dumbukconstitution

[dumbukconstitution]

everything old

so i’m five minutes into my research on magna carta and i already have a favorite thing i’ve learned in the last, probably, five months (let’s face it, bar prep just isn’t that great). it’s also derailed my specific attempt to research magna carta (you all know the basic story: a bunch of feudal lords forced king john—who wasn’t as strong as he thought he was, but to be fair, why wouldn’t you expect a bunch of rich warlords to pay for your self-serving wars in perpetuity based on a theory of divine right?—to sign a big card they made that said among other things “john can’t take our stuff or put us in jail with quite so much impunity, also he’s still king but maybe not quite as much king as he thinks he is, nudge nudge wink wink”; john begrudgingly agreed and then like six months later they started fighting again and for some reason the big card became a big historical deal), but believe me it’s worth it for a deep historiological dive for which i am absolutely qualified.

so in the early to mid 17th century, this concept of “britain’s ancient constitution” (see e.g.) started dominating english political discourse. basically, around the year 1600 (give or take a generation) the english political class, and particularly the lawyers, began to look at english law and politics through an antiquarian lens, to grasp at something stable in the wake of the intellectual, political, social, and religious upheavals of the 16th century. around the same time, legal practice and culture were undergoing a (relative) professionalization and standardization process (the link sucks, sorry), which expanded the conceptual scope of law into the near-all-encompassing social and coercive network we think of it as today. the point is, a lot of lawyers around 1600-1650 were looking for organizing principles and explanations for this thing they were doing, and a lot of those conversations seemed to coalesce around an idea that britain had a sort of natural-law constitution that antedated 1066 and found expression largely in the common law and in documents like the magna carta. and speaking of the common law, this is when the common law really started to develop as a self-sustaining enterprise (aka body of law, aka constitution?)—for instance, lawyers would increasingly cite cases and precedent rather than making arguments anew from principle in each case. the idea that these common law principles were, like the elephant in the block of marble, being uncovered and honed rather than created from scratch went hand-in-hand with the idea that britain did have a constitution—you just had to chip away all the stuff that isn’t an elephant, what, don’t you see the elephant?

(apparently it was a pet theory of the Whigs, but like Mariah, i don’t know her.)

the concept was also, of course, put to more immediate political purposes as a rhetorical and moral device, in much the same way as a concept that, since the 1980s (or thereabouts, idk, i wasn’t alive), has dominated american legal discourse (and, to a lesser but WAY more obnoxious degree, american political discourse; whatever you think of this theory as an interpretive methodology, it is so simplistically treated in mainstream political conversation that i’d almost rather skip it altogether, but the link to stuart-period political theory is way too juicy, obviously): you probably know them by the name “originalism” (its close relative, textualism, isn’t abused in the same way in moral or political arguments—don’t you know we’re all textualists now?)

(one caveat: by “originalism” i don’t mean the idea that we’re bound to give a particular constitutional clause the meaning that james madison would have given it, or whatever (see e.g.); what i mean is, more broadly, the idea that considering the intent of the original authors of a document can sometimes help us figure out how to interpret it.) originalism is not too far, conceptually, from either Ancient Constitutionalism or the related jurisprudential theory of the “general common law” that got cut off at the knees by O.W. Holmes et alia around the turn of the 20th century and was finally put to rest in Erie. “but originalism,” you’ll object, “is essentially positivist, because it’s an interpretive methodology, not a moral theory. aren’t positivism and natural law necessarily opposed?” and you might be right! i don’t care. the point is that they all share a similar historiological view. whether their claim to authority derives from moral or positivist reasoning, the conceptual frameworks of originalism, natural law, and Ancient Constitutionalism are all basically mythological. they all treat their historical predecessors as unitary; they can’t acknowledge fragmentation; they can’t acknowledge that they might be wrong or that things might change. they might gesture at it, and say “we might be wrong about this”; but the underlying theory is that there IS a right answer, even if the instant speaker is getting it wrong. put simply, they can’t or won’t acknowledge that their interpretation is, as all law is, deciding between competing political economies.

and it’s late (not really) and i’m tired obviously and the magna carta is boring but soon we’ll be getting to henry viii and charles i and the english civil war and glorious revolution and the real small-p political basis of the british constitution, which is basically that parliament won a war one time and since then everyone’s just been like “ok well i guess we better control parliament!”

ttfn love you

[dumbukconstitution]

