Gordon Brown: strange, vague and wrong on the constitution

by Carl Gardner on June 10, 2014

MadLabUK | Creative Commons

In an article in today’s Guardian, Gordon Brown argues that Scotland should stay in the UK because of its “social union” with England, and our shared welfare state. Fair enough. That’s essentially the Labour case for the Union. But what really interests me in his piece is the thread of hostility to the British constitution that runs through it. For someone arguing in favour of the United Kingdom, I find that extraordinary.

Scotland has already changed Britain, Brown writes:

Westminster’s claim to undivided authority over the country? Dead and buried. The constitutional fiction that parliament, or the Queen in parliament, rather than the people, are sovereign? Gone for ever.

He’s legally wrong about Westminster’s authority being “dead and buried”: Westminster can legislate for the entire UK, and often does in a number of policy areas including taxation and social security, areas that are fundamental to Brown’s idea of a social union. His complaint that “the people” are not nominally sovereign is the most trivial possible constitutional point, and one I’ll return to before I’m finished. But Brown goes on:

Constitutional lawyers used to comfort themselves that the British constitution worked in practice but not in theory. Now it works neither in theory nor in practice.

I’m quoting the online version of his article here: the print version contained a revealing error, Brown mixing up theory and practice. Revealing, because his entire approach to the constitution reverses the true priority we should give to each, reflecting a dogged devotion to pure theory as demonstrated by his failure to cite a single practical example showing how, in his view, the British constitution fails to work.

Brown hints vaguely at the sort of constitutional settlement he’d like when he says ominously that

If Britain does not change of its own volition, Scotland will demand, at a minimum, “home rule within the UK”, and could force upon the whole country a system of government as close to federalism as you can have in a nation where one part forms 85% of the population

although later he expresses distaste for

using the language of threats and ultimatums

and he suggests Scottish legal institutions have become weaker recently:

Perhaps surprisingly, what is also new is the recent loss of a million members from Scotland’s churches and the weakening of the Scottish institutions – religious, legal, educational and even sporting – which expressed our Scottishness. They provided an anchor that made us comfortable with being part of Britain.

This seems an odd claim, as far as legal institutions are concerned. Scots will know better than I do whether he makes any sense here. But the only arguably recent weakening in the Scottish legal system that occurs to me is the subordination of the Scottish courts to the UK Supreme Court on human rights questions, even in the context of (otherwise independent) Scottish criminal justice, something that’s angered Alex Salmond. But the UK Supreme Court began its work and its human rights jurisdiction over Scotland in 2009, when Gordon Brown’s government brought into force the legislation setting it up. If anyone’s to blame for that, he is.

Praising the UK’s social union, Brown says

Britain’s guarantee of equal social and economic rights is far more progressive than anything offered by the EU, which has a single market but not a social market. Although it is a federal system, the US can only agree the most basic civil and political rights, and unlike Britain struggles with minimum US-wide rights to healthcare or social security.

But surely the relative lack of social policy cohesion in the EU and the US as compared with the UK comes not in spite of their being federations (of a sort, in the EU case, and full-bloodedly in the USA) but because of that fact. I wonder why Brown’s admiration of Britain’s social union doesn’t make him pause before wanting change here under a vague flag of federation.

Gordon Brown has long flirted rhetorically (though somewhat ineffectually) with fundamental constitutional change and the idea of a written constitution, leading Anthony Barnett to speak of his “lies and trickery” on the issue. Brown’s 2010 manifesto talked of setting up 

an All Party Commission to chart a course to a Written Constitution

which we have been spared, at least.

But I must return to Brown’s longing for legislative sovereignty to be exercised in the name of “the people”. This is a longstanding bee in his bonnet; in the 1991 sovereignty lecture referred to by Anthony Barnett, Brown told us

The French constitution says that: ‘The community shall be based on the equality and the solidarity of the peoples composing it’. The Italian constitution ‘recognises and guarantees the inviolable rights of man both as an individual and as a member of the social groups in which his personality finds expression…’ The American constitution starts with the words ‘We the people…’.

these three examples intended as contrasting favourably with the position in Britain. Actually the linguistic and conceptual differences Brown points out aren’t quite as stark as written constitution-mongers like Brown would have use believe: in reality, article 1(1) of the US Constitution vests all legislative power in Congress, just as Britain’s doctrine of Parliamentary sovereignty vests all legislative power in Parliament.

