Constitution can't match British reverence for rights

November 11, 2005|By MICHAEL KINSLEY

Two countries.

One has a Constitution with a Bill of Rights.

These documents limit the power of the elected branches. They cannot be repealed or easily amended. Although neither one says so explicitly, there is a rock-hard tradition that the courts, and not the legislature or the executive, have the final say over their interpretation. No elected official would claim more authority than the Supreme Court in interpreting the Constitution. Put it all together, and an individual citizen can feel pretty secure against the tyranny of the majority or a runaway government. Or so we suppose.

The other country has what it calls a constitution, but it is a metaphysical conceit - an ill-defined set of ideas and values floating in the ether, not an actual document.

The first country is the United States. The second is Great Britain. In recent decades, Britain has ceded some of its sovereignty to what has evolved into the European Union. This includes some Europe-wide human rights, enforceable by courts even to the point of overturning acts of Parliament.

So in which country are individual rights more secure? Legally, the clear answer is the United States. But there's something else, something hard to describe because it's essentially a "love of freedom." But it's earthier than that, which is more deeply rooted in the older country than the newer one that actually broke itself off from the old one over precisely this issue of human freedom.

The contrast between the two countries was on display this week. On Wednesday, Parliament humiliated the prime minister, Tony Blair, by solidly rejecting his proposal to let police keep someone in custody for up to 90 days without bringing charges. Although the political interest was in how many members of Mr. Blair's Labor Party deserted him, it was the overwhelming opposition by Conservatives that killed the thing.

To an American, it takes a bit of effort to wrap your head around this: The prime minister, who leads the rough equivalent of the Democratic Party, said the sacrifice of freedom was necessary to the war on terror. But the rough equivalent of the Republican Party said individual rights are more important.

We need not leap to the assumption that this was entirely a matter of glorious principle. No doubt opportunism and the yin and yang of politics played a role: Mr. Blair became a ferocious supporter of George W. Bush's war in part in order to show that a party of the left could be hard-nosed about this sort of thing. And once the war became the dominant issue of British politics, it became only natural that the Tory opposition would find reasons to oppose it.

But even if opportunism is what led Conservatives to oppose the 90-day detention, there was a language and a set of values available to them to make the case seem, at least, principled and sincere. It has to do with the traditional conservative suspicion of government and respect for the individual - even the individual accused of terrorism.

Meanwhile, the United States, which once held these truths to be self-evident, is running prison camps in Eastern Europe and telling nobody about them until The Washington Post found out. President Bush says that we don't and never would practice torture, but he is against outlawing it, for reasons he is unable to articulate but must add up to "just in case." And Vice President Dick Cheney lobbies to exempt the CIA.

It could be that all these developments are constitutional. Maybe you can't enforce the U.S. Constitution in Poland. But the Constitution is not supposed to be just an obstacle course for officials who are trying to get around it. It ought to inspire policy even when it doesn't impose policy.

Ditto the Geneva Conventions. Why would you even want to be clever about reasons they might not apply here or there? Nor is the Constitution supposed to be divvied up like patronage, with the First for liberals, the Second for conservatives, and so on.

Laws, including constitutions, are supposed to have sharp edges. Even without the help of clever lawyers, they define what is permissible in the process of defining what is impermissible, and they send a strong message that if it's not impermissible, it's OK.

By contrast, a bone-deep desire to be left alone, a tolerance for eccentricity, a quick resentment of bullies - these are qualities that Britain has more than America. And they might be more important.

Michael Kinsley is a commentator who lives in Seattle. His e-mail is

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