Britain’s constitutional crisis.

EARLY IN Charles Dickens’s Our Mutual Friend, the unbearable Mr. Podsnap is shown instructing an “unfortunately born” foreigner. “We Englishmen are very proud of our constitution,” Podsnap observes portentously. “It was bestowed upon us by Providence. No other Country is so favored as this Country.” “And other countries? They do how?” asks the foreigner. “They do, Sir,” replies Podsnap, “they do—I am sorry to be obliged to say it—as they do.”

Podsnap is moved to invoke a murky Providence as the source of his precious constitution, because he cannot point to any human agents or, indeed, to any specific document. Nor, of course, can his real-life countrymen today. Although England, and the rest of the United Kingdom, possesses momentous constitutional texts and significant statutes, since the 1600s there has been no systematic attempt to codify the powers and limits of the British executive and the rights of those it governs.

Dickens’s much-quoted passage feeds into a widespread view (not least in the United States) that Britain’s constitutional ordering is merely an insular oddity, something rather quaint and also comic. “Your country’s been around, what, a couple thousand years,” roared Jon Stewart on “The Daily Show,” “and you never got around to writing down your constitution?” But the situation is currently ironic and serious. While British ideals and practices have had a massive impact across the globe, Britain’s own constitutional status quo is now an increasingly volatile one.


SHORTLY BEFORE HIS DEATH in 2003, Edward Said penned a critique of Noah Feldman, a brilliant legal scholar who was then at New York University. Feldman had accepted an invitation from Coalition Provisional Authority in Iraq to help draft its interim constitution. Why, Said inquired, had it been judged necessary to entrust this task to an American who had never previously visited Iraq or practiced law anywhere in the Arab world, when “legions of Arab and Muslim legal minds ... could have done a perfectly acceptable job”?

As Said understood, there was a related anomaly evident in Iraq in the aftermath of the war. Not just Americans such as Feldman, but also British legal advisers (some of whom were Muslims) quickly descended on Baghdad to advise the Iraqis on constitutional drafting. This was not the first instance of such Anglo-American collaboration. After 1945, American and British diplomats combined to construct a new German constitution; they also bickered over the provisions of the Japanese constitution, which was enacted in 1947 and remains in force today. Divided by their unwritten and written constitutions, Britain and the United States have both nourished the view that their respective political systems and values are at once unique and simultaneously a fitting example for other societies.

Indeed, Britain’s influence on other peoples’ constitutions has probably been more frequent and more diverse than the undeniably huge impact of the U.S. Constitution. This influence was sometimes indirect (as in Belgium in 1831 or Chile after 1833). But in Britain’s onetime empire, it was often hands-on, as with the first Iraqi constitution in 1925. As a British minister explained smoothly to an audience in Malta in 1963, “We in Britain have no constitution of our own, but we have quite a lot of experience of writing constitutions for other people.”

In 1787, of course, Americans wrote a constitution for themselves, rejecting Britain’s unconstrained parliamentary absolutism. Nonetheless, in constitutional terms, Americans remained for a long time partly colonized by British ideas. “The British Constitution,” wrote one American patriot, “will always be kept in view by us as the most perfect model.” The creation of a U.S. presidency, Senate, and House of Representatives was, however, seen as a superior, republican mirroring of the threefold division of British government: monarch, House of Lords, and House of Commons.

For Britons, too, the Atlantic remained, constitutionally, a bridge, and not simply a divide. A shared language and print culture ensured, for instance, that generations of British and Irish radicals drew ideas and inspiration from U.S. constitutional writing. And in both Britain and the United States, albeit in different ways, the constitution became a powerful national icon, especially after the 1850s. In Britain, the phrase “unwritten constitution,” previously rare, became common political currency. A more explicit argument grew up that, while less assured and less fortunate peoples might require their constitutions set down on paper, the British did not. They did not need their government and their liberties reduced to print. Knowing and feeling these things instinctively was part and proof of being British.

Yet, as Thomas Jefferson famously remarked, there can be no perpetual constitution, and on both sides of the Atlantic, there are now visible signs of strain and fracture. Americans have become more noisily divided over whether Washington is not working well because the Constitution is being ignored or because the system of government itself requires major change.

The pressures on Britain’s onetime constitutional complacency are far sharper and more immediate. Because of the scale of immigration, Britain is less culturally homogenous than it was before 1950. Consequently, it is harder to sustain the fiction that Britons can somehow know and feel their constitution without having it available in a single, recognized public text. Devolution in Scotland, Wales, and Northern Ireland has made a federal United Kingdom more likely: And federal systems usually require written constitutions to serve as treaties between their component parts. Moreover, some political conservatives now argue that a codified British constitution might be useful to keep Brussels and the European Union from further eroding liberties and autonomy.

And, as has been true since the eighteenth century, there is the problem of a sometimes untrammeled executive. A Tory minister, Jeremy Hunt, is currently under fire for breaching the Ministerial Code, the set of rules regulating the conduct of British ministers. But it is arguably the prime minister whose prerogative it is to order an inquiry into whether ministers have broken the code. It is also the prime minister who appoints these ministers in the first place.

If Scotland does secede, it is just possible that what remains of Britain will be compelled into a thoroughgoing revision of its constitution. Still, the temptation in Britain, as ever, may be to fudge. If Mr. Podsnap had made it to the twenty-first century, even he might have felt just a little embarrassed. 

Linda Colley is Shelby M.C. Davis 1958 professor of history at Princeton University and the author, most recently, of The Ordeal of Elizabeth Marsh: A Woman in World History.

This article appeared in the July 12, 2012, issue of the magazine.