The problems with the Constitution of the U S may well be worse than those of the Declaration.
It is slippery if not plain wrong to say that the English constitution is not in writing. It is not to be found in the bosom of the judges – or in the cloud. It is not to be found in one binding instrument. It is to be found in the common law, Magna Carta, the writ of Habeas Corpus, the Bill of Rights, the Act of Succession, and a few other instruments.
At the core of the English dispensation is the common law that gives us the supremacy of the people in parliament. The whole fabric is full of logical inconsistencies and ideological heresies that offend Americans to their souls.
And to which the English give one answer. It works. And people who know about these things tend to think that the smarties who think that they can improve the model with a shot of logic or doctrine are probably delusional and therefore dangerous.
You will, I hope, see immediately what a giant leap lay here – from a product of history and experience, to a code based on logic and ideology, and sourced in some high notion of a social compact. The common law – which means, in the U S, unlike Australia, the common law of each of the fifty states – would have to learn to live with a fixed code. The English had arrived at their constitution by accident; the Americans, by design.
The Americans were therefore attempting to fuse the two world views – empirical and rationalist – that we looked at. Would this be any better than tipping a great beef stew over a refined passionfruit bombe Alaska? Or would it lead to a gruesome and bloody anarchic riot with bodies strewn at the base of the Capitol? Might this juristic bastardy prove to be lethal?
We can look at five principal pressure points – not having ministers in and responsible to the legislature; the capacity to freeze government by foul play; the failure to deal with God; the locking in of moral or ideological values; and the moral, intellectual, and political disaster of the present Supreme Court.
But first, what did the Founders hope to achieve?
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Do people outside the U S, or in it, believe that they have achieved domestic tranquility or general welfare?
The Westminster System, which we in Australia inherited, evolved over about two centuries after the Grand Remonstrance in the time of Charles I. The process of cabinet government was still coming together when the U S seceded. The king heads the executive arm of government, and there are four parts to the system that are fundamental to our notion of ‘responsible government’.
First, the king acts only on the advice of his Ministers. Secondly, those Ministers – some of whom comprise the Cabinet – must have the confidence of the Parliament, and they must resign if they do not. Thirdly, there is a permanent non-political civil service chosen and trained to give effect to the wishes of government, the members of which are under the supervision of a Minister – the Ministers of course being the members of parliament who have the confidence of parliament. Fourthly, the Ministers are responsible to the Parliament for the working of the civil service under them. If the civil service makes a mistake that cannot be dismissed as trifling, the Minister must account to Parliament for the error – and depending on its gravity, either apologise or resign.
That is our system, but the Founders were more concerned about the ideological separation of powers. They did not want the heads of the executive in and answerable to the legislature – their Congress. And their logic was ruthless. Therefore, the President and his ministers – his Cabinet – do not have to get elected to Congress and answer to it when it is sitting – on pain of not just vacating office, but of losing their seat if they mislead the Congress. Only a lunatic would suggest that a Prime Minister or Minister might take the fifth in an answer to a question put in Parliament.
Does anyone believe that Trump could have become President, or that most of his Cabinet could have been appointed, under such a system? Its members prostrated themselves to their leader after the manner of those in Pyongyang who do the same for Kim – the serial killer with whom their leader then fell in love. But they were never exposed to questioning by Congress. In what precise way, then, were they accountable?
Let’s get serious. Trump could not be appointed in London, Berlin, Paris, or Sydney to any public office that is a position of trust because of the character of so many people that he put his trust in – and who ended up in the slammer. He could certainly not be put forward as a director of a public company in any of those jurisdictions – and neither could most of his Cabinet.
Put to one side that Trump is a property developer with many enemies and a reputation for dishonesty and untrustworthiness, and a private life as gruesome as any in Hollywood. He evaded doing military service and paying tax. No such person could be forward for preselection in England or Australia. And he would have struggled to endure, much less pass, one question time in parliament. He would have struggled to sit out one session in parliament.
For those brought up under Westminster, the Founders disastrously preferred logic to experience, theory to evidence, and faith to history. And the American nation is now paying a fearful price.
The facility for foul play
The Founders had good reason to be apprehensive about vesting too much power in the President. The English had taken about 500 years to rein their kings in, and the world would look on with horror when it came the turn of the French and Russians to try their hand – after the Germans had developed the first modern welfare state with adult suffrage – after which they dragged the whole world back to its primeval slime.
