A few days ago, I posted a brief review of Gene Callahan’s new book, Oakeshott on Rome and America (2012). There I focused on the strong points. But here are some criticisms that came to mind as I read the book:
1. Is the distinction between written and unwritten constitutions really the right one? I think it would be better to talk of fixed versus flexible constitutions. A written constitution, if easy to amend or just extremely permissive to begin with, can be as adaptive to changing circumstances as an unwritten code of conduct that evolves over the centuries. In principle, it is even possible for an unwritten constitution to be rigid and precise. (Suppose every citizen were forced to commit an exact set of words to memory.)
2. The case of Britain is, I think, instructive. Though it has no “written constitution” as such, it obviously has written documents that serve as integral parts of its constitution. (E.g., the 1689 Bill of Rights and the 1701 Act of Settlement.)
3. The prominence of written constitutions in the modern world may owe something to rationalism, but there is something else going on. When setting up a new government, one does not have the luxury of falling back on time-honored traditions. Since the new government requires rules of operation, agreeing to a set of rules in writing becomes almost inevitable.
4. Some constitutional guarantees arguably have fared better because they were written down. Consider, for instance, the rule that every state have equal representation in the Senate. I suspect that if our constitutional system mirrored Britain’s, either that rule would have been revised, or the Senate’s power would have been curbed in much the same way that the House of Lords’ power has been.