What Is the Purpose of a National Constitution?
NATIONAL constitutions are mainly an outgrowth of the 18th Century Enlightenment, even though similar features are to be found among ancient legal codes. Those who trace the origins of the American constitution to the 13th Century Magna Carta will usually point to a central sentence of clause 39:
No free man shall be arrested, or imprisoned, or deprived of his property, or outlawed, or exiled, or in any way destroyed, nor shall we go against him or send against him, unless by legal judgement of his peers, or by the law of the land.
That's a pretty good beginning, a good example of a needed legal principle, but unrecognizeable as what we would today call a Constitution. Nor do even the many Enlightenment philosophers of government take the final step of outlining where their ideas should take us, until the American Constitution had been written and needed to be defended in the Federalist papers. Nowhere among the writings of Montesquieu (The Spirit of the Laws, 1748), Catherine the Great (Nakaz, Instructions to the All-Russian Legislative Commission, 1767), Diderot (Observations About Nakaz, 1774), James Madison (1787), John Dickinson(1763) or Gouverneur Morris(1787) can there be found a tightly described definition of a constitution. Certainly there is no definition within the writings of Adam Smith, if we look for rule-making among Enlightenment thinkers whose ideas were influential on the 1787 Philadelphia document. The American constitution was the product of many minds, before and after 1787. The outlines of its final form converged, and emerged, from the Constitutional Convention of the summer of 1787, with Gouverneur Morris as the penman of record. To him we certainly owe its succinctness, which is a main source of affection for the document. That probably understates matters; in his diary of the secret meetings, James Madison records that Gouverneur Morris rose to speak about 170 times, more than any other delegate. Lots of thought and debate; ultimately, few words.
The Elizabethan Sir Francis Bacon has the greatest claim on devising a theory of law and law-making in the Anglosphere tradition. But his elegant modification of Galileo's scientific method, the English Common Law, is more a methodology for creating good laws than an outline of a nation's legal principles. Anyway, tracing the American Constitution back to an underlying British one tends to stumble when the British Constitution fails to meet a definition which would include our own. The British Constitution is said to be "unwritten" to the degree it is a consensus of revered documents. It can be amended by Parliament at will, has a variable history of defining just who is covered by it, and in order to define constitutional principles seems to rely on sentences extracted from difficult context. If the two constitutions had been written and compared at the same time, one would say the British had sacrificed coherence out of respect for tradition. In fairness, some features of the American constitution are also perhaps unnecessary for every constitution, but by surviving as the oldest constitution of the modern form, have become its model. That would be:
A set of principles governing the legitimacy of a nation's laws, and firmly standing above them. It defines its own domain, geographically and by membership of a defined citizenry. Except as otherwise defined, it supersedes all other governance within its domain. It defines and defends its own origins. It includes a description of how to amend it, which is intentionally infrequent and difficult. It goes on to outline the structure of the laws it regulates, with subtle modifications made to channel the type of power structure which will govern.
In the American case, history and culture generated several other instabilities so central they justified Constitutionally increased difficulty to amend, and undisputed dominance over competing forms of governance. That would be:
A separation of government powers, weakening any offending branch of government and thus, enhancing citizen liberty. A separation of church from state, for like purpose. A right of citizens to bear arms, to strengthen citizens' defense against internal or external attack, and perhaps warning that revolt was possible, even endorsed as some final extremity.
It probably enhances our understanding to contrast the outcome of competing 18th Century implementations of the Constitution idea. Russia's Catherine the Great proposed a constitution steeped in the traditions of the Enlightenment, but ultimately designed to define and strengthen the role of the monarch. Denis Diderot her French protege recoiled at this viewpoint, substituting other views resembling those of Jean Jacob Rousseau. He opened Observations About Nakaz his commentary to the Queen, with the following declaration:
There is no true sovereign except the nation; there can be no true legislator except the people.
