How Do You Change an Unwritten Constitution? – The American Spectator

It seems a strange thing to us in America, as we have lived under a written constitution for the better part of two and a half centuries. But Britain has lived with its unwritten constitution much longer than that, and Israel, closing in on her 75th birthday, has known nothing else.

There are certainly some drawbacks. Constitutional change in Britain has usually involved crises that rolled out over decades, sometimes bubbling over into violence and mutiny.

One of the greatest of these crises was the status of Ireland. The movement towards Irish self-government ebbed and flowed throughout the 19th century. The Liberal Party under William Gladstone finally ran a campaign on that issue. They carried the election and the House of Commons, but their Government of Ireland bill was defeated by the hereditary aristocrats of the House of Lords, who had veto power. Thus, the issue of Irish self-rule became entwined with the issue of the proper power of the unelected House of Lords.

In the years just before World War I, the Lords were faced with another Liberal administration, and fearing a loss of their power, they struck out, defying unwritten tradition to defeat a budget bill that they loathed for its welfare-state flavor.

But having broken constitutional tradition, they opened up the pipeline for constitutional change in a direction they did not wish. By the end of 1911, the Lords had lost the power to veto legislation. With the Liberals firmly in the driver’s seat in the government, it became clear that within a few years at most, Parliament would pass legislation establishing Irish home rule.

By 1914, passions over Ireland were boiling. The opponents of changing the fundamental constitutional relationship of Ireland with Britain contemplated mutiny and violence. Many of them were Protestant inhabitants of Ulster, the northern Irish counties, Orangemen, who feared a newly empowered Irish parliament seated in Dublin. The long years of Protestant heavy-handed dominance had come with a price that now might be payable. They were not willing to submit to the new constitutional order. They felt that constitutional change without their consent left them free to defend their interests, even by armed resistance.

Historian Robert Massie wrote of that summer of 1914:

There were active preparations for armed resistance. By summer, 36,000 rifles and three million rounds of ammunition were in Protestant hands. In their defiance, the Orangemen had the open encouragement of the British Conservative Party and the quiet complicity of a number of officers of the British Army. These officers, many with roots in the Anglo-Irish gentry, opposed Home Rule and were unwilling to participate in any military coercion of Ulster.

The refusal of officers to do their sworn duty is a characteristic of the resistance to constitutional change in Israel today. Changing the constitution is after all, changing the fundamental terms by which the people consent to be governed, and changes of which they do not approve feel like a betrayal of solemn treaty under which they have willingly accepted the law and order of the state.

A written constitution can avoid this problem by setting among its provisions an explicit process through which the constitution may be amended. Usually, this involves passing a much higher bar than normal legislation, for it is important for the fundamental rules to have the broadest assent.

Regularizing constitutional change has worked fairly well in America. Its greatest failure was on the issue of slavery. When the Taney Court ruled slavery to be constitutionally protected in the Dred Scott decision, and the pro-slavery bloc was large enough to block any constitutional amendment, then the commitment of the citizens to live together under one law was damaged. The written words of the Constitution and its procedures were no longer enough to hold the country together. The underlying unwritten compact was shattered and would only be restored when the slavery issue was settled by war.

It should not be surprising that in Israel’s current constitutional crisis, we should see such things as the threat of military officers not to perform their duty or of civil disobedience (blessedly far away from civil war). Changing the unwritten constitution touches the core issue of our allegiance, and for free people, that is never trivial.

Israel knows from its earliest days the importance of the people’s coming together, the core of an unwritten constitution. Every year, as Jews celebrate their liberation from slavery, a prayer of thanksgiving is said in which we declare, “Had [God] brought us to Mt. Sinai but had not given us the Torah, it would have been enough.”

That seems an astonishing thing to say. Was not the point of the Exodus for Israel to serve God through the covenantal laws of the Torah?

But the point being made was of the importance of the unwritten constitution that preceded the written law. Even laws of the highest sort, from God no less, require assent, a desire of the people to accept governance willingly. And so, we thank God for bringing us, together as one, to Mt. Sinai, as a thing worthy in itself.

For the Exodus text telling of the coming to Sinai encodes a deep and telling message:

They traveled from Rephidim and they came to the Wilderness of Sinai and they encamped in the wilderness; Israel encamped there opposite the mountain.

The sentence feels a bit jarring in its original Hebrew, for the verbs are all written in the plural form at the beginning, but then suddenly switch to the singular after the break I have indicated here with a semicolon. Why should that be? The subject both at the beginning at the end of the sentence is the same — the very many people of Israel. The commentary of the nearly two-thousand-year-old Mechilta decodes this: “They were as one person with one heart.”

This was the crucial coming-together of an unwritten constitution, one that has its call on every generation, for when the people transcend their individual differences, the differences of time also are overcome. The prayers of the Passover meal express it this way: “In every generation, a person is obliged to see himself as if he has just now come out from Egypt.” Freedom extends out over time and the compact it inspires to preserve it does so as well.

Centuries later, Edmund Burke remarked on this same phenomenon as it expressed itself in Britain. Its constitution, he wrote, is a “partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born.” Burke identified his thought as following that of John Selden, the constitutional pioneer who emphasized national tradition as the ongoing basis of law, and saw that constitutional arrangement flowing from the same source as Jewish law.

Israel’s legal traditions flow both from Britain’s and from the Jewish sources that Selden studied so deeply. It is now looking towards a written constitution, like America’s, that will constrain both its courts and its legislature. Like both America and Britain, it finds deep constitutional change unsettling. Like both America and Britain, it is through renewal of the people to that which brought them together to be governed by the highest that its way forward lies. First to realize this in history, Israel’s story and laws have become the cherished heart of the great modern constitutional nations. Now it must renew itself.

Israel will pass through this constitutional challenge by a renewal of the commitment of the people to each other, and consent once again to be governed by that which is highest. That is the way forward today, as it has ever been.

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