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Samizdata quote of the day

One of the themes of my law and policy commentary on this blog and elsewhere is that a culture of ‘constitutionalism’ is more important than constitutions – and that demands for a ‘written constitution’ should be not be seen as more urgent as demands for a constitution that works.

Constitution-mongers – to use the pejorative phrase of Edmund Burke – may serve up for sale eloquent and elegant texts, detailing which institutions should do what in an ideal polity.

But the basis of any worthwhile constitution is not the exposition of what each institution of the state can and should do, but what will check and balance each element of the state.

A worthwhile constitution is one that goes along with the grain of political behaviour, and not cut across it on the basis of what ‘should’ happen.

David Allen Green

23 comments to Samizdata quote of the day

  • Lee Moore

    However bad constitutionalists drive out good. Once one party has gone to the bad, the other is doomed to follow.

    btw I followed the link, and spotted a Brexit article in which this chap said that the UK government should not have rushed Brexit. This kinda dented my confidence in his sagacity.

  • John B

    Written Constitutions have a short shelf-life. Humans are very ingenious and ingenuous and will find plenty of contingencies where the constitution may be bypassed – CoVid anyone?

    The first one… Magna Carta – was being ignored by King John within months of him signing it. Each Plantagenet king ignored its provision so a new draft had to produced and he forced to sign. There were about half a dozen Great Charters, now no part of them remains in English Law, and the Great (English) Reform Bill is a doormat at the main entrance of Parliament.

    The only constitution that will work is get rid of Government and Parliament and declare open season on anyone who tries to start one and immunity for anyone who stops them by any means.

    Self-government via civil institutions and interactions and transactions of everyone in society.

  • btw I followed the link, and spotted a Brexit article in which this chap said that the UK government should not have rushed Brexit. This kinda dented my confidence in his sagacity.

    I am prone to quote Mao Tse-Tung, because when he was right, he was right. So the fact this bloke might be wrong about something Brexit related doesn’t really matter to me regarding his opinions on some other topic. Ideas stand on their own.

    Hell, I do not always even agree with myself.

  • Paul Marks

    I am not sure what Mr Green means.

    However, I am sure that a Constitution should be very clear in its wording – so that is clear to everyone (the people) what government can do and what it must NOT do.

    As for “checks and balances” – clearly judges appointed by the establishment itself are useless (how can they be a check on the establishment – if they are part of it and share its attitudes).

    So judges should either be elected (and regularly face reelection – in contested elections), or randomly selected JURIES should decide constitutional questions.

    John Adams said that the United States Constitution was for a “moral and religious people and would suit no other” – although meant as praise, this is actually damning.

    A “moral and religious people” would need no Constitution – Constitutions are for people as they really are, i.e. often lying, twisting, scumbags – who may keep a Constitution IF there is no “wriggle room” no loopholes or loose wording.

    Roger Sherman was right – if you want something SAY IT PLAIN, for example if you do not want anything but gold or silver to be money, that is what you say.

    Too often the framers were interested in elegant wording – rather making a clear LEGAL CONTRACT that any person on the street can understand.

    Constitutions such as that of Alabama or Florida may be less elegant – but they are more effective, because they say in clearer language what the government can do and what it can not do.

    As for “unwritten Constitutions” – the British experience since 1870 has not been good (to put the matter mildly).

    But it was hardly perfect even before 1870 – for example Sir Robert Walpole (by a campaign of lies) got Parliament to censor the theatre (censorship that lasted till the 1960s_) – it is clearly unacceptable for government to have the power establish censorship, the same tricks could have been used to get Parliament to censor books or anything else.

    Also the British government often allowed banks to “suspend cash payments” – i.e. not pay physical gold when they were contractually obliged to do that, and the American government did the same.

    This transforms a financial system into a “den of thieves” an “abode of robbers”.

    I can quote Edmund Burke as well.

  • Paul Marks

    “what will check and balance each element of the state”.

    So the President wants to spend X, the Senate agrees in return for spending on Y, and the House agrees to spending on X and Y – in return for spending on ABC.

    And then the courts (the establishment judges) then come along and demand more spending D,E,F and G – as with various State courts (with unelected judges) and their demands for more spending on education.

