One of the basic maxims of American political thought is that having a written constitution is necessary to protect a nation from tyranny.
My own view of the utility of written constitutions is more nuanced. In the real world, there are times when written constitutions are necessary, but there are also times when they are useless, or worse than useless.
Imagine, for a moment, that you are brought back in time to late 1945, and given a choice of living in one of two European countries. One of these countries is a federal republic with a written constitution which guarantees freedom of speech, the press, and religion, the separation of powers, and all the other rights and liberties which citizens of a modern liberal democracy generally expect to have. The other country is a monarchy with no written constitution.
Most Americans wouldn’t know any better than to say that they would prefer to live in the federal constitutional republic. Only a minority would recognize that the first country I described is the Soviet Union, and the second one is Great Britain.
Yes, you read that right. The Soviet Union had a written constitution (actually, it had several written constitutions; new ones were adopted in 1924, 1936, and 1977.) Its constitutions protected freedom of speech, freedom of the press, and freedom of religion. They enforced the separation of powers, and limited the role of the head of state. (The head of state at the time was a man named Mikhail Kalinin, who held that role from the USSR’s creation in 1922 until his death in 1946. Most westerners have never heard of him.)
Also, none of that had much practical impact on the way that the Soviet Union was governed. That was because, under the soviet system, while the constitution might say a lot of nice-sounding things, those things meant whatever the Chairman of the Communist Party wanted them to mean.
If the Chairman interpreted “freedom of speech” in a way that still allowed for the summary execution of dissidents, then the summary execution of dissidents was constitutional. The Chairman’s interpretation was the only interpretation that mattered.
So while the USSR had a written constitution, it also had an unwritten constitution. And during that particular period of soviet history, the unwritten constitution could be summed up in a single sentence: Josef Stalin must be obeyed.
Great Britain also had, and still has, an unwritten constitution. Unlike the USSR, Britain never had a written constitution to go along with its unwritten one.
Also, the unwritten British constitution differed from the written soviet constitution in that it provided meaningful protection to the liberties of the people. How was it able to do that, despite being unwritten? Because the British constitution consisted of a set of commonly accepted norms of how a government should function, and deviating from those norms could cause civil unrest, mutiny in the armed forces, or the removal from office of the party responsible, even if that party was the King. (Have you ever wondered why the Stuarts no longer sit on the British throne?)
What am I getting at here? Well, written constitutions are simply not as important as many Americans think. What matters most, in the end, is not whether the people’s rights are written down in a single place, but whether or not the government can violate them with impunity.
As I’ve said before, a constitution that means whatever the people in power want it to mean is the functional equivalent of no constitution at all.
Which is not the same as having an unwritten constitution.
For example, the unwritten British constitution has done a fairly good job of protecting freedom of speech, within reasonable limits. The United States, with its written constitution, has also protected free speech, within reasonable limits. (Remember that Justice Holmes’ famous remark about there being no right to shout “Fire!” in a crowded theatre dates from 1919, long before the present age of judicial activism, and the First Amendment has coexisted with libel law since 1791).
Both countries, then, accept limits on free speech; the difference lies only in who gets to decide what is an appropriate limit....
Read the rest at TwilightPatriot.com: The Truth About Unwritten Constitutions
