be more than a bandage for the British constitutional order; it would be a public and democratic renewal of the constitutional order itself.
Initiating the process of constitutional drafting and ratification in the U.K. would be a moment of extraordinary potential and the ultimate act of democratic legitimation. Whether through representative convention, direct participation, or mixed constituent assembly, the process would be the clearest instance of self-legislation and authorship of the basic rules of the democracy. It is a chance for the British people to enshrine in writing their most basic constitutional ideals. They should take it.
