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The Guardian of the Constitution: an institutional look at the jubilee

Carl Haller discusses whether monarchy is still needed in modern British politics.

Imagine you were asked by a visitor from another country, or perhaps even another planet, to explain the unusual activity in the UK this year. What of the red, white and blue flags, the bunting, the songs and celebration? Why did Paddington Bear chugg an entire pot of tea and why did Rod Stewart sing “Sweet Caroline” outside Buckingham Palace? I suppose that last question is destined to remain unanswered forever, but to the previous ones, most people would probably reply that we are celebrating the Platinum Jubilee of Her Majesty Queen Elizabeth II and thus honouring her incredible personal achievements. Her achievements are indeed impressive and deserving of high praise: she has devoted her life to the service of her people and her country, to such an extent that she has almost come to be seen as synonymous with the institution of the Crown. This close identification comes with obvious dangers, however: it risks overlooking the crucial role that the Monarch plays in the British constitution, it’s role as the Guardian of the Constitution.

To set out what I mean by this, we must take a short detour through 19th and 20th-century constitutional theory. The fundamental challenge faced by would-be constitution framers is to reconcile two contradictory needs: on the one hand, the constitution must empower the state and the elected government to act for the common good and the general welfare, by providing institutions that can adequately meet and are responsive to the needs of its citizens. This aspect of governance is by its very nature dynamic, as the state must be able to evolve to meet the changing needs of its citizens and respond to unforeseen crises, assuming new responsibilities in the process.

The other side of this balance may be found in a remark of St. Augustine: “Take away the law and what is left of the state but a gang of robbers?“ The scope of the governing authority must be constrained by “the rule of law”, by a set of norms, procedures and precedents contained in the constitutional order. Any functioning constitution must have a set of stabilising institutions, a living voice preventing any group or individual from seizing control of the institutions of the state by making such significant changes to the constitutional order that it is reframed to advance and protect the interests of the governing class or individual, excluding the rest of society from economic and political participation. Iterations of such a set of institutions are as varied as the kinds of states that have existed over the centuries; Rome had its senate, the American constitution famously features a set of institutional checks and balances and the French Bonapartist constitution of 1852 included a Sénat Conservateur, which was to annul acts of the government it deemed to be violating the constitution.

This set of constraining institutions provides us with an initial working definition of the Guardian of the Constitution, though my use of this term here will no doubt draw raised eyebrows from any lawyers reading this, as they will be familiar with it from the famous dispute between legal theorists in Weimar Germany, most notably the jurists Hans Kelsen and Carl Schmitt. At the centre of their dispute was the question of how far a constitutional court could be said to fulfil such a role, with Kelsen arguing this role should fall to the constitutional court (Reichsgericht), and Schmitt looking to place it with the head of state (Reichspräsident). It is not my intention to split jurisprudential hairs here. I will simply agree with both parties: not constitutional court or head of state, but both constitutional court and head of state are valuable safeguards of the constitutional order. Kelsen is right in saying that a constitutional court has an important role to play in policing the boundaries of constitutional government. But any constitutional court will be vulnerable to political influence from other branches of government, who may and in practice often do seek to influence it by appointing to it members loyal to one party’s particular vision of government; moreover, a constitutional court sometimes must make decisions that are highly politically charged, such that it cannot be said to be a truly apolitical arbiter. This makes it politically imprudent to look to a constitutional court alone to act as Guardian of the Constitution

How, then, can it be said that the Monarchy may be called the Guardian of the Constitution? Descriptions of the head of state usually emphasise the ceremonial aspects of the role, but there is more to this position than being a symbol of national unity and entertaining foreign ambassadors at white tie dinners. It is pointed out during the Kelsen-Schmitt debates that the constitutions of most parliamentary democracies distinguish between the head of government, who sets the policy agenda and governs and the head of state. This position, be it a president or a monarch, is usually invested with the power to sign bills passed by parliament into law, is granted immunity from prosecution, formally appoints ministers and may dissolve the elected parliament at the request of the head of government. How are we to understand the purpose of this institution?

Schmitt argues that it is best understood through the lens of the 19th-century political theorist Benjamin Constant. In Constant’s theory of the state, in addition to the classic tripartite distinction between legislative, executive and judiciary we find a pouvoir neutre, a branch of government that is to act as a neutral arbiter and mediator between the other branches in case of disputes or constitutional crises and may act to restrain the other branches if the fundamental fabric of the constitutional order is threatened. Thus, in German constitutional theory, the president is sometimes described as Oberster Bundesnotar or supreme federal notary, who may prevent a bill from becoming law if he deems it to violate the constitution. This is the role fulfilled by a head of state, of whom it may be said that il règne et ne gouverne pas – he reigns but does not govern. This is the Guardian of the Constitution. 