The Americans saw the checks and balances in England. For example, that nation twice avoided what could well have been civil war when the Commons had enough power to persuade a king to threaten to flood the House of Lords unless they pulled their heads in. Then this year, the Tory elders sniffed the breeze and set about firing the Prime Minister. It was not pretty, and the result may be even less pretty, but it worked. The reaction of sometime Republican elders to Trump and his retinue hardly bears mention in decent company.
In the U S, people of bad faith can pull enough levers to send the government off the rails – and then blame the President. The crude stunts of people like Cruz and Jordan are one thing – every family has its tuppeny failures and sources of strife. But McConnell as a matter of policy decided that his party would do all in its power to prevent President Obama from doing what he was elected to do. His lot just went on strike. Is it any wonder that the same people now say that Trump did not really lose the election? And that God created the world in six days?
What a massive falling off have we seen here – the Founders left the nation with a constitution that facilitates its own sabotage. And all it took to bring it down was one generation of people in Congress of low decency and less courage.
The failure to deal with God
The King of England, and of Australia, is the head of the Church of England. And no one can be put on that throne unless they are ‘in communion’ with that Church.
It is hard to think of anything more repellent, heretical even, in the eyes of the Founders or their latterday followers and purists. In the name of heaven, it’s almost as bad as that frightful figure who sat on the Woolsack – the Lord Chancellor – and who had functions in the legislature, executive, and judiciary. And just as the king has the title of Defender of the Faith, so the Lord Chancellor was said to be the Keeper of the Conscience of the King. Who on earth could take that Gilbert and Sullivan menagerie seriously?
The Founders of course would put solid safeguards in the Constitution to deal with religion, which would be sternly policed by the Supreme Court, to safeguard freedom of religion – probably the most abused phrase in Australian politics as we speak – and ensure that the workings of power would not be troubled by religious dissension.
What is the result? The English political system has no trouble at all with either God or his Church. Any suggestion that Canterbury might affect Westminster would be stupid. But in the U S, the fingerprints of God, or at least his less loveable adherents, are all over the body politic.
This is another of those flaws that both saddens and distresses England and Europe. Heavens above, they no longer have this kind of trouble in even Ireland, Italy, or Spain.
The English Bill of Rights resembles Magna Carta in at least two respects. Following a period of protracted strife, the king and the people settled their differences in a legally binding compact. Each instrument sets out the terms on which the king (and his queen) would hold the crown. In this way, each resembled an employment contract.
But each also conferred legally enforceable rights on all subjects. For example, Magna Carta contained a clause that would become fundamental to our notions of due process and, indeed, the rule of law, and the Bill of Rights banned cruel and unusual punishments, and forbade the crown levying a tax without an act of parliament.
But each of these instruments, as we have seen, is just part of the fabric of our total constitutional dispensation. Because the people in parliament are supreme, they can change or dispose of either instrument as they please. (That is the case in both England and my State of Victoria, where parts of each instrument are still part of our law.)
The U S wished to codify those rights and entrench them in the Constitution. They are, then, above the power of Congress – just as Magna Carta and the Bill of Rights put the law above the king. (‘The king is subject to the law because the law made the king.’)
Those laws can be changed only by a process set down in the Constitution. The result is to add to the mystical status of the Constitution. Americans actually get to read it and refer to it. You can hardly do that in England, and very few Australians ever get to open their written state or federal constitution. They are more interested in the subject of speeding tickets or parking fines. And we don’t think that is such a bad thing. There is a lot to be said for the notion that laws and judges are like football umpires – better seen but not heard.
The U S has led the world in legally enforcing what are called civil rights. But there have been frightful accidents. We may here note just the most notorious – a law that puts the whole of the U S on the nose in my country, England, and Europe – the right to bear arms.
The English knew that King John was a rat and would try to renege on his deal with the barons. They therefore reserved in Magna Carta the right to send in what we would call receivers and managers into the king’s domain if he breached the agreement. This horrific clause would be beyond even Vladimir Putin now and it did not go down so well then in Rome. This security was left out of the succeeding versions.
What would they put it its place in the Bill of Rights? A young ‘low born barrister’ named Somers got the brief. The document as finally settled and agreed eschewed the receiver model. Instead, the king could have no army, but the people could stay armed. So, if there was conflict, guess who would win.
The settlement endured, and its terms are hardly ever referred to. (The best drawn agreements are those you never take out of the drawer.) This one did its job, and no one has sought to invoke what the leading historian of that era called an ‘implicit’ right of rebellion (a term that would make constitutional lawyers very uneasy – especially if they reflect on the French approach to that issue after 1789).
