Benefits of a vintage constitution

Berman

Some things, like fine wines improve with age. But do Constitutions? As Norway approaches the two-hundredth anniversary of the adoption of its Constitution in 1814, there has been discussion as to whether or not a document that while progressive for its time, should be replaced, and if so with what?

I am sure a number of other participants in this exercise are likely to contribute a number of interesting and well thought out ideas. Some may reflect principles that exist within the current constitution, others innovations such as a commitment to rights in the Economic, Social, and Cultural fields. Others assuredly will seek to update it to reflect the more modern world facing Norway today, a world in which monarchical authority has long since faded outside of the Middle East and South East Asia. Yet more, might try to introduce wider ideas regarding representation, electoral districts, campaign finance, or even specific polices.

Let it be
My advice to the Norwegian people regarding their Constitution is to disregard most of that advice, not matter how well-intentioned. Constitutions generally work best when they are simplest, and when they seek not improve society or to solve its problems, but rather to create a framework in which society can solve them for itself. The most long-lived Constitution in the world, the American one adopted in 1789, was less than 4500 words in length, and was a monument to ambiguity across a range of issues.

Some of the clearest and most progressive constitutions in world history such as the Soviet Constitution of 1936 remained dead letters, their lofty phrases and principles unfulfilled.

Yet it was exactly that ambiguity that allowed it to sustain itself for over two centuries, while some of the clearest and most progressive constitutions in world history such as the Jacobin French Constitution of Year III and the Soviet Constitution of 1936 remained dead letters, their lofty phrases and principles unfulfilled.

While there are many differences between Revolutionary France and Revolutionary America, the one that had the greatest impact on the drafting of the two Constitutions was that the goals they set out to achieve could not have been further apart. Well-schooled in the British Constitutional tradition, and the problems of government that had arisen in both Britain and America’s old colonial past, the American Constitution had to two primary objectives; to clarify the sources of authority within the state, and to prevent the abuses that had led to both the English Civil Wars of the 1640s and to the American revolt.

Division of Powers
The first goal was motivated by what were seen as the defects of the British system. The first of these was the position of the Crown. The ambiguity of its powers, had been a cause for conflict throughout English history, especially regarding the control of military force, taxation, and the appointment of Ministers. Disputes over all three had led to the Civil War of 1642, when King Charles had refused to accept Parliament’s Militia Act which would have given that body control of the nation’s armies. History had by and large vindicated Charles’ intransigence, and the US Constitution assigned military power to the President by making him the Commander-in-chief of the armed forces, and also gave him the power to appoint Cabinet Secretaries.

Yet it countered these concessions, by banning members of the Cabinet from serving in the legislature, which had served as a form of royal patronage in England, and by restricting the power to levy taxes to the Congress alone. Furthermore, by requiring Senate approval for treaties, they removed the method by which Kings Charles II and James II had endeavored to escape from Parliament’s fiscal control, namely receiving foreign subsidies.

The Judiciary would be appointed by the President, yet would enjoy life tenure and require Senate confirmation. With the Senate the representative of the states, this ensured they would have some say regarding the institution which would mediate disputes between the states and the federal government.

Certain Unaniable Rights
If one of the goals of the US Constitution was to set up a clear system of government, the second was to protect individuals from abuses. America is not alone in having «rights» enshrined in its Constitution. It is rare in that rights are almost entirely defined in terms of restrictions on the power of the government over individuals, and not in terms of regulating relationships between individuals. The right of freedom of speech ensures that all parties and voices can be heard, even the reprehensible; America is almost alone in the Western world in having no «Hate Speech» laws, and incredibly liberal Libel standards.

When local authorities tried to stop a group of Neo-Nazis from marching through the town of Skokie which had a large Jewish community, the Supreme Court ruled the Nazis had the right to march.

When local authorities tried to stop a group of Neo-Nazis from marching through the town of Skokie which had a large Jewish community, the Supreme Court ruled the Nazis had the right to march. Whatever the downsides of this approach in individual cases, it has served to avoid the sort of cultural classes over immigration and race whose suppression in Europe  has created the impression that an anti-democratic state is silencing dissenting voices, and given them maverick appeal.

Other rights dealt with specific abuses. The right to a jury trial leads to imperfect results in occasional cases, but it prevents the legal system from becoming an adversarial clash between individuals and the state. Rules against imprisonment without charge and the quartering of soldiers, responded to specific abuses, while the right to bear arms recognized at least at the time, that preventing state abuses required preventing a monopoly of coercive force accruing to the state.

