CHAPTER FIVE
Constitutional Conflict
Constitutions spawn conflict. The great irony, in fact, is that constitutions—written in large part to regulate and curtail conflict so as to increase the likelihood of regime stability—have so often been at the center of the world’s most intense political and legal battles. Debates over linguistic identity in Canada, sovereignty in Eastern Europe, democracy in the Middle East, ethnic particularism in south Asia, citizenship in southern Africa, economic development in Central and South America, and morality in the United States have all had (or continue to have) a distinctly constitutional flavor. Even multinational constitutions like the unifying charter of the European Union cannot escape controversy. Critics of the EU Constitution cite dozens of reasons for their skepticism; some even insist that the document will create more disunity, inaction, and conflict than would be the case had the member states simply spurned the idea of a multinational constitution when it was originally proposed.
For a few of these countries or regions, one problem may be that the fundamental law has not yet lived up to its hype. It was (or is) viewed by many as an important ingredient of the antidote for a long history of political strife, but it has yet to produce the type of transformative and stabilizing results that many statesmen have come to expect from modern constitutions. Citizens around the world assume that the constitutional document will answer more questions than it poses, and in most cases that is probably true. But constitutions also create conflict where there was none; they manifest tension in areas where the framers either did not anticipate or could not have anticipated that there might be disagreement; they are interpreted in ways that advance the self-interest of political leaders; and they are often so vague and ambiguous that fierce battles emerge about their specific meaning. Perhaps that is why Martin Edelman once portrayed the capacity of constitutions to resolve political conflict in rather sobering terms. “Written constitutions by themselves,” he wrote, “rarely answer important political/legal issues. Because the core message of a constitutional text is framed in broad, general principles, few, if any, conclusive answers are provided.”1
Of course, Edelman is correct in at least the literal sense: constitutions “by themselves” are incapable of answering important legal questions and settling divisive political disputes. Instead, institutions authorized to give meaning to the broad general contours of a constitutional text are charged with the duty to mediate most political and legal conflicts. It is here that the interpretive role of government organs like the judiciary cannot easily be separated from any discourse on constitutional functionality. To make constitutions function in their capacity as paramount laws for the governance of a polity requires that institutions carry out their individual responsibilities too. Edelman is thus right to insist that a constitution alone is not sufficient to prevent a majority from trampling on the rights of the minority or for any agent of government to seek greater personal or institutional influence. History has too often demonstrated that constitutional limits—“parchment barriers,” as Madison put it—can be just as easily ignored as they are embraced.
And yet constitutions are not entirely useless instruments in a polity’s quest to manage legal and political conflict. Institutions interpret the text, and thus they are the polity’s first line of defense against political instability. But one of the major functional purposes of a code of laws—one that is perhaps more fundamental (or supreme) than all the rest—is to guide or direct those institutions in the decision-making process. The whole purpose of choosing a written text over an unwritten constitution is to provide a point of reference—a transparent and discernible touchstone—for individuals and institutions that remain skeptical of the corruptibility of human nature.2 The hierarchy of laws, beginning with the presumably ratified constitutional text and proceeding downward to derivative and ordinary legislative statutes and enactments, tells a tale: constitutional texts, which create and empower those very institutions that eventually interpret the document and pass those ordinary laws, maintain a certain conceptual authority over their creations, one that is vital to the continued survival of the polity. The absence of that conceptual authority signals the demise of the constitutionalist polity; it begins a process whereby a fully operative or authoritative text turns eventually but inevitably into a sham or façade constitution. In short, once institutional fidelity to the text is lost (an occurrence that happens with disturbing frequency) the constitution ceases to be a credible source of institutional guidance.
That potential disintegration of a constitutional order provides us with an initial avenue into a deeper discussion of constitutional conflict. It is important to recall that the difference between a fully or reasonably authoritative constitution and one that could only qualify as a sham depends almost entirely on the willingness of political leaders to consent to the pre-established rules embedded in the constitutional document. Constitutionalist and nonconstitutionalist charters alike will both be considered authoritative if the sovereign (or, more likely, representatives of the sovereign) abides by the provisions of the text. The common denominator among authoritative or reasonably authoritative constitutions, therefore, is that the institutional directions articulated in the text (Who holds power? How do they get that power? What is the scope of their power? and so on) are, for the most part, followed. When they are not followed, the constitution becomes a virtually useless guide to settling political and legal disputes (“It isn’t worth the paper it is written on”). But when those directions are followed, a constitution can provide meaningful guidance for institutions and officials seeking to find ways to manage most types of political conflict. The document does not always answer the questions most required by the polity’s political leaders, but rarely does it completely neglect to provide some meaningful guidance. This chapter thus explores the fourth function of the modern constitutional text: its role as an instrument to manage political conflict. It begins and ends with the assumption that a constitutional text may spawn more conflict than it eliminates but that one of its principal virtues is its ability to guide the institutional management of conflict.
Constitutional Conflict: Three Themes
Any discussion of constitutional conflict limited only to a single chapter is bound to be highly (and perhaps irresponsibly) selective. Entire books, after all, have been written on the topic. My fear is that tackling the broad concept by attempting to explain the countless related issues would be far more careless than admitting at the outset that I intend to sacrifice breadth for depth. In the pages ahead, I will explore three of constitutional theory’s most enduring themes, all of which in one way or another connect to the central focus of this chapter: (1) the unique nature of constitutions and how that contributes to conflict management; (2) the idea that constitutions are written to promote regime stability; and (3) the paradox of text and time. I will conclude with a separate discussion of the importance of amendability for constitutional maintenance. Citizens and political leaders faced with increasing political and social tension often find comfort in the potential to alter formally the constitutional document. To be sure, each of the following limbs of a more general discussion of constitutional conflict is, in its own right, worthy of an entire chapter or, more likely, an entire book.3 However, we take them up here in a preliminary and nuanced, though certainly not comprehensive, way.
The Unique Power of Constitutions
I begin with a few assumptions. First, the nature of conflict in political and legal institutions rarely allows for what we might describe as a complete resolution, where complete resolution is defined as the elimination of conflict. In the modern political arena, especially when we factor in the current penchant to frame discussion around the absolutism of individual rights,4 true resolution of conflict is often elusive. Political institutions like the judiciary may resolve cases and declare one party a winner over another, but the various issues that give rise to legal proceedings in the first place—issues ranging from which institution of government owns contested power to substantive issues like whether groups or individuals are able to openly criticize government officials—often recur again and again. Insofar as compromise represents a true resolution, then it is reasonable to assume that we often arrive at a desired destination. But compromise is often elusive. For that reason perhaps a more appropriate way to frame the quest for minimizing conflict is to think in terms of conflict management. A constitution is supposed to manage conflict in a way that ensures regime stability.
