26 June 2003

How not to change a constitution

Tony Blair has brought more constitutional reforms to the United Kingdom in the space of a few years than had been made in the previous century or so. This, according to Jacob T. Levy of the University of Chicago, writing in The New Republic. Having altered the composition of the House of Lords and brought about devolution in the non-English parts of the country, he now proposes to abolish the ancient office of the Lord Chancellor. Here is an excerpt from his "Constitutional Wrongs":

It's too soon to know whether the new division of responsibilities is workable. It's not too soon to know that this is no way to make, or change, a constitution. The problem is that the absence of a binding written constitution concentrates authority for constitutional reform almost entirely in the hands of the British prime minister, which encourages changes to be made too quickly, with too few arguments considered and too few actors having a voice, for too short-term a political advantage. The effect is to create an ongoing danger for British law and politics....

It's hard to imagine constitutional reform happening that way in almost any other liberal democracy. New Zealand and, to some degree, Israel are the only comparable cases, though prime ministerial authority is limited in each because the electoral system compels coalition governments. In all other liberal democracies, there is a constitutional text superior to ordinary legislation that can only be changed with legislative supermajorities, the concurrence of other bodies such as state or provincial legislatures, popular vote, or some combination of these. Meeting such high hurdles tends to require at least some attempt at public argument about why one institutional arrangement would be better than another, some planning, and some deliberation. Prime ministerial absolutism discourages all of these.

To some degree we have a similar pattern of prime ministerial government here in Canada. But the federal nature of our constitution mitigates this to some degree. Yet, as in Britain, we have a first-past-the-post electoral system, which artificially transforms a party with minority support into a majority government. Given the absence of sufficient checks on the powers of the prime minister and the divided opposition in the Commons, the health of our democratic system remains imperilled at the very least.

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