This Side of the Pond

The United States is notorious for the pride it takes in the Constitution – and rightfully so. It’s held up for good reason as the sacred document that protects this nation from tyranny and keeps the great machines of government working as intended.

All the recent talk about this hallowed piece of writing got me wondering. Why doesn’t my own country have a written constitution?

It turns out there are many reasons the UK constitution remains an ephemeral thing, never captured in the confines of a document. But the crux of the thing is that it’s probably far too late to bother.

Our constitution is made up of a mish mash of laws, conventions and practices that have been evolving over the course of centuries. This began all the way back in 1215 with the Magna Carta.

It was the first time anyone had put into writing that a monarch couldn’t do as he pleased. King John’s barons had been growing peevish about a tax to pay for an army to fight the French, which had replaced the traditional practice of each baron providing knights for military service.

Eventually, those barons managed to drive King John out of London and take the city for themselves, forcing him to negotiate. What transpired was both peace and the beginnings of democracy in a document that said the king was subject to the law as agreed with the barons he governed.

It was the start of something beautiful – or at least it would have been, until it all went horribly wrong. Neither side bothered to meet their commitments and the Pope eventually annulled it.

This, too, went swimmingly, and led to the First Barons’ War, which began with a group of rebels who tried to put a French prince on the throne and ended with the Magna Carta being restored. Half a century later, we came up with the Provisions of Oxford, which is arguably the first written constitution and created a council of 24 members through whom the king governed, supervised by a parliament.

We didn’t change much then until the seventeenth century, when we set out rights and liberties in the Petition of Rights, which included freedom from arbitrary arrest and punishment. It boggles the mind that such a thing was necessary, but there you have it.

The Bill of Rights of 1689 then made it clear that parliament had primacy over the monarch and must meet regularly, with free elections to the Commons and free speech in parliamentary debates. That’s also where you’ll find the first reference to freedom from “cruel or unusual punishment.”

In 1701, we then capped these things off with the Act of Settlement, which controlled succession to the crown and established judicial independence. All of these documents and many more since have laid out the laws and conventions of the land.

They also helped to inform the Founders as they devised your own Constitution, which took the best ideas from what went before and transformed them into something brand new. A clean slate, as the Magna Carta itself was once supposed to be.

Eight hundred years later, there are frequent debates as to whether the UK should finally sharpen its pencil and write these things down. The government has been threatening to do so for years, but it’s not as simple an undertaking as it might seem.

Why haven’t we done so already? Because we’ve been too stable for too long. There have been no earth-shattering events within Britain that would force us into drawing up some rules.

We did give it a go. In fact, we had both the world’s first and second ever written constitutions. The first came about during one of our civil wars when Oliver Cromwell managed to overthrow the king and turn England into a temporary republic, ruling as Lord Protector. He’s most famous for the ordinance that made Christmas illegal, which remained in place until the monarchy was restored.

His deputy also managed to pass the Instrument of Government, which introduced a written constitution that lasted a couple of years until Cromwell decided a period of military rule would be much nicer. It was replaced by the Humble Petition and Advice, our second and last codified constitution, which was then repealed when we decided we quite liked having a monarch after all.

Unlike us, other European countries experienced revolts and wars that more clearly forced their hands, such as when Louis XVI lost his head because his wife kept trying to force feed everyone cake. After enduring two civil wars, Great Britain was too busy inventing scones for all that revolution business, and we never did like following the lead of the rest of the continent.

We preferred to let our democracy evolve over the course of centuries. Rather than put it into a single helpful document, we thought we’d torture political scholars by making them read through everything that’s ever been written.

Some might say it would be of use to have all the rules in one place, and it would make it much easier for we the people to figure out what our rights actually are. That’s hard to argue with, but other folk feel things are working perfectly well as they are and there’s no need to go and confuse the matter.

The task itself would be daunting. What should go into it, and would it need to go into extreme detail or just include the broad strokes? If the former, you’d have a tough time getting anyone to read it.

The better argument for an uncodified constitution is that it’s more flexible: it’s easier to make adjustments when we realize we’ve been doing things wrong. And when you’ve been doing democracy the trial and error way for 800 years, it’s not uncommon to discover some lingering flaws. Some recent changes to our intangible constitution, for example, include the abolishment of most hereditary peers from the House of Lords and the introduction of rights for individuals in the Human Rights Act of 1998.

So there you have it: Britain has no written constitution because creating one after all this time would fall somewhere between difficult and impossible. Considering how fundamental the Constitution has been to America’s history, it seems we have even more to thank the Founders for than I realized.