Conceiving of a constitution’s functional role as managing rather than eliminating conflict is important because of the second assumption: that conflict, in a contemporary constitutionalist society, is not always bad. As Mariah Zeisberg has noted in her work on the subject, constitutional conflict is not only inevitable but is also necessary for the continued development and survival of the state.5 Particular types of conflict, especially legal and political battles that somehow advance the promises laid out in the text’s preamble, are constructive. A constitution’s goal, therefore, is to maximize the constructive conflict and, obviously, to minimize any destructive conflict.
That said, an authoritative constitutionalist text leads a sort of dual existence when it comes to the reality of political and legal conflict. On the one hand, its normative goal is the regulation of conflict through the designation of clearly assigned political responsibilities. There is, of course, a delicate balance between a constitutional text that is too detailed and thus overly constraining, and a text that is too vague or ambiguous to provide meaningful guidance in the management of conflict. Part of the success of a constitution depends on its ability to strike that balance. A constitution’s companion responsibility—the other half of its dual existence—centers on the concept of empowerment.6 A constitutionalist text empowers government agencies to use the document as an instrument to prevent the emergence of untenable or unwelcome power arrangements. Almost literally, institutional actors under established constitutions will cry foul by waiving the text in the face of those governmental officials who they believe are abusing their constitutionally granted authority.
The success a constitution has in managing political discord thus begins with a conception of the relative influence of a constitutional text over the many institutions and public officials in a political regime. A relationship exists between the degree of respect a constitution engenders and the capacity of that constitution to regulate political disagreement. Presently, a constitution that garners widespread support and respect will more successfully negotiate conflict than one that is less capable of winning over the population. The more legitimacy, credibility, and power a constitution enjoys, the more it will command the compliance of the polity’s decision makers. More succinctly, political leaders are less likely to ignore the provisions of an authoritative constitutional text if it commands widespread legitimacy. Legitimacy is born from a variety of sources, including a sense that the process of drafting and ratification were honest and transparent and that the text still broadly reflects the moral sensibilities of the sovereign. And yet it is not easy to achieve. The degree of legitimacy that a constitutional charter possesses will no doubt influence the outcome of many legal and political disputes; indeed, a legitimate and respected text is the most powerful tool for constituents whose aim is to combat all sorts of political discord.
What is required is an acknowledgement of the unique force of an authoritative constitutional text. Citizens, public officials, government representatives, and so on, must admit that the constitution is unlike any other expression of the sovereign’s general will. They must declare that the constitution is distinct in its singularity and primacy, that it is supreme, and that no other document or set of documents competes with it for the title of fundamental law.7 If the recognition of the supremacy (or unique force) of a constitution is present among the population, it follows that institutions and officials are less likely to ignore the dictates of the text.8 The branches of the polity (assuming, again, that these branches fall under a fully operative or authoritative charter) take their cues from the constitutional charter and thus are conceptually beholden to that text as the country’s supreme law. That is to say, they recognize their subordinate position to the constitutional document. The fact that it does not always work that way, or that institutions and officials do circumvent the provisions of the document, does not alter the status of a constitutional text as the primary touchstone for institutional conflict. Indeed, defenders of constitutional primacy would be right to claim that the text’s greatest feature is its ability to guide the institutions of government through many (though not all) political storms precisely because it is the singular act of a completely sovereign people.
Consider the example of Canada. Symbolically, the introduction of a Canadian Charter of Rights and Freedoms—essentially a constitutional bill of rights—to the preexisting fundamental law in 1982 was a powerful statement both about the values of a divided people and about the importance of constitutional authority. For many, there was a felt need for a document that articulated the numerous freedoms retained by the citizenry. The Charter became that centerpiece document. But what is most compelling about the story is that in a very real sense Canadians already enjoyed most of the rights that were eventually embraced in the Charter. Citizens exercised liberties such as the right to free speech and freedom of association, not by virtue of a silent constitutional text, but by parliamentary acts and provincial guarantees. Gil Remillard captures the reality that the Canadian Charter of Rights and Freedoms was largely redundant when juxtaposed against previously articulated safeguards when he writes, “Actually the Charter of Rights and Freedoms sets down few new social, political or economic guarantees for Canadians.” He continues: “In certain respects [the Charter] is less extensive than the Parliament’s Canadian Bill of Rights, or the Provincial Charters already existing, particularly that of Quebec.”9
And yet the redundancy of the text was more than offset by the added value that accompanies granting the 1982 Charter full constitutional status. Observers noted with concern that as long as the grant of freedoms originated from legislative enactments, those rights could be curtailed by simple legislative action. As Remillard writes, “Before the passage of the new Charter, rights and freedoms were set forth in simple federal or provincial legislation, thus subject to modification by the government at both levels. Today these rights and freedoms are part of our Constitution and are binding on the Canadian Parliament as well as on the provincial legislatures.”10 As evidenced by the Canadian example, the transference of rights guarantees to a constitutional document is no insignificant act. What Canadians did in altering the place in which rights are expressed was to explicitly recognize the unique force of the constitutional text. In their minds, the constitutional document carries more weight; it is the most powerful and respected source of all political authority in the state. No longer would the national Parliament or the provincial legislatures retain primary jurisdiction over the individual liberties enjoyed by Canadian citizens (although some might argue that power was simply transferred to the judiciary once the Charter was ratified). The constitutional text became the source of the authority surrounding rights and liberties, and that, as this chapter notes, has significant consequences for the management of institutional conflict.
Interestingly, the drafters of the Canadian Charter of Rights and Freedoms also embraced a mechanism that held the potential to temper the impact of newly adopted liberties on the cultural identity of specific groups. The “Notwithstanding Clause,” discussed in greater detail in the next chapter, is a perfect illustration of a constitutional provision whose primary purpose is to manage conflict. In fact, the clause allowing provincial legislatures to override the provisions of the constitutional document for a specified period of time (up to five years) permits legislative bodies to essentially opt out of certain constitutional requirements. A province, for example, is empowered to enact a piece of legislation that “operate[s] notwithstanding a provision included in section 2 or sections 7 to 15 of [the] Charter.”11 There is perhaps no greater (or worse) constitutional mechanism to manage the potential for all types of conflict than to allow discontented constituencies to literally suspend those portions of the constitutional text they regard as most troubling. The “notwithstanding clause” was included in the amended Canadian Constitution to do just that.
