The Gun is as Mighty as the Pen

Gerard N. Magliocca

For the Balkinization symposium on Linda Colley, The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World (Liveright, 2021).

Linda Colley’s book is a rare example of scholarship that is illuminating and fun to read. The Gun, The Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World is a global tour of constitutions with many case studies (for example, Haiti or Pitcairn Island) that are worth the price of admission on their own. Her approach identifies some universal aspects of constitutionalism and demonstrates that the United States Constitution is just one small part of that story. I especially liked Professor Colley’s emphasis on autocratic constitutions written by professional soldiers such as Napoleon, since constitutional law scholars focus almost entirely on democracies. 

Two of the book’s themes are that war is the engine of national constitutional reform and that military leaders often play a central role in national constitution writing. (I say national because Colley’s theory does not speak to modern state or provincial constitutions (say, the state of Alaska) that focus entirely on domestic matters.). The United States Constitution is a good example, as Colley discusses at some length. The costs of the French and Indian war triggered the constitutional clash between Britain and the United States. The Articles of Confederation were created as a wartime measure. The Constitutional Convention was a response to the limitations of that arrangement in the wake of the Revolutionary War. Much of the 1787 Constitution was about giving the national government ample powers to fight future wars. Of course, General George Washington was the pivotal figure both at the Convention and then as President. The Reconstruction Amendments were another outgrowth of war, with General Ulysses S. Grant discharging crucial tasks for the ratification of the Fourteenth Amendment and (as President) the proposal of the Fifteenth Amendment. (Indeed, the Union Army organized the ratification convention elections in the former Confederate States). World War One, World War Two, the Cold War, and the Vietnam War were also significant catalysts for written constitutional amendments. And American military leaders (think Douglas MacArthur in Japan) wielded enormous influence over constitution writing in many countries.

One implication of Professor Colley’s analysis, which she acknowledges toward the end of the book, is that peace is bad for national constitution writing. This insight can explain why no constitutional amendments (save the oddity of the Twenty-Seventh) have even been sent to the states by Congress since the 1970s. Conscription ended in 1973. To some extent, this lowered the stakes of constitutional politics for citizens. Another point of view consistent with Colley’s broader argument is that elected officials do not need active citizen consent as much in the absence of conscription and thus lost interest in serious constitutional reform. Or there is the simple thought that settled constitutional arrangements are hard to disrupt unless there is a powerful reason for doing so and that war is the most obvious reason. Whatever explanation is best, constitutional reform in the United States will probably continue to languish because we are unlikely to be engaged in a war that requires mass conscription. 

Another implication of the book that Professor Colley does not mention is that Heller’saccount of the Second Amendment is incomplete. If the background premise of writing national constitutions around the world in the eighteenth-century was effective war waging, then that suggests that the Second Amendment’s use of the term “militia” really was meant to apply to arms kept and borne only for military purposes. Granted, “the ship” in the book’s title is there in part to emphasize that naval warfare was the major expense and manpower drain in the eighteenth century that stimulated written constitutions. (The ship also represents faster communication, which spread the idea of written constitutions around the world.) Nevertheless, conscription in Europe was largely for land armies bearing traditional arms. Viewed in that global context at the time of ratification, the Second Amendment does not look as unusual as it appears now in an era of relative peace. Perhaps the Supreme Court will revisit some of Heller’s historical discussion this Term and take an interest in what The Gun, The Ship, and the Pen has to say about guns.

Perhaps the most fascinating chapter of the book involves Professor Colley’s discussion of the major exception to her theory—Great Britain. How did Britain manage to engage in so many lengthy wars without resort to a codified constitution? To be sure, there are sacred texts in the island’s legal tradition such as Magna Carta and the English Bill of Rights, but these fall well short of a written constitution. Colley’s explanation for the absence of the written constitutionalism in Britain is not entirely convincing, at least when you reach the wars of the twentieth century. Nevertheless, the fact that Britain endured for so long as a superpower without a written constitution created the central dilemma for our constitutional interpretation. 

In a nutshell, the common-law tradition of the British Constitution is in tension with written constitutions when those constitutions (like ours) are old and hard to change. One stresses evolution and flexibility while the other focuses on fixing certain immutable truths. The United States was something of a shotgun wedding between these ideas, as all the other pioneering examples of written constitutionalism that Professor Colley discusses came from a civil law tradition where detailed legal codes were the norm. If Britain had soon after 1776 embraced a written constitution, abandoned the common law, or sunk into obscurity, then perhaps the United States would have reconciled these tensions by moving more towards civil law reasoning or away from a formalist approach to its constitution. Instead, the United States just plodded along, developing an ever-more complex mix of those elements that is increasingly difficult to describe as coherent. Rather than talking about American exceptionalism, then, Colley’s book leads me to think that British exceptionalism is the most significant constitutional phenomenon.

In sum, The Gun, The Ship, and the Pen is the kind of interdisciplinary work that we need to see more often. With a dazzling blend of history, political science, and biography, Professor Colley’s book gives written constitutions a new spin.