Ambition of Ambiguity
Ambiguity certainly exists on some of these rights, and the interpretation of the rights to property, the exact meaning of right to bear arms, the meaning of what exactly qualifies as «cruel and unusual punishment» have been contested.

By adopting broad language, the drafters left it up to the future balance of political forces to determine exactly how to enforce these principles.

But this ambiguity was deliberate, a recognition that the authors could not bind future generations and would provoke disaster if they tried. Had the Constitution included specific lists of »cruel and unusual punishments» or which firearms individuals could own, those lists by the nature of the time in which they would have been written would have excluded numerous items that would be developed later. By adopting broad language, the drafters left it up to the future balance of political forces to determine exactly how to enforce these principles. In some cases that undoubtedly led to compromises we may regret today. The original Constitution,  by creating a right to property at a time when slavery existed, helped lay the groundwork for the Dred Scott decision, but the Constitution survived that Civil War intact. Furthermore, rather than abandoning its wording due to the Civil War, Americans simply amended their constitution to explicitly abolish it.

French Constitutional Fancy
The US Constitution therefore was an imperfect compromise for what its authors recognized was an imperfect population. The French Constitution of the Year III, and arguably most of the constitutions that emerged from France’s Revolution were far less modest. Fired by the intellectual zeal of the Enlightenment, its authors sought to create a constitution for the society they wished they had rather than the society they actually had. The American Constitution had left the exact nature of the franchise undefined, preferring instead to provide a list of criteria on which it could not be denied; here lay a recognition that ideas like universal suffrage, which did not function in a society that had a high rate of illiteracy, might become viable in the future. The French Constitutions made no such concessions, providing for universal suffrage at a time when perhaps 15 per cent of the population were literate, universal education based on central control and taxation, and attempting to impose secularism on a religious society.

In the latter case, its embrace of state secularism, the French Constitutions made an error that has proven the downfall for Constitutions from Turkey, to Thailand, to Latin America; the effort to enshrine policy, under the guise of principle, into Constitutional Law and thereby bind future majorities. The US Constitution’s clause on Church and State prevented the government from picking favorites to protect the religious liberty of individuals; the French Constitution, and those that have followed its lead for the last two hundred years have attempted to protect individuals from religious error.

If the policies enshrined in the Constitution were popular, there would be no need to define them clearly.

In doing so, they set their Constitutions on a collision course between the elected and non-elected branches of government. If the policies enshrined in the Constitution were popular, there would be no need to define them clearly. The only situation in which things like state secularism or controversial definitions of rights matter is when they are not favored by majorities, and those majorities elect legislative representatives who also do not favor them. Yet while the drafters may hope that the courts or other guardians of the Constitution will suppress efforts by the elected branches to impose policies in conflict with it, which one could argue makes them little different than the founder of the Islamic Republic in Iran, voters rarely accept such judgments as final. Rather they see themselves in conflict with the state, and they see the Courts and Constitution not as something they have ownership of, but rather as forces with which they have an adversarial relationship. As a consequence, they become more likely to vote for politicians who promise to challenge them. The result is instability, as occurs today in Thailand where the courts repeatedly remove Prime Ministers from office only to have them reelected by angry voters, or in authoritarianism like in Turkey, where Prime Minister Recep Tayapp Erdogan and his Welfare and Development Party used the excuse that he was enforcing the peoples’ will to destroy all of the checks on his power.

Trust the Founding Fathers
Countries that have followed the example of Revolutionary France have generally found nothing but difficulty with their systems. This is not to say that Norway would suffer the same if it included commitments to guarantee gender neutral bathrooms or to set minimum vacation time in its new Constitution. Most likely such guarantees would be meaningless because the elected governments would favor them in any case. But that meaninglessness symbolism is that absolute most they could contribute, and the only circumstance in which they would matter, one in which substantial popular majorities oppose the principles enshrined in the Constitution, the guarantees are more likely to undermine the Constitution and polarize society as a whole than they are to actually provide the protection they promise.

Norwegians have enjoyed a largely successful with their Constitution over the last 200 years. They should be proud of that, and recognize that credit is due not only to the text of that document but to their own wisdom and good sense. They should trust in that wisdom, rather than Constitutional guarantees, to ensure that future Norwegian governments will implement sensible policies.