A Constitution Written and Unwritten: America, Britain, and Israel – The American

America has an unwritten constitution. It’s not well-known, but it is powerful. It governs even the written constitution which we know so well.

Where has such a constitution been hiding?

In plain sight.

Consider: after the Civil War, America took giant steps in fulfilling the Declaration’s ideal of political equality. That ideal had been gravely compromised by the ongoing existence of slavery, a moral compromise, Lincoln mused, that was atoned for through four years of bloody civil war.

In the aftermath of that war, Congress passed and the states ratified three Constitutional amendments, ending slavery and guaranteeing civil rights to America’s blacks and to all Americans. What could be plainer than this text from the 14th Amendment:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Or of this text from the 15th Amendment:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Yet after the termination of Reconstruction as part of the bargain that resolved the Hayes/Tilden presidential contest, the country witnessed the methodical stripping of political rights of blacks in the massive legal edifice of the Jim Crow laws throughout the old slave states. Some of those laws were ruled unconstitutional, but not enough to change the fundamental complexion of black life under Jim Crow as anything other than a second-class citizenship with reduced rights. In perhaps the most famous Supreme Court decision of the Jim Crow era, Plessy v. Ferguson, the Court set forth a doctrine of “separate but equal” as being enough for compliance with the 14th Amendment. This doctrine ruled for more than half a century until Brown, even though it was perfectly clear that while separation was indeed strictly enforced, the equality was not.

Failing unwritten constitutional support, the written constitution cannot stand. It was only after the horrors of Nazi racism were witnessed by tens of thousands of GIs and were seared into the American conscience that the will of the people amended itself. Postwar America committed itself towards the achievement of the civil rights that had been clearly mandated in the 14th and 15th Amendments, and step by step, the changes on paper started to become real.

Three years before World War II, Winston Churchill, then an outsider in British politics, addressed an American audience in an article in the then-popular Collier’s magazine. Titled “What Good’s a Constitution,” Churchill compared and contrasted the virtues of the unwritten British constitution with America’s written one.

He began by noting that in Germany, Russia, and Italy, they had reached a “somber, tremendous decision” to subordinate the individual entirely to the will of the state. Such subordination, he noted, is generally agreed upon by all to be appropriate during times of war. Now the fascist and communist states alike are claiming that all of life should be seen as a war, justifying permanent subjugation of individuals to the state’s claims.

Against them stand the constitutional democracies, for whom he advocates. Alluding to the Declaration, he confesses:

I hold that governments are meant to be, and must remain, the servants of the citizens; that states and federations only come into existence and can only by justified by preserving the “life, liberty and the pursuit of happiness” in the homes and families of individuals. The true right and power rest in the individual. He gives of his right and power to the State, expecting and requiring thereby in return to receive certain advantages and guarantees.

He believes that America and Britain alike hold to this concept of the relation of the state to the people. It is the individual who empowers the state under the terms of a constitution.

After praising America’s written constitution as a strong bulwark against the abuse of civil rights, he explains to his audience how Britain’s unwritten constitution works:

American citizens or jurists in their turn, gaze with wonder at our great British democracy expressing itself with plenary powers through a Government and Parliament controlled only by the fluctuating currents of public opinion. British Governments live from day to day only upon the approval of the House of Commons. There is no divorce between the Executive and the Legislature. The ministers, new or old, must be chosen from men and parties which in the aggregate will command a majority in the House of Commons.…

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.…

Popular opinion acts as a guardian of the unwritten Constitution. Public chastisement would speedily overtake any minister, however powerful, who fell below the accepted standards of fair play or who descended to trickwork or dodgery.

Churchill points out the extraordinary history of Britain that brought about this kind of respect, and he granted that the sheer size and diversity of America necessitates its move to set down the constitutional structure in writing. He wrote:

The so-called “rigidity” of the American Constitution is in fact the guarantee of freedom to its widespread component parts. That a set of persons, however eminent, carried into office upon some populist heave should have the power to make the will of a bare majority effective over the whole of the United States might cause disasters upon the greatest scale from which recovery would not be swift or easy.

Today’s constitutional crisis in Israel is playing out along the dynamic that Churchill noted so clearly back in the Thirties. As a former British mandate, Israel inherited as system of law operating on an unwritten constitution. But the small Israeli state hosts varieties and passions far wider and more volatile than those of the placid Britain of the pre-war years. The reasons that Churchill identified as making an American-style written constitution more desirable — its robustness, its explicit guarantees — offer a stability and a workableness that the current unwritten constitution has crucially failed to offer.

All sides in Israeli politics identify a threat to democracy. That is unanimous. They also both agree that the threat lies in giving one branch of government unchecked power. They only differ in which branch that might be, although they both agree that it is the branch of government which they do not control — for the Right, the court, and for the Left, the Knesset, Israel’s parliament.

The Algemeiner on March 28 quoted Jonathan Schanzer of the D.C.-based Foundation for the Defense of Democracies:

The dialogue that has been proposed by President Herzog between Benjamin Netanyahu, Benny Gantz and Yair Lapid could begin a historic process that could yield Israel the constitution that many have yearned for.

Despite the tremendous political battle going on, which is typical in both the U.S. and the UK as well when major constitutional issues arise, the points of agreement in constitutional terms are many and essential. The difference is only one, but that too reduces to a clear constitutional principle that can be clearly enunciated and should be able to command universal assent: in order to preserve the rights of those out of power, essential for democratic freedom, no branch of government should be empowered without a practical check.

Such a principle must be enunciated. No one is trusting the other side not to seek its own advantage. Only with a robust constitutional formula that protects everyone’s rights in principle can the mistrust be removed from the table and the underlying unwritten consensus be revealed in all its power.

Why it is no coincidence that the coming together of the written and unwritten constitutions should take place in Israel will be the subject of next Sunday’s article.

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