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Bazza
Joined: 06 Aug 2011
Posts: 9
Location: New Zealand
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 Posted: Wed Aug 10, 2011 4:12 am Post subject: Seeking light on the wisdom of a written constitution |
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Aotearoa New Zealand is about to embark on a 3-year long review of our constitution. One of the discussion topics is "should we have a written constitution?". Apart from the United Kingdom and Israel, I believe NZ is the only other country not to have a codified constitution.
Currently I lean towards keeping the Status quo as it allows Parliament to enact, amend or repeal laws in the light of accumulated wisdom and new knowledge. I feel that while an entrenched document might speak to our condition now, it may not speak to the condition of our grandchildren or their grandchildren.
I am also wary of an unelected judiciary being the final arbiter of interpreting laws or striking them down, and our elected representatives not being able to remedy the situation.
I am not very familiar with the American system, but I understand that it was the courts that decided that racial segregation was unconstitutional. What recourse would legislators have had, if the courts has decided that the founding fathers' understanding of "men" in the constitution meant "males of European ancestry" only? Would the federal government have been able to prevent individual states from maintaining/enacting discriminatory laws against non-whites and females?
I think I would prefer to trust the collective wisdom of 120 elected representatives (the size of our Parliament) than that of a few unelected judges. Any points of view for or against a constitution being "set in stone"? |
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trueRiver
Joined: 18 Aug 2011
Posts: 10
Location: Manchester, England & Tain, Scotland
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| Posted: Tue Aug 23, 2011 8:55 am Post subject: Constitutions can be changed, but don't solve everything |
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| Bazza wrote: |
...
Currently I lean towards keeping the Status quo as it allows Parliament to enact, amend or repeal laws in the light of accumulated wisdom and new knowledge. I feel that while an entrenched document might speak to our condition now, it may not speak to the condition of our grandchildren or their grandchildren.
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This problem of entrenchment is the main reason I favour keeping the 'unwritten' constitution in my country (UK) also.
| Quote: |
I am also wary of an unelected judiciary being the final arbiter of interpreting laws or striking them down, and our elected representatives not being able to remedy the situation.
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This slightly overstates the case. Any sensible written constitution contains provisions for changing the constitution: these are typically harder to meet than just to pass a law, there is no reason why a written constitution should not be changeable by Parliament alone (perhaps needing a super majority, for example itmight need a 75% vote in favour). Another method would be that constitutional changes could be made by Parliament but needed a referendum before they came into effect.
The procedure for amending the US constitution is found in [url=en.wikipedia.org/wiki/Article_Five_of_the_United_States_Constitution]article V[/url]
The UK and New Zealand do currently have constitutions, of course: they are just not written down in one place. At present changes to voting arrangements, recognition of Human Rights, etc are passed as Acts of Parliament - as was the devolution of many powers to Scotland's own separate Parliament. Important changes, like joining the EU and like Scottish devolution have been supported by referenda.
| Quote: |
I am not very familiar with the American system, but I understand that it was the courts that decided that racial segregation was unconstitutional. What recourse would legislators have had, if the courts has decided that the founding fathers' understanding of "men" in the constitution meant "males of European ancestry" only? Would the federal government have been able to prevent individual states from maintaining/enacting discriminatory laws against non-whites and females?
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No, the federal government on its own could not do that. The procedure would have been to try to change the constitution, which is a process needing a simple majority in each of a super-majority (75%) of states. Not impossible, but not easy either.
This is how some horribly racist parts of the original constitution were removed years after the constitution was adopted.
The other thing to point out is that any constitution is only as strong as the state it belongs to. If feelings run high enough, any constitution can be ignored, written or unwritten. The Confederate States had a constitutional right to secede from the Union. When they tried to do so, the Union took to war rather than the courts to keep the country together. As usual the winners wrote the history books, and we do not usually get told that.
Morally the right side won: it was good that slavery ended. Legally it was unconstitutional to do it that way. So don't let anyone kid you that a written constitution solves everything.
Similarly with the English unwritten constitution in George Fox's time, sometimes people take to civil war to sort out their interpretation of the constitution.