'instruments’

because god only knows how many chances i’ll have to do historical legal research instead of just playing constitutional whack-a-boris-johnson (try and get THAT image out of your head), i wanted to talk about this sentence in a 2014 UK Supreme Court case, R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3, which—more directly and succinctly than anything else i’ve found—identifies several foundational “constitutional instruments” of the UK, in service of acknowledging (or purporting to acknowledge) the addition of several post-1970 “instruments” to that collection. here’s the list, and over the next week i’m going to run through each “instrument,” talking about what it is, what it does, how it came into being, and what role it has in britain’s constitutional scheme (or whatever you call a scheme that isn’t planned, so not a scheme at all):

Magna Carta

Petition of Right 1628

Bill of Rights 1689

Act of Settlement 1701

Act of Union 1707

European Communities Act 1972

Human Rights Act 1998

Constitutional Reform Act 2005 (lol)

“certain common law principles” (again, lol, but this time at us, because we do the same thing only we jump through the additional semantic hoop of saying that our favored common law principles are “incorporated” into our constitution’s language, rather than—as would be functionally equivalent but conceptually simpler and perhaps less susceptible to subsequent mischief—saying that they are separate and parallel to, but equivalently binding as, our codified constitution)

anyway, that’s the list, and i’m tired again, but let me just say finally that first up will be of course magna carta, that great big anti-birthday card from the barons to poor king john that left everyone involved confused and dissatisfied, that pie in the sky in scalia’s eye, that’s amore.

xoxo

[dumbukconstitution]

kicking the ol’ boot, eh

because it’s 2019 and we’re all learning daily just how unstable are the institutions and unshared are the principles to which we’d felt accustomed (regardless of that feeling’s veracity), there has in recent days been some open discussion about the possibility of queen elizabeth dismissing/firing/ousting boris johnson as prime minister—specifically, whether she has the power to fire boris. the queen had apparently inquired as to whether, and other what circumstances, she has the legal authority to dismiss the prime minister. but the question is really, i think, one of power, and i mean “power” in both its narrow legal and broader political/social senses—despite the fact that, as a lawyer, i obviously have serious professional and financial (not to mention psychological) investment in maintaining a strict partition between those topics. but we’ve all read our giddens (among other things) and we know that’s not always a meaningful distinction, and the further the circumstances get from the heartland of shared assumptions, the more things shift towards political and social and violent power.

so hold on, that’s all by way of intro; let me back up. i’ve decided to just jump in and start writing, gather my sources where they lay (which is, during the week, largely wikipedia and its citations, along with the occasional academic paper to make sure i’m not totally talking out of my ass), and just learn as i go, which after all was the point of all this. my other caveat is that i’m going to start really basic, like assuming some super rudimentary or flawed understanding, and if you have anything more than the most superficial conventional american background on UK law and government and politics then i guess you’ll just have to put up with it for the good stuff. (lol.)

OK, to the meat! there is not a document—at least not one with controlling legal authority, whatever that is*—that sets forth the full scope of residual monarchical powers. for instance, after a bill passes parliament it must receive the monarch’s “royal assent” before it becomes effective, but today assent is simply a formality (it was last withheld in 1708). but, crucially, it hasn’t become a formality pursuant to any written fiat, whether parliamentary, judicial, or otherwise—instead, it’s a formality by mere convention. and conventions, as we are learning left and right these days, are made to be broken. (so are written fiats, by the way, and when written fiats get broken the collateral damage can manifest quicker and badder and scarier than when unspoken norms get breached; i expect this will be a major motif of this blog.) so, if the queen really really didn’t like a bill, and was having a shit day, and had recently taken a fancy to some monkish hypersexual mystic acting as her adviser, maybe she thinks it’s the day to stop giving a fuck and start giving a fuck and withholds royal assent. what happens then? you might fight over the legality of the queen’s withholding, but you might also get something closer to a real power struggle.

so that’s what’s happening here. don’t get me wrong, there is relevant constitutional law (mostly judicial/case law, i think) on the question of the queen’s legal authority to remove the prime minister—when and why, in addition to whether. but there also . . . simply . . . isn’t? i mean there’s “law” in the sense of “people have written stuff down that they call law,” but the uncodified nature of the UK constitution means that the secondary rules according to which those lawmakers get to call what they’re writing down “law” are a lot blurrier than they are in, e.g., the US. and, therefore, you much more quickly approach the line where disputes are resolved not by who is recognized by more people as “right on the law” so much as by who is recognized by more and more powerful and better-armed people as having the right to decide who’s “right on the law.”

aren’t we having fun? (i promise, more real stuff e.g. proper nouns next time.)

*yeah, remind me to talk sometime about rules of recognition (see also).