Before going any further, it may be prudent to consider what is meant by political and legal conflict. What exactly are we referring to when we claim that the constitution is an essential component of a polity’s regulatory scheme? Our examination of this question must begin with a simple assertion: a constitution’s provisions are nothing more than rules.12 More accurately, they are, in the words of Larry Alexander, “metarules” in that they differ from other political enactments in their position relative to the day-to-day operations of government.13 A command that Congress “make no law abridging freedom of speech,” while certainly subject to considerable interpretation and often ignored or manipulated by public officials, sets out a rule prohibiting the legislature from interfering with an individual’s right to free expression. The clause creates a space—in this instance, a liberal space related to individual thought and expression—where government is not permitted to enter. Illegitimate governmental entry into that space will inevitably and appropriately lead to a challenge based on the alleged violation of the textual clause. Institutions then take over to determine whether a violation actually occurred. The point is that constitutional rules like the one found in America’s First Amendment may be more fundamental than other rules in that they are essential to the effective and continued governance of the entire polity; they are, in short, of an entirely different character than the myriad of ordinary rules/laws that regulate our everyday existence. Still, we also must remember that at their core they are still rules.
Embedded within a constitutional text are provisions or rules that empower government agencies to do certain things or mandate certain political or social realities (realities that reflect, say, the will of the majority). The regulation of interstate and/or foreign commerce, for instance, is typically one of the powers reserved to legislative branches by many of the world’s constitutional texts. So are the powers to promote national security, ensure territorial sovereignty, raise taxes, deploy the military, and so on. Of course, there are also provisions or rules within that same text that proscribe government from exercising certain powers or mandating certain realities (consider again the First Amendment to the U.S. Constitution). Typically, the arena with which constitutional rules are concerned is the arena of politics, though that too may unnecessarily limit the scope of our general definition. At a minimum, a constitution is specifically designed to answer a number of important questions about the architecture of government: Who qualifies as a political official and how are those officials chosen? What institutions of government control which powers and how do those powers overlap or converge (if they do)? Who makes particular political decisions at particular times? How are citizens involved in the political process (if they are involved at all)? Where are the limits of the government’s authority to interfere with personal rights and freedoms? What mechanisms exist for the alteration of the constitutional text? And so on. There are obviously dozens or even hundreds of questions like these that any typical constitution should address. The answers to those questions will of course depend on the specific regime. More generally, though, modern constitutions aim to preordain the common rules for political practice prior to emergence of institutional conflict.
Conflict emerges in the absence of clearly defined rules. In other words, conflict arises when so many of the questions related to governance are not clearly or easily answerable by the constitution, when the “metarules” are either not clearly discernible or are susceptible to wild and erratic interpretation. It is impossible, and probably inadvisable, for constitutional framers to attempt to design a charter that seeks to anticipate every minor quarrel that may arise in a complex, modern state.14 Certain political or legal discord will not easily lend itself to constitutional clarification. The problem is exacerbated when the poor design of a text conspires to make it difficult for institutions like the judiciary to find substantial meaning in the words of the constitution. Obviously, proper management of political conflict will not happen (or will not happen neatly) if the meaning of the text is rendered obscure by social or political forces.
In most cases, however, constitutions are capable of addressing the major thematic differences of the day. Political questions about jurisdiction, power, rights, even morality, are often answered, at least in a preliminary or procedural sense, by the constitutional document. Donald Lutz describes the role of constitutions in managing conflict accurately. His argument is worth quoting at length. “Constitutionalism,” he insists,
represents an advanced technique for handling conflict. Since constitutions make clear the locus of political authority and its basis, they provide an efficient means for establishing the third party, government, that can end conflict. The definitions of a way of life and of institutions to further that way of life tend to knit people together, and the overriding sense of community resolves many conflicts. The distribution of power and the limits of its use tend to structure conflict into predictable patterns. The provision of a publicly known, regularized procedure for decision making takes potential conflict out of the streets and into arenas where calm and reason can prevail. Any constitution that fails to manage conflict efficiently and effectively is seriously flawed.
Take the puzzling debate about judicial supremacy in the United States as a specific example. It is all too clear that the text does not expressly delegate primary interpretive control to the federal courts.15 Larry D. Kramer suggests that it is “experience” and not the clauses of the Constitution that supports the idea of judicial supremacy in the United States. That is, because the text is silent on the subject (and few individuals in the late eighteenth and early nineteenth centuries were even concerned about the topic) it must be the development of judicial power that has foretold the emergence of judicial supremacy. “What ultimately moved a greater number of Americans to embrace the idea that judges should have the preeminent word on constitutional meaning,” he writes, “was experience, which seemed to teach that popular constitutionalism in its traditional form might not work in a society as diverse and dynamic as the United States.”16 In essence, he is arguing that the Constitution cannot be primarily responsible for judicial supremacy because it is silent on the issue, so the only reasonable conclusion to draw is that “experience” has filled the void and declared a winner.
Despite the lack of textual reference to the question, though, one might conclude that the design of America’s federal institutions (which of course is announced by the text), coupled with the defining character of a constitution as a limitation on the power of the majority, suggests that the largely independent judiciary has perhaps a more compelling claim than any other branch on the power of constitutional interpretation.17 In other words, the constitutional text may be silent on the subject, but even with that silence we can make certain logical inferences from the nature of the individual text and the theory of constitutional government. In the United States, judicial supremacy may qualify as one of those logical inferences. The judiciary may not have exclusive jurisdiction over the interpretation of the Constitution, but it is hard to contest the fact that the structure of government as articulated in the text supports a significant interpretive role for the courts. The American judiciary is specifically designed so as to remain largely immune (or at least isolated) from the passions of a contemporary majority. The other institutions were designed in just the opposite way, as practical reflections of the will of the majority. Does that suggest that we have an answer? Of course not. Few constitutions, if any, answer all questions definitively, and the American text is no exception. What the American constitutional charter does provide to citizens is at least a rational and logical argument in favor of judicial supremacy. Whether or not one adopts that reasoning often depends on many other factors.
Ongoing battles about the proper management of conflict are typically less a product of constitutional defects than of institutional parochialism (of course, that in and of itself may suggest a constitutional defect). That is, political differences may not be purely constitutional differences, although they often envelop and implicate the text. A substantive debate about the sanctity of the flag as a symbol of national unity and pride certainly involves the text, especially in terms of such lines of inquiry as the proper interpretation of the document and the relationship between desecrating the flag and the definition of free expression. Even so, the conflict is primarily a political debate between two or more forces arguing about history, tradition, community, liberty, symbolism, patriotism, and common decency. To be sure, constitutions are deeply concerned about history, tradition, community, liberty, symbolism, patriotism, and common decency; these are in fact some of the many principles that give the world’s constitutions their primary energy. What is important to remember when thinking about political debates like the one over the sacredness of the flag is that the constitution acts as the critical reference in the attempt to manage the conflict. Borrowing Alexander’s terminology, it is the “metareference” for the entire regime. It may seem patently obvious to most, but the constitution provides direction for institutions managing the disagreement. The constitution always remains in the center of the fracas (that is the nature of primary rules, after all) even when the continuing debate is more accurately characterized as one that implicates institutional interpretations of the text and not the text itself. Authoritative constitutions, in short, manage conflict by occupying a unique, powerful, and even supreme place in the polity.
