Monday, 31 October 2011

Pragmatic v. Ideological Constitutional Processes

The sun rising over Hamburg.   
Lorianne Updike Toler

An illuminating juxtaposition presented itself to me this weekend.

I attended a transatlantic conference on constitutionalism this weekend in Hamburg, Germany where I met a 20-year expert on comparative constitutional law at a top-10 law school in the United States.  He communicated to me that many methods of creating a constitution - by the legislature, by elected constitutional assembly, by non-elected parties getting together to write a draft and then submit to a popular vote - were equally desirable.  Often, he said, it was best to have the legislature create the constitution, as they would need to live with its consequences.

At the same time, I have been reading Gordon Wood's Creation of the American Republic.  There, Wood explains how, in the period between 1776-1787, individual states perfected a theory of constitutional process, most working its way through at least more than one constitution until the people were satisfied with the outcome and their level of involvement.  The evolved theory of constitutional process that resulted and was implemented led to the creation of the two oldest constitutions in the world - the Massachusetts Constitution, and the US Constitution.

The process, involving a separate constitutional convention, authorship by widely-respected individuals, and ratification, were based on the premise that the people did not authorize the legislator to re-create its own rules.  Such a supra-power required a power superior than that which could create normal law.  In addition, the legislators had a conflict of interest as members of the government:

Such a vested interest "may induce them to form the government, with a particular reference to themselves, [allowing them to] monopolize themselves a variety of offices." (Wood, 341)

I believe there is a connection between the legitimacy that such a process confers on the constitution, and its long-term success.  Witness the 200+ years in operation of both the Massachusetts and US Constitutions.  I might not be easy and practical, but insofar as constitutions are concerns, ideology behind the process of creation matter, and matter enormously.  In today's world, popular attitudes will ultimately trump and topple ill-conceived constitutions.

Witness Hungary's recent constitutional overhaul.  The previous constitution required 2/3 majority vote in Parliament to adopt a new constitution.  This year's parliament had the necessary 2/3 majority to do so, and it did.  It was practically and effectively accomplished, by the book.  All fine and good.

Yet in this instance, playing by the prescribed rules may not be enough in the long run.  I have talked to  at least a few students in surrounding states who question the legitimacy of the new constitution.  Not because of its substance, but because the process by which it was created did little to involve its people. The current parliament was not elected with the mandate to change the constitution, nor was constitutional change something that was discussed in the election.  Too, the constitution was not submitted for ratification.  It was essentially adopted by one party who happened to by the very popular flavor in the last election.

These young, ambitious student dissenters may not be able to do anything about their rancor now.  But they will likely form part of tomorrow's government.  What will they do then with a practically-conceived but exclusively-crafted constitution?  How will that effect the politics and economy of Hungary?

It may be less practical in the short run, yet I submit that ideologically-sound constitutional processes will always be better for business and for its people.

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