To what extent does a codified constitution help or hinder liberty?

If codified constitution is the heart, then liberty is the soul. Without a soul, a person is not said to be complete — so is liberty.

In response to the question, I argue that a codified constitution helps liberty to a very large extent.

Before explaining my position, it is necessary to set the scope of our discussion by defining two key terms in the question — “liberty” and “codified constitution”. First, adopting MacCallum’s concept of Freedom as a Triadic Relation, “liberty” meant when an individual or entity is (is not) free from certain restraints to do (not do) certain things (Carter, 2016). Second, a “codified constitution” is defined as a single written constitutional document which has been promulgated (Melton et al. 54, 2015). Although it is recognized that a codified constitution establishes the foundation of a country or state, this essay will narrow its focus on how a codified constitution has specifically impacted liberty.

The essay will be divided into two sections: the former examines codified constitution in general and the latter delves into the variations of codified constitutions. The arguments — entrenchment, accessibility, and the subjectiveness of liberty — will be justified through comparing current constitutions and addressing main challenges against my position. Three distinct countries' constitutions will be discussed in detail: United Kingdom, United States, and People’s Republic of China. This selection encompasses three main types of constitution: uncodified constitution (UK), codified capitalist constitution (US), and codified socialist constitution (China). As a result of the US constitution being internationally influential on later codified constitutions (Blaustein, 2004), it will be the main source of reference when discussing codified constitutions in general.

A. Codified Constitutions in General

(a) Entrenchment

Firstly, all the fundamental rights, that are outlined in the codified constitution, are very difficult to be modified or revoked (Wade, 2019). The difference in the level of difficulty can be illustrated through the comparison of how US and UK amend their constitution. To create a clear-cut comparison, the Act of Parliament is chosen out of all other sources of UK’s unwritten constitution because its procedures in the enactment of law are akin to US Constitutional Amendments. For an Act of Parliament in the UK to be passed, it only needs to be approved by a majority in both House of Commons and House of Lords and later been given Royal Assent (UK Parliament, n.d.). On the other hand, a proposed amendment in the US will require a supermajority — two-thirds in both Houses of Congress and three-quarters in the state legislature (Ballotpedia, n.d.). Hence, in situations where a particular political party is conspiring to make arbitrary changes that will put liberty at risk, the requirement of an overwhelming consensus within a government to make constitutional amendments will be effective in preventing it.

Coincidentally, a key argument proffered by those who believe that a codified constitution hinders liberty is that it doesn’t bring flexibility. One would argue that a codified constitution is comparatively a restrictive method because of its rigid and cumbersome requirements. Instead, an unwritten constitution is seen as a better alternative as its multiple sources and flexibility help it evolve with societal changes. For instance, the UK Constitution’s promptly adapted to public’s attitude in 2013 by passing Marriage Act, which included same-sex couples (Wade, 2019). Thus, one would argue that this flexibility would provide dynamic protection of individual rights.

However, I contend that the flexibility of a constitution will bring more harm to liberty than good. Setting aside the previous point on the risk of arbitrary changes, a multisource constitution is also prone to conflict interpretations by political branches. A high-profile example is when the UK’s executive and judiciary branch had conflicted over the Royal Prerogative power to prorogue in 2019 (Wade, 2019). This exposes a major problem of not having all the constitutions codified: an unnecessary intrusion of liberty due to the “grey areas” created by implicit constitutional laws. Moreover, even if there are rarely or no conflicts in interpretation, the theoretical claim that the UK will protect a wider range of individual rights does not stand in reality. According to recent research done by the Comparative Constitutions Project (2016), it has shown out of 117 possible distinct de jure rights, the UK constitution has established 44 rights, which is slightly fewer than an average constitution — which protects 50.3 rights. Similarly, countries that have uncodified constitutions are all lower than average in comparison: New Zealand with 40 rights, Canada with 36, Saudi Arabia with 15, and Israel with a surprising number of 6 (Maps of World, 2019).

(b) Accessibility

Secondly, a codified constitution acts as the first resort for citizens to get a general understanding of their protected rights. In contrast, an uncodified constitution will lead to an ultimate and undesired consequence — lack of public confidence in the protection of their liberty — as constitutional texts, that are meaningful to the citizens, are being buried across countless statutes. In particular, studies in the UK have shown that 80% of UK citizens knew little to nothing about their constitution (Melton et al., 2015).

One will claim that accessibility is not an exclusive feature of a codified constitution; an uncodified constitution can achieve the same result through passing a statute that sets out the basic rights to which citizens are entitled. For example, Human Rights Act 1998 (hereinafter HRA) was passed in the UK to domestically establish individual rights (Melton et al., 2015).

