I attended a meeting of the local Tea Party in my city to hear one of my colleagues (who is also a Berean) speak on the Constitution.  His talk was excellent, and well-received.  But as I was listening, my mind began to wander a bit (sorry Mark).  Given so much misunderstanding, so much misinterpretation, and even more and more dismissal of such “archaic” documents as our own Constitution, I thought I would ruminate a bit on the very idea and purpose of a constitution.  We seem to value “democracy” (meaning simple majority in any and every decision) over constitutional arrangements, and most certainly many of our political leaders desire pure power over such inconvenient arrangements.  So I propose to begin at the level of abstraction before moving to the practical.

What is a “constitution”?  Why do people have them at all?  The term itself goes all the way back to ancient Greek city states, who had “constitutions.”  Now all that meant (as one can see in reading Aristotle for example) is that they had some form of government—so the term meant merely a form of government, whether monarchy, democracy, or oligarchy or one of their bad variants (like tyranny).  This doesn’t mean that some forms did not show a few signs of how our own Constitution works.  Sparta, as opposed ironically to Athens, did have a few “checks and balances” such as two kings and a people’s body, plus some other procedural rules.  But these didn’t catch on.  The model for government underlying any “experiments” to the contrary was kingship.  The Roman Republic also exhibited some constitutional elements—consuls, a senate, a larger democratic body—but this too did not last, as the republic became a principate ruled by an emperor.  In fact, even after Christianity came on the scene and became the only legal religion, kingship was still the rule.  Sometimes kings justified this FROM the Bible, citing 1 Samuel 8.

At any rate, we don’t see any real constitutions as we know them and certainly no written ones, until perhaps Magna Carta (1215), whose birthday is today (cheers).  Now it wasn’t a fully functioning constitution, but it did aspire to one goal of such an arrangement—to limit the power of government.  And it was also written.  As time moved on political thinkers articulated different elements of the content of a constitution, such as for example separation of powers (Montesquieu).  But the model of kings persisted.  Even John Locke, though he wrote much in his Second Treatise of Government about issues like a government of the people, limits on state power, rights, etc. did not develop a coherent model of an arrangement like a constitution.  Federalism too was discussed, for example by Johannes Althusius, a German legal scholar in the seventeenth century, but again, no fully developed constitution emerged.

The various disparate elements that thinkers had suggested were actually brought together, along with the ingenious new ones, in our own United States Constitution.  That is pretty late in the game, but better late than never.  The intellectual origins in full are very complex, and some come from theological ideas derived from Scripture—though I am not arguing our Founders adopted theological ideas directly, as for the most part they had been secularized by the late 1700s.  Nevertheless, there we had it, a true constitution that was written and even enforceable.  It happened here in America first!  But I haven’t yet defined what it is.

A constitution in its highest form is simply a fundamental law unalterable by the government and only alterable by the people.  That is not my definition.  I owe it to a mentor, Vincent Ostrom, a justly great political scientist and student of institutions.  But it conveys the essence.  Government can’t change it.  Only the people by some voting rule can alter it.  But then what is its purpose?  As James Madison said, if men were angels we would need no government at all.  But, as Christians especially know, humans are far from angels.  Yet, we also are sociable creatures.  When we gather in towns, cities, or in different-sized groups, we understand that sometimes we need to do things that require collective (as opposed to individual) action.  And we need to do those things on an on-going basis.  To do that, we often will find that we need some sort of “government.”  What that really means is that we need rules.  So a constitution is really a set of “rules of the game.”  But how does that work?

We first need rules that bind all of us and that tell us how we will make later rules.  So we seek a rule of law in a constitution, meaning that its rules bind all of us, no one excepted (ideally).  It is Lex, Rex (the law is king), not rex, lex, as the Puritan divine Samuel Rutherford wrote.  That is foundational.  Otherwise some people who are more powerful or influential or wealthy could exempt themselves from the rules and do whatever they wished.

