British and American constitutionalism, explained


Americans are watching the slow, steady meltdown of the British government under Prime Minister Boris Johnson, who has been in office since July and may not be there by the time this piece appears in print. We can learn a lot about our Constitution and how it differs from the British system, even if we are not following the impending British withdrawal from the European Union, or Brexit.

The two political systems appear to be similar. We both have an executive, a president in the U.S. and a prime minister in Britain. We both have a two-house legislature, a House of Representatives and a Senate in the U.S., a House of Commons and a House of Lords in Britain.

But the U.S. Constitution lays out a presidential system where a president is elected for four years, separately from Congress. The British parliamentary system is very different. There, the leader of the majority party in the Commons or a leader who can build a coalition with other parties to create a majority becomes prime minister and serves a five-year term. Our president is limited to two terms, thanks to the 22nd Amendment. Prime ministers remain in office as long as they command a majority in the Commons.

And yet, Boris Johnson did not run in a national election. He was elected only by a single London district to serve in the Commons, and became prime minister after the resignation of Theresa May. A mere 313 members of the Conservative Party in the Commons chose two candidates to succeed her, and then just roughly 90,000 dues-paying members of the party voted to determine him the winner.

Compare this to the number of citizens who cast votes in the 2016 presidential election: 137,125,484.

So how could it be that so few people choose the British prime minister?

The answer has to do with the British constitution. Unlike ours, it is unwritten. Ours is today the longest continuous existing written constitution in the world. Its first three articles still exist generally the way its framers drafted it: an executive with a separate legislature and an independent judiciary.

Britain’s constitution has evolved over 500 years as a result of customs, traditions, practices, laws passed by Parliament, judicial decisions by the courts, and even, for a while, royal edicts. Today, of course, the queen is a figurehead. One of the great American revolutionary pamphleteers, Thomas Paine, challenged his conservative rival, Edmund Burke, to show him the British constitution because he knew it did not exist in written form.

“If he cannot,” Paine wrote, “we may fairly conclude, that though it has been so much talked about, no such thing as a constitution exists, or ever did exist, and consequently that the people have yet a constitution to form.” And that was in 1791: It still does not exist in a written format.

We see how this works by extraconstitutional means. Thus, the prime minister expelled members of his own party (they call it “losing the whip”), including the grandson of Sir Winston Churchill, when they disagreed with his policies. This would be equivalent to Nancy Pelosi, as Speaker of the House of Representatives, tossing out Democrats who cross her. That cannot be done here.

Or, instead of having a chief executive elected for a set number of years, as presidents serve four-year terms, the Commons can call what is termed “a snap election” if two-thirds of its members agree, despite the prime minister’s five-year term. A prime minister typically calls for a snap election if he receives a vote of no confidence. But this is not a requirement.

Or, how about this: The prime minister can suspend, or prorogue, Parliament, for several days, weeks, or months, simply by “asking” the queen for permission (a formality) to send all members home. Johnson did this, to the bewilderment of his own party members. This would be as if Pelosi or Mitch McConnell as Senate majority leader suspended the House or the Senate, respectively.

Johnson’s action has caused several party members in the Commons to resign, including those in his cabinet, all of whom by the way are members of the Commons. This would be as if an American president’s cabinet consisted of members of the House of Representatives. A conflict of interest, maybe? Not in Britain, because of the customs, traditions, and practices that have developed over many years.

Most democracies, unlike ours, have parliamentary systems. And some have mixtures of a presidential and parliamentary system. The key, as Paine noted so long ago, is that constitutions must be written down, even if they are changed now and again.

We clearly do not want to face the uncertainty and, worse, the slow-evolving chaos that seems to have enveloped our British cousins.


Jack Fruchtman, a seasonal Aquinnah resident, is the author of “American Constitutional History,” and most recently the third edition of his book, “The Supreme Court and Constitutional Law.”