Friday, October 29, 2021

An Essential Book: Linda Colley, on the origin of written constitutionalism

Sandy Levinson

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).

By any account Linda Colley’s The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World is a remarkable book.  Almost literally every page contains a revelation about the history of that particular political practice called written constitutionalism.  Aristotle, of course, suggested long ago that all polities had foundational structures and values that he labeled constitutions.  But they were not usually inscribed in foundational documents explicitly called “constitutions.”  Their contemporary analogue, perhaps, is the vaunted British Constitution, which consists of a perhaps ungainly collection of what might be termed constitutive statutes, political “conventions,” and, one is sometimes told, the inbred habits of the British people.  One can wonder, of course, about the accuracy of this account, particularly in the aftermath of Brexit and Boris Johnson’s apparent misleading of the Queen with regard to proroguing the Parliament in order to facilitate Johnson’s hopes for Brexit.  But more important, surely, is the fact that by any measure Great Britain is an outlier.   New Zealand, Great Britain, and Israel constitute the set of modern nations that make do without a canonical document called a “constitution” or a close substitute like the Canadian Charter of Rights.  How did this proclivity to write things down come to pass, as an historical phenomenon?

Princeton professor Colley gives us a clear answer:  Written constitutions are, to a significant extent, the child both of developments in geostrategic warfare and of the development of what we can identify as the beginnings of a print-based mass media.  As to the first, wars were increasingly expensive by the 18th century because of what she calls their “hybrid” character.  That is, wars were shifting from being carried on predominantly, or even exclusively, on land, to featuring great navies (and naval battles).  Trafalgar accompanies Austerlitz in understanding the dynamics of the Napoleonic wars.  Unlike old-fashioned armies, which could presumably be hired among mercenaries when it came time to fight a war—think in this case of the Hessians who were among the primary combatants in the American war of 1776-81—navies had to be built (and staffed) in advance, which takes money.  Getting the requisite supply of money requires, very often, the willing supply of funds, either through taxes or loans, to the monarchs and their minions who wish to build them.  

Echoing the influential work of political scientist Barry Weingast, Colley notes that lenders must be persuaded that they will be repaid, and written constitutions can be useful in offering such reassurance that, for example, monarchs will increasingly be hedged in by restraints on their ability magisterially, as it were, to declare that the debts they had incurred were now erased by the monarch’s performative utterance.   L’etat est moi loses its charm if one is a creditor worried about being paid back.  Thus the emphasis in her title on the joint importance of guns and ships, on the one hand, and written constitutions, on the other.   To be sure, written constitutions are not self-enforcing.  They are always subject to the Madisonian critique of “parchment barriers.”  That being said, they can serve as useful tokens of pre-commitments, especially if the promises are accompanied by the creation of institutions that are at least to some meaningful extent independent of the would-be monarchical sovereign.  

A major theme in some contemporary analyses if American constitutional history is the role that “geostrategy” played at the formative stage.  Indeed, if one reads only the first dozen or so essays of The Federalist, one would not really imagine that the new Constitution being defended had much to do with defending quotidian liberties.  Instead, the argument is all about the dire future facing the young United States should it fail to unite behind the new Constitution and instead dissolve into two or three separate (and vulnerable) countries along the Atlantic seaboard.  Although almost everyone knows about Federalist 10, whether or not anyone actually read it at the time, almost no one today is aware of Federalist 11, which is all about the necessity of building a navy, quickly, to guard against both smugglers and invasions from a variety of European countries.  And, suitably, after a raft of further essays about the necessity of establishing a strong national government with basically unlimited powers to defend the Union against what we would today call threats to national security, as well as smugglers seeking to evade the paying of import duties, there follow several essays on the importance of the ability of the new government to engage in direct taxation rather than to continue to rely on the pathos of “requisitions” that were definitely not requited.  

But Colley also emphasizes the importance of the rise of what today we can identify as “mass media,” even if, obviously, the actual reach of newspapers and pamphleteers was much less than became in the case in ensuing centuries.  By 1787, for example, the text of the new Constitution drafted in Philadelephia could be reprinted and (relatively) widely distributed, and debates could take place in a variety of venues, including the plethora of taverns that were a feature of the developing American city.  As Benedict Anderson argued in his famous The Imagined Community, it is far easier to envision oneself as part of a national community if there are easily available newspapers that in effect educate their readers that they are part of a wider community than they might originally have thought was the case.

