Balance Act: Constitutionalism’s Challenge

…I felt like I needed a break from economic sabotage as my theme du jour and so wanted to think a bit on the concept of constitutionalism. “But Nob!” people (*coughJamesHcoughcough*) might say, “You’re such a functionalist on constitutions! Surely constitutionalism doesn’t interest you much!”

Which in a sense is true, I’m certainly more functionalist in viewing matters of law and policy than many many of OT’s commentariat or front pagers who seem, on the whole to lean toward formalism. On the other hand, when I was a wee little undergrad with optimistic dreams of making the world greater with my intellect, I vacillated between international relations and comparative government. During that time I spent a fair amount of time thinking about comparative constitutional design.

Constitutions are an interesting thing. Despite the ubiquity of participatory liberal democracy in the OECD, none of the states in that group really share much in the way of constitutional features (This, of course, is a boon for political science departments). Everything ranging from how “basic rights” are defined, to the methods of choosing representatives, chief executives, head of state, to the hurdles involved with amendment.

In terms of factors most important for the long-term viability of a liberal constitutional order are two-fold: 1) constitutional stability/reverence, 2) adaptability to changing political realities.

Constitutional scholars note that the age of a constitution (what Madison refers to as “veneration” that comes from time in Federalist 49) is positively correlated with constitutional stability and respect. We’re also told that the length of a written constitution has a negative correlation. Evidently putting too much content into a constitution (and defining sub-headings) makes for poor constitutional construction.

Constitutional adaptability or flexibility can be defined several ways. One way is based upon the adaptability of the legal system in place to enforce it. The distinction here is between civil law traditions and common law. The former relies upon extensively codified law, while the latter is certainly more amenable to interpretation and precedent by judiciary. Modern legal systems generally are slowly hybridizing, with codified legal systems adopting judicial precedent as a form of guidance, and common law systems dipping into codes when necessary. On the whole, a common law, precedent based judiciary is more amenable to constitutional adaptability of a written constitution.

The second method of adaptability comes in the mutability of a constitution, that is the ease in which a constitution can be amended. These range from simple majority requirements in plebiscites (Ireland), to super majority requirements in legislature (Germany) to more complicated processes that include regional governments and/or a combination of plebiscite and legislative approval (US).

The US for example, has the world’s oldest written constitution, a relatively short document at about 7,800 words, somewhat limited scope, and a difficult (convoluted even) amendment process. Whereas the EU draft constitution came in at about 400 pages and 68,000 words, leading to a lot of (understandable) hostility.

The size of an entity also has important implications for a constitution’s viability. Had the US been built on a civil law constitution (like say the Second French Republic’s), it’s likely the document would either have been discarded or extensively amended by now. Large constitutional states tend to require more flexibility and adaptability, and arguably the greatest feature allowing for the US Constitution’s longevity is its common law system.

The question, I think, that proponents of constitutionalism in the US system might need to consider, however, is that there is a limit approaching to the extent of flexibility the US judicial system can enforce. The adoption of much different forms of electronic communications and surveillance techniques, I think necessitate that not only do we more clearly define certain rights, but also put in more specific limitations on government power. A right of data privacy and ownership needs to be enshrined, given the difficulty of convincing the judiciary that such a thing exists with a third party rule.

Further, the US Constitution was written with a system of 13 states in mind. The process today with 50 states is incredibly unwieldy. In many ways the US constitutional order is one that’s out of balance. A useful corrective might be a simplified and more feasible amendment process to add more national influence to the process of determining constitutional amenability.

To prevent say removing basic rights through amendment, you could even insert an eternity clause into the Constitution like the German Basic Laws to protect the Bill of Rights and the 14th. Either way, the balance needs to be examined more seriously.