Abstract

Constitutions and their interpretation and enforcement are critical sociocivic and economic tools, but the concepts involved are virtually misunderstood and ignored and thus fail to attain their objectives.  In part, that is a consequence of the manner in which constitutional law is practiced and adjudicated, an extremely subjective process where it ought to involve and objectively scientific methodology.  In one sense, constitutions are the political framework in which juridical processes are supposed to be carried out, thus, constitutionalism is of a higher order than a mere legal system; however, that requires a broad and specialized understanding of the complex of concepts involved and that is sadly lacking, not only among judges, lawyers, political leaders and the citizenry, but among those charged with participating in the process through which constitutions are created, amended and replaced.  This reflection seeks to address such deficiency, albeit in a summary fashion, more of a survey than a treatise, but in the hope that it will lead to discussion, criticism, research and more profound related studies.

Key Words

Constitution, democracy, liberty, pluralism, federalism, “separation of powers”, “constitutional review”.

Introduction

Constitutions should be essential instruments in conjunction with collective governance but they are little understood, either with respect to their creation and modification or their implementation and enforcement, and tend to be used more for political sloganeering and polarization than for anything else.  Especially among the jurists and legal professionals charged with their enforcement.  And that seems to be the case everywhere.

In the United States, the Constitution of 1787-89 et. seq. is revered in the manner that Abrahamic “sacred” texts (Jewish, Christian and Muslim) are revered (Bellah, 1967) and with good reason.  All are hodgepodge motleys so often patched as to have utterly distorted whatever original meaning they had[1].  None are functional thus, while they’re all honored, none is really adhered to.  Criticizing them, however, is anathema, thus, repairing them is virtually impossible.  Still, as an adjective, “virtually” leaves a sort of loophole.

As I was taught and then as I taught United States constitutional law I eventually realized that I was merely dealing with a summary and analysis of often incoherent and disorganized decisions by jurists that dealt with “constitutionalism” as a synonym for the Roman concepts of stare decisis and res judicata, without any framework in the study of theories concerning the nature of legal concepts, and specifically, the nature of constitutions.  I was fortunate, however, that several events in my life[2] led me to seriously question constitutional premises, hypotheses and theories, and that, in turn, led to a series of epiphanies I share here.

This “personal reflection” [3] analyzes relevant historical, theoretical and practical concepts involved (or which should be involved) in constitutional studies and arrives at some personal observations, conclusions and suggestions perhaps useful to students, constitutional lawyers, politicians and voters.  It’s a bit long so it’s not really fit for casual reading unless one finds the topic fascinating, or perhaps, if one seeks a cure for insomnia.  It’s a sort of constitutional study for dummies but perhaps, with a bit of luck, it may useful as a reflection that will pique the curiosity of others much younger and better positioned to delve into these topics in a more detailed and more academic manner than am I.

Theoretical underpinnings concerning constitutions in general

Generally, purportedly “liberal” constitutions primarily seek to reconcile contradictory tendencies, dressing them up in noble sounding platitudes but are, by their nature, antidemocratic, at least in a democratic context.  That seems oxymoronic and, well, it is.  But it’s also accurate, as oxymorons tend to be.  Constitutions are fundamental charters meant to be frameworks for governance, establishing parameters and institutions necessary to limit the chaos inherent in mob rule through the imposition of order, but also, seeking to bind future generations to past ideals, not trusting those in charge of future “presents” to make wise decisions.  They are shackles imposed on future leaders by elites who lack faith in their progeny and in majorities which, left unbounded, too often act based on ill thought out temporary expediencies.

Democracy, liberty, pluralism and rights[4]

The three most important albeit antagonistic premises involved in constitutional theory are democracy, liberty and pluralism, each opposed to the other two but all deemed essential and, the first step in making them functional, or at least, less dysfunctional, is understanding what they really involve in a functionally accurate manner rather than in the politicized form of propaganda through which accuracy and thus, functionality has been destroyed:[5]

• Democracy is majoritarian rule, pure and simple, one more than half of the whole, without any of the unrelated contradictory positive platitudes[6] with which it is always presented and thus vastly different than rule by a plurality, which is rule by the largest block, although less than a majority.  Majoritarian rule requires massive participation as any non-participation must be counted as a vote against.  Hence, for example, in a democratic system comprised of a thousand members, action can only be taken if 5001 members are in accord.  If only 600 participate, 400 are in accord and 200 against, that is not a democratic majority, rather, it is a participatory majority.  Similarly, if everyone participates but there are more than two options, and the vote is 490 in favor of option (a) 300 in favor of option (b) and 210 in favor of option (c) that is not a democratic majority but rather, a pragmatic pluralistic “decision”.  Of course, attaining a democratic majority, even a massive super democratic majority, e.g., a vote of 999 versus 1 does not mean that the decision is morally, ethically or even pragmatically correct.

• Liberty is pretty much the opposite of democracy.  It is based on the primacy of inherent individual autonomy as the source of sovereignty and thus, of decision making.  It is not granted and thus may not be conditioned, even if conditions are not only reasonable but essential.  It is, in a sense, the triumph of chaos over order, and is a fundamental component of the concept of rights, “rights being the quantifiable and qualifiable tangible expressions of liberty, e.g., the purported rights to life, free expression, etc.  Since all purported rights are in fact subject to conditions, the concept is not only dysfunctional and incoherent but inexistent.  What we refer to as rights are aspirational priorities on the use of government power and resources, assuming qualifying conditions are met, priorities rarely consistently honored, priorities coupled with undertakings by governments to either honor them or to provide a measure of relief for their violation.  Thus what pass for rights are granted by superior authorities (e.g., the state) rather than inherent and neither unconditional nor eternal.

• Pluralism is based on the antidemocratic and antilibertarian concept of collective minority “rights”, subject to all the qualifications mentioned above concerning rights.

Constitutions are essential to reconcile the foregoing antagonistic principles by prioritizing and conditioning them through use of a purported monopoly on the use of force.  Constitutions thus have three fundamental functions: (1) reconciliation of democracy, liberty and pluralism through undemocratic restrictions; (2) creating, defining and providing for the implementation of institutional organs through which a collective is to be governed by application of the monopoly on the use of force; and (3), by providing specified forms of prioritized “constitutional legislation” not subject to modification through the ordinary mechanisms established for promulgation of more transitory legislation.  Constitutional concepts do not operate in a self-created vacuum, but rather, answer (or should answer) to universal, supraconstitutional principles based on, … take your pick: divine law, natural law, ius cogens, etc., all relatively futile given the absence of legislative institutions to identify and define them, executive powers to enforce them or real judicial power to reconcile them.

There is an interesting argument to be made that constitutions should be written and self-contained, and that certainly makes them more manageable, but, for example, neither the United Kingdom, Israel nor New Zealand have traditional written self-contained constitutions[7].  Rather, they have organic statutory laws and “traditions” that simulate constitutional functions, the foregoing based on the premise that past generations lack the right to bind present or future generations, especially with respect to the concept of parliamentary sovereignty.  Interestingly, it may be that in those three cases, the de facto constitutions are more closely adhered to than de jure constitutions elsewhere.

Sources of constitutional authority[8]

The source recognized for constitutional authority[9] in any given case has (or more accurately, should have) a huge impact on the operation of the constitution promulgated and on its subsequent modifications or even replacements.  Recognized potential sources, from autocratic lo less autocratic basically follow the following sequence: divine, autocratic, state, national, popular and individual[10] but, in essence all are either imposed by an elite of some sort, or represent the crystallization of normative mores that percolate over time from popular practices.  An interesting observation concerning the theory that the state is the source of constitutional authority, the platonic version, is that it is the foundational premise for fascism and other authoritarian and totalitarian systems, i.e., the belief that what is good for the state is ultimately good for the majority of its citizens.  In a non-pejorative sense, state-source-based-constitutionalism sees the state as using its monopoly on the use of force to actively coordinate all societal institutions in order to attain maximum efficiency, exalting neither liberty, democracy nor pluralism, only efficiency and meritocracy.

