Michael Kinsley: Who Loves Freedom More?

Friday, November 11, 2005; Page A25

LONDON -- 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 They cannot be repealed or easily amended.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. Courts do refer to it in deciding cases, but there is no certainty about what the words are, let alone what they mean. There is no established principle that the courts may declare acts of the legislature unconstitutional. The legislature, meanwhile, is sovereign and can trump this constitution by passing an ordinary law. In effect, the individual has no legal protection against the tyranny of the majority.