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Monday, January 14, 2019

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. 

Posted by Gerard Magliocca on January 14, 2019 at 02:31 PM | Permalink


Weren't the british isles invaded pretty much non stop until 1300? Picts angles saxons norman to name a few after the Romans 2000 years ago ?

Posted by: Mike22 | Jan 15, 2019 1:54:51 AM

If the dems would agree to give abortion back to the states, the repubs would agree to give guns back to the states.

But we've already defined a right as something geographically universal (in all states), and so we can't go back to time when rights only applied in some, but not all places.

Applying a right only in some states---those with that right in their state constitution--- seems as offensive as only applying it to men, or whites, or christians, or heterosexuals, or the wealthy, or the landowners.

Because a right doesn't really apply to all women, or all blacks, or all poor people, etc. if it doesn't apply to the women and blacks and the poor in say, Mississippi or South Dakota.

To apply a right to all women or blacks or the poor means applying it to everyone in all states--especially those states with the most number of blacks or poor or homosexuals, etc.

And so long as it's the supreme court's job to make sure all rights apply in all states (incorporation), confirmation battles are a life and death situation.

Posted by: Substantive Dewey Decimals | Jan 14, 2019 10:43:10 PM

Interesting. Just worth to note, that not less important, is his call for flexibility over rigidity, here I quote concerning England :

Yet all classes and all parties have a deep, underlying conviction that these vast, flexible powers will not be abused, that the spirit of our unwritten Constitution will be respected at every stage.

And concerning the US and British constitution :

A true interpretation, however, of the British or the American Constitution is
certainly not a chop-logic or pedantic interpretation. So august a body as the
Supreme Court in dealing with law must also deal with the life of the United
States, and words, however solemn, are only true when they preserve their
vital relationship to facts.

End of quotation :

So, according to him, rigidity, is formal guarantee for liberty, but the real thing, is the non written spirit or constitutional principals, that should be preserved above all and by independent judiciary.

P.S : One can reach the file in an independent and more convenient form, here :



Posted by: El roam | Jan 14, 2019 5:19:43 PM

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