What are constitutions, and what are they good for?
Updated: Sep 11
In these blogposts, I discuss questions and issues that students have raised in my classrooms during the previous semester. They are good springboards to classroom discussions/debates about the Revolution, American history, and history itself.
With Constitution Day (Sept. 17) on the horizon, it’s worthwhile to consider what constitutions are and what purpose they serve.
Almost all democracies now have written constitutions; Britain, New Zealand, and Israel are the notable exceptions. But many non-democratic and anti-democratic countries also have constitutions: Afghanistan, China, Cuba, Egypt, Jordan, Haiti, North Korea, Russia, Rwanda, Turkey, Yemen, Zimbabwe, and many others. So if constitutions don’t guarantee democracy, what do they do?
First, when we say that the U.S. has a constitution and Israel and New Zealand don’t have a constitution, what we mean is a WRITTEN constitution. This is because literally every country has a constitution. Every organization has a constitution – your family, your church, your business… and your country. Some organizations write their constitution on a piece of paper and others do not.
A constitution is a general, broadly agreed-upon understanding of how an organization is constituted; how it is constructed. It’s a set of rules that clarify who does what in this organization – who holds power, and how this power is wielded. For example, can the CEO make a purchasing decision on his own, or does he need the treasurer’s authorization? Can the minister decide who to hire and fire in his church, or is it a joint decision with others in the church? Can the breadwinner in a family decide how to spend the family’s money, or does the other spouse control the family budget? Can the older brother discipline his younger siblings? Is force an acceptable method of disciplining children in this family, and if so, what level of force? Can the president/prime-minister decide how to spend the nation's funds?
Every organization – every family, every church, every company, and every country – has answers to these questions and many others. These answers are the organization's constitution. The U.S. Constitution, for example, clarifies that Congress does a, b, and c, the president does d, e, and f, and the court does x, y, and z. So every organization has a constitution, but some of these organizations (some businesses, some families, and some countries) actually bother to write these constitutions down on paper and post them for all to see.
The obvious question, then, is why write it down? What do written constitution do? What are they good for? If written constitutions are features of democracies and non-democracies alike, then it seems that they’re not as useful as we imagine. Ruth Bader Ginsburg – the famous Supreme Court justice – pointed out (in a 2012 interview to Al Hayat TV) that what is written on a piece of paper is not what shapes the law, or the political life, or daily life, in a given society. What gives actual force and meaning to the words written on that piece of paper is the sentiments of the people.
This means that what makes England, Israel, New Zealand, Switzerland, and the United States democracies is not whether they have a written constitution, but whether their people have embraced democratic values and demand democracy in their civic lives and in their national politics. By the same token, what makes China, Turkey, Russia, and Saudi Arabia what they are is the legal, political, and moral beliefs of their citizens.
So if what’s written on the pages of a written constitution doesn’t determine the laws and political character of a society, why bother writing a constitution?! It might help to consider this question first on a small scale – what would make a family or a small business transform its unwritten constitution into a written constitution? What would make a family or business write out its constitution and post it on the fridge or the bulletin board?
What usually prompts such a formality is a challenge to the way things have been till now. If one spouse wants to change the existing power dynamic in the household, or if the children start arguing about their roles, duties, and rights in the family, that might prompt the parents to write down the rules that govern this family. That is, once there’s a disagreement about who wields power and how, then there is reason to ascertain and agree on a set of house rules, write them down, and post them somewhere. This way, the family hopes to avoid future dissention – instead of arguing and renegotiating and redeciding every time anew, all the members of the household can point one another to the rulebook (the written document) to remind them of the rules and thus avoid or settle arguments.
If we expand our scope once again to countries with written constitutions, it is evident that written constitutions have 4 functions:
They give clear, written, legalistic guidance to courts on how to settle arguments; that is, how to rule in cases that come before them. Courts play an important role in democracies and non-democracies alike, and it is useful to the court to have a central legal document off of which to work.
Second, written constitutions are a way to educate the citizens about how their country operates, what they owe the government, what the government owes them, etc. The written constitution is a civics lesson to help socialize citizens in their country.
Third, written constitutions are a diplomatic message to the world about what kind of country this is.
Last, written constitutions provide stability in a society by curbing, or tempering, the people’s impulse for change. Written constitutions are anti-democratic in this sense, because they compel people in the present to live by rules established by people in the past; without a written constitution, citizens could simply change the power arrangements in the country according to the will of the people at that time.
In this respect, it is no coincidence that written constitutions are a feature of the industrial age – the age of cities, of masses, mass communication, and mass politics; an age of great demographic, social, cultural, and political instability, in which the public has gained great political power over its government and institutions, even in non-democracies. In democracies and non-democracies alike, therefore, written constitutions reflect a desire to promote stability in an unstable society. Written constitutions set in stone the basic rules of the society in order to limit the people’s ability to change the system back and forth and back again through regular politics.
A written constitution is evidence that an organization – a family, a company, or a country – had experienced great instability, uncertainty, and tension that threatened that organization with turmoil or even disintegration. A written constitution was a method to restore stability by setting permanent rules, and to communicate to citizens (as a civics lesson) not only that these are the rules that govern our society, but that these are good rules that are worthy of the citizens' support and acquiescence.
This is certainly the case with the U.S. Constitution, which was the product of tremendous turmoil, during the Revolutionary Era. When one examines other countries with written constitutions, one likewise finds instability, tension, and fear of disintegration as the impetus for their efforts to write a constitution. In South Africa, written constitutions were enacted in the aftermath of the Boer War, then again with decolonization, again when the apartheid regime started to be challenged internally and around the globe, and once again after the collapse of apartheid. Germany enacted written constitutions in the aftermath of the wars of German unification, again following its military and political collapse in WWI, and again following its crippling defeat in WWII. In Israel there was no clamor for a written constitution in its early years, when Israelis’ primary concerns involved being annihilated by Arab armies. But since the 1980s and 90s, when Israel’s existence was no longer in question, Israelis became increasingly alarmed by intensifying internal dissention, giving rise to fears of disintegration, turmoil, and even civil war. It is exactly during this era that calls for a written constitution intensified, and to a degree even realized in the 1990s and 2000s, not through the legislature, but through the jurisprudence of the Israeli Supreme Court.