Are Constitutions Necessary? | History Today
‘Constitutions are not just for the rulers’
H. Kumarasingham is Reader in Politics and History at the University of Edinburgh and co-editor of The Cambridge Constitutional History of the United Kingdom (Cambridge University Press, 2023)
The UK deigns to go without a codified constitution with an allied ‘refusal to define’ propensity in constitutional matters, as Sir Ivor Jennings once put it. This enables it to be constantly changed, contested and put to use in ways that might appear startling to past and future generations, not to mention our own. More than rules and laws, constitutions are adaptable phenomena necessary for society.
Constitutions are also not just for the rulers. The British Constitution, especially from the 19th century, became a cultural and national emblem of the United Kingdom’s greatness and superiority. The Constitution, it was believed, accorded the English an exceptional status. As Charles Dickens’ pompous Mr Podsnap put it to a European visitor in Our Mutual Friend (1865):
‘We Englishmen are Very proud of Our Constitution, Sir. It Was Bestowed Upon Us By Providence. No Other Country is so Favoured as This Country.’
Such sentiment about the Constitution was not unique to the UK. Since the Enlightenment at least, as Linda Colley reminds us, constitutions were seen globally as a ‘trademark’ of modernity that helped legitimise a state, nation or regime. The migration of constitutional ideas stretched to every corner of the globe. Britain’s influence, however, was the most profound in the modern age. This was entirely due to the British Empire. While the British long believed their system incapable of being understood or used by foreigners, during Empire the fundamentals of the British Constitution and its associated brand of parliamentary democracy were near universal objectives for those under imperial rule, searching for autonomy. Even in the era of decolonisation, independence movements sought to build their new states with lessons from the British Constitution and the often-contrasting examples of colonial government, such as India and Jamaica. This imperial constitutional legacy remains critical to understanding the postcolonial world’s challenges with democracy. In this, once more, constitutions, particularly the British one with its historic evasion of definition, were being interpreted and reimagined for new purposes as a necessary tool of power and identity.
‘If the mechanism for constitutional interpretation is antidemocratic, then what good are they?’
Evelyn Atkinson is Charles E. Lugenbuhl Associate Professor of Law at Tulane Law School and the Murphy Institute
Are constitutions necessary? In the United States, yes: the Constitution is a central part of the federalist system, the fulcrum of the balance of power between the federal and state governments. The result is a hierarchy of laws, whereby the states have all the powers that normally belong to governments, except for those the Constitution gives to the federal government, which trump all state laws.
One illustration of the importance of the Constitution in this balance involves civil rights. In the immediate aftermath of the US Civil War, the former slave states passed ‘Black Codes’ limiting the rights of Black Americans, in an attempt to re-institute slavery in all but name. In response, in 1868 Congress passed and the states ratified the 14th Amendment, which guarantees to ‘all persons’ the ‘equal protection of the laws’ and the right not to be ‘deprive[d] of life, liberty, or property without due process’. In conjunction, Congress passed various Civil Rights Acts that protected the rights of Black Americans to own property, sue and be sued, even patronise restaurants and theatres – rights all formerly reserved to state oversight. The 14th Amendment attempted to reorganise the federal structure of the US government by adding to the powers of the federal government.
I say ‘attempted’ because there is a catch. For good or ill, the final arbiter of constitutional interpretation in the US is the Supreme Court. In the decades after the Civil War, the Court interpreted the 14th Amendment in ways its framers would arguably not have intended. First, the Supreme Court read the scope of the Amendment so narrowly that most of the Civil Rights Acts, it concluded, fell outside Congress’ powers, rendering the Acts unconstitutional and void. The Court simultaneously read the phrase ‘all persons’ so broadly as to include corporate shareholders, giving corporations the ability to challenge the constitutionality of state laws.
So the question to end on is this: are constitutions necessary? In a federalist system like the US, yes. But if the fundamental mechanism for constitutional interpretation is antidemocratic, then what good are they?
