I want to share with readers two observations on the topic of constitutions and the eternal question of “why they don’t work.” Having long been interested in this problem—for some twenty years now—I constantly came across references, mostly in passing, to certain circumstances related to the English constitution. I should note that modern constitutionalism is a kind of “thing in itself”—it deals with problems of constitutional law, assuming by default that a constitution is some objective phenomenon, like quarks or mu-mesons. In general, my advice is: if you seriously want to learn something about constitutions and understand what the trick actually is, do not read modern authors.
Now, if we turn to the contemporaries of the constitutional experiment, things become much clearer. For example, it turns out that all of this stems from the “English constitution.” By the English constitution was understood such a state of affairs that allowed the English to be the freest people of their time. Continental figures and, above all, the French were keenly interested in the English secret. Voltaire and, especially, Montesquieu spent considerable effort to, so to speak, “learn from the experience.” The French began “implementing advanced experience” with their revolution. Their first constitution contained a great many rights, but, as contemporaries wrote, never before had there been a time when these rights were so ruthlessly trampled upon. In general, nothing came of it.
Throughout the entire nineteenth century there is a debate about the constitution, until Albert Dicey finally undertook an attempt to describe the “English constitution” from the perspective of an English lawyer (though already in times when legal theory was experiencing strong influence from the continental tradition). He demonstrates a simple circumstance: that the English constitution is, in essence, judicial practice. Habeas Corpus, for instance, was applied by English courts in practice for some four hundred years before it became a parliamentary law—and even then, only after several attempts. And so on. That is, the English constitution (which, as everyone knows, does not exist in the form of a written text) is simply a set of norms and procedures developed in the course of resolving completely private cases at different times by different people. This is a phenomenon that arose naturally and exists regardless of whether you know about it, whether you ponder its existence, whether you try to isolate it from the rest of the body of law, or whether you give it some special name.
This, by the way, also explains the relative success of the American constitution, as opposed to the French ones. The American colonists made a revolution precisely because they believed that the king was violating the constitution (which he was indeed doing). Therefore, they wrote their own. However, the law in the former colonies was and remained British, that is, predominantly “law of judges,” not “law of statutes.” The judges continued (and still do) to use procedures and practices that are already several hundred years old. Therefore, for the first hundred years or so, the USA managed to combine a written constitution with British law; then problems began and today the general opinion is that in the USA “law of statutes” already predominates over “law of judges.” But this is a different topic.
In general, the very idea of a written constitution that supposedly “establishes” something and, moreover, “guarantees” it, is an absurdity. A constitution can “establish” only what already exists anyway. Therefore, the answer to the question “what kind of constitution should there be for it to work” is only one—none. “To work” should mean here, right here where we live. No written texts by anyone can change anything. The second circumstance I want to mention is closely related to the first. This is also a British constitutional principle: “no taxation without representation.” Actually, it should be read as “no taxation without the consent of those being taxed.” Again, from time to time I come across references to the difficulties that the British crown regularly experienced in raising funds. These difficulties consisted in the fact that the king could not simply invent and introduce new taxes. If the crown needed money, it was necessary to summon parliament and request its approval. Moreover, English laws often had a fixed term. That is, having summoned parliament, the king had to prove that the existing taxes were not enough. In fact, each parliament conducted a revision of state revenues and expenditures, and the king always risked not only not getting what he wanted, but having his funding reduced. Compare this situation with our own position, when taxes are introduced “forever” and the state is guaranteed funding regardless of circumstances.
I think this financial circumstance played no lesser role in turning England into the “island of freedom,” the “mistress of the seas,” and the “workshop of the world” than purely constitutional circumstances. If there is any relatively reliable way to keep the state to a minimum, it is constant financial hunger and the need to obtain consent for every action. True, as subsequent events show, over time, states find a way out of this situation as well.
In conclusion, a quote from the book that happened to be at hand: “From our point of view it is extremely interesting that representation in the Council of Commons did not necessarily imply that decisions had to be made by majority. For example, in 1221 the Bishop of Winchester, summoned in order to obtain his consent to a scutage tax, after the council approved it, refused to pay on the grounds that he was against, and the Lord Chancellor upheld his petition.”