By Ethan Hollander, Wabash College
Constitutions embody the highest laws in the land. These are laws that other laws—like statutes and regulations—have to comply with. But who decides whether a government’s law is consistent with the constitution? And who resolves disputes between the institutions of government itself? In most countries, this job falls to the courts.
Courts and Constitutions
The power of courts and constitutions is not without controversy. In most countries, judges are unelected. Many of them serve life terms, or at least very long terms. This reduces the accountability of the judicial branch, and insulates the chief interpreters of law from the will of the people. And this means that courts are not only powerful, but in a sense, they’re not really very democratic either!
And if courts are only ambiguously democratic, constitutions compound the problem. Many of the most stable constitutions in the world are also the oldest. They were written decades ago or even centuries ago, by people who don’t reflect the country’s current population.
Constitutions are also notoriously stubborn. For the most part, they can’t be easily changed or amended. This can make the principles they embody seem as old and outdated as the yellow parchment they’re written on.
This article comes directly from content in the video series Democracy and Its Alternatives. Watch it now, on Wondrium.
Power of Legal Interpretation
Let’s start with a story that demonstrates the power of legal interpretation, and the paradoxical nature of holding elected officials accountable to the very laws they’re elected to uphold.
Shortly after the US Civil War, President Andrew Johnson found himself in a pickle. In an effort to heal the nation’s wounds (and perhaps to placate Southern Democrats), Johnson wanted the federal government to adopt a gentler, more conciliatory approach toward the Southern states that the Union had just defeated.
This put Johnson at odds with the Republican majority in Congress, which argued for a hard-line approach, especially when it came to enforcing the rights of African Americans.
The stage was set for a showdown in 1868, when Republicans in the House of Representatives voted to impeach Johnson—the first impeachment in the nation’s history.
At the trial that followed, the question before the Senate was whether Johnson had committed, in the words of the Constitution, “high crimes and misdemeanors”.
Unfortunately, that phrase was no clearer then than it is now. In fact, it was so ambiguous that House prosecutors found themselves referring back to cases in medieval England for legal precedent! He was later found not guilty by a margin of one vote!
Protector or Obstacle
A basic question is: Why should it even matter what the Constitution says?
If the legislature wants to remove a president, why shouldn’t they be able to? They write the law. And they’re the most direct representatives of the people. If we really live in a nation of laws, shouldn’t the authors of those laws be allowed to decide the president’s fate?
Stated differently, why should we give more deference to an archaic document written by people who are long dead, rather than to our very own elected representatives in the here and now?
We like to think of a constitution as something that protects democracy. And yet, if one thinks about it this way, constitutions are really obstacles to democracy. A constitution might be the one thing preventing today’s majority from getting its way.
That doesn’t sound very democratic!
Role of Constitution
So, why would we have constitutions? And why should we take what they say so seriously?
As their name suggests, constitutions constitute a country’s government: They lay out how government is structured, the procedures it has to follow, and the laws by which other laws get made.
We usually say that constitutions embody higher law than ordinary statutes. (A statute is a law that’s passed by a legislature.) And this is because constitutions define the underlying rules of the game, and they place limits on what kinds of law a legislature can pass in the first place.
According to one lawyer, a statute is like a baker’s recipe: It’s a set of rules that you’re supposed to follow; but constitutional law is like the laws of physics: These are the rules that even the recipe writer has to follow. Because if a recipe isn’t consistent with the laws of physics, it’s not going to make a very good cake—no matter how closely you follow it.
The limit to this analogy is that, unlike the laws of physics, constitutions are subject to competing interpretations. Without interpretation and enforcement, constitutions are just words on paper. Governments can violate constitutional law—they’re just not supposed to. And this means that the fact that a country has a constitution doesn’t mean the country’s government is really subject to it.
Common Questions about Constitutions
Constitutions constitute a country’s government. They lay out how government is structured, the procedures it has to follow, and the laws by which other laws get made
In most countries, judges are unelected. Many of them serve life terms, or at least very long terms. This reduces the accountability of the judicial branch, and insulates the chief interpreters of law from the will of the people. This means that courts are not only powerful, but in a sense, they’re not really very democratic either.
Constitutions embody higher law than ordinary statutes; a statute is a law that’s passed by a legislature. This is because constitutions place limits on what kinds of law a legislature can pass in the first place.
