From Words to Worlds: Exploring Constitutional Functionality

• 4. Constitutional Design
• Chapter
• Johns Hopkins University Press
• pp. 69-88
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CHAPTER EIGHT
Constitutional Limits

The time has come to revisit, and develop more fully, the notion of constitutionalism. For many, the primary function of a constitutional document is not necessarily captured in the seven chapters above. A constitution’s principal role, according to these observers, is not to articulate the polity’s aspirations, or to empower the main political institutions to enact public policy in the name of the sovereign, or even to design the regime’s political institutions in a self-conscious way. These are all important, but they are not the modern constitution’s primary function. Instead, the chief purpose for preparing a constitutional text is to act as an insurance policy against the possibility of random and arbitrary political rule. It is to establish a supreme authority—an instrument universally recognized as the fundamental law—in the hope that the polity will eventually inculcate the principle of limited government and the rule of law. The main reason to draft a written constitutional text in the first place, some say, is to provide a tangible barrier to the impulse of the sovereign (or, more accurately, practical reflections of the sovereign within the institutions of government) to turn against the comparatively powerless population. All other concerns of a constitutional document are essential but secondary. Consider the words of the nineteenth-century U.S. Senator John Potter Stockton. Constitutions, he said, are “chains with which men bind themselves in their sane moments [so] that they may not die by a suicidal hand in the day of their frenzy.”¹ The seventh and final function examined, therefore, is that of constitutional limitation, the role of modern constitutionalist charters to identify specific limits on the power of the sovereign. Its importance as a central function—perhaps the central function—of the modern constitutional experiment warrants its place as concluding the general examination of constitutional functionality found in this volume.

To be sure, modern constitutionalist constitutions are texts that aim to achieve a meaningful degree of restrained or limited political rule. As Cass Sunstein has written, “Constitutional provisions should be designed to work against precisely those aspects of a country’s culture and tradition that are likely to produce most harm through that country’s ordinary political processes.”² Even so, their other functions are no less important, nor can they be said to derive somehow from the broader principle of constitutionalism. What is probably most accurate is to claim that the mechanism of limiting political authority through textual means represents the greatest innovation of political rule in the post-Enlightenment period. Gordon Wood suggests that the American experiment with constitutional governance—where many of the historical ideas about limited government finally came together—represented a radical change in the way humans viewed political order. Referencing Thomas Tudor Tucker’s extraordinary 1784 pamphlet, Conciliatory Hints, Attempting by a Fair State of Matters, to Remove Party Prejudice, in which he “clearly and cogently” describes “just how far Americans had departed from the English conception of politics,” Wood writes: “In a brilliant passage, Tucker summed up what Americans had done in two decades to the conception of a constitution: ‘The constitution should be the avowed act of the people at large. It should be the first and fundamental law of the State, and should prescribe the limits of all delegated power.’”³ For Wood, as for Tucker, constitutionalist government through textual limitation represents the eighteenth century’s unique and remarkable contribution to the practice of politics.

Scott Gordon agrees: “The most significant feature of political organization is not that the nation-state has supplanted all other forms, nor that the domain of the state has grown so large, but that ways have been found to control its coercive power.”⁴ The historical development of the idea of constitutionalism, culminating in the modern penchant to rely on a single written instrument to constrain political power, is a remarkable story. In most cases constitutions are now seen as the polity’s primary touchstone against arbitrary government. Their framers imagine mechanisms that will help ensure that tyrannical and oppressive governmental rule is unlikely to emerge, but it is largely the responsibility of the document itself, and the credibility that text carries both domestically and internationally, that will deliver the goods. Doubtless, other forces, including the economy, the country’s political tradition, the social fabric of the society, and so on, will contribute significantly to the prospect of a constitutionalist constitution taking root in a particular place. And yet all of these factors would mean little if the text itself did not embrace constitutionalist ideals. The document must be the initial source of inspiration; it must act as the original point of reference for politicians and ordinary citizens to use when attempting to manage potentially abusive political authority. Controlling coercive power, although certainly not easy and always fraught with controversy, has been the primary mission of most constitutional framers since the end of the eighteenth century.

Examining the principle of constitutionalism requires that we juggle a number of related conceptual ideas. The heart of this chapter will be devoted to a theoretical understanding of constitutionalism, but to have confidence that any description of constitutionalism is more or less complete, we need to think beyond the realm of abstract theory to other aspects of the constitutional enterprise. It seems appropriate to begin, therefore, with a brief history of the concept of constitutionalism. When and where did the idea originate? How has it changed over the centuries? Then, as part of the examination of the theory of constitutionalism, I will first explore the relationship between constitutional limits and the human tendency to act self-interestedly, and then the connection between constitutions and social compacts. Finally, I will end the chapter by contemplating whether a polity requires a written constitution in order to qualify as constitutionalist, concluding with a brief discussion of the role of the judiciary in helping to realize a constitutionalist polity. Is it possible, we should ask, to conceive of a political regime that adheres to the principle of limited rule but still allows its government agencies to alter and implement constitutional rules with simple majoritarian support? Would that qualify as a constitutionalist polity? Does that polity need an independent judiciary in order to check the authority of the other branches, or is independence still not enough to ensure constitutionalism? These and other questions will be addressed below.

Historical Development of Constitutionalism

According to one source, “constitutionalism is descriptive of a complicated concept, deeply imbedded in historical experience, which subjects the officials who exercise governmental powers to the limitations of higher law.”⁵ Even though the term constitutionalism first appears only in the first half of the nineteenth century,⁶ the idea dates back many centuries, at least to the Ancients. Both Plato and Aristotle were concerned with the ordered structure of political and legal institutions, and the relationship between political power and higher law. Neither conceived of constitutions exclusively as formal, written documents; that would not become popular until after the American constitutional experiment in the late eighteenth century. And yet Aristotle in particular wrote extensively about “constitutions,” defining them as “the organization of offices in a state, by which the method of distribution, the sovereign authority is determined, and the nature of the end to be pursued by the association and all its members is prescribed.”⁷ He is famous for claiming that certain constitutional orders—democracies, monarchies, oligarchies, and so on—are more appropriate for certain polities and that the success of a new political regime will depend in part on its compatibility with a specific constitutional form. For Aristotle, the “constitution” represented the “most general aspect of law,” the broadest principles of the civil body politic, and the “life of the city.”⁸ It informed the work of the legislator whose responsibilities included crafting laws and decrees that would conform to the polity’s general constitutional values.

