The ‘ideal’ constitution

What is the ideal constitution? No actually, what is the least horrible constitution? The ‘best’ political system is an entirely different subject. Assuming the political system is a constitutional state, what should the constitution be?

In case people question why this article is listed amongst the philosophical articles, even though it analyses and compares an abstract political system, I would remind them that this constituted philosophy for Plato and Aristotle, so I am going to say that it counts as such.

The general purpose of constitutions

Constitutions, specifically written constitutions have become common since the enlightenment and can be associated with the more conservative liberal trends. They form limitations on the government and as such limited both the absolute monarchy defended by reactionaries and the absolute will of the majority propagated by Rousseau’s disciples.

Technically an absolute monarchy or any kind of dictatorship can still implement a constitution as a set of official principles they proclaim as the guiding ideals of the state. They can always amend the constitution but it does make it clear to the citizens what the fundamental laws are.

But constitutions have often served to protect the rights of citizens again the state. An absolute ruler can easily ignore his own constitution however and as a result constitutionalism offers few concrete guarantees under an absolute state.

Therefore, constitutionalism generally assumes a separation of powers, at least bipartite but ordinarily Montesquieu’s trias politica. The constitution regulates the separation of powers and the separation of powers ensures the constitution cannot be ignored by the government.

Therefore, the ideal constitution provides for the ideal balance of powers that sustains its principles.

Constitutional continuity

The notion of an evolving constitution is extremely problematic. Since constitutions are supposed to provide boundaries for the state, an evolving constitution means evolving boundaries. This can favour the governing power who generally have at least some influence in the appointment of judges.

A living constitution is an unpredictable, unreliable and unstable one. The limits on the state’s power can be reinterpreted. The rights of citizens can be interpreted away.

The Right in the USA attacked the Supreme Court for Roe which they viewed as an attack on fetal rights. Now that precedent is no longer guaranteed and attacks on the judiciary for supposedly being biased or engaged in activism have shifted from the left to the right.

Since rights conflict, the balance between them must be stable.

The classical separation of powers

The trias politica seems so effective largely because it works like the triumvirate’s in ancient Rome. Caesar and Pompey stabilised by Crassus (till the Parthians killed him. Octavian and Mark Antony together with Lepidus. A strong enough but slightly weaker third guy/branch prevents two factions from fighting each other.

Different interests prevent the state from being united against the citizens. This only works if the branches remain properly separate and if it prevents excessive or reckless government, instead of making it chaotic political 3D chess. The branches must be able to work together without becoming too entangled.

Every constitution needs to be based on the assumption that people will try to bend, misinterpret stretch or undermine it. Therefore its meaning must be clear.

The most important issues to clarify are:

  1. The finer details of the separation of powers.
  2. Defined accountability.
  3. The limits on the intrusive exercise of power.
  4. Anti-corruption mechanisms.
  5. Clearly defined rights of citizens
  6. Its proper interpretation and application.

Judicial Branch requirements

Regarding the judicial branch the constitution should:

Provide the exact retirement age of judges (70 or 75 I prefer 75) instead of literally for life or till a retirement age determined by regular law; to prevent Ginsburg scenario’s with uncertain or unexpected deaths and certain judges serving far longer than others; also to prevent attacks on the judiciary by change of a law regarding the retirement age or term limits.

Provide the exact numbers of judges of the supreme and/or constitutional court(s) so these can never be packed.

Provide the grounds for appeal, including possible second appeals so that these also cannot be limited later.

Brazil has perfectly implemented the first two principles with a constitutionally regulated Supreme Federal Court with 11 members serving till 75. The Wikipedia page describes in which year they’ll retire.

Another provision to be put in the constitution is the judicial or legal experience required for someone to be eligible to be appointed as a judge. This would prevent American travesties where politicians get appointed to serve as judges (think Earl Warren). Requiring minimum experience as an assistant judge or prosecutor would seem like a proper addition.

A balance in judicial appointments

The practice of electing judges popular in some states in the US is insane.

The judicial branch is the one branch of government that is not supposed to be political and as such it cannot be elected or democratic in any majoritarian sense, since we don’t want mob justice. Courts are supposed to uphold the law, the constitution and justice also against the majority.

Judges serve for life or at least for many years till a fixed retirement age unlike members of parliament or government.

That Supreme Court judges in Japan can be rejected through referendum after their appointment (even though this has never happened) undermines its ability to be an independent institution that protects individuals even against the majority.

Since the judicial branch is part of a tripartite separation of powers, allowing the government to appoint judges by itself (as happens in Sweden and Australia) is highly problematic. Allowing parliament to nominate or appoint judges by itself is wrong for the same reason.

The exact opposite approach is to have judges be selected by the already existing judges. A system of co-option. While that ensured complete judicial independence and a total absence of political influence, it is yet another extreme. Zero political influence means that there is no accountability for the judiciary. It can become a state within the state, rule laws unconstitutional, even while becoming a self-serving elite.

Furthermore, co-option raises the question what the starting point is. Who appointed the judges who get to start the first round of co-option? If they were appointed by a certain government or a certain parliamentary majority, that majority risks getting permanently enshrined. In the case of Poland, the co-option system implemented when Poland became a liberal democracy in the 1990s resulted in a co-option process starting with judges from the communist era.

This last problem would be removed if co-option would only be implemented after professional judges had been politically appointed through an extremely broad consensus. By a 3/4, 4/5 or even 5/6 majority in both houses of parliament (and possibly involvement of the executive as well) with judges being chosen only after detailed examination of their past conduct, impartiality and integrity.

That way the co-option would start based on a broad consensus. Even then, this doesn’t prevent this system from slowly becoming self-serving or corrupt and falling into an irreversible decline.

Giving a constitutional role to both the executive and legislative branches of power in the nomination of the third branch (with the previously mentioned constitutional requirements of judicial experience) seems like the right solution. It preserves the balance between those powers, prevents judges from running elections, yet keeps some (indirect) democratic influence over the courts.

In the case of a semi-presidential system, both the president, the government and parliament can have a role in (certain) judicial appointments, as is the case for the Constitutional Court of Austria.

If a country has a bicameral parliament both houses can be given a role, although some states prefer to only give the senate a role (Brazil, Mexico, the USA) likely out of a distrust for too much majoritarian democratic influence. But at least both the president and the senate are still involved.

But again, since the courts needs to protect individual and minority rights against the majority, appointments shouldn’t be made by simple political majorities. This is why it’s a problem that the American constitution only requires a simple majority in the senate for the confirmation of federal judges and recent partisan conflicts have only confirmed that.

A constitutional requirement for a 60 % or even a 2/3 majority in either the senate or both houses if both are involved, would be an improvement. The 60 % requirement long kept some balance in Spain, although judges are clearly divided in two categories.

Giving the judiciary a part in the election process along with the two other branches, without giving them a monopoly or even an absolute veto over the process, might be a way to balance the process further.

Give the judicial branch a third of the power over nominations. Across the aisle cooperation between and within the two other branches would be necessary to nominate judges out of sync with the existing system.

Create a judiciary committee that contains membership from all 3 branches of government.

If a country uses jury trials or lay judges, the appointment process and the influence and discretion of the judge, should be properly defined as well.

Judicial accountability

The fear of judges going rogue has resulted in some countries including the impeachment of judges on their constitution. That obviously threatens to undermine the independence of the judiciary. While a 2/3 requirement decreases that threat significantly, this can still be insufficient for semi-democratic, hybrid and transitioning states to become stable.

Internal disciplinary proceedings regulated by the constitution would seem like the best option. The Supreme Court would discipline the lower court judges if they misbehave, as well as its own members via supermajority.

A constitutional retirement age and the absence of co-option should both lessen the need for the possibility of impeachment anyways.

Bureaucracy

Bureaucrats shouldn’t end up forming an unaccountable state within state. The authorities that they answer to, need to be clearly defined in the constitution. In a democratic state, unelected bureaucrats cannot be a political force.

A strong executive providing stable leadership is preferable. The executive branch should execute. While that might seem like it could lead to the bureaucracy becoming politicised, we should be honest and acknowledge that this is generally the case anyways, only with the false appearance anyways. Fears for an overly centralised executive would appear unfounded since the executive is supposed to be restrained by the law and the constitution. Through the courts. Not through unaccountable bureaucrats.

Ministers/secretaries should be able to fire government officials. A minister definitely shouldn’t have to deal with officials loyal to the previous government.

If bureaucrats are influenced by their own political convictions or indirectly by the dominant parties, the false appearance of neutrality is more dangerous than the system being openly and blatantly politicised.

Deep state

Accountability is especially important for something like the secret service. The deep state cannot be a state within the state in any self-respecting democracy. The President should have sufficient oversight in any republic but the secret service shouldn’t become something he can use to terrorise the opposition.

A semi-presidential system can provide some balance. In Croatia the prime minister is involved and he or she is accountable to parliament.

In a purely presidential system, nominations for leaderships positions in the secret service should have to be approved by the senate. To avoid partisan antics, especially in a two-party system, the confirmation by the senate should require support from at least 60 % of the senators.

Such a broad requirements would also be good for anti-corruption bureaus or police integrity officers.

In Conclusion

While a constitution can never be perfect in as much as people always remain flawed and we’ll never be able to set up an utopian system that can permanently contain all our evil tendencies, a good state always needs a strong foundation, and that is one which cannot be easily undermined and weather various storms.

Johan van Schaik

Leave a Comment

Your email address will not be published. Required fields are marked *