This essay was authored by Bruce P. Frohnen for Nomocracy in Politics. Professor Frohnen is a Nomocracy in Politics Contributor.
Like most Americans today, lawyers in developing countries appear to see the purpose of a constitution in programmatic terms. That is, they believe a constitution must set forth fundamental political principles that will guide the rulers in shaping the politics, the culture, and the way of life of the entire nation. This has proven to be a tragic, deadly mistake in many countries as groups resort to warfare over differing visions of the good life, of the nature of government, and of the very nature of their nation (e.g. does the nation include every ethnic group within its boundaries? Are some religions better than others? Is secularism a recipe for peace, or for the destruction of minority ways of life?). These conflicts rage all the more fiercely because there is disagreement concerning the very legitimacy of the constitution, which has been drafted to take a definitive stand on these contested issues, alienating large numbers of citizens.
Sadly, most people in a position to consider the proper nature and ends of a constitution see little choice but to use it, in part at least, as a statement and directive to institutionalize a specific way of life.
In one sense, of course, this seems an obvious conclusion. After all, must not a nation have a way of life? And must not that way of life be supported by laws and governing principles? Partly yes, but mostly no. All peoples have a way of life; this, after all, is what defines them as a people. But not all peoples must insist that their way of life, and only their way of life, shall be enshrined in a single constitutional document to be used in ruling and reshaping the lives of everyone within a given geographical area.
As human constructs, constitutions and the governments they frame by nature reflect the normative assumptions of those who draft, enforce, and live under them. The American Constitution, for example, clearly is the product of a people concerned to preserve the ability of local communities to maintain local control over most aspects of their lives—thus the federal constitution is federal in character and contains numerous provisions intended to limit the reach and efficacy of the central government. The question is whether a particular people’s way of life (say, that of the dominant tribe in a relatively new, multi-ethnic state) should be written into the constitution and seen as the necessary driving force in using the government to reshape society in its image. This (teleocratic) vision produces a constitution of command, in which society becomes the material on which those in political power impose their own will. Such a vision has its opposite in the (nomocratic) understanding that cultural norms should inform the people themselves in their social and cultural institutions, leaving the political constitution to its limited task of establishing rules and limits for the people to follow in their national, political life. That is, a teleocratic constitution seeks to mold society according to ideological principles (e.g. the principles many extract from the second paragraph of the Declaration of Independence). Meanwhile, a nomocratic constitution seeks only to provide rules by which the people, formed however they may be by their own social and cultural institutions, may govern themselves as they see fit.
The central mistake made in drafting new constitutions (there have been literally hundreds over the last several decades) has been that of following a model pushed by American academics, among others, but in keeping with a radically different, revolutionary tradition. The American constitutional tradition has its roots in English and medieval precedents quite opposed to the contemporary model, which is based in French Revolutionary ideology.
The exact model rejected by Publius in arguing for our new Constitution was that of the ancient Greeks. These small “republics” were in fact close-knit, tribal groupings where the public good was seen as the only real good of life and in which all of life, down to whether one ate with one’s family or in common messes, was subject to regulations intended to maintain the order and goals prescribed by law. Perpetually at risk of annihilation from war and/or famine, these unruly communities were capable of producing great art and philosophy, but neither stable government nor ordered liberty. Indeed, as Publius noted, were it not possible to find another, better way to maintain rule by consent of the governed, any friend of liberty would have to reject republicanism altogether.
Fortunately for the cause of ordered liberty, the American Constitution was rooted in a different tradition. Most important, for our purposes, was the understanding of a constitution as something markedly less all-encompassing than that of the Greeks. Medieval Europeans for centuries had spoken of “the constitution of the realm,” by which they meant the important powers and institutions of a given area. Whether the monarch was powerful or weak, the Church independent or subject, the aristocracy and/or commons active or passive, these major powers all were part of the constitution of any particular realm. And the sum of their relations—the rules by which they interacted and limited one another’s powers—were the realm’s constitution.
This constitution established rules and limits for action. For many centuries rooted in custom more than law, though occasional documents (Magna Carta being the most famous) would declare and solidify them, the rules nonetheless restricted the power of various persons and institutions. It was this tradition that produced a document allotting enumerated powers to a central authority aimed primarily at maintaining public peace, relatively free trade across state lines, and a unified front in dealing with foreign powers. Innovations there were, but primarily in the mechanics (e.g. separation of powers) and not the purpose or fundamental nature of the constitution.
The various constitutions established, overthrown, and redrafted across the Atlantic had very different goals, and a very different character, from the American. The French Revolution produced a series of constitutional bodies and documents claiming to put an end to all forms of injustice, the feudal order itself, and, in the end, the necessity of the rule of law. Robespierre’s Terror was justified in the name of a people who needed no law, but only “just” power. And, in the end, the result was the tyranny of Bonaparte, who declared that the Revolution had come to fruition in his own person. Sadly, too many constitutions in recent decades have shared the French Revolutionary desire to wipe out various forms of real and imagined injustice through abstract provisions and grants of power to the central state. Rights to health care, meaningful employment, and leisure have been enshrined in the constitutions of starving people brutalized by incessant civil war.
What, then, can we hope for from a Constitution? After all, did not the United States itself endure a murderous Civil War? It may be the case that divergent peoples cannot always live in peace within the same constitutional structure, even if it be a limited one. But this is no cause for despair. We sinful creatures still may seek peaceful accommodation, so long as we are not blinded to the limits of politics in pursuit of the good life, and so long as we remember the very real limits to the good that a constitution can provide. A constitution cannot produce the good life—though it can empower rulers to produce a very bad life. At best, a constitution can provide the means by which the people may govern themselves in relative peace by laying out a particular frame of government. Its rules and limits for lawmaking can provide mechanisms for compromise even as, through its mechanisms and its constitutional morality, the constitution may help bind the rulers to that frame of government and to the rule of law itself. As history and contemporary events show, to demand more is to court disaster.