Elitism is involved in the theories based on promulgation through divine intervention, monarchic auto-limitation and through the state as a quasi-living entity.  Percolation from below is involved when the purported source of constitutional authority is derived from the nation as a whole (each member being the owner of an undivided interest in the whole), from the People (a majoritarian concept were each person has an individual percentage ownership of the whole) or from the individual (an anarchic concept).  However, notwithstanding theoretical underpinnings, constitutions tend to devolve into autonomous, self-perpetuating memeplexes controlled by activist elites who do everything possible to consolidate and maintain political power for their own welfare, with real modification or replacement available only through populist revolutionary action in the form historically defined as tyrannical.

Rigidity versus flexibility

Constitutions are also classified on the basis of their relative rigidity versus flexibility.  However, only the rigid variant actually qualifies as a constitution, although being rigid does not equate to permanent, merely that constitutional amendment requires a process equivalent to the original constitutional adoption.  Flexible constitutions, in essence, involve the illusion of “organic interpretation”, i.e., the theory that a constitution has no independent meaning and must be interpreted in the context of changes in societal values, hence, formal amendment is not necessary.  That is the crux in the constitutional confrontation in the United States between strict-construction-originalists and advocates of creative organic constitutionalism.  As is the case above with respect to “democracy”, neither hypotheses (really a range of different hypotheses) determines whether or not a constitution adequately serves to assure equity, justice, governmental efficiency, meritocracy or to attain its principal objective, the common welfare.

On the nature of confederalism, federalism and unitarism[11]

Understanding confederalism, federalism and unitarism is essential to understanding the United States and other confederal or federal constitutions[12] and the political systems they seek to impose.  The three related concepts, are, of course, important with respect to governance in any country and also, with respect to evolving international organizations endowed with supranational personality.

Confederalism and federalism are fundamentally based on the concept that the subjects of the composite entity involved are its component states.  Both subjects and objects are impacted by law, but only subjects have the capacity to act within the associated legal and judicial frameworks on their own behalf.  Thus, for example, an automobile, a slave, and in less enlightened times, a woman, were objects of laws, that is, impacted by them, but they lacked standing to force enforcements of laws that benefitted them, although they could be protected if their case was taken up by a subject, e.g., the owner of the car or slave, or the father, husband, brother or son of the woman.

Both confederalism and federalism are conceptually related to a similar theory of international law[13], one now not as respected as it once was, to the effect that status as subjects of international law was limited to states (countries), a status later somewhat expanded in a hybrid fashion to include international organizations endowed with supranational aspects, but excluding individuals who, while objects of international law, were the concern of states where they might be objects or subjects depending on the nature of the state (e.g., whether the state was confederate, federal or unitary[14]).[15]

The difference between a confederation and a federation lies in the balance of power between the central government and its component states, with component states being more powerful in a confederation and less so in a federation.  Thus, under the Articles of Confederation and Perpetual Union, all principal central decisions required consensus among all the members, i.e., unanimity, and the central government had no autonomy to act on its own.  In a federation, the central government is at least as powerful as its components and has autonomous capabilities.  Confederalism and federalism are thus governmental mechanisms designed to fracture sovereignty along geographical and thematic lines, but sovereignty, even fractured, is a permanence-based concept.  In confederate and federal contexts, the states are the only subjects of the confederation or federation, while individuals are the subjects of unitary systems.  The United States of America purports to be a federation comprised of unitary states, thus individuals should only be subjects with respect to the states, although objects of both.  That, of course, as discussed in detail below, is no longer the case.

A unitary system, as in the case of most governments, has no fragmentation of sovereignty although it may have division of functions between a central government and regional and local governments.  Because fragmentation of sovereignty is not involved, the allocations of functions and related authority can be unilaterally modified by the central government, an essential aspect of the unitary structure.  There are gradients of unitary governmental structures based on the allocation of administrative responsibilities among a central government and its administrative subdivisions so that a unitary government sometimes smells as though it were federal, but the absence of fragmented sovereignty is a critical difference.

Separation of powers versus separation of functions

Separation of powers involves a concept made popular by Charles Louis de Secondat, Baron de La Brède et de Montesquieu (“Montesquieu”)[16] in his seminal treatise, The Spirit of the Laws, pursuant to which the abuse of power facilitated by its autocratic and dictatorial concentration was ameliorated through its fragmentation into coequal but separate components (usually referred to as “branches”), each with separate, independent albeit complementary powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. Inherent in the concept is the requirement that no individual have authority in more than one such branch, which differentiates it from Westminster (parliamentary) systems where there is a fusion of legislative and executive functions in the figure of the chief executive (usually a prime minister, premiere or, in certain monarchies, a president) and a cabinet comprised of members of parliament, and possibly a fusion of legislative and judicial functions as well, for example, in the judiciary committee of the United Kingdom’s House of Lords.  The latter should be referred to as “separation of functions” but is unfortunately, frequently conflated in diverse constitutions with “separation of powers.  The original division was into three segments, the legislative, executive, and judiciary, but in modern times, especially in Latin American, additional branches have been added, including branches that control the electoral system and that monitor and discipline corruption in the other branches.

In my analysis of related systems, I have come to conclude that the doctrine of separation of powers leads to political deadlock and inefficiency but generally fails in its mission to curb authoritarian governance.  Instead, it seems to lead to continual intragovernmental conflict and usurpation of power, especially by the “executive branch”, something less common but not absent in parliamentary systems.  The defect is not theoretical but rather practical, based on the nature of political power and the inherent participatory deficiencies among the electorate in systems that purport to be “democratic”.

Background to constitutional governance in the United States of America

The Declaration of Independence signed by representatives of thirteen of the British Monarch’s North American Colonies on July 2, 1776 but promulgated on July 4, 1776, together with the subsequent Articles of Confederation and Perpetual Union adopted by the resulting thirteen sovereign North American states through their Continental Congress on November 15, 1777 and ratified by the thirteen sovereign states effective as of March 1, 1781, were the founding documents for the United States of America, originally known as the “Perpetual Union”; not the subsequently adopted constitution of 1789.  The latter constitution was adopted by an unconstitutional constitutional convention that assumed power in defiance of the requirements of the Articles of Confederation and Perpetual Union[17] and presented the final draft of a new constitution on September 17, 1787, having exceeded the authority granted by the thirteen sovereign states to the constitutional convention.  In contravention of the unanimity requirements of the Articles of Confederation and Perpetual Union, the new constitution was adopted upon ratification by nine of the thirteen sovereign states on June 21, 1788, and adopted as “the law of the land” by the Congress of the Perpetual Union on September 17, 1788.  That body then passed resolutions setting dates for choosing the first senators and representatives to the new Congress, the first Wednesday of January (January 7, 1789); electing the first president, the first Wednesday of February (February 4); and officially starting the new government, the first Wednesday of March (March 4), when the first Congress would convene.  In essence, the Congress of the Perpetual Union committed suicide and took the Perpetual Union with it.

The Counterrevolutionary Constitution of 1787-89

The Declaration of Independence and the Articles of Confederation and Perpetual Union were revolutionary documents while the constitution that went into effect on March 4, 1789 was a counterrevolutionary instrument revoking most of the principles on which the Declaration of Independence had been premised.  It had nothing to do with democracy as none of the institutional organs it created, the Senate, the House of Representatives, the Supreme Court, the Electoral College or the Presidency were based on the one person, one vote majoritarian concept underlying the institution known as “democracy”, hence, the frequent albeit incoherent refrain, neither accurate nor wholly inaccurate, that the United States is a “republic” and not a democracy.  The new constitution made a mockery of the Declaration of Independence’s claim that all men were created equal by not only guaranteeing the continuation of slavery but also of the slave trade for a minimum period.  It granted the right to vote only to the formerly sovereign states which could then delegate it to such individuals as they saw fit, primarily white male landowners.

