Tuesday, 20 March 2012

A Feisty Sermon for Arab Freedom Agitators

William Tennent Senior, the grandfather of the William Tennent quoted here,
was the founder of the "Log College" in Bucks County, Pennsylvania, which
educated the founders of Princeton, who include William senior's son, also named William.

As I read the following 1777 speech excerpt by William Tennent III arguing in favor of amending constitutional proposals in South Carolina to accommodate religious freedom, I could not help but think of its implications for those of the Muslim faith in a different era and part of the world.

How would the West tolerate it (not that there would be much to be done about it) if "Muslim" were substituted for "Christain"?  Who among Middle Eastern statesman or politicians would make such a statement as this, and would it be met with constitutional amendments as it was in South Carolina, or disdain?

"My first and most capital reason against all religious establishments is that they are an infringement of religious liberty.  Religious establishments, as far as they operate, do interfere with the rights of private judgment and conscience.  In effect they amount to nothing less than the legislature's taking the consciences of men into their own hands and taxing them at discretion.

"We contend that no legislature under heaven has a right to interfere with the judgment and conscience of men in religious matters, if their opinions and practices do not injure the state.  The rights of conscience are now too generally understood to make it needful to take much pains to convince mankind that they appertain to a higher tribunal and that the objects of human legislation are quite of a different nature.  The state may give countenance to religion by defending and protecting all denominations of Christians who are inoffensive and useful.  The state may enact good laws for the punishment of vice and encouragent [sic] of virtue.  The state may do any thing for the support of religion, without partiality to particular societies or imposition upon the rights of private judgment.  But when the legislative authority of the state states itself up as a judge in church controversies and proceeds by law to declare this system of opinions right and that wrong; when it proceeds to lay hardships upon the professors of the one while it lavishes its bounties on the other, and that while both are equally useful and inoffensive--I say in this it not only mistakes the proper objects of legislation, but is chargeable with manifest injustice.  No legislature upon earth has a right to do such a thing; nay, we contend, that such a right cannot possibly be communicated to them.  I can communicate to my representative a power to dispose of part of my property for the security of the remaining part.  I may give him a right to resign a part of my personal liberty to the obligation of good laws, as a means of preserving the rest, but cannot--I say it is out of my power to communicate to any man on earth a right to dispose of my conscience and to lay down for me what I shall believe and practice in religious matters.  Our judgment and practice in religious matters is not like our purse; we cannot resign them to any man or set of men on earth; and therefore, no man or set of men on earth either has or can have a right to bind us in religious mattes.  The rights of conscience are unnalienable [sic] and therefore all laws to bind it are ipso facto null and void.  Every attempt of this kind is tyranny let it be made by whatever body of men and in whatever age.  Of all tyrany [sic] religious tyrany is the worst and men of true sentiment will scorn civil, where they cannot enjoy religious, liberty.

"And now, Sir, permit me to take a short view of religious establishments and see whether they do not, more or less, bear hard upon the rights of private judgment and partake in greater or smaller degrees of this worst of tyrany.  On all hands it will be acknowledged that those establishments are of this nature which lay heavy penalties upon those who refuse to conform to them.  Can you form an idea of more horrid cruelty exercised upon the right of conscience than that which imposes, fines, imprisonment and death upon those who presume to differ from the established religion?  You, Sir! look back with horror upon the history of such savage cruelty, the more cruel as it has ever been exercised under the colour of law.

"Of the same nature, though differing somewhat in the degree of their cruelty, are those establishments which incapacitate good subjects who differ from the speculative opinions of the state.  Judgment and conscience in these matters is [six], or ought to be, as independent of our will as our height or colour.  They are formed by the circumstances of the time in which we live, by the manner of our education, by the capacity of our mind and the degree of evidence.  Would not that prince be esteemed a cruel tyrant who should ordain that every man of six feet high and of a sandy complexion should be excluded from the rights of citizens?  An assembly of two hundred senators who could ordain that good citizens should be deprived on account of their inoffensive opinions would be two hundred times as cruel."

[Newton B. Jones, ed., Writings of the Reverend William Tennent, 1740-1777, reprinted in 61 South Carolina Historical Magazine 197-98 (South Carolina Historical Society: Charleston, SC., 1960).]

