The Pathos of Politics – Constitutions


Most states sport a constitution which codifies the powers and rights that recognized entities are entitled to. Often, a constitution also circumscribes limits to those powers and rights. The recognized entities are typically branches of government, constituent territories (such as states within a federal nation), and sometimes the citizenry as a collective institution, with the constitution granting them inalienable rights.

Britain is unusual in lacking a document that serves as a written constitution. (The Catholic Church also lacks a constitution.) With its long history of relative political stability, UK governance is instead guided by its accumulation of legal conventions, statutes, treaties, and judicial decisions.

In stark contrast, Germany’s Basic Law is a response to the turmoil of the 20th century, especially the Nazi era. Its detailed constitution serves as much as an elaborate check on political power as it does a grant.

No constitution, even Germany’s, states all the rules covering the distribution of power. Instead, a constitution lays out a basic structure and mechanics.

The difference between the constitutional informality of the UK and the specificity of Germany’s constitution reflects national political evolution. Whereas older constitutions are brief, newer ones are more complicated. This partly reflects the growth of state power in all spheres of life. Newer constitutions spell out that power so as to preserve it for the entitled entities.

Above all, in setting rights and powers, constitutions are intended to establish rule of law. This is a guise. Constitutions commonly only suggest the values and mores upon which laws are supposed to be drafted, and by which states are supposed to conduct themselves.

The US constitution in its preamble indicates nothing more than the intent to “establish justice, ensure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty.”

Disparity grows in time between the formal rules of a constitution and exercised political power. In reading the US constitution, one would think its electoral college a powerful body, as they are elected to meet and select a president. In practice, the electoral college has become a toothless ratification of citizen votes on a state-by-state basis.

Design Principles

4 principles are key to constitutional design: degree of specificity, treatment of tradition, amendability, and incentive for compliance. Specificity is not necessarily an advantage. Napoléon once said that a constitution should be short and obscure.

Germany’s Basic Law may have averted another Hitler, but it has also provoked political paralysis. In 1972, the government of Willy Brandt had lost so much support in the parliament that it could not even get a budget passed. Brandt wanted to step down and call for a new election. For 6 months, no one could think how to accomplish this under the constitution’s complicated provisions, without Brandt’s party members voting themselves out of office, which they were unwilling to do.

In breaking with societal traditions, constitutions can lose their legitimacy. Outlawing alcohol consumption via constitutional amendment in the US backfired because it went against the long-standing American tradition of getting liquored up.

Sometimes tradition is exactly what constitution writers intend to break. Revolutionary states, such as China in 1949, have imposed new political systems that transformed societal expectations.

As constitutions are often imperfect documents in prognosticating a society’s future needs, there should be a way to sensibly amend them. Engineering such a mechanism has often proven problematic, especially when a constitution represents a struck bargain among conflicting interests.

Out of fear that a hard-fought compromise between states’ rights and federal power might be undone, the US constitution was designed to be difficult to change. As a result, aside a remiss citizen bill of rights, only 27 amendments have been made in over 2 centuries, and 2 of those amounted to nothing: the 18th Amendment prohibited booze, and the 21st rescinded it.

The lubricant for this inflexibility came from an unconstitutional power grab by the US supreme court to adaptively interpret the often-vague constitution. The result has been a history of caprice in constitutional law.

Denmark established its 1st modern constitution in 1849. Instead of amendment, the entire constitution has been replaced 4 times since (1866, 1915, 1920, 1953).

The 3rd principle is of incentive compatibility: a constitution should provide incentives for those in power to perform toward societal well-being.

In this, the US constitution fails miserably. Its lower legislative house is supposed to establish laws that benefit the country as a whole. Instead, the only incentive for house members is to serve the interests of those with power in their district. Exorbitant wasteful spending (called pork) is one result. Neglect of the powerless underclass is another.

If the US had stronger political parties, which could punish errant members, the personal incentives would be different. Instead, weak parties leave a severe incentive problem.

Power Locus

Writing a constitution is a messy business for new or transformed states. In creating the US legislative upper house (senate), small states were given a platform to defend themselves against the heavily populated powerhouse states in the northeast. This attempt to balance regional power has instead meant disproportionate power that is undemocratic.

The 2005 Iraq constitution attempted to temper the inherent tribal conflict between the country’s 3 ethnic/religious groups (Shia/Sunni/Kurds). It failed.

How much political power should be concentrated in a central government versus distributed among regions is a perennial constitutional dilemma. This is the single greatest source of ongoing political conflict.

In Spain, separatists have waged an intermittent campaign of terror for an autonomous Basque state. Canada has a perpetual constitutional tension between French-speaking Quebec and the Anglo rest of the country. Long-simmering Scottish nationalism has flared in the wake of Britain’s doltish exit from the European Union, which England supported but Scotland did not.

Central versus local control is dealt with constitutionally by deciding upon a unitary or federal state. A unitary state is one in which regional bodies are readily overruled by the central government, which indisputably has ultimate power.

By contrast, regional governments have distinct delineated powers in a federal state. The 2 governments – federal and regional – rule with regard to different political issues.

Worldwide, only 20 states are federal systems. The rest – over 170 – are unitary.

Federation is typically found in larger states where regions have conflicting interests. Such was the case in the US between southern states reliant on slavery and northern states with residual moral repugnance to it.

Though the 20 federal systems are only 10% of the world’s states, 38% of the world’s people live in them, and they cover 49% of Earth’s landmass.

Germany has a federation that generally works well. In contrast, provincial political power has eroded in the American federal system to the point of governance bearing only a bastardized resemblance of the constitution.

