Wednesday, March 1, 2017

The Myth of the Cure-All Constitution

Sir Winston Churchill once said that the two best constitutions in the world were the Constitution of the United States of America and the (unwritten) constitution of the United Kingdom of Great Britain and Northern Ireland of which, in view, the British constitution was better. Later on, however, Churchill began to reverse himself and think that, perhaps, the American version was the better of the two. Certainly, in the United States, the conservatives have been seen as the more ardent defenders of the U.S. Constitution yet to any casual viewer it would seem that the U.S. Constitution is that thing which only the party out of power ever seems to care about. So, the Democrats howled about the “Patriot Act” being grossly unconstitutional when Republican President Bush signed it into law but when it was the Democrat President Obama in power, it was the Republicans who complained about how unconstitutional the expansion of executive power was. Now, with President Trump in office, it is again the Democrats who are complaining about executive overreach and who claim to be standing up in defense of the U.S. Constitution.

I have talked before about constitutions not being the absolute, greatest thing ever and that always causes some push-back. Some constitutions are certainly better than others and, of course, any constitution can only have any merit at all to the extent that it is adhered to. There was never a law or act of parliament in Britain that ever said there shall be a person called the Prime Minister who shall be appointed by the monarch to run the country from the majority party of the House of Commons. As far as the letter of the law goes in Britain, executive power is held by the Queen and that is the end of it. We all know it doesn’t work that way but it is hardly more of a twist on the British constitution which is unwritten than it is for the U.S. Supreme Court to saw that the American constitution, which is written in plain English, commands that abortion be legal throughout the land because of a line about everyone being entitled to the right to privacy. The bottom line is that no code can cover all contingencies. No constitution, no matter how brilliant, can provide an answer for every issue for all time. Constitutions are the inventions of people and there are some things people simply take for granted.

The U.S. Constitution, as I am sure most are aware, says nothing about secession. Later proponents of secession would say that since the states joined the union voluntarily, it was inherent that they could leave voluntarily. President Lincoln and a million Yankee bayonets disagreed. However, most are probably not aware that the Confederate constitution, likewise, said nothing about secession. Again, quite purposely in their time, they believed that to state that secession was legal was unnecessary because the very nature of the Confederacy and how it was formed meant that the legality of secession was a given. Not only does a constitution only have worth if it means what it says and what it says is adhered to, sometimes it is just as important in what it does not say in terms of showing us the limitations of constitutional government. Some of the same men who were responsible for the U.S. Constitution and the First Amendment freedom of speech were also responsible for the 1798 Sedition Act which made it a crime to criticize the government.

In the United Kingdom, the so-called Supreme Court recently said that the referendum on Britain leaving the European Union was, effectively, unconstitutional and that only an act of Parliament could take Britain out of the EU since, according to “parliamentary sovereignty” is the cornerstone of the current British constitution. However, the fact that Parliament was subject to the dictates of the European Union in the first place rather flies in the face of the idea of parliamentary sovereignty to begin with. So, Parliament is supposed to represent the British people, yet the British people need not have been consulted as more of the power of their elected champions was ceded to Brussels nor do they have the power to take it back unless the same people who voted to give it away in the first place think it’s a ‘jolly good’ idea. Not to mention the fact that the whole case was about using the royal prerogative which, it simply goes without saying, is exercised by the Prime Minister and not the actual monarch.

Consider the arguments over whether it is constitutional for President Trump to suspend, temporarily, travel and immigration from seven particular Muslim-majority countries. The constitution actually says nothing about who should or should not be admitted to the territory of the United States, however, the same people who enacted it also passed the first immigration law in American history, the Naturalization Act of 1790, restricted naturalization to, “free White persons of good character”. It is, I think, therefore safe to say that none of the “Founding Fathers” of America ever imagined that one day their successors would be arguing for Arab or African Muslims to have an inherent right to immigrate to the United States and become citizens. Along with the aforementioned Sedition Act, in 1798 Congress also passed the Alien Friends Act and the Alien Enemy Act which allowed for the imprisonment and deportation of non-citizens which the government deemed hostile to the United States. At the time, this was aimed at French revolutionaries but it demonstrates quite clearly that the men who wrote the U.S. Constitution did not think everyone or anyone in the world was entitled to come to America and never be deported.