Better examples for Brown’s purpose might be the now defunct constitution of the German Democratic Republic, article 3 of which said (in English translation)

All state authority emanates from the people

or to be more up to date, the constitution of the People’s Republic of China, article 2 of which says (in translation)

All power in the People’s Republic of China belongs to the people.

My point is that Brown’s concern about the language of constitutional ideas, and particularly whether they pay lip-service to the concept of popular sovereignty, is touchingly childlike in its superficiality.

Gordon Brown was a leading member of a government that brought a series of important constitutional reforms to this country, like the Human Rights Act, freedom of information, abolition of (almost all) hereditary places in the House of Lords, giving power to Parliament to decide on the use of military force, and devolution itself  – all reforms that I support. They were done in the traditional way, by Parliament, and without calling into question Britain’s constitutional fundamentals. In fact they were arguably made possible by those fundamentals. We need more, and ongoing piecemeal constitutional reform in this country; not to dream up a fundamental new blueprint.

Reforming British governments, including Labour governments, need Parliamentary sovereignty. Consider how difficult it’s been, without it, for Barack Obama to offer anything like a “social union” involving health insurance in America. There’s a reason why old-school Labour figures like Michael Foot used to be strong supporters of the traditional British constitution.

But if Gordon Brown dislikes the UK constitution so much and wants a fresh start, with new constitutional rules ending Westminster’s national authority – why doesn’t he just vote Yes in September?

{ 11 comments… read them below or add one }

1 lawrence serewicz June 10, 2014 at 19:48

One point note is that in the United States, the people are sovereign, not the government, nor the legislative branch. The powers of legislation within the government are reserved to Congress. However, the power to create the constitution is reserved only to the people. The government cannot unilaterally amend the constitution as it must arrange it with the states, who are jealous of their prerogative as given to them by the people.
I would also point out that the 10th Amendment is often forgotten as it reserves all other powers not provided to the government to the people. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
I am trying to find that clause in the UK constitution.

In the UK parliament is sovereign, not the people. This is a fundamental tension (benefit) of the UK political system. Perhaps the Web and other systems that challenge such hierarchies is having an effect on the UK political system, in particular parliament’s sovereignty, that they are struggle to resolve.

If the UK had a constitutional convention, rather than what it has a hereditary monarchical political system dating from Magna Carta, it might not worry so much about the people exercising their sovereignty. The concern here, that Gordon Brown is trying to articulate, is the tension between a people and a parliament trying to exercise sovereignty. An interesting time to be alive, at least constitutionally speaking.

Thanks for the stimulating analysis of the article.

2 Carl Gardner June 10, 2014 at 20:53

Thanks, Lawrence.

Maybe I ought to make it clear that I’m an admirer of America, and of the US Constitution. I think it has flaws and drawbacks (as ours does) but I think it’s an outstanding product of intelligent design. My point isn’t to knock America, but to insist that British constitutional arrangements are just as sound, and to knock those British commentators who assume our constitution should obviously be more like America’s (when many of them, funnily enough, dislike America in other ways).

The points you make are fair enough in theory. But how real are they? You say

The powers of legislation within the government are reserved to Congress. However, the power to create the constitution is reserved only to the people. The government cannot unilaterally amend the constitution as it must arrange it with the states, who are jealous of their prerogative as given to them by the people.

But how does the people “create a constitution” now? In reality this power was exercised in the 18th century by politicians in various conventions and committees established for the purpose and by state legislatures, I think. Was the draft ever put to the actual people? I’m not criticising what was done; just pointing out that the idea of “the people” exercising power in the US is no more real, in America, just because “the people” are mentioned in a document.

As for amendment, yes, the states would need to agree to any proposal, I think. Not the actual people directly.

