I have read at least two draft revisions of our Constitution. I am now more confused because I had earlier thought that the reason we were rewriting our fundamental law is because we wanted to reconfigure ourselves into a Federal Republic. But the drafts aim at restructuring the legislature and the executive into a parliamentary government, and also at a possible extension of the terms of incumbents. This is not helpful to the national debate: It creates too many fronts to allow for cohesive and consistent discourse. It also invites a wholesale rejection of what might otherwise be a valuable proposal because of one or the other objectionable but really unnecessary adjunct! It is like dealing with a graduate school thesis that aims at two foci—which is no way of writing a thesis at all!
France is said to be one of the better examples of “constitutionalism”—the theory that you structure the government and in fact the body-politic by rewriting a constitution. Of course it is an idealist theory, but there is nothing inherently wrong with that. The realities of the political world always exert drag, but you need high ideals—as those the French Revolution championed though at a tremendous (and, in several respects, deplorable) cost—as those that should go into the writing of the charter of a State. That should be particularly true at a time when the whole notion of “sovereignty” seems to be slipping into obsolescence, surfacing in rhetoric when such disputes as territorial claims and maritime boundaries flare up. Soon, wrote Lyotard not too long ago on French higher education, the State and its decrees and regulations will be “static” in relation to the borderless transactions, exchanges and movements that have created their own modes of communication and that are unmistakably claiming ever widening swathes of public life!
But constitutionalism rests on one very important supposition: that there is an antecedent commitment to abide by the Constitution. And while this used to be a “matter of course” whenever we wrote constitutions in the past, it must be asked today, with more acuteness, whether we are still dealing with a factual premise, or with an unverified but nonetheless operant assumption. Of course, our teachers will still repeat the well-worn refrain: “The Constitution is the fundamental law of the land,” but when there is so much in public life that makes the constitution seem to be some malleable document that can be twisted and warped according to the tastes, the temper, and the oddities of those who are sworn to defend it, then one wonders whether it is the nation that is regulated by the Constitution, or whether it is mood and fancy, or even impertinence and stupidity that make our reading of the country’s charter take grotesque forms.
Or is it time to be disenchanted with Constitutions? That might very well be so, but what are our alternatives? “Ours is a government of laws and not of men”—that does not seem to be very trusting of men and women, although it is they who write the laws, but it is a sound and necessary acknowledgement of the fickleness that afflicts us all and the decisions we make. And so we create the artificiality called lex which institutionalizes the jus—better, the jura—to which we can unchangingly and with certainty lay claim: such as the right not to be deprived of life and property without due process of law.
Before being taken up in what is doubtlessly the challenging task of deciding what the provisions of the new constitution shall be, it will be well to ask ourselves whether there remains a popular, unwritten, “sovereign” resolve to abide by the Constitution because, truth to tell, given all that we have seen of late, this can no longer be presupposed!
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