What is a Constitution
So what does a Constitution actually do? Why do people care about what is in them?
To understand this, it is necessary to appreciate that constitutions are more than simply dry, technical instruments to regulate Government. Yes, a Constitution recognises or creates the basic legal institutions of a society, and regulates how they operate, how they interact and how they are limited.
But it does more than this.
A Constitution can be a potent symbol of national identity, and means of refining and crafting a defining national narrative.
Constitutions can, then, perform a number of distinct roles. It is critical to appreciate each of these, and to reflect on how they interact. These roles include:
To understand this, it is necessary to appreciate that constitutions are more than simply dry, technical instruments to regulate Government. Yes, a Constitution recognises or creates the basic legal institutions of a society, and regulates how they operate, how they interact and how they are limited.
But it does more than this.
A Constitution can be a potent symbol of national identity, and means of refining and crafting a defining national narrative.
Constitutions can, then, perform a number of distinct roles. It is critical to appreciate each of these, and to reflect on how they interact. These roles include:
|
A Constitutive Role: Constitutions can help create a new body politic – The Australian Constitution, for example, federated the separate colonies into a new country.
|
|
A Technical Role: Constitutions can provide and regulate the technical infrastructure of government: what parts of government can do what (eg defining the powers of the Federal Parliament), or regulating the interactions between State and Federal governments.
|
|
A Symbolic Role: Constitutions can act as a potent symbol of national identity, helping us tell the story of who we want to be. For example, a preamble may help frame the ideals and aspirations for which a country strives. What is (and is not) included in a Constitution tells a story about how a country wishes to be seen, and to be.
|
|
A Limiting & Constraining Role: Constitutions operate as a limit and constraint on other forms of public decision making. This can either be by the grant of specific rights/protections to individuals, or by imposing structural procedures that regulate the exercise of power. A well-designed Constitution stops us doing stupid things too easily (we can still do them, but may need to follow certain procedures or amend the constitution)
|
These various roles of a Constitution have one thing in common:
. A constitution constrains those in power. A constitution is inherently a rejection of unfettered power.
In a constitutional democracy, the Constitution burdens and limits the capacity the government to directly exert their will on society. Public power is limited, and can only be exercised in certain ways, by certain parts of government.
At times, this can appear as if the Constitution and the courts (in interpreting and enforcing the constitutional constraints) are frustrating and undermining the policies of government, and the claimed public mandate underpinning them. There should be no doubt: Constitutions can be anti-majoritarian, as understood as the immediate will of the current majority of the population.
But this is a feature, not a fault. Constitutions are not anti-democratic. Majorities shift, and opinions alter. Yet systemic changes can linger long after those shifts. A well-designed constitution recognises that reacting too quickly to the will of the majority today can have unwanted consequences on the majority of tomorrow. In slowing down and limiting decision-making, Constitutions promote durable decision-making over time, and protect a plurality of views in society.
In short, Constitutions have a number of defining features - and to understand any potential change you must understand the interactions between the various roles.
In a constitutional democracy, the Constitution burdens and limits the capacity the government to directly exert their will on society. Public power is limited, and can only be exercised in certain ways, by certain parts of government.
At times, this can appear as if the Constitution and the courts (in interpreting and enforcing the constitutional constraints) are frustrating and undermining the policies of government, and the claimed public mandate underpinning them. There should be no doubt: Constitutions can be anti-majoritarian, as understood as the immediate will of the current majority of the population.
But this is a feature, not a fault. Constitutions are not anti-democratic. Majorities shift, and opinions alter. Yet systemic changes can linger long after those shifts. A well-designed constitution recognises that reacting too quickly to the will of the majority today can have unwanted consequences on the majority of tomorrow. In slowing down and limiting decision-making, Constitutions promote durable decision-making over time, and protect a plurality of views in society.
In short, Constitutions have a number of defining features - and to understand any potential change you must understand the interactions between the various roles.
The Case Study below helps illustrate the way in which these various roles and functions come together (click on the + to expand):
|
|
Case StudY: BREXIT and the Role of A CONSTITUTION
Case Study: BREXIT and the British Constitution A useful case study in this forth function is provided by the BREXIT vote in the UK in 2016. In the absence of a written Constitution in the UK, there is no clearly enunciated process for affecting constitutional change. The initial BREXIT vote achieved a bare majority of 52% in support with a turnout of 72% of eligible voters. Though styled a ‘referendum’, the vote was more properly understood as a plebiscite: there was no concrete plan or process to follow, only a vague aspiration. The public was simply asked “Should the United Kingdom remain a member of the European Union or leave the European Union?”.The resultant Leave vote suffered significant issues of legitimacy, as there was great ambiguity as to what had been endorsed: was it a ‘hard’ Brexit, a ‘soft’ Brexit, should there be a customs union etc? The UK spend much of the next five years debating and justifying various ‘mandates’, with ongoing concerns as to the continuing cohesion of the ‘leave’ constituency undermining the legitimacy of the reforms. A written constitution could have helped minimise this uncertainty. Not only could the process be regulated – for example, requiring a certain turnout or margin – but would likely require much greater certainty as to what is proposed. A constitutional change process could respect the will of the UK population was to leave, but would seek to ensure that the decision was carefully considered, durable and concrete. A constitution should make it harder to make reactionary knee jerk decisions that may have long term implications. They recognise that decisions popular today may be problematic tomorrow, and can impose barriers to slow down decision-making to improve the durability and wisdom of decisions over time. |
