In this section, you will learn:
- How a constitution can establish the framework for a government.
- Constitutions are broad statements of principle, although some are very specific.
- Constitutions often guarantee civil rights and civil liberties.
The majority of the world’s governments are some kind of republic. Republics often are established via constitutions. In fact, only three states—the United Kingdom, New Zealand, and Israel—have no formal written constitution. But even those states have collections of documents that function, more or less, as constitutions. Every U.S. state has a constitution of its own. The oldest constitution in the world could be that of the tiny Republic of San Marino (written in 1600); it could be that of the state of Massachusetts (1780, but the oldest in continuous use). India has the longest constitution, more than 110,000 words; the United States has the shortest, at 4,543 words.That’s according to the U.S. Government Archives; many sources list it at around 7,000.http://www.archives.gov/exhibits/charters/constitution_q_and_a.html#cite More than 100 states around the world have rewritten or written new constitutions in the last decade.
As concise and philosophic as the U.S. Constitution is, U.S. state constitutions are not. Most are too long and too specific; scholars say what’s in them would be better off in laws passed by state legislatures and hence easier to amend. Many states have had multiple constitutions. Vermont’s is the shortest at 8,295 words long. Alabama, now on its sixth constitution, weighs in at 357,157 words long. Generally, there’s too much detail. For example, the constitution of the state of Georgia, now on its 10th version, has 11 articles, beginning with a Bill of Rights and ending with “Miscellaneous Provisions.” It’s 113 pages long, which is actually on the short side for U.S. State Constitutions. While the U.S. Constitution left the details up to Congress and the citizens, the Georgia State Constitution tells lawmakers, in Article VII, Taxation and Finance, how to treat mobile homes, cars and stands of timber for tax purposes. Now those are actually very important items for the conduct of state government. But it’s an open question as to whether they belong in a constitution, or if they should just be matters of statute law. If nothing else, constitutions are harder to change than are regular laws, and that often ties the hands of state legislatures that may be forced to consider different policy choices.
A constitution is a statement of general principles, the blueprint, the foundation of a government. A constitution establishes a government and its rule, usually with an eye to defining citizens rights and limiting the power of government. It establishes the structure of the state. A properly adopted constitution is the supreme law of the land, and political debate often begins and ends with the question of constitutionality. Constitutions establish governments, and what they can and can’t do. A constitution can set the standards for elections, who can run for office and who can vote; it can set terms of office for elected officials; it can prescribe the rights and responsibilities of people in office.
A nation governed by impartial law is a western invention that has slowly spread around the globe, even though it isn’t always applied equally at all times and in all places. What that means is that the law doesn’t play favorites. It is to be applied equally to everybody. Law decides what is permitted and what is not. Everyone is expected to obey. Law is there to settle disputes, protect human rights, and to proscribe and prescribe various behaviors.
An alternative to constitutional law could be law that derives from custom and tradition, from clan and tribe, or from religious authority. Traditional societies in Africa and Asia created order by internal regulation—people got together and dealt with issues as they arose. This works in part because these decisions are based on ongoing relationships. Under this scenario, people are known to each other, and understand that they must get along tomorrow as well as today.
Constitutions (and the laws that derive from them) may be better at dealing with situations where everybody doesn’t know each other. They establish impartiality and predictability, and set the state as the sole legal authority. This can pose problems as states become more diverse, bringing together people whose legal traditions are different. For instance, an immigrant from a conservative Moslem state may have been used to the structure of Sharia (Islamic) law, and may find that western law is different and differently applied. Constitutions and laws must also be viewed as legitimate, including the processes by which they are made and amended.
The U.S. Constitution
The U.S. Constitution was ratified in 1788 and took effect on March 4, 1789. It is the supreme law of the land; all state constitutions are subservient to it. It has only seven articles, laying out the duties of the states and the national government, of the three branches of the national government—overall, how the government is supposed to work. Its brevity makes it pretty vague, which is both a strength and a weakness. For example, the Second Amendment says “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” What does that mean? According to some folks, it means most people can own a gun, any kind of gun. Then again, a bunch of folks with Saturday-night specials doesn’t sound like a well-regulate militia, does it? And what would the Founding Fathers have thought if there had been automatic assault rifles instead of muzzle-loading flintlocks? We can’t know for certain, so to some extent, American citizens must decide for themselves.