The right to bear arms was of course limited to Protestants and hedged with caution. A principal object of the whole settlement was to seek to deal with the most lethal blight of the West – wars of religion – by making it impossible for a Catholic to sit on the English throne. Such a law would now be against our municipal laws about religious discrimination, and that is one reason why it is at best tricky to seek to apply such a law to us in its terms today.
So, while the Bill of Rights is still part of the law of England, it does not take effect as it does in the U S. But one thing we may take for certain. No English court has been asked to rule, or would rule, that as a matter of law this right to bear arms gave a personal right to people to carry arms, including hand-guns, in self-defence.
Orthodox common lawyers are struck by two features of the majority judgment of the Supreme Court in Heller, the current leading case on hand-guns used in self-defence. First, it is one of those judgments that leaves you wondering how the contrary view may even have been put. It reads more like the argument of a zealous advocate than the reasoning of a dispassionate judge. Secondly, and relatedly, the majority judgment contains terms that are not just uncompromising and intemperate, but downright unmannerly.
The following phrases are alleged against the Justices in the minority: ‘incoherent’, ‘grotesque’, ‘unknown this side of a looking glass’, ‘the Mad Hatter’, ‘wrongheaded’, ‘profoundly mistaken’, ‘flatly misleads’. In most pubs I know, any one or two of those could get you a bad black eye, and you would not be heard to say that you had not asked for it. Some asides are just plain bitchy. ‘Grotesque’ is deployed for effect in a one-word sentence. In English, that word means ‘characterised by distortion or unnatural combinations; fantastically extravagant; bizarre, quaint’ (Shorter Oxford English Dictionary). This is five Justices describing the reasoning of the other four Justices. There is no restraint.
It is a matter of regret and surprise that the Chief Justice did not restrain this unjudicial behaviour; but not only did he not restrain it, he joined in it, with three other members of the court. I know of no other superior court in the common law world, or in Europe, where this kind of behaviour would be tolerated – either within the court or by those outside it.
It is hard for judges to be taken seriously when they preach restraint if they are incapable of showing it to each other. More worryingly, this is the kind of swaggering self-conviction that is likely to be seized on by manic gun lovers – and, now, the crowd at a MAGA rally – or the Capitol. It is hard to think of any area of judicial law-framing that requires more care and dispassionate judgment. A split decision five to four on such a political issue must erode public confidence in the working of the Constitution and government, especially when the majority says that the minority are behaving like the Mad Hatter.
This was a very bad failure of governance.
Well, some may defend the Court on the footing that this is, after all, America, and they do things differently over there. Quite so. If any citizen can carry a revolver down Pennsylvania Avenue, the Justices of the Supreme Court should at least be allowed to be rude to each other in public up at One First Street. This is public life at the frontier of courtesy. (When, during the war, a dissenting English Law Lord made a reference to the looking glass that his chief, the Lord Chancellor, had been unable to restrain, one of the targets of the barb took the unprecedented of delivering the reproof in a letter to The Times.)
The decision in Heller could not happen here or in England. Any such suggestion might even be dismissed as grotesque. You may as well seek to argue that Catholics either do not need or should be denied such rights in self-defence. You would overlook the effect and purpose of the law in its context – including the duty and not just the right of citizens to bear arms going back to the medieval fyrd and the Assize of Arms – and the fact that the Stuart kings had banned hand-guns in London because of the threat they posed to the peace of the king.
No responsible government in the world – not one – could wish that its citizens could remain armed as a kind of security for the good behaviour of government. No sensible government that has an army and a police force has any interest in its citizens maintaining a communal arsenal to be called on in the case of foreign emergency or civic unrest. We leave all that guff to the Romance of Tombstone Territory – and Hollywood. The American result is just what our laws were made to prevent. The primary function of the common law was, after all, to keep the King’s peace.
One of the problems in holding that the right bear arms may operate as a check on government, or a barrier to despotism – Americans prefer ‘tyranny’ – is this. Who rules on the question of whether that time has come? When that idiot with horns sticking out of his head despoiled the Capitol? Or when John Wilkes Booth jumped on the stage at Ford’s Theatre shrieking about tyranny (in Latin)? (Sic semper tyrannis.)
Now, the forces of violent unrest unleashed by Trump make this problem even more acute. How many of those criminals raiding the Capitol were, or were not, exercising their right to bear arms?
But let us suppose that the position narrowly arrived at by the Supreme Court is justifiable at law, who outside the NRA and its stooges, paid or otherwise, or the howling mob at the steps of the Capitol, would want such a result? The ensuing and repeated killings of school-children are a blot on the nation that mocks its aspirations to insure domestic tranquility. Worse, it mocks humanity itself.
What kind of person would want to live in a community that stands for this kind of butchery?