“That’s Unconstitutional:” The Need for a Codified Constitution

Before the United Kingdom’s withdrawal from the European Union in 2019, former Prime Minister Boris Johnson of the United Kingdom of Great Britain and Northern Ireland attempted to prorogue Parliament for five weeks, an action that his political adversaries in the U.K. deemed unconstitutional. However, an American reader might be shocked to learn that their country’s predecessor and one of the foremost Western democracies lacks a constitution. Indeed, the U.K. lacks a codified constitution: a constitution clearly written out in a single, supreme document. The U.K. is not the only country without a codified constitution. Like the U.K., other countries without constitutions are widely regarded as great democracies, such as Canada and New Zealand. While these countries rank high in quality of life, evident with all of them scoring a rating of above .9 on the Human Development Index [1], a lack of a codified constitution can leave a nation politically vulnerable during an unexpected constitutional crisis. As these governments lack a single sovereign document to which they must adhere, critical situations will inevitably lead to tension between the branches of government in a democracy, ultimately posing the threat of a constitutional crisis [2] and possibly tyranny. Therefore, a codified constitution, similar to that of the United States, should remain the objective of any stable democracy to protect it from any possible legal uncertainty evident in countries with uncodified constitutions; this conjecture is supported by continuous efforts in democracies to enact codified constitutions.

A vast majority of the world’s nations retain codified constitutions as the supreme legal document of their respective states; however, a few countries utilize combinations of statutes, conventions, and precedent to run a country: uncodified constitutions. A codified constitution declares the country’s supreme law in one document while an uncodified constitution consists of a variety of statutes and conventions, “not contained within a single legal document,” that comprise the supreme law of the land [3]. Depending on the source, the number of countries with uncodified constitutions varies between three and five countries. For example, Robert Blackburn of the British Library claims only the U.K., New Zealand, and Israel retain uncodified constitutions [4]. Meanwhile, the World Atlas considers five nations to hold uncodified constitutions: the U.K., New Zealand, Israel, Canada, and Saudi Arabia [5]. As I only recommend codified constitutions in democracies, this argument will not discuss the legal system of the Kingdom of Saudi Arabia: a self-described absolute monarchy. Furthermore, as Commonwealth Realms under the executive power of Queen Elizabeth II, New Zealand and Canada will be left out of this article. I will focus on the uncodified Constitution of the U.K. Widely considered the most democratic state in the Middle East, this article will also consider Israel’s current Basic Laws and its attempts to codify a Constitution. Rather than just critiquing the uncodified constitutions of the U.K. and Israel, I will comparatively analyze their uncodified constitutions with the Constitution of the United States of America.

The U.S. Constitution exists as a clear supreme law of the land despite its subjection to interpretation through the judiciary and amendments through the legislature. The U.S.’ codified Constitution sets out the fundamental principles of government. The first three Articles of the Constitution clearly establish and illustrate the functions of the three branches of government: the legislature, executive, and judiciary respectively [6]. The remaining four articles most importantly describe the federal structure of government, the ability to amend the Constitution, and the supremacy of the single codified Constitution of the U.S. [7]. Furthermore, the U.S. Constitution contains 27 amendments to its original composition; the Bill of Rights clearly set out the individual rights and liberties of the citizens of the U.S. [8]. The remaining 17 amendments mark legal responses to historical events, continuously shaping the government of the United States. Amendments, passed by the national and state legislatures, display the flexibility of the Constitution and its inherent inclination to adapt to the times. The flexibility of the U.S. Constitution is further illustrated by the power of judicial review. The judiciary interprets the Constitution as established by judicial review in the Supreme Court Case Marbury v. Madison (1803) [9]. The power of judicial review is an “implied power, derived from Article III and Article VI of the U.S. Constitution” [10]. The power to interpret the Constitution is granted by the Constitution itself. The Constitution’s bestowment of interpretation to the judicial branch provides greater stability and a system of checks and balances for the state, crucial for a democracy that doesn’t want to die in darkness. The Constitution’s ability to be amended and interpreted while maintaining its fixed stature as the supreme law of the land not only creates a solid foundation for the government of the U.S., but also shines as an example to the democracies of the world.