Constitutions and Regime Stability
All of this is to admit that the role constitutions play in managing political conflict, both at the moment and over time, is complex and significant. Contemporary political societies are difficult to administer; the institutions of a newly constituted regime or of an old polity are often unclear about the scope and breadth of their power arrangements. As a consequence, these political engines are forced to grapple with friction between governmental institutions, conflict between the various levels of a federal structure, and even tension between the competing aspirational values or visions of a “more perfect union.”18 One of the most intriguing conflicts confronting a contemporary polity involves the tension that may arise between the regime’s principal public documents. A nation like the United States, where the Constitution competes with the Declaration of Independence for primacy in the minds and hearts of the citizenry, must consider how best to resolve differences in the messages espoused by its fundamental texts. Sometimes the attempt to come to grips with variations in national themes embedded in public documents is tragically unsuccessful—witness the American Civil War.
At the center of these and other conflicts lies the constitutional text. Let us expand the discussion a bit by considering what is at stake when constitutions are incapable of managing conflict. Many scholars have insisted that the primary purpose of a constitutional text is to structure institutions in such a way that political conflict is minimized and regime stability is maximized. Mariah Zeisberg refers to this line of constitutional inquiry as the “settlement thesis.”19 She argues that settlement theorists are “mesmerized by the role of the Constitution in resolving legal disputes,” especially when they insist on arguing that a constitution’s “only purpose lies in political settlement.”20 Among others, she contends that Alexander Hamilton’s vision for the American polity rested in large part on the principle that a constitution’s primary function was in settling political disputes. In her estimation, the idea that an independent judiciary was constructed so as to remain largely detached from the pressures of political interests is further evidence of the founders’ view that the text could, and should, act as the nation’s primary rulebook.
Zeisberg’s examination of the “settlement thesis” includes a useful evaluation of the reasons why so many observers see conflict management as one of the major features of a constitutional text. She notes, for example, that constitutions provide a stabilizing force for the polity, an original source for political actors to appeal to when political stability is threatened. Insofar as the text orders a political environment through self-conscious structural design and identifies the powers delegated to the various institutions of government, it becomes the single prism through which institutional conflict must pass. That is, the primacy of a constitutional document, acting as the supreme law, means that disputes between governmental agencies, offices, and individuals is often (though not always) resolved by reference first to the provisions of a constitutional text. Often the constitution is not the document that provides the key to resolving the conflict, but it is frequently considered before all other sources are utilized. As the centerpiece of a polity’s fidelity to the rule of law, it is the primary source for fixed legal and political rules.
In some sense I may be downplaying the obvious: the legitimacy of constitutionalist constitutions rests on their ability to resolve political conflict. If we are to agree that constitutional documents are designed in part to limit the power of the sovereign by establishing preexisting rules that will govern political relationships, then their authority or legitimacy is linked directly to their capacity to maintain political order over time. In Larry Alexander’s words, “Constitutionalism implements the rule of law. It brings about predictability and security in the relations of individuals to the government by defining in advance the powers and limits of that government.”21 Similarly, Richard Kay insists that we can measure the effectiveness of a constitutional text by considering how well it promotes long-term planning, or the capacity of institutions and individuals to have faith that their plans will not be disrupted by arbitrary and capricious state action. He argues, “A constitutionally defined government with extensive granted powers is, in some ways, less dangerous than a weak government whose powers are not defined by prior law. … The special virtue of constitutionalism, therefore, lies not merely in reducing the power of the state but in effecting that reduction by the advance imposition of rules”22 His point is clear: pre-established, fixed, and transparent constitutional rules are essential for the long-term health of a polity.
The occasionally heated debate surrounding the need for a formal, written constitutional text in Israel nicely illustrates the point. At present, Israel’s constitution consists of a series of texts (the 1948 Declaration of Independence, the 1950 Law of Return, the 1952 Covenant Between the State of Israel and the World Zionist Organization, and the Basic Law). But practically since the moment of Israel’s modern birth, a number of constituencies have pressed for a more traditional constitutional charter. The country’s Declaration of Independence, in fact, stipulates that a formal constitution will be drafted “by a Constituent Assembly not later than the first day of October 1948.” The expectation at the time was that a country as potentially divisive as Israel was perfectly suited for the calming and stabilizing influence of a constitutional text. Political order likely would be maximized by the presence of a supreme law that predetermined many of the state’s institutional power relationships. However, it was not to be. As we now know, October 1, 1948, came and went, and no constitution was enacted either on that day or any day since.
The absence of a formal constitutional text in Israel has not gone unnoticed.23 From time to time over the last sixty years, pivotal political, cultural, and religious figures have floated the idea of adopting a constitutional text to add a measure of stability to a notably insecure region. Most recently, former Prime Minister Ehud Barak made the adoption of a constitutional text one of his primary campaign pledges during the 2000 election. Barak’s plan for a formal constitution was part of a larger initiative that he called “civic revolution,” in which Israel was to undergo significant secular reform. A new, written constitution fit neatly into his proposal primarily because his image for a constitutional document included a number of secular components, including provisions for the protection of individual rights and clear limitations on institutional authority. Ultimately, he was not successful in bringing his dream of a formal, written constitution to reality, but his reasons for embracing the idea were reminiscent of ones that have resonated throughout Israel’s half-century of sovereign statehood.
Support for the adoption of a written constitution has always concentrated on a few primary themes, all of which claim some connection to the aim of long-term regime stability. One of the leading experts on Israeli constitutionalism describes the early debate in these terms: “The proponents of a formal constitution [maintained] that a constitution would protect individual rights by establishing written limits on the power of the majority; that it would stand as a symbol of Israeli independence and status within the international community; and that it would serve the pedagogical purpose of educating a diverse population in the political principles of the regime.”24 Opponents suggested that a written constitutional text was unnecessary and would compete with the Torah for supremacy within the religious state. In the minds of such monumental figures as David Ben-Gurion, a constitution with pre-established constraints on the power of the government would make it difficult to maintain the type of policymaking flexibility that a non-secular, particularist regime requires.25 Consider Menachem Begin’s words during the First Knesset: “If the Constituent Assembly legislates a constitution, then the government will not be free to do as it likes.”26 It is somewhat ironic that detractors have successfully argued that a formal constitution in Israel, precisely because it ties the hands of government, would lead to less regime security rather than more.