Other philosophers of the ancient period contemplated the image of constitutional order, but it was during the Middle Ages that the term constitution more consistently reappears. It takes on a somewhat sharper focus in that the concern of most medieval jurists was to establish the limitation of political power under a religious conception of higher law. First, a sixth-century ruler of Constantinople, a man named Justinian, commissioned a group of ten jurists to codify the laws of his empire. The task was difficult and lengthy, but the result was impressive. The “Book of Laws” identified a “total of 4,562 enactments, all carefully arranged by subject matter and following the roughly twelvefold organization laid down in the ancient Twelve Tables (451 B.C.).”⁹ Justinian labeled the collection the Codex Constitutionum. Although technically not a constitution in the sense that it did not structure the institutions of the polity, Justinian’s book of laws would later be considered around Europe as the definitive collection of the Roman Law. The collection would also come to represent the entirety of man’s law at the time. Later, Thomas Aquinas would write about the natural law—the higher law established by God but known by reason—and its ability to limit the authority of the king. In Summa Theologiae, Aquinas implores future citizens to obey the laws set out by rulers and rulers to obey the dictates of reason. The problem, as Aquinas saw it, was that comprehending the breadth of God’s law (the law of reason) was next to impossible.

The introduction of Magna Carta in 1215 marked a significant development in the concept of constitutionalism. To that point, constitutional government was almost never limited government; the sovereign’s grip on political power was more or less boundless. Take Aquinas’ principal lesson as an example. He admits to being able to conceive of the limitation of power, but the practical reality of limited rule was far more difficult to achieve. Constitutional limits were not enforceable short of outright revolution. With the signing of Magna Carta, however, a sovereign authority agreed, for the first time in history, to specific and tangible limits on its power. Those limits came, not from a higher power—a God or deity—but rather from a collection of subordinate citizens. Moreover, that agreement was announced in the form of a written text, a contract of sorts between King John of England and his barons. The king, embroiled in an ongoing war with France, sought to raise money and troops for the military campaign. Unfortunately, support was not easy in coming, and John was forced to resort to increasingly tyrannical measures to realize his objectives. These abusive measures included the confiscation of estates, the imposition of unjust taxes, and even the seizing of children as a means to ensure that certain subjects remain in line. After a military defeat in the town of Bouvines in 1214, John imposed yet another tax, and the barons signaled that they had had enough. They confronted the Crown with a series of demands that amounted to a set of grievances against the king. Their concerns centered on two major areas: the administration of justice and the imposition of taxes. In all, close to sixty-five demands were made.

King John agreed to them all, and in the process consented to significantly more transparent limits on his own authority. The Great Charter, in a sense, replaced God as the higher law to which existing political power would be accountable. That overall shift—from a non-secular notion of higher law to a secular one and from an unwritten to a written experiment in limited rule—represents a key development in the modern understanding of constitutionalism. There has been some debate in the literature about whether Magna Carta qualifies as the first written constitution. On the one hand, it resembles a constitutional document insofar as it articulates a vision for governance that includes shared legislative and executive responsibilities. It also identifies rights and obligations. Yet on the other hand, its structure does not resemble contemporary constitutions. It is a petition. The list of grievances that constitutes the Magna Carta probably more closely mirrors America’s Declaration of Independence than the Constitution. Yet regardless of whether it qualifies as a constitutional text in the modern sense, the Charter’s profound historical importance lies in its attention to the principle of constitutionalism. Moreover, the idea stuck: over the next two hundred years, British rulers reconfirmed the details and spirit of Magna Carta no less than forty-four times.¹⁰

Modern Constitutionalism

If asked to review almost any moment in the past four centuries, one will inevitably find evidence of man’s continuous battle against the evils of arbitrary political rule. Both at the beginning and at the end of the seventeenth century, for example, the most powerful and stable regime in the world—Great Britain—was embroiled in conflicts over just such an issue. The first quarter of the seventeenth century saw intense battles between the British monarchy and the country’s Parliament, culminating in several successful attempts by the Crown to dissolve the legislative body. In response, parliamentary leaders condemned the Crown’s actions, claiming that they violated the most sacred principles of British constitutional law. The rebuke by legislative officials eventually forced Charles I in 1628 to consent to the Petition of Right, a document spearheaded by Sir Edward Coke, a member of Parliament and one of the most respected legal minds of the time. The Petition, which sought to identify the rights and liberties of British subjects in relation to the prerogatives of the Crown, was in many respects successful in restraining the authority of the king. Still, its overall force was marginal until sixty years later when a similar battle erupted between Crown and subject. The consequence of the Glorious Revolution of 1687–88 was another constitution-like document. The English Bill of Rights (1689), in addition to articulating more rights and liberties possessed by British citizens, further structured the relationship between the ruler and the ruled in Great Britain. The Bill of Rights, like the Petition of Rights and Magna Carta, was aimed at restricting the unlimited authority of the monarchy. It too was successful at a certain level.

The eighteenth century, of course, is principally known for its examples of discontent over the perceived abusive authority of the state. Revolution in the name of more popular government was a fairly widespread practice in the mid-to late eighteenth century. The American and French Revolutions, although dramatically different in many ways, were both based on the principle that popular sovereignty—rule by the many—ought to replace monarchical control, or rule by the one. In the American context, the contract between ruler and ruled was violated repeatedly, leading eventually to the Declaration of Independence and the call for a new self-governing structure. After that, the debate centered on more parochial concerns, like whether the proper design for government ought to concentrate power in the hands of a distant centralized government or whether the bulk of power should properly reside at the local level. But even then the thread running throughout the debates about the overall effectiveness of the Articles of Confederation or the wisdom of adopting a new constitutional order was one of controlling or regulating political power. Pauline Maier, the eminent historian of the American founding period, accurately describes the worldwide phenomenon. “Every age,” she says, “has some major issue that people understand as kind of an agenda for that generation; in the eighteenth century it was the problem of government.”¹¹ Good government to those in the eighteenth century most often meant constrained or restricted government.

Even when political communities were not in the process of carrying out violent rebellion, contracts were drawn up to help bridle the power of government officials.¹² The Mayflower Compact of 1620 marked an agreement between settlers at New Plymouth on the coast of what would become Massachusetts. The document’s historical significance for the development of constitutional government should not be understated. Most particularly, it represents a “covenant” between individual citizens of the colony as well as between the collective community and God. The covenant is a compact or a contract whereby the settlers agreed to live by certain established and agreed-upon rules. Many of the passengers on the Mayflower believed that without a formal agreement over the broad scope of political authority the prospect of ordered rule would be elusive.¹³ Thus they sat down to the task of constructing a meta-political document that would create a “civil body politic.” That text—the Compact itself—represents a significant contribution to the development of constitutionalism in the United States. In 1802 John Quincy Adams described the agreement as “the only instance in human history of that positive, original social compact.”¹⁴ By that he meant that the Mayflower Compact represents the primary historical example of an original covenant in which citizens of a community consent to live under particular rules. In that sense, Adams said, the Mayflower Compact foreshadowed the introduction of other constitutional documents.