[dumbukconstitution]

how this’ll work

remember that scene in high fidelity where john cusack says that he’s organizing his record collection “biographically” and looks very pleased with himself? whenever i talk about methodology i feel like john cusack in that scene: self-satisfied that i can even articulate and justify my methodological approach.

anyway, how about it? am i going to talk about the british constitution biographically, meaning (i guess) in the order i’m learning about it? no! that’d be dumb, and i’m only dumb in very particular ways. i’m not dumb about methodology.

the problem is, though, that i’m neither trained in explicatory or academic research nor well-resourced. i’m pretty much stuck with the books in the library, and would you believe, the portland public library is a little light on books on british constitutional history and theory. also, the wikipedia article on the british constitution SUCKS—which by the way is the true genesis of this project—so i’m gonna be leaning on books pretty heavily, i think.

the point is, my original plan was to sort of work through historically—that is, chronologically—by document. so, start in 1215 with magna carta (or anything that came before then, harold’s bloody jersey or the bayeux tapestry or whatever), then work along the timeline as sources of constitutional law, textual or not, get sewn into the patchwork.

the problem is, i’m not even sure that accretion is really the underlying concept—it might be more accurate to say that the box of british constitutional law stays pretty much the same size, but just gets denser whenever things are added to it. (ironically, off the top i’d say that distinguishes it from american constitutional law, which seems to actually expand with every decision, maybe because the courts are practically speaking the only actors that affect constitutional law and they do whatever the fuck they want, in a sense.)

ultimately, i’m also going to do whatever the fuck i want. right now i’m reading the only book the portland public library had on the british constitution, which is a 1967 history (written by an american for, i think, an american audience) of the british constitution but which doesn’t seem to be focusing on the theory or the law itself but rather the political and economic and social conditions that shaped it (which ok fine, that’s what history is or whatever).

point is, stick around and there’ll be some content here intermittently. but it might be a little inchoate until i get my hands on some useful materials. don’t you just HATE historical research? why can’t someone just do the work for me?

[dumbukconstitution]

a wee bit of context

as the blog subheading suggests, i’m an american and (baby but also 33-year-old) lawyer who is slightly fascinated by the brexit debacle, possesses no special insight into UK constitutional law (or history, or government or politics or society or culture), and has decided to learn about the british constitution and chronicle the experience.

to begin with, here’s what i know, or think i know, about the british constitution (this is off the cuff, without doing any immediate research, although of course i’ve been steeping in isolated pools of it since the referendum):

first, if only because it presents such a stark contrast to the US constitution, it’s unwritten . . . except it’s also not, because pretty much everything about it is written somewhere. so maybe it’s more accurate to say it’s uncodified, meaning that there’s not a big piece of paper somewhere with “BRITISH CONSTITUTION” in fancy type at the top and a series of sections and subsections and that’s it, that’s the beast. (that’s what we have, if you didn’t know.) i expect to talk about this contrast a LOT on this blog, unless (as would not completely shock me) it turns out to not really matter that much in practice, at least once you get into the nitty-gritty of constitutional interpretation, legal decisionmaking, and the like. but off the bat, i’d say that’s probably pretty significant, that there’s not a thing you can point to and say “that’s the constitution,” not least because the UK paradigm kinda lends itself to fights over what the constitution even includes.

ok so that’s the biggie. second, and please don’t ask me why this isn’t first, is that the UK has a queen, and the queen is also sovereign—except she’s really not, because the people are sovereign and therefore parliament is sovereign because parliament represents the people? (i’m going to try to avoid political philosophy in this blog, mostly because i don’t really understand it but also cause it is the. fucking. worst. thing, but it’ll probably be unavoidable at some junctures, christ why am i doing this stupid thing) the point is, i think the british constitution maintains this sort of weird facade, or it’s like the real british government—by which i will always mean “the people who tell the people with the guns what to do”—is a kind of modern superstructure on top of this broken-down brittle old shell of a monarchic government.

the last thing worth mentioning in this inaugural post, and the one i’m least certain about, is that the british constitution isn’t subject to the same sort of judicial review as the US constitution—or, again, it is, but it’s also subject to amendment and interpretation by other actors. (and yes, sure, so is the american one, but for us it’s a whole big thing and hardly ever happens and is sure as shit not gonna happen for anything major or controversial (unless we just had a war and all the people with guns are on one side).) the UK supreme court isn’t the only important interpreter of its constitution, because the UK constitution is more of a living document—because, again, it’s not even a document at all!

this is going to suck, isn’t it? email me with what i got wrong! see you soon, and next time i promise to address the questions of methodology and pedagogy for this bullshit project. xoxo