The Purpose of a Constitution

What are constitutions for? This might seem like a strange question, given how accustomed we all are to live under governments underpinned by constitutions and systems of authority built upon them. But it is a question that is highly relevant. It is crucial because, as I will argue, what constitutions profess to be and what they actually are are two very different things. Whereas some countries nowadays can be more open about the role their constitutions play, in countries with long and complex constitutional history, the difference between the PR and the real function is quite significant but also very well hidden and obscured. And seeing through that veil might be quite useful.

Traditionally, constitutions are explained as being the formulations of the rights that a group of people or the broad public have carved out for themselves against their rulers. Old states with a continuous political history might have imprinted in that history the gradual transition from monarchical absolutism to some present form of constitutionalism. Although absolutism is, of course, not the beginning of history, it often embodies the era to which the origin point of constitutionalism is traced. From the king with unlimited powers, the story goes, gradually more and more rights would be won by his or her subjects - first, it might be primarily for the aristocratic classes, but with time, such progress would reach the common man as well. Eventually, a list of rights that are inviolable by the ruler would crystallise, to which anyone could refer for their defence against the king if necessary. The power of the king would be limited to the benefit of the common man, whose intrinsic human rights could not be so violated anymore by him.

In turn, in states established recently, or in those who have undergone turbulent revolutions, the constitution tends to be viewed differently. It is the basis of authority for that state and, in theory, the source of legitimacy, back to which all its laws and edicts can be traced (if they can, it is called the ‘rule of law’ and almost everyone considers it good and just). Those are top-down constitutions, which have not developed through a historical process and are not the result of the interplay between different social classes and tensions. Instead, they are usually imported from a standardized international blueprint, adapted a little bit to local circumstances, and enacted upon the population. Sometimes, if the situation calls for it, a ‘stamp of approval’ is solicited from the population through a vote or a referendum. It is then a ‘done deal’ and the state can get on with its governing.

In the latter - the modern-day constitutions - the older meaning might be simulated somewhat. This is to bring the newly-made constitution closer to the ideal which more people could find compelling. Therefore, for example, one can find in the US Constitution both the clauses that establish the Congress and set out its purported right to tax people (the founding-document function) as well as the Bill of Rights (the rights-carving function).

Over the last century, there has been a shift in how constitutions are typically created. In particular, the Universal Declaration of Human Rights (UDHR) marked the point when that shift in thinking about a constitution’s purpose became thoroughly mainstream. No longer was a constitution (in the rights-carving sense) a list of things rulers cannot do to or against their subjects. It became a mixture of things they cannot do and have to do. In the history of political thinking, this story is usually told in the language of negative vs positive rights.

In my view, the shift embodied by the UDHR reflected the still-ongoing gradual alignment of what constitutions actually are and what they purport to be. From the two concepts of what constitutions are, presented above, the founding-document view is much more accurate and realistic, especially in the modern world. Constitutions are much more a method of legitimation, of justifying one’s power, than of its limitation and of the prevention of predation. Specifically, they are the ultimate justification that one group of people can rule over another. 

To be sure, constitutions typically used to present themselves as limitations on state powers. It is good for a constitution’s PR to do so, especially if the majority of the population can (correctly) identify that politics features a fundamental conflict between states and their subjects. With the rise of democracy, that conflict is obstructed. Democracy is an amazing tool for blurring the line between the rulers and the ruled - without actually making any real changes to the power relations. As Daniel Guérin puts it, in a democracy “the dynasts have been driven from the throne but the royal prerogative has been preserved intact.”

As more and more people start seeing themselves as (at least partial) rulers rather than royal subjects, it is not needed that much anymore for constitutions to maintain the appearance of being the instruments of the ruled in their struggle against their rulers. Instead, as has been ever more the case, their legitimation function can be openly admitted or even celebrated. What is celebrated is how those constitutions have created the beautiful, modern, benevolent, and ultimately just political structures we live under, as opposed to the backwards systems of the past which were the opposite - barbaric, backwards, and tyrannical. And since you should be happy about living under the end-of-history liberal-democratic state, you should revere the constitution that forms its foundations.