No provision was made in the Constitution for resolution of conflicts between the different branches, other than with respect to the presidential veto and provisions for its override, nor, for responsibility for constitutional interpretation or review.  However, that is not entirely accurate.  Plans for constitutional review were considered and rejected at the constitutional convention, which instead opted for the presidential veto to deal with such issue.  In the common law, that was a responsibility ascribed to the legislature (parliament).  In the United States however, that was a power usurped by the Supreme Court, a usurpation only finally resolved through the Civil War of 1861-65.  Alternative theories until that time insisted that each state, as a contracting party, had the right of Constitutional review (the theory of nullification) or that every federal official who took an oath to uphold and defend the Constitution had a right and duty to interpret it when doing so (a view espoused by President Andrew Jackson and others).  Consequently today, the branch of the Federal government that the members of the constitutional convention deemed the weakest, and thus the branch most in need of protection through isolation from political considerations through appointment rather than democratic election and through life tenure, has instead proved the strongest, evolving into a non-democratic politburo and super legislature, and that in turn has turned selection of the president, into a contest over who will appoint the federal judiciary and resulting in politicized justices and judges who make their most important decisions passed on political considerations, thoroughly corrupting both institutions.

Ratification of the Constitution was hard fought with truth an irrelevancy, much the way politics functions today. The biggest concerns with the proposed constitution involved how it would impact two essential principles: the equality and rights of the sovereign states and the liberty of the citizenry. Those who supported ratification of the Constitution, the “Federalists”, guaranteed it would never function the way it does today, the way those who opposed the Constitution, the Antifederalists feared it would; i.e., the Antifederalist feared that the federalist form of government being proposed, a compromise between the loose form of confederate government that existed under the Articles of Confederation and Perpetual Union and the centralized form of unitary government that existed in the United Kingdom, would all too soon become unitary, with state rights minimized and autocracy replacing liberty.  The Federalists promised to immediately add a bill of rights to assure that would not occur but, notwithstanding such adoption, the anti-Federalist fears became our reality.

Governance under the Constitution of 1787-89

The new form of government devised under the Constitution of 1787-89 sought to create a synthesis between the confederalism of the prior constitution and the unitary form of government used in the United Kingdom, linguistically problematic when it was explained in the so called Federalist Papers by Messrs. James Madison, Alexander Hamilton and John Jay (se discussion of confederalism, federalism and unitary forms of constitutions above) as the terms confederation and federation were frequently used as synonyms.  The novel hybrid, “federalism”, was deemed to involve a great experiment as each state could experiment with different modalities of governance, as long as they were republican (non-monarchic) in nature, it being anticipated that the most successful innovations would be replicated in the other states. 

In addition, in order to minimize the abuse of power (erroneously referred to as “tyranny”[18]), Montesquieu’s concept of decentralization of power into three separate but purportedly equal branches, legislative, executive and judicial (Montesquieu, 1748, Chapter 6 of Book XI), was adopted, a transition from the Westminster concept of legislative supremacy.  The three branches were designed as follows:

The Congress[19]

The Congress, like the parliament of the United Kingdom, was bicameral and based on single member constituencies designed to promote a two party system, but with distinct differences.  First and foremost, the Westminster system’s combination of legislative and executive functions and provisions for dissolution (either by royal prerogative or in the event of deadlock) with new elections accelerated, was abandoned, as was the concept of parliamentary sovereignty, wherein parliament was supreme over other branches of government.  Terms were to be fixed and sovereignty was to reside in the amorphous concept of “the People”.

The upper house (the Senate) would not be representative of the aristocracy but rather, of the individual component states, on an equal state by state basis, and the Senate would be vested not only with legislative power[20] but with power shared with the executive in the selection of judicial and executive officials (other than the president and vice president, in first instances, which would be allocated to a special electoral college).  It would also be vested with the power to remove federal executive and judicial officials by a two thirds vote of its membership, provided they had first been impeached (in essence, indicted) by the lower house.  The Senate was also granted special powers in the treaty making process through the requirement that all treaties be ratified there.  In contravention of the concept of separation of powers, the presiding officer of the Senate was to be from the executive branch, i.e., the vice president, a strange figure with little function other than in case of the president’s demise, in which case the vice president would assume the presidency.  While the vice president ordinarily had no vote in the Senate, he (or eventually she) was granted the power to break voting deadlocks involving tie votes.  In the absence of the vice president, the Senate was to be presided over by a president pro tempore elected by the Senate, also important because in the event that neither the president, vice president nor Speaker of the House of Representative (see infra) were available to exercise the presidency, that function would devolve on that official.  In the event that the Electoral College failed to elect a vice president, that function would devolve upon the Senate.  In consequence of all of the foregoing, the upper house was more powerful than the lower house (the House of Representatives). 

The House of Representatives was to represent the citizenry more directly through election by voters deemed qualified by the states, but with more limited, strictly legislative functions, and with primacy solely in three areas: first, financial legislation had to originate there; second,  in the event that the electoral college could not agree on the selection of a president then, acting through state delegations with a single vote per state, the House of Representatives would select the president; and third, in the event of the demise or incapacity of both the president and the vice president, then the speaker of the House of Representatives would assume the presidency for the remainder of the term.  The number of members in the House of Representatives was not premised on the comparative populations of the states (a democratic concept) but rather on a three part formula.  First, each state, regardless of population, was to be allocated at least one member.  Second, the population of each state was to be determined based on the number of free citizens plus a number equal to 3/5^ths of its enslaved population.  Representation in the House of Representative was then to be determined, on a decade by decade basis, based on the resulting qualified number.  Oddly, the Constitution overlooked the issue of whether or not the population to be counted would include only citizens or everyone present at the time of the census, including those who were in the state illegally.  Persons entitled to vote for the election of its members were to be determined in the sole discretion of each individual state, thus, initially, all women and most other citizens were excluded from the privilege of voting.

Collectively, the power to declare war was vested in the Congress but was soon usurped by the presidency through the president’s role as commander in chief of all the armed forces (i.e., through a presidential declaration, formal or informal, that an armed conflict or armed intervention did not “technically” involve a war, e.g., the Korean and Vietnam “conflicts”, but much earlier, during the presidency of Thomas Jefferson, the “conflict” with the Barbary Pirates).

The Executive[21]

The executive branch was headed by a president with a standby vice president elected in order to replace the president when the president was either permanently or temporarily unavailable.  The executive branch was comprised of the president, as both chief executive officer and chief of state (functions divided in the Westmisnter system among the monarch as chief of state, and the prime minister as chief executive), the vice president and a number of designated executive departments, including foreign affairs (promptly renamed State), treasury and war, as well as an attorney general and postmaster general.  No constitutional provision was made for a cabinet as existed in the Westminster system but, by tradition, the heads of the executive departments immediately coalesced into a cabinet for practical purposes.  The president was granted a supervisory role over the legislature through a power to veto legislation which could be overridden by a two thirds vote in each House, it being anticipated at the constitutional convention that the veto power would be used as the principal form of constitutional review of legislation, a function quickly usurped by the Supreme Court.  The president was also made commander in chief of the armed forces.  Of course, presidential power amorphously encroaching into legislative functions through the issuance of decrees quickly occurred.

The Electoral College[22]

The Electoral College was and is a “virtual” institution created in conjunction with the executive branch, virtual because it has no location and has never actually met, acting solely by correspondence between its members in each state and their respective secretaries of state, and then, between the respective secretaries of state and the presiding officer of the Senate, either the vice president or, in his or her absence, the president pro-tem of the Senate.  Its function was to select the president and vice president through majority vote of its membership, members to be appointed by the States in such manner as they deemed appropriate (initially, though state legislative action). 

States were allocated varying voting rights based on a formula designed to dilute representation based on population by requiring that, in addition to a number of electors allocated on the basis of the national decennial census, two additional members be allocated to each state, notwithstanding its population.  Election requires an absolute majority and failure to attain such majority results in removal of the electoral process to the Congress, albeit voting by state, with the president elected by the House of Representatives and the vice president by the Senate.  Initially, the Electoral College was premised on the exercise of personal discretion by each elector based on his own experience and judgment, but political considerations and promises to support one candidate or another quickly politicized the process, which perhaps, with the exception of the initial two presidential elections, never operated as envisioned.  That was made obvious in 1800.  Originally, the runner-up in the election in the Electoral College was to become the vice president, meaning that the two front runners had probably been opponents, but the tie in the fourth such election between Thomas Jefferson and Aaron Burr led to an amendment calling for the president and vice president to run as a team, with roles specified, at least in the Electoral College.

