Constitutions and the purpose they fulfil seem to vary according to who does the interpretation. Just north of our borders there is a constitution that is a pliable tool to grant legitimacy to anything the ruling president wishes to do. If he has a sudden need to violate a legitimate right of his citizens he simply changes the constitution to grant to himself whatever new power he wishes to acquire. In fact a constitution, under such circumstances, ceases to exist.
During the age of absolute rule by monarchs constitutions were created to limit the powers of the ruler. The idea that any one man or woman should have unlimited powers over the lives and property of others was considered abhorrent. First the nobles, and then the population as a whole, gradually accepted that State power must be bound by compacts or constitutions.
Yet how does such a mechanism function when the people are alleged to be the rulers through the democratic process? Where there were ruling classes the restriction of arbitrary rule was obviously necessary. However, the holding of democratic elections does not necessarily translate into a free and open society. Historical evidence that constitutions are no guarantee of protection against arbitrary rule can be found in the fact that Hitler was elected democratically. Also, the racist segregation laws in the American South were passed by democratically elected state legislatures. Majority rule can consequently be just a tyrannical as any king or dictator. No wonder Oscar Wilde called democracy “the bludgeoning of the people, by the people, for the people.”
The idea that the “people rule” is more illusionary than real. The people elect representatives but do not establish policy and they often have no idea precisely what policies are being supported in their name. And even in mature democracies the people are usually woefully ignorant about who is in government and what they are doing. But even if a pure and informed democracy existed a constitution would still be required to define the rights of the people and prevent them from being eroded by government.
Constitutionalists have long believed that individuals had rights prior to the establishment of any government. Thomas Jefferson wrote that each individual has “inalienable rights” and that “To secure these rights governments are instituted among Men, deriving their just powers from the consent of the governed.” That is the main premise of constitutional democracy. Governments have the task of protecting pre-existing rights and can therefore not be the source of rights. And governments are democratically elected for this one purpose alone.
Of course special interest groups may wish to have the rights or property of individuals confiscated for their own use. Constitutions therefore limit the powers of governments in a democracy to prevent such abuse. Majority rule does not make legitimate the violation of the rights of an individual or a minority merely because the majority is in favour of the violation. It did not justify Hitlers holocaust and it did not justify racist legislation in the American South. Rights are the trump card that individuals hold over all collective bodies.
Jefferson put it well: “It is ridiculous to suppose, that a man had less rights in himself than one of his neighbours, or, indeed, than all of them put together.” For that reason majorities can not deprive individuals or minorities of their rights to liberty or property. So in a democratic society a constitution serves the same purpose of restricting the power of the majority as it did in restricting the power of monarchs.
Democratic elections do not adequately protect rights. Again as Jefferson put it: “It would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights; that confidence is everywhere the parent of despotism: free government is founded in jealousy and not in confidence; it is jealousy and not confidence which prescribes limited Constitutions to bind down those whom we are obliged to trust with power… In questions of power then let no more be heard of confidence in man but bind him down from mischief by the chains of the Constitution.”
There are fundamentally only two ways to obtain wealth: create it or steal it. The confiscation of wealth is particularly easy through the political process. But stealing the property of others is a violation of their rights. Governments, whose legitimacy is founded on protecting rights, can too easily be turned into engines for legalised plunder. The French liberal Frederic Bastiat, in 1850, called this the perversion of law. When this happens governments, instead of protecting rights, act to destroy them. “The law has placed the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the person, liberty, and property of others. It has converted plunder into a right, in order to protect plunder. And it has converted lawful defence into a crime; in order to punish lawful defence.” And such a perversion of justice or law is done, he said, for one of two reasons: “stupid greed” or “false philanthropy”.
Both the motives identified by Bastiat 150 years ago exist in today’s world. Governments can too easily be turned into instruments of plunder, either from greed or for redistribution to their preferred citizens. And such measures always destroy liberty and prosperity. For this reason all governments must be bound tightly by constitutional restraints and citizens must ensure that their constitutions are respected.
Source: Jim Peron is a freelance researcher and writer. This article may be republished without prior consent but with acknowledgement. The patrons, council and members of the Foundation do not necessarily agree with the views expressed by the author.
FMF Article of the Week\12 December 2001
