Constitutions: protecting anti-democracy,though sometimes from anti-democracy

[Bovril]

A constitution is a foundational legal document created by statesmen in a particular time and place and sometimes aproved by a given proportion the population or their 'representatives'. Fine, nothing wrong with that per se. However, what we find is that constitutions are given special status. They are very hard to change by democratic means. It requires the will of elite legislators rather than the general population to ammend them, if such ammendment is even possible (a question decided upon, of course, by the framers of the constitution). Constiutions may be centuries old, and basically uninterpretable by modern societies. The idea of a militia in the US constitution or the demand for laws against blasphemy even in the much newer Irish one represent obviously problematic anachronisms.

Constitutions are anti-democratic in many, many ways. The two major ones, though, are intransigence and interpretation.

By constitutional intransigence I refer to the fact that constitutions are often nigh on mythological documents that remain unquestioned and unquestionable both 'socially' and practially. If democracy relates in populations having control over decisions that effect them such documents are an obstruction to this process, and therefore anti-democratic. For example, proportional representation, whilst undoubtedly popular in many countries and representing probably a more democratic form of constituting bodies of representatives, is prohibited by many of the world's constitutions.

The problem of interpretation is promted by the often vague and antiquated nature of constitutions. Because of their ambiguity and, often, plain irrelivence, bodies must preside over how to apply them to modern legal issues. Such decisions can be farcical in the lengths they go to to justify their decisions. But the real problem is that such bodies are made up of a certain class of people, with very specific and homoegenous interests (rich, well educated, conected to powerfull people, buying into existing power structures, etc.). Consequently this exclusive elite of arbiters has enormous say by imposing their own psychological predispositions on a supposedly immutable set of principles.


But wait, I hear you cry, our constitution protects our civil liberites, etc., etc.. Well, first of all, it probably does not do nearly as much as you think. Free speech is not protected in the US constitution (read it!), for example, and is in fact protected by 20th century case law, largely due to illegal civil dissobediance by unions, etc. What is more, many constitutions have been involved in repressing democratic instincts, even if they were popular at the time of their inception.

None the less, there is an extent to which a constitution can be used to peg back the more arbitary instincts of rulers. But this is no substitute for democracy which, in its purest form, eliminates the necessity for almost any arbitary instincts whatsoever.


In conclusion, I would like to talk in this thread about the worth of constitutions in general, and about whether or not they promote democracy, or represent an inferior substitute for it. It is my contention that in a real democracy there would be no need to protect the populace form the ravages of authority pretty much by definition. Perhaps you disagre? Let's talk...

[MaximiIian]

It's only anti-democratic if you limit democracy to just direct democracy.
There are, however, other methods.

[Bovril]

It's only anti-democratic if you limit democracy to just direct democracy.
There are, however, other methods.

I limit democracy strucutures of decision making that create policies reflecting the will of members of the electorate (in as much as those policies affect those members, making local democracy viable). Could there be a very divergent definition that was not some totemic myth designed to delude?

[CtrlAltDe1337]

First I might add that Constitutions preserve the Republic (rule by law), not democracy (rule by majority). A democracy is little better than a dictatorship, as the majority will tyrannize the minority. The Constitution and laws are to keep that from happening.

The idea of a militia in the US constitution or the demand for laws against blasphemy even in the much newer Irish one represent obviously problematic anachronisms.

Did you know America still has a militia? The National Guard was formed in the early 20th century out of all the old state militias. And there is nothing strange about blasphemy laws if a nation is religious.

But wait, I hear you cry, our constitution protects our civil liberites, etc., etc.. Well, first of all, it probably does not do nearly as much as you think. Free speech is not protected in the US constitution (read it!), for example, and is in fact protected by 20th century case law, largely due to illegal civil dissobediance by unions, etc. What is more, many constitutions have been involved in repressing democratic instincts, even if they were popular at the time of their inception.

Have you even read the US Constitiution? Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

[Bovril]

First I might add that Constitutions preserve the Republic (rule by law), not democracy (rule by majority). A democracy is little better than a dictatorship, as the majority will tyrannize the minority. The Constitution and laws are to keep that from happening.

