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Constitutional Philosophy

Lecture 1 Jon Roland November 10, 2012. Constitutional Philosophy. Science of law and government?. Plato, Aristotle, Cicero, Machiavelli, Grotius, Hobbes, Locke, Rousseau, Hume, Kant Ethics for the society Social contract Main problem: sound constitutional design

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Constitutional Philosophy

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  1. Lecture 1 Jon Roland November 10, 2012 Constitutional Philosophy

  2. Science of law and government? • Plato, Aristotle, Cicero, Machiavelli, Grotius, Hobbes, Locke, Rousseau, Hume, Kant • Ethics for the society • Social contract • Main problem: sound constitutional design • Principles of design not bound to culture? • Theories of natural law • Utilitarianism • Dependence on public education & virtue

  3. Man the lawmaker • Other social species depend on instinct • Humans design and revise rules to make the play of games more satisfying • Given a basic game structure, people tend to independently evolve similar rules, as though fulfilling a natural law • One of those games is law and government • Can we develop a computer program to generate optimal constitutions of government?

  4. Jewish Greek Roman Germanic Muslim Chinese European republics Pirates Native American England, colonies and states United States Historical background

  5. Jewish Halakha • Torah (Pentateuch, first 5 books of Old Testament) • 613 mitzvot (“commandments”), 248 positive & 365 negative • “Constitutional” mitzvot embedded in “statutory” • 12 tribes, 600 clans (elaf), beth-ab, militia “hundreds” • Shmita (7-year cycle of fallow fields, cancel debts) • Overlaid with tradition of exegesis (or eisegesis) • Modern Israel uses British unwritten model

  6. Greek syntagma • Athens (Solon) • Commentary by Aristotle • Official selection by sortition (kleros, lottery) • Sparta (Lycurgus) • Forbidden to be written • Adopted by trick

  7. Roman constituo • Meant entrenched, more than supreme metalaw • Republic 509 BC • 2 consuls (executives), 1-year terms • Senate • Assembly • Tribunes, censors, questors, praetors • Dictators (6 month terms, until Sulla, Julius Caesar 44 BC)

  8. Germanic constituo • Organized into tribes (pagi, in Latin) • Chief elected by wittengemote, assembly of warriors, from “royal clan” • Served for life but could be removed by council • Not hereditary • Proposals could be rejected by assembly • Judges elected by assembly • Records of judicial decisions became common law

  9. Muslim dustur • Dustur al Madinah (constitution of Medina) 622AD • Was treaty among ethnic, religious groups • Balanced rights, official duties among Muslims, Jews, Christians, pagans • Attributed to Mohammed • Not followed by successors, who set up khalifa (caliphates)

  10. Chinese • Tao Te Ching (Lao-tzu). Precepts that guided government after made state religion 440 BC. • Analects (Lun-yu, Confucius). Officially adopted as state social philosophy 202 BC, also guided lawmaking and governance. • No formal constitution but moral guidance from entrenched philosophies.

  11. European republics • Venice • Sortition to select doge 1268-1797 • Genoa, directorial republic under French rule • Corsica, Constitution 1755-1769, Diet (parliament), female suffrage • Swiss Confederacy, 1291-1798 • Dutch Republic, 1581-1795

  12. Pirates • At war with the world • But law among themselves • Provided for electing captain, quartermaster • Divided spoils • Rudimentary judicial process • Sometimes became governments on land

  13. Native American • Constitution of the Iroquois Confederacy • Used as model for federal system • Enabled mutual defense, adjudication of disputes, division of territory

  14. England, colonies and states • Witten[ge]mote • Magna Carta 1215 • Provisions of Oxford 1258; First English parliament 1265 (De Montfort) • Levellers: Agreement of the People 1647 • English Bill of Rights 1689 • Colonial charters 1639 • Locke constitution for Carolinas 1689 • First state constitutions 1776

