Constitutional Philosophy

Lecture 1 Jon Roland November 10, 2012 Constitutional Philosophy

Science of law and government? • Plato, Aristotle, Cicero, Machiavelli, Grotius, Hobbes, Locke, Rousseau, Hume, Kant • Ethics for the society • Social contract • Main problem: sound constitutional design • Principles of design not bound to culture? • Theories of natural law • Utilitarianism • Dependence on public education & virtue

Man the lawmaker • Other social species depend on instinct • Humans design and revise rules to make the play of games more satisfying • Given a basic game structure, people tend to independently evolve similar rules, as though fulfilling a natural law • One of those games is law and government • Can we develop a computer program to generate optimal constitutions of government?

Jewish Greek Roman Germanic Muslim Chinese European republics Pirates Native American England, colonies and states United States Historical background

Jewish Halakha • Torah (Pentateuch, first 5 books of Old Testament) • 613 mitzvot (“commandments”), 248 positive & 365 negative • “Constitutional” mitzvot embedded in “statutory” • 12 tribes, 600 clans (elaf), beth-ab, militia “hundreds” • Shmita (7-year cycle of fallow fields, cancel debts) • Overlaid with tradition of exegesis (or eisegesis) • Modern Israel uses British unwritten model

Greek syntagma • Athens (Solon) • Commentary by Aristotle • Official selection by sortition (kleros, lottery) • Sparta (Lycurgus) • Forbidden to be written • Adopted by trick

Roman constituo • Meant entrenched, more than supreme metalaw • Republic 509 BC • 2 consuls (executives), 1-year terms • Senate • Assembly • Tribunes, censors, questors, praetors • Dictators (6 month terms, until Sulla, Julius Caesar 44 BC)

Germanic constituo • Organized into tribes (pagi, in Latin) • Chief elected by wittengemote, assembly of warriors, from “royal clan” • Served for life but could be removed by council • Not hereditary • Proposals could be rejected by assembly • Judges elected by assembly • Records of judicial decisions became common law

Muslim dustur • Dustur al Madinah (constitution of Medina) 622AD • Was treaty among ethnic, religious groups • Balanced rights, official duties among Muslims, Jews, Christians, pagans • Attributed to Mohammed • Not followed by successors, who set up khalifa (caliphates)

Chinese • Tao Te Ching (Lao-tzu). Precepts that guided government after made state religion 440 BC. • Analects (Lun-yu, Confucius). Officially adopted as state social philosophy 202 BC, also guided lawmaking and governance. • No formal constitution but moral guidance from entrenched philosophies.

European republics • Venice • Sortition to select doge 1268-1797 • Genoa, directorial republic under French rule • Corsica, Constitution 1755-1769, Diet (parliament), female suffrage • Swiss Confederacy, 1291-1798 • Dutch Republic, 1581-1795

Pirates • At war with the world • But law among themselves • Provided for electing captain, quartermaster • Divided spoils • Rudimentary judicial process • Sometimes became governments on land

Native American • Constitution of the Iroquois Confederacy • Used as model for federal system • Enabled mutual defense, adjudication of disputes, division of territory

England, colonies and states • Witten[ge]mote • Magna Carta 1215 • Provisions of Oxford 1258; First English parliament 1265 (De Montfort) • Levellers: Agreement of the People 1647 • English Bill of Rights 1689 • Colonial charters 1639 • Locke constitution for Carolinas 1689 • First state constitutions 1776

United States • First Continental Congress 1774-75 • Articles of Association 1774 • Second Continental Congress 1775-81 • Declaration of Independence 1776 • Articles of Confederation 1781 • Constitutional Convention 1787 • Ratification debates 1787-88 • Adoption of Constitution June 21, 1788 • Bill of Rights December 15, 1791 • Election of 1800, Jeffersonians ascendant

Rule of Law • Real consent to due process • Laws binding all people including officials • Limited discretion of officials • Public notice • Clarity and simplicity • No contradictions • Not retroactive • Not beyond the power of people • Stable and predictable

Design Goals • Protect rights with accessible remedies • Enable joint action, especially defense • Divide power among branches, levels • Representation & deliberation • Pay or avoid debts. No fiat currency. • Adjudicate disputes, avoid conflict, separation • Allow peaceful expansion and secession • Supersedes derivative statutes, amendable • Endure indefinitely, for benefit of posterity

Design Principles • 1. Put it in writing, as brief and simple as possible, but no briefer or simpler. Omit anything that is not enforceable as law. • 2. Specify who, what, how, when, where, why, whither, to or for whom, etc. • 3. Enter provisions that operate together to solve a problem, providing the necessary structure, procedures, rights, powers, and duties, covering all conceivable contingencies, that require no resources that are not always available or obtainable. • 4. Anticipate all the ways any language might be twisted by clever lawyers trying to find ways to evade the meaning and intent of each provision. • 5. Don't try to micromanage complex social systems. Make sure everything orchestrates into a harmonious system, but be aware of the ways every enactment is an intervention in a chaotic system highly sensitive to purturbations, and that can only work if it sets up self-organized islands of stability in a sea of chaos, that are largely undesignable except by trial and error. • 6. Allow some discretion but not too much, so actions predictable.

Social Contract • Can be explicit contract among adults • But usually induction by parents (socialization) • Establishes transitive relation among members • Consent by entering or remaining on territory • To protect rights, but not scarce resources • Defines duty of militia to mutually defend • With dominion over territory becomes state • Adoption of constitution of government by deliberative, representative convention

Origins of Rights 1 • Nature • Life • Limb (right not be be physically injured or tortured, or have one's health or comfort threatened) • Liberty • Acquisition, retention, and use of means to secure above rights (part of property right) • Right not to be required to do the impossible or scientifically irrational

Origins of Rights 2 • Society • Property equity (right to reclaim property to which one has title, or the value thereof, beyond mere possession) • Presumption of nonauthority • Due process (includes due notice and fair hearing, both substantive and procedural, and all rights associated with juries) • Common law trust rights • Public decision by convention called by public notice and conducted by established rules of procedure

Origins of Rights 3 • State • Denizenship (right to remain on or return to one's domicile) • Fair representation of different parts of the territory

Origins of Rights 4 • Government • Citizenship (privilege to vote and hold office, access to voting and fair counts) • Means to remove misbehaving officials or suspend their actions, such as quo warranto and other prerogative writs • Getting reports on the activities and expenditures of officials • Compensation for taking of property (part of property right)

Nested constitutions

Public Action

Delegatable powers

Public duties • Defend public as militia from any threat • Prepare oneself and others to defend • Serve on juries • Give testimony • Pay lawful taxes • Avoid causing injury through act or neglect • Vote for what is best for the country • Supervise officials and other servants • Inform oneself on public issues and deliberate

Militia • Organize, train, and equip oneself for • Defense against invasion, crime, disorder, or disaster • Investigate wrongdoing • Report on one's investigations • Make arrests, detain until culprit can be arraigned • Serve as private prosecutor • Help enforce lawful orders of judges

Deliberative assemblies • Requirements: • Public notice specifying time, place, and subject • Broad representation • Established rules of procedure • Includes: • Constitutional conventions • Town meetings • Elections and nominating conventions • Judicial courts, trial and grand juries • Militia

End of Lecture 1

Constitutional Philosophy