There is much to like in the new two volume Cambridge Constitutional History of the United Kingdom, a masterful compendium of theory and history from leading scholars, covering everything from King Æthelred the Unready to Liz Truss (similarly unready).1 As a comparative matter, however, it is Harshan Kumarasingham’s excellent opening chapter The Historical Constitution, that resonates with current debates in the United States.
As the U.S. Supreme Court falls further and further in thrall to history, with its attending assumptions of neutrality, certainty, and truth, it is illuminating to read about constitutional history in the United Kingdom. Kumarasingham recognizes that “[a]ll constitutions rely on history” (P. 3), but in his telling, history is acknowledged both as constitutive of the British constitution and as a political construct. The candor is refreshing.
The chapter explains that the uncodified nature of the British constitution makes reading history necessary, as the constitution itself is a mixture of institutions, laws, and political practices (P. 26). Like “a car whose driver uses only the rear-view mirror for guidance,”2 the British constitution has been developed by looking to the past to determine the future. But that past has often been recreated to serve future needs. Constitutional history has been “elastic”; the “Glorious Revolution,” far from a glorious “bloodless revolution achieved under the ‘fabric of an ancient constitution’”, was actually a “reality of destructive havoc, divided allegiances, weaponized positions, contested dogma and transactional replacement of kings” (P. 10).3
Kumarasingham draws together various histories and critical reevaluations to demonstrate the ways in which constitutional history has been deployed. History served to enforce social norms “to distinguish those who deserved power and those who did not” within the constitutional scheme (P. 13). Indeed, in being both “descriptive and prescriptive,” the constitutional historian might well have “perpetuated ‘the acquiescence of the many in the rule of the few’” (P. 14).4
In addition to history’s usefulness in maintaining the status quo, history has also served as a more immediate and straightforward political tool: Politicians wrote histories, and historians were often identified by political party, since the historical outputs were used to “justif[y] a party’s record in government” (P. 17). As Kumarasignham notes, politicians using history to “ ‘discover what they wished to discover,’ ” is a “tendency that has not ended” (P. 17).5
Lawyers, too, have drawn on history, and it may have been the “common-law mind” that created the “ ‘immemorial’ nature of the constitution,” and “intensified the ‘radical’ tendency of the “English mind’ to ‘read existing law into the remote past’ ” (P. 29).6 As Kumarasingham notes, “even a cursory examination of the nineteenth century . . . shows how practices and principles thought deeply historical and intrinsic to the constitution are, in fact, of more recent innovation and expedience” (P. 31). And yet, “the fact that [jurist Sir Edward] Coke and others mythologized and reinvaded the past . . . is not sufficient to erode their significance” (P. 29). Kumarasingham quotes John Baker as saying: “ ‘Coke may have got some of the early history wrong, but his constitutional conclusions have thrived down the centuries because they seemed right.’ ” (P. 29).7
Constitutional history has thus been a tool for the articulation of values and structures that achieve longevity and fidelity, not necessarily due to their truth value as historical facts, but to their perceived “rightness” or effectiveness within society. The process is constitutive and forward looking. And, as Kumarasingham notes, the constitution, due in part to the very elasticity of its historical development, has a “generous allowance for expedience” (P. 32). “This “feature” has allowed many different groups to “reason that constitutional power could be theirs. Both Monarchists and Marxists could utilize such history” (P. 32). In the United Kingdom, “[p]ower and people are at the heart of the constitution’s history” (P. 33)—a project of contestation and construction that draws on the past more often for inspiration than for limitation.
- To be fair, she is referenced only by implication, in the context of the collapse of the Johnson government. But I couldn’t resist.
- Erin F. Delaney, Stability in Flexibility: A British Lens on Constitutional Success, in Assessing Constitutional Performance (Thomas Ginsburg & Aziz Huq, eds, 2016).
- See J.G.A. Pocock, The Discover of Islands: Essays in British History 120-21 (2005), in support of these points.
- Richard Crossman, Introduction, in Walter Bagehot, The English Constitution 26-28 (1978) (1867).
- H. Butterfield, The Englishman and His History 4-6 (1944).
- J.G.A. Pocock, The Ancient Constitution and the Feudal Law 30-31 (1987).
- John Baker, The Reinvention of Magna Carta 1216-1616 at 444 (2017).