The Judiciary[23]

The third branch, perceived as the weakest at its inception and thus requiring reinforcement, was the federal judiciary, which was to complement rather the compete with the judiciaries in each state, and was expected to limit itself to federal matters and to issues of substance involving citizens of separate states or disputes among the states.  It was not an appellate body but rather one, in most cases, entitled to pick and choose which matters it wanted to consider through a process known as certiorari, although in limited instances it had original jurisdiction.  Nothing in the constitution granted it the discretion, power or authority to interpret the constitution, to override decisions of the other branches of government or to decide matters reserved to the states; however, under the leadership of John Marshall, Thomas Jefferson’s cousin and rival, such power was usurped, and such usurpation was ratified by the victorious North in the Civil War.  In order to avoid its politicization and assure its neutrality, objectives which utterly failed, its members were to be selected for life tenure (on good behavior, removable only through the impeachment and conviction processes for high crimes and misdemeanors) on nomination by the president and ratification by the Senate.  Unfortunately, the result was an aloof, insensitive and antidemocratic institution that promptly usurped prerogatives of the other branches as well as of the states through assumption of the power to interpret the Constitution, to declare acts of the other branches inconsistent therewith, and then, to command other branches and the states to take actions the judiciary deemed appropriate.[24]

Checks, balances and usurpation

In the system devised by the Constitution of 1787-89, as with many other things, the concept of separation of powers was adopted but concurrently violated through what is known as the system of checks and balances, pursuant to which each branch invades the prerogatives of the others, either formally, or by usurpation of functions.  For example, the Executive Branch has the right to exercise the veto power over legislation, to preside over the Senate, to appoint members of the federal judiciary, subject to senatorial ratification, and to pardon infractions of federal laws.  The Congress has the power to remove members of the executive and the judiciary through the impeachment and conviction process and to control executive action through the allocation of fiscal resources with the Senate also participating in the selection of executive and judicial officers through the ratification process.  The Judiciary had no formal right to intervention in the affairs of the other branches, collectively referred to as the “political branches” due to their required participation in the purportedly democratic electoral process, but informally, the judiciary appropriated the unfettered capacity to intervene in any and all functions of the other branches, either through prohibitions (injunctions) or affirmative commandments (e.g., writ of mandamus).  The presidency also quickly adopted informal means to expand its powers, legislatively through decrees and executive orders and executive agreements circumventing the legislative and treaty processes, through selective prosecution and plea bargaining, circumventing judicial functions and, through participation in numerous undeclared wars and military interventions.

Deconstruction of the Constitution of 1787-89

The deconstruction of the Constitution of 1787-89 started almost immediately but its culmination involved the Union victory in the Civil War as a result of which the concept of a league of sovereign states was dashed and federal supremacy firmly established.  Deconstruction was predictable given two series of factors: First, the lack of national identity inherent in the state created involved a multinational entity with incompatible interests, a protectionist industrial north, an internationalist agricultural south with aspirations to absorb the Latin American republics to the south, and an expanding apartheidist frontier society spreading west.  And second, a scheme of government based on expedient but incoherent political compromises without agreement on essential priorities and especially, without an understanding of what the term “perpetual” involved with respect to the right of secession implied in the Declaration of Independence or with how determinations concerning conflicts between state and federal policies and laws were to be resolved (see, e.g., Calvo Mahé, 2020).

Related conflicts raged during the first half of the eighteenth century with the New England States being the first to attempt secession (during the War of 1812), and Thomas Jefferson to espouse the rights of states to reject federal legislation (see, e.g., Koch, 1948).  Thus, the Civil War was not a war to free the enslaved, as is now asserted[25], but to eliminate governmental theories that predominated during the early years of the Constitutional era:

• First, as indicated above, the right of secession first espoused by the New England States during the War of 1812 and in which most early political leaders, including Thomas Jefferson, firmly believed, it being anticipated by many of the founding fathers that the United States of America would eventually separate into three different countries based in irreconcilable regional differences: one comprised on the New England and North Atlantic States (from Maine through Delaware); a second comprised of the newly emerging states to the west of the original thirteen, the frontier states; and, a third comprising the states of the “old south plus a good deal of central and south America which they expected would eventually be absorbed into or conquered by the United States (as the Northern states originally anticipated would occur with the remaining British colonies to the north, which now comprise Canada and as in fact occurred with almost half of Mexico). 

• Second, the elimination of supremacy of state law in all areas outside the thirteen exclusively allocated to the federal government in the Constitution and the related role of states, on an individual basis, as arbiters within their territorial jurisdiction of the legitimacy of federal legislation, the so called theory of nullification, again first espoused by Thomas Jefferson, the hypocritical author of the Declaration of Independence, in what have been historically referred to as the Virginia and Kentucky Declarations.

• Third, the diverse theories over authority to interpret and enforce the Constitution of 1787-89, as emended, which ranged from Jackson’s theory that everyone who took an oath to defend such constitution had a duty to interpret it and apply it in accordance with his conscience (Jackson, 1832) to John Marshall’s assertion that all related authority was vested in the federal judiciary, and especially, in the Supreme Court (see e.g., Newmyer, 2013; Matthew, 2011; Koch, 1948; Kidd, 2012; Henderson, 2010; and, Calvo, 2020).

At the conclusion of the Civil War, through probably unconstitutional means (as occurred with the initial adoption of the Constitution) [26], three amendments to the Constitution (the 13^th, 14^th and 15^th) were imposed by the victorious Union forces, which incoherently, from a legal and logical perspective, forced the states which had seceded to return to the United States of America from which, in theory, according to the victors, they`d had no right to leave, while concurrently depriving them of their constitutional role in the Federal government.  The foregoing is not a reflection on the morality of those amendments, the 13^th and 15^th were obviously moral, but of their constitutional validity and their impact on the nature of federalism, the federalism the Federalists swore would never be abrogated.

The second series of fundamental “unconstitutional” constitutional changes took place during the presidential administration of Woodrow Wilson and the first war “to end all wars”, each amendment profoundly impacting the federal nature of the government originally created by the Constitution; i.e., the 16^th, 17^th, 18^th and 19^th amendments (see, e.g., Wolfe, 1979; May, 2018).

• The sixteenth amendment totally changed the balance of power between the states and the Federal government by changing the concept on which financing the federal government was based.  Recognizing that the power to directly tax individuals involved the power to control, the original sovereign states that comprised the United States insisted that such power be retained by the states, with federal taxing and fund raising authority severely limited.  However, citing the “temporary” exigencies of financing United States participation in the first “war to end all wars”, the amendment overturned Supreme Court decisions finding that a federal income tax violated the Constitution.  In sexist terms, that amendment emasculated the states.

• The seventeenth amendment went even further, changing the nature of the Senate from one representing the individual states to one purportedly representing their individual citizens, albeit in a completely undemocratic manner that totally ignored differences in population, thus maximizing the voting power of each individual in the less populated states. Henceforth, state governments would have no direct impact on federal legislation effectively changing the United States of America from a federation into a unitary government.

• The eighteenth amendment destroyed the concept of a federal government of limited enumerated powers by granting the federal government the right to regulate consumption of alcoholic beverages on a national basis.  Previously, such decisions were made on a state by state basis or even county by county basis.  It has subsequently led to a large number of federal prohibitions on individual consumptive rights, including the disastrous war on drugs which has resulted in the imprisonment of so many Americans, especially African Americans and other minorities resulting in the United States having more of its citizens imprisoned, on both a per capita and total basis, than any other country in the world.

• The nineteenth amendment, as was the case with the thirteenth and fifteenth amendments, is impossible to criticize morally, but it nonetheless helped destroy the federal nature of the government purportedly installed in 1789.  It did so, following up on the 15^th amendment, by eliminating one of the pillars of federalism, the exclusive authority of the states to determine voting eligibility.

