constitution

constitution. A constitution is a body of rules, formal or informal, which regulates the government of a state, or, indeed, a private association. It is concerned essentially not with ‘What is to be done?’ but ‘How?’ The procedures to be followed when taking decisions form the constitution. The distribution of power between the various organs of government, the limits of governmental authority, the methods of appointing or electing those who govern—these are the staple of a constitution.

The existence of a constitution implies that there are some restraints upon those who govern. If decisions, for instance, depend upon the whim of an absolute monarch, or the fancy of a dictator, it is hard to speak of a constitution. Constitutions are about procedures, and arbitrary power, by its very arbitrariness, is not hedged around by prescribed procedures. Most states, and many private associations, have written constitutions—a code of written rules binding those who govern, together with any amendments which have been made in accordance with the procedures laid down in the constitution. Thus the US constitution is the document accepted in 1787, together with the 27 amendments passed subsequently. Such a document, or collection of documents, is called the written or, more aptly, the formal constitution.

A contrast is sometimes made between written and unwritten constitutions. Britain, it is said, has an unwritten constitution. But the distinction is overdrawn. Britain is unusual in that there is no single document which can be called the formal constitution. The constitution in Britain is scattered through hundreds of Acts of Parliament and judicial rulings. There are, of course, many statutes that form part of the formal constitution in Britain: the Bill of Rights of 1689 which limited royal power; the Act of Settlement of 1701 which regulated the succession to the throne; the Representation of the People Acts from 1832 to the present day, which progressively widened the right to vote and regulated the conditions under which the right could be exercised. These statutes have not, however, been brought together in one legal document; the formal constitution of Britain, like truth, has to be collected and put together limb by limb.

But the description of Britain as having an unwritten constitution usually focuses on another attribute—the importance of conventions. Some of Britain's most important constitutional rules are constitutional conventions—rules which are generally observed but have no legal force. There is a convention that monarchs act on the advice of their ministers: there is no direct legal compulsion on them to act on ministerial advice, but they invariably do. By convention, a government clearly defeated on a vote of confidence in the House of Commons either resigns or holds a general election. The most powerful organ in the constitution, the cabinet, is barely known to the law. Its composition, its time of meeting, its powers, are all regulated by convention and usage, not by law.

Conventions are rules which have evolved over decades of constitutional practice. They have grown up and are obeyed because people find them useful. It is as though opposing players in a game had reached informal understandings about what was to be considered ‘foul play’ without bothering to write them down in the rule book. Conventions play a most important part in British political life, but it is quite wrong to regard them as a unique feature of British politics. Conventions develop in both states and private clubs. They figure conspicuously in the constitutional practice of the USA, which has the oldest surviving written constitution in the world. The growth of conventions, for example, has changed the choice of the American president from the indirect election provided for by the framers of the constitution to direct election by the people.

The constitution, especially the formal part, is often regarded as having a superior status to ordinary law; indeed, it is often seen as a fundamental law, a framework from which particular acts of legislation or executive decisions draw their legitimacy. It is held that it must be set apart from ordinary law and venerated as such, and be protected by change from chance majorities or the whims of a faction dominant for the time being. Many constitutions therefore specify that the constitution can be changed only by a special procedure. The constitution may lay down that an amendment must be passed by a special majority in the legislature, or must be approved by both houses of the legislature, or by the people in a referendum. Such measures emphasize the special status of the constitution and affirm that constitutional change can come about only through the deliberate and considered will of the people or their representatives. Such constitutions are called rigid; constitutions which can be changed in the same way as any ordinary mundane law are called flexible. Britain has a highly flexible constitution: that of the USA is highly rigid.

It is easy to assume that a constitutional state, one where the governors are themselves bound by rules, must also be democratic, but the assumption is false. A constitutional state is wholly compatible with a restricted franchise or oligarchic government. It is not the source of power which makes a state constitutional or otherwise, but the degree to which the various organs of the state check and control the use of arbitrary power. It is arbitrariness, not, say, traditional kingship, which is the opposite of constitutionalism.

Lastly, while it is true that a constitution may help to shape the political habits of a people, the converse is more likely to hold good. The world is littered with the parchment of dead constitutions—legal frameworks so remote from the experience of the peoples they sought to guide, so hostile to the most powerful interests in the land, that they collapsed at the first breath of challenge.

Hugh Berrington