    “checks and balances” are the road to bankruptcy and to tyranny – as each bit of the state will want to add its own bit of wild spending, and its bit of despotism.

    No – this approach has been tried, and it has totally failed.

    The, for example, Florida approach is better – say what taxes the government can have and what taxes it may NOT have, and do your best to make sure its spending comes from these taxes, not from endless borrowing and printing.

    And make sure the Constitution is written as a LEGAL CONTRACT – not a high sounding piece of political theatre.

  • Paul Marks

    To people who trust judges…..

    Look at what the laws of several States (such as the Commonwealth of Pennsylvania) say about mail-in ballots – and compare that to what actually happened.

    Then look at what the State and Federal judges did to uphold the laws – NOTHING.

    The people must look to themselves to defend their basic rights.

    That has been true since at least the 1930s – when the courts, in 1935, allowed the Federal government to rip up the gold clauses in contracts (both public and private) and to STEAL privately owned monetary gold.

    As several Supreme Court justices themselves said at a time – the Republic is now dead, and “Emergency” rule (declared in 1933) would never end.

    Roger Sherman would have said “I told you so” (in his demand for clearer wording – that any person on the street could understand) and he would have been correct.

    Of course if Sherman and others had been listened to there would have been no Credit Money bubble of the late 1920s – because there would have been no Credit Money.

    “Bullion Benton” the great Senator from Missouri in the 19th century was correct.

    “Senator Benton do you remember President Jackson?”

    “Of course I remember him, I shot him once – he was fine man!”

    Men like Benton and Jackson would make short work of the “Deep State” establishment today – and they would not even waste bullets upon them. They would hang the lot of them.

    The discoloured and bloated corpses of high officials and corporate types (“Woke” Credit Bubble bankers especially) gently moving in the breeze – now that would be a sight to behold! And a smell to experience.

    Not that I am suggesting any such course of action – as I am a kind and gentle person.

  • Snorri Godhi

    Broadly speaking, i agree with the sentiments in the SQotD — except that i think that a written Constitution is not completely useless, since it is a form of insurance.

    No insurance is safe: your insurer can go bankrupt, and then, where are you?
    But: at a reasonable price, insurance is still worthwhile.

    BTW Gaetano Mosca formulated (what look to me like) very similar ideas in his magnum opus: The Ruling Class.
    Mosca’s idea (in my understanding) is that a piece of paper is pretty useless: what is needed is an effective balance of power in society.
    The more powers there are, the merrier.
    For instance, agricultural, industrial, military, religious, media, and electoral powers.

  • Jon Eds

    A constitution is useful in preserving liberty as long as individuals and governments respect the rule of law. They do not need to love liberty; they just need to love order. Most people do (fewer politicians perhaps). That is not to say that a constitution cannot be deliberately misinterpreted, or have lawyers run rings around it. A clearly written constitution is invaluable in this respect.

    Sweden did not lock down, not due to some intrinsic stoicism of Swedish people, but for three reasons: the Swedish constitution clearly bans ministers from day to day interfering in the running of public body (a bit like the Bank of England works in the UK), the head of the Swedish health authority is a stoic and realist (he could not have been – on the other hand maybe Whitty could have been too, without Hancock breathing down his neck), and thirdly the constitution bans restrictions on movements of citizens inside the country except in certain limited circumstances of which a pandemic is not one (by contrast, restrictions on large groups of individuals is explicitly allowed in the case of a pandemic).

    Britain has a deeply dysfunctional democracy, and a re-ordering is desperately needed.

  • “In a conflict between law and power, it is seldom that mere law will emerge the victor.” (Hannah Arendt, quoted from memory). “Only power can arrest power’ (Montesquiou) “that is, without putting impotence in its place.” (Arendt’s clarifying addition).

    Either you incarnate the rules of your constitution in bodies that have both an interest in opposing the trespass of other bodies and an ability (given by it) to do so, or it disempowers the honest who take its prohibitions seriously, and empowers the cheats who find only the law opposing them, not a body of people who resent their area being invaded.