There are, of course, countries which are considerably older than the United States, countries which have no “Founding Fathers” for the simple reason that their countries were never really founded by anyone but simply grew up out of the mists of ancient history. No one can really say when the Kingdom of Sweden, for example, first came to exist. The closest thing to a founder that Sweden has is King Eric the Victorious, a Viking chieftain who lived from sometime around 945 to sometime around 995. It is debatable whether he was really the first King of Sweden but he is probably the nearest thing we have. King Eric was a pagan worshipper of the Norse pantheon but Christianity had already come to the country a hundred years before at the hands of Saint Ansgar, the Frankish Archbishop of Hamburg and Bremen. Could such men have ever anticipated Sweden being populated by Muslims from east Africa? I doubt Eric the Victorious would have known whether Africa was a place or some new thing you topped with a little lingonberry jam. They could hardly have passed down a law on how to deal with such an eventuality concerning people of whom they were almost completely ignorant. I am sure he would take for granted that his descendants would not need to be told to keep Sweden for the Swedish people and not Somalis, Iraqis or Afghans.

The Kingdom of Sweden is much older than the United States but, it may surprise some, is constitutionally speaking extremely younger. The U.S. Constitution came into effect in 1789 whereas the Swedish constitution consists of four “Fundamental Laws”, the oldest of which dates only to 1810 (the Act of Succession concerning the monarchy) and the other three being enacted in only the last century, 1949, 1974 and 1991! Not a few have voiced the opinion that, because changes in Britain have been so rapid over the years, that the United States today is actually governed more like the British in the time of King George III than the modern United Kingdom is. In the time of King George III, but only just, the law still meant what it said, whereas today everyone in British law or politics knows that what the law says and how things actually work are two very different things. So, yes, technically the Queen must give Royal Assent to a bill in order for it to become law and should the Queen refuse this would veto such a bill. However, everyone knows that Royal Assent is today taken for granted, it is just assumed the Queen assents to everything passed by Parliament and no monarch has vetoed a bill since Queen Anne did so in 1708 concerning a bill to rearm the Scottish militia.

Would things be more clear if the British constitution was codified as in the United States? It seems doubtful. In the United States, the Constitution no longer means what it says but rather it means whatever the nine appointed Supreme Court Justices say that it means. If you can find a requirement for homosexuals “marriage” in the U.S. Constitution, you can find anything you like in it. Nor is this an entirely new concept. A foreign friend of mine was recently reading up on the American Civil War, secession, the abolition of slavery and, having also studied the U.S. Constitution, asked me (as the American who should know) how suppressing secession, yet allowing for the secession of West Virginia or the abolition of slavery and so on were constitutional under the circumstances in which these things were done. If you know the facts of the matter this would seem quite a puzzle of contradiction. Allowing myself a (feigned) condescending chuckle at this naïve immigrant from the Old World, I informed him that it works because of something that all liberal, enlightened regimes around the world make frequent use of, something which I call the “Machiavelli Rule”. That is to say, as Machiavelli did, “the ends justify the means” or, more bluntly, might makes right.

I don’t care how great your constitution is, I don’t care how enlightened and liberal you may be, the history of human experience shows that even the most liberal states will, at the time of the greatest stress when their values would be most needed, sacrifice their lofty ideals and resort to brute force and the style of absolutism. Once the progressive Democrat President Wilson took the United States into World War I a number of characters, generally socialists or the occasional anarchist such as a lesbian doctor who was for birth control and abortion before both were legal, were arrested for opposing the war against the Imperial Germany. Another progressive Democrat, Franklin Roosevelt, had U.S. citizens of German, Italian or Japanese ancestry arrested with no “due process” during World War II whether they had spoken out against the war or not. More recently the also very progressive liberal Democrat President Obama was pleased to give U.S. citizenship and the rights and privileges included therein to Muslim immigrants but was also just as pleased to drop a Hellfire missile on them regardless of those rights and privileges. One can agree or disagree with any of these actions, think they were justified or unjustified but one would be hard pressed to say any were strictly constitutional.