You mention the 10th Amendment. But is there any case in which a court has ruled that a constitutional power is reserved to the people and not the states? That’d interest me.

You might respond by pointing to the Bill of Rights. But first, we have rights in Britain too; and second, the fact that rights such as the right to bear arms can’t simply be legislated away in a sense supports my point, rather than yours. Not even the people can override the right to bear arms. That can only be done by constitutional amendment, decided on by Congress and the states, as we’ve said. Where does that leave the supposed sovereignty of the people?

I disagree with your points about the web, hierarchies and so on. There is no government-governed hierarchy here, different from that in America. Here, as there, the actual people vote for politicians, politicians in practice exercise executive and legislative authority, and we check them through scrutiny, criticism, protest and voting the next time around. There’s nothing outdated or under strain about British democracy any more than any other.

I do see two significant differences between the UK and the US.

There, political power is fundamentally shared between federal and state politicians (neither of which are the actual people) in a way it’s not shared here, though Europe and devolution are taking us some way in a sort-of similar direction.

More importantly, in the US, much more power is vested in the Supreme Court than any British court has. The nine Justices aren’t the actual people either, of course – or even chosen by them.

3 lawrence serewicz June 10, 2014 at 22:40

Carl,
Thanks for the quick and intriguing response. The Federalist Papers encapsulate the arguments for the constitution as the vote was given to the people who exercised it through their state representatives. This is the American system of divided (rather than Unitary) government.

To influence the state assemblies, which would ratify the constitution, the Federalist papers were written and circulated. It was a heady time for pampheteers, perhaps like the febrile life of the web today, in which people argued in print about the fate of the nation.http://aboutusa.japan.usembassy.gov/e/jusa-outline-government02.html
Yes, the assemblies decided but they in turn were made up of people, citizens as well, who would have to live under the constitution even if they disagreed with it.

How would we create a constitution now? I think a similar method would have to be found. Assemblies would be needed to funnel the direct participation into something manageable. I know there have been a number of UK experiments to design a UK constitution and I recall a group at Oxford setting off on such a programme a couple of years ago. This is why I said today was an interesting period, constitutionally speaking, because there are these changes (Supreme Court) and the real possibility of a new constitutional arrangement with the disunion of the two crowns. These are heady days.

I did not take your comments as a knock on the United States. I was just suggesting a useful corrective to the point about the power being reserved to the Congress. Congress does not have the same unlimited and unrivaled power that Parliament has. The founders understood this and designed the system to avoid this potential “tyranny” that they feared from such unrivaled and unlimited power.
The main reason why the Supreme Court is so powerful in the US, relatively speaking as it cannot execute the laws nor can it create them, is because the United States has a written constitution, which means it is codified. Thus the supreme court gets its power from its ability to strike down any law and rule any action unconstitutional, which makes it legally null and void. In a country based on the rule of law, there is no written law higher than the constitution, that is power albeit power with great constraints.
Would such a system work in the UK? Perhaps, but then the UK would have to change so much that it would stop being, literally, British. I find it hard to think of a UK without the Monarchy. Perhaps one day it will cease to have one and perhaps sooner than I imagine, but until then, I do not think the UK will have a similar federal or republican system like the US. The culture and the ethos are different as are the secondary institutions that influence that ethos and culture such as the established religion in the UK that has no equivalent in the UK.
We shall see on devolution, but one thing is clear. Gordon Brown has revealed more about himself than about the issues in his arguments.

Thanks again for the quick and interesting response.

Lawrence

4 Colin Yeo June 11, 2014 at 16:21

If we know two things about Gordon Brown, they are that he is Scottish and political to his core. We might guess that he is a strong supporter of the United Kingdom: that is his publicly reported position and he has served as a leading politician of the United Kingdom. The article is therefore presumably intended for a Scottish audience and perhaps arguably adds some political savvy to the ‘no’ campaign, which has been accused of being lack lustre and very negative in tone. GB suggests a different approach to some of the blunt arguments deployed by the ‘no’ camp would have had more resonance and effect. He must also know that his intervention is much awaited and his comments will be widely read and pored over in Scotland and by campaigners of both sides.

