Britain Makes the Case for a Written Constitution

The lack of a written constitution containing clear protections for basic civil liberties leaves a nation susceptible to infringements

Last month, following the tragic murders of three girls in a knife attack, the United Kingdom was rocked by riots and civil unrest. Some government officials took to blaming social media platforms and their users for that unrest, accusing those platforms of not sufficiently policing the flow of information. And while threats of violence must not be tolerated, government has no business dictating what may be defined as “insulting” or “abusive” speech as a means for prosecution.

This is exactly what the Director of Public Prosecutions for England and Wales, Stephen Parkinson, threatened. “The offense of incitement to racial hatred involves publishing or distributing material which is insulting or abusive, which is intended to or likely to start racial hatred.” But what is to be considered insulting or abusive? Empowering whoever is in office at the time to decide what may or not meet this bar is a dangerous precedent, and free expression, an inalienable right, must be secured by strong institutions and not be subject to passions of the moment.

Why has this largely not come to America? It certainly is not due to a lack of elites supporting censorship. Many of the most sought-after colleges and universities have abysmal policies on free expression, and Washington is far from empty of politicians wanting to decide which expression is too dangerous for public consumption. Despite this, there is little they can do to enact laws doing so.

In the United States, the right to free expression is secured by the First Amendment, which exists within a strong, written constitution, something Britain does not have. Congress cannot legally pass a law directing law enforcement to arrest American citizens for speech deemed “insulting or abusive,” and the concept of allowing this is unconscionable to most Americans.

As evidenced by recent events, the lack of a written constitution containing clear protections for basic civil liberties leaves a nation susceptible to infringements, enabling government to pass new laws with too much ease threatening prosecution for speech it decides it dislikes at the time. Some people mock those celebrating American exceptionalism today, citing the many other free countries of the world. And there certainly are many countries with a relatively high degree of freedom today. But freedom in America is exceptional, even within the West. The First Amendment is special and rare, must be defended, and should not be taken advantage of.

But words on paper only mean as much as the people willing and able to defend them. North Korea has a written constitution. It also has a list of protections for many rights we hold dear. Yet, it is one of the least free places on Earth. A constitution must come with strong institutions to defend basic rights, and in America, the judiciary is particularly indispensable to this defense.

Yet, attacks on the legitimacy of our institutions are ramping up. In 2020, Senate Majority Leader Chuck Schumer infamously spoke in front of the court with seemingly threatening words. “I want to tell you, Gorsuch; I want to tell you, Kavanaugh: You have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”

Worse, the policy of court packing is now mainstream in the Democratic Party, with powerful Sens. Elizabeth Warren and Ed Markey signaling support for increasing the number of justices on the Supreme Court. An idea congressional Democrats once blocked for being dangerously authoritarian when proposed by former President Franklin Delano Roosevelt, it would allow one side to arbitrarily expand the size of the court to appoint justices who are aligned with them, shifting the court’s ideological balance.

Further, the Biden-Harris administration proposed a Supreme Court “reform” package to impose 18-year term limits on justices. In Biden’s Washington Post op-ed explaining the plan, it is left ambiguous if it would apply to sitting justices. If it did, it would forcibly retire sitting justices, allowing the administration to replace them with their handpicked judges. And even if it were not to apply to sitting justices, the plan remains contrary to what the framers had in mind to help keep judges impartial, with the concept of lifetime appointments being enshrined in Article III of the Constitution, stating that judges shall “hold their office during good behavior.” These reforms threaten to politically charge the court, transforming it into a quasi-legislature over time.

And rhetoric has consequences. Public trust in the United States Supreme Court has declined substantially. According to Pew Research, this year, the percentage of Americans who say they have a favorable opinion of the Supreme Court has dropped to 47 percent. This was as high as 70 percent a few years ago.

The current Republican standard bearer is not doing much to instill public confidence in American institutions either. Despite a lack of evidence of enough fraud occurring in the 2020 presidential election to change the result, former President Donald Trump took to Truth Social just a month after announcing his 2024 election bid to call for the suspension of constitutional provisions to overturn that election. “A Massive Fraud of this type and magnitude allows for the termination of all rules, regulations, and articles, even those found in the Constitution…” With powerful people in both major parties spewing rhetoric like this, the erosion of public confidence in our institutions will only continue.

In securing the right to free expression so strongly in a written constitution, America accomplished something unique and exceptional. This is something worth protecting. Yet, the threat remains real. Strong institutions are essential to this fight, and attacks on their legitimacy continue. To avoid the fate of our friends across the pond and preserve protections for this right and others, America must work toward restoring confidence in our institutions and empower public servants committed to the Constitution and rule of law.

Ed Tarnowski is a policy and advocacy director at EdChoice and host of the State of Choice Podcast. His work has been featured in National Review, The Washington Examiner, Education Next, Fox News, New Hampshire Journal, PennLive, and GoLocalProv. He received bachelor's degrees in political science and marketing from the University of Rhode Island. The views and opinions expressed in this writing are strictly his own and do not reflect the views of his employer. @edtarnowski