We can see that the real function of constitutions is legitimation simply from a cursory look at the historical record. To the extent that constitutions are supposed to be a limitation on power, they have been extraordinarily ineffective. The present states, with all their incursions upon people’s inherent rights, have so developed in the presence, and amid the full effect, of the constitutions supposedly in place to prevent exactly that.

Conversely, as legitimation devices, constitutions have been extraordinarily effective. Today, most people believe that the powers their rulers wield flow from a constitution which is a just source of that authority. It is a PR move and it does not matter in the slightest that the concept of a constitution does not stand up to any kind of scrutiny - and the standards upon which it stands would be laughed at if applied to any other legal document.

To illustrate this, I will let Lysander Spooner speak for me. He wrote explicitly in the context of the US and its constitution; but as he makes clear, his criticism can apply to almost any other constitution just as well.

“A man’s natural rights are his own, against the whole world; and any infringement of them is equally a crime, whether committed by one man, or by millions; whether committed by one man, calling himself a robber, … or by millions, calling themselves a government.”

“Inasmuch as the Constitution was never signed, nor agreed to, by anybody, as a contract, and therefore never bound anybody, and is now binding upon nobody; and is, moreover, such an one as no people can ever hereafter be expected to consent to, except as they may be forced to do so at the point of the bayonet, it is perhaps of no importance what its true legal meaning, as a contract, is. Nevertheless ... the Constitution is no such instrument as it has generally been assumed to be; but … by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, different thing from what the Constitution itself purports to authorize.”

Not only do constitutions never attempt to solicit consent from all those they purport to bind; such consent cannot be inferred from people’s participation in voting either - whether in constitutional referendums or in elections held under the banner of the constitution.

“Without his consent having ever been asked, [a man] finds himself environed by a government that he cannot resist; a government that forces him to pay money, render service, and forego the exercise of many of his natural rights, under peril of weighty punishments. He sees, too, that other men practise this tyranny over him by the use of the ballot. He sees further that, if he will but use the ballot himself, he has some chance of relieving himself from this tyranny of others, by subjecting them to his own. In short, he finds himself, without his consent, so situated that, if he uses the ballot, he may become a master; if he does not use it, he must become a slave.”

Despite such a state of affairs, in the eyes of the masses drunk on the democratic illusion of ‘self-governance’, state power can be made legitimate through declaring a document to be a constitution. Where that power came from no one asks anymore. How a proclamation written on a piece of paper can create a right that did not exist before remains a mystery. Luckily, it does not need to be solved. If we accept that the entire show is performed for PR reasons, it does not need to make sense as long as that PR goal is achieved.

“How does [a man] become subjected to the control of men like himself, who, by nature, had no authority over him; but who command him to do this, and forbid him to do that, as if they were his sovereigns, and he their subject; and as if their wills and their interests were the only standards of his duties and his rights; and who compel him to submission under peril of confiscation, imprisonment, and death?

Clearly, all this is the work of force, or fraud, or both.”

Constitutions usually come with enforcement mechanisms - typically constitutional courts. These courts are supposed to review proposals made by the legislators through the lens of said constitution and intervene if that proposal seems to go against its spirit and promises. However, by implication, such constitutional courts then inevitably turn into institutions providing ‘stamps of approval’ for controversial legislation. If something has gone through the constitutional court and passed, it is clearly legitimate and good. Are you really going to oppose something that the highest court has decided is acceptable and safe? And if so, are you going to look good doing it in the eyes of those who regard the constitutional court as a legitimate source of authority - i.e., almost everyone?

The real purpose of a constitution is to justify the powers it professes to limit. If one proclaims that there are certain things that the rulers simply cannot do, one also tacitly gives those rulers the approval to do everything else. And when those rulers get comfortable and used to doing that, where else do they have to expand than to eat away at those things they were not supposed to touch?

You may happen to disagree with my verdict about what the purpose of a constitution is. But if you are in any way unhappy with the state of the country you are in, you must inevitably come to the conclusion, in Spooner’s words, that the constitution “has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.”