Thus, while the “Perpetual Union” created by the Articles of Confederation and Perpetual Union and even the “United States of America” created by the Constitution of 1787-89 envisioned, indeed, specified a league of “sovereign” states, that is no longer the case in the United States except rhetorically and hasn’t been since the Wilson administration.  While the Constitution purports to create a federal system of governance, the hodgepodge of inconsistent formal amendments and informal amendments through contrary legislation and contrary judicial decisions have converted the United States into a unitary state with disperse, decentralized administration for purposes of implementing centralized decision making[27].  The two constitutional provisions most designed to avoid the foregoing, the ninth and tenth amendments included in the purported Bill of Rights are utterly ignored.

The process from federalist to unitary forms of governance had its critical points, but also a sort of careless gradualism where individual states gave up their authority voluntarily and then, momentum built to make the changes both permanent and universal.  An example involves how states lost their role in the federal legislative process.  First, some state legislatures delegated their role in selection of representatives in the Senate to the people by providing for their selection by popular vote and then, when a majority of states had done so, it was made compulsory on the rest through adoption of the 17th amendment.  That amendment obviated the rationale for the Senate, making it an undemocratic superfluity in the legislative context.[28]

A similar process seems to be taking form with respect to the Electoral College, the last “sort of” vestige of federalism remaining.  “Sort of” because it is largely illusory.  So much so that most voters are unaware of its existence or function.  Consequently, at least every four years there are demands for its elimination, or for the implementation of gimmicks to make it even more irrelevant.  In essence, the raisons d’être for the Electoral College have been extinguished.  Those were, first, making selection of the executive branch a power retained by the states, and second, that the electors to be selected would be chosen because of their personal merit, experience and wisdom, and the decisions would be their own, not as spokespeople for those who selected them.  Thus the concept of a pre-pledged electors is an anathematic oxymoron, as is their popular election, but both have taken place, thus largely eliminating the premises on which the Electoral College concept was constitutionally implemented, except, of course, for the undemocratic allocation of votes.  Sensing the foregoing, a rising tide seeks to follow in the path sowed with respect to the 17th amendment, which made the Senate anachronistic.

Conclusions with respect to constitutionalism in the United States of America

First, an observation.  For all of the loyalty demanded to the Constitution of 1787-89, pledges, oaths, ceremonies, statuary, etc., it is almost completely illusory, having been replaced by an antidemocratic, authoritarian “judiciocracy” (rule by the judiciary), where the United States Supreme Court has been converted into a dictatorial fusion of legislative, executive and judicial power, dictatorial not in a pejorative sense but in its original meeting as centralized governance without division of power into separate but equal branches, as envisioned by the Constitution.  The Supreme Court has become an all-powerful politburo encompassing not only the executive, legislative and judicial functions, but also electoral functions, effectively replacing the anachronistic constitution.  See, e.g., Hamilton, 2012 and Roberts, 1994).

The foregoing is not a value judgment on the nature of the resultant form of governance, it is no more or no less just, no more or no less efficient than the form of governance the Federalists promised when they avocated for adoption of the constitution its members negotiated at the constitutional convention in 1787, but which Antifederalists insisted would devolve into what has, in fact, occurred.  But governance through a non-elected judiciocracy is antithetical to democratic aspirations, and to functional libertarian aspirations as well.  As to pluralism, well, that seems to be a current goal, but autocracy, whether individual or institutional, tends to be whimsical and arbitrary, depending on the perceptions of the autocrats.  And the reality is that at present, our judiciocracy is an elitist instrument with elitist, self perpetuatory goals which can easily change with the temper of the times.

Personal suggestions and observations

At the time the Declaration of Independence was adopted, it was innovative and revolutionary.  The same was true with respect to the Articles of Confederation and Perpetual Union, and perhaps, even with respect to the Constitution of 1787-89.  But even the pseudo-revolutionaries who designed all three understood that they involved experiments which should, in the future, be modified or even replaced, to reflect the revelations attained through such experiments.  That’s why the Constitution of 1787-89 has mechanisms for amendment, but our political leadership is loath to invoke and apply them, preferring to effect changes they deem convenient through the illusion of non-amendment by judicial interpretation, a much more controlled form of quasi-amendment where the People are denied their role as the purported source of constitutional authority.

Other countries have learned from the United States’ mistakes and have designed more effective and more democratic, perhaps even more libertarian forms of government from which we, in turn, might learn, were it not for a combination of our hubris, e.g., the perception of “American Exceptionalism”, and the reality that the elites who wield the real power in our society have utterly no interest in democracy, or liberty, or pluralism, or equity, or justice, but rather in the acquisition, accumulation and maintenance of power, and through their control of the economy, have acquired control of the means of communication at all levels, as well as of the bureaucracy, the military, the intelligence agencies, the Congress, the judiciary, and, with rare exceptions, the executive branch led by the presidency as well.  The foregoing virtually negates the possibility of peaceful real constitutional reform, which at least in part explains the increasing outbreaks of violent protests such as that which took place at the Capitol on January 6, 2020.  A situation approaching that which took place in North America during the second half of the eighteenth century, and then, much more seriously, in France during the last decade of that century and the first decades of the nineteenth century, and in Russia at the end of the first “war to end all wars”.

Possible reforms

If we could somehow effect meaningful constitutional reform, what might it look like, assuming the goal was to implement a model that sought to reconcile and prioritize our democratic, libertarian and pluralistic aspirations maximizing the possibility of attaining equity, justice, sustainable economic growth in an environmentally responsible fashion and the illusive common welfare?

The following alternatives each offer positive and negative aspects:

Constitutional interpretation and supervision[29]

What good is a constitution if it is not respected?  And respect would seem to require and ability to interpret and enforce it, as well as to keep its parameters in line with societal mores.  Generalizing the sources of constitutional authority, two categories stand out: one, imposition from above in the form of a grant by a superior authority, or two, percolation from below, i.e., from the “People” in an evolutionary normative process based on social mores.  Constitutional interpretation and supervision may be the determining factor in the internal balance of political power and should be coherently tied to theories of the sources of sovereignty, what is referred to as “constituent” authority, i.e., the source of authority to create constitutions.  As discussed above, the possibilities range from the extremes of the divine to the individual but in between, the predominant theories are, on one hand (the grant from above variants) divinity, autocracy and the state, and on the other (percolate from below variants) either the “nation”, the “People” or the individual.  In order to consolidate and maintain power among elites in the latter three cases, rendering them malleable and manipulable, it is posited that “constituent power” is surrendered once a constitution is adopted, and henceforth, its modification is authorized only in accordance with its terms and through authorized delegates and processes; however, that is illogical as the “constituent power, purportedly fundamental and inherent, would logically always remain at least inchoate in its source institution, thus amendment should require the same formalities as adoption, rather than being left in the hands of an elite of some sorts, for example, a judiciary.  Constitutional changes would seem to need popular ratification, even if, for practical purposes, formulation is centered in some form of representative organ.

In the United Kingdom, based on the theory of parliamentary sovereignty, constitutional authority was concentrated in parliament for all purposes, creational as well as interpretative.  In the United States, while vague, it appears that the formulation of constitutional changes was left to the Congress and the states, or to the states alone, logical if the source of constitutional authority based on federalist theory was the states, but illogical if, as the preamble to the Constitution of 1787-89 states, it was “We the People”.  Like most constitutions, that of the United States of America was and is based on constant political compromise, the political characterized by the sublimation of logic and coherence to sharing of power through compromise.  The issue was considered in the constitutional convention but several options for councils combining legislative, judicial and executive membership were rejected and instead, aspects of the power were vested in the presidency through the veto power, while, as discussed above, competing hypotheses argued that such power was vested in the contracting parties to the constitution, i.e., the states, or, as perceived by Andrew Jackson, by any person whose duty it was to enforce the constitution, while John Marshall appropriated such authority for the federal courts with ultimate authority in the Supreme Court, thereby politicizing both the entire judiciary as well as its selection process. 

Many countries have created an independent organ charged with constitutional interpretation and enforcement, as opposed to constitutional creation and amendment, usually but not always in the form of specialized judicial bodies known as “constitutional courts” while others have opted for mixed concepts similar to those proposed at the constitutional convention, i.e., through “constitutional councils” comprised of members selected from diverse state organs, usually the legislature, the judiciary and the executive.

