A written constitution?
LETTERS
From Anthony Lewis, Leslie Bilsby, Anna M. B. Moore, Allan Hale, Roderick L. Badams, Gilbert H. Archdale, Rear-Admiral C. H. S. Wise, FtN (Reid.), 'A Young Athenian,' Elspeth Harley Schubert, and Lord Sudeley.
Sir: In the SPECTATOR of 29 March there are two comments on a recent article of mine (The case for a written constitution,' 8 March) to which a reply may be desirable.
Mr Brian A. Kelsey argues that the history of the United States Supreme Court does not support the existence of an American reverence for the legal process. He cites two examples: Franklin Roosevelt's threat to pack the court and Teddy Roosevelt's appointment of Mr Justice Holmes to uphold antitrust legislation. Mr Kelsey could hardly have picked examples that would more devastatingly destroy his own argument.
In 1937 Franklin Roosevelt had just carried every state but Maine and Vermont in a triumphant re-election. He was at the height of his political power when he challenged a Supreme Court whose economic decisions had outraged the country. Nevertheless, the public swung behind the court, and the President suffered a devastating defeat from which he never wholly recovered in domestic politics. The main reason was precisely a reverence for the court and its process—a belief that the institution was a protection of American liberties that should be preserved even when the judges went wrong.
Teddy Roosevelt sought and got assurance from Senator Henry Cabot Lodge the elder be- fore appointing Holmes that he would be `sound' on antitrust law. In fact, in his very first antitrust case, Northern Securities v. US, Holmes voted against the government—and he never looked favourably on trust-busting. The idea that TR could 'put the fear of God' into Mr Justice Holmes, as Mr Kelsey suggests, is laughable. Lesser justices than the great Holmes have regularly stood out, on constitutional issues, against the Presidents who appointed them. Harry Truman, to mention a case in which a President felt especially aggrieved, found his seizure of the steel mills thus upset by the Supreme Court. All this illustrates why Americans value the institution of the court: it takes a longer and often braver view than politicians.
Mr Malcolm Shaw seems to believe, perhaps from having failed to read what I wrote, that I advocate instant and wholesale transfer of the American constitutional system to this country. To the contrary, I emphasised how different Britain was and how difficult it would be to move towards a system in which govern- mental authority over individual rights would be effectively limited. But I cannot subscribe to Mr Shaw's extreme conclusions.
First he argues that a parliamentary demo- cracy simply cannot have a binding written constitution or bill of rights; a parliament can- not be partly supreme any more than a person partly virgin. But that foolish statement over- looks, among other things, the fact that Britain herself has provided judicially enforceable constitutions for many of her own former colonies: legal powers coexist easily with parliaments in, say. Australia or Ceylon, whose citizens have benefited significantly from con- stitutional judgments of the Privy Council Judicial Committee.
Then Mr Shaw, referring to some learned sociological study, tells us that Britons do not need or want binding constitutional protections because they have a `deferential culture' and `trust those who govern on their behalf.' My suggestion to Mr Shaw is that he get his nose out of that book and talk to someone in the country where he, like me, is temporarily resident. It would be almost impossible, these days, to measure the degree of trust that British citizens have in their political leaders. And quite apart from the quality of politicians at the moment, there are good reasons to be sceptical about the efficacy of the old, parliamentary methods of protecting the citizen from abuse: Parliament is much too busy, and too driven by partisan considerations, to be relied upon as a safeguard against official injustice.
Wake up, Mr Shaw. Britain's unwritten con- stitution as it exists was not handed down on plastic tablets from on high. It is the result of continuous change over hundreds of years. Change is still possible in response to need. Other parliamentary democracies have found a need for fresh guarantees of the integrity of the individual; that is the significance of the European Convention on Human Rights, to which Britain is a party. There is every evidence of a desire in Britain today for new devices to measure governmental injury to individual rights against standards more permanent than the moment's political desires. The device need not be a court, as in the United States; the British genius for political invention and compromise could find another solution. But the old, political-science abstractions about the beauty of parliamentary supremacy no longer suffice.
Previous page