So did American state constitutions. Between 1776 and 1800 all states in the newly independent America experimented with drafting constitutional texts. In all, twenty-nine separate charters were adopted by the former colonies during that period, and an additional two were written for the unified country. Donald Lutz notes that these constitutions focused on two related commitments: to a system of popular governmental control, and to a system of limited political power.¹⁵ Not surprisingly, constitutions drafted in the nineteenth and early twentieth centuries have also subscribed to the principle of governmental limitation through constitutional textualism. The lengthy Spanish Constitution of 1812, for example, details the variety of powers retained by the various governmental bodies. Similarly, the Mexican Constitution of 1917, which includes an extensive bill of rights, a division of powers among the legislative, executive, and judicial branches, and a scrupulously detailed description of the specific powers distributed to each branch, appears equally concerned with the principle of limited political power.

Contemporary examples of attempts to control the excesses of governmental power through constitutional means are evident in almost every country of the world. From the most oppressive regimes to the least, it seems the pressure for more governmental accountability, more liberty, and more objectivity in the exercise of political power is constant. Popular sovereignty is so admired at the moment that any government that justifies its continued authority through the use of oppressive action or force is swiftly condemned. Consider Nelson Mandela’s words to the Constitutional Assembly in 1996 immediately after it had completed its task of drafting a new constitutional charter for South Africa: “Long before the intense moments of the last few days,” he noted, “you, the representatives of the people, had decided that open and accountable government will be reinforced by co-operative governance among all tiers. And thus, we strike out along a new road, in which the preoccupation of elected representatives, at all levels of government, will be how to co-operate in the service of the people, rather than competing for power which otherwise belongs not to us, but to the people.”¹⁶ Almost every contemporary constitutional framer could utter Mandela’s words, for they are not entirely unique to South Africa’s situation. Indeed, the constitutionalist sentiments expressed by the Nobel Laureate are timeless.

The Theory of Constitutionalism

The Problem of Human Nature

Perhaps the easiest way to resurrect the theoretical discussion of constitutionalism from its brief introduction in the first chapter is to recall that the principle refers to a subset of constitutional texts whose main commitment is to the ideal of limited political rule. The concept of constitutionalism is actually based on a rather pessimistic, though probably fairly accurate, view of human nature.¹⁷ Limiting the power of those with the capacity to wield it randomly, and for the benefit of their own self-interest, lies at the root of any conception of constitutionalism. History has demonstrated that humans, when given the chance, have a tendency to abuse power and oppress those without the capability of adequately protecting themselves. One need not look very far to see illustrations of political tyranny, oppression, and seemingly unchecked political authority. The most famous examples of tyrannical government have involved monarchies or aristocracies where political authority was conveniently concentrated in the hands of the few. And yet we should not forget that majorities are as capable of abusing their authority as any other political institution. The idea of constitutionalism is a direct response to the perceived corruptibility of the human instinct, regardless of what decision-making structure is in place.

It is perhaps unsurprising, then, to note that the tension between the human impulse to think self-interestedly and the requirement that modern democracies cultivate civically minded citizens has confounded many of the modern era’s greatest political minds. No one was more attuned to that particular paradox than was James Madison. His intellect and vision for the United States is particularly instructive here. It is generally understood that the shy, diminutive Virginia statesman was the principal architect of the U.S. Constitution. And insofar as the American constitutional text has become one of the paradigm examples of a modern constitutionalist document, Madison’s understanding of the concept of constitutionalism is worthy of considerable attention.¹⁸ He thought seriously about the theory of constitutionalism even if the term itself likely never passed his lips.

For Madison, as for all good constitutionalists, framing legitimate political order begins with a comprehension of what could go wrong. Shortly before the opening of the Constitutional Convention in May 1787, Madison wrote his famous “Vices of the Political System of the United States” in which he expressed concerns about the structural features of the American polity under the Articles of Confederation. One concern he identified was that of self-interest, or more accurately, what he described as “faction.” He noted that, if left unchecked, factions (which he defined as groups with shared interests opposed to the common good) are a cancer on organized societies. Most revealing is that he frames his discussion of the problem of faction around the prevailing perception of the human condition. “A still more fatal if not more frequent cause [of injustice],” he wrote, “lies among the people themselves. All civilized societies are divided into different interests and factions. … In republican government the majority however composed, ultimately give the law. Whenever therefore an apparent interest or common passion unites a majority what is to restrain them from unjust violations of the rights and interests of the minority, or of individuals?”¹⁹ In essence, Madison is asking what prevents a majority from tyrannizing the minority. Certainly not the human penchant to act selflessly, he is forced to admit.

His classic admonition in the 51st Federalist that men in power cannot be trusted and thus require clear constitutional restraints echoes the character of his thoughts in the essay on “Vices.” It too represents an important component of his overall vision for the United States insofar as he turns to constitutionalism as the mechanism to manage the destructive tendencies of human self-interest. “But what is government itself,” he asks, “but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” “In framing a government which is to be administered by men over men,” he continued, “the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”²⁰

Constitutions, Madison understood, were one of a few “auxiliary precautions” that might regulate man’s natural appetite for power. The primary purpose of a constitution, he thought, was to help control the worst impulses of the human spirit. Madison insisted that the compulsion to act self-interestedly, especially when combined with the sense of power that accompanies political authority, inevitably leads to the rise of arbitrary government, the first stage of a polity’s degeneration into oppression and tyranny. One of the principal requirements of modern constitutionalism, therefore, is that constitutions somehow limit or regulate the power of a self-interested sovereign. In other words, a constitution is charged with the responsibility of constraining a polity’s rulers. Such constraints can be achieved through a variety of different mechanisms, including a system of overlapping powers and/or a list of individual rights. But curtailing a leader’s impulse to act self-interestedly or in opposition to the common good is the true mark of constitutionalist government.

Always the pragmatist, Madison was aware of the risk he and the other American framers were taking. He knew that the use of constitutional texts as the primary method of regulating political authority was a fresh and quite revolutionary development in the “new science of politics.”²¹ He also understood that constitutions alone—“parchment barriers,” in his words—were not sufficient to control the power of governments.²² Still, they were essential. Constitutional polities required additional mechanisms beyond simple texts that would ensure the limitation of political authority. A written text itself would manage to establish constitutionalism because a document of expressed powers automatically set a limitation on power: whatever was not delegated in the constitutional document, government did not have the power to do.²³ But other mechanisms, including a system of separated powers, a structure that required checks and balances, a list of freedoms, frequent and fair elections, and so on (assuming they were successful at checking political power), could further ensure the grounding of constitutionalist beliefs in the citizenry.

