A Written Constitution: Power, Protection, And Progress

A written constitution is a formal document that establishes a system of government and laws for a country. It outlines the rights and responsibilities of citizens, and the powers and limits of the government. The process of creating a written constitution can be complex and time-consuming, and it is often seen as a foundational step in establishing a country's legal and governmental systems. While some countries, like the United States, have a written constitution, others, like the United Kingdom, have an unwritten constitution that is made up of various sources, including common law, conventions, and statutes. The debate around having a written constitution is ongoing, with some arguing that it provides clarity and protection of rights, while others believe that an unwritten constitution allows for more flexibility and adaptation to changing circumstances.

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To establish a government and determine its relationship with the people

A written constitution is a crucial step towards establishing a government and determining its relationship with the people. It provides a clear framework for the functioning of the state and the rights of its citizens. The process of drafting a written constitution allows for a comprehensive outline of the powers and responsibilities of the government, ensuring that it serves the interests of the people effectively.

One of the key functions of a constitution is to distinguish between the government and the State. This distinction is essential to protect the enduring, impersonal authority of the state from the government of the day, which is inherently partisan. A written constitution helps restrain the government and simultaneously enhances the authority and legitimacy of the state. It ensures that the government's powers are balanced and that it is obligated to control itself, as James Madison pointed out in "The Federalist." Madison's insights recognized that powerful leaders would inevitably seek to accumulate greater power, and thus, a written constitution serves as a check against such tendencies.

Additionally, a written constitution provides a foundation for the rights and liberties of citizens. For instance, the United States Constitution, ratified in 1787, established legislative powers, outlined the composition of Congress, and set age and citizenship requirements for representatives. It also addressed the admission of new states, guaranteed a republican form of government, and provided for the common defence and general welfare of the people.

However, the absence of a written constitution does not necessarily imply a lack of constitutional order. Countries like the United Kingdom, South Korea, and Australia have unwritten constitutions, which are a mixture of written documents, conventions, and common law. While the UK's unwritten constitution has faced criticism for its weakness in restraining parliamentary sovereignty, it has also allowed for flexibility and the coexistence of different visions of the state.

In conclusion, a written constitution is a valuable tool for establishing a government and defining its relationship with the people. It provides a clear framework for the government's powers and responsibilities, safeguards against the concentration of power, and protects the rights of citizens. While the process of drafting a written constitution can be challenging, it ultimately strengthens the foundation of a nation and its governance.

To maintain the distinction between the government and the state

One of the key functions of a constitution is to maintain a distinction between the government and the state. A written constitution is necessary to protect the enduring, impartial authority of the state from the government of the day, which is necessarily partisan. It serves to restrain the government and bolster the state's authority and legitimacy.

The absence of a written constitution can result in difficulties in differentiating between the government and the state, leading to challenges in holding them accountable. A written constitution provides a clear framework that defines the roles and responsibilities of each entity, ensuring they act within their designated boundaries.

In the context of the UK's Brexit process, the absence of a written constitution has been noted. The unwritten system has exposed the weakness of the Supreme Court, with decisions tending to reinforce parliamentary sovereignty. For example, following the Cherry/Miller case, a Conservative MP proposed abolishing the Supreme Court, which could be accomplished through a simple Act of Parliament in an unwritten system.

A written constitution would provide a higher law for courts to uphold, strengthening their position. It would also help maintain the rule of law, ensuring that all persons, institutions, and entities are accountable to the same set of laws. This includes the government, which would be subject to the constraints and limitations outlined in the constitution.

Additionally, a written constitution can establish the relationship between the government and the people, as seen in the United States Constitution, which determined the relationship between the government, the people, and the states. It can also enable the government to control the governed while also obliging it to control itself, as James Madison pointed out in The Federalist Papers.

To ensure civil and political rights, stable institutions, and public confidence

The UK's unwritten constitution has been criticised for its failure to adequately protect civil and political rights. The absence of a codified constitution means that the UK's constitutional order relies on a mixture of written documents, conventions, and common law, which may not effectively safeguard the rights of citizens.

A written constitution would provide a clear and explicit bill of rights, outlining and protecting the civil and political liberties of the people. This would include rights such as freedom of speech, freedom of religion, and protection from unreasonable searches and seizures, as well as civil rights like the right to protest against government policies and the right to a fair trial.