With this ringing warcry, the French model eventually ushered in all of the outrages of the Terror, the Guillotine, and the Napoleonic conquests. The French constitution and its consequences severely undermined world confidence in the benevolence of public opinion, deeply confounding those for whom democratic rule was not totally discredited. New life was breathed into allegiance for the monarchy, military rule, and dictatorship. Public opinion was not either invariably benign or far-seeing. The noble savage, mankind naked of tainted civilization, was not necessarily either wise or worthy of trust. Edward Gibbons, the 1776 author of The Decline and Fall of the Roman Empire was perhaps pointing out where it all might lead, to believe in the collective goodness of the human condition. At the least, the failure of the French Revolution strengthened the viewpoint of the Scottish philosopher, Adam Smith, who in 1776 urged reliance on the sense of collective self-interest, as follows:
It is not from the benevolence of the butcher, the brewer, or the baker, that we can expect our dinner, but from their regard to their own interest.
It is not surprising that Diderot rejected this view of things, and in view of his dependence on Catherine, not surprising that he did not publish his rejection of it until 1823. Thomas Jefferson was in France as ambassador at the time of the Constitutional Convention, and fearing to confront George Washington, also kept his conflicting views private for several years. Eventually they surfaced in the creation of an anti-Federalist political party and the conflicts for the next forty years which kept the new nation in a turmoil. It is a testimony to the strength of the Constitution's design that the country was able to shift between these two extreme governing philosophies and still hold together without changing it. Indeed, it is plausible to contend that our two political parties are still mainly debating these opinions.
BIG nations easily gobble up small ones, so small ones band together. As George Washington famously observed, when you are strong the others leave you alone. But other forces make smallness seem attractive, especially if the nation is already uniform in religion, language and culture. Most nations search for an ideal size for both Peace and Prosperity, and find they need two sizes. Both the American Revolution of 1776 and present struggles of the European Union fit a common formula: banding together for military security, then pulling back for greater independence. American experience of a subsequent Civil War eighty years later suggests the margin for error is narrow.
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| Europe |
Geography doubtless imposes limits for both peace and prosperity. Some nations have therefore banded together for military reasons then split apart in local quarrels, more or less regularly. The thirteen American colonies had been afraid to confront Britannia alone, but somewhat overconfidently took on that challenge as a confederation of thirteen. At the other extreme, little Rhode Island even refused to send delegates to the Constitutional Convention, for fear the other twelve would want to share its revenues from the coastal road through their state. Similar possessiveness has at least not been reported about the narrow defile through the northern end of the equally small State of Delaware, but one glance at a map is sufficient to expect similar restlessness from the region which for decades protected its secrets of mushroom cultivation. Peace and prosperity: getting bigger discourages predators, but getting smaller offers sole possession. Since the United States grew in jumps through most of its history, it probably learned intangible things from its alternating episodes as too big and then too small. Frederick Jackson Turner's thesis of the frontier as a shaper of culture is fairly similar.
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| 13 Colonies |
When ideas of Union first gained traction, both the thirteen American colonies and the twenty-five nations of the Euro zone were afraid of war. The American objective was the simple one of military parity with a common enemy. The nations of the European Union had a longer view; a seemingly endless history of bloody wars sustained their conviction that other wars would inevitably follow unless they did something innovative. National unification on the American model would be ideal, but perhaps the habits of cooperation and trade would lead to that. The unexpected decline of the Soviet empire further reduced the threat to peace. Pride may also have led to over-reaching; twenty-five is comfortably larger than thirteen, which up to that time was the largest nation merger to survive. But twenty-five is smaller and thus more manageable than the present American fifty. To begin the process with monetary union would produce quick benefits from a source too mysterious to produce much public resistance. Nobody could think of a war started by a monetary dispute.
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| Justice Blackmun |
Of course the Europeans would expect to cope with the difficulties of speaking many languages. The American colonies mostly shared a single language. Even their enemy spoke English. In this particular, the Europeans seem to have underestimated the language-induced difficulties of maintaining a common understanding of what their Constitution meant to people. Indeed in American Judicial disputes about Original Intent, we repeatedly encounter the tenacity of people to believe a document says what they want it to say. Staying within a single English language, the inflammatory evolution of U.S. Supreme Court interpretations often turns on subtle differences in meaning of simple words, since vigorous legal advocates think they are paid to marshall every argument weak or strong. Penumbras and emanations from the word "Privacy" in Roe v. Wade force our judges to decide whether the inclusion of abortion within a right of privacy is simply too far from common understanding of English, in a double sense. Both in the discovery of a right to privacy within a document which does not use the word, and in the inclusion of abortion within that, Justice Blackmun clearly overestimated the capacity of citizens to understand what they did not want to understand. How much more surely would he have overestimated public willingness to grasp his meaning in two-step translations from a foreign language. Since this famous decision is destined to stand or fall, depending on public tolerance for such wordplay, having almost every citizen confidently understanding English is a decided advantage in achieving consensus about its wisdom. It seems almost unnecessary to point out how many European languages are derived from Latin or German, and how seldom such migrations of meaning have sharpened the precision of the originals.
