One can only ever disagree with David Davis, MP, respectfully because he’s widely, and deservedly, respected.
Hence I’ll only describe his article Brexit Is the Writing on the Wall for Our ‘Constitution’ as ill-considered.
According to Mr Davis, last month’s outrageous decision by the Supreme Court is “the latest indication that Britain’s so-called unwritten constitution is now failing to deliver either effective or democratic government.” Right. So our constitution is only so-called, not real.
And then: “That centuries-old system, a fluid interpretation of codes, customs, conventions and case law, operated in a way that respected the realities of the day… [and] it worked better than the most elegant legal constructs of other nations.”
That our ‘so-called’ constitution has worked better than any written document produced by other nations is a matter not of opinion but of fact. Yet our constitution has been so successful not because it “respected the realities of the day”, but specifically because it didn’t.
Instead it brought to the fore timeless values that transcended quotidian concerns: common sense, restraint, justice, equity and respect for tradition – which happen to be the defining aspects of the British national character.
Both the character and the constitution have developed in parallel, overlapping so much that almost nothing sticks out: Britain, unlike any other European nation, is defined by her political dispensation. Take that away, and not only British politics will no longer be British, but the British will no longer be British.
Our constitution, incorporating both the monarchy and the Church, is a factor of organic continuity; it’s a bond tying together generations past, present and future. No nation can survive without some such bond, but, of the great European nations, only in Britain is it provided by a constitutional settlement.
Yet Mr Davis is right: at present, our constitution is indeed “failing to deliver either effective or democratic government”.
I especially like this “either… or”. Surely Mr Davis doesn’t believe our government has to choose between efficacy and democracy? He probably doesn’t, but I do – in the sense in which democracy is now used.
A successful constitution usually has enough margin built in to accommodate the odd influx of mediocre guardians, such as politicians, judges and civil servants. But no constitution can succeed when such people either don’t understand it or don’t like it or, especially, actively seek to undermine it.
Hence one test of a sound constitution is its ability to elevate to government those whose intellect and character make them fit to govern. Our constitution has been failing that test over the past decades, and the key problem comes from letting democracy claim the exalted ascendancy to which it wasn’t traditionally entitled.
That’s why sage people have over centuries lovingly nurtured a constitution able to prevent tyranny by both minority and majority. To that end all the elements of our constitution, including the democratic one, have been carefully balanced against one another.
After all, only responsible voters can elect a responsible government. Edmund Burke estimated the number of those fit to vote in his contemporaneous eighteenth-century England at 400,000, which then constituted about eight per cent of the country’s population.
These days we clearly can’t impose the same qualifications on suffrage that were normal in Burke’s day. Yet that shouldn’t mean that no qualifications should be imposed at all. The most obvious one is that of voting age, which has been creeping downwards – to a point where the head of politics at Cambridge University has called for children as young as six to be given the vote, and he was being serious.
In fact, constitutional vandalism has been gathering pace precisely in the decades following 1969, when voting age was lowered to 18. For a broad swathe of the electorate began to vote – and consequently exert upward pressure on the government – with their gonads, rather than their immature minds.
The entire political spectrum began to shift leftwards at an alarming speed, creating a conflict between ‘liberal’ policies and an inherently conservative constitution.
At roughly the same time, the education system fell victim to egalitarian zeal, making sure that even many of those who could develop a political intellect were denied the opportunity to do so.
That has led to intellectually feeble and morally corrupt individuals ascending to government en masse. Once there, they attack our constitution, while claiming undying devotion to democracy.
One can see self-interest at work there. Rather than being just one element in the constitution, democracy now sabotages it by corrupting all the other elements. And only a sabotaged constitution can perpetuate the emerging elite of pygmies.
Mr Davis doesn’t seem to understand the aetiology of the malady he sees. And as to the treatment he proposes, any doctor following the same logic would become a mass murderer unless he were struck off first.
He doesn’t suggest measures undoing the damage of the recent decades, such as restoring the now politicised Lords to its traditional constitutional role, getting rid of the equally politicised and superfluous Supreme Court, preventing parliament from rendering the executive impotent, introducing stricter qualifications on voting and so forth.
Instead Mr Davis would like to destroy the greatest constitution in history altogether by replacing it with a US-style written document.
Now, I often use the same simile when talking about written constitutions, likening them to a prenuptial agreement stipulating the frequency of sex: if you have to write it down, you might as well not bother.
Clearly this applies only to old, organically developed nations, not revolutionary governments that draw up their constitutions when they’ve existed for merely 20 years – like the United States, which Mr Davis sees as our role model.
Such governments may indeed require a written document, and more power to them. But throughout history they’ve looked up to Britain in framing their constitutional thought, not the other way around.
Mr Davis is free to admire whomever he finds inspiring, such as “Alexander Hamilton, James Madison and John Jay, the great American constitutionalists who authored The Federalist Papers”, but he must realise that what was America’s meat would be our poison.
Mr Davis calls for creating yet another quango, and one would think we have enough of them already. The one he proposes is a royal commission set up to put together a written constitution “not unlike” the one drawn up by his idols.
They expertly fused English common law with new-fangled Enlightenment dogmas to create a document that has succeeded on its own terms. Yet Mr Davis himself acknowledges that our terms are different:
“Madison’s seminal contribution was about limiting any tendency to populist demagoguery creating a majoritarian dictatorship and also protecting the rights of the minority – an idea that has been implicit in British common law for centuries.” [My emphasis.]
I’m confused. If this idea has been implicit in English (not, in this context, British) common law for centuries, what’s so seminal about Madison’s contribution? What is it we have to learn from the American founders – especially since many of them were horrified when observing the chicken hatched by the egg they had laid?
In 1806 John Adams wrote, “I once thought our Constitution was a quasi or mixed government, but they had made it… a democracy.” And in 1811 he rued, “Did not the American Revolution produce the French Revolution? And did not the French Revolution produce all the calamities and desolation of the human race and the whole globe ever since?”
Thomas Jefferson echoed Plato by observing that: “A democracy is nothing more than mob rule, where fifty-one per cent of the people may take away the rights of the other forty-nine.”
That’s why Hamilton, aware of the democratic tendency to convert appetites into new rights and ancient rights into anachronisms, campaigned tirelessly against the introduction of the Bill of Rights.
“A new codified constitution,” writes Mr Davis, “would have to incorporate those common law traditions, resettle the balance between the executive, parliament, the courts and the people, address the needs of devolved nations, reform the Lords and secure basic rights.”
Incorporate common law traditions into what? A piece of paper that spells out surrender to our rampaging paedocratic modernity? One that would enshrine every perversion and every act of sabotage?
The whole point about common law traditions is that they are based on a careful accumulation of precedents over millennia, not a sweeping brainstorm of some mythical royal commission.
What Mr Davis proposes, unwittingly no doubt, is the ultimate constitutional sabotage that would implode the entire political history of the country. Blown up sky high would be, inter alia, such institutions as the monarchy and the established Church – they manifestly don’t “respect the realities of the day”.
Following them into oblivion would be not just our constitution but our country – as we know it. This isn’t the outcome Mr Davis desires. But it’s one his proposals would deliver if acted upon.