Late nineteenth-century British legal theorist James Bryce is most famous in America for writing The American Commonwealth. This book is a self-conscious revisiting of Alexis de Tocqueville’s classic Democracy in America, though from a more explicitly legal and classical liberal perspective. But much of Bryce’s most interesting work was in the area of comparative constitutionalism—the study of different nations’ constitutions and how they work. Taking a heavily historical perspective, Bryce sought to bring rigor to a field generally dominated by local prejudices and, to this day, a combination of simplistic thinking and ideological posing.
One of the more persistent false dichotomies Bryce contested was that between “written” and “unwritten” constitutions. This distinction hardly matters today, for even the sole remaining exemplar of a supposedly unwritten constitution—Great Britain—has reduced the vast bulk of its constitutional rules to explicitly constitutional form, including through adoption of European Union documents. Nevertheless, one continues to hear of the unwritten constitution as a species of constitutionalism and the term obscures a more important one dealt with in some detail by Bryce. The more important distinction is that between what Bryce terms flexible and rigid constitutions. Bryce’s point is that constitutions like the British, up until quite recently, and also the ancient Roman (and most medieval) constitutions were not truly unwritten. Rather, they were collections of statutes and of customs that themselves generally took written form over time as judicial precedents.
The real distinction between flexible (“unwritten”) and rigid (“written”) constitutions rests with their legal status. Flexible constitutions are made up of a variety of different laws and customs, none of which is impervious to amendment or outright rejection and replacement through everyday legislation. Even quite fundamental changes in the rules governing a nation’s political process and distribution of power can, in a flexible constitution, be made with relative ease, at least in formal terms. Thus, for example, over time the British Parliament passed various reform laws broadening the suffrage, severely restricting the power of the House of Lords, and even handing over large segments of its national sovereignty through regular laws passed by the same means and majorities as mundane legislation. The same happened in Rome and various medieval republics. A “constitutional” law is merely a law, within a flexible constitution, and any law can be changed by the will of the governing body.
Things are different within a rigid constitution such as that of the United States. Having gathered fundamental provisions relating to the structure and powers of government into a single, authoritative document, nations with rigid constitutions see their fundamental law as procedurally above regular law. Not only are constitutional provisions more fundamental than, say, speed limits, they also are susceptible of change only through formal and generally quite onerous processes of amendment.
Given his British perspective, it is not surprising that Bryce should find much to admire in the flexible constitution—indeed more to admire than in any rigid constitution. As his terms imply, for Bryce the flexible constitution, despite its theoretical mutability, actually is more stable and enduring than the rigid, or unbending, constitution. In Bryce’s view, flexible constitutions also are less susceptible to radical changes than their rigid counterparts.
Bryce’s reasoning is powerful, especially if one keeps in mind that the most influential of rigid constitutions has not been that of the United States but, rather, that of revolutionary France. In point of fact, it makes more sense to view the French constitution as the model of rigidity rather than the American. How so? The federal Constitution of the United States was written and approached for many decades (arguably past Bryce’s own time in the late nineteenth century) as a limited grant of power to an artificial entity acting in a limited capacity on the part of more organic, fundamental governing units (the states). Meanwhile, the French constitution from its inception was national in a pure, centralized sense. Thus, much of the rigidity of the American Constitution was not only written into its fabric as a grant of highly limited powers, it was buttressed by more local governments—and state constitutions—that were both more extensive in their powers and more liable to change according to the will of the governed.
As to the French constitutional model, it has exemplified both a rigid and a transitory character. The French Republic went through a series of constitutions in its early revolutionary days before succumbing to Napoleon. Since then at least five “republics” have been declared under new constitutions. Britain, meanwhile, continued to be governed under the same flexible constitution it had had since 1689 at the latest. (This was the date when the royal prerogative of suspending and derogating from laws was formally ended through the English Bill of Rights.) According to Bryce, a major reason for the longevity of flexible constitutions is the availability of nonrevolutionary change through legislative reform. But there is more. Perhaps more important than the availability of change, flexible constitutions since Rome’s have been buttressed by the very mystery of their origins and precise nature. Because they are rooted in custom, Bryce argues, flexible constitutions have an aura of mystery about them, which adds to the reverence in which they are held by the people. Thus, there is little desire on the part of the people to upend or replace a governing structure they see as bound up intimately with who they are as a people.
Bryce finds much to criticize in the American Constitution—again, as one would expect coming from a loyal Englishman enamored of his own system. Moreover, Bryce was writing relatively soon after the conflagration of the Civil War, when disagreements over the extent and inviolability of federal power had given rise to horrific war and bloodshed. Was it the rigidity of the American Constitution, with its very high bar for amendment that prevented any peaceful settlement of the secession crisis? Debate over this issue would be as long as it would be interesting.
Perhaps more to the point, from a contemporary perspective, is what has happened to the “rigid” American Constitution over the last 150 years. This country once had a rigid but highly limited Constitution rooted in the rule of law. But it has come to have an unlimited Constitution, increasingly divorced from the rule of law and seemingly infinitely malleable at the will of the justices of the Supreme Court.
Certainly until the Civil War, and arguably until well into the progressive developments of the twentieth century, America had a constitution that was rigid only in the formal sense. It was a relatively short document providing, principally, rules of procedure for the making of laws and allowing for the formation of institutions to execute and adjudicate under them. Given the extremely limited nature of the powers granted to this government (foreign affairs, highly limited infrastructure formation, and maintenance of a free trade zone among the states) the need for flexibility was itself limited. Even the Bill of Rights was primarily a limitation on federal power and, moreover, one embodying common-law understandings of activities like speech and religious exercise.
The change in American constitutionalism has been one of judicial conduct. Over time, the requirements of “progress,” as those seeking a national social democracy termed their political program, have been seen as being stymied by the provisions of separated powers and the checks and balances that defended that structure. It was to facilitate the drive for nationalized progress that judges took for themselves the role of lawmakers, inserting flexibility into the document where none existed—all the while ignoring the more localized flexibility essential to its proper functioning.
Using the Fourteenth Amendment’s guarantee of procedural due process as a means of “incorporating” their own theories of good government, judges transformed the Constitution and the nation. Asserting that the Constitution’s status as higher law empowered them to redefine that higher law to meet their perceptions of current needs, judges have worked to destroy the old Constitution and put in its place a new one. Where before a few rigid rules were used to cabin the limited central power, there now would be a judge-made Constitution of general applicability and almost universal extent. We have not lost our Constitution to military dictators or emperors. But the Constitution’s essential roots in the will of the people as expressed through custom and local law have been severed. In their place we have an extensive patchwork of unpredictable rules, consistently altered according to the whims of the judges. In this way, our Constitution has been changed from a simple, clear set of rules for government among united states to a shifting set of ad hoc decisions determined through ideological conflict. Rigid yet vague, unpredictable yet unsusceptible to the people’s will, the current, bastardized Constitution fits neither of Bryce’s categories, combining the worst elements of each. It cannot long stand as currently constructed and implemented.
Bruce P. Frohnen is Professor of Law at The Ohio Northern University Pettit College of Law.