Twitter and the blogosphere (ok, the parts of Twitter and the blogosphere that I frequent) are pretty excited about the Constitute Project, which sets out to “offer access to the world’s constitutions that users can systematically compare them across a broad set of topics.” Google, which has provided money and support for the project, proclaims that its “aim is to arm drafters with a better tool for constitution design and writing. We also hope citizens will use Constitute to learn more about their own constitutions, and those of countries around the world.” Marvelous, isn’t it? Well, please allow me to rain on the parade.
What the Constitute Project provides is not “access to the world’s constitutions.” It is access to (many of) the world’s constitutional texts. (Not all of them, mind you ― Canada isn’t there for instance, which is an interesting omission to make for people who claim to want to help constitution-drafters, given the influence which the Canadian Charter of Rights and Freedoms has had on recent constitution-making.) But a constitutional text is not the constitution. It is, at best, an incomplete statement of the constitution, and at worst a deliberate lie.
Some countries (admittedly, not many ― so far as I know, only the U.K., New Zealand, and Israel) lack an entrenched constitutional text at all. That doesn’t mean, of course, that they lack constitutions in a substantive sense, that is to say rules that set up the institutions of state, define and limit their powers, and regulate their relationships with one another. Only there is no need, as I have argued here, for such rules to be entrenched.
Needless to say, this applies also to constitutions which are partly entrenched, and partly not, such as Canada’s and Australia’s. By looking at our constitutional texts, one could not know that Canada and Australia are parliamentary democracies, because rules which subordinate the exercise of (almost all) royal powers to the “advice” of a Prime Minister and Cabinet responsible to Parliament are not in there. They are “conventions of the constitution,” to which courts and orthodox legal doctrine deny the status of legal rules at all. Yet one could not understand the constitutions of countries such as Canada and Australia without reference to these rules.
But the point about not all constitutional rules being in entrenched constitutional texts of the sort the Constitute Project collects is broader still. Conventions can exist everywhere, including countries which consider their constitutions to be essentially written and entrenched, such as the United States. (It is convention, for instance, that requires states to set up popular elections for the presidency.) But no less important than conventions are rules found in ordinary legislation and in judicial decisions. It is ordinary legislation, for instance, that defines the composition and the jurisdiction of the U.S. Supreme Court, or the numbers of members of the U.S. House of Representatives and the Canadian House of Commons. Judicial decisions can create new constitutional rights, or extend the protections of existing ones to news groups ― or reduce rights or structural protections apparently guaranteed by a constitutional text into insignificance.
That a constitutional text does not tell the whole story of a constitution is normal even when it is taken seriously by the political actors and the judiciary. As Chief Justice Marshall pointed out in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 159 at 200,
[a] constitution [meaning, of course, a constitutional text], to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would, probably, never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves.
But then there is also the case of polities that do not take their constitutional texts seriously at all. They have such texts because it is somehow de rigueur to have them, and also because they allow the governments that produce them lie, to their own people first and foremost, and also to some useful idiots abroad, about the wonderful rights their people have. Unless one aspires to be among the useful idiots, these constitutional texts do not deserve to be taken seriously at all. Does anyone in his or her right mind think that “[c]itizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration,” as art. 35 of its “constitution” (as translated by the Constitute Project) claims?
A little knowledge, it is said, is a dangerous thing ― because “a little knowledge” means incomplete knowledge, and incomplete knowledge is often misleading. The little knowledge the Constitute Project offers about the world’s constitutions is a case in point.