His comments on the constitution should be seen in that light and in the context of the article: pitched at a Scottish audience, giving guidance and direction to the ‘no’ campaign and intended to reach out to the Scottish ‘undecided’ audience. To criticise him for simplistic language, rhetorical devices and so on sort of misses the point of the article.

Anyway, personally I think it is arguable that the use of a referendum to decide an important constitutional matter such as Scottish devolution or independence does suggest power vests in the people. The ‘breakthrough’ in that sense was perhaps in 1975 on EU membership, but underlined in 1979 in Scotland, and it has been followed by other referendums in Scotland again, in Wales, for local mayors and in future again on EU membership, it would seem. In particular, a referendum on independence for part of the union in which only part of the whole electorate votes is quite a radical departure from tradition, to put it mildly. For good or ill, referendums are an innovation that seems to be increasingly established. They might be authorised or legislated for by Parliament but are a means by which the will of the people is expressed outside the normal, traditional means of representative democracy. This is constitutional law and politics text book stuff, really, and I’m sorry to labour the point.

It might be rather unfair, then, in the context of the political purpose of the article, its intended audience and the potential constitutional justification for it, to rather patronisingly suggest his understanding is ‘child like’.

In any event, I wonder whether a Scottish constitutional lawyer would take the same view as you, Carl. I fear your view might be quite an English one, rather than a British one or one that Scots or the Welsh and Northern Irish would recognise. For example, do Scottish lawyers and judges agree with your assessment on their behalf? You did leave the question open, to be fair. GB has been around a long time and presumably remembers back to the days of the original devolution referendum in 1979 and the debate in Scotland at that time. I myself don’t know what the constitutional issues were considered to be back then or what the Scots view is of the effect on the UK constitution of devolution so far, but I would be interested to know. I try to follow the independence debate down here in England but without a Scottish historical or legal education or personal experience in such debates in Scotland it is hard to guess.

The suggestion that GB’s mention of federalism is ‘ominous’ or threatening seems at odds with the new consensus between all the political parties that greater powers will be devolved to the Scottish Parliament if the vote is a ‘no’ vote (the Conservatives made an announcement on this very recently I believe). Your point regarding Westminster’s authority also seems wrong – many powers have been devolved, Westminster no longer legislates on many matters in Scotland and Wales and more powers are now set to be devolved in the event of a ‘no’ vote. It may only be a convention that Westminster will not interfere in devolved matters, but that is the stuff of which our unwritten constitution is made, of course.

Finally, your last paragraph is rather unfair on a man who, whether you like him or not, dedicated his life to serving the United Kingdom. I don’t think GB is being hostile to the UK constitution – I think he is trying to save it, in the face of the ‘no’ camp’s negativity and ill informed English interventions in a vote in which only Scottish residents are permitted to participate.

5 Tim June 11, 2014 at 17:20

I wish Wales had the opportunity to break away from the UK too, I would vote yes.

If the Tories are only allowed to wreck England I might start feeling hopeful again.

6 Carl Gardner June 12, 2014 at 12:20

Colin,

if as you say

it is arguable that the use of a referendum to decide an important constitutional matter such as Scottish devolution or independence does suggest power vests in the people.

then actually people are in charge in Britain, and no “We, the people” document is required to make it so. I think your point supports me against Gordon Brown, to be honest.

You say

It might be rather unfair, then, in the context of the political purpose of the article, its intended audience and the potential constitutional justification for it, to rather patronisingly suggest his understanding is ‘child like’.

I see your point, if you’re talking about your view that referendums are a kind of popular sovereignty. But I didn’t mean that. What I caused of being childlike is what I see as Brown’s apparent view (which you don’t seem to share) that the British people aren’t in charge in Britain, because we don’t have a constitutional document expressly making that claim.

You say

I wonder whether a Scottish constitutional lawyer would take the same view as you, Carl. I fear your view might be quite an English one … I myself don’t know what the constitutional issues were considered to be back then or what the Scots view is of the effect on the UK constitution of devolution so far ..

