Indeed, I find it slightly shameful that we should even need to talk about having such a document: surely the point is that our Common Law legal system and our Parliament's dedication to freedom rendered such amateurish scribblings unnecessary. A hard-written Constitution, surely, was only required for the colonies.
Of course, it has become rather obvious, over the last century or so, that a US-style Constitution might not have been a bad idea—although the enemy of freedom has not so much been our judges or our Parliament, but the people who elected the latter cunts to office.
It has been the people of Britain who have failed the cause of liberty, as greed has provided the motive—and democracy the means—to pick the pockets of their fellow countrymen.
That being said, your humble Devil does not believe that a written Constitution would be a good idea—there are many reasons for this, but the most pertinent is the character of those who would be writing it.
I was going to write a long and detailed post on said reasons, but Bella Gerens has pretty much covered everything that I wanted to say, and I do recommend that you go and read her post on the subject—being an American and quite bright, she does have some inkling of what she's talking about.
But, in regards to those who would be constructing this Constitution, Bella has precisely the same qualms as I.
Then, naturally, one must consider who would be writing the British constitution. The organisation of the British polity would seem to demand that this be undertaken by the Government, which undertakes all other matters generally, whether by use of executive privilege or its majority in the House of Commons. A Government-composed constitution would naturally result in a highly-politicised, fad-filled document reminiscent of the European Charter of Human Rights, which includes absurdities like the right to an education and the right to healthcare. Many of the ‘rights’ described therein can only be guaranteed and provided by a collective entity – the state – at the expense of others. What it would come down to is a pitting of right against right, liberty against liberty, entitlement against entitlement, wherein your right to your property is overridden by my right to healthcare, just to name an example. A true constitution would include as rights or liberties only those things which are universal to all people at all times, and thus do not conflict with one another. Call me sceptical, but I doubt that any British Government of whatever party would produce anything of the sort.
Quite. This was something that I more than hinted at when I wrote this post (please forgive me quoting myself so extensively, but I remain quite proud of it).
The crux of the argument is this: once upon a time, our rights were only those which did not need to be defined—what some would call "negative rights"—and which were centred around the human right, basically, to be left the fuck alone.
Now, our rights are described and circumscribed by the state—so-called "positive rights"—and it is the state that defines what our rights are, and the state, therefore, can also remove those rights.
For example, when the state defines that citizens have "the right to an education", what it actually means is "the right to an education provided by the state and funded through the extortion of money from other citizens".
"Surely, Devil," some will cry, "this is a bit of a leap of imagination?" No, not really: let me amplify.
There is no such thing as free education and if someone cannot afford to pay for an education for their child, then the money must come from someone else. And the only way that you can absolutely guarantee that this money can be obtained—as opposed to, for instance, soliticiting charity—is to know that it can be stolen from someone else.
And the money must be stolen from someone else because the state has said that the right to an education is a fundamental "human right": therefore, not only must the right to an education be delivered upon, but it morally supercedes the right not to have the product of one's hard work stolen by force (because being allowed to keep one's own property is not, you see, a "human right").
And the only organisation that can be allowed to steal people's property by force is the state. This is not only to allow the state to keep order, but also because any other agency which was allowed to steal from people would be a competitor to the state—a challenger to its power—and thus absolutely cannot be allowed.
(There are agencies in the UK other than the central government who are allowed to steal to fund their programmes, of course; these include the Scottish government and local councils. However, they depend upon the central government for their power, much of their money and, indeed, their very existence; they are thus part of the collective entity known as "the state".)
And since the state is the only entity that can legitimately steal from people, the state is the only entity that can guarantee "the right to an education" and, by extension, all of those other "positive rights" that are now defined.
And so, because our rights are now defined by the state, we have become subjects—vassals of the state—and have simultaneously entrenched the rights of the state to continue to steal off us.
For, if human rights (as they are now legally defined) are an absolute moral good and the state is the only entity that can deliver those rights, then the very existence of the state itself must be an absolute moral good.
And if the state is an absolute moral good, then the state's right to steal off individuals must also be an absolute moral good. As such, the state-defined "positive human rights" must trump—both practically and morally—any individual rights at all.
As such, the state is now the most important entity in the country; it is far more important than any individual or collection of individuals.
And that is why we are treated with such contempt by our rulers: because they are an absolute moral good and we are merely aphids to their ants—aphids to be farmed for our sweet sap—so that the state can deliver to us our "human rights".
And that is why our freedoms have never been so clearly defined and yet so clearly non-existent.
Bella also raises another problem—one that conflicts with the idea of Parliamentary sovereignty in what currently passes for our Constitution: that no government may bind a future administration.
