The Great Conversation: Constitution

By Matt McKeown

Society is governed by laws. What governs the laws themselves?

When we speak of constitutions here in the US, we tend to think of the Constitution. Naturally the concept of a constitution is far older than this country, and may well be older than writing itself. Most if not all societies are defined to some degree by an idealized structure governing the behavior of their members. At root, this is all a constitution is: what gives the law, written or unwritten, its force and character.

In that sense, even the Constitution of the United States is not the complete constitution of the United States. Many other principles shape American society, not only culturally but at a legal level. One of the most important ideas in law is the principle of stare decisis, or the binding power of precedent in judicial proceedings. This is arguably a good thing: throwing precedent to the wind would mean seeking little to no consistency in how laws are applied, which opens the justice system to a wide range of abuses that might nevertheless be technically legal. But of course the precedents themselves come into being over the course of history, as cases are in fact tried, rather than being decided in advance like amendments are.

One role of a constitution is to unite the people, especially in multinational states. We often use “state” and “nation” interchangeably, but the latter more properly refers to an ethnicity, coming ultimately from the Latin nāscī “to be born.” The US, Switzerland, and India are all modern instances of multinational societies, while Austria-Hungary and the thirteenth-century Mongol Empire are good historical examples. Ideally, the shared forms of law allow different people groups to live together peacefully; obviously, things do not always work out ideally. Nationalism, an ideology that promotes self-determination defined by ethnicity, has led to the conquest or collapse of a number of states. The unification of Italy in the late nineteenth century was effected through a series of nationalistic wars, while the breakup of Yugoslavia in the late twentieth had similar causes.

A constitution is generally contrasted with autocracy, i.e., the entirely arbitrary rule of a person (or group) unchecked by law or custom. Autocracies themselves, if they become traditional, can become a kind of constitution. In so doing, they usually lose the arbitrariness that they originally showed; humans are creatures of habit, in government as in anything else. The Byzantine Empire was an absolute monarchy with few if any legal checks on the emperor’s authority, but the force of its own history—and the mercurial relationships among the scepter, the church, and the army—meant that certain norms were observed in practice by most emperors.

A good constitution must be enough like the institutions and the people to be relevant to the working of the society, but it should also have a capacity to make us better if we live according to its provisions.

Constitutions can also degrade, depending on how the people in power administer them. In the Holy Roman Empire during the Middle Ages, there was significant strife between the Guelf and Ghibelline parties, a conflict which forms much of the background to the works of Dante. The former fought for constitutional government and the privileges of the Papacy, while the latter were more cavalier—literally as well as metaphorically, since the Ghibellines were the party of the nobility. They tended to ride roughshod over laws that inconvenienced them, and often attempted, sometimes successfully, to interfere with the internal affairs of Catholic Church. Some Ghibelline thinkers argued for a theory of divine right that remained popular (in some circles) right down to the close of the eighteenth century, empowering monarchs to disregard constitutional norms on their own whim.

The structure set forth by a constitution, written or unwritten, typically consists in a number of offices with certain rights and powers. Various authority figures spring to mind here: legislators, judges, law enforcement, bureaucrats, military leaders. However, the most basic of these offices is the citizen. We tend to think of citizenry as synonymous with populace, but this is a late and limited development. Most societies have had a third category of people alongside leaders and citizens: subjects. Subjects enjoy fewer rights and privileges than citizens—sometimes none. There are many kinds of subjects; they may be a subjugated ethnicity, slaves, resident aliens, or nomadic groups that maintain their own society. In monarchies, the populace in general tend to be spoken of as subjects, while this is rare in democracies. Nonetheless, most democracies have some group of people—even if it is nobody but prisoners—for whom subjection is a reality, regardless of what it is called.

Suggested reading:
Plato, The Statesman
The “Norman Anonymous,” Yorkish Tractates
Jean-Jacques Rousseau, The Social Contract
Pierre-Joseph Proudhon, General Idea of the Revolution in the Nineteenth Century
Elizabeth Cady Stanton, Declaration of Sentiments
C. Northcote Parkinson, The Evolution of Political Thought


If you liked this piece, you may also enjoy this author profile of Jane Austen, this “Great Conversation” post about the idea of immortality, or this reflection on the educational ideas of John Adams.

Published on 14th January, 2021.

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