Rule of Law

The sharp debate in Israel last year over “judicial reform” raised basic questions that arise in most democracies about constitutions: What are they meant to be and to do? Even the definition of a “constitution” is debatable. University College London tells its students this: A constitution is the rule book for a state.  It sets out the fundamental principles by which the state is governed.  It describes the main institutions of the state, and defines the relationship between these institutions (for example, between the executive, legislature and judiciary).  It places limits on the exercise of power, and sets out the rights and duties of citizens. By that definition, constitutions serve two basic functions. First, they set forth the rules that define the structure of government, allocating roles to key institutions and describing their interrelationships. Second, they define and protect citizens’ rights. As the International Institute for Democracy and Electoral Assistance put it [PDF], constitutions place “the fundamental rights of citizens in a higher law that cannot be unilaterally changed by an ordinary legislative act.” Most countries have constitutions that at least on paper achieve both objectives. Only five countries do not have a written constitution: Canada, Israel, New Zealand, Saudi Arabia, and the United Kingdom. They have laws, “basic laws,” and legal traditions, but lack a single unified constitutional document. The “Thin” Constitution Because many rulings by the U.S. Supreme Court have been controversial when handed down, the United States has seen decades of debates over the meaning of the U.S. Constitution. In 1999, constitutional scholar Mark Tushnet of Harvard Law School proposed that the “real” U.S. Constitution, what he called the “thin constitution,” is comprised not of the Constitution’s articles and amendments but rather of the Declaration of Independence and the Preamble to the Constitution. Those two documents (or at least what he says are the key parts of them) provide “fundamental guarantees of equality, freedom of expression, and liberty.”  In his view, constitutional law should consist of interpreting those two documents. Judicial review as the United States has known it throughout its history should be eliminated, he argues. It shifts too much power from the elected representatives of the people to unelected judges. It leads citizens and legislators to concentrate on the rulings of courts and the views of judges rather than on the fundamental precepts of American liberty. Legislators think too much about the courts when legislating and leave constitutional issues to the courts when Congress itself should judge how proposed laws will affect the liberty of its constituents. So Tushnet proposes a constitutional amendment that says, “[t]he provisions of this Constitution shall not be cognizable by any court.” Tushnet’s idea of a “thin constitution” without judicial review has been criticized for vagueness. He calls “a law committed to the principle of universal human rights justifiable by reason in the service of self-government.”  The reviewer of Tushnet’s Taking the Constitution Away from the Courts in the Yale Law Journal wrote that “Tushnet’s thin constitution can be made to mean absolutely anything in practice, which signifies that it actually constitutes nothing.” Others have argued similarly that a U.S. Constitution based solely on the Preamble and the Declaration would not be judicially enforceable because the concepts are malleable. Perhaps the deepest criticism of Tushnet’s thin constitution is that it assumes wide agreement on the concepts embedded and exemplified in the Declaration and the Preamble—the consensus the late Harvard political scientist Louis Hartz described in his classic work The Liberal Tradition in America as based in the theories of John Locke and the realities of a United States that grew without roots in a feudal past. Tushnet says “ordinary people” back the basic concepts of his thin constitution, but he offers no evidence to prove it. The “Thick” Constitution There is another, directly contrary definition of a “thin constitution” that turns Tushnet upside down. In this theory, a thin constitution is one that sets only the rules of the game—the relations among institutions of government—but does not speak to the rights of citizens or to conflicts over values at all. This kind of thin constitution is being proposed today in Israel, which suffered highly divisive debates over judicial reform in 2023. One of the main advocates for this view, Israeli law professor Yedidia Stern, argues that Israel is still on a dangerous and slippery slope toward war between the branches of government….The root of the problem lies in the fact that in Israel, contrary to what is accepted in most constitutional democracies, the rules of the game regulating how the branches of government operate and interact can be changed by a simple Knesset majority….the rules of the game must be anchored in a constitutional document that cannot be changed without broad agreement. Stern would prefer a “thick” constitution that “addresses the other big questions governed by constitutions—the core principles of the state and a bill of human rights.” But he has concluded that “given the heterogeneity of Israeli society and the deep disagreement over the vision of the state, we must regrettably acknowledge that achieving broad public consensus on these critical issues appears to be an unsurmountable challenge, at least in the foreseeable future.” That seems like a reasonable view, but Hanna Lerner of Tel Aviv University argues that it’s too late even for a new “thin” constitution once a state has been established. Agreeing on the rules of the game, she says, can only occur at the inception