How Britain and America are breaking constitutional rules

How Britain and America are breaking constitutional rules
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The British Supreme Court has ruled that the late summer suspension of Parliament by Prime Minister Boris Johnson was unlawful. Johnson had sought to ensure that Brexit proceeded on his terms, but the move provoked political backlash and threatened a constitutional crisis.

An observer from across the pond reasonably might believe that the dispute over the suspension of Parliament stemmed at least in part from the lack of a written British constitution. Instead of a single document, as in the United States, the British constitutional regime consists of a combination of statutory authority, conventions, and customs, some of ancient vintage. Indeed, as Meg Russell of the University College London has observed, the British constitution “assumes people who reach high office will respect conventions, precedents, and unwritten rules.”

But even a written text will not necessarily immunize a nation against leaders who fail to fulfill their obligations to respect constitutional rules, much less provide a guarantee against all constitutional controversies. Even a written constitution depends upon the integrity of the government officials charged with implementing its provisions to be effective.

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Consider the rules that the United States Constitution establishes on how vacancies in certain high offices should be filled. Article II provides that the president shall nominate justices of the Supreme Court, and that the Senate has the responsibility to give its advice and consent on the nominees that are forwarded by the president. The text does not spell out how exactly the Senate must give its advice and consent, but it does create the expectation that the Senate needs to do something.

Enter Republican Senate Majority Leader Mitch McConnell. In 2016, he concluded that it would serve the interests of his party to not allow President Obama to fill a vacant seat on the Supreme Court. So the nomination of Merrick Garland was defeated, not by a Senate vote after hearings on his fitness for the Supreme Court, but by McConnell refusing to have the Senate give the nomination any consideration at all.

Much of the genius of the United States Constitution lies in the structural relationships among governmental departments that it sets forth. The underlying premise is that a separated system of powers and duties will be most likely to prevent tyranny and to ensure that democracy endures. But textual assignments mean little if the majority party respects those assignments only when it is politically expedient to do so.

Indeed, the existence of a text may not even serve to constrain the courts, at least not when the courts do not act to constrain themselves. Many of the familiar commands of the United States Constitution are undefined, and we leave it to the courts to tell us what, for example, the promises of due process and equal protection of the laws really mean. Some of the constitutional rules implementing these commitments are only notionally tied to the text, and public controversy over particular interpretations serves to remind the justices that the text can be stretched only so far.

Consider the constitutional power of Congress to regulate interstate commerce. The Supreme Court at one time sought to impose judicially enforceable limits on that power, depriving elected representatives the ability to regulate various sectors of the national economy. The Supreme Court eventually altered its course, ushering in an era of deference toward Congress. There was no change in the text, just reconsideration by the justices of the limits of their own role when interpreting that text.

While we may take comfort in a written United States Constitution, the mere existence of a text is no hedge against government leaders who choose to ignore the words, or judges who see in them a capacity they cannot bear. Absent a commitment to honor the expectations about how government should work, the fact that we can point to a text will not inevitably check lawlessness. Whether people are governed by a written or unwritten code, the real check in most instances lies in the democratic process, as Johnson and, perhaps, President TrumpDonald John TrumpGOP divided over impeachment trial strategy Official testifies that Bolton had 'one-on-one meeting' with Trump over Ukraine aid Louisiana governor wins re-election MORE, may yet discover.

Lawrence Friedman is a professor at New England Law in Boston, where he teaches constitutional law. He is the author of “Modern Constitutional Law.”