[update on 28 March 2005: This article has been followed-up on and partially retracted here]
Among constitutional scholars there was a big divide between those who think that the best safeguard of democracy and human rights is to have a strong written constitution - and those who prefer an unwritten constitution.
I tend to think that when things are going well, a good written constitution will almost always be better. It can help provide a good check on goverment by those without power. But any written constitution is only as strong as a nation's citzenry, courts, law makers, and law enforcement willingness to be bound by it, even when it goes against their immediate wishes. It is so easy for a written constitution to be misinterpreted and marginalized and ultimately ignored. There are numerous examples where a country's constitution's is not so much of a fundamental binding legal document, but a wish list. For example, look at Part II chapter one of the Sudanese constitition. Such a huge gap between the words and the reality! I worry that the US has started to head in this direction.
I could name countless examples , but I'll limit myself to three, concerning each of the branches of goverment. ...
Firstly concerning the executive branch. It is becoming increasingly difficult and dangerous to attend a legal non-violent demonstration. The phenomenon of "free speech zones." That non-violent peace and environmental activists are increasingly being lumped in with violent terrorists as a threat to society. I know that in the past, during times of war or heightened national anxiety, that constitutional protections have been weakened and then restored when the conflict is over. The trouble is that the "war against terrorism" is a war with no end and so the current weakening of constitutional protections may never be reversed.
My second example (about the legislative branch) is the "nuclear option" as applied to the US Senate. Some Republicans, frustrated at being unable reach a 2/3 majority to break Democratic filibusters, are considering changing the filibuster rule from the chair of the Senate, which would only need a simple majority. This option has not been done yet, but if it ever is, it is aptly named because it will nuke the last vestiges of Congressional comity out of existence. It will also be a precedent that whenever a party gains power, that they can remake all the rules in their favour. Of course this is already happening, as evidenced by the redistricting scandals going on in several states.
Of course there's a hope that the Supreme Court will find this opportunistic and blatant gerrymandering to be unconstitutional, which leads to my third example concerning the judicial branch. I am almost certain that whatever the Supreme Court decides in Vieth v. Jubelirer, 02-1580, it will be a sharply divided 4-3 split. Courts of law are not meant to operate like a legislature, with two divided voting blocs and a couple of swing votes. Of course, the most heinous example is Bush v. Gore 531 US 98 (2000). In the face of Republican bullying to "get over it" most people have forgotten what a momentous decision this was from a constitutional perspective - irrespective of its drastic political implications. This was an example of political ideology and alliegiance prevailing legal arguments. The majority, who are usually very pro-states rights in most of their decisions, voted to override a State Supreme Court interpretation of a state law. In the US (unlike Australia), this only happens in the most exceptional circumstances.
To quote from Justice Breyer's dissent:
"And, above all, in this highly politicized matter, the appearance of a split decision runs the risk of undermining the public’s confidence in the Court itself. That confidence is a public treasure. It has been built slowly over many years, some of which were marked by a Civil War and the tragedy of segregation. It is a vitally necessary ingredient of any successful effort to protect basic liberty and, indeed, the rule of law itself."
How could an unwritten constitution protect this?
Australia has a hybrid constitution. There is a written constitution that exists mainly for the purposes of defining the relationship of the federal and state levels of government. It says very little about personal freedoms - that was left for the unwritten constitution, which was inherited from the United Kingdom.
The only way that an unwritten constitution can work is to inculcate into a whole nation, especially its leaders, the fundamental values that underly a democratic system. This is far from a perfect system either (there is no perfect system) and in the short-term, a written constitution is weaker, so that government is less restrained and do can more good and more bad. But I think over the long-haul it can be more effective. Institutions and practices and conventions may evolve and change over time, but they can't just be thrown out unilaterally (e.g. changing the practice of redistricting or the "nuclear option") - because this behaviour is obviously an attack at the very foundation of an unwritten constitution - fairness. And because most people are decent, they hold usually back, even if it's not in their immediate interests. And if those people who are not fair-minded try to subvert the unwritten constitution, the fair-minded majority - on both sides of a debate or in a political chamber - will often prevent this.
Fairness. Decency. There are all fuzzy words and I don't apologize for them. They definitely mean something, but they are hard to pin down and their meanings change over time.
When there's a written constitution, fairness is replaced by the words of the constitution - and legalism takes over.
Many people in the US assume that because of the First Amendment (and for some scary people, the Second), that Americans have more freedom and liberty than anyone else. I know that I'll feel a lot more free once I return to Australia. Although there is much wrong with its system of goverment, including instances where the unwritten constitution has been bested by brute political power. Yet I'd feel a lot more comfortable expressing an unpopular point of view there rather than here, even when Australia has no actual law that protects my right to dissent and the US does.
