The Decline of the British Constitution
by Sean Gabb (May 1997)
Note: I wrote this in May 1997 as the introduction to a website that has since disappeared. In those far off days, almost none of the core documents of the English Constitution was available on-line, and I was making the effort, with Chris R. Tame, to get as many up as possible. Apart from simply filling what we thought a scandalous gap, our intention was to raise awareness of the fact that England did have a constitution that amounted to more than the present convenience of its ruling class. We knew that we were at the beginning of a period of accelerated constitutional destruction. We hoped that showing what or Constitution had been, and might be again, would have some effect. Our initial bias was towards the right to keep and bear arms – which was our constitutional right most obviously under attack at the time.
The website itself soon proved to be unnecessary. What remained of our right to keep an bear arms was whisked away by the Blair Government with the same efficiency as a restaurant clears away used crockery. And, whatever else can be said about it, the British Government has done a fine job of making all our constitutional documents and all our laws available on the Internet. I let the website go down after about a year, and never thought any more about it. But this Introduction to the site seems to have taken on a life of its own, and has become one of the inpirations for the Freemen of the Land movement. And so I have recovered it from one of their websites, and republish it here.
During the past hundred years or so, the government of this country has become increasingly despotic. I do not mean by this that I live in anything approaching a totalitarian police state. Indeed, I will say that I live in one of the freest and generally the most fortunate societies that have ever existed. Though I have spent at least a decade now denouncing the government of my country, I do not fear for my personal safety or for my career. I will also say that those foreigners who favourably compare life in their own countries with life in modern England are seldom entirely wrong.
Even so, the power of the British State is both more concentrated and less restrained than at any time in the past. The old notion of the State, as limited by custom and law, has given way to the common belief that there should be no impediment whatever to the clearly expressed will of the people – or of those who can, with any show of reason, claim to represent this will. For a long time, the effects of the change were largely confined to certain economic areas. Of course, these are of the highest importance, and no definite boundary can be drawn between them and other areas. In practice, though, a boundary was observed; and areas of life that, by common agreement, lay outside were usually left unaffected. We could therefore argue for or against socialism within an undisputed framework of civil and political rights.
However, the intellectual collapse of socialism within the past generation has tended to break down the old boundary. So far from allowing the State to be rolled back, this collapse has had the unexpected result of letting it roll uncontrollably forward into every other area of life. This should not have been unexpected. Once established, beliefs about the duty of the State to intervene, and the benefits of intervention, are unlikely to die simply because the old justifications for it have died. Therefore, when politicians have realised the futility – and, more importantly, the danger from a mercantilist point of view – of trying to manage things like the telephone network or the prices of food, they will turn naturally to trying to control our lives in non-economic matters.
And these new controls will be accepted, and even demanded, by a people so accustomed to control that they cannot accept the lifting of it in one area without a compensatory extension of it into others. Therefore the controls on smoking and driving and sport and amusement and child rearing, and even on the expression of ideas. Therefore the new supervision of private life that would never have been attempted or accepted in the days of exchange control and the Selective Employment Tax. Therefore the breaking down of any legal safeguards that seem to frustrate the smooth working of the new controls.
And so the threat of unlimited government is actually greater today than it was in the late 1970s, when it first became a popular concern. It is greater because it is less well defined. The slide into despotism will not come because someone like Arthur Scargill wants to nationalise everything in sight. It will come because of a push that is weaker at any one point, but applied over a far larger area.
Now because the nature of this threat is new, so the response to it must be new. The concentration on economic issues, that for most of the present century, has been the main feature of conservative and libertarian argument is no longer appropriate in an age when the debate over economics has mostly come to an end. We must turn to a far greater degree than has so far been the case to putting the argument for limited constitutional government. Instead of dealing with one aspect of the changed conception of the State, we must deal with the changed conception itself.
Our fellows in the United States are more fortunate in this respect than we are in England. They have a written Constitution that derives from an earlier age of English civilisation, when the limiting of state power was taken as the main end of politics; and they can appeal to the letter of their Constitution in opposing the spirit of their actual government. Efforts, no matter how determined, to disarm the American people can be countered by insisting on their Second Amendment. Every effort to restrict what can be made available on the Internet has broken so far without success on the rock of the First Amendment. They have a text around which conservatives and libertarians and civil libertarians can unite in the defence of liberty.
But we also have a Constitution. It may not be digested into a single clear document that was intended to stand forever. But the materials that were digested into the American Constitution all had their origin in England. Granted, these materials are scattered through customs, charters, legal judgments, textbooks, and Acts of Parliament that accumulated over about eight centuries. But their existence is a matter of record. They are still a flat challenge to the modern conception of the British State as the instrument by which the untrammelled legislative supremacy of the House of Commons is expressed.
Or they would be a flat challenge if they could be made generally available. At the moment, they are not available. Last summer, for example, an argument started on the Cybershooters List over the extent to which the Bill of Rights 1689 guaranteed the right to keep and bear arms. Before this could be settled, it was necessary to circulate a copy of the Bill. I had an old copy in print too small for scanning. it was nearly a week before Bob Allen found or produced an electronic copy that could be circulated.
Again, I am something of a legal antiquarian – yet I have never found a complete edition of Sir William Blackstone’s great Commentaries on the Laws of England, first published in the 1760s. These are one of the main influences on the American Constitution. They were a powerful force in shaping understanding of the English Constitution well into the 19th century. Yet I do not know of any modern edition. There are the State Trials, published in the early 19th century, with some highly valuable commentaries – these have never been reprinted, and they are only available in a few specialised libraries.
In short, the primary materials from which an understanding can be gained of the English Constitution are unavailable to ordinary people. The intention of this Web Page is to make these materials available on the World Wide Web, and thereby to assist in the growing debate on the preservation of freedoms that we once took for granted, but which are now under growing threat.
I said at the top of this Page that I would lay particular emphasis on the right to keep and bear arms for self-defence. This means that my first main job will be to publish the reports on and the parliamentary debates about the various Firearms Acts of the 20th century, together with any legal judgments, both ancient and modern, that shed light on the destruction of this particular freedom. But my ambitions are far wider, and are limited only by the amount of time that I can afford to spend in the relevant libraries and then at home with my scanner. I hope to make this the resource page for English constitutional thought. It may take some while, though, before hope and reality can be made to resemble each other.
© 1997 – 2018, seangabb.
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