It is commonly mistaken that the UK doesn’t have a constitution, or that it doesn’t have a written constitution. It has both. When a House of Commons bill becomes law, it becomes part of our constitution. Or when a judge delivers a ruling on a case, that then becomes part of our constitution. This is called an uncodified constitution and there are two great things about this system. The first is that rules are not concentrated in one single document, made by one group of people; power is instead spread out among various officials and institutions so as to prevent any potential abuses of it by one body. The second benefit of an uncoded constitution is that it’s constantly being updated; it’s not just bleeding-heart liberals who recognise that we live in a fast-changing world, and the law needs to keep up with this.
Don’t get me wrong, a codified constitution (the principle of having a set of inalienable rights written down on a single piece of paper) is not anti-progress and, often, it can be just what is needed. However, as previously mentioned, laws are like iPhones: they need to be up to date. If you’re one of those people who refuses to update your IOS, for whatever reason, rightly or wrongly, the fact is you leave yourself more exposed to things like phishing and hacking. The same applies with laws. Unlike many European nations who adopted new codified institutions after the Second World War, the United States of America to this very day still worships the words written 230 years ago by (largely, let’s face it) slave-owners.
This brings us to the recent death of Justice Ruth Bader Ginsburg and Article II, Section 2, Clause 2 of the United States Constitution, which empowers the President to make a lifetime appointment of a Justice to the Supreme Court, should one pass away. Despite being clearly inconsistent with the Separation of Powers doctrine also outlined in the Constitution, this clause means, in practice, that this branch of the Federal Government is an unelected group of lawmakers appointed based on whether they are liberal or conservative.
A woman’s right to abortion, a black person’s right to education and a gay person’s right to marry: these crucial decisions have been taken, not because the American people voted in someone who enacted them, but because the balance in the Court happened to favour the liberals. And while it favoured civil rights and progress on these occasions, it hasn’t done so on others. In 2000, the court decided the outcome of the Presidential election by preventing a recount in Florida that would have most likely given Al Gore the Presidency and, in 2010, they maintained that one can buy their way into public office.
With Trump’s nomination of Amy Coney Barrett, the future is equally as bleak. If confirmed by the US Senate, it would mean a 6-3 split in favour of the conservatives, who could roll back abortion rights, civil rights and potentially even help President Trump keep power, should things get ugly on November 3rd. Can Democrats stop him? No, because they don’t control the Senate and because a 233-year-old piece of paper has never been updated to include something completely non-partisan and sensical like: ‘A Supreme Court Justice shall not be appointed within six months of an upcoming election, so as to prevent an outgoing President from superimposing a legacy that could be in complete contradiction with the will of the people’.
Do Republicans care that if the shoe were on the other foot – as indeed it was four years ago – they would be calling for civil war? No, because they know more is at stake here than their hypocrisy. By establishing a two-thirds conservative court, they will be setting the political agenda, subject to no scrutiny from the American people, not for the next four years, but potentially the next four decades. In a lot of ways, more is at stake here than in the election.
Let me be clear, it is not remotely the case that the constitution adopted in 1787 is a backwards document, completely irrelevant and with no purpose: it is a remarkable piece of work and its rights should be cherished and preserved. The problem is that it has taken on a life of its own, subject to no challenge whatsoever, a shield behind which many hide so as to prevent enacting common-sense legislation that would make America an objectively fairer, more democratic country. And what if the American people don’t want to run their country exactly the way James Madison envisioned? Is that really such a radical thing to ask? The United States needs to reform its constitutional system so that it focuses more on making sure it is up to date with modern society, rather than worrying about upsetting the ghosts of the founding fathers.
Image: Jarek Tuszyński via Wikimedia Commons