You Say You Want a Constitution

Many people who champion liberal, progressive causes seem to believe that a written constitution is something we should call for.

But while one may hope that a written constitution will spell out exactly what from a progressive perspective should be carried out or forbidden, and enshrine the highest commitment to ensure that no violation will be permitted, there is no guarantee that this will happen in practice. A written constitution could just as easily codify ideas and practices that are ambiguous or potentially undesirable.

What if we have a written constitution that rules out any organised action by workers to challenge their employers; forbids interracial or gay marriage; grants immunity from prosecution to anyone who can pay a large fee to the state; or gives one supreme leader the unquestionable power to order the execution of any individual that leader declares to be a dangerous enemy?

Who is to say a written constitution will encapsulate our aspirations as opposed to what authoritarians and plutocrats want?

It is often suggested that the task of drafting a written constitution should be given to some form of citizens’ assembly, whereby a demographically representative group of randomly selected citizens will deliberate and formulate what should be included in a written constitution. Yet even if such a process could be secured, with impartial facilitation and expert guidance, and a set of proposals were to emerge, who is to be given the authority to deem the proposals sound and adopt the draft constitution formally?

Should the existing legislature make the decision? If that is done on the basis of a simple majority, the provisions can in future be overturned by a simple majority; in which case, the written constitution would be as readily amendable as any ordinary law. Or, one can insist that the adoption of the constitution (and any future revision) must be by a special majority (e.g., two thirds, four fifths) in the legislature, but either that is uniquely binding (in which case, the question arises as to why this special majority threshold should be respected; and to argue that it is set out in the draft constitution would simply be begging the question); if not, the very clause relating to special majority can itself be made void by the legislature repealing it with a simple majority.

Another possibility would be to put the draft constitution to a referendum. But we have seen how without proper safeguards, the holding of a referendum simply opens the door to mass deception, law-breaking that corrupts the voting process, and on-going distortion of what option is allegedly selected when none of the options is ever clearly explained in a binding manner. In the absence of due process and adequate enforcement, data manipulators and authoritarian propagandists can ‘win’ a referendum for the most oppressive constitution, and proclaim that all citizens must accept it as legitimate.

Finally, even if a seemingly sensible constitution is adopted, we have the issue of interpretation and revision to deal with. Laws are subject to interpretations that are tested in court and can be altered by the legislature on a simple majority. But any clause in a written constitution is accorded a higher status, and instead of any dissatisfaction with the law being resolved by the elected members of the legislature, contention over what a given provision requires of us is to be settled by the most senior court of the land. In practice, as the experience of the US has shown, when it comes to hotly disputed issues, more often than not, the judges on the supreme court will vote in line with the political party of the President who put them on the court in the first place (which could have happened ten, twenty or more years ago). So, instead of key issues (such as gun control, corporate involvement in elections, abortion, etc) being determined by the current elected representatives of the people, they will be decided mostly by people appointed on a partisan basis by politicians who are very likely no longer in office.

This is not to say we should not have a written constitution. But before we invite a government led by someone like Boris Johnson or any other self-absorbed demagogue to produce one, we had better get some satisfactory answers to the problems flagged up above.