Similarly the US constitution was ignored when the US imposed internment on indigenous US citizens simply becasue their ancestry was Japanese, as happened after Pearl Harbour in WW2.
In times of an external war, it is easy to get everyone, including the judges, to ignore the constitution, written or otherwise.
That can happen with or without a single unifying document.
| Quote: |
I think I would prefer to trust the collective wisdom of 120 elected representatives (the size of our Parliament) than that of a few unelected judges. Any points of view for or against a constitution being "set in stone"? |
That is also my view, Friend. I have pointed out some ways in which the issue is not quite as one-way as you originally suggested, but on balance I still agree with you.
I would vote against a written constitution in a referendum in my own country. It is ultimately for you to decide what should happen in your own. Both systems have advantages and disadvantages.ing a super majority, for example itmight need a 75% vote in favour). Another method would be that constitutional changes could be made by Parliament but needed a referendum before they came into effect.
The procedure for amending the US constitution is found in article V thereof
The UK and New Zealand do currently have constitutions, of course: they are just not written down in one place. At present changes to voting arrangements, recognition of Human Rights, etc are passed as Acts of Parliament - as was the devolution of many powers to Scotland's own separate Parliament. Important changes, like joining the EU and like Scottish devolution have been supported by referenda.
| Quote: |
I am not very familiar with the American system, but I understand that it was the courts that decided that racial segregation was unconstitutional. What recourse would legislators have had, if the courts has decided that the founding fathers' understanding of "men" in the constitution meant "males of European ancestry" only? Would the federal government have been able to prevent individual states from maintaining/enacting discriminatory laws against non-whites and females?
|
No, the federal government on its own could not do that. The procedure would have been to try to change the constitution, which is a process needing a simple majority in each of a super-majority (75%) of states. Not impossible, but not easy either.
This is how some horribly racist parts of the original constitution were removed years after the constitution was adopted.
The other thing to point out is that any constitution is only as strong as the state it belongs to. If feelings run high enough, any constitution can be ignored, written or unwritten. The Confederate States had a constitutional right to secede from the Union. When they tried to do so, the Union took to war rather than the courts to keep the country together. As usual the winners wrote the history books, and we do not usually get told that.
Morally the right side won: it was good that slavery ended. Legally it was unconstitutional to do it that way. So don't let anyone kid you that a written constitution solves everything.
Similarly with the English unwritten constitution in George Fox's time, sometimes people take to civil war to sort out their interpretation of the constitution.
Similarly the US constitution was ignored when the US imposed internment on indigenous US citizens simply becasue their ancestry was Japanese, as happened after Pearl Harbour in WW2.
In times of an external war, it is easy to get everyone, including the judges, to ignore the constitution, written or otherwise.
That can happen with or without a single unifying document.
| Quote: |
I think I would prefer to trust the collective wisdom of 120 elected representatives (the size of our Parliament) than that of a few unelected judges. Any points of view for or against a constitution being "set in stone"? |
That is also my view, Friend. I have pointed out some ways in which the issue is not quite as one-way as you originally suggested, but on balance I still agree with you.
I would vote against a written constitution in a referendum in my own country. It is ultimately for you to decide what should happen in your own. Both systems have advantages and disadvantages.ht need a 75% vote in favour). Another method would be that constitutional changes could be made by Parliament but needed a referendum before they came into effect.
The procedure for amending the US constitution is found in article V thereof
The UK and New Zealand do currently have constitutions, of course: they are just not written down in one place. At present changes to voting arrangements, recognition of Human Rights, etc are passed as Acts of Parliament - as was the devolution of many powers to Scotland's own separate Parliament. Important changes, like joining the EU and like Scottish devolution have been supported by referenda.
| Quote: |
I am not very familiar with the American system, but I understand that it was the courts that decided that racial segregation was unconstitutional. What recourse would legislators have had, if the courts has decided that the founding fathers' understanding of "men" in the constitution meant "males of European ancestry" only? Would the federal government have been able to prevent individual states from maintaining/enacting discriminatory laws against non-whites and females?
|
No, the federal government on its own could not do that. The procedure would have been to try to change the constitution, which is a process needing a simple majority in each of a super-majority (75%) of states. Not impossible, but not easy either.
