A Little Legalese
The Meaning of a Constitution
Written by Lloenflys
“The people made the Constitution, and the people can unmake it. It is the creature of their own will, and lives only by their will.” – Chief Justice John Marshall, Cohens v. Virginia (1821).
It’s no secret that Americans tend to be somewhat obsessed with our constitution. If you ever happen to be in Washington, D.C. on September 17 of any given year, you are likely to find a great many opportunities to go to events surrounding the constitution. Undoubtedly you will find speakers offering great tributes to the “mighty wisdom” and “genius” of the Founding Fathers (capital F’s not optional for those wonderful men!), the great foresight and tremendous achievement of this most awe-inspiring legal document of modern times. There will be people wearing period dress to look like James Madison (Father of the Constitution) and Alexander Hamilton. September 17, you see, is National Constitution Day … and it brings out the constitutional fetishists in force.
On the other side of the argument are those who see in the constitution a crude kludge of a document, designed less for long-term wisdom and more for short-term conflict resolution, a document that bent over backwards to unite slave-holding territories with free territories, urban manufacturing centers with rural farm states, and small homogenous communities with massive, heavily populated areas. Even constitutional opponents in the United States, however, tend to frame their arguments against the constitution in terms of interpreting the constitution differently than it has been, or amending the constitution to protect rights. The notion of having a constitution, to the contrary, rarely if ever comes up at all.
Fifty years ago this fact was looked at with bemusement by most our friends across the pond in the United Kingdom. Unlike the United States, the United Kingdom did not have then, and still does not have now, a written constitution. Instead, a series of understandings, common practices, agreements, and customs determine many critically important functions in the United Kingdom’s systems of law and government. Over time, however, even the United Kingdom has begun to move in the direction of a written constitution – and indeed, after recent boundary-pushing on the part of the Government in the runup to the 2019 General Election (amongst other things) the arguments for a written constitution in the United Kingdom have grown louder.
What, then, is a constitution? Why does the United States political tradition place so much value in one, and why – after nearly 1000 years of government since the Battle of Hastings and the Norman Conquest that ushered in the start of the “modern” era of English government – have the people of the United Kingdom begun to push for one as well?
The answer is both quite simple and, at the same time, deeply complex. At the base level, a constitution serves as a clear roadmap for governance. It establishes the rules by which all major decisions in a country, an organization, or even a NationStates region such as Europeia operates. Some such structure is essential for an organization of whatever size to operate at all – even in the wildlands of Britain, operating as it does without a constitution, there is a baseline of hundreds of years of tradition, practice, and statutory law to fall back on. A legal structure, therefore, at least exists even if it is unwritten. The reason why should be obvious – failure to establish the rules in advance would mean something akin to chaos ruling. No one would know who won and who lost any political argument. There would be no clear understanding of how power was transferred from the people to leadership. There would be nothing to establish legitimacy, whatsoever. Constitutions, then, are necessary for the very basic reason that they set the ground rules – and while we may argue about the interpretation of the wording in a constitution, once established that constitution at least frames the basic parameters of any political arguments that will be held.
More importantly, however, is the symbolism that comes from the constitution as a document. Even if it isn’t expressly stated, the choices that are made when a constitution is drafted – and which make their way into the structures that are adopted for government – say something meaningful about the organization, region, or nation that adopts them. The United States Constitution, for instance, establishes clearly a respect for local government, preserving as it does a dual-sovereign system giving state governments a great deal of power (even if that power has eroded over time). It establishes both a desire to balance the power of government by separating it into distinct branches, while also establishing in the care taken to write the rules for the legislature its preference for that branch. It even explicitly states that the country must have a republican form of government.
This symbolism is meaningful, and except perhaps in the most anodyne of environments it is almost inevitable that some element of institutional culture and meaning will necessarily find its way into a document designed to govern that institution. A constitution that says nothing whatsoever about the organization it governs is probably a bad constitution.
This feature of a constitution also explains why it is so important to so many people to work at perfecting the flaws in a constitution. It goes beyond merely correcting errors. The United States Constitution could not live up to its promise for its first hundred years of existence because the original sin of the document – slavery – was hard-wired into the document in numerous places. Even though the constitution establishes support for concepts of liberty and justice right in the preamble – and in numerous places elsewhere in the document – such concepts were impossible to fulfill while slavery was accepted by that same document, even if the word itself was never used.
Europeia, of course, does not have to deal with an issue of quite such moral heft. Nonetheless, the symbolism inherent in a constitution still matters, even here. What is our culture in Europeia? We are open and welcoming to all comers, so long as they are truthful. We seek to be inclusive – there are no gendered titles or provisions in the Europeian constitution, something that is a very conscious choice. The principles of democracy are clearly established – this is not a monarchy or a dictatorship, and the will of the people rules.
Ultimately, constitutions are important because they serve as the primary conduit by which the people transfer away their sovereignty. Such an instrument should not be handled lightly. While fetishizing the constitution is problematic (after all, a document which treated slaves as 3/5 of a person for census purposes doesn’t deserve fetishization), being proud of a constitution, perfecting it to the extent possible, is both justifiable and appropriate. Thankfully for legal nerds like myself, this is a never-ending process, one that requires us to continually look at the document, at society, and at ourselves and ask whether things are as good as they should be. The answer, almost inevitably, will be no – but in this task of examination we can determine where next we need to go in the ongoing quest for perfection.
