Contents
How the constitution was invented and changed in different countries and why the basic law sometimes actually needs to be amended
Draconian measures: the history of constitutions
The first sets of fundamental laws appeared in antiquity. They were first recorded in Athens in 620 BC, it was about the management of the city. The need was urgent: the power belonged to the aristocracy, which was guided at its discretion by oral rules unknown to the poor inhabitants.
In Athens, they practiced cash loans secured by property, land, and even freedom. As a result, the population fell into debt bondage, large land plots were in the hands of the aristocracy, and the king weakened. If someone committed a crime, the consequences depended on which family the perpetrator and the victim belonged to. Often this led to blood feuds that could last for several generations. Aristocratic vendettas affected the entire city.
After an unsuccessful attempt to seize power by the Olympian Cylon, who sought to become a tyrant with the support of disgruntled poor residents, the aristocrats were forced to introduce common rules. The task was entrusted to the legislator Dracont, who fixed the existing laws and introduced new ones. Crimes among aristocrats were now resolved by the courts, and blood feuds became illegal. Three hundred years later, Aristotle emphasized the distinction between intentional and manslaughter. But besides this, the Draconian constitution was draconian – it is to him that we owe this expression. Many petty crimes, such as food theft, were punishable by death. For debts, it was still possible to fall into slavery.
As a result, the Draconian constitution did not last long and in the 590s BC, after another turmoil, was replaced by the laws of Solon. He held a debt amnesty, provided everyone with representation in court and expanded the qualification for presence in elected bodies – laying the foundation for Athenian democracy.
Aristotle was interested in the Draconian constitution along with other similar codes of laws – he was busy with the question of what a constitution is and how it should be arranged. Here is what he writes in his Politics:
“The state system is order in the field of positions; under it, all parts find a place for themselves either on the basis of the properties inherent in them, or by virtue of one or another rule that determines their equality from a general point of view (I mean, for example, a rule that balances either the poor or the wealthy, or the general for those and others). Thus, inevitably, there are as many types of state system as there are ways of government, depending on the superiority and distinctive properties inherent in the constituent parts of the state.
Aristotle seems to have been the first to separate constitutional laws from ordinary laws, that is, rules that establish “order in the field of offices.” In other words, the main task of the constitution is to describe the systems and procedures by which the state will be governed. Hence the idea of the primacy of the constitution over other laws.
Rights in exchange for interests
Constitutional documents continued to be written around the world. Among them, for example, “Russkaya Pravda” of the XNUMXth-XNUMXth centuries, which described judicial norms. But the modern theory and practice of constitutional construction began to take shape only in the XNUMXth century.
The key was the question of where the right to establish order in the state comes from and why everyone should follow this order – that is, the question of legitimacy. In the Middle Ages, the problem was solved simply: the biblical laws were considered the supreme laws, and the emperors, as proteges of God on earth, were crowned by the popes. In addition, the authorities relied on traditions – “so it was, so it is, and so it will always be.” With secularization, this approach began to falter and other grounds had to be found. This was the social contract.
Theorists of modern constitutionalism – Thomas Hobbes, John Locke, Jean-Jacques Rousseau and many others – proceeded from the idea that every person has natural rights. Freedom, justice, equality, protection from violence, the right to work (the list may change) belong to people by nature, by the fact of their relationship to the human race. The idea is not new – it was thought so even in Antiquity.
By entering into a social contract, people give up some natural rights or agree to their limitation, because it is in their interests. For example, we accept that our freedom may be limited by imprisonment if we commit theft – because we do not want to be robbed ourselves without any consequences. The main condition of this exchange is that the waiver of rights must be used in the common interest.
The details may vary – within the framework of this construction, both absolute monarchy and radical democracy can be justified. In any case, the basic laws of the state or the constitution become a document that fixes mutual obligations.
Translation problem
The word “constitution” comes from the Latin constituere – to establish, establish, arrange. In Russian, we use the word in this sense when we talk about the constitution of a person, meaning physique. English, for example, retains the meaning of the word constitution as a set of key principles, precedents, and procedures by which a state is governed. Therefore, they talk about non-codified – not recorded in a single document – constitutions. Such a constitution works, in particular, in Great Britain.
constitutional order
The constitution itself is nothing more than words written down on paper. The state becomes constitutional when the social contract, fixed in the document, really works. How it looks in practice:
procedure stability. Basic laws, rules and processes cannot be constantly and unreasonably changed. Citizens must know how government works in their country, and therefore be aware of the consequences of their actions. In unconstitutional regimes, citizens, including high officials, often may not know how they will have to behave tomorrow and “whether they will come for them.”
Government accountability. In constitutional democracies, the authorities are accountable to citizens through procedures: elections, determination of public positions, budgetary responsibility, elections to remove officials, referendums. The accountability of authorities makes it possible for citizens to be held accountable for the actions of their government.
Separation of powers on regional and federal, legislative, executive and judicial branches, creates a system of checks and balances. Citizens can influence the policies pursued by applying to various institutions.
Transparency of the authorities it is necessary that citizens have enough information to participate in governance – for example, through elections. Without transparency, it is impossible to ensure the accountability of the authorities, and hence the responsibility of citizens.
How do constitutions change?
