The phantom of the American constitution.

I have never had that much trust in the idea that laws in themselves solve anything, which is an odd take for a proto-Barrister I suppose. In the case of constitutions, that distrust has been redoubled over the years. Many believe that a written constitution is necessary in this country, for instance.

Despite all the inherent difficulties with that idea--the question of overcoming the sovereignty of a future parliament, the precise relationship of England with the metropolis and the islands, nations and regions in the archipelago, and the question of enforcement--fundamentally, a constitution lives or dies because of political culture and the respect politicians give it.

For instance, the Soviet Union after the Helsinki accords had in many ways a highly democratic, liberal, law-based constitution, which didn't stop the drunken murderers who ran the place continuing to run it into the ground. The United States Constitution, lauded and confused often with the declaration of independence, protected and upheld slavery for a long time (whatever its supporters say, and whatever the case Frederick Douglass made here). Apartheid was perfectly legal; and the Nazis, until the Reichstag fire, functioned within a constitutional order, though they eventually suspended it following a terrorist attack that they probably faked.

By contrast, Britain has not, except for around a decade of Protestant fundamentalist militarism in the mid- seventeenth century, had a written constitution. That it did not have one afterwards may have something to do with the trauma inflicted by varieties of millenarianism and exceptionalism in those years.

I've always noted that Germany, usually held up as the great example of constitutionalism in Europe, doesn't, strictly speaking, have a written constitution either, instead having a series of provisional Basic Laws which do the same job. Hong Kong, Macau and Saudi Arabia are less salubrious examples of this technique. The French tradition of having documents that are amended when strong presidents want them changed or a disaster looms, or the Italian 'confetti' constitution approach are not appealing contrasts to democratic Germany.

The German mode is admirable. This week, the judges of what is effectively one of a number of supreme courts ruled out an unfair protection for big pub businesses when it came to a smoking ban and cast doubt on a whole tobacco prohibition of the Anglo sort. Commentators have also noted the German courts' reluctance to cede to any argument that the EU should necessarily override their domestic law.

That was something England and Wales, in typical fashion, ceded, and then pretended not to have ceded around 20 years ago. German judges have upheld principles of transparency and due process without hamstring security concerns, and have refused to allow global capital to wreck their intimate traditions as much as they have held the regulations that politicians have provided time after time to account. The Germans have also tended to balance and protect the freedoms of the internet from commercial blackmail. If the country is over regulated, and it is, it is not their fault.

As Roger Scruton noted, constitutional interpretation reflects culture in most cases. In one curious instance, however, that of the United States, a constitution is seriously held out to the world as something that produces culture, in that case liberal individualism and 'democracy'.

I seriously wonder if this is not because self serving lawyers and academics dominate the United States public culture. 'Redneck' religion, economic individualism and just the sheer size of the country, as well as its civic tradition seem much more important to me in upholding the bright side of its culture than the often-reinterpreted words of the constitution.

What else explains the failure to follow constitutional process and resist George Bush and Dick Cheney's Nixon-era behaviours of the past eight years, for instance? I should point out that these did not begin with the present administration but had a root in the defensiveness of the previous one, but they are still deeply challenging to American lectures about law and leadership that are delivered to the rest of the world.

Over the course of the past four terms, 'executive privilege' (a sort of modern lex loquens doctrine) has been revived for presidential conversations with the attorney general of the United States. This is ridiculous; the clue as to who the attorney works for is in their title.

Executive privilege has also been raised as a reason to stop federal attorneys from arresting Karl Rove and Harriet Miers because they are almost certainly in contempt of congress.

Indeed, it is one of the ironies of modern America that Rove appeals to distaste for past prosecutions of hippies and communists, and to a notion of privilege invented by Harry Truman in the cold war, to save his skin against the Congress. It is sad that Congress seems frightened to do anything about this brazen nonsense.

The American government has also commissioned mercenary armies in foreign adventures; wiretapped and imprisoned citizens and non-citizens; asserted a right (and it was Al Gore amongst others who first approved of this in the Clinton administration) to kidnap foreign citizens and to fly them to unregulated castles in foreign countries or camps outside the United States.

To be fair, the USA was not the first and rendition operations, such as that of Adolf Eichmann, are not necessarily things of which people might automatically disapprove. Some lawyers, however, draw a distinction between abduction nobody punishes, and rendition asserted as a right.

The President's foreign policy power--which has a very shaky constitutional basis and is not mentioned by name--also seems to have been used to get the German intelligence services to behave against the policy of their government. I should emphasise that that is my suspicion, though you may come to a different conclusion. The BND has admitted it 'knew' of rendition sixteen months before it told the government of the Federal Republic, and I wonder if they mean 'know' in the biblical sense or the enlightenment one.

The president's supporters in the Congress have passed laws authorising the use of invasion and force against Holland and international courts. An effort has been made to avoid the congressional consideration of the war power by associating American troops with foreign economic enterprises in Iraq as US protectorates. We may also, in the form of Bechtel and Haliburton, allied to Blackwater, have seen the rise of an American version of the East India Company.

All this as, perfectly constitutionally, the United States has been sold to China, east Asia and German banks through its huge deficits.

I ask you--what worth is a constitution attached to a political culture that allowed this? When I think of the American constitution, I think of the shining amendments--the end of slavery, near-absolute free speech, due process and freedom of religion. I don't think of the document itself. What about you?