I realise my view of the constitution can reasonably be criticised as an English one, since I focus a lot on Parliamentary sovereignty. But I’m not sure I’m as parochially English as all that. I take seriously the argument that the Treaty of Union set limits to the sovereignty of the UK Parliament, and would not simply assert that Parliament can legislate to abolish the Scottish legal system, for example. As for the effect of devolution, I doubt many Scots would disagree that only Westminster can grant the Scottish Parliament more power within the UK – in fact Scots seem to be widely agreed that they want this to happen and see this as the proper mechanism for doing it. I’ve not heard an argument that the Scottish Parliament, or some other body, can simply claim more power for itself.

You say

The suggestion that GB’s mention of federalism is ‘ominous’ or threatening seems at odds with the new consensus between all the political parties that greater powers will be devolved to the Scottish Parliament if the vote is a ‘no’ vote

I’d be against a move to federalism, which I think would be a tidy-minded idea to fix something that’s not broke. But what I saw as ominous was his soft ultimatum that

if Britain does not change … Scotland … could force [something] upon the whole country …

That seemed to be exactly the language of threats and ultimatums that he went on to condemn in his own article. Odd. I’ve no problem at all with the Scottish Parliament getting more power. I’ve always supported the Scottish Parliament, and voted to bring in a government that offered it. I don’t see what giving it more power has to do with the rest of the UK accepting Gordon Brown’s view of “federalism”.

In response to your last paragraph, it’s not about my disliking Gordon Brown, really. My reading suggests he was a disruptive and not wholly helpful influence in Blair’s Labour government, and I think Labour might be in power now had it dared ditch him in 2009. But I usually find myself defending Brown and most of his policies against Conservatives, LibDems and even Labour-minded people who wrongly blame him for the financial crisis. I’m more sympathetic to Gordon Brown than you think.

But I have always worried about this particular strand of his thinking, which I think treats the constitution very lightly – as something just to be rubbished and dismembered by politicians in a few years if they want to – risks constitutional whimmery, focusing on the fashion of the day or the latest fad or wheeze (like federalism), and courts disaster by ill-thought-through reform. I mentioned Anthony Barnett because I think it’s interesting that Brown’s record in this area can exasperate those whose view are diametrically opposed to mine; and I mentioned Blair’s constitutional reforms because it seems to me Gordon Brown’s constitutional thinking is dreamier, more theoretical, much less reforming in reality, yet potentially much more damaging.

I’m not against constitutional change. I think there’s “good” constitutional change (piecemeal, solving real problems rather than responding to politicians’ or academics’ wishes, having clear, simple and reasonably predictable political effects and based on Parliamentary sovereignty as the fundamental) and “bad” constitutional change (grand blueprints, abstract, perfectionist, based on utopian theoretical ideas, solving politicians’ problems, unpredictable in their effects, undermining Parliamentary sovereignty), and I’m afraid I think Gordon Brown’s thinking tends to be on the wrong side of that divide.

7 Carl Gardner June 12, 2014 at 12:51

Lawrence,

I’m please you don’t see my view as an attack on America. It’s not. My attitude is specifically about Britain. What I’m trying to do is fight and correct a slack, un-selfconfident, depressive British attitude that runs down our own perfectly sound constitution, and thinks rather vaguely (partly because of Americans’ basic and obvious pride and confidence in their own Constitution, though thoughtful Americans are aware it’s not perfect either) that the American way, or something like it, must be obviously better. There’s also a third type of foolishness in Britain about this, that thinks “this is old, therefore it is bad”. Our constitution is just as sound as the American one. We should realise that, and be happy about it, as they are. In a way I want us to be more like Americans.

You say

the vote was given to the people who exercised it through their state representatives.

Exactly. “The people” no more made the Constitution than the Queen rules England; these are both fictional abstractions (just as much as “the people” was a mere abstraction for Marxist politicians last century), though Gordon Brown only realises the second one is. In reality, the American people do run America, just as the British people really do run Britain.

