Friday, 3 June 2011

Writing Constitutions Built to Last: Severing Aspirational Goals and Legal Texts



By Lorianne Updike Toler

To begin discussing this subject, one must first define a constitution for a state (meaning sovereign power).  Although definitions vary, constitutions are always law. They are legal texts which govern other legal texts and institutional bodies.  A kind of fundamental, sovereign, and supreme law.

As such, the language in it should be legal.  It will be looked to in future cases and judgments for enforcing its strictures, and thus must have the capacity to bind.

As law, non-binding, aspirational language should be left out.  Not only does this kind of language create textual clutter, but, because it is ultimately unenforceable, it makes a mockery of laudable state goals and aspirations.

Of course, when forming a state, it is often an important practice for aspirational goals and fundamental principles to be put to paper, but they should be contained in something other than the constitution proper, such as a preamble or statement of principles.  For the United States, this "severance" occurred naturally, between the Declaration of Independence and the Constitution.

There was apparently some temptation to include principles and theory on joining individuals together out of a "state of nature" in the Preamble, but the drafters exercised wise restraint.  Consider the following excerpt, pictured above:

"A preamble seems proper.  Not for the purpose of designating the ends of government and human polities--This business, if not fitter for the schools, is at least exonerated display of theory, howsoever proper in the first formation of state governments, seems is unfit here, since we are not working on the right of men not yet gathered into society..."

Statements of non-binding theory and principles may be appropriate in preambles when first forming a  state out of a new society.  Yet those writing the U.S. Constitution determined that the state governments and the then-acting constitution, or Articles of Confederation, already formed men into a society, rendering such unnecessary.

Whatever their reason, not only is the Constitution blessedly short, so is the Preamble.  The Preamble, the closest the U.S. Constitution comes to grandiose statements of principle, is now what young students across the country know by heart (my mother proudly informed me that her thirteen-year-old seventh graders can even diagram it correctly on the sidewalk).  Keeping statements of principle in a preamble short allows them to be digested and adopted by even the youngest in a society, a healthy thing in a country wishing longevity.

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