The Constitution Says…

Posted: September 14, 2013 in Society
Tags: , , , , , , ,

I’ve never heard anybody making an authority argument based on the Constitution in Belgium. Laws in general only have value within the court of law. Once we leave the fancy buildings and black dresses behind, there is no argumentative power in the laws anymore. At best, they might be a vague guide or indicator. This seems very different from what I read and hear on American TV shows and blogs. Especially this one segment of law, the Constitution, can be an extremely powerful ally in any kind of discussion.

In a very long discussion on Political Pipeline there have been multiple topics in which I and another reader of the blog, Derek, had totally opposing views. The last one is on the function of the Constitution. I find his writing often a bit confusing and told him his views on the Constitution remain a mystery to me. His reply (and clarification?) seems so problematic that I want to take some time to show what is wrong with it. Here is his reply:

“I have explained the need for a constitution sufficiently. It is the blueprint for what a government can and cannot do. Its purpose is to protect minorities and the individual against the majority (or elites) who think they can manage everything better than the individual. Elites find no use for a constitution because it is an obstacle to prevent them from imposing their “superior” views and laws on others. Sharia law is a perfect example of an Islamic majority imposing their will and laws (despite the inequality of laws) on others with “no constitutional brakes” to prevent it.

The US constitution has changed, for the good, and it has an avenue for further modification: voting. The premise behind a constitution is again that mankind is flawed and that absolute power corrupts absolutely. It is always best when power is diffused and shared and although a constitution cannot guarantee that, it makes a genuine effort to have three separate and unique branches of government and that laws passed are subject to the scrutiny (and possibly rejection) by the constitution.

Raising the validity of a constitution is not a “destructive argument” but rather a liberating one. A constitution is not a “law of nature” although many argue that the constitution gives God-given rights that the government cannot take or vote away. A constitution is man-made, and therefore subject to error and some modifications are necessary over time.” (I added the bold)

This long quote shows nicely what I don’t like about his reasoning and is exemplary for the previous discussion we’ve had.

There are two opposing ideas in this text. At first, there is the idea of the Constitution as something set. It’s the blueprint that fixes the borders wherein politics have to operate. It are the God-given rights that the government cannot take or vote away. This is a very strong image of the Constitution. You really can’t get any more absolute than God! Maybe the Constituion isn’t the word straight from God. At this point it doesn’t even matter that much. According to these views, the Constitution is an autonomous being, ready to independently judge every human-made law that comes by. We can leave God aside and grant the text a mild interpretation. Even then, it’s still very clear that the Constitution is something fixed that creates from the outside the limits of the sphere in which politics can work.

Yet, there is another and totally different definition in here where the Constitution is something man-made, not a law of nature, nor the word of God. As a product of flawed beings, we can’t take the Constitution as a perfect guide. We need to constantly re-think and improve it. How can we make these necessary changes? That’s obvious for Derek, by voting, of course! We are still a democracy!  In this way, the Constitution is a product of politics.

I wouldn’t mind a daring position that tries to combine the construction by humans of the Constitution (relativism) with a more absolute status. Personally, I see great opportunities in Latour’s work in which he is a constructivist, realist, anti-idealist and always tries to stick as close as possible to empirical studies. A comparative study between Belgium and the USA of how the Constitution is supported by and connect to lots of organizations, buildings, people, … might shed some light on why we hardly use it as an authority argument and Americans do. We might quickly refer to some psychological stuff, but that’s just taking the easy and quick way out. A simple, almost naive, empirical study of the ordinary should be taken as a serious source of information that can help us in searching a better definition of what the Constitution is and does. Unfortunately, Derek is combining two opposing views and doesn’t manage to bring them in harmony. He manages to jump from something untouchable and unchangeable to something in need of modification in only two sentences. All I ask for now is: Let’s drop the divine aspects of the Constitution.

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