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6 October 2021

Making the rules of government

Modern constitutions were produced not by liberal ideals but by the demands of war.

By Colin Kidd

It’s one of the more unusual political gaffes if a dictator blurts out the blatant truth that he does what he does because he can. The boast offends against the closest thing there is to a globally recognised norm, for all regimes pay lip service to the idea of constitutional government. Every country bar three – the UK, Israel and New Zealand – possesses a written constitution. In many cases, these documents provide little more than a fig leaf of legitimacy for corruption and abuse. And although we think of written constitutions, such as the US’s, as foundational texts with a long life, most come and go with a disturbing frequency. While incoming juntas might rip up inconvenient constitutions and draft new ones without irreparably breaching decorum, ruling without any constitution is considered a boorish lapse in global etiquette.

Whereas authoritarian governments cynically observe – at best – the mere letter of constitutional practice, liberal democracies are increasingly responsive to the core ethos of constitutionalism: the idea that there are established, entrenched limits to naked government power. This is true in democracies with written constitutions and in the three exceptions, which have all begun to move towards some halfway-house. In Britain, the Human Rights Act of 1998 authorised the courts to issue declarations of incompatibility when a domestic statute infringes the European Convention on Human Rights. In the following decade the Supreme Court was detached from the House of Lords, and the UK rectified the anomaly of the Lord Chancellorship, whose blending of roles within the executive, legislature and judiciary made a mockery of the separation of powers. More recently, we have seen the judiciary challenging the government when ministers are seen to exceed their constitutional authority, most spectacularly in the prorogation furore of 2019.

[See also: Why the left must abandon the myth of British decline]

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We tend to assess constitutional government by standards drawn from jurisprudence and political theory: the rule of law, government accountability, the separation of powers and the rights of minorities. And we assume that there is a gulf of philosophical difference between such liberal restrictions on governmental power and the constitutionalist window-dressing we see in dictatorships. But Linda Colley, in her surprising and insightful new book, asks us to view the development of constitutionalism across the globe as part of an interlinked set of historical processes whose direction and tempo were dictated largely by militarism and warfare. Take Myanmar’s baroquely contorted constitution, which by according special political and administrative powers to the armed forces effectively enabled the coup in early February 2021. Viewed in the light of Colley’s argument, the Myanmar constitution – whatever its obvious deficiencies – seems less alien.

She argues that written constitutions, whose function in liberal democracies today is to constrain government action, have historically been means of justifying the empowerment of the state and mobilising for war, and this is as true in the West as in the rest of the world. Liberal-state constitutionalism and constitution-fronted authoritarianism are twins, both products of a history that stretches back to the great power rivalries of the mid-18th century.

This ubiquitous “technology” of governance, it transpires, is much misunderstood, and not just by liberal theorists. Historians have too often focused on the revolutionary background to constitutional change rather than the changes in warfare that caused the revolutions. Yet it was the shift to what Colley calls “hybrid warfare” in the 18th century – the imperative for competitor states to furnish mammoth land armies and build navies able to wage war across the oceans – that imposed enormous stresses on bureaucracies and systems of public finance.

When regimes buckled and succumbed to revolution, their successors in government experimented with written constitutions for the public relations sheen they offered, and their capacity to invigorate nations under arms. But even states that endured saw the potential of written constitutions to win support for heavy taxation and the enlistment of manpower. The latent militarist origins of constitutionalism, Colley contends, help explain why in many places it took women longer than working-class men to win the vote. Democratisation and military participation went hand in hand; service in the ranks offered a route to political privileges.

A parade of military leaders comprises Colley’s main protagonists. Constitution-makers of the late 18th and early 19th century could not forget that – in a turbulent world of revolution and counter-revolution, conquest and counter-conquest – a state’s very viability depended on its fiscal-military underpinnings. Colley reminds us that following the American Revolution the celebrated essay series the Federalist Papers – one of whose co-authors, Alexander Hamilton, was a former aide-de-camp of General Washington – began with a number of articles on the strategic position of the newly independent American states, while several later essays asked how Americans could afford the sort of army and navy necessary for transoceanic warfare.

Napoleon looms large in Colley’s story, as an exponent of “Napoleonic lawfare”. Bonaparte introduced various constitutional experiments in the frontier zones of his empire, the most significant of which was the Statute of Bayonne (1808) which granted representatives from Spain’s vast overseas empire a place at a newly reconstituted Spanish legislature. The liberal Cadiz Constitution of 1812 extended these principles, before the Bourbon restoration of 1814 squashed the dream of a pan-imperial “mega-parliament”, only to boost the cause of Latin American independence led by Simón Bolívar – yet another soldier with constitutional blueprints in his knapsack.

[See also: Jonathan Franzen’s bland late style]

Colley reminds us that the constitution of the 19th and early 20th century was an emblem of modernity – rather than of liberalism or democracy – and that such texts proliferated in traditional societies such as monarchies and empires that sought to recharge their economic and military energies without wholesale political transformation. This panacea worked a rejuvenating miracle in Meiji Japan’s constitution of 1889, though the Ottoman constitution of 1876 showed that it was far from infallible. These examples scarcely give a full flavour of Colley’s richly integrated history – of transport and communications as well as politics and warfare – which connects places as far apart as Haiti, Persia, pre-American Hawaii and Tahiti.

Where does Britain – with our supposed allergy to written constitutions – fit in to Colley’s story? The doctrine of an unlimited sovereign parliament was rarely so dominant that it drowned out contrapuntal themes – whether the notion of a fundamental law embodied in Magna Carta; Jeremy Bentham’s hyper rationalist schemes of constitutional government; the People’s Charter of 1838; and a plethora of draft constitutions for export to the colonies, from Fundamental Constitutions of Carolina (1669), which was co-authored by John Locke, onwards. Nevertheless, Colley – correctly in my view – does not explode the idea of English exceptionalism. Rather, she suggests that the parliamentary monarchy established at the Glorious Revolution of 1688 enabled the major experiments in public finance that followed, which in turn allowed the 18th-century British state to wage hybrid warfare without the regime collapsing. The seeming permanence and reliability of the British state allowed us to sail complacently towards the present without any pressing need for a written constitution.

Until now. No longer is the UK a byword for political stability. The stresses introduced by Brexit – amplified by Covid and the lopsidedness of devolution – have undermined the legitimacy of our uncodified constitutional arrangements. We were already drifting towards a semi-coordinated kind of constitution, but now we need to up the pace. A complete overhaul under the auspices of a constitutional convention? It might sound melodramatic, especially to English ears. However, either the UK decides to draft an explicitly federal constitution, or a new market for written constitutions will emerge among its soon-to-be former component nations.

Colin Kidd is professor of history at the University of St Andrews

The Gun, the Ship and the Pen
Linda Colley
Profile, 502pp, £25

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This article appears in the 06 Oct 2021 issue of the New Statesman, Unsafe Places