Only in a majoritarian parliamentary democracy, not in a voluntarist democracy, but that's a discusion for another thread.

Did you know America still has a militia? The National Guard was formed in the early 20th century out of all the old state militias. And there is nothing strange about blasphemy laws if a nation is religious.

Both are clearly anachronistic. Are you genuinely contending that the kind of militia the frmaers of the US constitution had in mind exists today or that any sizable portion of Irish society wants anti-blasphemy law to be mandated by their constitution?

Have you even read the US Constitiution? Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Quite so. Look at the history of the limiting of free speech in the US. It was usualy done on a local level by banning individuals or groups from adressing the public in particular states or cities. There is no protection of free speech in general and in the late 19th century this was exploited mercilessly. Cases where congress did make laws against free speech also abound (e.g. denouncing the draft in WW1 or spreading information on contraception in the early 20th C.) but that's by the by.

Edit: by the way, highlighting a particular phrase out of its context is another great way the interpretation of constitutions is manipulated. I'm going to seem like an anti-gun advocate in this thread, which I'm not, but take this example:

"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."

This dispicably badly drafted amendment has been interpreted again and again, and still causes vast controversy. Clearly the whole thing is anachronistic and can be manipulated according to the whim of the supreme court and whoever appoints them. And not just in the obvious ways either. For example, intercontinental ballistic missiles are "arms". Should the right of people or militias to have them no be infringed?

[CtrlAltDe1337]

Only in a majoritarian parliamentary democracy, not in a voluntarist democracy, but that's a discusion for another thread.

What on earth is "voluntarist democracy" supposed to mean? I don't see how that counters my statement.

Both are clearly anachronistic. Are you genuinely contending that the kind of militia the frmaers of the US constitution had in mind exists today or that any sizable portion of Irish society wants anti-blasphemy law to be mandated by their constitution?

The militia was designed to defend the country. I'd say the National Guard does that pretty well. We organize them differently now thanks to the centralization into a single entity, but it still functions as a militia.

Concerning Ireland, I don't know as I'm not Irish. But I will throw this out there: sometimes what the people want isn't best. The people may want something bad, and the Constitution keeps them from getting that. What if the majority of America wanted to enslave black people again? Should they be able to do that even though this "anachronistic" Constitution prohibits slavery? Or what if we wanted to legalize theft? Should that be legal, even though the people want it? Clearly not. This is why democracies are a bad thing. People do not always want what is right, but what benefits them.

Quite so. Look at the history of the limiting of free speech in the US. It was usualy done on a local level by banning individuals or groups from adressing the public in particular states or cities. There is no protection of free speech in general and in the late 19th century this was exploited mercilessly. Cases where congress did make laws against free speech also abound (e.g. denouncing the draft in WW1 or spreading information on contraception in the early 20th C.) but that's by the by.

Just because this country hasn't upheld the Constitution (which is also what you are advocating, btw) doesn't mean that the Constitution doesn't give the freedom of speech. It says it in black and white. Your previous comment was "Free speech is not protected in the US constitution (read it!), for example, and is in fact protected by 20th century case law, largely due to illegal civil dissobediance by unions, etc," which I have shown to be a blatantly false statement.

Edit: by the way, highlighting a particular phrase out of its context is another great way the interpretation of constitutions is manipulated. I'm going to seem like an anti-gun advocate in this thread, which I'm not, but take this example:

"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."

This dispicably badly drafted amendment has been interpreted again and again, and still causes vast controversy. Clearly the whole thing is anachronistic and can be manipulated according to the whim of the supreme court and whoever appoints them. And not just in the obvious ways either. For example, intercontinental ballistic missiles are "arms". Should the right of people or militias to have them no be infringed?

"Arms" clearly means hand-held weapons. It has meant that since the beginning of the English language (a trebuchet or cannon have never been "arms.") And the statement clearly says that, since a well regulated militia is necessary for the security of America, the right of the people to keep their arms will not be infringed. The Supreme Court often misrepresents statements like this because they are doing what you are advocating: disregarding the Constitution and following the whims of the majority (or I might say majority of judges...). Just because people disregard that Constitution for their own personal agenda doesn't mean its outdated; it means we have a lot of stupid people in this world.

But I might add by way of information that the Supreme Court has upheld the correct meaning of the 2nd Amendment even in the last few years, so its hardly antiquated.

[Bovril]

What on earth is "voluntarist democracy" supposed to mean? I don't see how that counters my statement.

Like I said,that's for another thread.

The militia was designed to defend the country. I'd say the National Guard does that pretty well. We organize them differently now thanks to the centralization into a single entity, but it still functions as a militia.

The national guard does nothing to prevent the abolition of the constitution or prevent foreign attacks. Where did you get that from? And evenif it did, it would still be nothing like the militias of the late 18th/early 19th centuries. So this is clearly an anachronism, perhaps a useful one, but an anachronism none the less.

Concerning Ireland, I don't know as I'm not Irish. But I will throw this out there: sometimes what the people want isn't best. The people may want something bad, and the Constitution keeps them from getting that. What if the majority of America wanted to enslave black people again? Should they be able to do that even though this "anachronistic" Constitution prohibits slavery? Or what if we wanted to legalize theft? Should that be legal, even though the people want it? Clearly not. This is why democracies are a bad thing. People do not always want what is right, but what benefits them.

In democratic theory, the way of deciding what is best is for informed people who are effected by a given decision to decide for themselves. You don't get to tell them I'm afraid. Clearly the enslavement of balck americans would be anti-democratic, since the people it effects most, i.e. black americans, would have to be disenfranchised for this to happen (as indeed they were when it did).

Just because this country hasn't upheld the Constitution (which is also what you are advocating, btw) doesn't mean that the Constitution doesn't give the freedom of speech. It says it in black and white. Your previous comment was "Free speech is not protected in the US constitution (read it!), for example, and is in fact protected by 20th century case law, largely due to illegal civil dissobediance by unions, etc," which I have shown to be a blatantly false statement.

Re-read what I said. Freedom of speech in the US was not limitted by congress so much as it was by more local authorities who were in no way prohibitted from doing so in the constitution. Clearly then it was perfectly possibly to limmit free speech without breeching the constitution. That's pretty elementary stuff.

"Arms" clearly means hand-held weapons. It has meant that since the beginning of the English language (a trebuchet or cannon have never been "arms.")

According to you. Explain the phrase 'the arms race' then. It doesn't simply refer to how many AK47s the Russians were churning out you know. This is my point about interpretation. You are imposing your (demonstrably incorrect) definition of what 'arms' has supposedly always meant on a centuries old document as though that should mean something for us today.

And the statement clearly says that, since a well regulated militia is necessary for the security of America, the right of the people to keep their arms will not be infringed. The Supreme Court often misrepresents statements like this because they are doing what you are advocating: disregarding the Constitution and following the whims of the majority (or I might say majority of judges...). Just because people disregard that Constitution for their own personal agenda doesn't mean its outdated; it means we have a lot of stupid people in this world.

The thing that makes the US, and most other constitutions, outdated is the fact that they are poorly drafted and wide open to divergent interpretations of their already anachronistic pronouncements.

Besides, what makes the 'whims' or 'personal agendas' of a few landed elites from 200 years ago so much more valid than the 'whims' or 'personal agendas' of the majority today?

[Gelgoog]

According to you. Explain the phrase 'the arms race' then. It doesn't simply refer to how many AK47s the Russians were churning out you know. This is my point about interpretation. You are imposing your (demonstrably incorrect) definition of what 'arms' has supposedly always meant on a centuries old document as though that should mean something for us today.

Arms race is a new term and came long after the constitution. The world arms in reference to weapons in which can be held in your arms, which is why they soldiers were called men-at-arms, or to arm yourself. Notice how riders during the revolution would shout..."TO ARMS"...they did not say "TO CANNONS!!".

Cannons being the biggest guns of the day were refered to as artillery.

So he was not imposing his definition, he was using history to point out that Arms has always meant since the term came into existence to mean hand held weapons.

The only one here mis-interpreting the meaning of the word arms is yourself. As military language advanced since the revolution, the term arms is now called small arms in reference to infantry weapons. So if you translate the document into modern society, it still would not allow you to possess ballistic missiles.

The thing that makes the US, and most other constitutions, outdated is the fact that they are poorly drafted and wide open to divergent interpretations of their already anachronistic pronouncements.

poorly drafted..excuse me? The framers were brilliant in keeping the document vague so that it was broad reaching and adaptable to changing times. If you make a constitution to specific then it can easily be voided by people saying that it is not applicable to today.

Besides, what makes the 'whims' or 'personal agendas' of a few landed elites from 200 years ago so much more valid than the 'whims' or 'personal agendas' of the majority today?

lets see, they established independence, they created the laws and form of government that we enjoy today and they were possibly some of the most intelligent people in all history. They were responsible for not only creating a Renaissance in thinking but also set the stage for constitutional governments all around the world. If you ever bothered to read about any of the individual founding fathers , you would realize why we idolize them. Then again you could ask the chinese why they hold their sage kings to such high reguard. Surely wisdom from 4500 years ago is outdated and has no application today...at least according to you.

[CtrlAltDe1337]

The national guard does nothing to prevent the abolition of the constitution or prevent foreign attacks. Where did you get that from?

It clearly does, I don't see why I need to argue this since its so apparently obvious. Do I also need to prove that clouds are white?

In democratic theory, the way of deciding what is best is for informed people who are effected by a given decision to decide for themselves. You don't get to tell them I'm afraid. Clearly the enslavement of balck americans would be anti-democratic, since the people it effects most, i.e. black americans, would have to be disenfranchised for this to happen (as indeed they were when it did).

So who decides who "informed" people are? Are we going to have an "informed people committee" to decide who is "informed" and "uninformed"?

And enslavement of blacks (or any other group) would not be anti-democratic if 51% or more of the voters voted to enslave them. That would be democratic I'm afraid. You will say that its not since the decision affects the black people too. But in any decision, you will have people who are negatively effected or who dislike the outcome of the vote. Corporations vote against more corporate taxes, school employees will vote for more school funding (which takes money away from other departments that the government helps, and those people vote against it), etc. So are all those things anti-democratic too? Clearly not. This is why a republic is better than a democracy.

Re-read what I said. Freedom of speech in the US was not limitted by congress so much as it was by more local authorities who were in no way prohibitted from doing so in the constitution. Clearly then it was perfectly possibly to limmit free speech without breeching the constitution. That's pretty elementary stuff.

So what your saying is that people weaseled their way around the Constitution's freedom of speech provision and prohibited some types of speech. Which I do not dispute. But you said that the Constitution itself does not guarantee freedom of speech. To quote you from earlier: "Free speech is not protected in the US constitution (read it!)." I might add that these people who got around the freedom of speech are doing what you advocate; they were ignoring this "archaic" document and carrying on with their own agenda.

According to you. Explain the phrase 'the arms race' then. It doesn't simply refer to how many AK47s the Russians were churning out you know. This is my point about interpretation. You are imposing your (demonstrably incorrect) definition of what 'arms' has supposedly always meant on a centuries old document as though that should mean something for us today.

Anyone with a brain and a little common sense knows that "arms" in the Constitution refers to small-arms/handheld weapons.

The thing that makes the US, and most other constitutions, outdated is the fact that they are poorly drafted and wide open to divergent interpretations of their already anachronistic pronouncements.

The American Constitution is very well drafted and has very few problems. And if a problem exists, you can amend it (which has been done a lot btw). So I don't see your point.

Besides, what makes the 'whims' or 'personal agendas' of a few landed elites from 200 years ago so much more valid than the 'whims' or 'personal agendas' of the majority today?

Nothing; it matters who is right. The whole point of the Constitution is to protect people from the whims of any age. What matters is what is the correct form of government, and what are wise and beneficial provisions that need to form the framework of the government.

[Last Roman]

First I might add that Constitutions preserve the Republic (rule by law), not democracy (rule by majority). A democracy is little better than a dictatorship, as the majority will tyrannize the minority. The Constitution and laws are to keep that from happening.

a republic is any government that is not a form of monarchy. A republic can be a form of a democracy. The US is one such example.

[Marie Louise von Preussen]

So what? An elite will always rule, and will always exist. Give a man power, and he's no longer of "the people", but an elite all by himself.

You seem to be be proposing an alternative to framed Constitutions that is nothing but ochlocracy in its purest form. So what if the people vote to abolish their rights? So what if people vote to condemn people on their whims, instead of on Justice? That would quickly degenerate into pure Authoritarianism, because it is impossible.

Written constitutions are fine, IMHO, but still you have a point in that they are abstract documents that might hamper the process, be antiquated or present problems to a structural regime. And we don't need them: they are a modern invention. Britain runs finely without them, and indeed to my knowledge some essential aspects of the Parliamentarian regime, like the Prime Minister, were completely unofficial and "non-constitutional" bodies for a long time, within the limits we can apply that definition to the British Government.

[Bovril]

So what?

An analysis is not, by necessity, a critique, though it may imply one.

[Marie Louise von Preussen]

An analysis is not, by necessity, a critique, though it may imply one.

Fair enough, but it is quite clear this is more than a detached analysis.

[bushbush]

constitution (at least in american sense) would be a limitation on both the government and the people because either one becoming dominant could be problematic. Government being too powerful would suppress the people they don't like. The majority of people being too powerful would suppress the minority. So constitution places limits on both's power and attempts the strike a balance between that.

[Sidmen]

The national guard does nothing to prevent the abolition of the constitution or prevent foreign attacks. Where did you get that from? And evenif it did, it would still be nothing like the militias of the late 18th/early 19th centuries. So this is clearly an anachronism, perhaps a useful one, but an anachronism none the less.

Just a random injection into this conversation, national guards aren't the only Militias that states have available to them. We also have State Defense Forces, and smaller more localized militias.

[Admiral Piett]

Thomas Jefferson is still widely known to be against written Constitutions. It's ironic, because Jefferson authored a large part of it and championed many of its limitations on government. However, he was of the opinion that Constitutions should be changed every decade or so, because set standards at the time often do not apply many years later. It's funny the amount of insight Jefferson had on the pitfalls of democracy and especially federalism. There are so many ways in which he has been proven right today.

[Desperado †]

A constitution is a foundational legal document created by statesmen in a particular time and place and sometimes aproved by a given proportion the population or their 'representatives'.

Constitutions do not have to be single foundational documents, just look at the British constitution. And neither does it necessarilly need to require more than a majority to change, amend or remove.

Though making a law that is ambigious and can only be interpreted by a small number of people, or a law that requires more than the majority to change it is most definitely undemocratic. I'd say, because of this, such a law or set of laws have no worth to a true democracy.

[Bovril]

Constitutions do not have to be single foundational documents, just look at the British constitution. And neither does it necessarilly need to require more than a majority to change, amend or remove.

Though making a law that is ambigious and can only be interpreted by a small number of people, or a law that requires more than the majority to change it is most definitely undemocratic. I'd say, because of this, such a law or set of laws have no worth to a true democracy.

My critique, which I think you will apreciate, was based around the idea that there is a certain class of individuals responsible for aproving and revising constitutions in any existing constiutional framework, 'democratic' or otherwise, and that such an arrangement is anti-democratic, as it privileges the interests of one arbitrary group above the rest of those afected. It poses the same problem of beauracracy as any corporation, state socialism or other hierachical institution.

[bleach]

Why should we want to be democratic? Experience has shown that people will always give their freedoms and rights away to a fast-talking populist. Hugo Chavez's near-dictatorial position in Venezuela, for example, has been created mainly by referendum (One example out of hundreds).

Direct democracy might work if there were strict standards on who can or cannot vote(e.g. passing a current events test to retain voting power for that month), but as a basic right of citizenship it will always fail. People are not so intelligent that the average man should be expected to lead and make good decisions. The best alternative we have is a system where the elites are at least culpable for their decisions and replaced when they perform badly--although even this system only intermittently works well.

[Admiral Piett]

I believe that representative democracy would work if representatives have to clamor to the people for their support, rather than a representative campaigning around to find voters. People themselves should select who the incumbents are first and foremost. That would solve a great deal of the problems in this country alone.

I believe more in the Jeffersonian representative democracy than the Hamilton federal republic.