IV
There are many differences among constitutions
from the point of view of
both style and content.
Indeed, Great Britain to this day has no single
docu-
ment labelled
“Constitution,” and for this reason it has
become
customary to describe the British Constitution
as being an
“unwritten” one. This is very misleading,
since many
parts of this Constitution are written, for
constitutional status is
invariably ascribed to such doc-
uments as
Magna Carta (1215), the Habeas Corpus Act
(1641), the Bill of Rights (1689), the Act of Settlement
(1701), the Act of
Union (1707), the Parliament Act
(1911), and the successive Representation
of the Peo-
ple, Judicature, and Local Government
Acts.
All of these written documents, it is generally agreed,
are parts of the
British Constitution. But this Consti-
tution includes much more, notably the rules of the
common law, and
well-established customs and con-
ventions
which deal with very basic matters, such as
the principle of ministerial
responsibility to the House
of Commons, and which are observed as faithfully as
the formal
law itself. During the troubled and revolu-
tionary days of the Cromwellian period, several efforts
were
made to reconcile the prerogatives of the ruler
with the privileges of
Parliament by the device of some
sort of written constitution, but these
efforts failed, and
with the death of Cromwell the monarchy was
promptly restored. Since then the limitations which
the traditional parts
of the English Constitution impose
upon arbitrary rule have been so clearly
delineated and
so effective in operation that it has not been found
necessary to state the basic constitutional law of the
realm in the style
of a formal written code. There is
general agreement among students of
government with
the observation made by William E. Gladstone in 1878
that “the British Constitution is the most subtile orga-
nism which has proceeded from the womb and
the long
gestation of progressive history” (Wolf-Phillips
[1968],
p. 182).
A much more significant difference between the
English and the American
constitutions than mere
matters of form and style is the existence in
Britain
of the principle of parliamentary supremacy. From the
point of
view of fundamental constitutional law, par-
liamentary supremacy means that the courts of the
realm are
legally incapable of refusing to enforce an
act of Parliament on grounds of
unconstitutionality.
To be sure, the word
“unconstitutional” is often used
in Great Britain to
describe an act believed to be
contrary to the basic law of the country,
but this does
not have the legal significance which the term has in
the United States. Parliament is supreme in the sense
that all of its
enactments have the quality of law. This
does not mean that the English
courts are powerless,
since they have the responsibility of interpreting
stat-
utes. In view of the fact that
Parliament legislates less
than does the American Congress, and usually in
more
general language, the judicial power of statutory inter-
pretation is not to be taken
lightly.
Most of the new states of Africa and Asia have, in
the twentieth century,
felt that it was necessary to
adopt formal, written constitutions, although
the State
of Israel has preferred to follow the English example.
Israel has no formal constitutional document, and ac-
cepts the principle of parliamentary supremacy, for
the Israeli
courts do not have the power of judicial
review. On the other hand, on the
continent of Europe
the practice has prevailed in modern times of
having
formal written constitutions, but usually without judi-
cial enforcement. The 1948 Constitution of
West Ger-
many, however, created a
Constitutional Court
(Bundesverfassungsgericht) with
judicial review pow-
ers, and the Supreme Court
of Canada has such powers
also. The de Gaulle Constitution of France (1958)
created a Constitutional Council (conseil consti-
tutionnel) with the
power to declare organic laws of
Parliament
unconstitutional before enactment, and
ordinary laws invalid if sent to it by the President
or
Parliament. But this Council is not a true court and
is not part of
the judicial system; private individuals
and groups have no access to it,
and it does not hear
appeals from lower courts.
The absence of judicial review, however, as the
English and Israeli examples
illustrate, does not mean
the absence of constitutionalism. An independent
judi-
ciary endowed with judicial review
powers may exert
a powerful influence as a limitation upon the
exercise
of governmental powers, but there are other instru-
ments available to make
constitutionalism a viable
concept. These include periodic elections, a
free press,
opposition political parties, and various elements of
political responsibility. As a protection against the
exercise of arbitrary
authority in Britain, for example,
constitutionalism is a viable force
because it is fully
accepted by an informed electorate which has the
power of voting out of office a government which
would presume to ignore
its requirements.
A constitution is more than a mere document, and
even in judicial review
countries, more than a mere
law. It imposes restraints upon government, but
at the
same time it also legitimizes its power. It is a record
of
national experience and a symbol of the nation's
aspirations. It serves the
important function of articu-
lating the
ideals of the community, of stating its social
and economic aims. It exerts
a tremendous educational
influence as a convenient, easily-read compendium
of
the nation's basic purposes and principles.
There are many differences among constitutions.
Some are extremely detailed
(e.g., the constitutions of
India and Mexico), and some, like that of the
United
States, are very short. Some are judicially enforceable,
while
most are not. Some constitutions are “norma-
tive,” while others are merely
“nominal,” not to be
taken too seriously. Some are
stable, others are fragile.
Some are republican, while others are
monarchical.
Some create parliamentary systems of government,
while
others provide for presidential systems. Some
establish federal systems
while others, such as the
American states, provide for unitary systems.
Some are
described as rigid, and others as flexible, depending
upon
the ease or difficulty of the processes of consti-
tutional amendment. There are many other terms
used
to describe various constitutions—such as revolu-
tionary, bonapartist, legitimist,
programmatic, confirm-
atory—all
suggesting aspects of world history.
Whatever particular form of government a consti-
tution delineates, however, it serves as the keystone
of the
arch of constitutionalism, except in those coun-
tries whose written constitutions are mere sham. Con-
stitutionalism as a theory and in
practice stands for
the principle that there are—in a properly
governed
state—limitations upon those who exercise the
powers
of government, and that these limitations are spelled
out in a
body of higher law which is enforceable in
a variety of ways, political and
judicial. This is by no
means a modern idea, for the concept of a higher
law
which spells out the basic norms of a political society
is as old
as Western civilization. That there are stand-
ards of rightness which transcend and control public
officials, even
current popular majorities, represents a
critically significant element of
man's endless quest for
the good life.
