The Status of Constitution in Government


When in 1689 Britain's Autocratic Monarchy was finally replaced by Autocratic Parliament, Britons heaved a sigh of relief and have tried ever since to make the best of it. Americans busy founding a new nation a hundred years later looked with some suspicion on the potential power of Government in all its branches, then tried through a system of Constitutional checks and balances, and the Bill of Rights, to impose disciplines on the possible excesses of Government – insofar as they could anticipate them at the time.

In neither country today are citizens satisfied either with their Governments, or with the degree of Constitutional discipline to which their Governments are subject.

Since it sets the rules for Government, the Constitution must itself stand above Government as the Supreme Law of the Land. In the United States it holds this position, though at the apex of the Judicial rather than the Legislative system.

In Britain the authority of the Constitution is inherently weak, and there are several reasons for this. The British “Constitution” is unwritten; it is endowed with no personification or effective power save for the Monarch whose powers the Constitution itself has rendered a pure formality; and the Constitution, such as it is, rests in the hands of Parliament which can hardly be expected to promote discipline over its own activities.

In the European Union, young and still trying to find its way through the minefield of nation-members and their conflicting interests and demands, a New Constitution for Europe was formulated, only to be rejected by voters already distrustful of institutions and bureaucracies which threatened their national identity through territorial expansion. It was subsequently passed by stealth. So much for democracy.

Constitution or no Constitution, Government in Britain, Europe and in the United States, and indeed everywhere else in the world, remains as dictatorial as ever. In particular, governments still assume that strongest and most powerful of all rights over their citizens: the power to tax and to spend at will, with no qualification as to the quantity of tax taken, the uses to which it is applied, or the efficiency with which government operations are executed.

Whatever the overall direction and the detail of individual Government policies, there are certain basic disciplines which should apply to the conduct of any government and it is just such disciplines which are laid down in Constitutions. Secrecy, the purveyance of mis-information, lack of productivity and the almost total absence of financial discipline are features of present Governments which should be remedied, and can only be remedied through the strengthening of the Constitution both in its provisions and its status within the total apparatus of Government and Enforcement.

Constitution exerts its supreme power in a Constitutional System by placing itself above and between the two processes of law-making and law-enforcement, thus controlling that vital link without which each process in itself is useless.

The essence of Constitutional Government is the separation of Decision and Enforcement, so that each can empower the other only through the Constitution, and only on condition that both comply with the Constitutional requirements.

If the Constitution is to stand in reality as the Supreme Law of the Land, it must also embody an Executive function; proposed Legislation must be channelled through a Constitutional Executive Council, becoming Law only after Constitutional Verification.

Government Legislation would be formulated according to the appointed processes, but as yet would have no Force of Law. In the form of a proposal, reached through the full observance of the relevant Constitutional procedures, each newly formulated Law would then be passed to the Constitutional Executive Council, where it would be verified to ensure that its content and the procedures of its formulation are fully in accordance with the Provisions of the Constitution.

Following Verification by the Constitutional Executive Council, Legislative Proposals would then be passed to the Enforcement Agencies, thus giving “Force” to “Law”. But once again there must be Constitutional Verification, for the Enforcement Agencies must also be subject to Constitutional Provisions and must be constantly monitored to ensure that they so comply.

It is important that Enforcement Agencies should not distort the Law in any way, and that Enforcement Personnel should conduct themselves correctly. It would be the duty of the Constitutional Executive Council to monitor the Enforcement Agencies continuously in order to ensure that their conduct complies at all times with the Provisions of the Constitution.

If the Constitutional Executive Council is to be responsible for the verification of all Legislation in terms of content and procedure of formulation, as well as for the honesty and legality in all aspects of Enforcement conduct, it may reasonably be suggested that the Constitutional Executive Council is the most important body in the process of Government.

The membership of the Constitutional Executive Council is defined by its purpose: it must consist of persons having intellectual stability, legal training and a thorough understanding of the status and provisions of the Constitution which it is their duty to uphold. The US Supreme Court with its carefully selected nine Members drawn from the Judiciary provides a good basic example.

Though the Constitutional Executive would naturally be drawn mainly from the country in which it serves, a case can be made for inviting some suitable candidates from other countries having broadly the same constitutional, legal and linguistic traditions. In this way the Constitutional Executive Council would reflect a broader, more objective view, and international cooperation and understanding would be encouraged.

Also necessary to the proper function of Constitutional Government is the provision of an institution and procedure for the periodic consideration of Constitutional Revision. From time to time there will be details of the Constitution which must be amended or withdrawn. Similarly, new perceptions or conditions will arise which make it necessary for new Constitutional provisions to be added.

Without adequate provision for amendment, inconsistencies are bound to develop as the customs and expectations of civilization change.

The right of every American to “bear arms” was conceived in a context of 18th Century People's Militias which today we barely comprehend; the current exercise of this Constitutional “Right” has put over 200 million guns in private ownership - one for every adult American.

The results, in terms of crime and violence, could not have been foreseen by the Founding Fathers, and would hardly be approved by them. This Constitutional Right is now a serious threat to public safety, yet it cannot be withdrawn or even seriously limited owing to the gridlock of conflicting pressure groups.

An example of a current need for new Constitutional discipline over Government conduct can be seen in the present absence of fiscal constraints, without which Government can plunge itself and the nation into apparently limitless debt.

All that is needed is that Government be required to conduct its finances according to the same rules of fiscal propriety which the Law demands of private citizens and corporations.

A fundamental principle of Constitution since Magna Carta is that the Law-makers should themselves be subject to their own Laws. When Government can conduct itself and its business in ways which would never be tolerated in the private citizen or corporation, that is a sure indication of a significant lack of Constitutional discipline.

The United States Supreme Court rules on points of Constitutional Interpretation. But America's Founding Fathers left no suitable provision for amendment of the Constitution. Since the purpose of Constitution is to discipline the Legislature, it is clearly not appropriate to ask the Legislature itself to amend it! A body of similar stature to the Supreme Court must be created to fulfill this function.

The Constitution must take its true place as the Supreme Law of the Land, laying down the procedures of, and disciplines upon every branch of Government, and through its Executive Council position, subjecting every proposed Law to scrutiny.

In current constitutional practice, as seen for example in the USA, legislation as formulated by Congress is passed for formal ratification to the President who, as Executive, "executes" the proposed legislation into law without any requirement for constitutional verification. Thus “unconstitutional” laws are free to leave the system and roam the land – until some watchful citizen initiates a tedious chain court action, up through the judicial system to the Supreme Court.

If it is to fulfill its role effectively the status of the Constitution must be elevated to a higher position, at the apex, not of the judicial, but of the legislative process. In this way, laws are verified for constitutionality before being formally enacted.

Like the production of motor-cars or any other product, law-making is a production process, and as such should be subject to quality controls. Ideally, quality control should apply throughout the process, with final full checking on completion, before the product is released to consumers.

Regrettably today, many businesses allow substandard products to leave the factory, relying on customers with discernment and persistence to call the business to account.

Similarly, laws are currently allowed to proceed through parliaments thence to launched unchecked upon the public. Again, responsibility is upon alert citizens to identify bad laws, then to fight persistently to have them repealed or revised.

Law-making should be subject to constitutional controls throughout the progress of each law, ensuring that the intent of the law is to prevent injury, that debate procedures are observed, and the machinery of governance is executed productively. Only after final constitutional verification would the formal enactment of the law be permitted.


arton internet publications
       internet arton publications