    Of course, the victims of such trespass can fail dismally at times. In 2020, certain US state legislatures had their constitutional powers usurped – not always even under the excuse of a pandemic – and failed dismally. Some are now trying to audit back those powers.

  • Paul Marks

    Jon Eds – your points about the Swedish Constitution are valid. They could shut any individual business (if they presented evidence that it was a risk to public health), but they could not shut almost all business enterprises – with no evidence at all, which is what happened here.

    As our learned fried Mr Ed often points out – an edict that shuts down book shops and keeps bike shops open has nothing to with public health.

    I remember Peter Hitchens and others putting their faith in the judges – I did not know whether to laugh or cry. Judges say when the government is not being statist ENOUGH – they are not interested in REDUCING statism.

    Judges used to be interested in basic liberties “a culture of constitutionalism” the incredibly vague David Allan Green might call that – but Sir John Holt, Chief Justice from 1689 to 1710 did die a rather long time ago. Holt tried to defend fundamental liberties against King AND PARLIAMENT (just as the case of Dr Bonham a century before was about opposing a statute of Parliament which demanded a “license” to practice medicine – the case was not just about opposing the King).

    The swine Sir William Blackstone (who was rightly detested by the American Founding Fathers) is more popular these days – with his lip service to natural law, whilst then saying that Parliament can do anything it likes. Essentially this means “executing people just because they have red hair is against natural justice – UNLESS there is an Act of Parliament saying that all redheads should be executed, in which case it is fine”.

    Modern judges go a step beyond Swine Blackstone – they say Parliament can do anything it likes UNLESS it is not being statist enough, in which case they demand it be more statist. Is this what Mr Green means by “checks and balances”?

    Policy does not normally emerge from politicians anyway – it emerges from “experts” and then goes on to officials.

    Mr Johnson would NOT wake up one morning and say to himself “I think all people with red hair should be executed – I will present this idea to Parliament”.

    What would happen is that international experts would come up with the idea that all redheads be executed – and they would present this idea, in incredibly complex language, to various international and national bodies and conferences – politicians (such as the British government ministers) would then nod (in a confused way) at the “legally nonbinding” documents officials presented to them.

    This would eventually arrive at Parliament – but not before the media had lots of articles and television programmes denouncing the government “Why have redheads not been executed yet? The government is totally failing in its duty to execute redheads!”

    Parliament would then discuss the matter – and the “Opposition” would denounce the government for not executing redheads faster “as all the international and national experts have demanded” – the government would defend itself by saying it was executing redheads as fast as it could, and that it was actually following the timetable of the national and international experts on the execution of redheads….

    And so the Parliamentary debate would continue – with the House of Lords and the courts pushing the government to execute more redheads, and perhaps to torture them first. And the media (and education system) denouncing the government for not proceeding fast enough – and even, horror of horrors, allowing some redheads to escape.

    Anyone who suggested that redheads NOT be executed and questioned the moral wisdom of the national and international experts would be laughed at as a “conspiracy theorist” who was totally out of touch with the modern world.

    Perhaps all this is what Mr Green means by checks-and-balances and a “culture of constitutionalism”.

    If Mr Green actually wants to know what politics is like – I suggest he read a book published in the mid 1970s by Terry Arthur “95% is Crap” – politicians, officials, trade union leaders, CBI corporate managers – all talking “crap” about various matters and pushing insane policies that they did NOT think up and which do terrible harm.

    I have spent my life in politics (more fool me) and I can assure Mr Green that Terry Arthur was correct.

  • Paul Marks

    To be fair there is something REAL (as opposed to absurdly vague) called a “Culture of Constitutionalism”.

    This was seen in a handful of American States during 2020 – in these States Governors asked “what do I have the Constitutional power to do?” NOT “what do the Public Health experts say I should do”.

    Mr Green does not like Constitutions that clearly say what government can do and what it must NOT do – but that is the only sort of Constitution worth having.

    As for unwritten Constitutions.

    The unwritten Constitution of Saudi Arabia has never prevented tyranny. The unwritten Constitution of Israel did not prevent a lockdown – and all the rest of it.

    As for the unwritten Constitution of the United Kingdom….

    Well pause for either laughter or tears – or both.

    And the decay did not start last week – it was obvious as far back as the 1870s.