I think you may have misunderstood my point about how you’d make a constitution now. My point is that the American people don’t do this, and actually can’t – except by a peaceful popular revolution. They are stuck with the Constitution as it is, amendable only in its own terms. The constitution-making power was exercised, and the bolt was shot. I think it’s make-believe to pretend that’s a power the people still really have. Except, as I say, by popular uprising. Of course violent revolution is another possibility, but history proves to me that that almost never gives people what they want.

No one’s talking about the disunion of crowns, Lawrence, are they? Even Alex Salmond wants the kingdoms of England and Scotland to remain united. He just wants them to reign over two states rather than one.

As for written-constitution-mongers in the UK, I’m interested in what they’re up to (because I oppose them) but I don’t take any of the plans or projects very seriously in a political sense. I think they all suffer from tidy-minded perfectionism, are all pretty elite projects based on liberal and leftish ideas many people in the real world don’t share (in my experience there’s a big overlap between written-constitutioners and electoral reformers in Britain – and the second group found out in the fairly recent referendum how seriously out of touch their ideas are with the general population), and often tend to focus on fairly transient liberal concerns like “how to stop another Iraq war”.

We don’t have to find out whether Britain can be a republic on American lines, and there’s something oddly unBritish about the end-of-history assumption that it’s inevitable we try. The American model is not the answer to any of Britain’s problems, any more than scrapping the US Constitution and adopting the British system is a solution to the problems of America. There’s nothing fundamentally wrong with either baseball or cricket.

8 lawrence serewicz June 15, 2014 at 13:03

Carl,
Thanks. I fear we are moving away from central point. First, the American people made the constitution. In the UK, the Crown made the country and the people served the crown. There was, and is, a fundamental inequality within that UK process that is still working its way to liberal democracy. The UK is fundamentally not a liberal democracy. Yes, it has the trappings, but it has a monarchy with its powers and vested interests.

Second, the contract is important and fundamental to the people being able to consent and create a constitution. We need to consider the social contract theorists, in particular Locke, who influenced the Federalist. He had less success with the Crown and Parliament.
Why is the contract important? It shows the people, as people can contract. What do they contract to? The constitution, which expresses that consent. How can we see this contract explain and clarify the difference between the US and UK?
In the United States, the armed forces all swear an oath of allegiance to the constitution, not to Congress, not to the President, and not to the people.
In the United Kingdom, the armed forces swear an oath to the Queen. She is, legally, the supreme power in the land because the armed forces must honor their oath to her. They do not swear it to a constitution, Parliament, or the people.
You may wish to argue that this does not matter, but it is the fundamental and unambiguous difference between the US and the UK.
Can the UK resolve its constitutional issues? Ultimately, not until the Crown disappears and the people become supreme. This would require the UK to become a republic but such talk is, even today, potentially treasonous (which further suggests that the people are not sovereign).
As for the ability change a constitution, yes, it is based on adjustments, but adjustments that can alter its fundamental nature. If we the people wanted to scrap the constitution, they could but it would require a serious exception (pace Carl Schmitt) to reach it. In many ways, that is the fundamental political question in a community as it usually requires a revolution. The closest the United States comes is through regular elections to effect the necessary minor changes so that a major change, such as a revolution, are not needed.

Thanks for a stimulating post and comments.

9 Claire Finn June 16, 2014 at 11:24

Lawrence,
Even though I’m one of those written-constitution-mongers that Carl doesn’t take seriously, I have to agree with him on a few points. Yes, it’s great to have a constitution that Heads of State and Parliament or Congress are subject to but I don’t think the wording “we, the people” is a guarantee of anything. What matters is the rights and powers enumerated in the Constitution and the system in place to ensure those rights remain protected. I don’t see a Monarch, a largely ceremonial Head of State, as an impediment to a written constitution protecting individual rights. The greatest impediment is the lack of influence of any thinkers the likes of John Locke in today’s culture. The paradox, I think that Carl is getting at, is that America is not a liberal “democracy” in that sense and it wasn’t set up to be. It was set up as a constitutionally limited republic, precisely to protect individual rights not just from the power of the Crown at the time but also from democracy; the tyranny of the majority.