Conversely, the lack of a codified supreme law of the land creates problems for a nation. The supreme law of the U.K. is “one formed of Acts of Parliament, court judgments and conventions” [11]. The U.K. relies on convention for the smooth operation of Parliament, which consists of the House of Commons, the House of Lords, and the monarchy [12]. In reality, many of the functions of Parliament are not legally binding. For example, “the very existence of the office of Prime Minister… is purely conventional” [13]. Additionally, one could describe the position of the monarch of the U.K. as a figurehead. However, “in legal theory,” the monarch retains “absolute” power [14]. The monarch could legally reject any “Bill passed by the two Houses of Parliament; [h]owever, convention” results in the monarch “assent[ing] to any government bill… passed” [15]. The absolute power, legally held, by the monarch of the U.K. poses a great threat to democracy because a non-elected individual legally retains complete power. Furthermore, the monarchy of the U.K. is hereditary. If an individual, with despotic tendencies, ascends to the throne and is backed either by the military or a mob of the people, the U.K. could dissolve into tyranny. Since the existence of the Prime Minister, the highest position in the U.K., “is purely conventional” [16], a despot could easily dispose of the democratically elected leader of the country and exercise their full power, destabilizing the country. While the threat of tyranny remains the principal justification for the enactment of a codified constitution, the complex structure of an uncodified constitution appears “less accessible and intelligible” to all [17]. If an uncodified constitution encourages debate between branches of government over the rightful jurisdiction to judge cases, how can the public clearly understand the documents that govern them?

Throughout history, the complex structure of an uncodified constitution threw the U.K. into constitutional crises, most recently with Prime Minister Johnson’s attempt to prorogue Parliament. The establishment of the Magna Carta, the English Civil War, and the Glorious Revolution all resulted from tensions growing between the different factions of Parliament who lacked a supreme codified law of which to adhere [18]. Prime Minister Johnson framed his attempt to prorogue Parliament for five weeks before the U.K.’s withdrawal from the EU in 2019 as conventional [19] because the current session of Parliament remained the longest of all time and Johnson wanted “a Queen’s speech to refresh [his] legislative agenda” at the end of the prorogation [20]. However, Johnson’s critics framed his prorogation as the silencing of all debates leading up to the U.K.’s withdrawal from the EU [21], especially as this prorogation would last longer than any “prorogation in modern times” [22]. The challenge to the legality of this prorogation illustrates exactly why the U.K. needs a codified Constitution.

While the Supreme Court of the U.K. ruled against Johnson, the complexity and confusion surrounding this ruling and its forming events exemplifies a modern constitutional crisis stemming from an uncodified constitution. Debate as to whether the judiciary could rule on prorogation ensued. Since the U.K. is composed of constituent countries, which each maintain their own legal system, appeals against Johnson’s prorogation reached the English High Court and the Scottish Appeals Court [23]. These courts ruled differently. The English High Court considered Johnson’s actions not “justiciable” and “not susceptible to legal standards” [24]. Meanwhile, the Scottish Appeals Court considered Johnson’s prorogation “justiciable” and “an unlawful exercise of the prerogative” [25]. The Supreme Court agreed with the Scottish Appeals Court, found Johnson’s prorogation unlawful, and ordered the continuation of the session of Parliament; the Supreme Court justified their interpretation as they claimed Johnson’s prorogation “had the effect of frustrating or preventing the ability of parliament to carry out its constitutional functions without reasonable justification” [26]. The debate as to whether the Court could rule on Johnson’s actions displays the need for a codified constitution. Johnson’s council argued that his actions are “only accountable to Parliament” and not subject to ruling by the Courts [27]. The lack of a codified constitution that holds the title of the supreme law of the land creates tension between the branches of government because there remains uncertainty as to the functions of each branch of government. Even though the Supreme Court ruled against Johnson and Parliamentary session continued, one could reasonably argue that prorogation is not justiciable, as held by the English High Court, because there lacks a codified constitution that delineates the exact powers to each branch of government. The evident uncertainty as to the powers of the Court in relation to Parliament reveals itself as “the court ​​stopped short of declaring that the advice given by Johnson to the Queen [for prorogation] was improper” [28]. Although the court justified this lack of decision as inapplicable to the case “since they had already found the effect of the prorogation was itself unlawful” [29], one can easily conclude that the court did not want to stir further controversy. The court feared overstepping its limits and creating a larger constitutional crisis by interfering with the relationship between the Prime Minister and the Queen. This worry would not exist if a codified constitution clearly laid out the powers of the court. The entire debate as to the justicibleness of Johnson’s prorogation would disappear if a codified constitution clearly laid out the rights of Parliament and the judiciary.