Second our rules have to tell us certain things, such as how we will decide how to decide, or who has power to make decisions for us in a given situation, or what the limits of those powers are.  Without these substantive rules we would have no clarity and no certainty as to what government can and can’t do or what our own rights are in relation to it.  In other words, government would be arbitrary.  Another kind of rule is the so-called decision rule—how do we decide to decide?  Do we allow one man to make decisions, or do we allow “the people” or their representatives?  And what rule do the people or their representative use to decide—simple majority, super-majority, unanimity?  A well-designed constitution may have a whole range of rules for deciding.

Then we need some sort of way to enforce our constitution.  The best way found so far, taking humans as they are and not as we wish they could be, is a separation of powers and checks and balances, as well as dividing power “vertically” between a national and lesser governments.  Separation of powers was really novel.  Everyone thought until the early 18^th century that one could not divide sovereignty or nothing would ever get done and anarchy would result.  In reality, separation of powers can of done properly both allow important things to get done and keep rulers from abusing power.  But this is only true if along with the separation one includes formal checks on power.  Veto, impeachment, judicial review, veto override, two legislative houses, etc. all help achieve the aim of checking power while allowing decisions to be made.  But understand that behind this idea is also an important idea that not nearly as much will be done or done “efficiently” as would be if we just had consolidated power.  But do we want consolidated power?  That would be one-man rule, even tyranny potentially.  Still, even this cannot completely eliminate bad behavior if virtue become too scarce.  So we still require genuine virtue of our leaders.

Related to this is that in our own American document, the powers allotted to each branch are implicitly said to be their only powers.  The “legislative power” of Congress in Article One is stated as “All legislative powers herein granted…” and this implies “and no more than that.”  All branches together then possess powers that are limited by what is articulated, even if the expressions are sometimes a bit broad.  The implications of this ideal are huge:  Rights come into being. Not that rights don’t already exist.  We can say they are given by God, but they still must be enforced and a constitution does that.  In this case, the expressly stated powers and the principle that only those powers expressly granted may be exercised, leads to a condition of “silence” on many matters.  This silence implies limitations on government, which in turn imply freedom for individuals, which finally creates rights.  The term “rights” has many definitions, but they can be thought of broadly as claims against government, that is, against government actions outside its express authority, which would interfere with the individual’s actions or compel individual actions.  The implications of this theory of rights are huge for all of us, but constitutions really are the best vehicle for protecting rights and limiting government.

All constitutions don’t have to look exactly the same.  But we can be sure that there are certain inescapable consequences from leaving out certain elements.  Without them, we couldn’t even have a true constitution.  We might have something like England’s “ancient constitution” but it is not a true constitution in the sense discussed here.

One more comment.  To my way of thinking, constitutional arrangements are useful for any organization.  After all, the point is to limit the exercise of all absolute and potentially abusive power.  Who wouldn’t want that?  The “trick” however is always how to design them.  It takes work, deliberation, thoughtfulness, a historical sensitivity that learns from past mistakes, and a sense of human limitations and potential, not to mention some sense of virtue.  And even then, the enforcement problem always looms.  How does one “govern the governors” so that they, in their least virtuous moments, cannot cause mischief to the detriment of the entire community or some sub-set of it?

I think we need a resurrection of constitutionalism as a concept, a thorough view of why we would and should want constitutions (no matter what we call them), how we should design them, and how to make them enforceable as against all who would subvert that terms and conditions of them.  The time to re-educate people has arrived.

Further Reading:

James Buchanan, Reason of Rules.  Liberty Fund reprint, 2000.

Scott Gordon, Controlling the State: Constitutionalism from Ancient Athens to Today.  Harvard University, 1999.

Vincent Ostrom, The Political Theory of a Compound Republic, 3^rd edition.  Lexington Books, 2007.

Workshop in Political Theory and Public Policy, Indiana University, at ostromworkshop.indiana.edu. (many excellent articles)

Dennis Mueller, Constitutional Democracy.  Oxford University, 2000.