Logic would seem to dictate that an interpretative organ is essential, but that its composition should involve broad rather than narrow social segments, perhaps combining democratic elements (some members popularly elected) with pluralism (some members representing specific socioeconomic constituencies and minorities), and still others selected by the diverse branches of government, a sort of mini-permanent constitutional commission, with initial enforcement vested in the judiciary and final ratification of the decisions of the commission vested in the People through required periodic ratification of its decisions.

Of course, logic and politics are antithetical, given that politics, in the end, seems to rest on the use and abuse of power, to some extent, balanced by negotiation, a subjective rather than an objective process, while proper implementation of legal and constitutional principles ought to exclude the subjective in favor of the neutrally objective.

Thus we find ourselves where we do.

Parliamentary systems[30]

Assuming theoretical constitutional considerations are either dealt with, or more probably ignored, we can consider the organic aspect of constitutions and specifically, perhaps review the different systemic grouping of governmental institutions, which today, tend to follow three principal models: the Westminster parliamentary systems, the presidential systems based on separation of powers, and the multi-level assembly systems common among governments with more socialist leanings.  In addition, there are outliers ranging from absolute monarchies like the Saudis, or theocracies like Iran.

Based on current parliamentary (Westminster) models, the Republic of Ireland seems to provide a parliamentary system that blends democracy and pluralism, and a constitution that provides a modicum of liberty.  Parliamentary systems such as exist in the Republic of Ireland, as opposed to presidential systems as exists in the United States of America, combine legislative and executive functions in one institution in the sense that the legislature selects the executive, which serves at the pleasure of the legislature during a fixed term, usually five years, but which, in the event of a major conflict between the two, requires new democratic elections.  A separate chief of state with important residual but inchoate rather than quotidian power is provided for with protocolary and election related responsibilities, usually elected by the legislature or an electoral college, but in Ireland, popularly elected. 

While parliaments may be unicameral, they are usually bicameral with most power vested in what is known as the lower house, or the commons, and residual power based on diverse premises (e.g., geographic, ethnic, nobility, federalist, etc.) in a so called upper house.  Members of the governing house, usually the lower house, are elected for five year terms, and in turn, select a ruling cabinet that may include members of parliament, and which includes the chief executive, known usually as the prime minister or premiere, or, on occasion, in monarchies, as the president (e.g., in Spain).  The Parliament as a whole or in some instances, only the governing lower house can be dissolved during its five year term at the option of either a majority of its members or the prime minister, by notice to a figure known as the chief of state (either a president or, in monarchical systems, the monarch) who calls for organizes and supervises the electoral process.  Thus while elected for five year terms, the legislative and executive branches can be replaced at any time.

The chief of state in a parliamentary system, usually denominated president if a monarchy is not involved, tends to have enormous potential power, rarely exercised except in emergencies, and is expected to be non-partisan.  Much of the chief of state’s role is perfunctory, sort of like a notary’s, if things are in order, he signs them, without any subjective input, but in an emergency, he or she may exercise plenary powers.

The Irish novelty mainly involves its upper house (the Senate) which, rather than being premised on democratic premises, is premised on selection of its members based on pluralistic concepts, thus different segments of society, rather than individuals, are represented through elected delegates.  The president selects a number of senators, universities others, unions, others, industry groups others, etc.  An additional novelty involves the chief of state, a president who, has less rigorous qualifying requirements if he or she has the backing of members of representing diverse political parties, a means of promoting a non-partisan presidential perspective.  Unlike most presidents in parliamentary systems, the president is popularly elected.  In most parliamentary systems the chief of state is elected by the parliament, or by an electoral college of complex composition.

Benefits in various People’s Republics[31]

Governments in socialist economies (e.g., in Cuba and in the People’s Republic of China) provide their own innovations based on a sort of multilevel electoral system that maximizes participation, and hence, democracy and pluralism, albeit at times at the expense of liberty.

Almost all governmental systems claim to be “Democratic”, even the absolutist monarchical system in place in the United Arab Emirates, but that is based on diverse definition on what “democracy” entails and a rejection of its majoritarian premise as described above.  But very few involve the level of participation required for functional (albeit not necessarily, libertarian or pluralistic) democracy.  Two that do, but lack the libertarian element, although not the pluralistic aspect involve the Cuban and Chinese models, both of which involve a form of multilevel democracy, sort of the Amway system.

In those two models, electoral participation is obligatory and starts at the local level with a form of direct democracy, at local meetings, anyone who secures nomination by ten people can be a candidate and the campaign is pretty much limited, sort of like in New England town hall meetings.  First level representatives are elected there, but their function primarily involves election of regional representatives under similar conditions in China, or directly to the national level in Cuba.  The local representatives in Cuba or regional representatives in China then elect a majority of the members to the ruling unicameral, uni-functional governing organ, the national assembly, from whose members all senior officials serving in state organs are chosen.  Other representatives to the national assembly are selected on the basis of pluralism, with different societal sectors electing members, and others are designated by the state (e.g., by the armed forces, labor unions, etc.  The National Assembly is the highest state organ and arbiter of constitutional issues, it is the highest legislative and judicial body, but is subdivided into diverse specialized commissions, the most powerful of which are the Central (or Standing) Committee, which exercises the National Assembly’s powers when it is not in session (most of the time) and the Council of State, a sort of cabinet.  The electoral role of the Communist Party is difficult to gauge because related information is heavily impacted by propaganda, both pro and con, based on the source.

The Iranian, democratic theocracy model

Robert Heinlein, a popular science fiction author whose books tend to be fascinating when one is young but tedious as one ages, was a sort of political philosopher and a whole series of his books was dedicated to an alternate future history where the United States had become a theocracy.  Something that, to a student of history, would not be odd given that theocratic tendencies have always been close to the surface in the United States.  Thus, the Iranian model seems worthwhile at least playing with.

In an anti-Iranian article, Wikipedia describes the Iranian electoral system as follows:

Iran elects on national level a head of state and the head of government (the president), a legislature (the Majlis), and an “Assembly of Experts” (which elects the Supreme Leader). City and Village Council elections are also held every four years throughout the entire country. The president is elected for a four-year term by the citizens. The Parliament or Islamic Consultative Assembly (Majlis-e Shura-ye Eslami) currently has 290 members, also elected for a four-year term in multi- and single-seat constituencies. Elections for the Assembly of Experts are held every eight years. All candidates have to be approved by the Guardian Council. See Politics of Iran for more details.

I would supplement the article by noting that all formal political parties are precluded and elections are based on multi-member districts with each voter conforming his own lists from lists of candidates conformed by those seeking election in conjunction with others.  And as a former student noted with respect to the Guardian Council: “isn’t that exactly what major political parties, the intelligence community, the judiciary and the corporate media do now in the United States???

Single versus multicandidate electoral districts

Most of the world has rejected single candidate, first past the post electoral districts as undemocratic given that first: the winning candidate need not obtain a majority of the vote, and second, that losers receive no representation, thus usually disenfranchising sizeable minorities or at times, even composite majorities.  Instead, they adopt electoral districts with multiple seats being contested.  An example would be if a state elects 55 representatives to Congress and was divided into five districts, each would elect eleven representatives on a proportional basis.  Thus, if Democrats received 40% of the vote, the GOP 30%, Libertarians 20% and greens 10%, then democrats would elect 5 of the representatives, Republicans 3, Libertarians 2 and Greens 1, and none would be totally disenfranchised.  Under the current system, the Democrats would have received all eleven.

In one candidate per electoral district systems (the US, the UK and Canada), it is almost impossible for minority parties to develop, while in multi seat districts, it is reasonable easy.  If the US electorate has been clamoring for new options, this is the only way to attain them.

