Wednesday, 16 November 2011

Constitutional Muscle

"Will it be sufficient to mark, with precision, the boundaries of these departments
in the constitution of the government, and to trust to these parchment barriers against the encroaching
spirit of power?  This is the security which appears to have been principally relied on by the
compilers of most of the American [state] constitutions."
(James Madison, Federalist 48)

 Most countries (and the early American states) struggle to write constitutions that are self-enforcing. 

In describing Charles de Gaulle's 1958 French Constitution, Bell, Boyron, and Whittaker wrote in their chapter on French Constitutional Law, "Only with great difficulty is political change checked and framed by a Constitution," and "one might rightly wonder whether constitutional law is able to induce any change single-handedly."

Thus writing a constitution down is not enough to check and control government.  To account for this limitation, it is often thought necessary, as Madison identified in Federalist 51, to construct constitutional arrangements wherein "ambition must be made to counteract ambition."

Yet while this condition is necessary, it is evidently not sufficient in constructing a constitution which actually governs.  Even if a constitution pits divisions of government against one another and a constitutional courts is erected to enforce the constitution, these constitutions have generally not been followed by those in power. As Alec Stone Sweet of Yale Law School has identified, modern constitutional review systems have been "relatively ineffective, even irrelevant."

Why is this?  Why is it not enough to write a constitution down and arrange the organs of government to counteract and limit each other, and what can those countries who will soon be writing constitutions (Tunisia, Egypt, Libya, South Sudan, Iceland, Romania, Nepal) learn from this?

Perhaps one answer can be found in how the constitutions are constructed.

Stone writes that "[m]ost constitutions are contracts that are typically negotiated by political elites--representatives of competing groups or political parties."

As we can currently see in Romania, where a proposed constitution by the Romanian President is stalled in a Parliament who does not want to limit its size (required by a referendum), this arrangement is not always ideal. 

In addition to being hard to negotiate into being, a constitution constructed exclusively by political elites, without input and involvement from the people, will not be seen as a true social contract, and thus not be binding either now or later on those who did not or even did participate in its construction.

A process which involves the people and those leaders the people identify as universally legitimate and respected (and not necessarily political) will invey to the resultant constitution with a mysticism and general, long-term acceptance and respect. 

Witness the American Constitution, the French Code Civil, Israel's Code of the Covenant found in the Torah, and Shariah Law.  Each are legitimized and observed as law by its people decades, centuries, and even millenia later in part because of the perceived legitimate process by which it was conceived.  All which identify and adhere to these laws refer back to its inception.  Regardless of whether those outside the system agree with the precepts espoused by these laws, it must be uncontroverted that those who subscribe to the law are governed by it effectively.

Constitutional process matters.  Although most would agree that the process by which the Torah and Shariah Law were imparted is not possible for a modern constitution, it is possible to identify processes which will impart to a constitution the same kind of mysticism and respect for these laws and the Code Civil and American Constitution. 

With this kind of beginning, perhaps parchment barriers and setting organs of government against each other would be enough to render effective constitutions, both now and into the future.

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