Constitutions, Part 1: Abstract Provisions
Finally, a chance to rant about judicial review
In the second post of my previous series on tyranny of the majority, I defined what a constitution even is. I encourage you to read that series, or at least that post, for more explanation. But to catch you up: a constitution is just a set of laws with stricter requirements to change and which override normal laws. These stricter requirement are usually supermajority requirements although there are some other ones you can implement as well; in particular, I think enduring majority requirement (holding majority approval for a long time) should become a standard alternative for if supermajority is too high a bar.
Here, I want to talk about what types of provisions you should be putting in your constitution. If there is a thesis to this series of posts, it’s that you can’t constitution your way out of your country’s problems. There are large downsides to both more abstract and more concrete constitutional provisions, even if it’s sometimes worth writing either type anyway. In this first part, I’ll go over the downsides and occasional necessity of more abstract provisions. The second part will talk about more concrete provisions, and the third will talk about what I would implement if I were to write a constitution.
Beware Abstract Provisions
Judicial or constitutional review in America, where the Supreme Court strikes down laws based on its interpretation of the constitution, is insane. When the most important political decisions rest on how nine indirectly elected people interpret phrases like “equal protection of the laws” and “due process of the law”, something has gone horribly wrong. Some of the issue is with constitutional procedure on e.g. how judges are chosen (more on that later), but there is a deeper issue with overly abstract constitutional provisions.
Enforcing constitutional provisions requires defining an entity to decide which laws violate it, and that entity is going to have to make a lot of arbitrary decisions. Of course arbitrary decisions are ultimately going to be part of the judicial process, particularly under the common law system anglophone countries use. But ordinarily, if the court interprets legislation in a way that the legislature doesn’t like, the legislature can go in and change the law. This is usually not possible for constitutional provisions by their nature of having more stringent requirements for change. If a constitutional provision is too vague abstract, justices can use it to justify whatever they want. And since these are human beings who enjoy wielding power, they do.
So what you get is an indirectly elected supposedly-apolitical body making a ton of important political decisions using esoteric philosophical frameworks with nobody who can override them. Certain voting rights act provisions are unconstitutional because racism doesn’t exist anymore and they violate the definitely-not-made-up principle called “equal sovereignty of the states” apparently implied by the Constitution. Contraceptives and early-stage abortion must be legal because of the again definitely-real “right to privacy” apparently implied by the Constitution. These are some of the most egregious instances of judicial review, but the existence of so many court cases decided along partisan lines should be a good indication that they’re just making political decisions.
(A bit of an aside - one reason the Supreme Court ends up making so many of these decisions is that you have these national partisan issues like abortion or gun control on which the federal government has little legislation. Usually this is either because the filibuster supermajority requirement makes partisan legislation impossible or because it is a power constitutionally reserved for the states. The concept of federalism - that states should have sole or dominant authority over certain aspects of law - is one that I hope to explore in a future piece, but this is definitely a strike against it. It’s also yet another strike against supermajority requirements like the filibuster for most legislation, in addition to everything I wrote in the last piece.)
Both in theory and in practice, I think this is worse than just letting legislators do their job. If a principle is really so obvious and intrinsic that you might think to write it in a constitution, it will exist in practice as a powerful norm anyway. In the US, there are rights not written in the constitution that nonetheless exist as norms. Bodily autonomy is not written into the Constitution and is nonetheless something Americans take very seriously, as displayed by the limited success of COVID vaccine mandates and the huge backlash to abortion bans. In other countries like the UK, they don’t even have a constitution1, and the more important rights are still generally abided by. Habeas corpus hasn’t been suspended since 1801 (before the UK was democratic), right to legal counsel has been provided since 1836, and there was an effective backlash when the UK tried to outlaw certain types of online speech.
Democracy-relevance
The one place where I think you definitely need constitutional provisions is when dealing with what I will call democracy-relevant law. These are laws that have substantial chance of affecting who holds political power in the country. Examples of democracy-relevant legislation include expansions of voting rights, addition of supermajority requirements to some part of the political process, and creation of limits on politically-relevant speech (eg banning the use of Nazi propaganda in campaigning, although the Germany law I’m referencing has parts I wouldn’t consider politically-relevant). Examples of things that I would not call democracy-relevant include right to fair trial (except in cases where political opponents are targeted), non-politically-relevant free speech (eg racist tirades at a black neighbor), and right to bear arms (you are not going to start a revolution, be honest, and anyway this is not a legitimate exercise of political power). There are also types of legislation that toe the line, which would hopefully have explicit guidance in the constitution but if not the court would have to decide how to deal with. Examples of these include immigration law (naturalized immigrants do vote) and public school curriculum (plausible effect on kids’ political views although people vastly exaggerate that imo).
Any other law that’s unpopular enough will be repealed, either by people voting out those who passed it or through public pressure forcing the initial designers to renege. There might be a lot of pain before it’s repealed, but it will be temporary. With democracy-relevant legislation, however, you just might not be able to do that. In the aftermath of the gerrymandering-fest that was the 2010 US redistricting for instance, it suddenly became extremely difficult for voters in Wisconsin and North Carolina (among other states) to vote out their majority-Republican state legislatures. Political actors are also a lot more likely to adopt laws that give them more power. The standard political process just cannot handle this type of legislation.
You also do have to make many of the provisions regarding democracy-relevance abstract. Wannabe dictators and other tyrants are always looking for ways to bend the rules without technically violating them, a practice that has become more prevalent in recent times, and you need a body able to see through what they’re doing and stop them. Many powers in the US constitution are given to “the state legislature”, and there has been a concerted effort in the US Republican party to allow state legislatures to basically ignore their voters and every other check (see 2000 and 2022), which has been blocked by the Supreme Court. When Boris Johnson wasn’t getting his way with Parliament in regards to Brexit, he tried to prorogue them, not letting them have input on the process. See this page on constitutional coups for more examples from the developing world.
In addition to my belief that we just have to pay the price of abstraction and judicial review in this case, I also think we have reason to believe that these norms work better for democracy-relevance than for other classifications of law. Democratic norms tend to be stronger among the types of establishment figures that would be responsible for determining democracy-relevance than they are among politicians and among the public. Granted, this observation is not a law of nature. It probably wasn’t true during the US Progressive era, although then progressives won big enough majorities that they were able to pass constitutional amendments. Developing countries tend to have weaker democratic norms on all sides - established elites hate democracy because it limits corruption, populist politicians hate democracy for the same reason and because it prevents them from being dictator, and voters care more about policy than about democracy. How political a court is also depends a lot on mechanism and norms on how they’re chosen (more on that later). Still, established elites’ greater respect for democratic norms seems consistent enough to be worth taking seriously.
In the next post in this series, I’ll talk about the downsides of more concrete provisions.
I think these days there is some form of judicial review that confuses me, but in general it’s said that the UK has an “unwritten constitution”, AKA no constitution