Written constitutions better
For forms of government
let fools contest. That which is best administered is best.
~ Alexander Pope
That seems to be the guiding constitutional doctrine in the
few countries without written constitutions, most prominently the United
Kingdom. Those who have viewed the British comedy series, Yes Minister, and Yes Prime Minister, should have gotten some insight into
some of the problems with a government of a few elected officials, dominated by
a professional civil service that never seems to change.
The term “shadow government” was coined in the UK to refer
to the “shadow” components of the civil service appointed by previous
“governments” or ministers thereof, who continue to follow the policies of
those tat appointed them, and often seem more accountable to thr now “shadow”
ministers of the party that appointed them, if different from the party now
nominally in power, who are expected to become their new bosses if that party
comes to power. In the US, which uses the term “administration” for what are
called “governments” in UK parlance, the term “deep state has come to be used
for what is called “shadow government” in the UK. In the US “shadow government”
refers to what is sometimes called the “military-industrial complex” and its
“top secret special access projects” (TSSAP), funded without accountability to Congress or the
President.
Veteran journalist Sarah McClendon once asked then president
Bill Clinton about UFOs and aliens (what I call exos). He declined to answer,
and replied, “Sarah, there is a government within the government, and I don’t
control it.” That meant that the president himself did not have access to what
government was doing about that subject.
Then senator Barry Goldwater once asked then Gen. Curtis
Lemay about the same thing, and was warned “Don’t ever ask me about that
again.” That doesn’t mean Lemay was not “in the loop”. Perhaps only that he was
afraid of those who were.
During the Stalin era and through the time of Gorbachev the
Soviet Union had a fairly good Constitution, by the standards of sound
constitutional design, but the reality was something else. The Communist Party
ruled. It controlled the first, NKVD, which became the KGB, which became the
FSB. It assigned a party agent to each
government official, as the shadow official for that puppet official, who made
all the important decisions. The Red Army was separate, but had its own shadow
officials, and controlled the GRU, or military intelligence organization.
Vladimir Putin is a former FSB official. The Soviet Union fell apart because
the Party fell apart, and the Army fell apart, and refused to fire on civilian
protesters (the only time in history when “flower power” actually worked).
After that, the former FSB and GRU officials saw an opportunity to divide the
spoils of the USSR and become rich oligarchs.
If two such powerful nations are not constrained by their
constitutions, then what use are constitutions? Actually, during much of this
era the two nations were nearly in technical compliance with their own
constitutions. The problem is that the framers of those constitutions did not
anticipate how the spirit of their constitutions might be violated while
complying with the letter of them.
1.
The US Constitution does not provide that debt
be budgeted, only spending. Agencies are limited in how much they can spend but
not in how much debt they can generate. Any agency can create debt which the US
government is obligated to pay, without limit. Now it would be possible in
principle for a TSSAP to operate without generating debt, but it would still
have to report zero, and thus to that extent reveal its existence.
2.
The US Constitution needs to forbid Congress to
make anything legal tender on state territory, or issuing debt instruments in
payment of debts, anywhere. That means not to make debt instruments, like
Federal Reserve notes. It already does, by not authorizing it. Only making
legal tender by states is mentioned. Nor should agencies, like TSSAPs, get the
Treasury to print more Federal Reserve notes for its use to exceed debt budget
restrictions. The Constitution needs to forbid anything other than gold oir
silver coins, or energy certificates, redeemable for some number of joules of
energy, to be legal tender.
3.
However, TSSAPs could also be funded by either
trade, such as importing and selling addictive substances, as documented in the
reports Dark Alliance, by Gary Webb, Day 1, Day 2, Day3, or by accepting donations from private parties or other
nations. Some of what the US government does is to extort such donations.
4.
Constitutionally excluding shadow officials from
replacing “”constitutional” officials is a more difficult problem. Most
constitutional officials are going to want advisers, and it is only a small
step from being an adviser to being a decider. Frequent testimony by an official
to a legislature can help, but it is not obvious how to constitutionalize that.
5.
It needs to be made easier for
outsiders, like grand juries, to investigate and expose official wrongdoing.
Killing an outside investigator or a whistleblower needs to be treated as
treason, with the death penalty.
There are more reforms, but these will do for now.
The UK is often said to have an “unwritten” constitution.