In his examination of the principle of constitutionalism, Madison was profoundly influenced by history. He recognized that prior to the Enlightenment there were very few examples of documents that had the necessary force to bridle the virtually unlimited power of the sovereign.²⁴ This was a period in which the rule of men subjugated the rule of law. During the reign of monarchs in England, the king or queen held almost complete control over their subjects. They could tax indiscriminately, impose ex post facto laws, or punish criminals with a severity that would make even the harshest contemporary sentences look like mere slaps on a wrist. There were, in fact, few avenues for citizens to escape the often arbitrary and merciless power of the Crown, and those avenues that were available were mostly a meaningless “fiction.”²⁵ Again, it is useful to consider Bolingbroke’s definition of constitutionalism in the early eighteenth century: “By constitution we mean, whenever we speak with propriety and exactness, that assemblage of laws, institutions and customs, derived from certain fixed principles of reason, directed to certain fixed objects of public good, that compose the general system, according to which the community hath agreed to be governed.”²⁶ He speaks of “institutions and customs,” “reason” and rationality, as the principal force to combat the strength of the state; he may as well have been speaking of ghosts.²⁷

Of the prevailing definition of constitutionalism, Madison was deeply skeptical. He did not agree that customs, or the assemblage of ordinary law, were enough to control the might of sovereign power. He also knew that the nature of sovereignty had fundamentally changed. His recent experience observing the heated dialogue surrounding the legitimacy of America’s revolt against unfair tax policies solidified his understanding of the issue. George III, through his representatives in the colonies, had insisted that the Crown was the true sovereign and that the entire colonial holdings of Great Britain rightfully fell under the broad title of the “British Empire.” In his view, the colonists were subjects of his rule; the colonial charters, which the British Crown had instituted and approved, he insisted, were further evidence of this imperial arrangement. The response from figures such as John Adams was that there is no legitimate conception of a “British Empire.” An empire suggests that sovereignty resides in a single titular head. The British system of governance, said Adams, is more accurately described as a constitutional monarchy, where both the Crown and Parliament share power and are ultimately beholden to a constitutional structure that sets boundaries on their authority. For evidence, Adams and other revolutionary-era leaders pointed to the realignment of power during the Glorious Revolution, when the British Parliament asserted greater influence.

Corresponding to the recalibration in power from a single monarch to the general population, the principle of constitutionalism could take on a more robust form in the late eighteenth century. No longer was it acceptable to trust that political leaders (whether they be kings or majorities) would act with benevolence; measures, it was thought, were needed to ensure that the sovereign’s power was controlled. What was once perceived as a reasonably powerful limitation on the power of the king—namely, his divine relationship with a vengeful God—would not work in a system of governance where power resided in the collective peoples. Madison was aware that in some cases written agreements between monarchs and subjects had successfully curbed certain types of political power in the past. He and other framers wanted to use that principle on a national scale. In Federalist 10, Madison argued that a large-scale republic, ordered and limited by a written constitutional document, would go a long way to ensuring the existence of fair and just government. Thus, beginning in the United States, the measures favored by Madison and others to constrain public authority typically took the form of constitutional texts.

The Need for Transparency

The U.S. Constitution is a product not only of the period in which it was written but also of a powerful belief in the strength of the binding contract, especially the contract formed between the people and their governors.²⁸ The document is actually the manifestation of the opinion, articulated in the Declaration of Independence, that good government should derive its “just powers from the consent of the governed.” At its core, the text’s complex arrangements and subtle language reveal the framers’ interest in minimizing the likelihood that the general agreement between the people and their representatives might dissolve, thus inviting the possibility of oppressive or arbitrary rule. The participants at the constitutional convention successfully managed to create structures—not just separation of powers and checks and balances, but also fixed terms of office, the use of oaths, strict rules of qualification, and so on—that would not only keep representatives mostly accountable to their constituents but would also enable political leaders to make meaningful policy choices. For these reasons many now contend that the American Constitution is the paradigmatic example of a modern constitutionalist charter.

But it is not the only example. Many regimes have followed America’s lead and framed constitutional charters that combine the various elements of modern constitutionalism. The independence movements of former Soviet bloc countries, or the postcolonial experiences of many African regimes, reveal that constitutional transformations in the twentieth century have been undertaken primarily in the name of greater liberty. Madison’s concern about the tendency of political officials to abuse the common citizen has been realized in many nations lately. Moreover, his response to that concern has been widely respected. Even places where the cultural and political setting has been shaped by centuries of authoritarian rule (for example, Iraq) are now seen as fertile ground for experiments in constitutionalist government. Often these attempts to impose constitutionalism and democracy around the world are unsuccessful, but it says something about the potency of constitutionalism that we believe we can force it on countries that do not have the proper infrastructure to support it.

The attempts to modernize political regimes through constitutionalist measures have followed a similar formula; in other words, contemporary constitutionalist texts all share in common some fundamental and essential characteristics. I have written elsewhere that a modern constitutional text attuned to the principles of constitutionalism now requires a high degree of transparency.²⁹ That is, the rules for governance must not only be clear and understandable, but they must also be fixed and unwavering.³⁰ Three principles will ensure that those rules remain largely stable—externality, discernibility, and self-conscious limitation.³¹ Externality refers to the fact that the constitution must exist apart from the political institutions it creates and empowers. It must be a distinct entity altogether; it cannot, as was the case under Bolingbroke’s classical definition of constitutionalism, exist entirely within the mind(s) of the sovereign or the traditions of the culture.³² Thomas Paine understood the principle of externality best when he wrote, “A constitution is a thing antecedent to a government; and a government is only the creature of a constitution.”³³ He understood that a lack of separation between political leadership and the primary source of restraint—the constitutional text—makes it far too tempting for those in power to either change their minds or ignore tradition. So did Madison, who wrote, “The authority of constitutions over government, and of the authority of the people over constitutions, are truths which are at all times necessary to be kept in mind.”³⁴ At the time, Madison was contrasting the American Constitution with the unwritten British constitution, which he saw as clearly violating the principle of externality. The British constitution was crafted and altered by Parliament. Simple and ordinary legislative acts were (and still are) the essence of the English constitution. There is little distinction between the constitution and the acts of government in England.³⁵ A more traditional modern constitutionalist regime, in contrast, must recognize that its government institutions are not to be confused with the constitutional text; they take their cue from the constitution and are thus guided and limited by that document. But they are not one and the same.