Some judges and scholars in the U.S. say they are “strict constructionists”—the Constitution as written, sometimes with reference to the intent of the Founding Fathers. Supreme Court Justice Antonin Scalia has said that anyone who thinks the Constitution is a flexible document is “an idiot.” Scalia espouses a view of the Constitution called originalism, in which the Constitution is to be applied as it was written and intended at the time. In the case of the Second Amendment, that might mean that Congress is incapable of putting restrictions on gun ownership.
The other theory is sometimes called the living constitution, in which it is regarded as an organic document that needs to be reinterpreted as times change. That might mean, for example, that Congress might put limits on gun ownership because bad things can happen when anybody can buy a fully automatic Uzi or AK-47.
Who is right is to some extent a matter of opinion; one could justify either interpretation without too much trouble. To say that we must interpret the Constitution as written and intended has the benefit of giving words meaning. If words mean whatever we want them to mean, the law is no protection for anybody. The law might mean one thing for you and one for me.
On the other hand, the Founding Fathers clearly were not all of one mind on government and the law. They were not, for example, all devoutly Christian; about half of them were Deists. Deism was a then-popular philosophy that acknowledged the existence of God, but argued that He didn’t give a darn. The other thing we might note is that there’s some evidence that James Madison, the chief architect of the Constitution, thought it should be flexible. For example, he didn’t allow the publication of his constitutional notes and journals in his lifetime.
The other problem with originalism is that nobody seems to apply that idea consistently. For example, the First Amendment says that “Congress shall make no law … abridging the freedom of speech, or of the press…” And yet in the United States there is an entire body of law limiting freedom of speech and of the press, beginning with you can’t yell fire in a crowded room (unless there is one), through government’s ability to withhold sensitive information, to laws that affect what can be reported about various classes of people. In one case, the late Supreme Court Justice Hugo Black said “I read ‘no law . . . abridging’ to mean no law abridging.” And yet Justice Black served on a court that expanded the power of the federal government in a way that some people have argued was outside what the Founding Fathers intended. So what the U.S. Constitution means often comes down to what somebody thinks it means.
Civil Rights and Liberties
The first 10 amendments to the U.S. Constitution form the section known as the Bill of Rights, wherein we find among the most explicit guarantees of civil liberties in U.S. government. And that is another area of constitutional concern the world over—what are the rights of the citizen with regard to government and politics? In the case of the United States, promised adoption of the amendments that became the Bill of Rights was a key element in securing ratification from the 13 original states. Across the world, constitutions are a place where we might find how a state views the question of rights and liberties.
Rights and liberties don’t mean precisely the same thing. Here are a couple of definitions:
- Civil liberties are personal freedoms inherent in each individual, guaranteed by a constitution or other laws.
- Civil rights are legal claims aimed at restraining the government to seek equal protection before the law.
The original American conception of civil liberties was not unique for its time, but was perhaps the broadest application to date. The key is the idea of them being inherent. That means you are born with them. The Constitution literally grants Americans no liberties; it seeks to stop the government from taking them away. But while Americans often support the abstract notion of rights and liberties, yet they frequently don’t favor the idea in the concrete.
It has taken hundreds of years to get them to apply equally to all citizens. For example, despite all the fine language about the inherent freedom and equality of all men, the Constitution acknowledged slavery when, in Article I, section two, it counts three-fifths of all “other persons” (slaves) when apportioning seats in the U.S. House of Representatives, and again in Article IV, section two, when it promises that escaped slaves will be returned to their owners. (These sections were eclipsed by the 14th and 13th amendments, respectively.) The Founding Fathers reserved the original right to vote for property-owning males. We didn’t really pound the last nail in the coffin of property qualifications until passage of the 27th amendment in 1964 outlawed the poll tax (another way of keeping people of color from voting in the south). Women didn’t get the right vote across the country until passage of the 19th amendment in 1920. Around the world, New Zealand gave women the right to vote in 1893, and Switzerland waited until 1971. The United Arab Emirates granted women the right to vote in 2006, and Saudi Arabia, as we noted earlier, has its eye on 2015.
Who gets what rights is always a subject of debate and dissension, for a wider dispersion of liberties is a wider dispersion of power. For much of the 19th century, the U.S. Supreme Court applied the Bill of Rights only to the federal government. It was believed that the states, being closer to the people, would not violate citizens’ rights. They did it a lot, however, and it wasn’t until the 20th century that the High Court finally applied the Bill of Rights to the legal behavior of state governments. Some states complained that this was an unwarranted intrusion into states’ rights. Until recent times, “states’ rights” was largely a code phrase for the ability of states to discriminate against some of their citizens solely on the basis of skin color.