Saturday, 10 March 2012

Procedure as Substantive Constitutional Law


“Procedure is the great part of law’s substance and the day-by-day means determined, or often are the ends of political action.  The paradox of conservative revolution is really no more than a recipe for success in which adherence to orderly procedure is an important ingredient.” 
W.W. Abbott, William & Mary Quarterly, vol. 20, p. 170 (1963)

Procedure is what differentiates law from politics.  It is the prescribed parliamentarian process of deliberation, discussion, debate, and voting on a majoritarian, usually representative, basis and subsequent publication that renders policy legally binding.

The same can be said for a constitution.  When a constitution is new, it is normally created extra-legally, or in contradiction to the current legal regime it is attempting to replace, and thus process becomes paramount in giving the text a legitimacy that cannot be derived from law.  Process becomes the surrogate for legality.

For Libya and hopefully Syria, as they make plans to create a constitution, they should look to designing a constitutional procedure almost as carefully as they design the substance of their constitution and political institutions.  Insofar as it involves a super-majority of the people at important inflection points, prescribes open and fair processes or elections for selection of constitutional authors or framers, and ensures the inclusion of widely-respected individuals in addition to regulating the day-to-day rules that guide and facilitate fair discussion, process is substance.

Saturday, 3 March 2012

Pre-Constitutional Extra-legality: Libya v. South Carolina


Top floor of the Old Exchange Building in Charleston, where
the General Assembly and Provincial Congress met, circa 1774-1776.

February 24 marked the one-year anniversary of the convening of Libya's National Transition Council (NTC).  Members derived in somewhat representative fashion from various cities across Libya.  They convened roughly ten days after a riot in Benghazi ignited opposition forces in a revolution that ended eight months later in the fall of last year.  In light of last month's citizen raid on NTC headquarters, the council is currently contemplating how to quickly yet thoughtfully fulfill its self-imposed mandate to host elections for an interim government that would appoint a constituent convention to write a Constitution and host elections for a permanent parliament. 

I have been considering pre-constitutional extra-legality such as has been seen in Libya since the formation of the NTC over the last two weeks while in the bowels of South Carolinian archives researching the constitutional history of the state.  

As I discussed a bit in the last postConstitution-making in a new regime is an inherently extra-legal process as doing such things require an overthrow of a legal system.  One cannot write a constitution for a newly (or newly claimed) independent regime by following domestic law.  This is as true for Libya in 2011-2012 as it was for South Carolina in 1773-1776. 


South Carolina had an incredible amount of pre-constitutional extra-legal (as opposed to illegal, in defiance of law) history.  As early as 1773, citizens of South Carolina--largely from it's "low country," or lands bordering the Atlantic Ocean--met in near-spontaneous assemblies to coordinate opposition to a tax on tea (the same tea tax that prompted a certain party in Boston).  In January of 1774, this General Meeting appointed a General Committee, designed to oversee affairs for a time and call future General Meetings and eventually to enforce the resolutions of the General Meeting.  Elections for General Meeting delegates were held in almost all parishes (yes, as in Anglican--the irony is glaring) and in July of 1774, these delegates met to create a Provincial Congress and elect delegates to the first Continental Congress.  

By September of 1775 when South Carolina Royal Governor William Campbell fled to a ship anchored in Charleston harbor, the Provincial Congress had already met for two sessions and quickly assumed official control of the diminishing remains of Royal government.  In March of the following year, when a constitution was written, the Provincial Congress "metamorphosed in the twinkling of an eye into a General Assembly, from whence a President & Commander in chief, a Vice President & Privy Council, a Legislative Council & divers Offices of State have been chosen by Ballot, these will begin to Act this very day in their respective spheres, & Government will again move in better form & order than we have seen in this Colony for many Years past..."  (Henry Laurens to John Laurens, March 28, 1776)

All of this extra-legal legality occurred months before Independence was declared (it was August before news of Independence reached Charleston), and certainly months before any shots were fired in South Carolina at Fort Moutlrie June 28, 1776.  

The progression from extra-legality to constitutional legality seemed startling to one of the leading members of the Assembly, yet surprising to the historian (yours truly) for its conservativism.  Perhaps this is because the body meeting had such a very long pre-constitutional and even pre-revolution history, and that history proffered the necessary extra-legal experience to make such a smooth transition.

I hope the pre-constitutional (unfortunately, because Qaddafi's regime did not allow freedom of assembly, there was no opportunity for pre-revolutionary) extra-legal experience of the NTC will prove similarly beneficial to a smooth constitutional transition.