Additionally, a written constitution can contribute to stable institutions by establishing a clear division of powers and a system of checks and balances. James Madison, in "The Federalist," argued that the Constitution should enable the government to control the governed while also obliging it to control itself. The US Constitution, for example, divides power among the legislative, executive, and judicial branches, preventing any one group from dominating and protecting against the accumulation of power by a few.

A written constitution can also enhance the authority and legitimacy of the state. It can help maintain the distinction between the government and the State, protecting the enduring, impersonal authority of the State from the partisan nature of the government of the day. This distinction is crucial for preserving public confidence in the State's legitimacy and ensuring that the government acts in the best interests of all its citizens.

However, it is important to consider the potential challenges and criticisms of adopting a written constitution. Some argue that a written constitution may open unnecessary questions, such as whether to retain the monarchy, and that there is value in allowing different visions of the state to coexist within a single constitutional order. Additionally, the process of forming a written constitution can be complex and may be perceived as an intervention in existing political processes, particularly in the context of Brexit.

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To enable the government to control the governed and oblige it to control itself

The question of whether a country should have a written constitution is a complex one, and the answer depends on a variety of factors, including the country's political culture, history, and current circumstances. In the case of the United States, the Constitution was created to establish the government and determine its relationship with the people and the states. One of the key challenges in creating a constitution, as James Madison pointed out, is to "enable the government to control the governed; and in the next place, oblige it to control itself."

Madison's argument highlights the importance of a written constitution in maintaining a balance between governmental control and self-control. By dividing power among the branches of government and creating a system of checks and balances, the Constitution aims to prevent any one branch or group from dominating and amassing greater power. This is particularly important given the assumption that human nature will always seek power and that leaders will inevitably try to expand their influence.

A written constitution provides a clear framework for governing, outlining the powers and responsibilities of each branch of government. It establishes a set of rules and principles that guide decision-making and policy formulation, ensuring that the government's actions are transparent, accountable, and fair. By dividing power and creating checks and balances, the government can be controlled and held accountable for its actions, preventing abuses of power and protecting the rights of citizens.

Additionally, a written constitution can enhance the legitimacy and authority of the state. It provides a higher law that reinforces the enduring, impersonal authority of the state, separate from the partisan interests of the government of the day. This distinction is crucial for maintaining stability and public confidence in the country's political system.

In the context of the UK, the debate around a written constitution has intensified following the Brexit process and the departure from the European Union. While some argue that a written constitution is necessary to provide clarity and effectiveness in sustaining civil and political rights, stable institutions, and public confidence, others suggest that the current unwritten constitutional order has not been shown to be deficient and that a written constitution could be perceived as an intervention in the Brexit process.

In conclusion, a written constitution is a valuable tool for enabling the government to control the governed and obliging it to control itself. It establishes a clear framework for governing, divides power to prevent its concentration in a single branch, and enhances the legitimacy of the state. While the decision to adopt a written constitution depends on a country's specific context and political culture, it can provide a robust foundation for a fair, transparent, and accountable governance system.

To avoid the perception of intervention in the Brexit process

The UK is one of just five countries in the world without a written constitution. The process of forming a written constitution now would be perceived as a surreptitious intervention in the Brexit process itself, with elites curtailing the principle of Parliamentary sovereignty just at the point that democracy reasserted itself.

The UK's uncodified constitution has always maintained that the Queen must remain impartial and not be dragged into politics. However, Brexit has challenged this principle. The politically-charged decision to prorogue Parliament escalated disagreements about the constitution, how conventions are being interpreted by the government, and what powers Parliament has at its disposal. Conventions and prerogative powers are being undermined because neither side trusts the other to respect their usual interpretation.

The Brexit process has also raised questions about the meaning of 'sovereignty' and whether Britain's relationship with the EU has curtailed it. It has also brought up questions about the extent of executive prerogative power and when it must be constrained by Parliament.

A written constitution would help to maintain the distinction between the government and the State. It would protect the enduring, impersonal authority of the State from the government of the day, which is necessarily partisan. It would also provide a check against discriminatory laws, a foundation for laws that advance equal opportunities, and ensure access to health and education, which are foundational to equality.

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