Obviously, over time, the social contract becomes obsolete – and then the constitution needs to be changed. But the question of how this process should be arranged is extremely complex. One of the authors of the American Declaration of Independence, Thomas Jefferson, believed that the constitution should be changed every 19 years – during this time, according to his calculations, half of the inhabitants were updated, which means that the constitution no longer represented their interests. At the same time, today it is extremely difficult to amend the US constitution – even 2% of dissenting citizens may be enough for the amendments not to pass (but according to more realistic calculations, about 25% of citizens can block the amendments). It’s all about the fifth article: according to it, the amendment must first be approved by two-thirds of both houses of Congress, and then ratified by three-quarters of the states. As a result, from 1789 to 2019, 11 amendments were proposed, of which 770 were adopted.
The situation is similar in Denmark: there, in order to make amendments, a majority in parliament must first vote for them, and after the elections, the amendments must again gain a majority in the new parliament. After that, a referendum is held, in which the majority of citizens must vote in favor, and at least 40% of voters must participate in the referendum. Since 1849, when the constitution came into force, it has only been changed three times.
Indeed, the ease with which constitutions can be amended can lead to dire consequences. This happened to the Weimar Republic, whose constitution historian William Shearer called the most liberal and democratic in the 48th century. Article 1919 of this document allowed the president to introduce a state of emergency and change laws without the consent of the Reichstag. During the existence of the Weimar Republic (1933-XNUMX), presidents used this article more than a hundred times – from a way to cope with an emergency, the article turned into a tool for resolving uncomfortable situations.
After the fire in the Reichstag on February 27, 1933, the president issued a decree, again using Article 48. A month earlier, Adolf Hitler had become chancellor, but he lacked a majority in the Reichstag. The Nazi Party convinced the president that the fire was the start of a communist revolution. The decree restricted personal freedom, freedom of speech and the press, the right to assembly and privacy. The mandates of the deputies were annulled, after the re-election, the Nazi Party received a majority in the Reichstag and was able to pass the “Law for the Protection of the People and the Reich”, which gave Hitler dictatorial powers – while formally the Weimar constitution continued to operate until the overthrow of the Third Reich. A similar scam was done in Egypt. There, the state of emergency law operated continuously from 1981 until 2012 and became one of the causes of the revolution.
On the other hand, it is sometimes necessary to change constitutions, and in many countries this is a routine process. For example, in Germany, only the votes of two-thirds of parliament are needed to pass amendments. However, in most countries, changes to the constitution are usually either voted twice by the parliament – before and after the election – or after the approval of the parliament, a referendum is held.
Facade constitutions and their amendments
Many non-constitutional regimes, however, also have constitutions. They can serve different purposes – for example, to organize the administration of the state, that is, to serve as the basic law, without relying on a social contract. In other cases, having a constitution is useful for international relations. Facade constitutions are found in the Arab world, Africa, Latin America.
In such countries, fictitious constitutions can become workable, for example, with a change of parliament – and vice versa. The problem is that, in this situation, amendments often lead to a blurring of the separation of powers and the legal framework in general. Worse still, that’s what usually happens. Some researchers call these processes wiki-constitutionalism, since the basic law in such regimes is rewritten with the same ease as Wikipedia articles.
A telling story took place in Honduras. Under the 1982 constitution, the presidential term limit was one of the most stringent in the world. The president was forbidden to be elected for more than one term (neither in a row, nor after a break). It was impossible to change this article according to the constitution. Moreover, any official who attempts to change these provisions must be removed from office and may not return to civil service for ten years.
President Manuel Zelaya was elected in 2006 and immediately proposed replacing the 1982 constitution with a new one. He organized a referendum to decide by vote whether a constitutional convention should be called. The court ruled that it was impossible to change the constitution in this way, and Zelaya’s opponents accused him of wanting to change the article on presidential terms.
Two days before the referendum, top military officials took President Zelaya from his home and put him on a plane to Costa Rica.
Under the leadership of the interim government, a long crisis began in the country: protests, human rights violations, an increase in crime. In 2015, the court ruled that Zelaya’s removal from office was legal. But at the same time, he recognized as unconstitutional an article that limited presidential terms.
Unconstitutional constitutional amendments
– the idea that even those amendments that were adopted in accordance with all the rules of procedure may run counter to the constitution. For example, to enter into a conflict on the merits – that is, not to comply with the content and “spirit” of the basic law. If the constitution is changed to such an extent that it no longer looks like itself – for example, if the United States passed an amendment to ban free speech – then in essence it becomes a new constitution. And for its adoption, the procedure for introducing amendments is not enough – it is necessary to renegotiate the social contract.
Experts in the field of judicial review believe that such amendments can be considered unconstitutional. The case of Honduras is interesting because in it the article of the constitution itself, and not the amendment to it, was recognized as such.
Honduras is not an exception, but a typical situation. Wiki constitutions are often rewritten in an attempt to consolidate power. For example, right now in Zimbabwe they are trying to pass amendments that will allow the president to appoint the vice president, a number of ministers and judges of the supreme court at his discretion. Zimbabwe’s constitution is only seven years old and has already been amended once.
Recipe for success
A working constitutional system is a constant search for a balance between stability and flexibility. In this regard, constitutions are successful that maintain the stability of procedures, but are flexible in relation to changing circumstances. What unites well-functioning constitutional documents:
short rather than detailed
focused on procedures and processes (as opposed to content guidelines)
the content, if present, is described in an abstract, broad, or even vague way
procedures are in line with the political experience of the country.
Until July 1, 2020, voting on amendments to the Constitution of the Russian Federation is taking place. According to the VTsIOM exit poll, out of 163 people polled, 124% of respondents voted in favor of the amendments, while 76,0% voted against. 23,6% of respondents refused to answer sociologists’ questions. If the amendments are adopted, the text of the Constitution of our country will increase by a third – up to 29,4 words instead of 13.
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