Responding to the assertion above, I will expound on the example, HRA, to show how a codified constitution would provide better transparency for citizens of their protected rights. One inherent problem exposed by HRA is that the government will be able to justify its exclusion of certain rights by claiming that it is implicitly protected by other sources of constitutional law. For instance, freedom of movement, which is found in 83% of enforced constitutions, was omitted by HRA. This is followed with an explanation that freedom of movement is protected by common law norms and the Treaty of Rome 1957 (Melton et al., 2015). Nonetheless, this has defeated one of the core purposes of drafting HRA: to provide clarity to citizens of the basic rights that they have. In contrast to HRA, a codified constitution will gather all the constitutional laws together into one document. This will not only prevent fundamental rights from being obscured, it will even invite politicians, as well as citizens, to make comparisons with other countries’ constitutions to ensure that all of their fundamental rights are being protected.

B. Variations of Codified Constitution

A major argument set forth by the opposition is that certain countries would use the codified constitution to hinder liberty by limiting the number of individual’s rights. Ultimately, it is feared that a codified constitution would lead to the justification for a totalitarian state. Despite agreeing that codified constitutions do pose a slim risk of totalitarianism, I question the logic behind the necessary connection between codified constitution and totalitarianism. What difference does it make to the dictators if the constitution is codified or uncodified since they are in full control? Stemming from my previous argument, does not the flexibility of an uncodified constitution bring greater convenience to a dictator to make whimsical changes?

Parting from the extremist version that was proposed, I will break down their argument on two separate stances.

Firstly, even if I stem from the opposing side’s definition that liberty meant individual’s rights, there is no causation — or even correlation — between the number of rights stated in the codified constitution and how ‘free’ the individuals are within the country. Ironically, the codified constitution of the 3 most autocratic countries (i.e., North Korea, Cuba, and Venezuela) outlines, on average, 16.3 more distinct de jure rights than the 3 most democratic countries (i.e., Norway, Iceland, and Sweden) (World Population Review, 2021a; World Population Review, 2021b; Comparative Constitutions Project, 2016). Instead, the difference is made by the people who interpret it.

Diagram 1: A bar diagram that compares the number of constitutional de jure rights between the 6 countries.

In my second viewpoint, I will reject the opponent’s definition of “liberty”. I have purposefully defined “liberty” vaguely in the introduction because of the subjective aspect to “liberty”. Hence, even if it is presumed that views on liberty does have a connection with actual restrictions, it is still vital for the assessment of liberty to weigh in psychic factors (Graeff, 2012). Moreover, drafting a codified constitution does not only require physical acts to ratify it but also mental inquiry by its political leaders about what the statements in the constitution meant in a normative sense (Kelsen, 1967). Thus, we need to step in the shoes of the political leaders — by understanding the origin of their powers and the historical context of the time. In support of my argument, I will compare two main theories on liberty and explore a country’s codified constitution[1] that closely resembles each theory.

(a) Negative Liberty

Negative liberty puts strong constraints on the state's power to protect an individual's liberty. It emphasizes the removal of obstacles and external constraints — this is what the opponents have previously referred to as the meaning of “liberty”. A well-known example would be the US, as this belief has taken its root since its birth. The American Creed, which is drawn up by Thomas Jefferson, defines United States' core values as liberty, individualism, self-government, and equality (Patterson, 2019). This is also evident in structural features (i.e., checks and balance system and separation of federal and state power) and the Bill of Rights. In specific, the US constitution has given its Supreme Court a significant role to play in safeguarding individual's rights. For instance, after the Fourteenth Amendment due process clause was passed, Court ruled that individual's rights were insured against both the federal government and states. (University of Baltimore, n.d.)

(b) Positive liberty

Contrastingly, positive liberty allows the state to intervene to protect members of the community from irrational desires and realize their potential. A country that holds a similar belief is China. Its government is founded upon the basis of collectivization and patriotism, dedication, and loyalty to its government and leader — instead of self-interest (Brooman, 1990). In Article 54 of the Constitution of the People’s Republic of China (2004), it is stated that ‘it is the duty of citizens of the People’s Republic of China to safeguard … [and] not commit acts detrimental to the security, honor and interests of the motherland.’ This ideology is also being reflected in the structure of their government. Unlike the US Supreme Court, China's Supreme Court is hesitant in taking reviews against the government’s interest (deLisle, 2010). This jurisdictional difference helps to shed a light on countries’ contrasting perceptions of liberty.

Conclusion

“[To be at] liberty is to be free from restraint and violence from others” and “that ill deserves the name of confinement which hedges us in only from bogs and precipices” are both stated by John Locke, who is a strong defender of negative liberty (Carter, 2016). Behind this seemingly self-contradictory statement, John Locke has implicitly endorsed the ideology of positive liberty and agreed that not all limits are reductions to liberty. Extending Locke’s belief to codified constitution, we can observe that codified constitution’s general features and tailored content all serve to help liberty.In fact, the establishment of codified constitution provides a venue for our governments to proudly declare their own answers to the ultimate question which sets the basis of our political systems: What does liberty mean to us?

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[1] Note that the countries (i.e., US and China) used as examples below do not solely belong to their enlisted categories. It is recognized that a codified constitution, for instance US, that is commonly seen as a “charter of negative liberty” may have positive liberty hidden between the lines (Currie, 1986) or vice versa.