In the United States, the Civil Rights movement of the 1960s was largely about getting government to treat all of its citizens the same way. Although the Civil War had ended slavery, across the country laws remained that made it harder for African-Americans to vote, to live wherever they wanted, or to even use the same public facilities as white people. President Andrew Johnson, who took office after Abraham Lincoln’s assassination, basically told the southern states it to ignore the 13th, 14th and 15th amendments, which outlawed slavery. They did, and things went downhill from there. That noted champion of democracy, President Woodrow Wilson, upon taking office in 1913, barred the hiring of African-Americans by the federal government. Throughout the first half of the 20th century, states increasingly passed laws that barred citizens of color from full participation in society.
One thing that changed the nation’s view on civil rights was World War II. It demanded the full participation of everybody in the country, so that women and people of color were called upon to work in jobs and perform tasks that they previously had been excluded from. The generation that came home from the war had different expectations about how society would treat them.
The wall began to crack in 1954 when the Supreme Court ruled in Brown vs. Board of Education, a school desegregation case, that separate facilities and programs for black and white Americans were inherently unequal, and therefore illegal. Following that, civil rights leaders began to campaign for an end to all such legalized discrimination, culminating with the Civil Rights Act of 1964 and the Voting Rights Act of 1965.
The Union of South Africa had its own internal struggle over racial equality. From 1948 until 1994, the country operated under the policy of apartheid, in which people of color were excluded from all meaningful political participation. By this device, the white minority ruled the black majority, buttressed by enforced residential segregation. Nearly five decades of protest, violence and international pressure finally forced an end to apartheid with the first election to include all South Africans in 1993.
This issue of who gets to participate and who doesn’t hasn’t completely gone away. Convicted felons in many U.S. states are not allowed to vote, which disenfranchises a disproportional amount of non-white citizens. In the 2000 presidential election, the state of Florida just started purging voter rolls, affecting mostly African-American voters. They started repeating this in 2012, before bad publicity and the U.S. Department of Justice compelled them to stop. Although the United States is notable for its lack of voter fraud, several states have toyed with and passed measures requiring photo ID for voters (all to stop voter fraud), which also disproportionately affects poor people and citizens of color. (Then again, how hard is it to get official photo ID?) Republicans for years tried to bar laws that would create motor-voter registration, figuring that such a plan was likely to register more new Democrats than Republicans. But Republicans have achieved greater electoral success since motor-voter laws became widespread, so perhaps they weren’t accurate in their predictions.
What should be included among civil liberties? During World War II, U.S. President Franklin Delano Roosevelt pushed for “the four freedoms”—freedom of speech, freedom of assembly, freedom from fear, and freedom from want. (The first two of those are included in the U.S. Constitution; No. 3 is alluded to and No. 4, not so much.) This evolved into the United Nations Universal Declaration of Human Rights, adopted by the assembly in 1948. It says everyone has a right to “life, liberty and security of person”; bans slavery and torture; guarantees rights of equal standing before the law and of a fair trial, including being regarded as innocent until proven guilty; bans “arbitrary arrest, detention or exile”; right to “freedom of thought, conscience and religion”; education; equal pay for equal work; right to marry and have a family; and more.You can find the entire text athttp://www.un.org/en/documents/udhr/index.shtml Obviously, these are goals because U.N. declarations lack the force of law within the sovereign states, despite most of the nations of the world having voted for the measure.
So, as a planet, how are we doing? Freedom House, a non-profit advocacy group, in its annual report (2009) lists 89 countries as free; 58 as partly free; and 47 as not free. In its 2012 survey, it listed Norway, Luxembourg, San Marino, Sweden and Finland as the most free. North Korea scored zero once again.You can find the full report at http://www.freedomhouse.org/report-types/freedom-worldOn the plus side, the percentage of “electoral democracies” has risen from 41 percent of the world’s nations in 1989 to 60 percent in 2012.
- Constitutions are statements of general principles that set the terms of operation of government, and the rights and liberties of citizens.
- The world has become a more democratic place in the last 50 years.
- Take a look at the U.S. Constitution athttp://www.archives.gov/exhibits/charters/constitution_transcript.html. Does anything surprise you about what it says? Do you see places where different people might see different things?
- Would you favor an originalist or an organic interpretation of the Constitution? Why? What would be the trade-offs for each choice?
- What would it mean for your country to adopt the U.N. Universal Declaration of Human Rights? Would changes to existing law be necessary?
- If you live in the U.S., find your state’s constitution athttp://www.thegreenpapers.com/slg/links.phtml. Take a look: How is it different and/or similar to the U.S. Constitution?