Thursday, September 17, 2009

Happy Constitution Day!


Please celebrate as you are able (preferably with friends, food, drink and song).

10 comments:

Stephen said...

Just the other day, on another post, I asked whether a written constitution is even necessary or good. So, is it either?

Aaron Linderman said...

I don't think it's the written-ness that matters, in this case, but the system itself. However, a written constitution was probably all but inevitable for the United States. More or less overnight we became a new state and had to decide how to govern ourselves. There was no long tradition of unwritten custom upon which to draw, and then slowly modify over time. Thus the (unsuccessful) Articles were written down, as were their (considerably more successful) successor, the Constitution.

Northern said...

I don't know, the U.K. has no Constitution, and there seems to be much less certainty in their legal system as a result.

Stephen said...

How so, Therese? It's not look the Supreme Court doesn't just make up stuff about our Constitution.

Northern said...

True, true. I'm trying to recall what issues I've seen - I know they were in the news over the past year. I'll post them when I find them.

Northern said...

Until I find examples, however, just two points:

I would expand on your comment to the previous post and note that ultimately the justices are constrained by the written words. The history of judicial interpretation resembles a pendulum, swinging too far in the direction of "creative" interpretation and now (perhaps with the advent of Scalia?) returning towards a more literal interpretation. You mentioned the "commerce clause"; pleading standards are another area (Ashcroft v. Iqbal) and I know we've run into a few others.

Secondly, and related, our constitution defines quite clearly the balance of powers that exists among the various governmental branches. The UK doesn't have this clarity, and, as I understand it, their Parliament has almost unlimited ability to pass legislation. Perhaps they are restrained by case law, but case law seems to be the most fluctuating form of law possible. I have heard that not even the courts are able to rule on the constitutionality of the laws - and how could they without a constitution?

But comparisons between the US and the UK are rather tricky since we have different conceptions of govt, particularly regarding the roles of the states, limited fed govt, etc. In forming our legal system, we drew to a large extent on English common law, but the Constitution was perceived by the Founding Fathers as a necessary innovaction, probably to ensure the separation of powers. A written constitution has now become part of every democracy (that I know of) set up since 1776. The Germans, for one, consider their Grundrecht essential.

Aaron Linderman said...

Yes, I think the primary difference between Britain and the United States is not the unwritten/written distinction, but the form of government. Britain has no major local government, definitely nothing to rival the American states. Moreover, with the parliamentary form of government the executive and the legislature are one and the same.

Stephen said...

You're right, Aaron, that the biggest difference is the form of government not the fact that the UK has an unwritten constitution. And, I'm sure the "unwrittenness" of the British constitution has helped it develop into a parliamentary democracy. As far as I can see, that couldn't happen in America, because the Constitution says there has to be a president. But, who's to say that (in a purely hypothetical situation) one branch couldn't expand so much in power that another branch essentially atrophies (like the British monarchy)? At the beginning of this country, the Supreme Court was quite weak, and is surprisingly strong now.

Perhaps Therese's point about the pendulum is the most important one; the Constitution will limit our "creativity." Of course, that hasn't stopped us from becoming an administrative state (such as the Founders probably never would have countenanced).

Stephen said...

Apparently, I'm not the only one wondering about written constitutions, if you go over to the Postmodern Conservatives blog at First Things, and look at "Sweet as Honey":

http://www.firstthings.com/blogs/postmodernconservative/2009/09/20/the-constitution-sweet-as-honey/#comments

Northern said...

An interesting article. I enjoyed the quote from Plato and quite agree with his critique of creative Constitutional interpretation. Is it possible, though, to interpret law in the way he recommends, "consuming" as it were the whole work/document/body of law, instead of being selective? UD taught us to read works of philosophy and literature this way, but law seems to be different.