by Elias Blum
When one mentions the term ‘written constitution’ to people brought up under the British system, they typically fall into one of three camps.
Firstly, there are those who think that constitutions are at best irrelevant, and who dismiss them as unimportant, even frivolous, documents. These people say: ‘Weimar Germany has a constitution, and a fat lot of good it did them!’
Secondly, there are those who think that constitutions are a dangerous foreign invention, the effect of which is to give old dead white men a sort of veto power from the grave. These people say: ‘But look at America! Look at the right to bear arms!’
Thirdly, there are those who think that the constitution is a panacea, as if merely putting words on a page were enough to transform reality. These people want the constitution to look like a wish list of their progressive ideas, ignoring the fact that not everyone necessarily agrees with those ideas.
All three are wrong. Constitutions are not (assuming a reasonable degree of goodwill and competence in their design) irrelevant, nor dangerous, but neither are they a shortcut to utopia.
What they are is boring. Boring, but important. Boring but necessary. They are full of dry, dull, technical phrases. The job of a good constitution isn’t necessarily to make things better (although that might be a beneficial result over time). Rather more prosaically and less ambitiously, the job of a good Constitution is often to stop things getting worse.
The positive good that a constitution may do is indirect, long-term, abstract and contingent upon many other factors; the harm that it may prevent is real, tangible and immediate.
Increasingly, I’ve come to see sewage pipes as a good analogy for constitutions. For the most part, when they work, you don’t notice them. Only when the get blocked and broken do things start to stink.