10 Carl Gardner June 16, 2014 at 18:27

I take written constitution-mongering seriously as an intellectual position, Claire, and as a danger.

When I said I don’t take it very seriously in a political sense, what I mean is that I don’t think it represents a movement capable of gaining significant support. I don’t think it reflects any substantial body public opinion or that it’s likely to persuade many people outside a politically nerdy and academic elite.

There is a danger, though: we could get a written constitution if the idea takes hold in the political elite, or in just enough of the elite to be implemented if there’s not sufficient opposition. With luck, politicians important enough to get real power will have too much else to worry about to bother with this agenda – which I think may be what happened to Gordon Brown.

11 lawrence serewicz June 18, 2014 at 15:56

Claire,
Thanks for your comment. I see three points to resolve.

First, the phrase We the people” is not window dressing. What it is and what it represents are fundamental to the discussion. Nowhere in the UK history will you find that phrase. The reason is that the UK has inherited a monarchical system in which power transferred from God to the King through divine right. Then with the various revolutions and changes, that power devolved from the King to Parliament. At no point has a monarch ever said, I devolve these powers to the people and I relinquish all my entitlements. Take for instance two points. First, the Queen has no passport. She does not issue one to herself. You and I have passports; the Queen does not. Second, the Queen is entitled to protections and freedoms that neither you nor I have access. She cannot be sued for example and she does not require a number plate. As such, there is a fundamental inequality within the UK political system that is not present in the US system because of the principle enshrined in the phrase “We the people”.

Second, We the people is important because the people become the final guarantor of the rights within the constitution. The rights do not come from the people. Instead, they come from nature and nature’s God (see the Declaration of Independence). Who is the final authority in the UK? It is parliament. There is no power higher than Parliament. They could outlaw me tomorrow and it would be lawful and legal. This was a central point in Lord Neuberger’s speech Who are the masters now? http://ukhumanrightsblog.com/2011/04/08/whos-the-master-now/
http://webarchive.nationalarchives.gov.uk/20131202164909/http://judiciary.gov.uk/Resources/JCO/Documents/Speeches/mr-speech-weedon-lecture-110406.pdf see in particular paragraphs 13-35.

Third, the nature of liberal democracy takes different forms. Is there a pure liberal democracy? No. However, the point is that the nature of liberal democracy is such that the UK does not share many of its features. To an extent, the US shares more of them. Does this mean that the US is superior and the UK is inferior? No. Even if one assumed that liberal democracy was the best regime, it would not mean that those countries lacking such a system were inferior. Instead, it means that they do not share or have access to the benefits. Thus, the citizens and subjects in the less liberal democratic regimes lead lives that while not inferior are limited by the nature of their regime.

Will a constitution change this by its existence? No. What a constitution does is mix two things. First, it represents the regime and it represents the highest aspiration of the community. The two cannot be disentangled. To the extent that North Korea has a constitution shows how far the idea has come that even the most repressive regime wishes to appear just. However, North Korea’s constitution is hollow because the people cannot access it and the leaders do not wish to obey it. In regimes that have a written constitution it is product of a process that reflects a liberal democratic faith that we can live under the rule of law rather than the rule of man. To the extent that the UK lacks a written constitution, it remains destined to live under the rule of man (or woman in this case), because there is someone who is above or rather beyond the law. In a regime with a written constitution no one, not even parliament nor the monarch is higher than the constitution. Yet, that destination requires a fundamental change in the nature of the community and its regime. The UK would have to do away with the Monarchy and it would have to accept that parliament is not sovereign. In effect, the people would have to re-found the state on a new basis, just as Lincoln has to re-found the United States through the civil war. Will this happen immediately? No. Is it happening? Yes. The UK is slowly, but surely, changing towards a more republican and less monarchical system. Is the pace of change too slow? That is a question for the people to decide.

Thanks again for a stimulating response and good luck with your project.

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