What Even Is a “Constitution”?

Boris Johnson, like his ideological cohort Donald Trump, inarguably left his country worse off for having held power. Both men governed through a mixture of whimsy, machismo, and telling the worst elements of the masses whatever they wanted to hear. Their incoherent policies and inability to stomach change left their countries defenseless against a world-class pandemic and economic volatility. Both leave their official residence permanently stained with a combination of Red Bull, gunpowder, and jizz.

But despite their similarities, their positions aren’t interchangeable. American newshounds sometimes forget that American and British systems follow different patterns, starting with one fundamental gap: Britain doesn’t have a written constitution. While the United States has the world’s oldest written constitution still in force (and the second shortest, hat-tip to Monaco), Britain only ever had a written constitution during Cromwell’s Commonwealth. Johnson’s position depends entirely on the entire government’s ad hoc agreement that it exists.

This doesn’t mean Britain has no constitution. But where America’s supposed principles are written down and subject to rhetorical analysis, Britain’s constitution is decentralized. It consists of traditions, legislation, treaties, and sometimes handshake deals. Americans have recently witnessed the ways our judges argue about how to construe Constitutional texts, sometimes in ways little more erudite than reading a Ouija board. British constitutional debates, however, often begin by arguing over which laws actually are the constitution.

Superficially, the American approach seems more reasonable, at least from the rhetorical debate perspective. Having a system of principles lets us draw a line and say the argument can reach back this far, no farther. We don’t have to constantly relitigate the organization of Congress, for instance, unlike Britain, where all hereditary members were expelled from the House of Lords in 1999. Likewise, Britain’s Supreme Court wasn’t established until 2009, and remains subordinate to Parliament.

P.J. ORourke

However, American Constitutional politics are equally flimsy when pressed. To provide one example that’s mattered recently, the Second Amendment is only 27 words long. But as rhetorician Craig Rood points out, those 27 words aren’t the entirety of the Second Amendment. Nearly 250 years of case law, tradition, lobbying, and media messaging have defined how we receive those 27 words. So, although our Constitution is the world’s oldest, it’s evolved more than we may realize.

I grew up in a conservative Republican household. Conservative humorist P.J. O’Rourke accurately described my adolescent poli-sci understanding when he wrote: “I take the same attitude toward the Constitution that Reformation Protestants took toward the Bible: anyone can read it and witness the truth thereof.” But as a Christian and an American citizen, I’m now mature enough to realize that both the Bible and the Constitution are littered with centuries of debate, misreading, and baggage.

For instance, in 2008, the Supreme Court held in D.C. v. Heller that the Second Amendment granted individuals the right to privately own firearms, a position never previously held in American case law. Even conservative courts had fudged on that interpretation. Did the Constitution change when the Court offered that opinion? Actually yes, it did. Though the text remains unamended since 1992, recent decisions like Heller, Dobbs, and Oklahoma v. Castro-Huerta do change the Constitution.

Let’s complicate things further. These Supreme Court decisions define how we read and apply the Constitution, and especially in an activist Court like this one, that reading can change rapidly. But the Supreme Court’s constitutional review authority isn’t in the Constitution. Article III vests judicial authority in “one supreme Court,” but doesn’t enumerate that Court’s authority. The very judicial review which has caused such anger recently, is a matter of judicial precedent, not Constitutional authority.

Therefore, though America has an 8,000-word textual backstop against rhetorical anarchy, which Britain lacks, that only means something in the most general sense. Like in Britain, reading the actual Constitution requires plowing through reams of relevant legislation, precedents, and treaties. After nearly 250 years, our Constitution is a morass that only specially trained lawyers have the capacity to parse. If you can’t afford an attorney, you have little chance of knowing your rudimentary Constitutional rights.

We’ve heard the words “constitutional crisis” used recently to describe the hurricane-like devastation which Donald Trump and Boris Johnson leave in their respective wakes. But I suggest that any such crisis predates the men who made it visible. Though Trump is out of office, and Johnson will soon be, we can’t ignore the truth both men have exposed: that when a nation’s constitution is unreadable, powerful people will exploit that obscurity to do terrible damage.