Given the fact that elected presidencies exist in many European countries, what then makes Her Majesty better suited to this role than, say, President Tony Blair or Lord Protector David Cameron? It is certainly true that a president may, and often does, play this role. However, as I shall attempt to set out, it is a role that is arguably better filled by a constitutional monarch, especially in a polity in which it is established precedent. Consider the demands that this role makes of the person who occupies it: a neutral, apolitical arbiter requires a neutral, politically unambitious personality who is concerned not with realising a political agenda but solely with the preservation of the constitutional order. The German constitution, for example, requires the president to resign his party membership upon being elected. Such neutrality in a career politician is illusory of course if we are not to suppose that he will also resign his political convictions and personal party connections. This fact is not lost on those party to the process of selecting a president – an elected head of state is inherently politicised because he is elevated to his position through a political process. Thus, the recent Italian presidential election was preceded by a squabble between the major political parties over whose candidate to elevate to the office. In the end, no candidate could secure cross-party approval, meaning that 80-year-old incumbent Sergio Mattarella was pressured into accepting another 7-year term despite wishing to retire.

This event demonstrates another undesirable feature of an elected presidency compared to a constitutional monarchy – its inherent instability. Apart from the long and potentially inconclusive balancing act of selecting a new president, an elected presidency is vulnerable to being neutralised as a constitutional safeguard if it ends up being contested at an unfortunate moment, either because the term of an incumbent president is ending or because the occupant of the office dies at an inopportune moment. Consider here the Weimar Republic’s 1932 presidential election: 1932 was a time of economic crisis and massive political instability, with the country already on the brink of dictatorship and the political arena being dominated by two radical forces, Hitler’s National Socialists and Thälmann’s Communists, both of whom made no secret of their disdain for democracy and their wish sweep aside the constitutional order. Thus, when a stabilising force was needed most the two most destabilising elements, Hitler and Thälmann, were able to make a bid for the presidency. Though this bid was ultimately unsuccessful, it shows how an elected presidency may be vulnerable to a populist seeking to upend the constitutional order. Far from being an advantage, the fact that it is more democratic is a supreme disadvantage in an institution meant to safeguard the constitutional order against the elected government.

From an a priori theoretical perspective, it seems that constitutional monarchy has the edge. It is, however, worth bearing in mind that the question here is not one of abstract theory, but a choice between continuity and rupture. Tinkering with the fundamentals of the constitutional order always comes with a massive risk – it is nothing less than open-heart surgery at the ventricles of democracy and is thus only to be undertaken if warranted by an overwhelming threat to public safety. This is because all constitutions, but especially the unwritten British constitution, are built on precedent. Again, I must emphasise that the distinction between a Rechtsstaat (legal state, a state adhering to the rule of law) and a state of arbitrary despotism is that in the former case government and officers of the state are bound by a set of transparent norms, through which a citizen may know how the state and its officers will act in given situations. The citizen knows that any new law the executive government wishes to enforce must first be approved by parliament and that he is entitled to a trial by jury if he is charged with a crime on the basis of such a law.

These norms are as much social as they are legal, they are “not set down in any written statute or ordinance, but depend merely upon immemorial usage, that is, upon common law, for their support,” as Blackstone writes in his commentaries. Setting a precedent for the complete overhaul of the constitutional order is thus highly dangerous. If, with one sweeping act, centuries of constitutional precedent may simply be set aside, why not Habeas Corpus? Why not the 1689 Bill of Rights or Magna Charta? Such a radical break with constitutional precedent would also place any future elected president in a highly precarious position since it would create a precedent for removing a head of state should he become an obstacle to an ambitious populist seeking to overturn the constitutional order. Thus, at least for the foreseeable future, the ability of any elected president to act as Guardian of the Constitution and reign in a government seeking to override its constitutional bounds would be severely limited.

Is such a dangerous venture warranted when the British constitution has for centuries provided its commonwealth with democratically accountable governments which have largely respected the rights and liberties of their citizens, maintained the constitutional order and peacefully ceded power upon losing their public mandate? Given this enormous risk, is it justified to call into question the legitimacy of the monarchy when this institution, far from being a threat to the rights and liberties of the citizen guarantees their continued existence? Does anyone really think that a future Charles III might take after his namesake and, say, reconstitute the Court of the Star Chamber?

Or is the prudent thing to do here to pop open the champagne bottles and celebrate? To celebrate the phenomenal achievements of a particular monarch as well as the continuing existence of an institution that acts as the final and ultimate guarantor of the democratic constitutional order? All things, including the champagne, considered, I think the answer is clear. 

Image credit: Jonny Gios

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