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Thursday, 5 February 2009

Who “owns” a Constitution?

“The answer is obvious!” I hear you shout, “The people own it!” What do we understand by “owned” in this context?

I agree. The constitution of a society, whether it be of the Eketahuna Tiddlywinks Association, or of a sovereign nation can only be owned by the members of those societies.

That too is obvious, for it can only be the owners of a constitution that can change it. Therefore, a basic rule of any constitution must be the rules by which the members of a society can alter the rules that they have agreed form the constitution of their society. Thus a constitution is a foundation stone of democracy because a constitution has to be intrinsically democratic. Yes, it *is* a circular argument because what validates a constitution is precisely its democracy and democracy is defined by a constitution.

So, how many of the “constitutions” of independent nation states that have formed on this planet can be regarded as valid because they are democratic? I can find only one: Switzerland.

When I refer to that most famous of all national documents: the “Constitution” of the United States of America, I place the word in quotation marks because it isn’t democratic. Why isn’t the “constitution” of the USA democratic?: Because the people cannot change it.

This is odd, because a number of the individual States of the Union do have constitutions into which the people of those states have inserted that precious democratic factor. California is one of them. But there are very tightly defined rules for changing the “constitution” of the USA itself and they were explicitly drafted to exclude the participation of the people in those procedures. Worse still, the appalling concept of a “Supreme Court” was devised to stand above the US “constitution”. This provides the ruling élite with the power to strike down any proposal which that tiny group of lawyers considers “un-constitutional”. The Federal “constitution” even allows the “Supreme Court” to strike down individual State propositions that have won the support of the majority in those States.

The contrast with the Swiss Constitution could not be more glaring. The Swiss Tribunal Fédéral is subordinate to the constitution and cannot overturn the will of the people when expressed in a national referendum. When we come to grant ourselves our first democratic constitution let us not forget that vital requirement: only the people are sovereign. Not any assembly. Not any court.

1 comment:

Anonymous said...

So how does the USA Constitution get changed Dominic?