So far the opponents of constitutional adoption have had the better of the debate. They have managed to quell any significant movement in favor of radical constitutional change. If we focus on the ambitions of those who favor the enactment of a new, formal text, however, we are able to see that much of their platform is directed to the need for greater regime stability and security. The inclusion of a Bill of Rights to Israel’s constitution, many insist, would have the effect of reaching out to minority religious and ethnic groups who have long felt oppressed by governmental policies. Likewise, a written constitution that orders the political institutions of the political regime in a reasonably transparent fashion might go a long way toward appeasing communities that believe the largely unconstrained authority of the state has contributed to ongoing violence. To be sure, the debate is much more complicated than I am intimating. There are multiple reasons why some in Israel have sought a constitutional list of freedoms or a more tangible limitation on political power. Yet it is not unfair to suggest that the primary theme of the entire discussion of constitutional transformation is increased regime stability. A constitutional document, some contend, might be one considerable step toward greater peace in the region.
The Paradox of Text and Time
Perhaps the most intriguing puzzle in all of constitutional theory—and certainly one that regularly appears in the literature on constitutional conflict—involves the relationship between text and time. Laurence Tribe, among the most visible constitutional scholars of his generation, was so curious about the relationship that he opted to introduce his famous treatise, American Constitutional Law, by exploring it. Less visible though no less talented scholars have also been intrigued by the connection.27 The puzzle is this: how can a constitutional document, written so many decades ago by individuals who could not have conceived of the complexities facing modern society, still control and constrain present majorities? Why, in other words, should the interests of the contemporary citizenry be controlled by a symbolic (or spiritual) commitment to a text that these citizens had no hand in enacting? Why, Tribe wondered, would a nation “that rests legality on the consent of the governed choose to constitute its political life in terms of commitments to an original agreement?”28
Such is the nature of constitutions. Their authority, especially relative to the comparative authority of derivative institutions and constituencies, is always dubious. In a literal sense, most constitutional texts, including the U.S. Constitution, are inherited documents; those who abide by the rules set out in the charter were not literally participants in the document’s construction or ratification. Instead, they consent to the stipulations articulated in the text by pledging an abstract and often indefinable oath to the values expressed within and, more intangibly, to the future success of the polity. This oath, as Sanford Levinson implies, likely resembles the type of pledge one takes as a born citizen of a particular nation: it is steeped in a sense of belonging and the need to identify oneself as part of a collective whole—and yet, for many, its bonds are shallow and artificial.29 They are based on the concept that as long as one physically lives in a particular territory and one does not seek revolutionary reform of the political structure, one tacitly assents to the constitutional guidelines that inform that polity. Fidelity to the text, in short, becomes in large part a simple product of the duties of citizenship.
The situation in the United States is instructive. Inhabitants of the United States demonstrate allegiance to the Constitution, not by continually ratifying the document (although that might be preferred),30 but by simply acknowledging its fundamentality. Perhaps because of the reverence most Americans have for the country’s founding documents, citizens often consent to the authority of the constitutional text by taking its primary features for granted. They unwittingly acquiesce to the centrality of the constitutional charter by refusing to question many of its components or, in the most extreme case, its overall wisdom. As a result, a constitutional dispute in the United States is often centered on particular institutional interpretations of the text and rarely on the Constitution itself. The judiciary, the legislature, or the executive is often criticized for its erratic and un-principled elucidation of the supreme law, while the Constitution itself remains largely (though not always) immune from the same type of intense scrutiny.
On those occasions when citizens are asked to intentionally confirm their commitment to the values espoused in the Constitution, it is typically done by reciting the “Pledge of Allegiance” or singing the National Anthem at the opening of the school day, at ceremonial celebrations, or at sporting events. The “Pledge of Allegiance” (which is not just a pledge to the Constitution, by the way) is seemingly ubiquitous in certain environments, and for many it is a meaningful expression of one’s dedication to the country’s primary values. For others, though, the Pledge is routine and hollow. To be sure, a commitment to national identity and the constitutional text is far more complex than can be captured in a few short sentences. One must consider the importance of a shared language, history, culture, celebration, and tradition—even a shared recovery from a regrettable past is a powerful binding agent. The larger point is captured, nonetheless, by remembering the central paradox of constitutional theory: that as soon as a country’s supreme law is drafted and ratified, its separation from the actors who conceived of its structure and aspirations, and who literally endorsed its first principles through ratification, begins.
I am certainly not the first student of constitutional theory to ponder the paradox. Stephen Holmes is perhaps the most curious about the subject. He refers to this aspect of the constitutional enterprise as the “discord between majoritarian politics and constitutionally anchored restraints.”31 If constitutionalism insists that certain decisions will be “removed” from the purview of contemporary majorities because they might interfere with individual rights guarantees or governing processes, then the capacity of a democratic people to attend to the common good is clearly restricted. Holmes and others have spent much of their careers contemplating the tension that exists between the principle of democracy, where power is vested in a current people as sovereign, and the constitutional ideal, where that very power wielded by those contemporary citizens is limited in the name of original ambitions such as justice, equality, liberty, stability, and the rule of law. Holmes has hinted that there is something troubling about ordering a political society around the principle of “precommitment.” He even goes so far as to conclude that constitutionalism is inherently “antidemocratic” and that the concept of constitutional democracy is a “marriage of opposites, an oxymoron.”32
The tug that inevitably surfaces between a present majority and a polity’s longstanding commitment to a preexisting or original set of first principles is one of many related conflicts that plague contemporary constitutional democracies. The importance of the temporal conflict, however, should not be understated: at the heart of all derivative debates about constitutional conflict lies, in some way, the paradox of text and time. Debates surrounding the institutional arrangement of governing bodies, the scope of power retained by those institutions, and even the moral tension that arises when cultural values become out of step with constitutional values, all put pressure on the enduring quality of a constitutional text. As the distance traveled between the original act of enactment and the present increases, that pressure will also rise. Individuals begin to wonder whether the constitution accurately reflects the will of the present people and whether it still serves its original purpose.