New constitutional convention[32]

Of course, it is inconceivable that any fundamental electoral or government reforms will be adopted by a very satisfied Congressional and executive duopoly.  It would involve political suicide.  But the Constitution of 1787-79 does have a provision permitting two thirds of the states (currently 34) to call a new constitutional convention, a provision never invoked although a proposal has been circulating for many years and which to date has been approved by nineteen states.  Many more states would probably approve a call if it could be limited to consideration of specified proposals, and that is a possibility.  However, that was the case with the constitutional convention of 1787, the one that refused to comply with the instructions of its organizers and instead of correcting a few aspects of the Articles of Confederation and Perpetual Union by unanimity, replaced them entirely by a three fourths vote.  Thus, our current constitution lacks legitimacy in a manner that in the classical context of constitutional law, would have defined it as a tyranny (in a non-pejorative sense) but is nonetheless in force, and the dread is that the same thing would happen should a new convention be called.  Something which, on a global basis, is hardly rare (e.g., the Colombian constitution of 1991).  There are active campaigns to elicit support for a new constitutional convention through voter initiatives, available in a majority of states, but our citizenry is rarely well informed, thanks to the corporate media’s policies of political homicide through silence.  But if you’re interested, at least one of the sites is available through the Internet, at least right now, it may soon be censored: e.g., https://conventionofstates.com/states-that-have-passed-the-convention-of-states-article-v-application.

Conclusion

The foregoing section, “Personal suggestions and observations” lacks the objectivity and reliability of the former sections and thus, for academic purposes, much of it can be easily disregarded, yet it addresses current constitutional dilemmas we face and provides suggestions I find interesting.  Feel free to craft your own.  Or to criticize any aspect of these personal reflections, in whole or in part.  That, after all, is what these reflections aspire to.  To generate reflection, speculation, discussion, new understanding and new proposals.

If you’ve reached this point and read all the foregoing: congratulations.

And thank you

References and Suggested Readings

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Articles of Confederation and Perpetual Union (March 1, 1781); Miscellaneous Papers of the Continental Congress, 1774 – 1789; Records of the Continental and Confederation Congresses and the Constitutional Convention, Record Group 360; National Archives Building, Washington, DC.

Asimov, Isaac (1969): Asimov’s Guide to the Bible (vols. 1 and 2); Doubleday, New York City.

Author not provided (2017). “America might see a new constitutional convention in a few years: If it did, that would be dangerous thing“; The Economist, September 30, 2017, available at https://www.economist.com/news/briefing/21729735-if-it-did-would-be-dangerous-thing-america-might-see-new-constitutional-convention?cid1=cust/ednew/n/bl/n/20170928n/owned/n/n/nwl/n/n/la/68110/n, first accessed September 30, 2017.

Bellah, Robert N. (1967): “Civil Religion in America”; Daedalus, Vol. 96, No. 1, Religion in America (Winter, 1967), pp. 1-21; The MIT Press on behalf of American Academy of Arts & Sciences, Cambridge, available at https://www.jstor.org/stable/20027022, first accessed November 15, 2019.

Calvo Mahé, Guillermo et. al. (Jiménez Ramírez, Milton Cesar, editor, 2020): “Capítulo I. Evolución del control de constitucionalidad en los estados unidos.”; El control de la constitucionalidad en episodios: acerca del control constitucional como límite al poder; Universidad de Caldas, Facultad de ciencias jurídicas y sociales; Bogotá.

Comella, Victor Ferreres (2004). “The European Model of Constitutional Review of Legislation: Toward Decentralization“; I.Con, Volume 2, Number 3, 2004, pp. 461–491, New York, available at https://academic.oup.com/icon/article-pdf/2/3/461/2363883/020461.pdf, first accessed September 25, 2017).

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Ginsburg, Tom and Versteeg, Mila (2013). “Why Do Countries Adopt Constitutional Review?“ Journal of Law, Economics, and Organization, Forthcoming; Virginia Public Law and Legal Theory Research Paper №2013–29, available at https://ssrn.com/abstract=2319363, first accessed September 21, 2017.

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Hamilton, Eric (2012). “Politicizing the Supreme Court“; 65 Stanford Law Review on Line 35, August 30, 2012, available at https://www.stanfordlawreview.org/online/politicizing-the-supreme-court/, first accessed September 30, 2017.

Henderson, Phillip G. (2010). “Marshall vs. Jefferson Then and Now: How the Intellectual and Political Struggle over the Constitution Resonates Today”, Humanitas Volume XXIII, Nos. 1 and 2, 2010, pp. 42–77; The Catholic University of America, Washington, DC, available at http://www.nhinet.org/henderson23-1.pdf, first accessed October 23, 2016.

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Jackson, Andrew (1832). “Veto Message Regarding the Bank of the United States; July 10, 1832“; The Avalon Project, documents in law and History, Yale University, New Haven, CT, available at http://avalon.law.yale.edu/19th_century/ajveto01.asp, first accessed, September 19, 2017.

Jefferson, Thomas (1976): Declaration of Independence; Miscellaneous Papers of the Continental Congress, 1774 – 1789; Records of the Continental and Confederation Congresses and the Constitutional Convention; National Archives Building, Washington, DC.

Jenkins, David (2011): “The Lockean Constitution: Separation of Powers and the Limits of Prerogative”; McGill Law Journal / Revue de droit de McGill Volume 56, Number 3, April 2011, pp. 489-773; McGill University Faculty of Law; Montreal, available at https://www.erudit.org/en/journals/mlj/1900-v1-n1-mlj1811048/1005132ar/#:~:text=Locke%27s%20constitution%20divides%20political%20power,act%20for%20the%20public%20good, first accessed on February 13, 2021.

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Lincoln, Abraham (1861).  First Inaugural Address; The Avalon Project: Documents in law, history and diplomacy; Yale Law School, Hartford; available at https://avalon.law.yale.edu/19th_century/lincoln1.asp, first access January 12, 2019.

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Matthew (2011). “Support and Defend: Understanding the Oath of Office“; The Heritage Foundation, January 3, 2011, available at http://www.heritage.org/the-constitution/report/support-and-defend-understanding-the-oath-office, first accessed, September 23, 2017.

May, Randolph J. (2018): “Woodrow Wilson’s case against the Constitution”; The Washington Times, Wednesday, May 30, 2018; Washington, D.C., available at https://www.washingtontimes.com/news/2018/may/30/woodrow-wilsons-case-against-the-constitution/, first accessed on June 23, 2018.

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Montesquieu, Charles de Secondat, baron de, 1689-1755 (1748, 1949). “Of the Constitution of England”; The Spirit of the Laws, Book 11, Chapter 6, Translated by Thomas Nugent, revised by J. V. Prichard, based on an public domain edition published in 1914 by G. Bell & Sons, Ltd., London, pp. 220–232, available at https://www.ucc.ie/archive/hdsp/Montesquieu_constitution.pdf, first accessed October 1, 2017.

Naranjo Mesa, Vladimiro (2010). Teoría constitucional e instituciones políticas, Undécima edición. Editorial Temis, S.A., Bogotá.

Newmyer, R. Kent (2013). “Burr versus Jefferson versus Marshall”; Humanities, May/June 2013 | Volume 34, Number 3, available at https://www.neh.gov/humanities/2013/mayjune/feature/burr-versus-jefferson-versus-marshall, first accessed October 20, 2016.

Pritchett, C. Herman (1959). The American Constitution, McGraw–Hill Spalding, New York.

Roberts, Paul Craig (1994). “Is the Court Becoming the Politburo? : Following the logic of recent rulings, acts of Congress would have to be racially proportional, with quotas guaranteeing blacks their fair share of legislation“; Los Angeles Times, July 12, 1994, available at http://articles.latimes.com/1994-07-12/local/me-14528_1_voting-rights-act, first accessed September 28, 2017.

Russell, David (2017). “Politicization in the Federal Judiciary and Its Effect on the Federal Judicial Function”; New York University Journal of Legislation & Public Policy Quorum, Vol. 19 (2017 Forthcoming), 25 Pages Posted: 3 Jul 2017 (last revised: 5 Oct 2017); New York University, New York City, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2995008, first accessed October 7, 2017.

