Thursday, March 12, 2015

Thomas Paine and the Concept of Constitution

When the United States was founded, the notion of a constitution was not as well-established as it would later become. The notion of a written constitution, as opposed to the accretion of tradition and common law to form a patchwork constitution, was emerging as the object of desire among certain thinkers, but was neither universally known nor universally understood. The desire for it was therefore weak, but would grow with such knowledge and understanding.

Thomas Paine, therefore, found it necessary to educate his readers about the notion of a constitution.

Following the train of thought in Paine’s Rights of Man, Paine’s 1791 book, British philosopher A.J. Ayer writes:

Having restated his defence of representative government, Paine returned to the topic of constitutions. He was one who did not mind reiterating points which he considered important, and he did attach great importance to the matter of constitutions, if only because he believed that ‘government without a constitution, is power without a right.’ Believing the Constitution of the United States to be the only existing model that deserved the name, he proceeds to take his readers step by step through the process of its formation, relating how Pennsylvania constructed its Assembly with its own Constitution, followed in their respective fashions by the other States, how the States agreed to allow Congress, which had previously had only the authority to issue recommendations, to draw up an Act of confederation, how this Act was deemed to confer too much power on the several States and too little on the federal government, how this defect was remedied at a continental convention held at Philadelphia in May 1787, and how the convention promulgated a Constitution, which needed to be ratified by each State, a process which took two years, with the final result that George Washington, who had been elected to preside over the convention, was again elected in 1789 to become the first President of the United States.

Thomas Paine found the notion of a constitution to be central to forming a government which was likely to respect the human rights about which he wrote.

People make a compact to institute, not a government or a set of laws, but rather a form of government. Using the word ‘compact,’ Paine alludes to a sort of social contract.

The constitution would not be a set of laws; it would not be the government; rather, it would be a plan of government. Paine writes:

A constitution is not a thing in name only, but in fact. Wherever it cannot be produced in a visible form, there is none. A constitution is a thing antecedent to government, and a government is only its creature. The constitution of a country is not the act of its government, but of the people constituting its government.

Because the modern era in which Paine wrote saw a growing demand, not only for constitutional government, but for a written constitution, and one that was deliberately designed all of a piece, the question of language became relevant.

Lawyers have always been textual in their work, as far back as Greece, Rome, and Hammurabi. They write legal texts carefully, word by word, and analyze the writings of others in the same way.

The legal practice of close reading was elevated to a meta-level by the emergence of written constitution. If a lawyer parses the laws, then a constitutional scholar parses the written plan which formed the government which made those laws.

Paine wanted a written constitution, one hopefully not only internally consistent, but also composed largely in one time and in one space by a unified group of authors. If a text is to be parsed in a legal setting, then one hopes that the authors were more-or-less aware of how they were using language as they composed the text. Constitutional scholar Mark Levin writes:

Language consists of words, words have ordinary and common meanings, and those meanings are communicated to others through the written and spoken word. When parties enter into voluntary agreements, such as contracts, they use words to describe the terms and conditions by which they are obligated to perform and on which they are expected to rely. Contracts are interpreted, and the intentions of the parties discerned, in the context of their original making.

The study of the constitution will therefore veer at times into the study of language. One need only to examine the deliberations of the United States Supreme Court, in which extended argumentation revolves on the distinctions between auxiliary verbs in phrases like “had done” or “has done” - or the distinctions between modal verbs is phrases like “may do” or “shall do” - and the grammatical reflections of the lawyers involved.

The task of close reading and textual analysis is, in part, to attempt to reconstruction the thought process of the authors. Levin continues:

Much like a contract, the Constitution sets forth certain terms and conditions for governing that hold the same meaning today as they did yesterday and should tomorrow. It connects one generation to the next by restraining the present generation from societal experimentation and government excess. There really is no other standard by which the Constitution can be interpreted without abandoning its underlying principles altogether.

Paine’s desire for a written constitution was a desire to make the plan of government external and objective, so that it could be publicly examined. Text is neutral, and everyone may read and interpret it for himself, and debate with those who have differing interpretations.

The reader will recall that in Paine’s context, the end of monarchy was an urgent and real goal. The public accessibility of a written constitution, and the fact that the ability to textually analyze it, is not dependent upon anything inherited from a dynasty.

The externality, objectivity, and public accessibility of a written constitution lead to the rule of law.

The rights of man - individual political liberty - are best housed, Paine asserts, in a republic composed of freely elected representatives and structured by a written constitution.