Written and Unwritten Constitutions: The Modality of Change

Abstract

Written constitutions are the norm, unwritten constitutions the rare exception. There is much that can be said as to the commonalities and differences between them. There are, nonetheless, two principal variables that underscore the respective forms of constitution, which in turn impact on the modality of change: the extent to which the constitution is committed to writing, and the extent which the constitution is perceived to be separate from, and superior to, ordinary law. These twin variables are commonly perceived to be linked. There is empirical warrant for this assumption. The paradigmatic written constitution, which contains the principal constitutional norms in a single document, will commonly also enshrine, expressly or impliedly, constitutional review through which courts subject ordinary statute to review for constitutional compliance; the constitutional norms of the paradigmatic unwritten constitution will normally be found in a plethora of sources, and ordinary statute will customarily have pride of place in the constitutional schema. There is, however, no a priori normative reason why these twin variables should be linked in this manner. The embodiment of constitutional norms in a canonical document does not predetermine the content of the constitution, nor does it impel the conclusion that constitutional review exercised by a court must be part of the resulting schema. This is exemplified, as will be seen below, by the UK, where some suggestions for the shift to a written constitution are premised on the assumption that parliamentary sovereignty remains a cornerstone of the constitutional ordering. It is, by parity of reason, equally possible in principle to think of an unwritten constitution, the central features of which are markedly similar to those of the paradigmatic written constitution, such that it is accepted by all relevant players that ordinary legislative power is bounded by certain structural and rights-based precepts that are enforced, inter alia, by the courts. The manner through which this might occur will be considered more fully below. It follows from the foregoing that while the extent to which constitutional norms are committed to writing is of significance in distinguishing the two forms of constitution, the second variable is more important in normative terms, and shapes the way in which change is effectuated. The contrast in this respect is sharp. The foundational starting point of the standard written constitution is the distinction between law-making through ordinary politics and the constitution; the latter circumscribes the former, such that the terrain of ordinary politics is bounded by the constitution. The foundational starting point of the UK unwritten constitution is that parliamentary sovereignty is the principal constitutional principle; the terrain of ordinary politics is boundless and parliamentary sovereignty instantiates and elevates ordinary statute as the vehicle for its delivery. This chapter in honour of Bruce Harris explores the foregoing ideas and their implication for the modality of constitutional change. Issues of constitutional change within the unwritten constitution have been one of the main themes in Harris’ scholarship. The discussion of written constitutions begins with certain preliminaries as to the origins of the modern constitutional form. It is followed by consideration of constitutional content, distinguishing between the horizontal, vertical and structural features generally found in written constitutions, and includes discussion of over- and under-constitutionalization. The analysis concludes with brief reflection on the manner of constitutional change. The focus then turns to the UK unwritten constitution. It begins with certain preliminaries as to historical origins. The ensuing discussion considers the horizontal, vertical and structural provisions of the UK unwritten constitution and the way in which they are shaped by parliamentary sovereignty. The analysis includes the emergence of parliamentary sovereignty in the UK constitutional order, the parallel historical discourse concerning fundamental law, the resultant centrality of parliamentary sovereignty and the ways in which this was justified over time. The inquiry concludes with the modality and frame for constitutional change in the UK.