SWAMPING THE LORDS, PACKING THE COURT, SACKING THE KING. THREE CONSTITUTIONAL CRISES
Abstract
Three great constitutional conflicts – United Kingdom: Lords v. Commons, Parliament Act 1911 – United States: Supreme Court v. President and Congress, New Deal Controversy 1935-1937 – Belgium: King v. Parliament, Abortion Act 1990 – Democracy wins the day in each of these cases.
This essay considers three rather unusual constitutional conflicts that occurred in the previous century in the United Kingdom, the United States and Belgium respectively. But before I start, let me take you back for a moment to the beginning of the era of the written constitution, that is to say to the late eighteenth century.
The world’s oldest constitution, that of the United States, was written in 1787 and came into effect in 1789, even before France’s Etats-Généraux met again for the first time in almost two hundred years. The American Constitution opens with the words ‘We the People’:
We the People of the United States, in order to form a more perfect union, establish justice,insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
‘We the People’, it resounded, and it was also intended incidentally as a rejection of royal power. In the countries of western Europe monarchy by the grace of God had been glorified in a variety of ways. Royal pretensions to absolute power were displayed in official documents especially. For example, the way in which the Spanish kings used to sign documents of state was simple but impressive: ‘Yo el Rey’ or I, the King. In the late eighteenth century the differences between monarch and subjects began to harden in many countries. In America, what is known as the age of the democratic revolution manifested itself in the resistance of the British colonists to their fatherland, personified in the figure of King George III. Initially, the object of this resistance was merely the redress of grievances, but it very soon became independence. A huge impression was made by the pamphlet Common Sense, published in Philadelphia in January 1776. It was written by the rebel, pamphleteer, adventurer and agitator Tom Paine, who had come over from England, where he had been a corset maker by trade. But Tom Paine preferred making revolution to making corsets and took an active part in America’s struggle for independence, and later in the French revolution. In the said pamphlet Common Sense, he called on the British colonists to set out on their own and to break all ties with Great Britain, which they were to do six months later. The text is a torrent of abuse against the monarchy in general and George III in particular. In the following passage the writer explains that a country with a charter needs a king about as much as it needs a hole in the head:
But where says some is the King of America? I’ll tell you Friend, he reigns above, and doth not make havock of mankind like the Royal—of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far as we approve of monarchy, that in America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other. But lest any ill use should afterwards arise, let the crown at the conclusion of the ceremony be demolished, and scattered among the people whose right it is.
The idea that by drafting a constitution one could arrive at a ‘government of laws, not of men’ has, of course, never been anything more than a pious illusion. But that is still no reason for denying or underestimating the significance of constitutions. Instead of a motley assortment of documents of state of a widely differing nature and often dubious legal force which had come into being over hundreds of years, the era of the written constitution brought a large measure of clarity and certainty to constitutional affairs. A pre-war British author formulated it as follows:
A welter of charters, statutes, bulls, treaty clauses, political testaments, pragmatic sanctions, manifestoes and mere undertakings had managed to stick like burrs to the body politic on its way down the ages. From the amorphous heterogeneity of some of these venerable ragbags it was almost a relief to have the situation simplified by the seventeenth-century despot who could point to himself and pronounce ‘L’état, c’est Moi’, but it was a much more satisfying remedy to be able to point to one not-too-bulky document and to exclaim ‘L’état, c’est là’. The vogue of the written constitution may have brought all sorts of troubles in its train, but it also brought clarity and precision to forms of government to an extent not previously attained.
The era of the written constitution continues unabated. Nowadays, virtually every country has one. One of the first things a new state does, even if only to be taken seriously by the international community, is to adopt a constitution. Of course, this does not mean that the constitution is taken equally seriously in every country, but even if it is applied very freely or is even blatantly violated, it still retains a certain significance as a mirror held up in public to those in power. Constitutions meet the need for ‘rules which govern the government’, and when the authorities completely disregard these rules, it attracts attention and undermines their authority. Only when total legal chaos occurs – I have in mind the constitutional free-for-all in Moscow during the final months of 1993 – can we see how much support can be derived from a constitution in more normal circumstances.
After these broad, introductory remarks, it is now time to focus our attention on the constitutional conflicts in the United Kingdom, the United States and Belgium referred to above. First of all the United Kingdom.