The second principle—discernibility—is also required for a constitution to qualify as constitutionalist. Tied closely to the concepts of knowability and recognition, discernibility refers to the idea that subjects of the sovereign must be made aware of the text and its particular provisions in order for that document to adequately shield the populace from government’s propensity to oppress. A constitution whose particular message is hidden from those who most need its protection does not perform its central protective function. Such was the main defect of classical versions of constitutionalism: constitution-like restraints were often concealed from public view. Even in those instances when the monarch was supposedly constrained or limited by his or her association with God, those who were subject to the sovereign’s decrees were largely unaware of the specifics of that relationship and thus were mostly helpless when attempting to challenge or question political authority. Accordingly, the clear announcement of the nature and particulars of governmental restraints is an important component of modern constitutionalism. The point, in short, is to provide citizens with some recourse—some form of ammunition—in the event that government abuses its authority. As Gordon Schochet has said, “The existence of knowable rules provides an important check on the activities of governing officials. Where their interpretations of constitutional permissibility are questioned, there exists a public standard to which to refer.”³⁶

The third and final characteristic of modern constitutionalism—self-conscious limitation—insists that the sovereign itself impose clear limitations on its own power. Whether political power is organized in the form of a monarchy, an aristocracy, or a majority, it is imperative that the sovereign itself (or, in the case of representative government, practical reflections of the sovereign) identify areas in which it cannot intrude. Those limitations must be established at the moment of founding (or through the amendment process or through constitutional constructions) so that, in conjunction with the principles of externality and discernibility, the rules of political governance are mostly fixed and stable. Moreover, those rules must also apply to those officials who are responsible for crafting ordinary law. As Publius argued in Federalist 57, the possible rise of institutional tyranny is diminished considerably if government representatives “can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society.”³⁷ Obviously, therefore, those limitations must also be grounded in the constitutional text; they cannot derive simply from ordinary legislation. Jon Elster captures the essence of this necessary qualification when he writes that constitutionalism “refers to limits on majority decisions; more specifically, to limits that are in some sense self-imposed.”³⁸

Altogether, the three principles of modern constitutionalism aim to combat those bad qualities of human nature that Madison was convinced would inevitably creep into and infect modern politics. Exploring the American constitutional example once again allows us to see that all three principles are present: (1) the document exists externally from the institutions of government it creates; (2) despite requiring a good amount of interpretation, it is mostly discernible in that its broad contours are relatively fixed and stable; and (3) the ratifying populace—both at the founding and, through tacit consent, at present—has agreed to a number of restraints on majoritarian power. Gazing beyond America’s borders, we can also see that other constitutions—from the Filipino text to those that have emerged over the past decade in Eastern Europe—have similarly subscribed to the three primary tenets of modern constitutionalism. It seems that much of the world has begun to acknowledge the virtues of constructing a polity from the doctrine of modern constitutionalism.

Constitutionalism and Compact

Next, our theoretical examination of the principle of constitutional limitation—that is, of constitutionalism—turns to the relationship between these fundamental documents and the concept of the public or social compact. A social compact is a particular form of agreement fashioned between two or more individuals/groups in which each consents to give up particular rights in exchange for certain important guarantees. As defined by Ronald Pestritto and Thomas West, the term “implies that human beings are by nature free individuals, so that any legitimate government must be formed by the people’s free choice—a social compact based on their voluntary consent.”³⁹ The definition is important because, in the Enlightenment and post-Enlightenment eras, many constitutional framers have been influenced by the arguments of the major social contract theorists, especially the one espoused by John Locke in his famous treatises on government.

Locke believed that political order was originally formed when man, primarily out of an interest in self-preservation, was forced to emerge from a state of nature into civil society. The moment of transition occurs when the formerly uninhibited beings, fearing a loss of property or life, consent to particular rules centered on the idea of collective security. In exchange for the increase in personal security, individuals agree to relinquish certain rights they retained in the state of nature. They believe they are better off surviving in a community with fewer natural rights than perishing in the state of nature where no formal laws exist to prevent one individual from essentially destroying another.⁴⁰ The agreement to exchange certain rights for security, according to Locke, constitutes the first social contract. As a conceptual matter, it is an important transitional moment for human governance and one that has serious implications for constitution-making. The social contract, said Locke, becomes the basis for the formation of a newly envisioned polity. The agreement is the chief mechanism that binds each citizen who enters the community and tacitly agrees to live under its recently established social regulations. In short, the social contract becomes the first organizing document of the polity.

By reordering the relationship between the first parties to the social contract, Locke’s conceptual agreement takes on quasi-constitutionalist form. The particulars of Locke’s original social contract are not complex. Individuals existing in the state of nature make several significant choices, beginning with the decision to surrender a measure of personal freedom. Simultaneously, those individuals make an important collective decision as well: to become a community with laws that not only bind the citizens together but also restrain them from continuing the type of behavior that made life in the state of nature so perilous. They agree, in other words, to constrain or control power within the newly constituted civil organism. No longer are the signatories to the contract empowered to abuse others who have similarly agreed to the contract’s fundamental directives. Thus the original social contract, as Locke envisioned it, is a covenant resting chiefly on the constitutionalist ideal. It is a rudimentary compact to be sure, but its major benefit—increased collective security based on the principles of consent and stable, transparent rules—smacks of modern constitutionalism.

Without diminishing Locke’s considerable influence on the formation of Enlightenment and post-Enlightenment constitutional texts, we should be especially careful about terminology when we move from a discussion of the abstract (the state of nature, the social contract, etc.) to one that is a bit more concrete (involving actual constitutions). More to the point, it is important to use the term compact and not contract in our discussion because, as Donald Lutz correctly remarks, there is a sizeable difference between the two concepts. It is, in fact, Lutz (among others) who reminds us that seventeenth- and eighteenth-century citizens would not have used the word contract in the constitutional context.⁴¹ They would have used the term compact, which he defines as a large group of individuals who agree to come together to form a political society based on the principles of collective responsibility and mutual consent. One of the oldest constitutions still in use—the 1780 Constitution for the Commonwealth of Massachusetts—nicely illustrates the point. Its preamble begins, “The body-politic is formed by a voluntary association of individuals; It is a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.”

A contract, Lutz posits, is a far more narrow or privatistic conception. A contract typically involves two or more parties concerned about “a specific point” and not (as with a compact) about the broader notion of community building. In Lutz’s words, “a contract [is] a restricted agreement between relatively small groups of people and [does] not necessarily have the status of law. A compact [is] an agreement between a large group of people creating a new community based upon their own consent.”⁴² Put differently, a contract is the manifestation of a shared agreement by particular stakeholders whereby each acknowledges certain responsibilities to the other, but who do not similarly require a commitment to an ongoing political community. A compact, on the other hand, does require that sort of civic commitment.

More telling, perhaps, is the claim made by Lutz that a contract may be enforceable as law, but it is not in and of itself a law. Unlike a contract, a compact represents an authoritative agreement made by the sovereign that amounts to the type of limitation on power that defines a constitutionalist text. A contract is not a document that organizes or orders the relationship between the parties to the agreement, but rather it stipulates a single transaction or arrangement. There is no doubt that both contracts and compacts have certain similar qualities when considered as part of the dialogue on constitutionalism. Both, for example, include the important principle of mutuality. The primary difference is revealed, however, when considering the nature of the relationship between parties to the agreement. Gordon Wood accurately characterizes the view, which became initially evident during the American constitutional framing, that the metaphor of the contract no longer works because the parties to the constitutional deal are not the ruler and the ruled but individuals emerging from a state of nature and, together as equals, agreeing to abide by certain fundamental principles.⁴³ A constitution is a sort of social compact, molded in the Lockean sense, and existing prior to the formation of the polity’s government institutions. If successful, it binds the citizenry to each other and the polity itself. The central idea is best summarized by several eighteenth-century Americans who, quoting the Massachusetts Constitution of 1780, insisted that state constitutions actually were “social compact[s] by which the whole people covenants with each other, and each citizen with the whole people, [so] that all shall be governed by certain laws for the common good.”⁴⁴