This is how some horribly racist parts of the original constitution were removed years after the constitution was adopted.
The other thing to point out is that any constitution is only as strong as the state it belongs to. If feelings run high enough, any constitution can be ignored, written or unwritten. The Confederate States had a constitutional right to secede from the Union. When they tried to do so, the Union took to war rather than the courts to keep the country together. As usual the winners wrote the history books, and we do not usually get told that.
Morally the right side won: it was good that slavery ended. Legally it was unconstitutional to do it that way. So don't let anyone kid you that a written constitution solves everything.
Similarly with the English unwritten constitution in George Fox's time, sometimes people take to civil war to sort out their interpretation of the constitution.
Similarly the US constitution was ignored when the US imposed internment on indigenous US citizens simply becasue their ancestry was Japanese, as happened after Pearl Harbour in WW2.
In times of an external war, it is easy to get everyone, including the judges, to ignore the constitution, written or otherwise.
That can happen with or without a single unifying document.
| Quote: |
I think I would prefer to trust the collective wisdom of 120 elected representatives (the size of our Parliament) than that of a few unelected judges. Any points of view for or against a constitution being "set in stone"? |
That is also my view, Friend. I have pointed out some ways in which the issue is not quite as one-way as you originally suggested, but on balance I still agree with you.
I would vote against a written constitution in a referendum in my own country. It is ultimately for you to decide what should happen in your own. Both systems have advantages and disadvantages. itmight need a 75% vote in favour). Another method would be that constitutional changes could be made by Parliament but needed a referendum before they came into effect.
The procedure for amending the US constitution is found in [url=en.wikipedia.org/wiki/Article_Five_of_the_United_States_Constitution]article V[/url]
The UK and New Zealand do currently have constitutions, of course: they are just not written down in one place. At present changes to voting arrangements, recognition of Human Rights, etc are passed as Acts of Parliament - as was the devolution of many powers to Scotland's own separate Parliament. Important changes, like joining the EU and like Scottish devolution have been supported by referenda.
| Quote: |
I am not very familiar with the American system, but I understand that it was the courts that decided that racial segregation was unconstitutional. What recourse would legislators have had, if the courts has decided that the founding fathers' understanding of "men" in the constitution meant "males of European ancestry" only? Would the federal government have been able to prevent individual states from maintaining/enacting discriminatory laws against non-whites and females?
|
No, the federal government on its own could not do that. The procedure would have been to try to change the constitution, which is a process needing a simple majority in each of a super-majority (75%) of states. Not impossible, but not easy either.
This is how some horribly racist parts of the original constitution were removed years after the constitution was adopted.
The other thing to point out is that any constitution is only as strong as the state it belongs to. If feelings run high enough, any constitution can be ignored, written or unwritten. The Confederate States had a constitutional right to secede from the Union. When they tried to do so, the Union took to war rather than the courts to keep the country together. As usual the winners wrote the history books, and we do not usually get told that.
Morally the right side won: it was good that slavery ended. Legally it was unconstitutional to do it that way. So don't let anyone kid you that a written constitution solves everything.
Similarly with the English unwritten constitution in George Fox's time, sometimes people take to civil war to sort out their interpretation of the constitution.
Similarly the US constitution was ignored when the US imposed internment on indigenous US citizens simply becasue their ancestry was Japanese, as happened after Pearl Harbour in WW2.
In times of an external war, it is easy to get everyone, including the judges, to ignore the constitution, written or otherwise.
That can happen with or without a single unifying document.
| Quote: |
I think I would prefer to trust the collective wisdom of 120 elected representatives (the size of our Parliament) than that of a few unelected judges. Any points of view for or against a constitution being "set in stone"? |
That is also my view, Friend. I have pointed out some ways in which the issue is not quite as one-way as you originally suggested, but on balance I still agree with you.
