Constitutional Philosophy Lecture 1 Jon Roland November 10, 2012.

Constitutional Philosophy

Lecture 1Jon Roland

November 10, 2012

Science of law and government?

Plato, Aristotle, Cicero, Machiavelli, Grotius, Hobbes, Locke, Rousseau, Hume, Kant

Ethics for the society Social contract Main problem: sound constitutional design Principles of design not bound to culture? Theories of natural law Utilitarianism Dependence on public education & virtue

Man the lawmaker

Other social species depend on instinct Humans design and revise rules to make the

play of games more satisfying Given a basic game structure, people tend to

independently evolve similar rules, as though fulfilling a natural law

One of those games is law and government Can we develop a computer program to

generate optimal constitutions of government?

Historical background

Jewish Greek Roman Germanic Muslim Chinese European republics Pirates Native American England, colonies and states United States

Jewish Halakha

Torah (Pentateuch, first 5 books of Old Testament) 613 mitzvot (“commandments”), 248 positive & 365

negative “Constitutional” mitzvot embedded in “statutory”

12 tribes, 600 clans (elaf), beth-ab, militia “hundreds”

Shmita (7-year cycle of fallow fields, cancel debts) Overlaid with tradition of exegesis (or eisegesis) Modern Israel uses British unwritten model

Greek syntagma

Athens (Solon) Commentary by Aristotle Official selection by sortition (kleros, lottery)

Sparta (Lycurgus) Forbidden to be written Adopted by trick

Roman constituo

Meant entrenched, more than supreme metalaw

Republic 509 BC 2 consuls (executives), 1-year terms Senate Assembly Tribunes, censors, questors, praetors Dictators (6 month terms, until Sulla, Julius

Caesar 44 BC)

Germanic constituo

Organized into tribes (pagi, in Latin) Chief elected by wittengemote, assembly of

warriors, from “royal clan” Served for life but could be removed by council Not hereditary Proposals could be rejected by assembly Judges elected by assembly Records of judicial decisions became common

law

Muslim dustur

Dustur al Madinah (constitution of Medina) 622AD Was treaty among ethnic, religious groups Balanced rights, official duties among Muslims,

Jews, Christians, pagans Attributed to Mohammed Not followed by successors, who set up khalifa

(caliphates)

Chinese

Tao Te Ching (Lao-tzu). Precepts that guided government after made state religion 440 BC.

Analects (Lun-yu, Confucius). Officially adopted as state social philosophy 202 BC, also guided lawmaking and governance.

No formal constitution but moral guidance from entrenched philosophies.

European republics

Venice Sortition to select doge 1268-1797

Genoa, directorial republic under French rule Corsica, Constitution 1755-1769, Diet

(parliament), female suffrage Swiss Confederacy, 1291-1798 Dutch Republic, 1581-1795

Pirates

At war with the world But law among themselves Provided for electing captain, quartermaster Divided spoils Rudimentary judicial process Sometimes became governments on land

Native American

Constitution of the Iroquois Confederacy Used as model for federal system Enabled mutual defense, adjudication of

disputes, division of territory

England, colonies and states

Witten[ge]mote Magna Carta 1215 Provisions of Oxford 1258; First English

parliament 1265 (De Montfort) Levellers: Agreement of the People 1647 English Bill of Rights 1689 Colonial charters 1639 Locke constitution for Carolinas 1689 First state constitutions 1776

United States

First Continental Congress 1774-75 Articles of Association 1774 Second Continental Congress 1775-81 Declaration of Independence 1776 Articles of Confederation 1781 Constitutional Convention 1787 Ratification debates 1787-88 Adoption of Constitution June 21, 1788 Bill of Rights December 15, 1791 Election of 1800, Jeffersonians ascendant

Rule of Law

Real consent to due process Laws binding all people including officials Limited discretion of officials Public notice Clarity and simplicity No contradictions Not retroactive Not beyond the power of people Stable and predictable

Design Goals

Protect rights with accessible remedies Enable joint action, especially defense Divide power among branches, levels Representation & deliberation Pay or avoid debts. No fiat currency. Adjudicate disputes, avoid conflict, separation Allow peaceful expansion and secession Supersedes derivative statutes, amendable Endure indefinitely, for benefit of posterity

Design Principles

1. Put it in writing, as brief and simple as possible, but no briefer or simpler. Omit anything that is not enforceable as law.

2. Specify who, what, how, when, where, why, whither, to or for whom, etc.

3. Enter provisions that operate together to solve a problem, providing the necessary structure, procedures, rights, powers, and duties, covering all conceivable contingencies, that require no resources that are not always available or obtainable.

4. Anticipate all the ways any language might be twisted by clever lawyers trying to find ways to evade the meaning and intent of each provision.

5. Don't try to micromanage complex social systems. Make sure everything orchestrates into a harmonious system, but be aware of the ways every enactment is an intervention in a chaotic system highly sensitive to purturbations, and that can only work if it sets up self-organized islands of stability in a sea of chaos, that are largely undesignable except by trial and error.

6. Allow some discretion but not too much, so actions predictable.

Social Contract

Can be explicit contract among adults But usually induction by parents (socialization) Establishes transitive relation among members Consent by entering or remaining on territory To protect rights, but not scarce resources Defines duty of militia to mutually defend With dominion over territory becomes state Adoption of constitution of government by

deliberative, representative convention

Origins of Rights 1

Nature Life Limb (right not be be physically injured or

tortured, or have one's health or comfort threatened)

Liberty Acquisition, retention, and use of means to

secure above rights (part of property right) Right not to be required to do the impossible or

scientifically irrational

Origins of Rights 2

Society Property equity (right to reclaim property to which one has

title, or the value thereof, beyond mere possession)

Presumption of nonauthority

Due process (includes due notice and fair hearing, both substantive and procedural, and all rights associated with juries)

Common law trust rights

Public decision by convention called by public notice and conducted by established rules of procedure

Origins of Rights 3

State Denizenship (right to remain on or return to

one's domicile) Fair representation of different parts of the

territory

Origins of Rights 4

Government Citizenship (privilege to vote and hold office,

access to voting and fair counts) Means to remove misbehaving officials or

suspend their actions, such as quo warranto and other prerogative writs

Getting reports on the activities and expenditures of officials

Compensation for taking of property (part of property right)

Nested constitutions

Public Action

Delegatable powers

Public duties

Defend public as militia from any threat Prepare oneself and others to defend Serve on juries Give testimony Pay lawful taxes Avoid causing injury through act or neglect Vote for what is best for the country Supervise officials and other servants Inform oneself on public issues and deliberate

Militia

Organize, train, and equip oneself for Defense against invasion, crime, disorder, or

disaster Investigate wrongdoing Report on one's investigations Make arrests, detain until culprit can be

arraigned Serve as private prosecutor Help enforce lawful orders of judges

Deliberative assemblies

Requirements: Public notice specifying time, place, and subject Broad representation Established rules of procedure

Includes: Constitutional conventions Town meetings Elections and nominating conventions Judicial courts, trial and grand juries Militia

End of Lecture 1