One must also consider the issue of parliamentary sovereignty. Even if such a document were to be produced and ratified, one parliament cannot bind future parliaments – unless that traditional convention were to be specifically negated in the new constitution. Given the current disagreement about the Lisbon Treaty, I’m not sure that the binding of future parliaments is a precedent that ought to be set, let alone codified in a constitution. It is a distinct advantage and disadvantage of the British system that change in laws and institutions can occur quickly and without warning; take away that ability to institute the good and eliminate the bad, and one ends up with a petrified, moribund system like the US has, where even necessary change is slow to take place and the checks and balances on each and every branch of government mean that very little growth and evolution are possible. This works in the US because we’re used to it – it’s always been that way – and because the original system was conceived of and implemented by men who were steeped in Enlightenment thought and truly wished to create a polity whose values and operation would be acceptable to all people at all times. So far, they have been more or less successful. But I consider it very unlikely that any constitution the British government produces would have this aim in mind, much less achieve it, and thus I think it very unwise of the British people to bind themselves to a document of the times and the prevailing political and social mentality.
We have seen what a Labour government's idea of a British Constitution would look like, for Jack Straw was eagerly trying to push it upon us. It had, if you remember, an awful lot about the duties of the people to the state, and not an awful lot about freedom, about liberty or, indeed, the right to be left the fuck alone to get on with one's life.
No, any Constitution written in this day and age would be very much like the much-mentioned Social Contract: something you never signed or agreed to, which allows the state absolute licence to pinch your pocket whilst constantly changing what it is obliged to deliver.
I already feel like Lando fucking Calrissian; indeed, your humble Devil can often be found striding around, muttering "this deal just keeps getting worse".
Do you really think that a British Constitution written in this day and age would look more like the US version than the Lisbon Treaty? I think not.
Those of you who yell for a written Constitution—seriously, just consider what you are asking for. Do you think that libertarians will be writing this document? Or do you think that the hideous mores of so-called Social Democracy will be set, near enough, in legal stone—almost unchangeable—for the next few centuries?
In the words of one comedy character, "is that what you want? 'Cos that's what'll 'appen". And, believe me, that would be no laughing matter.
Another point that utterly fails to amuse me is the near-mythical power that some people—mainly libertarians—ascribe to such a document. Somehow, this would secure our freedoms and bring peace and order to the galaxy, or something.
If we accept that the US Constitution is one of the better documents produced, how has that fared? Here's Bella again...
If one uses the US constitution as a basis for judgment, one runs into problems immediately. The first, and most obvious, is that the existence of such a document does not in any way guarantee against its infringement or selective interpretation. There are many schools of thought in the US about the purpose, place, and meaning of the constitution, ranging from the strict constructionist, the Founders’ intent, all the way to the ‘living document.’ The fact that there is a document – a particularly clear and well-composed one, I might add – has not stopped anybody from reading his or her own wishes, intentions, and prejudices into its text.
It is also the case in the US that the provisions of the constitution are routinely, one might even say ritually, infringed. There has never been a point in history at which the liberties outlined therein have been available to all Americans at all times. Politicians are very good at coming up with reasons and justifications, however spurious and transparent, for circumventing, withdrawing, or otherwise ignoring the protections set out in the constitution.
The anti-Federalists were worried that, in setting out the rights of individuals, a constitution would limit individuals only to those rights, and prevent people from claiming those traditional liberties which had never been legally stated but had always been understood to exist. Their worry turns out to have been true: as the constitution is interpreted in the US today, an American citizen possesses only those rights which are detailed in the first ten amendments to the constitution, and no others. Right to property is conspicuously absent.
What does all of this mean? Well, to put it succinctly, that the US (as I have been learning over the last few months) is very far from being the low-tax paradise "Land of the Free" that many libertarians and Conservatives would like to believe. (Just try getting into the damn country, for starters.)
To put it even more bluntly, the US Constitution will delay the onset of full-blown Social Democracy—of the type that we so bountifully "enjoy" in this country—by only a few decades.
Even now, the US is moving ever more rapidly towards socialised healthcare, towards more and more Federal—that is, central government—control, towards greater and deeper central state interference, pocket-picking, nanny-statism and protectionism. President Barack "fucking idiot" Obama may well complete the destruction within a few years.
No, I have come to the conclusion that one of the few things that would make me seriously consider leaving this country—and all of its beautiful ale (and it would take an awful lot for me to leave that)—is a written Constitution.
Because that Constitution would be written by cunts: it is already bad enough that we are ruled by cunts, but at least we can choose a different set of cunts after five years and we can hope—if a little forlornly—for a set of decent people eventually.
With a Constitution written in this day and age, we would be stuck with a legal document that would force us all to be cunts ruled by cunts, and adhere to the principles of cunts for many a long year.
UPDATE: regarding the ECHR, Bella has provided a correction. She was, it seems, thinking of the Universal Declaration of Human Rights which does, in fact, contain such sentences as...
(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages Elementary education shall be compulsory Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
Mea culpa, etc.