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| Auto-de-fe |
By contrast with important language confusions, "hatreds between nations" are often mentioned as an obstacle to unification but seem largely bogus. Argot and slang are commonly invented to conceal the opinions of a minority group. Over thousands of years, this purpose of "jiving" a secret code among conspirators has been perfected exquisitely. It's hard to overcome, easy to teach children. But the memory of actual wars really dies out rather quickly, not least because atrocities are so hideous, mankind wants to forget them. I was seventy years old before someone told me I had ancestors burned at the stake. By whom? By someone who has also been dead for four hundred years, not likely to seem threatening. Over the fifty years since the Second World War, I have run into former German and Japanese soldiers; they now seem pretty benign. One American former prisoner of war was forced to stand at attention while his Japanese captor pulled out his gold teeth with pliers; he told this story with a faint smile. It is one of the benevolences of biology that we are born without memories, and a second is the impossibility of remembering the feeling of pain without first dramatizing the experience for future reference. Once actual onlookers stop grinding the grievance axe, it should be possible to get on with devising a European constitution, provided it contains the equivalent of our First Amendment.
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| Helen of Troy |
It's an important point for a proposal unifying two dozen different priesthoods and a number of nations who are wholly defined by the remit of a single religion. A workable constitution for them must contain a strict separation of church and state, because myths, epic poems, and traditions are synthetic, quite different from actual experiences. Helen of Troy may or may not have had a face that launched a thousand ships, but Homer's Iliad certainly glorified more hatred than she did; who can say whether the poem portrays the truth? That's the war side of things; the Odyssey is powerful in evoking the special virtues leading to prosperous nationhood. Because you can't argue or reason with epic myth, it is their many glorifications and condemnations which supply endurance to patriotic myths, easily reducing macroeconomists of the European Central Bank to tears of frustration. Because the best of these epics stand alone as powerful literature, their propaganda strength is difficult to deconstruct with mere logic. Quoting Arnold Toynbee, it is not weaknesses, but overextension of their finest qualities, which usually brings them down.
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| Euro Zone |
While true grievances seldom pose obstacles of their own, they do often misdirect political leadership from what is best for their countries. European Unification had a primary goal of eliminating future wars, but decided the peace goal was achievable only by indirection, and began first with monetary tools for prosperity. That takes a long time; America was still fumbling monetarily until the end of the Civil War. So while starting with small victories seems a plausible route to big victories, in fact it drains much of the idealism out of revolutions. Even worse, it here made the financial disaster of the Euro symbolic of hazards on the road to Prosperity, which itself seems merely preliminary to achieving a brief Peace. At least when you struggle for national security, every day you survive is another victory. There is no room in past struggles for Americans to gloat over their superior approach to permanent Union. But a defeat is a defeat, and the Euro mess is a big defeat.
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| Congressman Ron Paul |
From a commentator's perspective, currency matters are difficult to understand and explain. For contrast, the Battle of Normandy is thrilling and awe-inspiring; every death is the death of a hero. But rises in productivity, the risk implications of volatility, even the way the value of bonds goes down while their interest rate rises, seem hopelessly confusing to a beginner. Worse still, there exists real uncertainty. We now have currency which has no backing in precious metals, and is really just a book entry. That's useful for transactions, less certainly useful for a storehouse of value. Mr. Ron Paul is running for President of the United States challenging the whole Federal Reserve concept, and a possibility must be admitted that he has a grain of truth in his speeches. We trust our bankers to devise a workable system of exchange without gold and silver, and readily admit that Mr. Bernanke knows more than we do. But. The world economy nearly collapsed utterly a few years ago, and you know, Mr. Ron Paul might just have a valid point or two. There has not yet emerged any fit environment for enjoying a monetary Crusade to a World Without War. For striking contrast, go to any Civil War movie and watch those teen aged soldier boys charge up the hill, ready to die for the Union.
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