‘Even when constitutions seem redundant, they can find resonance’
Ben Lawrence is Teaching Fellow in Politics at SOAS University of London
The UK is one of a handful of examples that demonstrate that a formal, written document may not be entirely necessary. Yet, even in places where this type of law is seen as being less than fully effective at guiding behaviour (particularly that of the powerful), written constitutions can be helpful.
In Cambodia, for example, an ostensibly liberal democratic Constitution, promulgated as part of a UN-sponsored ‘transition’ in 1993, sits uneasily alongside a political reality of authoritarianism, impunity and corruption. From a distance, this incongruence suggests that the Constitution must not be worth the paper on which it was (somewhat hurriedly) written. However, despite an unfavourable climate the Cambodian Constitution still matters in profound, and at times unexpected, ways.
The Cambodian People’s Party (CPP), in power since the fall of the Khmer Rouge in 1979, successfully stayed afloat through the ‘third wave’ of democratisation largely by co-opting and then successfully weaponising the Constitution. The dissolution of the CPP’s main opponent by the Supreme Court (at the behest of then prime minister Hun Sen) before the 2018 elections, which saw the country return to single-party rule for the first time in 25 years, was both facilitated by constitutional processes and legitimised by constitutional arguments. Meanwhile, the handover of power from Hun Sen to his son, Hun Manet, was ensured by constitutional amendments made a year before, which prevented any contestation of the dynastic succession.
Yet, simultaneously, the Constitution has continued to provide a platform from which opponents to the CPP can challenge its hegemony. Since 1993 disparate groups have drawn upon the Constitution to frame acts of resistance that might have been hard to imagine – or at least hard to justify – without it. NGOs have helped indigenous highland groups to defend forests with constitutional empowerment programmes; Buddhist monks have led post-election protest movements despite being disenfranchised; artists have contested government censorship with their own interpretations of the state’s constitutional mandate to ‘preserve and promote’ national culture. Even when constitutions seem redundant, they can find resonance.
‘There was a sense that constitutional rules overlay deeper, more “real” identities and loyalties’
David Andress is Professor of Modern History at the University of Portsmouth
The whole French Revolution was about constitutions. A decision to create one, in June 1789, was the first real rupture with monarchical authority, from which all else followed. For more than two years, the National Assembly sweated to give the country a clear set of written rules to live by, pummelled by dissent and disorder on every side. Their achievement was so epochal that Maximilien Robespierre in 1792 founded a newspaper to defend it, even in the crisis of war, for fear that liberty would not survive without its scaffolding.
But the Constitution of 1791 fell, along with the monarchy, that August. The republican Constitution of 1793 was written, and voted for, but never implemented. A Constitution of 1795 replaced it after the Terror, and lasted four years, but every election held under it was tainted by purges and manipulation from above. After Bonaparte’s coup in 1799, further ‘Constitutions’ were explicitly less about the rights of citizenship than about rules for orderly obedience to authority.
What kept going wrong? One obvious answer is the power of emergency to demand the breaking of rules – something that afflicts many constitutions, even, and perhaps especially, those that try very carefully to codify the limits of such rule-breaking. But a broader point for reflection is the question of who a constitution is for. From 1789 French politicians were clear that they were writing rules for participation in a political ‘nation’ that already existed, and had goals and expectations that loomed over the individual rights they were codifying. They were thus strongly committed to limiting political participation to those they deemed trustworthy enough not to threaten that wider community. Radical activists, and republicans from 1792, insisted that ‘the people’ should have more uniform rights – but not the right to dissent from the narrowing line of wartime orthodoxy dictated from the national centre.
Throughout the revolutionary decade, the sense that constitutional rules overlay deeper, more ‘real’ identities and loyalties, entitled to act beyond such limits whenever necessary, poisoned every effort to treat codified rights and freedoms as if they were, indeed, the things that really mattered.
