Cambridge wrote:
And where exactly is Britain's constitution written?
See, this is why I call him “half-truth.” Even tho he isn’t a lawyer, he learned at U Penn that Britain has had a constitution since 1297, when John I signed the Magna Carta. Britain doesn’t need a written constitution because it believes in tradition and respects the rules. Something the US could take a badly needed lesson in. The US, as myron eminently exemplifies, is expert in trickery. So it needs to write it down. That is what the California Supreme Court has done.
You are technically correct. However, the Magna Carta of 1297 was confirmed by Edward I. King John I signed the orginal Magna Carta of 1215. (Essentially it was revised as John made it to deal with short term issues but it was then made long term by Edward, and as it happens I am directly descended from them both). Three clauses of the Magna Carta remain in force to this day. It directly influenced the founders of the United States also.
Pursuant to the doctrine of Parliamentary sovereignty, in English law there can be no set of legally entrenched, fundamental, positive rights existing beyond Parliament’s countermand. In English law, the liberties of the subject were merely implications drawn by the courts from two principles, namely:
- that you can do anything you want, provided there is no law against it; and
- that you could be assured that your individual rights would not be interfered with by a public authority unless there was express legal authority to do so under statute or the common law.
It is in this sense that the liberties of an individual are ‘residual’, as AV Dicey termed them (his work forms part of the UK Constitution as a work of authority) rather than fundamental and positive in their nature. In Dicey’s view, this negative approach to defining liberties provided a much more robust basis for their protection than would be afforded by a positive declaration of rights in a constitutional document such as the Bill of Rights (USA) or the Declaration des droits (France). He pointed to the protection afforded to such rights and liberties in the UK, where the courts strictly and precisely defined the extent to which they might be interfered with under the existing statutory and common law, in contrast to the protection afforded by what was, in his view, the vague words of a positive declaration of rights. In short, precisely defining the permissible limitations to such rights was more valuable and enforceable than defining the rights themselves.
Dicey’s contention was that constitutional documents such as in the US or France were NOT automatic guarantees of the rights they contain, and were little more than pious declarations in the absence of institutions with the willingness and integrity to apply them. (For example the US 14th and 15th Amendments were passed in 1865 but were NOT legally enforced properly due to discrimination towards blacks until the 1960’s). Further, in France under its 1791 constitution, it guarantees freedom of expression and freedom of the press, yet they have very restrictive publishing laws.
It is all very well having it in a document – but if no one will enforce it – it is useless. It is a bit like Leviticus, where christians are instructed that they must not eat shellfish, cut their hair, or approach an altar without perfect sight. These are not enforced and are ignored. Yet, the passage condemning homosexuals is never forgotten! It is very much the same principle! In the UK, all laws must be enforced at all times, and with the ECHR in British law, it now means there is added protection of rights against the possible actions of the government.
