the idea of constitution...2019/10/05 · constitution is a thing antecedent to a government, and a...

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The Idea of

Constitution Rights, Duties and Values

FLUL, Political Philososophy

Viriato Soromenho-Marques

First American State Constitutions

New Hampshire 1776

South Carolina 1776

Rhode Island 1776 (under 1663 Charter)

Virginia 1776

New Jersey 1776

Delaware 1776

Pennsylvania 1776

Connecticut 1776 (under 1662 Charter)

Maryland 1776

North Carolina 1776

Georgia 1777

New York 1777

Massachusetts 1780


JFK: Two traditions…

([...] Our nation's first great politicians

were also among the nation's first

great writers and scholars. The

founders of the American Constitution

were also the founders of American

scholarship. The works of Jefferson,

Madison, Hamilton, Franklin, Paine

and John Adams -- to name but a few -

- influenced the literature of the world

as well as its geography. www.viriatosoromenho-marques.com 3

…the same roots • Books were their tools, not their

enemies. Locke, Milton, Sidney,

Montesquieu, Coke and

Bolingsbroke were among those

widely read in political circles and

frequently quoted in political

pamphlets. Our political leaders

traded in the free commerce of ideas

with lasting results both here and

abroad) (Kennedy, 1991: 39).



Lord Macauly: the 18th Century Whigs

The Whig party had, during seventy years,

an almost uninterrupted possession of

power. It had always been the fundamental

doctrine of that party, that power is a trust

for the people; that it is given to

magistrates, not for their own, but for the

public advantage; that, where it is abused by

magistrates, even by the highest of all, it may lawfully be

withdrawn. It is perfectly true, that the Whigs were not more

exempt than other men from the vices and infirmities of our

nature, and that, when they had power, they sometimes

abused it. But still they stood firm to their theory. That

theory was the badge of their party) (Macaulay, 1986: 553).

•


«Mayflower» Selfgovernment model

• “A government framed by ourselves, for our own benefit, and according to the fairest models of our own minds, and administred by men of our own choice, ought to be more deeply respected, and more religiously supported by us than any kind of imposed authority” (Samuel Cooper, [1780]: 653).

Anthropology as condition to

draft…

• But what is government itself but

the greatest of all reflections on

human nature? If men were angels,

no government would be necessary.

If angels were to govern men,

neither external nor internal

controls on government would be

necessary. (…)


…a fair Constitution

• In framing a government which is to

be administrated by men over men,

the great difficulty lies in this: you

must first enable the government to

control the governed; and in the next

place oblige it to control itself.”

(Madison, FP 51: 319-320).



Thomas Paine: Positive Constitution (1)

A constitution is not a thing in name only,

but in fact. It has not an ideal, but a real

existence; and wherever it cannot be

produced in a visible form there is none. A

constitution is a thing antecedent to a

government, and a government is only the

creature of a constitution. The constitution of

a country is not the act of its government,

but of the people constituting a government.

It is the body of elements …



…to which you can refer, and quote article

by article; and contains the principles on

which the government shall be established,

the form in which it shall be organized, the

powers it shall have, the mode of elections,

the duration of parliaments, or by what other

name such bodies may be called; the

powers which the executive part of the

government shall have; and, in fine,

everything that relates to the complete

organization of a civil government,



• …and the principle on which it shall act,

and by which it shall be bound. a

constitution, therefore, is to a government

what the laws made afterwards by that

government are to a court of judicature.

The court of judicature does not make

laws, neither can it alter them; it only acts

in conformity to the laws made; and the

government is in like manner governed by

the constitution.”(Paine [1791]: 48).


Madison: Constitution, Liberty and

Power

• "In America a constitution had become, as Madison pointed out, a charter of power granted by liberty rather than, as in Europe, a charter of liberty granted by power.” (Wood, [1969]: 601).


Hamilton: Time and Constitution

“Constitutions of civil government are

not to be framed upon a calculation of

existing exigencies, but upon a

combination of these with the probable

exigencies of ages, according to the

natural and tried course of human

affairs.[...] There ought to be a CAPACITY

to provide for future contingencies as

they may happen.” (Hamilton, FP 34:

227).


Paine: Constitution as a social

contract (1)

• “In viewing this subject, the case and

circumstances of America present

themselves as in the beginning of a

world; and our inquiry into the origin of

government is shortened by referring

to the facts that have arisen in our day.