Many informal arrangements alter the centralizing tendency of unitary states and power devolution in federal systems. As always, money makes a difference. Distribution of revenues (tax collection) goes a long way in determining effective power.

Tradition also plays. Both France and Britain are unitary states where the central government garners most of the revenue (76% in France; 91% in Britain).

In the UK, the central government traditionally keeps loose control over local government spending and actions. Wales and Scotland have extensive autonomy on spending within their borders, even though revenues technically belong to the central government.

Conversely, for centuries French power has been firmly lodged in Paris. In 1981, President François Mitterrand instituted several decentralizing reforms, but the French political system remains strongly centralized.

Large and diverse states often loosen the leash of centralization to flexibly meet local needs. Still, the economic desirability of uniformity has mean that most industrialized states in the world are largely centralized when it comes to regulation of commerce.

Citizen Rights

Granting citizens basic freedoms, such as the liberty of practicing religion, or not being persecuted by ethnicity, does not feature in many constitutions. The US tacked on its Bill of Rights in 1791, just after its ratification by the 13 founding states in 1790.

While still a British colony, Canada had a citizen bill of rights in 1689. Its most recent (1982) constitution has no such provision. Instead, citizen rights are only quasi-constitutional, from a parliamentary act in 1960.

Australia’s constitution offers no protection for people. Granting basic civil rights and human dignities has been a task left to an often-indifferent judiciary. The result has been a history of flagrant abuse of prisoners, the indigenous population, and immigrants, including children.

(Australians as crudely uncivilized is a common generalization. The country was populated by the British from 1788 as a prison colony, and Australians too often live up to that legacy. Besides newsworthy cruelty toward people and other animals, Australians exhibit a wanton disregard for Nature.)

An Armed Citizenry

The 2nd and 3rd amendments to the US constitution were noncontroversial when they were passed. Both these amendments, taken together, were intended to prevent a military state, and to constrain the state from oppressing citizens. These federal constitutional amendments corresponded with several state constitutions.

The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature. ~ Massachusetts state constitution

Such constitutional clauses evolved from the bad experiences the British had with standing armies: a problem dating back to the early 17th century, when religious and political conflict tore at Britain’s social fabric. Britain exported the very same problem to its American colonies with its standing army, and the 1765 Quartering Act (following the French and Indian War), which compelled American colonists to house British soldiers.

(Housing soldiers in private spaces was common in Britain at the time. After all their troubles with standing armies, the Brits learnt nothing.)

Violence was sewn into the American experience. Colonists were, after all, seizing land from native inhabitants, and from other colonial powers. On top of all of this was the sustained sense of being unmoored from civilization: a frontier where brutality may be a matter of survival. That spirit lives on in too much of America.

The intent of the 2nd & 3rd amendments – to not have a standing army – has long been ignored. The 1st federal standing army was created by law in 1784, less than a year after the Revolutionary War army disbanded; a step from which the state never looked back.

While the 3rd Amendment has done nothing but gather dust, the 2nd Amendment – citizens’ right to bear arms – has been the subject of intense controversy from the 20th century on.

A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. ~ US Constitution, 2nd Amendment

Is the right to arms predicated upon their necessity for a militia? If not, why mention it? To date, the US courts have treated the preface merely as a non-restrictive statement of purpose. This goes against canonical interpretation of the constitution.

Its provisions are neither to be restricted into insignificance…. ~ SCOTUS Chief Justice John Marshall

Ending the senseless slaughter of citizens by citizens bearing firearms requires eviscerating the 2nd Amendment, by putting it into the perspective the framers intended. The effort to do so has been unsuccessful so far. Clearly, to advance to this civility would be un-American.

(36,252 people were gunned down in America in 2015.)

(Legalistically, outlawing guns can be done by recognizing that the preamble provided in the 2nd amendment is an essential context which no longer applies, as a federal standing army exists. In doing so, the courts would have to tacitly admit the unconstitutional presence of the federal military, go against the longstanding tradition of citizens bearing arms, and instigate the problematic process of weapons confiscation.)


Constitutionalism is the ostensible faithfulness with which constitutions are adhered to in letter and spirit. Constitutionalism has a strong streak in the UK, US, Canada, Australia, and New Zealand.

In the US, a supreme court insulated from political pressure can overturn any act of government it finds unconstitutional. Britain has only had a supreme court since 2009 but has centuries of tradition in court impartiality to politics.

Even in the foregoing countries, governments take unconstitutional measures during declared national emergencies. The UK held no elections during World War 2. The US stole the property of Japanese Americans and held them captive for the duration of that war.

Constitutionalism has been wobbly in France. In the 20th century, France had 4 constitutions and 9 different electoral systems. The party in power manipulates the media to its benefit, and French embassies aboard have committed electoral fraud in absentee voting. Aside from these cynical measures, thrice in the 20th century French military leaders abandoned democracy altogether and attempted to seize power. Twice they were successful.

Despite its tepid embrace of constitutionalism, France is shiny compared to most states in the world. China under Mao Zedong showed revolutionary zeal in producing ~65 million corpses of its own citizens. Later Chinese leaders displayed similar savagery, though not with such an imposing body count.

Examples abound of states around the world showing as much respect for their constitution as they do toilet paper. This is particularly true of those led by right-wing military leaders, but it also occurs in ones ostensibly democratically elected.

As American president, Donald Trump treated constitutionalism, and decency, as alien concepts, preferring instead mendacity. Only the courts made any attempt to keep him in line, while the Republican-controlled Congress merely cowered, unwilling to deal with the malevolent miscreant that hijacked the Republican party with his successful presidential bid.