Constitutional Philosophy
Lecture 1
Jon Roland
November 10, 2012
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
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?
Historical background
Jewish
 Greek
 Roman
 Germanic
 Muslim
 Chinese
 European republics
 Pirates
 Native American
 England, colonies and states
 United States

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
Greek syntagma


Athens (Solon)

Commentary by Aristotle

Official selection by sortition (kleros, lottery)
Sparta (Lycurgus)

Forbidden to be written

Adopted by trick
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)
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
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)
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.
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
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
Native American

Constitution of the Iroquois Confederacy

Used as model for federal system

Enabled mutual defense, adjudication of
disputes, division of territory
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
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
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
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
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.
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
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
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
Origins of Rights 3



State
Denizenship (right to remain on or return to
one's domicile)
Fair representation of different parts of the
territory
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)
Nested constitutions
Public Action
Delegatable powers
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
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
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
End of Lecture 1