The idea of constitutional supremacy sounds attractive: a legalistic, non-partisan, essentially non-human document hovering above a state and guiding major institutions and constitutional actors towards desired outcomes. Who wouldn’t want that? That is…until you start digging into what actually occurs under constitutional supremacy. Then, the idea becomes much less enticing. In this post I articulate seven reasons why—although popular—constitutional supremacy remains unattractive for some jurisdictions. I’ve written about this before, and this post summarises many of the arguments from these original works.

1. Constitutional Supremacy ≠ We the People

The idea that constitutional supremacy is equivalent to ‘We the People’ or that it grounds the people in the constitutional framework is a fiction (see chp 4). Perhaps one of the biggest fictions in relation to constitutions. In reality, constitutional supremacy does not give the people any enhanced powers or special treatment and often sets up a strong version of judicial supremacy. This means that unelected actors are the most powerful people within a given jurisdiction, and the power of elected actors—which are most closely aligned with the people—are decreased. This is intentional. Advocates have noted that the decrease in significance for statutes and legislators is purposeful. Thus, the influence of actors with the closest connection to the people, legislators, is decreased, as is the output most closely associated with the people: statutes. If statutes and legislators decrease in power and significance, then something has to fill that void. It’s no surprise that judges and judgments do this, because under constitutional supremacy they are the ultimate interpreters and guardians of such a document. This means that unelected actors, which lie furthest from the people, become the most important individuals within jurisdictions operating on constitutional supremacy. This result is far from ‘We the People’. 

2. Discouraging Popular Participation?

Some have argued that constitutions can be inspiring and bring citizens and the government closer together. For all the ‘We the People’ rhetoric of constitutions, there are some indications that the implementation of a written constitution may decrease popular participation. The global fall in voter turnout during the 20th century and early 21st century have aligned with a corresponding increase in constitutional writing and constitutional rights. This may be nothing more than a correlation, but it’s difficult to say. I’ve examined this issue from a comparative perspective regarding voter turnout, and have found that after written constitutions are implemented, voter turnout is more likely to fall than it is to increase. Also, many countries even experienced their lowest post-WWII voter turnout after implementation of their most recent constitutions. This does not mean that voter turnout always falls. Indeed, in some places it rose after a constitution was implemented, and some jurisdictions even experienced their highest post-WWII voter turnout. However, a state is more likely to experience a decrease than an increase. These findings, and the more general trend away from traditional forms of political participation (voting, party membership, etc), mean that in an age of constitutional writing and constitutional supremacy, some forms of popular participation are decreasing significantly.

The resolution of major cultural and political conflict is another issue in relation to popular participation. The implementation of constitutional supremacy encourages these issues to be adjudicated in the courts, rather than in the political arena. This ultimately becomes a form of ‘adjudicated constitutionalism’ (or ‘adversarial legalism’) where a small group of legal professionals and litigants (i.e., lawyers, judges, NGOs, etc) possess disproportionate powers, and where ordinary citizens possess less power. This result obscures the fact that protecting and upholding critical norms and values is a collective societal endeavour, and not just a job for the courts.

3. Educating and Informing the Citizenry

Whether having a written constitution educates and informs the citizenry any better than an unwritten constitution is certainly up for debate. Although it may make logical sense to say that possessing a written constitution will make citizens more educated and informed, in reality it does not play out this way. Looking at this from a comparative perspective, I  haven’t been able to find much evidence that having a written constitution in place results in citizens being better educated in terms of civic education (see here, chp 3). A number of large comparative studies have found that citizens in places that possess unwritten constitutions (UK, New Zealand, Israel) possess just as good of knowledge about their constitutions as citizens in countries that possess a written document. Additionally, for those countries that possess a written document, a 2015 study has revealed that many citizens in these jurisdictions are completely unaware of their current constitution, let alone aware of how it works or what the major principles or doctrines may consist of. Beyond this, constitutions may also include provisions that have fallen into desuetude or are simply inaccurate regarding how the constitution actually operates. These provisions may provide a misleading account of constitutional operation should citizens actually engage with the document.

4. Questionable Drafting Practices

Many constitutions display questionable drafting practices. Constitutional preambles, for instance, can often be invitations to idolise the constitutional text (see chp 3 here, section 3.2). Some constitutional preambles claim that the hand of God or God’s aid helped to write the constitution, thus almost explicitly welcoming a form of religious idolatry of the document, whilst other constitutions proclaim itself as a work of ‘genius’. Additionally, some preamble language looks like misleading state propaganda. Non-democratic states can use ‘We the People’ rhetoric in their preambles to present themselves as more accepting or focused on the people than they actually are, and some language uses evocative historical language that may foment nationalist tendencies. Outside of preambles, another problematic drafting practice is the location of judicial power within these documents. Although constitutional supremacy usually sets up a strong form of judicial power, this is not clearly highlighted in these documents. In fact, judicial power in many constitutions is buried deep down in the document. In the South African Constitution these powers are found in Art 80, and in the Austrian Constitution they are found in Art 89. This is important, because even in countries with strong constitutional courts, a large number of citizens remain unaware that the apex court can strike down statutes. Ultimately, the language of judicial power sits oddly with the ‘We the People’ language found in written constitutions, so that may be one critical reason why judicial power is not celebrated in these documents.

