This is a response to Linda Colley’s article in the May issue of Prospect
The case for an unwritten constitution gets rather short shrift from Professor Colley, who points out that between 1720 and 1820 there was something of a boom in written constitutions, and that persisted as unified new nations were constructed, such as Germany and Italy, or as former colonies became independent states. What she does not say is how many of those new written constitutions were abandoned, discarded or twisted into shapes their creators would not have recognised.
England’s unwritten constitution was built on a framework of particular constitutional events, like Magna Carta, the outcome of the Civil War, the 1701 Act of Settlement (which created a Protestant succession and a constitutional monarchy), the 1707 Act of Union (with Scotland) and the C19 and C20 legislation to extend the franchise to all adults, male and female. The great advantage of this unwritten constitution was its flexibility, its capacity to adapt to a fast changing world. Slavery was abolished in Great Britain by a single legislative act. Catholics were similarly emancipated. Good race relations and gender equality, admittedly still in the process of being fully realised, were established by a series of legislative steps. In some other parts of the world, including many with written constitutions, these issues have proved to be bitterly divisive.
Written constitutions often reveal characteristic weaknesses. A common weakness is the aspirational constitution. While Mikhail Gorbachev was General Secretary of the Communist Party of the Soviet Union between March 1990 and December 1991, a small team of constitutional advisers (of which I was one) worked in the Kremlin on a new Russian constitution. One of our hardest problems was persuading our Russian hosts that writing an aspiration into a constitution, such as the right to a job or to a dwelling, in no way guaranteed such rights actually being realised. Unmet aspirations are the seeds of cynicism and disillusion.
A second weakness lies in the interpretation of written constitutions. It is hard to believe that the wise founders of the United States, who wrote its elegant constitution, intended the second amendment, the right to bear arms, ratified in 1791, to enfranchise every adult to carry lethal arms everywhere he or she went, but that is where we are today. Nor could they have envisaged that the first amendment would today, following the extraordinary decisions…