Primary purpose of a constitution

NOTE FROM THE MODERATORS: This idea has been merged with the idea 'Power to the people'. Please move all discussion there:

A lot of energy goes into debates over exactly what belongs in a formal constitution and I think there's a danger that areas of consensus will get lost in the disagreements. Rather than make the same points over and over again in comments to disparate ideas, I thought I'd set down, in one place, the principles I've been guided by and the way I'm hoping the Convention will approach the task of reaching agreement.

The most important debate is whether a constitution should restrict itself to the core question of 'who rules?' or should aim for something broader. I think, if we separate this into two or three distinct questions, we'll find there is a consensus that risks being overlooked.

Does anyone contributing to this project believe that the constitution should not define “the location of ultimate decision-making authority – the right to the 'final word' – in a legal system”? *

My guess is that all of us agree that this is something which the constitution must do. On that basis, I propose that the Convention should reach agreement on that issue before trying to decide the broader question, on which there is not yet a consensus, of what values and rights should be given special status.

I'll ask that anyone voting on this does so on the basis of that proposal rather than the reflections below.

One thing I am constantly aware of is the fact that the problems our society faces today are the product of the existing system. If we change that system many of those problems should automatically disappear (though we may, of course, introduce new ones). Until we have a clear idea of what system we want to put in place to answer the core question of 'who rules?', we can't even attempt a realistic analysis of what problems the new society will face.

A lot of effort can go into thinking up solutions to problems which actually stem from the fact that the existing system gives us Representatives who are not properly representative of us. If we come up with a satisfactory solution to the core issue then problems of that kind will fade into history. The danger is that if we entrench restrictions in the new constitution to prevent such problems we will be hamstringing the newly-constituted sovereign body.

Looking beyond that primary purpose, there's going to be much less consensus. I break the broader question into three:

  • Are there any other points on which there is a consensus about what must be included?
  • How far should the constitution define operational considerations?
  • How far should it enshrine specific rights and values?

My view on the operational considerations is that, for the most part, if we are satisfied that the primary purpose of defining who rules has been fulfilled in a way which makes the public genuinely sovereign, we should leave the rest as flexible as possible.

The only operational considerations I think should definitely be included, therefore, are ones which impact on the solution to the primary question. So, in my view, tax has to be seen as a constitutional issue because, in the reforms I'm proposing – – it defines much of the relationship between central and local government. (If a broader view is taken, I believe the monetary system should also be considered a constitutional issue – – because it is fundamental to the operation of a healthy society.)

As far as Rights and Values go, I believe the constitution should be as general as possible and should limit itself to restricting the state's power to interfere with the individual's natural rights (i.e. things people are intrinsically capable of) and should positively avoid establishing artificial rights (i.e. things which create an obligation on others). That's a question which undoubtedly warrants a thread of its own though, so I won't say any more about it here.

* Quote from Professor Jeffrey Goldsworthy's book The Sovereignty of Parliament

edited on Apr 11, 2015 by Salka Margrét Sigurðardóttir

Salka Margrét Sigurðardóttir Apr 11, 2015

Malcomn, what do you think about merging your idea with the idea called 'power to the people' which Alastair posted?

Here is his idea:

Malcolm Ramsay Apr 11, 2015

I'm happy with that, Salka, though Alastair and I don't see eye to eye on how to phrase it! You can close this one, if you like, and I'll post a comment on his thread.

Salka Margrét Sigurðardóttir Apr 11, 2015

Wonderful. Thank you for being so cooperative! 

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