Thursday, 17 February 2011

Written or unwritten - is there a perfect constitution?

Michael Goldfarb, writing for the North American section of BBC News Online discusses the various merits of codified and uncodified constitutions, using examples from the UK and from the States:

http://www.bbc.co.uk/news/world-us-canada-12482351

Goldfarb starts off speaking critically of the UK's uncodified arrangements:
Like most folks who end up living across an ocean from where they were born, I find myself occasionally frustrated by the sheer pig-headed, stubbornness by which people in my new country, the UK, cling to the customs that clearly have no value in the modern world.

In Britain, these customs often revolve around outmoded political structures traceable to the fact that this country somehow has made it to the 21st Century without a written constitution.

When I find myself dissecting some political or legal problem with British colleagues, I have been known to throw up my hands and say: "What this country needs is a new constitution and this time you need to get it in writing."
By the end, however, he's slightly more enamoured with our vague, but eminently constitutional flexible situation:
Last May as it became clear that the General Election would yield a hung parliament, a number of constitutional "experts" were consulted about what was constitutionally correct for dealing with the situation - who had to speak to whom and when, how a minority government could be formed or a coalition.

No-one seemed to find it unusual or suspect that the main "expert" was Oxford University Professor Vernon Bogdanor, who had been Prime Minister David Cameron's tutor. Mr Bogdanor was already on the record calling Mr Cameron one of the "ablest students" he had ever taught. But since Mr Bogdanor had no statutory power to make a judgment in the case there was no need for him to recuse himself. He was just giving advice.

That's how the British constitution works and by extension British society. The establishment decides and the people go along. Anyway, the unusual election result was resolved amicably. Lawyers didn't dig their heels in and argue for hours. No-one went to court.

Compare what happened in Britain to the constitutional legal process surrounding the 2000 presidential election in America. You can understand why I now question - just a little - whether explicit written constitutions are perfection. Perhaps a little opacity at the heart of the contract forces everyone to behave in a more gentlemanly fashion in order to make things work.
As always, read the whole thing!

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