Even the term compact itself evokes a constitutional image: “The word’s root meaning,” says Lutz, “[is] knitting together or bringing the component parts closely and firmly into a whole”⁴⁵—a constituting, in other words. A compact also implies a certain longevity—a commitment to an enduring agreement—that is not similarly suggested by the term contract. The word carries a certain gravitas; it brings to mind a seriousness of purpose whereby the parties to the agreement make a pact with each other that is based on a higher principle than just a simple economic transaction. Again, the Mayflower Compact that tied the members of the Plymouth Colony to each other in the seventeenth century is a good example. It was fashioned under a binding and collective oath to God. Its main purpose was to publicly announce the Pilgrims’ intention to “covenant and combine ourselves into a civil body politic, for our better ordering and preservation, and furtherance of the ends aforesaid.” The Compact goes on to say that the members of the Colony pledge “to enact, constitute and frame such just and equal laws, ordinances, acts, constitutions and offices, from time to time, as shall be thought most meet and convenient for the general good of the colony, unto which we promise all due submission and obedience.” Perhaps unsurprisingly, the Mayflower Compact is considered a precursor to the American state and federal constitutions and is still viewed as one of the seminal public documents in all of modern history.

In its contemporary form, then, a constitutional text represents a mutual agreement or compact between several distinct groups. The most obvious is the agreement between the sovereign, as manifest in the traditional democratic institutions of government, and those who are subject to the ongoing power of the sovereign. This relationship involves the classic division between majority and minority. It should be recalled that in order to qualify as constitutionalist, a constitution requires that the sovereign agree to the self-conscious limitation of its power. That agreement is made under the assumption that few would choose to live in a world where a permanent majority exercised unconstrained authority if there was a chance that they might end up in the minority. Accordingly, out of a sense of fairness, the modern constitution represents a compact whereby a majority agrees to the ongoing protection of the minority.

The second agreement is a bit more abstract. It concerns the compact made between the original ratifying populace, the current population, and any future citizens of the polity. The substance of that agreement resembles the one above insofar as it too is based on the regulation of political power and authority; but this one is purely intergenerational. A founding generation agrees to introduce and promote the first principles of the polity, and all future generations agree to carry on those (broad) governing values, at least as long as the text remains authoritative or is not amended to reflect new values.⁴⁶ Confirming the metaphor of constitution as compact, Thomas Paine once remarked that an action contrary to the constitutional text is “power without right.”⁴⁷ The exercise of authority by representatives of the sovereign is subject to the original contractual arrangement made when the constitutional document was ratified. Exercising power beyond the specific provisions of the text is thus seen as a betrayal of that original agreement. Although conceptually abstract, this type of compact is perhaps more clearly evident than most others when reviewing the actual constitutional text. The intergenerational compact often appears in the form of preambulatory promises. The Preamble of the U.S. Constitution, for instance, begins with the pledge to “form a more perfect union … for ourselves and our posterity.” Other constitutional preambles make similar promises.

If we combine those two conceptual agreements with the one Wood explained above, it seems evident that a modern constitutionalist regime founded on the idea of popular sovereignty rests on the principle that a general compact exists between the people and those who represent power. The various clauses of a constitutional text mark the details of the compact; certain powers have been distributed to particular institutions, but certain powers have also been withheld. A constitutionalist regime requires that power be limited and that the constitution as compact specify which powers governmental institutions control and which they do not. Often the limitations on governmental power are recognized only within the gaps of a constitutional text, in the places where the text is silent. More often, however, those limitations are noted by a combination of gaps and clauses (typically in the form of a list of rights and freedoms) that identify areas of authority that cannot be breached by government institutions. The U.S. Constitution’s Bill of Rights, with its negative articulation of individual freedoms, is the most commonly cited example.

A considerable number of texts drafted in the last forty years have accepted the idea of the constitution as social compact. To the extent that a compact refers to a document used to “organize a people, create a government, set forth its basic values, and describe the institutions for collective decision making,”⁴⁸ almost every Western regime around the world has embraced the concept. The principle of constitution as social compact, however, includes something more: a shared commitment to individual citizens and the overall body politic. The most obvious evidence can be found in the words of the texts, particularly when we revisit several of the constitutional preambles explored earlier. The Polish and Czech constitutions, for instance, echo the sentiment of the eighteenth-century Massachusetts speaker above by prioritizing a shared “obligation to the common good.” They imply that one of the prerequisites of a good polity is the public commitment each inhabitant makes to his or her fellow citizens, and, more intangibly, to the future advancement of the regime itself. The social compact articulated in the South African constitution is one based in large part on the principle of equality. The message of the preamble is that all South Africans—black, white, Indian, and so on—suffered from the injustices of the past and that we are now, under this new fundamental law, agreed to move forward as equals, bound by a compact based on liberty, equality, democracy, and, above all, dignity.

Conclusion: Constitutionalism and Textuality

At the risk of sounding a bit hyperbolic, it can be said that the American decision to locate the organization, structure, and authority of an expanded republican government in a single written instrument changed the political world. By all accounts, it was a radical experiment in national governance. The concern over the possible rise of tyrannical rule exhibited by colonists during the American Revolution focused their attention on alternative methods of organizing and restraining power. To that point in history, no national constituency had tested the capacity of a codified fundamental law to constrain political power on the scale the American Framers were imagining. A single written constitution, the American framers believed, would provide far greater security against the abuses of political authority than would the more traditional approach of relying on the common law, especially when one considered the complexity of ordering a geographical territory many times larger than that found either in Great Britain or in the individual states. The experiment was so innovative and logical (and, it should be added, comparatively successful) that all but a tiny handful of political regimes have chosen to forego it since the late eighteenth century.

It was a different social contract theorist who helped shape the minds of America’s founding generation when considering the virtues of a written constitutional charter. Thomas Hobbes, writes George Thomas, was acutely aware of the importance of a written constitutional text over and against the unwritten model. According to Thomas, Hobbes “insisted upon written fundamental law that could be deciphered by ‘every man’ against unwritten law that was based on the ‘artificial reason’ of judges.”⁴⁹ Writing in the seventeenth century, Hobbes was offering a radically new view of constitutional government: all else being equal, he argued, written texts are infinitely more capable of bridling the power of the sovereign than unwritten texts, which must rely for their success and longevity on the infallibility of very fallible human judges. Maximizing the principles of justice and liberty, thought Hobbes, requires preestablished codified rules. The common law does not similarly deliver an appropriate level of justice, said he. It suffers from the vice of being infinitely malleable and subject to the passions of those residing in positions of power.