Many scholars have attempted to tackle the temporal question from other perspectives. Joseph Raz, for one, has provided interesting insight into the lasting authority of constitutional texts.33 His central question focuses on how a constitution remains authoritative over time, and his answer admits to the differences between new and old texts. He contends that in all cases constitutions derive their original influence from their principal authors. The legitimacy of a constitutional document, particularly at the exact moment of framing, correlates directly with the moral legitimacy of those tasked with the responsibility of crafting the document. If constitutional draftsmen are viewed as morally legitimate, Raz claims, the product of their endeavors will also be seen as morally authoritative. Over time, of course, the moral legitimacy of the framers may begin to fade, and thus Raz is fittingly curious about how older constitutions can sustain their legitimacy in the long term. Is there an expiration date for constitutions? he wonders. Should there be? In essence, he is asking a variation of the same question that absorbed Jefferson more than two centuries ago: should a polity convene a new constitutional convention every generation because the legality of the text and its constitutive power will inevitably diminish? According to Raz, the answer depends on the particular polity and its peculiar circumstances. The continuing authority of constitutions, he says, will depend on many other factors, including the symbolic value of the document and whether the provisions of the text are morally sound. The quality of a constitutional charter older than a generation or so, he concludes, is contingent on the extent to which that document maintains its moral standing.
Raz’s argument about the dependency of moral factors on the longevity of constitutions is debatable. What is not controversial is his focus on issues related to authority, temporality, and particularism. The legitimacy of a constitutional document does depend on its capacity to remain, in the eyes of the citizenry, more or less up to date. Its authority, and thus its ability to resolve political conflicts large and small, fluctuates not only with vacillations in the expressed values of a regime but also with time. And each regime is different. Some older constitutions, like that in the United States, still maintain much of their original authority, while others (many of which are no longer around) have lost their influence. In those latter cases, what contributes to the loss of legitimacy varies widely, but certainly in many instances an important factor is the increasing incapacity of constitutions to manage a multitude of political disputes. Political conflict, if left unresolved, can destroy a constitutional regime.
One final point before turning to the process of constitutional amendment: what makes the management of political conflict all the more important is that the credibility of the constitution is occasionally at stake. If political conflict becomes so protracted or the tactics of the political officials become so vicious, political leaders may clamor for constitutional change or dissolution. The recent experiences in South Africa and Canada are illustrative. Each of these countries has witnessed in the past several decades political battles that threatened the continued unification of the state. Each, in a sense, witnessed the toppling of a previous constitutional order and the emergence of a new (or, as in Canada, an altogether restructured) constitutional form. In the case of South Africa, the enduring conflict centered on the marginalization of the black majority; whereas in Canada, the discord revolved around the apparent disenchantment of the minority French-speaking population. In both of these instances the political battle erupted into a full-scale constitutional crisis. In a sense, then, perhaps Tocqueville only captured part of the picture. Speaking about nineteenth-century America, the Frenchman insisted that almost every political question eventually becomes a judicial question.34 At the moment, it may be more accurate to say that in most of the world’s constitutional democracies political questions, whether they intend to or not, inevitably become constitutional questions.
Amending the Constitution
Throughout this chapter we have concerned ourselves with the perennial problem of constitutional conflict. How does the constitution respond to political and legal disputes that arise from its institutional creations? How does a constitution endure when its central principles are no longer reflective of the beliefs held by the present majority? Why is a constitution so crucial to the polity’s main objective of regime stability? The answers to these and similar questions have been varied and, to this point, incomplete. It is now time to raise the stakes a bit. What, we might ask, happens when conflict takes on a more threatening posture, when it is so intense, protracted, or politically expedient that literally altering the constitutional text becomes prudent or necessary? In the remainder of the chapter we will consider the issue of conflict as it relates to constitutional maintenance and ask one fundamental question: How does a political society maintain a constitution over time when forces are constantly being exerted to destroy it? The answer, I suggest, can be found in the principle of amendability.
We begin with a few definitions. To amend is to compensate or to make something whole. The word amendment itself is defined as “an addition to, or correction of, a document, law, or constitution.”35 The concept hints at the need for renewal or revitalization, that something is broken or incomplete and requires supplemental action to make it whole again. A rather innocuous interpretation of the principle of amendment would suggest that the constitutional break requires only a minor adjustment, one that is satisfied by a single, often specialized, addition to the text. The history of amending the U.S. Constitution, if we begin after 1791 when the first ten amendments to the text were ratified primarily as a package and if we exempt the Civil War Amendments, supports this interpretation. Constitutional amendments have been, for the most part, individual and often isolated attempts to manage specific political, legal, and cultural problems. We need look no further than the amendments ratified in the twentieth century to illustrate the point. Some amendments, like the Nineteenth Amendment, which extended the right to vote to women, have had a profound impact on the body politic. Others, like the Eighteenth and Twenty-First Amendments, which essentially cancel each other out, have not had the same effect. All amendments to the U.S. Constitution that have been drafted and ratified in the twentieth century, however, involve specific, though largely isolated or independent issues.
There is, of course, a more provocative interpretation of the concept of amendment. It comes originally from the prominent historian of the American founding, Gordon Wood. In his seminal work The Creation of the American Republic, 1776–1787, Wood remarks that the amendment process is akin to legitimate institutional “revolution.”36 He cites a statement by the American founder James Wilson as capturing the sentiment of the time: “This revolution principle—that, the sovereign power residing in the people, they may change their constitution and government whenever they please—is not a principle of discord, rancour, or war: it is a principle of melioration, contentment, and peace.”37 Bruce Ackerman has made a parallel assertion. His view of the period of reconstruction surrounding the adoption of the Thirteenth through Fifteenth Amendments is that it has come to represent one of America’s major constitutional transformations.38 It did more than just change the wording of the text, according to Ackerman; it altered the entire direction of the polity. The alteration of constitutional sentiments through the amendment process represents a revolutionary—albeit peacefully revolutionary—moment.
In every sense both Wood and Ackerman are correct: the ability to amend the constitution is a powerful, and possibly revolutionary, entitlement conferred by the original sovereign on the present population. In the rather capable minds of these two scholars, the aim of a constitutional amendment is primarily corrective: to alter the text in such a way as to more accurately capture the vision of political life that will help deliver on the aspirations laid out in the document’s preamble. That course correction can be subtle or, as in the case of America’s Civil War Amendments, it can be “revolutionary.” More accurately, it is the process of reconstituting the polity through the act of addition. Amending a written constitution always entails adding to the text, even when the ultimate goal of the change is to repeal provisions believed to be outdated or politically controversial.39
Before proceeding to a case study examining the profound power of amendability, it is essential to highlight the concept of process, for any robust definition of amendment must also include an important procedural component. It hardly requires mentioning that in most constitutional democracies around the world amending the constitution warrants a more demanding process than does the passage or alteration of simple legislation. The constitutional amendment process, therefore, is often more complicated, requiring a higher threshold for consent or acceptance than simple legislation, which typically requires only majoritarian support.40 One unique feature of most constitutional amendment processes is that they are theoretically unrestricted. The only regulation on the scope and substance of a constitutional amendment is the sense of self-restraint exhibited by the proposing institutions (typically legislatures) and the ratifying populace. In most cases the fact that a constitution includes provisions for amendment means that, if taken to the theoretical extreme, the text itself can be amended entirely out of existence through internal procedural mechanisms. A fair and legitimate process, even one that presumably requires super-majoritarian support, could conceivably lead to the perfectly legal destruction of the polity’s constitutional order.41 Such a scenario is unlikely to occur in the extreme (although it is conceivable, as Ackerman contends, to imagine amending the constitution in such ways as to effectively transform a polity altogether), but it does demonstrate the power of amendability. Control over the authority to amend the text represents the highest power in a nation’s political life.