There is no need to relate the whole history of liberal hypocrisy here (I have done that often enough) but the point is that even with a constitution, even with the best of constitutions, proven to be the most “successful”, none can account for every eventuality. None can work as designed if they are not upheld and adhered to and none are unchangeable. It all comes down, in the end, to the culture and values of the people in question. It comes down to what they support and what they will oppose or, at least, what they are willing to accept. They may be handed down with the most liberal and enlightened of intentions, to be simple and straightforward but, in the end, no matter how liberal the regime professes to be, when push comes to shove, they are just as autocratic as any absolute monarch. Often, in fact, even more so since, as Alexander Hamilton, one of America’s “Founding Fathers” famously wrote, “For it is a truth, which the experience of all ages has attested, that the people are commonly most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion.”


  1. History repeats itself.

    For the first time, I'm now thinking to compare this to the movie The Founder--or rather, to the history dramatized in that film. Think of the contracts between the McDonald brothers and Ray Kroc as "constitutions" and you'll see what I mean.

  2. "because of a line about everyone being entitled to the right to privacy"

    It's worse than that - it's all from the two word phrase "due process" in the 14th amendment that was supposed to ensure basic fairness for black people

  3. If Trump had the courage to declare a decision of the SCOTUS Unconstitutional or a Law Unconstitutional, there might be a (slight) chance that we could restore the equal and separate powers of the three branches.

    Our govt is not separate and equal if only the SCOTUS has the power to declare Unconstitutional the acts of the other two branches.

    Trump could declare a SCOTUS decision Unconstitutional and then send out Jeff Sessions to explain that what Trump did was to restore the Constitution to the people (for whom it was written) for future elections would decide how the Constitution was to be interpreted and applied because the people would elect national politicians who would have to give reasons for their support or rejection of specific constitutional powers, rights, etc.

    Of course that would never be done in America because the establishments truly does think we are deplorable.

    1. I believe Congress can pass a law taking any particular issue out of the purview of the Supreme Court, rendering its decisions on that particular issue null and void. None the less as Clarence Thomas wrote last fall in response to a decision made by the Ginsburg side of the court "why don't you just stop pretending that your decisions are based on the Constitution".

  4. "the U.S. Supreme Court to saw that the American constitution, which is written in plain English, commands that abortion be legal throughout the land because of a line about everyone being entitled to the right to privacy."

    There is no right to privacy mentioned in the Constitution either.

    A "right to privacy" was construed from "emanations from the penumbra" of other rights mentioned in the Constitution.

    Basically, privacy was claimed to be "in the spirit" of other rights that are explicitly mentioned, even though privacy itself is not.

    Now, the Ninth Amendment in the Bill of Rights does say "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" and I suppose privacy might be one of those "other" non-enumerated rights being alluded to. The point of the ninth amendment is that it is impossible to list or account for all rights comprehensively, but that doesn't mean the people don't have them under the Constitution or Nature.

    But abortion was a double leap. There is no "line about privacy." First privacy was inferred, then abortion was inferred under that.

  5. Madmonarchist, I'm curious, as I don't recall you ever specifically posting about it, but do you prefer Absolute or constitutional monarchies? Believe it or not Russia is the first country that comes to mind when I think of monarchy (I know most people probably think of Britain). Even though Putin is doing some good things, I would love to see a Romanov having absolute reign over Russia again, that is if the Romanovs haven't been infected by the virus of liberal modernity.

    1. My preference is for traditional absolute (but not arbitrary) monarchies, however I prefer a constitutional monarchy to no monarchy at all and you also have to take into consideration the country in question. Britain, for example, could probably never be an absolute monarchy. Russia, on the other hand, is hard for me to imagine as anything other than an absolute monarchy.


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