    “The English Constitution” by the “great liberal” Walter Bagehot shows how useless this all is.

    “concede whatever is safe to concede” says the “great liberal” – meaning throw money at schemes designed to attract the support of the “new voters” under the Act of 1867 (Bagehot just assumes they will want to be bribed with their own money – for the money of the government comes from the taxation of the voters).

    What an inspiring vision – and in a book published in 1868 and hailed as a classic.

    Almost needless to say Walter Bagehot (third editor of the Economist magazine) also supported bailouts for Credit Bubble bankers – “restrained” and “limited” bailouts of course…..

    I am sure that Walter Bagehot and David Allan Green would have got on wonderfully.

    Constitutions should not clearly say what governments can and can not do – they should promote checks and balances, a certain culture of doing things, WAFFLE, WAFFLE, WAFFLE.

  • Paul Marks

    As for the independence of the United Kingdom.

    After more than five years it has still not been done. British fishing grounds have NOT been returned to British control. The “Protocol” means that part of the United Kingdom is cut off from the rest of the United Kingdom and is still under the laws of the European Union. And there has been no “bonfire of controls” to “set the people free” (Churchill 1951) getting rid of E.U. regulations in the rest of the United Kingdom either – indeed the E.U. regulations remain in place, more than five years after the vote for independence.

    The above Mr Green describes as “rushing” independence.

    No doubt “checks and balances” and “a culture of constitutionalism” means such things as Disraeli’s Acts of 1875 – unions put above the law (hello start of the relative decline of British manufacturing industry – yes this is when, and why, the relative decline of British industry starts – people also start to note UNEMPLOYMENT even in good times after the Act of 1875, unemployment made much worse by the effects of the terrible Act of 1906), and local councils having to do about 40 different things whether local taxpayers wanted the councils to do them or not.

  • Jacob

    The Soviet Union did have a splendid Constitution…
    I forgot who said: “Constitutions? we have plenty”
    But it is definitely Marx who said: “These are my principles and if you don’t like them I have others” (Groucho).

  • Michael Gillespie

    What may prove to be the fatal flaw in the US Constitution is the assumption that States would jealously guard against and fight any attempt by the federal (nearly wrote “feral”!) government to usurp their powers. Direct election of Senators was arguably the death knell for that assumption. If the states will not defend their powers, and courts will not grant standing to a state that DOES seek to challenge the feds, then the whole edifice tumbles. That is where we appear to be now.

  • Fraser Orr

    @Michael Gillespie
    What may prove to be the fatal flaw in the US Constitution is the assumption that States would jealously guard against and fight any attempt by the federal (nearly wrote “feral”!) government to usurp their powers. Direct election of Senators was arguably the death knell for that assumption.

    Although I agree with your general sentiment, and I specifically agree that that 17th amendment basically eliminated the whole purpose of the senate, I think the amendment previous to that — the 16th — permitting Congress to tax people directly — was the real death knell of federalism. The one after, prohibition, was right in line with this nonsense — states were perfectly at liberty to ban alcohol, but the Feds felt the need to suck it up to Washington. The next amendment, the 19th, granting women the right to vote, I’ll leave to others to decide if the ladies pointed us all in a better direction. All these amendments happened is a short ten year period, the busiest amendment period I believe excluding the bill of rights and the three civil war amendments. And they were mostly not good for federalism.

  • Snorri Godhi

    The next amendment, the 19th, granting women the right to vote, I’ll leave to others to decide if the ladies pointed us all in a better direction.

    I find it of great interest that most of ‘the ladies’ voted Conservative in the UK from the time when they were allowed to vote, up to the time when the non-working-class (and handsome) Tony Blair became leader of the Labour Party.

    Similarly, in France the ladies have usually voted conservatively. The “left” over there was supposed to represent manual workers, after all; and few women are manual workers, except as housewives. (Don’t know whether that has changed… but we all know that, right now, the “far”–“right” in France is led by a woman.)

  • bobby b

    ” . . . and I specifically agree that that 17th amendment basically eliminated the whole purpose of the senate . . .”

    Not the whole purpose. I still greatly appreciate how the very small South Dakota-like conservative states get two senators each while the huge California-like progressive states get . . . two senators each.