A codified constitution, as promised in the Israeli Declaration of Independence, would provide stability to the state and prevent constitutional crises like those that plagued the history of the U.K. Israel lacks a constitution due to continuous disagreements amongst members of Parliament since the establishment of the State of Israel in 1948. Yet it remains a democratic state through its “semi-constitutional” and “provisional” system of Basic Laws, which act as the governing documents of the state, rather than a Constitution [30]. Like the U.K., the need of a codified constitution derives from the desire to solidify the structure of government and its principles. A Constitution would clearly define Israel as “the democratic state of the Jewish people” [31]. Similar to the tension between Parliament and the courts of the U.K. in regard to their powers, Israel’s Knesset (legislature) and Supreme Court fight constantly as they lack a document clarifying the exact powers of each branch of government [32]. For example, in March 2020, former Knesset speaker, Yuli Edelstein did not hold a parliamentary election for a new speaker as ordered by the Supreme Court and instead resigned, sparking an “unprecedented… violation of a Supreme Court order” [33]. A lack of a codified constitution encouraged Edelstein noncompliance. Since the Knesset remains the only directly elected branch in Israel, Edelstein justified his noncompliance as he classified the Court’s actions as a “crude and arrogant intervention of the judicial branch in the matters of the legislature” [34]. These tensions result from an uncodified constitution which unintentionally encourages these two branches of government to claim as much power as possible because there remains no clear defining powers for each branch. Furthermore, a Constitution would clearly set out the rights of individuals in Israel, protecting the rights of “several potentially vulnerable minority groups, particularly Arab Israelis” [35]. A codified Constitution would reduce tension and threats to individual rights by clearly laying out the powers of each branch of government and the rights of Israel’s citizens, mirroring the Articles and Bill of Rights of the U.S. Constitution.

The U.K. and Israel are internationally considered democracies. However, tyranny remains a danger with an uncodified constitution. While one would never expect Queen Elizabeth II to usurp complete power over her nation, the possibility of a rogue monarch subjecting the U.K. to tyranny remains a possibility because the only obstacle to this tyranny is convention. Convention, especially in limiting the powers of the executive, has proven relatively weak in comparison to the law throughout history. For almost two centuries, Presidents of the U.S. followed George Washington’s convention of sitting two four-year terms in office. However, President Franklin D. Roosevelt broke this convention and died during his fourth term in office. To prevent future leaders from retaining power for considerable lengths of time, the U.S. passed the 22nd amendment to the Constitution clearly limiting a President to two terms in office [36]. The 22nd amendment clearly illustrates the flexibility of the U.S. Constitution and its ability to adapt and respond to current events forcefully. The need for a codified Constitution does not stem from pressing problems and constitutional crises in western democracies, but is encouraged to prevent tyranny and stabilize divided nations.

The need for a codified constitution remains clear through adamant efforts to create one within the governments of the U.K. and Israel. In 2015, the House of Commons, Political and Constitutional Reform Committee issued a codified Constitution with possible alternatives [37]. This prototype constitution, which contains alternatives to facilitate discussion regarding the codification of a Constitution, clearly defines the powers of the monarch and legally establishes the position of Prime Minister [38]. This document holds democracy in the highest regard by defining the powers of the leader of the democratically elected House of Commons and limiting the powers of the monarch. Furthermore, Israel’s Declaration of Independence called for the creation of a codified constitution “within four months” of Independence Day to establish “the permanent governing institutions” of the state of Israel [39]. The argument in favor of a codified constitution exists on the Israeli Government’s official website and the government has repeatedly attempted to enact a codified Constitution with assemblies such as the Constitution, Law, and Justice Committee in 2003 [40]. Despite efforts in democracies to enact codified Constitutions, there exist arguments in favor of an uncodified constitution in the U.K.

Arguments in favor of uncodified constitutions cite uncodified constitutions’ flexibility and their traditional nature. As an uncodified document, the Constitution of the U.K. easily adapts to the current “social attitudes” [41]. For example, the Commonwealth of Nations approved the equality of men and women in regards to succession to the throne of the U.K. in 2011[42]. Previously, a female could only become Queen if she lacked brothers; now, the first born child, regardless of gender, will ascend to the throne, reflecting modern attitudes [43]. However, the establishment of a royal law in a codified constitution further cements its status as the supreme law of the land. A codified constitution also remains flexible, because it can always be amended, especially in regard to the powers of the executive, as previously mentioned with the 22nd amendment of the U.S. Constitution. Furthermore, once amended, the codified constitution’s amendments carry greater weight than any law enacted by the legislature.

Another objection to the codification of the U.K.’s constitution derives from the historical nature of the U.K.’s uncodified constitution. The U.K.’s current legal system, based on historical acts and conventions, can be viewed as an important tradition of one of the oldest continual monarchies in the world. However, the British monarch continuously ceded its powers throughout the history of Britain, resulting in a constitutional monarchy with a figurehead of state. As most proponents of an uncodified constitution, due to its historical nature, are monarchists, a codified Constitution would actually protect the remaining powers of the monarchy from the further encroachment of democracy. A codified constitution would preserve the Constitutional Monarchy and fading traditions of the U.K.

