2/5 – What is a Constitution?


What is a Constitution?

The very word “constitute”, as often defined as “to set; to fix; to enact; to establish“, or even “to form or compose; to give a formal existence to; to make a thing what it is” should give a very fitting hint as the nature of a Constitution, in regards to it’s function and relationship to society.  (1828 Noah Webster Dictionary)

“Constitutio” in Latin means “Decree” – and in the Roman System, that is exactly what it was; the constitutiones included, but were not limited to, the imperial decrees and edicts of the Emperors during the later period of Roman history. The decrees/edicts were one of the ways in which statute was created in the Roman system. (Law and Life of Rome by J.A. Crook, pp. 18-29, Introduction to Roman Legal and Constitutional History by William Kunkel, pp. 125-131)

In the British System, the Constitution was unwritten and was based on customs and “tradition”, and was thus a very flexible constitution, defined by parliamentary statute and/or regal precedent. In this system the Constitution was merely the sum of current precedent – based on a sort of system-wide principle of stare decisis (Latin for “to stand by things decided”), that could be molded by even the parliament itself through the mere passage of statute. It was essentially a “collection of historical documents, statutes, decrees, conventions, traditions, and royal prerogatives”. (Black’s Law Dictionary, 9th Ed. – term “unwritten constitution”)

In fact, disputes about the, at least, marginally “vague” British Constitution (a conclusion based on an attempted panoramic view of both sides of the conflict thinking their view as absolutely correct), not only led to the Founders’ determination to have written constitutions, but also largely led to the American War for Independence in the first place. The war was largely based upon a conflict over the shape, nature and limits of the British Constitution. (see The Constitutional Origins of the American Revolution, by Jack P. Greene)

The Constitutional nature of the conflict over American Independence is more clearly seen in a reading of the John Adam’s Rough Draft (or perhaps, copy) of the Declaration of Independence, which addresses the topic more directly than the final and approved draft of the document, as found in the section on grievances. (see here)

Black’s Law Dictionary (9th Ed.) defines Constitution as: “The fundamental and organic law of a nation or state that establishes the institutions and apparatus of government, defines the scope of governmental sovereign powers, and guarantees individual civil rights and civil liberties.”

The term organic law implies the fact that it defines and establishes the government, and is, therefore, superior to any statutes, rulings, or executive actions that occur within the system. Often the term “legislative supremacy” is misplaced in reference to statutes passed by the legislatures of the states or to the Congress – when, in fact, the Constitutions of the several states were seen as supreme legislative acts from the people (upon whose authority and power any government’s actions are based), and in terms of the United States Constitution – the people, indirectly, via the States.

The Noah Webster 1828 Dictionary defines Constitution in part as: “The established form of government in a state, kingdom or country; A system of fundamental rules, principles and ordinances for the government of a state or nation.” In fact, the dictionary entry includes the line: “In free states, the constitution is paramount to the statutes and laws enacted by the legislature, limiting and controlling it’s power; and in the United States, the legislature is created, and its powers designated, by the constitution.”

The Swiss legal theorist, Emer de Vattel, defines Constitution in his 1758 work The Law of Nations (Droit des gens), as: “The fundamental regulation that determines the manner in which the public authority is to be executed..constitution(s) [are] in fact nothing more than the establishment of the order in which a nation proposes to labor in common for obtaining those advantages with a view to which the political society was established.”  Thus, in terms of the United States Constitution, it is the fundamental regulation of the federal government created under and by it’s adoption by the States.

In fact, as a written constitution with a high barrier for amendment (as found in Article 5; which include consent of 3/4 of the state legislatures, or through another constitutional convention), the U.S. Constitution is a rigid constitution, not merely and fully based on custom, and which “cannot be altered by ordinary forms of legislation, only by special amending features“. (Black’s Law Dictionary, 9th Ed. – “rigid constitution”) The written nature of the Constitution was also for more precision in the proper nature of the limits to offices created under the document – since the intent is for it to be known, not just those operating in the various offices themselves, but by the people at large.

Before concluding the article, one point should be stated in relation to all constitutions, including the U.S. Constitution. Ultimately, the quality of the Constitution will be determined by how closely it, and the system it creates, is aligned with the principles of the Declaration – or, more specifically, “the Laws of Nature and of Nature’s God”. Even Constitutions, though termed a fundamental regulation in relation to the system created by and through it, should be seen as inferior to Natural Law – the ultimate Fundamental Regulation (and should be treated as such).

This can be clearly seen even within the U.S. Constitution, where some of the more serious defects are defects as such by simply not being in harmony with the true principles behind the Declaration (such as the 3/5 compromise, the fugitive slave clause, etc.) Another way of putting this may be: Natural Law is what ultimately rules and reigns, and a Constitution is only worthy of the label “fundamental” in so far as it is in harmony with what truly is fundamental to nature and the cosmos. Just as statute is only as valid as far as it is in harmony with the Constitution, the Constitution itself is only as valid as it, and/or the system allegedly operating underneath it, is in harmony with Natural Law.

In conclusion, written constitutions are merely pieces of paper if the people, both within and without the State, do not give it meaning and respect it as the organic law of the system itself. Often, state mechanisms attract people who would rather abuse power than respect and act within the extended/delegated items of authority which are found in the Constitutions themselves – and even far more often, this is merely a symptom of a populace which encourages the same.

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