No one should think, after reading Colley, that the United States truly deserves pride of place as the “first” venue of more-or-less modern constitutionism.  She actually begins her book with the story of an attempt to write a constitution for Corsica in 1755.  Like many other readers, I suspect, I had no idea that Sweden had preceded the United States (including any of the states within the new country) by leading the way with a 1773 written constitution; nor was I aware that Catherine the Great had drafted a constitution for her vast empire, though it obviously never went into effect.  
Colley is describing a true zeitgeist in which the Americans partook instead of a world in which all of the world looked to America for inspiration.  A major contribution of the book is its almost loving description of many subsequent written constitutions across the worlds on all continents save Antarctica.  This includes Pitcairn Island, heretofore notable only as the island on which the mutineers on the Bounty found refuge.  

So there is no doubt that anyone interested in comparative constitutional law must read this book.  It offers an unparalleled descriptive account, going stunningly beypnd the relatively small group of countries that Ran Hirschl has derided as the “usual suspects” in too much comparative analysis.  Whether or not Pitcairn Island will actually enter our syllabi, one can be sure that many of her other examples, including unsuccessful efforts, should do so.  And, as already indicated, Colley is also offering an explanatory account that largely focuses on the fact, much emphasized by Hamilton, but, of course, not only by him, that the international political system is basically Hobbesian, featuring rapacious countries that, if not rebuffed by military power, will prey on weaker countries.  One gains additional appreciation for the inclusion of providing for the “common Defence” in the Preamble to the United States Constitution.  In a very real way, it takes priority, at least causally, over other promises about “establishing justice” or “securing the blessings of liberty.”  

No doubt The Gun,the Ship, and the Pen will provide grist for milling dozens of future dissertations that will test her account with regard to specific countries.  Like Philip Bobbitt’s The Shield of Achilles, it is a grand, overarching narrative of constitutional development that attributes primary import to geostrategic factors, and, like all overarching narratives, it is undoubtedly subject to inevitable nominalist arguments that Albania or Zanzibar, let alone other countries in between, is importantly different.  But even as her thesis is tested and perhaps modified—what accounts, for example, of the failure of China at least so far to develop a sufficient legal tradition, perhaps instantiated in a written constitution, that would reassure lenders to that country that they would be repaid?—the  book will serve the purpose of all “classics” in historical political analysis, which is to reorder and existing field and ask important new questions.  As the author of Ecclesiastes might have put it, there is a time for sweeping narratives and a time for meticulous monographs.  Or, more to the point, any flourishing field needs both, and one suspects that the sweeping narratives often come first, precisely because they serve as the inspiration for the monographs.

So I share Jill Lepore’s enthusiasm for the book, expressed in The New Yorker, which encouraged me to order the book immediately (and, even more notably, to read it very soon after receiving it).  Indeed, Lepore that if there were a Nobel Prize in history, she would award it to Colley!  So do I have any reservations?  The answer is yes, and it has to do with the emphasis on writtenness.  Although it is certainly true that many people offer as an almost ontological truth that there is such a thing a singular identifiable constitution that can be found in the four corners of a given document—or in a Google search for “the constitution of country X”—one can, I think, almost always demonstrate that all such written documents are accompanied by unwritten companions in the overall enterprise of “constitutionalism.”  The giving of the written law on Mount Sinai, it is said within Judaism, was also accompanied by the revelation at the same time of the “oral law.”  Within American constitutionalism, Jonathan Gienapp has demonstrated that the original understanding of what “the Constitution” was, ontologically, in 1789, included reference to a variety of unwritten notions, including natural law or, for some, adherence to certain conventions identified with a British constitution that continued to be admired even its particular monarch was now subject to denunciation as a “tyrant.”  Akhil Reed Amar has written a substantial book entitled America’s Unwritten Constitution.  No one, I believe, suggested that the title was a simple solecism.  

So, even as constitutions were written down and creditors reassured that funds would be available to pay them (at least if wars went well), did that render irrelevant the earlier Aristotelian notion of constitutive understandings?  I obviously doubt that the answer is yes, but this, too, is one of the questions that graduate students (and their professors) might usefully examine in an effort further to understand the undoubtedly complex, and often mysterious notion, of a country that purports to organize itself under the aegis of something it (and perhaps onlookers as well) are willing to label a “constitution.”  Perhaps “unwritten norms” become replaced by statutes and administrative regulations that are legitimized by reference to authorization by the original constitution.  Americans in particular might believe that the basic purpose of a constitution is to limit the power of government, whereas many other people around the world—and even some Americans—might realize that the central task of a constitution is to empower government actually to be able to meet the central challenges that face a given socio-political order. 

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