We have no occasion to roam for

information into the obscure field of

antiquity, nor hazard ourselves upon

conjecture.


Paine: Constitution as a social

contract (2)

• We are brought at once to the point of

seeing government begins, as if we

had lived in the beginning of time.

The real volume, not of history, but of

facts, is directly before us,

unmutilated by contrivance or the

errors of tradition.” ( Paine, [1791]:

182).


Por uma Bill of Rights

• “[...] the omission of a bill of rights

providing clearly and without the aid of

sophisms for freedom of religion, freedom

of the press, protection against standing

armies, restriction against monopolies, the

eternal and unremitting force of the

habeas corpus laws, and trials by jury in

all matters of fact triable by the laws of the

land and not by the law of Nations)

(Jefferson, 1977: 429).


Two reasons in favout of …

1. The political truths declared in that

solemn manner acquire by degrees the

character of fundamental maxims of

free Government, and as they become

incorporated with the national

sentiment, counteract the impulses of

interest and passion.


…a Bill of Rights

• 2. Altho' it be generally true as above stated that the danger of oppression lies in the interested majorities of the people rather than in usurped acts of the Government, yet there may be occasions on which the evil may spring from the latter sources; and on such, a bill of rights will be a good ground for an appeal to the sense of community) (Banning, 1995: 152).


Anticipating the Constitutional Court

“In the arguments in favor of a declaration of

rights, you omit one which has great weight

with me, the legal check with it puts into the

hands of the judiciary. This is a body, which

if rendered independent, and kept strictly to

their own department merits great

confidence for their learning and integrity [...]

Half a loaf is better than no bread. If we

cannot secure all our rights, let us secure

what we can) (Jefferson, 1977: 438-439).

The Constitution as…

No legislative act, therefore, contrary to

the Constitution, can be valid. To deny

this would be to affirm [...] that the

servant is above his master; that the

representatives of the people are

superior to the people themeselves

[...]The interpretation of the laws is the

proper and peculiar province of the

courts. www.viriatosoromenho-marques.com 20

…The fundamental law • A constitution is, in fact, and must be

regarded by the judges as, a fundamental

law [...]The Constitution ought to be

preferred to the statute, the intention of the

people to the intention of their agents. Nor

does this conclusion by any means

suppose a superiority of the judicial to the

legislative power. It only supposes that the

power of the people is superior to both.”

• (Hamilton, FP 78: 438-439,


The USA Constitution

1. Drafted in the Philadelphia Convention in

1787.

2. Entered in force in 1788 (the requirement

was the approval of 9 among the 13 States).

3. The Constitution was completed with the

adoption of the first 10 Amendments, known

as the Bill of Rights, in December 15th,

1791.

4. Only 7 articles, being the I on the legislative

power, the II on the executive power and the

III on the judicial power. www.viriatosoromenho-marques.com 22


USA (1788) and France (1791)…

• Principle of people’s sovereignty (souveraineté nationale).

• Principle of religious neutrality (laïcité de l'Etat).

• Principle of separation of powers(nécessité d'une séparation des pouvoirs)

• Principle of representative political system(d'un régime représentatif).


…common principles in

constitutional law

• Principle of legal equality (l' égale soumission à la loi).

• Principle of no taxation without representation(consentement à l' impôt).

• Principle of legal impeachment from the elected officials (de la responsabilité des agents publics et de l'armée devant la Nation) (J. Morange, 1993: 7).


Defining the structure and the…

• Defines the type of “good life“(values and principles).

• Defines the people included in the Community-Society that exercises sovereignty

• Determines the territory belonging to the sovereign.

• Defines the politial institutions that allow the exercise of sovereignty.


…Key software elements of…

• Defines the Forma imperii/Form der Beherrschung/Form of sovereignty (quantitative element): [autocracy; aristocracy; democracy]).

• Defines the Forma regiminis/Form der Regierung/Form of government qualitative element): the issue of political representation> Republicanism or despotism]).

• Defines the rights and duties of citizenship and its requirements.


…a Constitution

• Defines the capacities and the

separation of powers.

• Regulates the boundaries for

legitimate conflicts.

• Controls and monitors the acts of

political powers.

• Limits the reach of the majority rule.

the idea of constitution...2019/10/05 · constitution is a thing antecedent to a government, and a...

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