The Hobbesian quote, along with the American experiment, concerns one of the most perplexing questions in all of constitutional thought. We conclude this chapter by asking: Is it possible to achieve a constitutionalist system of government without a corresponding formal constitutional text? That is, the fundamental question is whether limited political power is truly possible in a regime that opts not to adopt the principle of constitutional textuality. We have already described the requirement of a modern constitutionalist government. In order to qualify, a constitution must be external to the polity’s government institutions, discernible to those in subordinate positions, and committed to the idea of self-conscious limitation of power. The question is, can a polity that rests legitimate authority on an unwritten constitution still realize these features? Can it practice constitutionalism without a formal constitution? These and other questions related to the virtues of maintaining a written constitutional text inevitably focus our attention squarely on one of the few remaining unwritten constitutions in the world today: the British constitutional system. Therefore, to England we now turn.

The British Constitution

Arguably one of the most famous and widely scrutinized constitutional systems in the world can be found in Great Britain. The oldest constitutional order currently in existence, the British political design has been admired and emulated for many centuries. To provide a brief glimpse into the historical importance of the British constitution, consider the words of William Gladstone, an eighteenth-century Englishman whose comments on the qualities of both the British and American constitutions were widely quoted at the time. The written American Constitution, Gladstone concluded, is “the most wonderful work ever struck off at a given time by the brain and purpose of man.” The British constitution, though, “is the most subtle organism which has proceeded from the womb and long gestation of progressive history.”⁵⁰

There can be little doubt that Gladstone’s sentiments are still timely. The architecture of the British political system, and especially its embrace of a common law tradition, has been deeply influential around the globe. In part because of the connection of many former British colonies to the European power, the English system of government is still evident on almost every continent. Described as a constitutional monarchy, the specific political design in contemporary England combines parliamentary supremacy with energized executive and judicial rule. The nation’s parliamentary structure, with lower and upper houses, a prime minister, a governing cabinet, and so on, remains broadly popular among newly independent states. And yet Gladstone’s comparison is not literally accurate in the present era: it is not too much of an exaggeration to suggest that Britain’s constitutional influence no longer matches its political importance. The country’s effect on constitutional foundings in the past century has been significantly diminished by the fact that it still maintains an unwritten constitution in a world dominated by formal constitutional charters. Presently, it is one of only three remaining polities that do not boast a formal, codified text. Together with Israel, the English are in fact the only Western society that has never experimented formally with constitutional textuality.

The same cannot be said for the American constitutional experiment. Its constitutional influence is now unquestioned. It is noteworthy, for instance, how often the language of the American text appears in contemporary national constitutions. Many countries have adopted America’s structural model for the separation of powers and its constitutional safeguards regarding individual rights. Its greatest effect on other nations, however, can be found in its simple decision to use the mechanism of textuality to constrain political power, the idea that constitutionalism now requires a formal, written text. Students of American politics learn very quickly that one of the most (and perhaps the most) effective means to forestall the rise of tyranny is found in the textuality of the Constitution itself. It is infinitely more difficult to abuse power when the rules of the game are previously laid out in a single written document. And yet we should not be so hasty as to discount the unwritten constitution as a viable design for limited government. Perhaps an unwritten constitution in the British tradition can ensure the same degree of controlled power that so many have attributed to the written design. Perhaps an uncodified constitution can be constitutionalist.

The British constitution is actually made up of a complicated series of legislative initiatives, judicial opinions, social norms, and public documents (such as the British Declaration of Rights) all falling under the broad label of British constitutional law. Akhil Amar describes it in less-than-flattering terms. “The vaunted English Constitution,” he remarks, is “an imprecise hodgepodge of institutions, enactments, cases, usages, maxims, procedures, and principles that [has] accreted and evolved over many centuries.”⁵¹ The body of law that constitutes the British constitution is, in fact, as intricate and extensive as any in the world. The intricacy of the legal system, however, does not detract from the power of the law; the requirement that there be some fixed meaning to the constitution in order for it to be transparent and stable is met in Great Britain by that regime’s steadfast commitment to the rule of law. Still, the conception of constitutionalism in England, unlike that in the United States, is premised on the belief that a single formal text is not necessary to ensure regulated or controlled power.

Briefly comparing the philosophical foundations of the British and American constitutions provides us with insight into the broader discussion of the relationship between constitutionalism and textuality. The first noticeable difference between the two constitutional models involves the source of authority. A written constitution like that found in the United States rests on the opinion that authority should derive from a single source, a tangible document that exists over and above the democratic institutions of the polity. The Constitution in the United States is that country’s single organizing instrument. Part of its original mandate was to identify the powers of the various branches of government and thus, in a very real sense, its purpose was to create the very institutions that now carry out its stated aspirational goals. Logically, therefore, the Constitution maintains a certain authority over the institutions of the polity.⁵² The institutions of the polity take their cues from the constitutional charter, not the other way around. Americans have become “enthralled,” Gordon Wood says, with their unique idea of a constitution as a “written superior law set above the entire government against which all other law is to be measured.”⁵³

That particular conception of a constitution is further realized by some of the choices the American framers made more than two hundred years ago. Their view of the constitutional text as the paramount source of authority, for example, influenced their design for amending the document. Article V stipulates that altering the text requires an extraordinary effort on the part of the sovereign. Amending the U.S. Constitution is not accomplished through a simple vote of the majority in Congress, but rather through a complicated process that demands the endorsement of multiple overlapping super-majorities. In order for a proposed amendment to achieve the necessary support for addition into the constitutional text, it must garner support, first from either two-thirds of both houses of Congress or two-thirds of the state legislatures calling for a constitutional convention and then from three-quarters of the states. A change in the constitutional document is viewed as such a significant endeavor because the effect on the institutions of the polity is so considerable. As the only reflection of a completely sovereign people, the constitutional text in the United States is truly the supreme law of the land.

The original decision to design a constitutional text without a corresponding list of rights or freedoms is further evidence of the American framers’ commitment to the principle of constitutional textuality. The debate for many members of the founding generation focused on the necessity of adding a bill of rights to the original text. Many Anti-Federalists supported the addition, while a seemingly equal number of Federalists opposed it. A constitutional clause that prohibited government from exercising powers it could not claim to enjoy was, according to many Federalists, an absurdity. Why, Alexander Hamilton wondered, was it so imperative to mention that “Congress shall make no law abridging the freedom of speech” when the constitutional text never delegated to Congress the authority to interfere with that right in the first place? Likewise, the government was nowhere empowered to deny any persons the right to an “impartial jury,” so the articulation of that right in the Sixth Amendment was largely redundant. A written constitution, Hamilton famously noted in the 84th Federalist, is itself a bill of rights. The virtue of a textual constitution, he concluded, is that the parameters of political power are clearly marked by the words of the document: whatever is not mentioned is not retained.

