Distinction between a written and unwritten constitution is not real. There is no constitution which is either wholly written or entirely unwritten.
All written constitutions grow and expand if they are to endure and serve their purpose.
The real constitution is a living body of general prescriptions carried into effect by living persons. No constitution can ever be a strait-jacket. Nor can it be ever in the mind of the constitutional fathers to work out in all details a complete and final scheme of government operative for generations to come.
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They always seek merely a starting point and consequently provide a skeleton to be clothed with flesh, by customs, exigencies, national emergencies, economic developments, and various other factors affecting the welfare, of the nation.
Written constitutions, Bryce remarks, become “developed by interpretation, fringed with decisions, and enlarged by customs so that after a time the letter of their text no longer conveys their full effect.” The constitution remains a printed document, no doubt, but explained by judicial decisions, precedents and practices and illuminated by understandings and aspirations.
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This point may be illustrated by few examples taken from the United States which is represented as the best type of a written constitution. The most notable example is the extra-constitutional development of the political parties.
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The constitutional Fathers sought to provide a mechanism of government which would be free “from all violence of the faction”, as Madison called it. But in the Presidential election of 1796, the third under the Union and the first in which Washington was not a candidate, there were two national parties, one supporting John Adams and the other supporting Thomas Jefferson.
By 1800, the party system had settled itself quite firmly in the government, even to the extent of necessitating the addition of the Twelfth Amendment so as to make the Electoral College method workable.
Since that time, party system forms the hub of the American national life. Then, there is no basis in the organization of the ‘cabinet’ which advises the President. President Washington found it useful to have a small group of advisers to whom he could look for counsel. Other Presidents continued with it and, today, it is impossible to dispense entirely with such a body.
‘Senatorial courtesy’, ‘presidential nominating conventions’ and the ‘residence’ requirements in the election of Representatives are some of the other examples of constitutional usages. ‘Legislative committees’ are not authorised in the Constitution, but custom and usage has made then, as permanent as if they were a part of the Constitution.
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In the oft-quoted observation made by Chief Justice Hughes’, of the United States Supreme Court, lies the truth how the American constitutional system has developed through judicial interpretation.
He said, “We are under the Constitution but the Constitution is what judges say it is.” The judges have to interpret the constitution and to give a phrase a new interpretation is to give it a new meaning, and to give it a new meaning is to change it.
The Supreme Court vested the power of dismissal in the President, excluding the Senate altogether, though the Constitution says nothing about it. The decisions of the Supreme Court interpreted means of communications to embrace telegraphic, telephonic and radio communications, and in the means of transport were included rail, roads and airways.
The Constitution declares that “Congress shall have power to regulate commerce.” As to what is meant by the word “commerce”, and what it includes, the Supreme Court has given varied meanings to suit new situations, and make it responsive to new problems.
“It has been the work of the Supreme Court, through the power of judicial interpretation,” says Munro, “to twist and torture the term ‘commerce’ so that it will keep steps with the procession.”
The British Constitution, the only example of an unwritten constitution, includes a considerable statutory element. Statutes regulate the succession to the throne, the executive departments, the suffrage, elections, the duration of Parliament, the relations between the two Houses, the judiciary, and much besides. Some of these matters have been subject to parliamentary action for centuries now.
Others were formerly left to custom. It was the conflict over the budget of 1909 that led to the enactment of the Parliament Act, which gives the House of Commons exclusive control over Money Bills and a means of enacting legislative bills without the consent of the Lords. The Amending Act of 1949 further strengthened the supremacy of the House of Commons.
The statutory element seems to be gaining in relative strength. The Ministers of the Crown Act now gives legal recognition to the Cabinet, the office of the Prime Minister, the political parties and even to His Majesty’s Opposition.
The distinction between written and unwritten constitutions, therefore, is not only confusing, but unscientific. Professor Strong calls the division between written and unwritten constitutions false, misleading and illusory.
The difference between them is really one of degree rather than of kind. Bryce’s conclusion is that the terms “written” and “unwritten” are not happily chosen, “although the distinction they aim at expressly is a real distinction.”
Herman Finer, in his own characteristic way, says, “Comparatively, then, and not absolutely, the adjective ‘unwritten’ when applied to constitution means: (i) that all is not included in writing which might be, while something’s are altogether excluded which in other constitutions are included; and (ii) that it is not the result of deliberate establishment and adoption as a whole, with the result that no external sign marks of a constitutional from an ordinary law.”
K.C. Wheare observes that the classification of constitutions into written and unwritten should be discarded and “the better distinction is between countries which have a written constitution and those which have no written constitution.”
Michael Curtis makes a significant departure from all the reasons assigned so far. He says, “But the distinction between regimes with a ‘writer’ and those with an ‘unwritten’ constitution formerly a means of comparing Britain and other systems is not today of great political importance.
Regimes possessing constitutions may be of any nature, democratic or dictatorial, liberal or conservative, communist, capitalist, or with a mixed economy. What is significant is that political actions adhere to an agreed pattern of behaviour or the generally understood principles of the political system.”