Scharfenberg, David (2017). “Time to rewrite the Constitution?“, The Boston Globe, October 6, 2016, available at http://www.bostonglobe.com/ideas/2017/10/06/time-rewrite-constitution/Pcad5XvcYwBatcCz2UUKNP/story.html?et_rid=1759086088&s_campaign=todaysheadlines:newsletter, first accessed October 8, 2017.

Schmitt, Carl (1931). Der Hüter der Verfassung; Duncker & Humblott, Berlin, available at http://list.kphpberaubarat.info/pdf/201918-der-h252ter-der-verfassung-torrent-pdf-download.html, first accessed February 15, 2015.

Wolfe, Christopher (1979): “Woodrow Wilson: Interpreting the Constitution”; The Review of Politics Vol. 41, No. 1 (Jan., 1979), pp. 121-142; Cambridge University Press, Cambridge, available at https://www.jstor.org/stable/1406981, first accessed November 30, 2022.

Table of relevant cases involving the foregoing:

Bush v. Orleans Parish School Board, 364 U.S. 500 (1960)

Cooper v. Aaron, 358 U.S. 1 (1958)

Dred Scott v. Sandford, 60 US 393 (1857)

Ex parte Crane, 5 Pet. 190 1831; 30 US 190 (1831)

Griswold v. Connecticut, 381 U.S. 479, 484 (1965)

Marbury v Madison, 5 U.S. 137 (1803)

McCulloch v. Maryland, 17 US 316 (1819)

Worcester v. Georgia, 31 US (6 Pet.) 515 (1832)

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© Guillermo Calvo Mahé; Manizales, 2023; all rights reserved.  Please feel free to share with appropriate attribution.

Guillermo (“Bill”) Calvo Mahé (a sometime poet) is a writer, political commentator and academic currently residing in the Republic of Colombia (although he has primarily lived in the United States of America of which he is also a citizen).  Until 2017 he chaired the political science, government and international relations programs at the Universidad Autónoma de Manizales.  He is currently the publisher of the Inannite Review, available at Substack.com, a commentator on Radio Guasca FM, and an occasional contributor to the regional magazine, el Observador.  He has academic degrees in political science (the Citadel), law (St. John’s University), international legal studies (New York University) and translation and linguistic studies (the University of Florida’s Center for Latin American Studies).  However, he is also fascinated by mythology, religion, physics, astronomy and mathematics, especially with matters related to quanta and cosmogony.  He can be contacted at guillermo.calvo.mahe@gmail.com and much of his writing is available through his blog at https://guillermocalvo.com/

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[1] See, e.g., Levinson, 1987, Asimov, 1969.

[2] I.e., a course I took on jurisprudence while receiving my juris doctor degree; diverse courses in comparative studies I completed in conjunction with earning al LL.M in international legal studies during the late 1970’s; a series of personal chats I was privileged to have with Thomas Martin Franck (July 14, 1931 – May 27, 2009; from 1962 until his death the Murry and Ida Becker Professor of Law at New York University), one of my professors at NYU; courses on linguistics I took in conjunction with a post graduate certificate in translation studies at the University of Florida’s Center for Latin American Studies and, later, profound questions and observations by very bright students both in the United States and  in the Republic of Colombia.  As a result of the foregoing, my curiosity was piqued and I found myself delving rather thoroughly into the topics I touch upon here.

[3] I acknowledge that, in large part, this reflection is a medley of personal hypotheses which have evolved over a bit more than a half century of observation, study, experience and mistakes from which I’ve hopefully learned, and on having taught what passes for constitutional law, constitutional theory, comparative constitutionalism, comparative politics and political systems and, international, comparative and supranational law.

[4] In general, see Hague, 2010.

[5] Linguistics are an essential element in the study of constitutions, and well, anything, and perhaps the most fundamental element of linguistics is understanding the nature of words.  Words are conventions, in the sense expounded by David Hume, involving containers for information, and ironically, the more information a word contains, the less practically useful it is.  Thus, for example, the generic word “tool” is less practical that the more specific word “hammer”.  Unfortunately, politics tends to imbue words not only with too much information, but also with contradictory information rendering the concepts involved in a word incoherent.  That is certainly the case with the term “democracy” which has been imbued with antagonistically contrary concepts such as liberty, pluralism, rights, etc., in order to make it more palatable.  More palatable perhaps but not only less useful but in fact, unmanageable and thus useless.  The following seeks to reverse that process by defining the three essential terms “democracy”, “liberty” and “pluralism” in their functional rather than politicized senses.

[6] Such as liberty, human rights, justice, equity, respect for minorities, etc.

[7] Nor are they really “unwritten, although they have tradition based components that are not “formally” adopted, fixed or reflected in definitive written instruments.

[8] In general, see Naranjo Mesa (2010).

[9] Interestingly, at least to me, I have analogized the concept of such sources to the platonic religious concept of “the one” as a first principle.

[10] The relationship to and association with the locus of sovereignty seems obvious, at least to me.

[11] Professor Edward (Ted) Watson McWhinney, late of the University of Toronto, provides a brief but excellent monogram on point (McWhinney, 1965).

[12] E.g., Germany, Switzerland, Canada, the Russian Federation, etc.

[13] See, generally Manner, 1952.

[14] In the United States of America, for example, on a state level, individuals are both subjects and objects but originally, on a federal level, they were originally only objects, which explains why, originally, the Bill of Rights only applied to the relationship between the federal government and the states.

[15] In the international context, lip service has been given to expanding subject status to individuals but with little headway, although through intermediation in the context of supranational international organizations involved with human rights, some headway has been made, specifically, with respect to the role of the commission in the Interamerican Human Rights system, and formerly, in a similar context in the United Nations Economic and Social Council.

[16] Clearly a restatement of Locke’s division of government functions (Jenkins, 2011).

[17] The final provision of which, its Article XIII, provided that the Articles of Confederation and Perpetual Union were to be perpetual, and altered only with the approval of Congress and the ratification of all [emphasis added] the state legislatures.

[18] “Tyranny” actual refers to assumption of power outside the prevalent, recognized constitutional channels.

[19] Article I.

[20] Legislative power deemed to include the duty to monitor the integrity of the executive and judicial branches.

[21] Article II.

[22] Article II, Section 1, clauses 2 and 3.

[23] Article III.

[24] See concluding observations.

[25] See, e.g., Abraham Lincoln’s first inaugural address where he stated as follows:  “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.  Those who nominated and elected me did so with full knowledge that I had made this and many similar declarations and had never recanted them; and more than this, they placed in the platform for my acceptance, and as a law to themselves and to me, the clear and emphatic resolution which I now read: Resolved, That the maintenance inviolate of the rights of the States, and especially the right of each State to order and control its own domestic institutions according to its own judgment exclusively, is essential to that balance of power on which the perfection and endurance of our political fabric depend; and we denounce the lawless invasion by armed force of the soil of any State or Territory, no matter what pretext, as among the gravest of crimes” (Lincoln, 1861).

[26] Richard Albert, the William Stamps Professor in Law and the director of constitutional studies at the University of Texas at Austin and others, I among them, have written concerning the concept of “unconstitutional constitutional amendments”, a concept recognized in the common law pursuant to decisions of the supreme courts of Canada and India, and in the civil law through decisions of the German Federal Constitutional Court.  I argue that it would probably apply to amendments 13 through 19 of the United States constitution because they changed the fundamental nature of the government adopted by the Constitution of 1787-89, despite, with respect to the 13^th, 15^th and 19^th amendments, moral and ethical grounds for doing so.

[27] For a discussion of the diverse decentralized administrative options in unitary states, see, e.g., Hague (2010).

[28] Had the goal been implemented logically, albeit unconstitutionally, it would have made much more sense to have merely eliminated the Senate transferring its functions to the House of Representatives, transforming it into a quasi-democratic federal unicameral legislature; a significant operational savings with increased efficiency if democratic governance were the objective.

[29] See Schmitt, 1931; Herrera, 1992; Garlicki, 2007; Comella, 2004 and Calvo, 2020.

[30] See, e.g., Hague 2010.

[31] See, e.g., Hague 2010.

[32] See, e.g., Author not provided, the Economist, 2017 and Scharfenberg, 2017.