The uncodified nature of the Constitution of the U.K., the predecessor of the U.S., truly presents the originality of the U.S. Constitution. Blackburn of the British Library considers the U.S. Constitution as the “first and most complete model” of a codified Constitution [44]. Interestingly, the U.S. declared independence from the U.K., displaying Gordon Wood’s Radicalism of the American Revolution in regards to the Constitution. As a document that commences with “We the people” and continues to frame a government with three branches of government that functions efficiently and protects the rights of citizens [45], the U.S. Constitution rightfully serves as a model for other codified constitutions throughout the world. Its subjection to interpretation and amendments clearly grants it the flexibility championed by promoters of uncodified constitutions while still maintaining a clear and stable framework of government.

References

[1] “Human Development Index (HDI) by Country 2022,” World Population Review. https://worldpopulationreview.com/country-rankings/hdi-by-country

[2] Lauren Wade, “The Pros and Cons of an ‘Unwritten’ Constitution,” The Lawyer Portal, October 1, 2019. https://www.thelawyerportal.com/blog/the-pros-and-cons-of-having-an-unwritten-constitution/

[3] Ibid.

[4] Robert Blackburn, “Britain’s unwritten constitution,” The British Library, March 13, 2015. https://www.bl.uk/magna-carta/articles/britains-unwritten-constitution

[5] John Misachi, “Countries with Uncodified Constitutions,” World Atlas, April 25, 2017. https://www.worldatlas.com/articles/countries-with-uncodified-constitutions.html

[6] United States Constitution. https://www.archives.gov/founding-docs/constitution-transcript

[7] Ibid.

[8] United States Constitution: The Bill of Rights. https://www.archives.gov/founding-docs/bill-of-rights-transcript

[9] “Marbury v. Madison.” Oyez, Accessed April 1, 2022.
https://www.oyez.org/cases/1789-1850/5us137

[10] “Judicial Review,” Cornell Law School: Legal Information Institute, June 10, 2019. https://www.law.cornell.edu/wex/judicial_review

[11] Blackburn, “Britain’s unwritten.”

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] Ibid.

[18] Reuters Staff, “From Magna Carta to Brexit: 800 years of constitutional crises in Britain,” Reuters, August 29, 2019. https://www.reuters.com/article/uk-britain-eu-constitution-timeline/from-magna-carta-to-brexit-800-years-of-constitutional-crises-in-britain-idUSKCN1VJ24F

[19] Ibid.

[20] Adam Cygan and Graeme Cowie, “The Prorogation Dispute of 2019: one year on,” UK Parliament: House of Commons Library, September 24, 2020. https://commonslibrary.parliament.uk/research-briefings/cbp-9006/

[21] Reuters Staff, “From Magna Carta.”

[22] Cygan and Cowie, “The Prorogation Dispute.”

[23] Owen Bowcott, Ben Quinn, and Severin Carrell, “Johnson’s suspension of parliament unlawful, supreme court rules,” The Guardian, September 24, 2019. https://www.theguardian.com/law/2019/sep/24/boris-johnsons-suspension-of-parliament-unlawful-supreme-court-rules-prorogue

[24] Cygan and Cowie, “The Prorogation Dispute.”

[25] Ibid.

[26] Bowcott, Quinn, and Carrell, “Johnson’s suspension.”

[27] Wade, “The Pros and Cons.”

[28] Bowcott, Quinn, and Carrell, “Johnson’s suspension.”

[29] Ibid.

[30] “Constitution for Israel,” knesset.gov, 2014. https://knesset.gov.il/constitution/ConstIntro_eng.htm

[31] Ibid.

[32] Ibid.

[33] Elena Chachko, “Israel’s Supreme Court Loses Its Patience With Netanyahu,” Lawfare, March 24, 2020. https://www.lawfareblog.com/israels-supreme-court-loses-its-patience-netanyahu

[34] Ibid.

[35] “Constitution for Israel.”

[36] U.S. Constitution, amend. 22. https://www.law.cornell.edu/constitution/amendmentxxii

[37] House of Commons, Political and Constitutional Reform Committee, “The UK Constitution: A summary, with options for reform,” parliament.uk, March 2015. https://www.parliament.uk/globalassets/documents/commons-committees/political-and-constitutional-reform/The-UK-Constitution.pdf

[38] Ibid.

[39] “Constitution for Israel.”

[40] Ibid.

[41] Wade, “The Pros and Cons.”

[42] “Girls equal in British throne succession,” BBC, October 28, 2011. https://www.bbc.com/news/uk-15492607

[43] Ibid.

[44] Blackburn, “Britain’s unwritten.”

[45] United States Constitution.