That is not quite true. It is comprised of hundreds of documents, or fragments
of documents, going back almost 1000 years, some written in an English that is
incomprehensible to modern readers.
We have books online that contain most of the important such
documents:
Select Documents of English Constitutional History, George Burton Adams and H. Morse Stephens (1904) — Collection of
excerpts from the main documents that comprise the English
"constitution".
Sources of English Constitutional History: 600-1937, Carl Stephenson & Frederick George Marcham (1937) —
Collection of the documents that define the English "constitution".
The publisher of this second one asked
us to take it down for copyright violation, which we did. A few years later,
with no prompting from us, they asked us to put it back online. We we did,
within a few minutes.
For many years the only place where such documents could be
found was on our website, hosted in the US. Nowhere in the UK. The last time we
checked this was still true. To us this seems embarrassing, and may explain a
great deal why Brits think that have no written constitution. They have what
passes for one, but most of them don’t know where to find it.
There have been attempts to draft a written constitution for
the UK by several political science academics. No lawyers or lawmakers. They
are pathetic, and haven’t gained much support. The problem with them is that
they only attempt to codify most of existing practice. But the UK is a federal
state, combining several countries under a single House of Commons that tries
to function as a constitutional convention for a unitary republic, and it is
not a unitary republic. Any well-written constitution of government needs to
recognize that fact.
They also try to constitutionalize the monarchy, as some
other “constitutional monarchies” have tried to do. That doesn’t work. Monarchy
and constitutional republican government don’t mix. It is the essence of
monarchy to be unbound to any law or constitution.
Now that does not mean the legislature can’t create a
statutory office of monarch, appoint a member of the “royal” family, pay him or
her a salary and expenses, require him or her to perform ceremonial functions,
and tax him or her like any other citizen (not “subject”, loyalty is to the
Constitution, not to the person of a “monarch”). People might think they have a
monarchy, but it would only be for show. In any case, this can be done by
statute and does not belong in a “constitution”. People might want to keep their
monarch, but that is only to satisfy tradition.
Another instructive effort was the attempt by some political
leaders, most prominently Valery Giscard d’Estaing. It was put to a referendum
in the counties of the European Union, and rejected by the voters of two of
them, most notably, France. That killed the project. It is not a constitution.
It is too long, and written like the party platform of a socialist party, full
of handouts to various special interest groups and promises that could not
possibly br kept, but largely devoid of the content that a true constitution
needs to have, which is a tightly written list of powers, duties, and
non-powers. The proposed EU constitution spoke of vague “competencies”, by
which it presumably meant subject-matter jurisdictions, without defining the
powers for such jurisdictions.
The people of France deserve credit for making the wise
decision to reject that atrocity.
We have written what is initially billed as a “model
constitution” for the US, as how it should have been written. We put the
Bill of Rights, which we call Immunitates, in a
separate document, which is made difficult to amend. It is binding on all
levels and every branch of government, in every country.
The final provisions of the Constitution are actually
tailored for the UK, and it is ready of adoption by that country. With minor
modifications, it could adapted to the European Union, and to any federal
republic, like Germany, Switzerland, India, Mexico, Australia, Canada, or
Brazil. With further modification it could be used by Israel. Note that
selection of officials is not done by direct election, but by multistage
process called fetura (Latin for breeding), which alternates random
selection with merit selection. There is little scope for political parties in
such a system, and people do not vote for parties, but for individuals, at the
first level.
The head of state is called a leiter, the head of
government the executor, and the head of defense the protector.
The three roles may be combined in the same individual. Each is required to
consent to legislation from a bicameral diet.
Judges, or richters, are appointed for life to a pool of
richters, from which richters for particular courts and cases may be drawn at
random. Richters are also selected by fetura.
Could the people of the UK be led to support such a
constitution? No way to know, but someone needs to lead such an effort.
So is it better to have a written constitution? The lesson
of history seems to be that it is. But constitutions or laws are not magic
self-enforcing machines. Any of them can be subverted if enough people are
determined to do so. The question is whether other people will have a standard
by which they may oppose such subversion. How can anyone decide whether
government is best administered? Ultimately it is a political decision, but
good people need a standard in writing. Unwritten constitutions, like unwritten
laws or contracts, aren’t worth the paper they are printed on.
