Today is Constitution Day in the United States. The reverence for and celebration of the Constitution ― not just on the anniversary of its signing at the conclusion of the Philadelphia Convention in 1787, but throughout the year ― might seem as quaint to outsiders ― and indeed as irritating to a certain type of insider ― as The Queue to the Queen’s lying in state is in the United Kingdom. Indeed, the British and Commonwealth monarchy and the US Constitution have something important in common, despite the latter being the result of a rebellion, ostensibly against the former.
Despite their less-than-angelic origins ― despite the connection of both with conquest and oppression ― what they mean to their respective supporters is, on the one hand, stability and tradition, and on the other freedom and, perhaps paradoxically but still importantly in the case of the monarchy, a check on the ambition of passing office-holders. To embody these two clusters of values, which in human history have more often than not been at odds with each other, is a remarkable success, and well worthy of admiration.
The Constitution makes these commitments more explicitly, of course, and in a way that is more teachable. It has been on my mind of late because I have been preparing some introductory lectures on the UK constitution, and the American one is an excellent example at the same time as it is an excellent foil. For anyone interested in constitutionalism and in government more generally, not only in the United States but far abroad too, the Constitution and the intellectual tradition to which it gave rise ought to remain of the greatest interest.
Yet my impression is that, among those interested in comparative constitutional law, the US Constitution has become unfashionable. It is said to be too old or too odd; too absolutist in its approach to any number of problems, from the freedom of speech to judicial review of legislation; too bound up with itself and its own history. I think this view is a mistake. We need not emulate the United States, but treating the US Constitution as if it now has nothing to teach us deprives us of an example far more successful than many people either realize or care to admit.
And as for American absolutism, it is a view that we ignore at our peril. In The Federalist No. 48, James Madison wrote “that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it”. He thought that this proposition would “not be denied”. Yet there are dangerous fools who do in fact deny it. And many more, alas, simply forget it. The American constitutional tradition is the best remedy we have against such forgetfulness.
Double Aspect 