US Constitution: A model for others

US Constitution: A model for others
Published: Mon, 2011-10-03 01:42 trinidad guardian
Michael Delblond
In my own humble—and hopefully informed—view, genuine public discussion on constitutional matters ought not to be confused with or obscured by “cut and paste” exercises on the part of legal draughtsmen or the combing and probing of the Constitution’s fine print and grey areas for loopholes and ambiguities for the sole purpose of scoring sterile academic debating points simply in order to procure preferred outcome.

Today, more than ever, with the “wind of change” sweeping across the international landscape and autocratic regimes being swept aside, it’s probably advisable that a subsequent political vacuum and its possible attendant anarchy be eschewed in favour of attention being focused on the bedrock of liberal assumptions on which future constitutions are presumably based, with due respect for individual rights and legitimate freedoms. There is, in my respectful view, a lot of daylight between “political shadowboxing and snide innuendoes” and genuine inquiry into fundamental constitutional tenets, as distinct from an exercise in semantics and/or argumental and/or political expediency, in complete ignorance of the social, historical and political realities.

It’s perhaps fortunate that reference can be made to the US Constitution and particularly the amendments which constitute their Bill or Rights. A distinctive feature of the American Constitution is what is known as “the principle of separation of powers.” Interestingly, the framers didn’t intend that the executive, legislative and judicial arms of government should function in water-tight compartments but their overriding concern was “the dispersion of power” and ensuring that “checks and balances” would guarantee against the accumulation of power and lack of accountability which they deemed a sure recipe for tyranny.

Noted political scientist Prof James Q Wilson explained: “The framers (of the American Constitution) did not create three autonomous branches of government, but rather three separate institutions sharing power. For example, the President negotiates treaties with foreign governments, the Senate must approve them, and the Supreme Court has the right to declare presidential acts unconstitutional.” According to James Magregor Burns, the rationale for having the legislative and executive “at arm’s length,” so to speak, “was designed to prevent the mischief of factions and the tyranny of passionate majorities or ambitious politicians.”

Professor of History Jack N Rakove claimed that, like most other federalists, James Madison “thought that the legislatures were dominated by demagogues who sought office for reasons of ‘ambition’ and ‘personal interest’ rather than ‘public good.’ Such men as Patrick Henry (give me liberty or give me death), his great rival from Virginia, could always dupe more honest but unenlightened representatives, by veiling selfish views under the professions of public good.” As one of the major architects of the Constitution saw it, “The constant aim is to divide and arrange the several offices in such a manner so that each may be a check on the other.”

There is another view, as expressed by James L Sandquist: “A government structure drafted to frustrate would-be despots must, inevitably, also frustrate democratic leaders chosen by the people.” James Burns noted that the framers wanted a government “strong enough to protect individual liberties, but not too strong as to threaten those liberties.” When faced with the particular dilemma during the America Civil War, President Abraham Lincoln reflected thus, “Government must be strong enough to ensure its own existence, but not so strong to imperil the liberty of its citizens.” The American Constitution is not only regarded as a model for other written constitutions—even of the parliamentary or pseudo-parliamentary paradigm—but much can be learnt from a knowledge of how the framers approached their tasks and their chief concerns.

I do not refer to the “pseudo-parliamentary system” in any spirit of levity. Suppose—and we’re only supposing—that a Prime Minister is effectively much more than “first among equals,” and his/her Cabinet and parliamentarians, generally, are virtually under his/her thumb, then it would be difficult to discern the much touted “checks and balances” that are supposed to be an integral ingredient of a bona fide “parliamentary democracy” system. As far as I know, India is the world’s largest parliamentary democracy. Interestingly, the first Chief Justice of the Federal Court of India, referring to noted lawyer M Ramaswamy’s work (Fundamental Rights), opined that a “valuable part of that work was showing that fundamental rights conferred upon American citizens by the Constitution of the United States are real, effective, constantly enforced and readily enforceable.”

THOUGHTS


• According to James Magregor Burns, the rationale for having the legislative and executive “at arm’s length,” so to speak, “was designed to prevent the mischief of factions and the tyranny of passionate majorities or ambitious politicians.”
• The American Constitution is not only regarded as a model for other written constitutions—even of the parliamentary or pseudo-parliamentary paradigm—but much can be learnt from a knowledge of how the framers approached their tasks and their chief concerns.