    There is still some federalism remaining because of that.

  • Rich Rostrom

    Snorri Godhi:

    One of the first acts of the 1930 Spanish Republic was to enact women’s suffrage. They also stripped the Church of its roles in education and charity. Being leftists, they were astounded when in the 1934 election, the Christian-democratic CEDA won, thanks to the votes of pious rural women.

  • Rich Rostrom

    Bobby b:

    And small liberal states (Hawaii, Delaware, Rhode Island, Vermont) get two seats, just like large conservative states (Texas, Florida).

  • bobby b

    “And small liberal states (Hawaii, Delaware, Rhode Island, Vermont) get two seats, just like large conservative states (Texas, Florida).”

    Yep. And, with “conservative” states yielding 43 million fewer votes than the prog states, the Senate is 50-50. It’s a mixed blessing, for sure. But it retains the point of federalism. States count.

  • Paul Marks

    No Jacob – the Soviet Union did not have a splendid constitution.

    It had a rotten constitution – filled with “positive rights” (stuff from the state).

    I am often accused of writing in an inelegant way – but I prefer truth to elegance. I prefer truth to clever seeming comments, which are false.

    A good Constitution must CLEARLY LIMIT THE POWERS OF THE GOVERNMENT – if it does not do that, if it is instead interested in what will “check and balance each element of the state” (or some other bovine excrement) then it is not worth the paper it is written upon.

  • Paul Marks

    I repeat my warnings about judges.

    Look, for example, at how judges have subverted the Constitution of South Africa (undermining private property rights) and seek to subvert the Constitution of Guatemala (for the same purpose).

    Who gets to decide Constitutional questions is very important – do not let the establishment pick the judges, if you can not turn to juries for Constitutional questions. And why not constitutional juries – if a constitution is too complicated for the average person, then it is NO GOOD.

    It is vital that a Constitution be written in very plain language (if wording is elegant – it should not be there).

    Say what you mean – and say it plain. This helps make it if not “lawyer proof” at least “lawyer resistant”.

    Words that have no purpose should not be in a legal contract (which is what a Constitution is). For example – avoid preambles and examples.

    If you say that the following government spending powers are for the “general welfare” then some utter swine is going to say there is a “general welfare spending power” and the nation will then be bankrupted by endless government spending.

    If you want free trade between the States – that is what you should write. Not “regulate interstate commerce” (yes I know it was meant to mean “make regular” – but even in 18th century English it is not clear enough).

    And, again, do NOT give examples and preambles – do not say “to the son who loves me best I leave my house” – unless you want endless legal cases over whether he really loved you best.

    Do not say anything about a militia and a free state – just say “The right to keep and bear arms shall not be infringed”.

    If the “committee on style” objects to the words “expressly” or “specifically” in the Tenth Amendment do NOT give in to them and remove such words – there should not any concern with “style” anyway.

    “But we have already said that only gold and silver coin can be legal tender in any State – we say that in Article One, Section Ten – we do not need to say the same thing in Article One, Section Eight”.

    Yes you do need to say it in Article One, Section Eight – otherwise SHYSTERS will push paper credit money and rob the people (concentrating wealth in the hands of Credit Bubble bankers and other vermin – Cantillon Effect).

    The question in a Constitutional text should not be “is this elegant?” it should be “is this paranoid enough?”

    To which the answer is – it can never be too “paranoid”, make it as “paranoid” as possible.

    Remember the number of SHYSTERS in the legal profession – make it as hard for them as possible.

    For example, Shyster judges are quite capable of saying (at the State level) that “balance the budget” means “borrow to balance the budget” thus turning the intent of the people who wrote State Constitutions on its head.

    That is a lot harder in other States – where the writers of State Constitutions assumed that future judges might be Shysters and were careful to limit borrowing in very clear language.

  • Paul Marks

    “That ugly fat Jew would reject our beautifully written, elegant sounding documents – and replace them with language fit for a contract between a saloon keeper and his supplier in Hell’s Kitchen”.

    Yes I would.

    And if the document has to be as long as the Constitution of Texas or Alabama – then so-be-it.