I would vote against a written constitution in a referendum in my own country. It is ultimately for you to decide what should happen in your own. Both systems have advantages and disadvantages.ing a super majority, for example itmight need a 75% vote in favour). Another method would be that constitutional changes could be made by Parliament but needed a referendum before they came into effect.
The procedure for amending the US constitution is found in article V thereof
The UK and New Zealand do currently have constitutions, of course: they are just not written down in one place. At present changes to voting arrangements, recognition of Human Rights, etc are passed as Acts of Parliament - as was the devolution of many powers to Scotland's own separate Parliament. Important changes, like joining the EU and like Scottish devolution have been supported by referenda.
| Quote: |
I am not very familiar with the American system, but I understand that it was the courts that decided that racial segregation was unconstitutional. What recourse would legislators have had, if the courts has decided that the founding fathers' understanding of "men" in the constitution meant "males of European ancestry" only? Would the federal government have been able to prevent individual states from maintaining/enacting discriminatory laws against non-whites and females?
|
No, the federal government on its own could not do that. The procedure would have been to try to change the constitution, which is a process needing a simple majority in each of a super-majority (75%) of states. Not impossible, but not easy either.
This is how some horribly racist parts of the original constitution were removed years after the constitution was adopted.
The other thing to point out is that any constitution is only as strong as the state it belongs to. If feelings run high enough, any constitution can be ignored, written or unwritten. The Confederate States had a constitutional right to secede from the Union. When they tried to do so, the Union took to war rather than the courts to keep the country together. As usual the winners wrote the history books, and we do not usually get told that.
Morally the right side won: it was good that slavery ended. Legally it was unconstitutional to do it that way. So don't let anyone kid you that a written constitution solves everything.
Similarly with the English unwritten constitution in George Fox's time, sometimes people take to civil war to sort out their interpretation of the constitution.
Similarly the US constitution was ignored when the US imposed internment on indigenous US citizens simply becasue their ancestry was Japanese, as happened after Pearl Harbour in WW2.
In times of an external war, it is easy to get everyone, including the judges, to ignore the constitution, written or otherwise.
That can happen with or without a single unifying document.
| Quote: |
I think I would prefer to trust the collective wisdom of 120 elected representatives (the size of our Parliament) than that of a few unelected judges. Any points of view for or against a constitution being "set in stone"? |
That is also my view, Friend. I have pointed out some ways in which the issue is not quite as one-way as you originally suggested, but on balance I still agree with you.
I would vote against a written constitution in a referendum in my own country. It is ultimately for you to decide what should happen in your own. Both systems have advantages and disadvantages.ht need a 75% vote in favour). Another method would be that constitutional changes could be made by Parliament but needed a referendum before they came into effect.
The procedure for amending the US constitution is found in article V thereof
The UK and New Zealand do currently have constitutions, of course: they are just not written down in one place. At present changes to voting arrangements, recognition of Human Rights, etc are passed as Acts of Parliament - as was the devolution of many powers to Scotland's own separate Parliament. Important changes, like joining the EU and like Scottish devolution have been supported by referenda.
| Quote: |
I am not very familiar with the American system, but I understand that it was the courts that decided that racial segregation was unconstitutional. What recourse would legislators have had, if the courts has decided that the founding fathers' understanding of "men" in the constitution meant "males of European ancestry" only? Would the federal government have been able to prevent individual states from maintaining/enacting discriminatory laws against non-whites and females?
|
No, the federal government on its own could not do that. The procedure would have been to try to change the constitution, which is a process needing a simple majority in each of a super-majority (75%) of states. Not impossible, but not easy either.
This is how some horribly racist parts of the original constitution were removed years after the constitution was adopted.
The other thing to point out is that any constitution is only as strong as the state it belongs to. If feelings run high enough, any constitution can be ignored, written or unwritten. The Confederate States had a constitutional right to secede from the Union. When they tried to do so, the Union took to war rather than the courts to keep the country together. As usual the winners wrote the history books, and we do not usually get told that.
Morally the right side won: it was good that slavery ended. Legally it was unconstitutional to do it that way. So don't let anyone kid you that a written constitution solves everything.
