Constitutions: A British Problem
Our constitutions project is beginning to roll; in our next TV program, the guest will be Professor Jack Rakove of Stanford's History Department who was awarded a Pulitzer Prize this year for his book "Original Meaning: Politics and Ideas in the Making of the Constitution." He spent last year at Stanford in Oxford, and so is especially well-equipped to throw light on a peculiar aspect of our project, namely the influence of the American constitution on the unwritten British constitution from which it derived. There is a significant article in THE ECONOMIST (October 25, pp. 17-18) on
the possible adoption by Britain of the European Convention on Human Rights. This takes us back to the U.S. Bill of Rights and the French Droits de l'Homme.
A major concern in the United States, reflected in Professor Rakove's book, is the role of the Supreme Court. This constitutional crisis exploded when the Supreme Court derailed President Nixon's claim that he as President had the right to interpret the constitution. The Court thereby made possible his impeachment. Since then conservatives and others have accused the Supreme Court of politicizing the constitution. Hence the calls for a return to "original meaning," whatever that is.
In England the relationship is different. Executive power rests with parliament; the Law Lords, members of the House of Lords, are the equivalent of the Supreme Court. It thus becomes an issue between the two houses of parliament. If Britain adopts the human rights convention, the Law Lords will not be able to strike down laws which conflict with it. The Law Lords will simply be able to ask Parliament to reconsider. British parliamentary history has been marked by measures which have reduced the House of Lords to an advisory role. British constitutional tradition has been based on parliamentary sovereignty. (So the Queen is not sovereign! Black Rod must beg Commons to go to the House of Lords to hear the message written by the Prime Minisier and read obediently by the Queen.) Since Parliament really has total power , the British system is held to be more directly democratic than that of the United States.
THE ECONOMIST, a neoliberal journal, proclaims "Parliamentary sovereignty is an anachronistic doctrine. In a democracy, the electorate should be sovereign." It sounds like the populist mantra about "we, de peple." What if, as in Nazi Germany, the the people elect a government which overrides the constitution?
Tony Blair, an intelligent and sensible man, as well as a lawyer, says " A decent society is not based on rights. It is based on duty. Our duty to each other." Good for Tony, but THE ECONOMIST does not cheer. Instead it promotes the 1982 Canadian Charter of Rights, by which top judges have the right to veto national or provincial laws which violate the charter. If, despite this, a law deemed urgent by parliament is passed, it must be renewed every five years. The Canadian Charter specifically mentions provincial laws, with an implied reference to Quebec. THE ECONOMIST rightly claims that the Charter has worked well. Is Canada setting a good example not only for Britain but also for the United States?
Ronald Hilton, 10-28-97
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Constitutions: A British Problem - A Footnote
The recent meeting of [former British] Commonwealth leaders in Edinburgh raises a curious problem. In its former colonies. Britain introduced the Westminster system of parliament, which is more openly confrontational than the American congress. At the 1991 meeting in Harare, the leaders established the goal of promoting democracy, the rule of law, and the respect for human rights. Now the Commonwealth is being expanded to include countries like Mozambique, presumably admitted as a democracy. The Commonwealth can even expel members which do not meet the criteria. It is thus in theory more "democratic" than the U.N. Britain has had trouble with the EU over human rights. The Commonwealth can likewise rebuke Britain. The U.S. pays little attention to the U.N., and virtually none to the Commonwealth. However, the Commonwealth has more appeal for the heads of its states and government of its 50-odd members than does the U.N., whose General Assemblies attract less and less top people.
Ronald Hilton, 10-30-97
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