It seems profitable at this point to conclude the exploration by considering the role of constitutional amendment in shaping the political landscape of a polity outside the United States. Article V of the U.S. Constitution, while deeply interesting and profoundly influential on the world stage, does not represent the most useful illustration for our particular purposes. Instead, we look again to the north, where it can be argued that no nation over the past several decades has wrestled more thoroughly with the idea of constitutional amendment than has Canada.
The Canadian Illustration
At various times in Canada’s history, the country has undergone radical constitutional transformation, all without scrapping the original 1867 Constitution and starting anew. Most recently, Canadians fundamentally altered their constitutional document by endorsing the Constitution Act, 1982, whose most famous section includes the Canadian Charter of Rights and Freedoms. Amending the Constitution Act, 1867, to include an extensive list of rights and freedoms has had a significant impact on the politics and culture of a nation struggling with its multicultural identity. Consistent with the theme of this chapter, it has also remedied some political and legal divisions while creating others.
Specifically, Canada’s constitutional change has produced two significant consequences. First, it has united the nation’s people in some unexpected ways. Recent survey data points to a country that is more comfortable with its linguistic, ethnic, and cultural differences now than it was just two decades ago.42 The second major consequence of constitutional amendment in Canada relates to the principles of national sovereignty and colonial independence. Amending Canada’s original 1867 Constitution to allow for the recovery of autonomous control over any future revisions to the text has at long last released Canada from its colonial legacy. One of the last remnants of British authority over Canada—ultimate jurisdiction over constitutional change—was finally erased when the Constitution Act, 1982, was enacted.
The history leading up to the drafting and ratification of the Constitution Act, 1982, and in particular the Canadian Charter of Rights and Freedoms, is long and complicated. It includes Pierre Trudeau’s stunning victory for the Liberal Party in the 1980 elections; the contentious debate surrounding the attempt to “patriate” or modernize the Canadian Constitution of 1867 so as to more accurately reflect the polity’s linguistic, ethnic, religious, and regional diversity; and the concerns expressed (particularly in Quebec) about retaining cultural identity in the wake of constitutional reform.43 Central to the discussion surrounding the apparent need to reform Canada’s constitutional order was the contentious and seemingly ubiquitous showdown between defenders of greater federal power and advocates of primarily provincial authority. The debate was especially heated in Quebec, Trudeau’s home province and the region of the country most concerned about meaningful provincial autonomy. It is hardly surprising that Quebec, an enclave of French Canadians surrounded by the majority English-speaking population, would express a certain degree of anxiety over any plan that might shift primary decision-making authority away from the provinces and to national governmental institutions.
According to Peter H. Russell, Prime Minister Trudeau’s 1980 resurrection from political defeat presented him with an opportunity to fulfill his primary dream of greater national unification through a stronger federal government and a more robust and reflective constitutional text.44 Trudeau, himself a French-speaking Canadian, recognized that the central problem in Canadian politics revolved broadly around deep cultural divisions. Questions related to federalism, accommodation, provincial autonomy, sovereignty, rights, and so on, were all in one way or another connected to the issue of cultural hegemony. Quebec, for example, posed a problem to those who sought greater national harmony. Leaders like Rene Levesque were instrumental in keeping the Quebec separatist movement at the forefront of Canadian politics. Although ultimately defeated, a number of referenda were proposed that would have made it possible for Quebec to secede altogether from the Canadian confederation.
Trudeau’s purpose for adopting a constitutional list of freedoms (incidentally, after his hope for more comprehensive reform was rejected) was based largely on the principle of compromise. His stated goal was to embed a wide assortment of rights into a fragile constitutional system that faced the very real possibility of rupture. Specifically, he sought, and successfully achieved, the entrenchment of standard individual freedoms like the right to free speech, assembly, religion, and certain procedural guarantees. More interestingly, Trudeau envisioned a section that would guarantee broad equality for all citizens, a dream that would eventually become a reality in sections 15–22 of the text. Still, the real revolutionary idea reflected in the text is the inclusion of “Minority Language Educational Rights” beginning in section 23. Here the constitutional framers, inspired by the vision of the country’s prime minister, sought a remedy for years of political turmoil over linguistic and cultural differences by using the power of the constitutional document. The specific details of Canada’s Charter of Rights and Freedoms, and in particular the important role that personal and cultural identity played in the formation of a new constitutional order, will be discussed later, in chapter 6. For now it is important simply to mention the consequence of Canada’s constitutional transformation. Current data reveals an interesting picture about the use of constitutional revision as a means to manage political and legal conflict.
In direct response to many of the potentially destructive political issues facing Canada at the time—including Quebec separatism, minority rights, and cultural identity—the Charter was formally introduced. It managed to accomplish many of the goals Trudeau envisioned. Although the Quebec legislature’s initial rejection of the Charter was a setback, current survey research indicates that over the past quarter-century an overwhelming majority of Canadians have come to believe that the list of rights and freedoms is a “good thing for Canada.” According to the Center for Research and Information on Canada (CRIC), 88 percent of Canadians now support the Charter. And 72 percent of those surveyed also believe that the constitutional document is adequately protecting citizens from potential government abuse. What is most interesting is that support within the provinces does not seem to vary widely. The western Canadians polled endorsed the Charter at a rate of 86 percent, while in Quebec, arguably the province most affected by the amendment, more than 9 out of 10 citizens polled pledged their sponsorship of the document (91%). In fact, provincial support for the Canadian Charter of Rights and Freedoms was highest in Quebec.45
Andrew Parkin of the CRIC has interpreted the survey data. His findings confirm the contention that the Charter has defused a considerable amount of the political tension facing the country over the past several decades. In his words, “The Charter has become a living symbol of national identity because it defines the very ideal of Canada: a pluralist, inclusive and tolerant country, one in which all citizens can feel equally at home. What Canadians like most about the Charter are precisely those aspects that underpin the maintenance of unity—protection of official languages, multiculturalism, and equality rights.”46 As evidence, Parkin points (among other places) to the data that indicates that more than 86 percent of English-speaking Canadians feel that French-speaking families have the right to educate their children in their native tongue, while an even higher percentage of French-speaking Canadians (88%) support the idea of native language education for their English-speaking neighbors.