An unwritten constitution rests on an altogether different set of philosophical assumptions. First, the Parliament in England is supreme; it is the primary base of sovereign authority for the entire nation. Under a common law system its enactments automatically enjoy constitutional status. It too is a single source of authority, but unlike in the United States its relationship to the constitution is conceivably as an equal, not inferior, institution. Some, like former colonial Governor Thomas Hutchinson, insist the Parliament is the highest power in Great Britain and the country’s constitution is mostly a product of governmental and cultural initiatives. A constitutional change in England does not require the extraordinary demonstration of sovereign unity mandated by the American text. Altering the British constitution is accomplished by a simple majoritarian vote in Parliament or by a judicial ruling in the country’s appeals courts. Legislative power over the always-developing constitution is thus comparatively and theoretically unrestricted. If the majority in Parliament wishes to enact particular legislation, and that enactment is not viewed by the judiciary as incompatible with precedent, there is very little to constrain the will of the current majority. In contrast to a country bound by a tangible written constitution, the British constitution is thus not “set above the entire government against which all other law is to be measured.”⁵⁴ Instead, it is largely a legislative creation.

Second, citizens of Great Britain benefit from the protection of the Declaration of Rights, the Bill of Rights, Magna Carta, and other formal, quasi-constitutional compacts defining the scope of individual liberty. This is so because the authority to grant rights that is vested in the Parliament is always tempered by the possibility (however unlikely) that the legislative body can take them away at any time, and through ordinary procedures. But the historical magnitude of Magna Carta, the Petition of Right, and similar documents makes them practically impervious to parliamentary regulation.

Recently, the British House of Lords ruled on a case that lies at the heart of this discussion. The decision in A v. Secretary of State for the Home Department, declared that the European Convention for the Protection of Human Rights and Fundamental Freedoms (which had been incorporated into English law via the Human Rights Act of 1998) enjoys constitutional status alongside the Great Charter and other codified texts.⁵⁵ This judgment represents a remarkable moment in British constitutional law not only because it reconfirms the power of the judiciary to enforce individual rights against parliamentary decrees but also because of the Court’s decision to transplant an international declaration of human rights squarely into the English constitution. The case involved the indefinite detention of non-British nationals identified by English authorities as possible terrorists. British officials argued that §23 of the Anti-Terrorism, Crime and Security Act of 2001 permitted the state to hold suspected terrorists for an unspecified amount of time. The Court rejected that argument, insisting that the European Convention for the Protection of Human Rights and Fundamental Freedoms prevents Parliament from denying basic liberties to individuals residing within Great Britain. The Court’s opinion noted that the Convention should be considered a pseudo Bill of Rights for England and is consequently a material limitation on the power of the sovereign.

The formality of certain portions of the British constitution aligns more closely with the written nature of America’s constitutional charter, and, perhaps not surprisingly, these documents help to influence the scope of personal rights in that country. More to the point, one key to the protection of individual rights in England, and thus one key to the country’s brand of constitutionalism, can be found in the defense of certain fundamental documents by the country’s judiciary. Although currently in flux because of the passage of the Constitutional Reform Act of 2005, the British judiciary consists of a number of different tribunals and a clear division between civil and criminal courts. The nation’s highest appellate courts rest in one of the houses of Parliament—the House of Lords, to be precise—and the intermediate appeals court located in the Court of Appeal. All of the country’s tribunals, though, rely on the authority of the codified law (through legislative enactments, historical documents, and the common law) to safeguard the individual rights of British citizens. Whatever degree of constitutionalism the British system achieves (and it is a significant amount) is due in large part to the country’s judicial authorities.

It is thus all the more curious that, at first glance, the British judiciary is not what Americans would describe as “independent.” The nation’s highest court, after all, is also its upper legislative chamber. For many scholars of the law, the idea that a political regime could sustain the principles of constitutionalism without a judiciary that is meaningfully isolated from the political currents of the moment is preposterous. The thinking is that once the judiciary loses a degree of independence, it also loses its capacity to keep the other more democratic institutions like the legislature and the executive from potentially abusing their authority. Its ability to restrain the abusive tendencies of the legislative and executive branches is tied directly to its independence. Moreover, a constitutionalist system is in jeopardy if there is not at least one institution that acts as a watchdog overseeing the actions of a self-interested majority.

The British experience suggests otherwise. First of all, the judiciary’s apparent link to the legislative department is misleading. More than three hundred years ago, the Act of Settlement (1701) fixed the British courts’ independence from the other branches of government by legislating that judges should hold their office during good conduct. The parliamentary act stipulates that jurists maintain their positions without royal interference; the judges cannot be punished or prosecuted for decisions made in the course of the law.⁵⁶ Predating the major details of Article III of the U.S. Constitution, the Act of Settlement established a subtle, though meaningful, division between the legislative offices and the judicial authorities. Hence, insofar as the judiciary (in both England and the United States) is the primary interpreter and protector of the rights of citizens, its principal role is a constitutionalist one: it must check or bridle the power of the majority. Although there is no single source that we can point to as the definitive English constitution, the institutions of that polity, including the country’s judiciary, are still capable of defining the boundaries of political power.

In the end, the British constitution—unwritten though it is—manages to achieve at least two of the three major requirements for modern constitutionalism. No unwritten constitution can claim to exist apart from the government institutions of the polity, and the constitution of Great Britain is no exception. The principle of externality is thus left unmet by the current design of the British constitution. Still, England can boast that its constitution is more or less discernible. Its constitution is made up of hundreds of years of codified law, judicial decisions, social customs, and other related institutions. It may be a “hodgepodge,” but it qualifies as a discernible collection of rules in the same way that the comparatively brief and compact American text qualifies. Insofar as the rules of England constrain or regulate the power of the government, the constitution of that country meets the criteria for knowability. Political leaders and ordinary citizens alike are capable of understanding the British constitution, and what is more, they are both authorized—encouraged even—to use its boundless provisions to help preserve a high degree of political accountability. If the true test of constitutionalism is a polity’s ability to control the vices of human nature when they metastasize within the institutions of government, the British constitution passes.

The nature of Britain’s political design also guarantees some measure of self-conscious limitation of power. All types of political institutions, from the Crown to the houses of Parliament, regularly reassert their allegiance to the values articulated in the nation’s major historical agreements. More accurately, the principles espoused in Magna Carta, the Bill of Rights, the Act of Settlement, and so on, undergird the entire foundation of the British political tradition. Now we can add the European Declaration of Human Rights to that list. And yet even if British citizens could not count on the protection of these seminal treatises, there are other mechanisms, including the country’s resolute commitment to the principle of the rule of law, that ensure that constitutionalism will continue to find root in the British system. In addition to the frequent reaffirmation of the major public documents announcing limits on the sovereign’s power and the fidelity to the rule of law, the simple fact that the British are dedicated to free, fair, and regular elections is evidence of an essential sovereign pledge to the peaceful transition of power. Surely, the fact that the current (and temporary) majority, if voted out of office, will peacefully relinquish control of political power is one of the most significant characteristics of contemporary limited government. It alone certifies a reasonably constitutionalist existence.