of the state: “moments of ‘new beginning’ when state institutions are in their formative stage.” After that, “the institutional legacy that evolved over the years—particularly the constitutional dialogue between the legislature and judiciary—hinders the separation between constitutional debates over institutional issues from disputes over the character of the state.” Israel’s earlier constitutional debate in between 2003 and 2006 exemplified that, Lerner argues. Those seeking to draft a constitution were unable to separate “the two aspects of the constitutional debate—institutional design or re-design (e.g., regarding procedures of legislation or questions regarding the structure of the judiciary) and the foundational debate on the definition of the state’s identity (e.g., concerning the role of religious law or the right to equality).” Stern’s approach is to deal solely with the “less controversial” structural and institutional matters, but Lerner argues this is impossible:  “Having evolved over many years, the institutional legacy impedes the isolation of institutional design from intricate ideological conflicts that divide society.” Tushnet avoids these problems by suggesting that the two existing documents, the Declaration and the Preamble, serve as guides for Americans. But as critics have noted, those documents were the product of a particular era and society. We are now 235 years from the ratification of the U.S. Constitution, and it’s not at all clear that its main precepts still characterize the beliefs of U.S. citizens about political structures and rights. Tushnet’s desire to eliminate judicial review and leave constitutional questions to Congress might be a formula for change—or for even more divisiveness and partisan wars than Americans now face. The Unamendable Constitution Constitutional changes of the sort Stern wants for Israel will not happen in the United States (and so far not in Israel either). The U.S. Constitution is very difficult to amend, requiring a two-thirds vote in both houses of Congress and approval by three-quarters (now thirty-eight) of the states.  No amendment has been adopted since 1992 (the Twenty-Seventh Amendment says, “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened”) and no significant one since 1971 when the voting age was set at eighteen by the Twenty-Sixth Amendment. The Founders thought amending the Constitution would be easier, perhaps because the nation was not yet divided into political parties that would judge amendments by the effects on their own partisan interests. It’s no coincidence that those last two amendments did not seem, at the time of adoption anyway, to afford either party an advantage over the other. Jefferson thought that each generation should make its own laws, and that, “Every constitution then, & every law, naturally expires at the end of 19 years.” That’s not how it has turned out, and some observers think amendments that go beyond small technical changes are simply a thing of the past: Jill Lepore calls the Constitution “effectively unamendable.”  Perhaps it is—or perhaps, to phrase it as Yedidia Stern would, only amendments to the United States’s thin constitution are possible, affecting only procedural rules, but not amendments to the “thick constitution” governing the fundamental rights of citizens. The inability of Americans to amend their constitution or of Israelis to write one are not unique; consider the case of Chile. After widespread protests in 2019, Chile appointed a commission to write a new constitution to replace the 1980 version adopted under the military dictatorship of Augusto Pinochet. A lengthy draft viewed as left of center was rejected in a 2022 referendum, by a vote of 62 percent to 38 percent. Back to the drawing board: another, shorter draft was produced that was viewed as right of center. In 2023, that draft was rejected in a referendum by a vote of 56 percent to 44 percent. Chile has now abandoned its constitution writing process. It seems much easier to write and adopt a constitution in a democracy if the society understands that it is temporary. The constitution adopted in 2010 in the Dominican Republic, for example, was its thirty-ninth, and Ecuador’s 2008 constitution was its twentieth. Fiji’s 2013 constitution was its fourth since independence in 1970. In those and similar cases, there is apparently less of what Hanna Lerner called an “institutional legacy” to hamper efforts at change. But when change is rare and extremely consequential, constitutional reform is difficult even without U.S.-style procedural requirements. Perhaps this is a good outcome: if a constitution is meant to protect basic rights, frequent change can mean frequent opportunities and temptations to undermine those rights whenever they become politically unpopular. Here we return to the critique of Tushnet: this may not be a problem if there is a very broad and deep consensus on liberal principles and the protection of citizens’ rights, but it is a danger when those rights are hotly contested. What is the right answer, then: thick or thin constitution, a constitution that sets procedures or one that protects basic human rights, a constitution whose interpretation relies on the courts or one that allows the legislature to act from very broad principles? The stability of procedures and protection of rights in Canada, New Zealand, and the United Kingdom, all of which have no written constitution, reminds us that constitutions are not a magical talisman against abuses or failures. Laws and constitutions reflect the societies that give rise to them. In some cases, that is a guarantee of liberty and effective government. In others, it is good cause for worry. This publication is part of the Diamonstein-Spielvogel Project on the Future of Democracy.