Of course, this evidence alone is not conclusive. Other factors beyond the enactment of the Charter of Rights and Freedoms are no doubt also responsible for the overall attitudinal development in Canada. Nonetheless, there does appear to be some sense of tangible accommodation brought on by the newly revised constitutional document. Insofar as the Canadian Charter of Rights and Freedoms set out to increase the national sense of unity and provide a degree of stability to a fractured nation, it has succeeded. By almost every measure, Canadians have embraced the amended constitutional text. In the process, they have reconceived their legal and political relationships.
A renewed national unity is not all the amendments to Canada’s original constitution were able to accomplish. More intriguing even than the story behind national unification is the role the amendment process played in marking an end to Canada’s colonial tradition. The country’s original 1867 Constitution had no provision for altering the text through amendment, and thus formal changes to the document were made only with the approval of the British Parliament. Peter Hogg described the rather unorthodox situation as Canada’s “imperial amending procedure.”47 In essence, Canadians were left without final jurisdiction over their constitutional text because all changes required approval from the British Parliament. A colonial power, in other words, maintained ultimate jurisdiction over Canadian constitutionalism.
For most of Canada’s modern history, the paternalistic amendment process left many citizens uneasy. Canada established her independence from Britain in the nineteenth century, and yet the British monarchy retained veto power over the country’s most serious constitutional decisions. Hogg was careful to note, however, that the process was not one that left Canadians entirely without power. A longstanding convention existed whereby the British Parliament would not impose constitutional amendments unilaterally. Textual amendments would be introduced initially by Canada’s national or regional governments and then passed before the British legislature for ratification. Consequently, Canadian citizens maintained meaningful control over the direction of their constitutional text, even if the ultimate power rested with the country’s original colonial overseer. But still, as Peter Russell noted, “the debate over a Canadian amending formula involved nothing less than the question of who or what should be constitutionally sovereign in Canada.”48
The power to alter the constitutional text through amendment is essential to the concept of national sovereignty. A country cannot be said to control its own collective destiny without also maintaining jurisdiction over changes—both large and small—to its fundamental law. For many decades, Canadians lacked that authority. Yet as soon as Trudeau and his immediate followers announced a plan for radical constitutional transformation, they implicitly declared their intention to recover sole constitutional sovereignty for Canada. The Constitution Act, 1982, although controversial at first, at least satisfied one concern of a majority of Canadian citizens: it eliminated the imperial check on constitutional amendments. “Part V of the Constitution Act, 1982,” says Hogg, “introduces into the Canadian Constitution a set of amending procedures which enable the Constitution Act, 1867, and its amendments to be amended within Canada without recourse to the U.K. Parliament.”49 For the first time, Canadians gained exclusive control over their fundamental law. Adapting to cultural and political changes would now remain within the jurisdiction of Canada’s political institutions. The irony in bringing the Constitution Act, 1982, to fruition was that it too had to be accepted by the British Parliament. Canadians, in essence, were required to request permission to recover the authority to control their own constitutional destiny. In many respects, seizing complete jurisdiction over the amendment process represents the culminating statement of Canadian independence and sovereignty. And it happened through the power of constitutional amendment.
Conclusion
When we step back and look at the universe of political regimes today, a few trends become immediately apparent. First, politics remains a highly contested arena, a place where individuals and organizations fight relentlessly for even the smallest power advantage. It seems that public officials and ordinary citizens are regularly contesting the minutest details of political authority. Comparing the strength and vigor of political conflict across time is obviously impossible, but it is not unreasonable to assume that contemporary political and legal differences are just as nasty and vicious today as they once were. The constant battle to establish oneself as an actor in the political process has not waned in the past several generations. If anything, more and more institutions and individuals are vying for less and less political and legal turf.
There appears also to be no respite in the public’s cynical attitude toward politicians. In many Western cultures especially, governmental officials are suspicious characters, viewed by ordinary citizens as attracted primarily to the power that accompanies the job and rarely to the call for public service. Not often in contemporary politics is an elected official seen as purely altruistic, a statesman who entered the political arena not for personal gain but for the collective good of the population. It is a sad commentary on contemporary politics that politicians are constantly defending their honor.
Relatedly, another trend in contemporary politics appears to be an increased demand for greater governmental accountability. Interest groups dominate much of contemporary politics, and often their advocacy takes on the appearance of oversight. They are the current watchdogs of the political world. Even in those polities where interest groups do not enjoy relatively open access to political institutions and officials, other organizations (like the media) are quick to take on the responsibility of scrutinizing all types of governmental action.
The broader point revealed by this watchdog mentality and by the other trends mentioned above is largely reminiscent of James Madison’s concern regarding the true nature of man. He believed that “men were not angels,” that they were easily tempted by the prospect of increased power, and that they could not be trusted. Troubling for Madison was that government, which he insisted is “the greatest reflection on human nature,” deals almost exclusively in the currency of power. To the primary architect of the American Constitution this reality was disconcerting, but it also presented interesting possibilities for political design. His complex response to the wariness of placing power in the hands of easily corruptible humans was to create “auxiliary precautions”—constitutions, in other words—that are aimed at combating the worst impulses of humankind. These constitutional texts, he remarked, are indispensable tools for managing the type of conflict that inevitably arises in political systems not administered by angels. The Virginian understood, in short, that one of the primary functions of a constitutional draft is to manage political and legal conflict.50
Madison’s strategy for dealing with conflict is now wildly popular. In direct reaction to the wave of political and legal conflict over the last few centuries, countries have consistently turned to constitutional documents to help manage their feuding institutions. In just the past fifty years more than half of the countries of the world have founded new constitutional regimes on the principle that codified rule can provide meaningful benefits to fractured polities. As faith in the rule of law has swept across the globe, many nations have crafted constitutional texts that aim to increase transparency and provide adequate guidelines for political jurisdiction. These constitutions, that is, were adopted so as to attack the pervasive problem of political and legal conflict. Some have been successful and some have not. What is remarkable is the almost universally shared belief in the ability of constitutional texts to manage institutional disputes. When faced with profoundly damaging disagreements, regimes like Canada have resorted to constitutional change as the principal way to transform the polity. The goal is always the same—increased regime stability—and the remedy adopted by political regimes around the world has become increasingly consistent. In the end, many constitutional framers have taken seriously the admonition expressed by Publius more than two hundred years ago: “The subject [of constitutional formation] speaks its own importance; comprehending in its consequences nothing less than the existence of the Union.”51
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