Bill-of-rights-IIA quick search of the internet will reveal a wealth of videos showing demonstrations of Americans’ ignorance on a range of subjects in the form of ‘man on the street’ interviews. These clips are of dubious empirical value, but at times may be good for a laugh.

What would be funny to the average American, however, would be to see how people from other countries might respond to questions about the content of their respective constitutions. Americans are possessed of a certainty that not only are they at the top of the table in respect of constitutional quality, but also that – to steal an oft-used phrase from countless cinematic and television productions – they know their rights (!). Put differently, the need for awareness of the provisions of one’s country’s constitution, outside of the relatively small circles of lawyers and politicians (the latter of which seem to have at best a shaky grasp on matters of such legal importance) would seem to be a foreign concept to most societies outside of the United States. Indeed, as an American living in Poland I have been the recipient of gentle ribbing from some of my non-lawyer acquaintances when the American constitution is mentioned; even adjuncts and members of law faculties have expressed their amusement at the seriousness and reverence with which most American citizens discuss a document (or set of traditions in the case of unwritten constitutions) which for the vast majority of societies around the world is nothing more than a plan for how the state is to be organized. The idea that a single article of a constitution could provide a rallying point for heated, polarized public debate – as is the case with the second amendment to the US Constitution – is absurd for people in Denmark, Poland or Portugal.

I would submit that this results from a fundamental difference in the perspective of Americans (derived in no small part from the English legal tradition) and that of other societies as to the meaning and the significance of „the Law”. It is my assertion that, while being equally aware in comparison to members of other societies of the vast range of functions performed by law (organizing commerce, administering justice, codifying the rules of the road, etc.), for the American ‘man on the street’ the Law (a narrow group of constitutional principles and famous jurisprudence distinct from the largely unknown body of acts, statutes, codes and other provisions incomprehensible to all but lawyers and judges, referred to as „the law”) is the bulwark against the flailing, indiscriminate tentacles of the leviathan State which at all times pose a threat to the freedom and liberty of law-abiding citizens. This is in contrast to the perception of the law (including constitutions) in other societies as simply sets of rules to observe in various situations. Construction of the pedestal on which Americans place the Law leading to their embrace of the Constitution as second only to the Holy Bible in the hierarchy of documents began in the 13th century.

One of the world’s great legal documents, the Magna Carta, was forced upon King John with a view to securing ” … these Liberties following, to be kept in our Kingdom of England for ever”. Among the most salient provisions in the Magna Carta concerns what is held by many as the foundation of habeas corpus in the Anglo-American legal tradition, Article XXIX, which states:

„No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.”

Of the utmost concern was to ensure that the king and his officials could not wield the power to imprison and judge in an arbitrary manner, but that the detention of an individual should be performed in accordance with the law and subject to review by judges independent of royal authority; this was later codified by the Habeus Corpus Act of 1679, and, in an expression of continuity with the English legal tradition, the US Constitution (ratified in 1788) declares that „The Privilege of the Writ of Habeus Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” The remainder of the US Constitution deals with the other mundane matters common to all such documents, such as the organization of the branches of government, terms of office for elected officials and the like.

By and large, however, Americans are unaware of the difference between the Constitution proper and the amendments adopted to it. For them, the amendments are the Constitution. When considering that the United States was created as a vehicle for securing „life, liberty and the pursuit of happiness”, it should come as no surprise that the Bill of Rights (the name of the first ten amendments to the Constitution, without which the respective state legislatures would not have ratified the document as a whole) is the beating heart of the Law in the minds of those under its jurisdiction. It was viewed in much this way by those who authored those provisions, who wrote thus:

The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added … „

Those restrictive clauses, vital to the success of the entire constitutional project, uniformly address potential abuses of civil liberties (some of which have in recent times been elevated to the status of human rights) by forbidding state officials from interfering in the exercise of religious liberty, in the exercise of freedom of expression or in the sanctity of one’s home and personal effects, as well as by requiring that all those charged with a crime be given due process, by protecting people from ‘cruel and unusual punishment’, and by providing a general clause to ensure that rights not enumerated therein are not abrogated by the existence of a Bill of Rights.

It is difficult to find Americans unaware of their ‘Miranda rights’ (5th amendment), and nigh on impossible to find anyone in the dark as to the 2nd amendment’s regulation of firearm ownership (setting aside issues of its frequently mendacious over-interpretation). Freedom of speech as a constitutional right is held dear by Americans, as is the institution of the jury trial.

None of these legal institutions are unique to the United States of America; what is unique is that they serve as the prism through which Americans view law – they are the Law, inviolate, constructing the foundation on which American society is organized, referenced in the course of conversations with infinitely greater frequency than in other societies, quoted in countless films and TV shows and occupying far more real estate in the American mind than constitutions and statutes do in the consciousness of other societies. For Americans, the Law exists in order to shield them so they may go about their business without unwarranted interference from an authority that should be kept at arm’s length. They may get by without the law, but the Law is a permanent fixture.

It would be difficult to imagine a scenario under which a group of Spaniards sitting in a bar could come to blows over a dispute concerning the way the executive branch is constituted, or large numbers of Germans being incensed at the idea of toying with gun ownership legislation. I would claim it is a mark of my adoption of the standards of European legal culture after a decade of living in Poland that I see nothing excessively controversial in the idea that a constitution should be tinkered with when the need arises. That said, I offer the opinion that Americans are on to something with their constitutional fetish, and that European societies would do well to promote their foundational legal acts as a sort of legal glue holding society together; by doing so, they may find the Law can serve as an ideological thread binding together the increasingly disparate social, cultural and ethnic groups comprising what were far more homogenous societies in the none-too-distant past. It is a shame that the Constitution for Europe project failed so miserably, as the perception of a federalized Europe united under a document familiar to and appreciated by its citizens would be a boon to civil liberties across the continent; if such a document were modeled properly, perhaps Europeans might have a Law of their own, rather than the distant and unfamiliar law of Brussels as it is felt to be now.

 Matthew La Fontaine



Europejskiej Kultury Prawnej