Constitutions are inherently conservative antidemocratic instruments, attempts by the polity of a given time to control the decisions and practices of their progeny.  At their best, they are conservative in the sense, not of the policies they promote but rather, in the sense that they reject the opinions of any given period as absolute, instead insisting that they reflect the past (i.e., tradition), the present (seeking resolution to current tensions) and the future, although with reference to the future they tend less to respect than to bind.  Those burdened with the task of constitutional control (i.e., interpretation, implementation and enforcement) are purportedly bound by the constitution’s dictates based on earlier experiences (experiences perhaps not only no longer relevant but conceivably now proven wrong) while trying to resolve current tensions.  Not an enviable task.

In constitutional terms, the English common law did not recognize the authority of the past over the present insisting that no parliament or institution could bind another but it concurrently had to deal with the inherited Roman concepts of stare decises and res judicata, both demanding adherence to prior decisions, albeit binding on the judiciary but not the legislature.  Napoleon Bonaparte, based on libertarian and egalitarian instincts, rejected both stare decises and res judicata, insisting that judges be bound by broad legislatively enacted legal concepts embodied and logically organized into codes[1] which they were required to apply to the facts, using their own judgment and logic, to arrive at conclusions tailor made for the specific issues involved without regard for either the past or the future.  On the other hand, he insisted that judicial decisions be brief, limited to one sentence if possible, a dictate made ludicrous through us of the word “whereas” (in French, considérant) to link innumerable pages-long clauses to contextualize and explain the nature of and reasoning for a decision.

The constitution of the Republic of Colombia (where I now live after a lifetime in the United States), like the constitution of the Republic of India (also known as Bharat), is an extremely long tapestry of contradictory and unattainable premises and promises, albeit beautifully phrased and full of idealistic platitudes, in the case of Colombia, with four different supreme judicial bodies, each of which seems to take turns contradicting the others, and as elsewhere, each dominated by political rather than legal priorities.  To me they are both most useful as harbingers of the uselessness of constitutions incomprehensible to the people they are meant to govern, interpretable, if at all, only by purported experts frequently incapable of agreeing with each other.  As several of my students in classes on constitutional theory and on comparative politics have noted, a constitution, to really serve its purpose, ought to at least be comprehensible to people of average intelligence and education, even if it is, in practice, rarely really followed (as is much too frequently the case)[2].

Today, many, perhaps most, maybe even all constitutions are more like revered religious relics treasured by atheists because of their historical, cultural and monetary value than because of their intrinsic meaning.  Hence, in the United States of America for example, the meaning of the Constitution’s premises and pronouncements not only vary over time as it purportedly somehow seeks to remain relevant for resolution of legal and political tensions reflecting changing societal contexts, but even more so with respect to the immediate goals and aspirations of the political party that most recently appointed the membership of the judiciary, the judiciary which, in the United States, through usurpation[3], acquired the power and responsibility for constitutional control.  Hence, members of the United States Supreme Court may well change their constitutional interpretations based on whether or not the party that appointed them controls one or the other, or both of the other purportedly coequal branches of government.  Consequently, existential issues like states’ rights versus federal supremacy alternate in focus and importance, as does strict construction versus organic interpretation.

In the United States, the study and practice of “constitutional law” does not involve development of a profound understanding of hypotheses and theories involving the nature and roles of constitutions, their elements and how they should function in order to approximate the common welfare but rather, a tortured study of the history of Supreme Court decisions and how to best misinterpret them to support desired quotidian results. That leads to ludicrous decisions (sometimes resulting in equitable results) such as that in the famous (and now infamous) case of Roe v Wade, 410 U.S. 113 (1973), where the court at the time discovered a penumbra of privacy emanating from perceived implied constitutional rights that created a right to an abortion, something none of the creators of the Bill of Rights would have supported, although they probably would have agreed that such a right probably existed based on the ninth and tenth amendments to the Constitution (the forgotten amendments) which provide that the Bill of Rights is not an exhaustive list of all human rights and sought (unsuccessfully) to restrict federal power to only what is explicitly stated in the Constitution. Specifically, the 9^th Amendment protects rights not specifically listed while the 10^th reserves all other powers for the states “or the people”.  Roe v Wade is only one of the more egregious instances of poor constitutional scholarship by those charged with constitutional control.  Other examples are myriad, especially those that virtually destroyed the constitutional concept of federalism on which the United States was based, at least what was left of it after the Civil War and the Wilson era constitutional amendments (the 16^th through 19^th amendments), through expansion of the Commerce Clause of the Constitution, Article I, Section 8, Clause 3, which grants Congress the power to regulate commerce with foreign nations, among the several states, and with Indian tribes, coupled with the Supremacy Clause,  Article VI, Clause, which establishes that the Constitution, federal laws, and treaties constitute the “supreme law of the land”, albeit theoretically only in the areas covered by the twenty-seven specifically designated (“enumerated”) areas were power is withdrawn from the States and transferred by the Constitution to the federal government (Article I, Section 8).

Thus, while it is true that in theory constitutions are inherently conservative, antidemocratic instruments, in the case of the United States of America, the meaning of the constitution adopted in 1787 and implemented in 1788, at any given point in time, like beauty, lies in the eyes of the beholder, except, perhaps, for its organic functions, i.e., those that specify the institutions created for federal governance.  But even there, such functions, organization and modes of operation have proven not that difficult to manipulate, e.g., voting rights, apportionment, electoral districts, gerrymandering, prohibitions against convergence of legislative, executive and judicial powers[4], etc.  The result is, as I once wrote[5], a motley constitution, one court jesters (actually, wielders of considerable power both as advisors and as spies) might well be proud to call their own.

And unfortunately, in that respect, the United States Constitution is not unique.

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© Guillermo Calvo Mahé; Manizales, 2026; all rights reserved.  Please feel free to share with appropriate attribution.

Guillermo (“Bill”) Calvo Mahé (a sometime poet and aspiring empirical philosopher) 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. Previously, he chaired the social studies and foreign language departments at the Eastern Military Academy in Huntington, New York. He is currently the publisher of the Inannite Review available at Substack.com; an intermittent commentator on radio and television; and, an occasional contributor to diverse periodicals and publications. He has academic degrees in political science (BA, The Citadel, the Military College of South Carolina), law (JD, St. John’s University, School of Law), international legal studies (LL.M, the Graduate Division of the New York University School of Law) and translation and linguistic studies (GCTS, 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, cosmology 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] An ancient perspective reflected notably in the codes of Hammurabi and Justinian, millennia apart.

[2] Interestingly, there are those, frequently highly intelligent comedians of a libertarian bent, who find dysfunctionality the best form of governance given, as Will Rogers once stated quoting Judge Gideon John Tucker that “No man’s life, liberty, or property are safe while the legislature is in session”, thus a functional constitution may be the most dangerous kind and the type most to be avoided.  It is sad to consider that the eminent Judge Tucker and Mr. Rogers may well have had a point.

[3] See, e.g., 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.

[4] A prohibition made ludicrous in the case of administrative agencies which combine all three functions in a revolving door scheme where regulators and the regulated constantly trade places.

[5] Calvo Mahé, Guillermo (2023):  “Motley Constitutionalism: a labyrinthine aphorism”; Medium, July 30, 2023 available at https://guillermo-calvo-mahe.medium.com/motley-constitutionalism-a-labyrinthine-aphorism-9270c689f12d.