Similarly with the English unwritten constitution in George Fox's time, sometimes people take to civil war to sort out their interpretation of the constitution.
Similarly the US constitution was ignored when the US imposed internment on indigenous US citizens simply becasue their ancestry was Japanese, as happened after Pearl Harbour in WW2.
In times of an external war, it is easy to get everyone, including the judges, to ignore the constitution, written or otherwise.
That can happen with or without a single unifying document.
| Quote: |
I think I would prefer to trust the collective wisdom of 120 elected representatives (the size of our Parliament) than that of a few unelected judges. Any points of view for or against a constitution being "set in stone"? |
That is also my view, Friend. I have pointed out some ways in which the issue is not quite as one-way as you originally suggested, but on balance I still agree with you.
I would vote against a written constitution in a referendum in my own country. It is ultimately for you to decide what should happen in your own. Both systems have advantages and disadvantages.
_________________
River~~
I hope other British Quakers who are polyamorous (or wondering if they are) will contact me by clicking the pm button below. Thanks. |
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punkrainbow
Joined: 24 Dec 2007
Posts: 301
Location: Leeds
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| Posted: Sun Nov 20, 2011 12:37 pm Post subject: |
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This is an interesting discussion. I believe it was Jefferson who said that the American Constitution should be re-written in 'every new generation'. I'd say any formal political settlement needs to have room for evolution and change. Any attempt to permanently crystallise the hopes and aspirations of a people for all time in a single document is a bar to the democratic process. The American system as has a bias from the Founders which is a fear or distrust of popular government- hence the electoral college and the US Presidency. The Gospel of American Democracy-the dispersal of power- ('checks and balances'), has a draw back.
The system is rather slow and naturally small 'c' conservative. There have been Presidents e.g. FDR, who have pushed the Constitution as far as it will go and achieved New Deal Liberalism, which pushed popular industrial and economic demands above business ones, but in general the normative settlement of American politics is geared towards the representatives of big business. I believe this is because of the character of the Constitution. The politics of the Founders existed pre-corporations, the rise of international capital and the power of owners over wage-earners. In this age of globalisation, the Constitution tends to protect Capital over labour and entrenches undemocratic interests rather than challenges them. It's better to have something more flexible to meet changing conditions rather than propel a vision of the 18th century into the 21st.
I don't believe we in Britain would ever have got a comprehensive welfare state, the National Health Service, the green-belt, the BBC, and a whole array of beneficial social reforms if we followed an approach which dispersed power too widely. All these required strong government which could exercise it's mandate affectively.
What I've found so puzzling in the American system (no personal poke to our American cousins) is how little time there is for politics. Before the president knows where he is, mid-term campaigns are upon him, and before you can say First Amendment he is campaigning for re-election! There very little time to set a legislative programme for the nation, much less trying to solve pressing problems. The President can only spend his or her political capital on a one or two issues before his time to affect change is spent. The British system has flaws but I think the political system of convention and custom we have built works better from a pragmatic point of view.
_________________
I saw the infinite love of God. I saw also that there was an ocean of darkness and death; but an infinite ocean of light and love, which flowed over the ocean of darkness. |
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kevin roberts
Joined: 12 Sep 2007
Posts: 768
Location: more or less anywhere in america
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| Posted: Sun Nov 20, 2011 4:53 pm Post subject: |
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ben, the american system doesn't just distrust popular government, it distrusts people.
most of the authors were calvinists who believed people would seek to abuse the less powerful, and should be restrained from doing so.
but one of the advantages of the american system is that it recognizes human rights as derived from god, and governments as inherently limited and unable to rightfully modify those rights. the UK system dispenses human rights as flowing from the government, and can therefore take them away as easily as they can grant them.
remember the IRA activists who were imprisoned for years in britain without charges or trial? they had no rights that weren't granted to them by a hostile government, hence they rotted in gaol.
in america, the government would have been forced to charge them (and set up a trial) or let them go.
sadly, guantanomo was set up specifically to skirt the american constitution. we have another prison like it in the bay near los angeles, where american laws don't apply. |
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