Pro Logica

November 19, 2011

Constitutions, Laws and Equity

After ranting about the U.S. Government, its Constitution and the actions of its several parts, I imagine that it is past time to explain the underlying philosophy of governments with a constitution.

To start at the beginning I assume that people can assemble and while in their assembly, agree that among them there are enough persons of similar views that organizing themselves in a bloc might be advantageous.  When there are a small number of participants in a particular bloc, membership can be fluid since it would be of no consequence to skip any meetings of the bloc and oftentimes these blocs form and dissolve depending on common interest among the participants.  Some blocs will gather a goodly number of participants, continue to exist over a lengthy period of time and, in this process, develop  a sense of independent existence.  Over this extended existence some members (possibly natural leader types) become instrumental in keeping the rest of the members from abandoning the bloc (at this stage more rightly called a club or an organization), and the members develop a common understanding of their purpose and permitted actions; this common understanding is generally called a constitution or charter, and may be written or unwritten.  I point out that many organizations are very casual in these matters–unwritten constitutions are often fluid in their purpose and permitted actions while written constitutions often lend themselves to rather loose interpretations.  A common gambit among many organizations is to reference “Robert’s Rule of Orders” as their bible of operating as an organization.

Many large organizations use a written constitution for the justification of their individual governing policies.  The only thing that can be said about the make-up of any written constitution can probably be stated in these words, “If a statement pertains to the organization, its goals and objectives, its membership, its officers, its actions, its members actions or its property, tangible and intangible, that statement is fit to be included in the organizations written constitution.”  On the other hand, an organization’s written constitution must have a section defining how members may pass resolutions (laws, by-laws, edicts, etc.); these resolutions may name the organization, define its goals, define procedures for admitting new members and define members proper actions as representatives of the organization.  Clearly, though, a written constitution having only the one required section does not function any better than an organization having an unwritten constitution.  The primary purpose of using a written constitution for a large organization is stability, it verbalizes the organization’s governing principles so that actions by its members can be judged by both members and non-members as actions befitting the organization’s goals and objectives.  Constitutional principles are not meant to be changed since changing the constitution will usually result in an organization with changed membership.

Most nation-states are organizations with an extensive written constitution.  There is a long tradition of governing policies and these are usually found in the written constitutions of these states.  These governing policies, in most cases, are different for different nation-states but, more often, constitutional provisions are general statements which need clarification of details, such details being the proper subject of laws.  Many of these constitutions have provisions concerning the redress of grievances and fairness in application of laws, commonly called equity.  There is nothing in the make-up of organizations which require any provision of equity–if a member of an organization does not approve of one of its laws, that member may work within the organization to pass a resolution rescinding that law or the member may quit the organization.  Citizens of nation-states, often for reasons of family, traditions or patriotism, as well as laws proscribing the citizen’s movements, may not have the choice of quitting that nation-state to join a different one, hence the existence of equity sections in their written constitutions.  Equity is not synonymous with justice since justice has moral connotations while equity is strictly concerned with legality and fairness in application of laws; equity provisions in a written constitution can, in no way, guarantee justice.

Philosophically, for a nation-state, the above paragraph lays out the proper relations between a written constitution, the laws enacted by the government established by that written constitution and the rulings of that government’s section charged with deciding matters of equity.  These are: constitutional provisions always have precedent over laws and equity rulings are concerned with citizen’s complaints in the application of laws either in specific circumstances or in the relationship between a specific law and the constitutional provision underlying that law.  Unless specifically prescribed otherwise an equity ruling has no effect upon a written constitution or any laws duly enacted under the rules of the constitution.

So much for common sense.  Governments of nation-states are composed of people and these people can, and usually do,  have different interpretations of the constitutional provisions as well as of the duly enacted laws.  These interpretations can be incorporated in the government as de facto laws and invalid constitutional interpretations.  Two exceptionally egregious beliefs of the American people (this includes members of the Legislative and Executive Branches) are that SCOTUS has the authority to invalidate Congressional laws and that SCOTUS can invalidate sovereign State laws which violate ‘freedom of speech’ as defined by SCOTUS.  A very egregious de facto law observed by SCOTUS is that judicial precedence is above the Constitution.  These de facto laws cannot be deduced from any reasonable interpretation of the U.S. Constitution yet they are religiously obeyed.

Advertisements

Blog at WordPress.com.

%d bloggers like this: