What Good's a Constitution?

What is the best constitutional design for a diverse society? Today the standard answer to this question comes from James Madison's essay in Federalist #10. In 1936, Winston Churchill wrote an essay on "What Good's a Constitution?" that offered a somewhat different answer. This essay has received little attention in law review circles, so I thought I would offer some commentary on the piece. (The link is a little quirky in that the article is divided into two parts, but you can navigate that if you try.) 

Churchill asked why judicial review was necessary in the United States but not in Britain. His answer was that the United States was far more diverse than Britain. The Founders, he said, "did not think it possible to entrust legislation for so diverse a community and enormous an area to a simple majority." "In this small island of Britain," he continued, "we make laws for ourselves. But if we had again attempted to apply this flexibility and freedom for the British Empire, . . . it would have been broken to pieces. Although we have a free, flexible Constitution at the center and for the center of the Empire, nothing is more rigid than the established practice --namely, that we claim no powers to interfere with affairs of its self-governing component parts." Thus, "[t]he so-called 'rigidity' of the American Constitution is in fact the guarantee of freedom to its widespread component parts." 

In a 1957 address to the American Bar Association, Churchill expanded on these themes. "An omnipotent Parliament and a small legal profession," he said, "are all very well is an island which has not been invaded for nearly 2,000 years. Forty-nine states [48 plus the federal government] each with fundamental rights and a different situation, is a different proposition." "The Supreme Court survived and flourished in the United States," he concluded. "England was too compact and too uniform a community to have need of it." (I would add that many state supreme courts operate within much more uniform polities, and they probably resort to judicial review less often as a result.)

I wonder if there are lessons here for our polarized age. One way of understanding a fixed constitution is through a strong principle of stare decisis. If constitutional law were more fixed in practice, then that might lower the temperature of national elections and judicial confirmation battles in our ever more diverse nation. But there is no constituency for strong constitutional stare decisis these days.