5. Is a ‘Good’ Constitution Essential for State Success?

Determining what a ‘good’ constitution is can be hugely difficult, perhaps even foolhardy. But there are many examples of constitutions that would probably not be considered ‘good’ by contemporary standards that still produce positive outcomes. For instance, some states lack key constitutional elements, such as bills of rights, which is one of the main essentials for those drafting a written constitution today. And yet, states like Australia have been shown to uphold rights just as good or better than many states that possess these devices. In fact, some scholars have bluntly shown that the states with the most rights located in their constitutions tend to be less democratic than states that have less rights in these documents. Constitutions written by outsiders may also be problematic under today’s standards. However, states like Germany and Japan have thrived under their respective constitutions, even though they had very strong external influences when written. Some states have even thrived under constitutions written for other jurisdictions. Taiwan is one such example, as their 1947 Constitution was written for the whole of China. And yet Taiwan continues to be a model for democracy in Asia. Thus, the idea that constitutions must be written one way or another, or must include certain elements is problematic, and may even be downright wrong (see here, chp 6 for a wider discussion of this topic).

6. Frustrating Essential Constitutional Maintenance

Entrenchment remains one of the key features of constitutional supremacy. The ideas that the constitution sits above other types of law and that there’s a special procedure to amend it are essential to the theory. And yet, scholars have found that the average constitution lasts 19 years, and that some entrenched constitutions have stifled much-needed constitutional maintenance. Rather than producing constitutional change, these constitutions have made jurisdictions rely on tidal-wave constitutional moments to enact change or have placed too much emphasis on the courts for change. The latter may politicise the judiciary and also apply too much pressure on an institution that’s not designed to bring about significant societal change. The situation is very different in places that operate on unwritten constitutions. In the UK, for instance, virtually anything is on the table: general elections, court reform, constitutional principles, and even the monarchy. And yet, the UK continues to have a good mix of traditional and modern features and is not reliant on tidal-wave constitutional moments or the courts when it comes to change.

7. In times of crisis, written constitutions fare no better than unwritten constitutions

Multiple periods of crisis have demonstrated that jurisdictions that operate on constitutional supremacy fare no better than jurisdictions that operate without a written document in place. This has been true in the major world wars of the 20th century, and it rang true in the 21st century during the COVID-19 pandemic. The simple fact is that having a written constitution during these events did not protect states any better than those that didn’t have one. For instance, during WWII the US rounded up people of Japanese descent and put them in camps. They even did this to US citizens, and the US Supreme Court signed off on it in Korematsu v US. By contrast, internment did happen in the UK during WWII but it was done in a more legally coherent and efficient way, and was not nearly as sweeping as in the US.

During the COVID-19 pandemic it hardly mattered whether a written constitution was in place. Many states triggered emergency provisions within their constitutions, and some used the pandemic to consolidate executive power. States with unwritten constitutions also faced issues but performed adequately. The UK allowed lockdown measures to be challenged in the courts, exposed bad executive practice, and also allowed the UK’s constituent parts to react differently to the pandemic. There were certainly sceptics of the UK’s response—especially in relation to infringements on civil liberties—but the response was not significantly out of step with other jurisdictions. Finally, the UK constitution has also been able to rid itself of problematic actors easier than other constitutions. This is especially the case with problematic Prime Ministers, such as Boris Johnson and Liz Truss. Thus, states with unwritten constitutions have performed adequately during crises, and it is not clear that having a written constitution during these times matters much, if at all.

Conclusion

It’s becoming increasingly apparent that constitutional success comes from human beings, rather than from constitutions and constitutional provisions. States that don’t operate on constitutional supremacy and follow other constitutional traditions, such as parliamentary sovereignty, have a better chance of preserving this focus on human actors. For all its faults, parliamentary sovereignty better reflects the society at large and does a better job of taking in the contemporary views of the people. It’s a practical doctrine that allows for change to take place and for structures, laws, and policies to last as long as they’re useful. The same cannot be said of constitutional supremacy, which may frustrate essential constitutional maintenance, provide the judiciary too much power over elected officials and too much pressure to enact change, engage in questionable drafting practices, and use ‘We the People’ rhetoric to hollow out the connection between constitutions and the people. Constitutional supremacy may be one way to organise a state, but there are other—perhaps better—ways.

Brian Christopher Jones is a Senior Lecturer at the University of Liverpool School of Law. He’s the author of Constitutional Idolatry and Democracy: Challenging the Infatuation with Writtenness (Edward Elgar, 2020). He wishes to thank Jim Allan, Amal Sethi, and the Constitutional Discourse editors for comments on a previous version of this post.