Monday, March 16, 2015

The World-Historical Trend Toward Written Constitution

During the eighteenth century, a variety of political thinkers articulated the desire for written constitutions in various nation-states, both in North America and in Europe. This idea, which over the course of two or three centuries has now become common, was a novelty at the time.

England spoke of having a constitution at the time, but it was a patchwork of traditions like common law and of texts like the Magna Carta and the English Bill of Rights of 1689. While this did form some manner of a constitution, limiting government and prescribing procedure, it was an ad hoc accretion of several centuries.

The new demand for a constitution, however, envisioned a more unified written document, produced by authors who systematically articulated a form of government.

Thus Thomas Paine, writing in 1792, asserts that the English have, in fact, no constitution. He denies the claim of constitution to the British system, because it was not a deliberate, self-directed action on the part of the citizens to form a government, limit its powers, and prescribe its methods. Granted, parts of the patchwork quilt titled ‘English Constitution’ may fit that description, but as a whole it does not:

There is not such a thing as an English Constitution, and that the people have yet a constitution to form. A constitution is a thing antecedent to a government; it is the act of a people creating a government and giving it powers" and defining the limits and exercise of the powers so given. But whenever did the people of England, acting in their original, constituent character, by a delegation elected for that express purpose, declare and say, “We, the people of this land, do constitute and appoint this to be our system and form of government?” The government has assumed to constitute itself, but it never was constituted by the people, in whom alone the right of constituting resides.

Paine was willing to contradict Dr. Samuel Johnson, a towering figure in English writing. Paine and Johnson were on some points agreed, and even had been in the same social circles on an amicable basis. But regarding the question of constitution, Paine rebuked Johnson directly.

In Paine’s view, even the Magna Carta and the English Bill of Rights lacked true constitutional character, and England lacked any systematic plan of government to which its citizens could appeal, which limited government, or which protected citizens from the government. British philosopher A.J. Ayer writes:

Paine then turned his attention to England, which in his view lacked a Constitution. He reproached Dr. Johnson for failing to understand the difference between constitutions and governments and therefore being content with a government which controlled, instead of being controlled by, the nation. He then deplored the history of England from William the Conqueror to William III, saying of Magna Carta that it ‘was no more than compelling the government to renounce part of its assumptions’ and of William III’s Bill of Rights that it was ‘but a bargain, which the parts of the government made with each other to divide powers, profits, and privileges’. According to Paine, the consequence of this bargain and ‘the corruption introduced at the Hanover succession, by the agency of Walpole’ had been the putting into operation of ‘the most productive machine of taxation that was ever invented’.

Because the Constitution is not the government, but rather the plan for the government, it is foundational, an unchanging point which is so structured as to allow for application in a constantly changing world.

It is part of the Constitution’s self-understanding that it is not a perfect document, but rather it is one which can be improved. The framers understood that human nature is such that this world will host neither a perfect human being nor a perfect human society.

Humans and their societies are capable of refinement and improvement, but will never reach perfection, and are thus ever in need of adjustment. Constitutional scholar Mark Levin writes:

The Constitution is the bedrock on which a living, evolving nation was built. It is - and must be - a timeless yet durable foundation that individuals can count on in a changing world. It is not perfect but the Framers made it more perfectible through the amendment process.

Because the Constitution is a text, the tools of textual study become the tools of legal analysis. Hermeneutics and exegesis become tools whereby the government is judged.

The government is evaluated as is corresponds, or fails to correspond, to the general guidelines given the in the Constitution. Because the objective of the Constitution is to maximize freedom by limiting government, it is understood that this freedom will give rise to competing and diverging interpretations of the Constitution’s text.

In a recursive or self-referential way, the freedom created by the Constitution’s limitation of government is used to create contending understandings of the Constitution, its text, and its intention. Thus interpretative debates about the Constitution are foreseen by the Constitution and are part of the system which it prescribes.

seeks to divine the Constitution’s meaning from its words and their historical context, including a variety of original sources - records of public debates, diaries, correspondence, notes, etc. - While reasonable people may, in good faith, draw different conclusions from the application of this interpretive standard, it is the only standard that gives fidelity to the Constitution.

The goal of limited government is achieved, in part, by gaps designed into the Constitution. The text does not speak to all situations or questions, nor is it intended to.

A limited government is designed deliberately to remain silent on some matters, and this silence creates the free space for individuals, or local governments, to act. In this way we see the importance of the ninth and tenth amendments.

And where the Constitution is silent, states and individuals need not be. The Constitution and, more particularly, the framework of the government it establishes are not intended to address every issue or answer every perceived grievance. This is not a defect but a strength, because the government was intended to be a limited one.

A Constitution, as Thomas Paine and others saw, created open spaces for free action. By limiting government, it expanded the sphere of potential action on the part of the citizen.

If the legitimacy of the government arises from the consent of the governed, then the role of the constitution is to create a structure which ensures that such consent is effective and is allowed to change.