  15. United States • First Continental Congress 1774-75 • Articles of Association 1774 • Second Continental Congress 1775-81 • Declaration of Independence 1776 • Articles of Confederation 1781 • Constitutional Convention 1787 • Ratification debates 1787-88 • Adoption of Constitution June 21, 1788 • Bill of Rights December 15, 1791 • Election of 1800, Jeffersonians ascendant

  16. Rule of Law • Real consent to due process • Laws binding all people including officials • Limited discretion of officials • Public notice • Clarity and simplicity • No contradictions • Not retroactive • Not beyond the power of people • Stable and predictable

  17. Design Goals • Protect rights with accessible remedies • Enable joint action, especially defense • Divide power among branches, levels • Representation & deliberation • Pay or avoid debts. No fiat currency. • Adjudicate disputes, avoid conflict, separation • Allow peaceful expansion and secession • Supersedes derivative statutes, amendable • Endure indefinitely, for benefit of posterity

  18. Design Principles • 1. Put it in writing, as brief and simple as possible, but no briefer or simpler. Omit anything that is not enforceable as law. • 2. Specify who, what, how, when, where, why, whither, to or for whom, etc. • 3. Enter provisions that operate together to solve a problem, providing the necessary structure, procedures, rights, powers, and duties, covering all conceivable contingencies, that require no resources that are not always available or obtainable. • 4. Anticipate all the ways any language might be twisted by clever lawyers trying to find ways to evade the meaning and intent of each provision. • 5. Don't try to micromanage complex social systems. Make sure everything orchestrates into a harmonious system, but be aware of the ways every enactment is an intervention in a chaotic system highly sensitive to purturbations, and that can only work if it sets up self-organized islands of stability in a sea of chaos, that are largely undesignable except by trial and error. • 6. Allow some discretion but not too much, so actions predictable.

  19. Social Contract • Can be explicit contract among adults • But usually induction by parents (socialization) • Establishes transitive relation among members • Consent by entering or remaining on territory • To protect rights, but not scarce resources • Defines duty of militia to mutually defend • With dominion over territory becomes state • Adoption of constitution of government by deliberative, representative convention

  20. Origins of Rights 1 • Nature • Life • Limb (right not be be physically injured or tortured, or have one's health or comfort threatened) • Liberty • Acquisition, retention, and use of means to secure above rights (part of property right) • Right not to be required to do the impossible or scientifically irrational

  21. Origins of Rights 2 • Society • Property equity (right to reclaim property to which one has title, or the value thereof, beyond mere possession) • Presumption of nonauthority • Due process (includes due notice and fair hearing, both substantive and procedural, and all rights associated with juries) • Common law trust rights • Public decision by convention called by public notice and conducted by established rules of procedure

  22. Origins of Rights 3 • State • Denizenship (right to remain on or return to one's domicile) • Fair representation of different parts of the territory

  23. Origins of Rights 4 • Government • Citizenship (privilege to vote and hold office, access to voting and fair counts) • Means to remove misbehaving officials or suspend their actions, such as quo warranto and other prerogative writs • Getting reports on the activities and expenditures of officials • Compensation for taking of property (part of property right)

  24. Nested constitutions

  25. Public Action

  26. Delegatable powers

  27. Public duties • Defend public as militia from any threat • Prepare oneself and others to defend • Serve on juries • Give testimony • Pay lawful taxes • Avoid causing injury through act or neglect • Vote for what is best for the country • Supervise officials and other servants • Inform oneself on public issues and deliberate

  28. Militia • Organize, train, and equip oneself for • Defense against invasion, crime, disorder, or disaster • Investigate wrongdoing • Report on one's investigations • Make arrests, detain until culprit can be arraigned • Serve as private prosecutor • Help enforce lawful orders of judges

  29. Deliberative assemblies • Requirements: • Public notice specifying time, place, and subject • Broad representation • Established rules of procedure • Includes: • Constitutional conventions • Town meetings • Elections and nominating conventions • Judicial courts, trial and grand juries • Militia

  30. End of Lecture 1

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