Constitution

I will discuss two cases – one American and one Indian. I won’t spend much time on the Indian one because much has already been written on the subject – a simple rant will do.

The police raided a “rave” party in Bangalore, didn’t find any drugs, and so booked 100-odd people for “obscene dancing” and also for serving liquor without a license. What irritated me the most was a television program on some news channel where a patronizing twerp, a lawyer, praised the police action saying people should only indulge in those activities that are PERMITTED under LAW. The law he referred to was legislation. This is what I think of such people. And since the constitution of India was written by the Taleban, freedom in India is as real as the tooth-fairy. What India needs is a dictator. Not Hitler – he was too civilized – but someone like Pol Pot. When policemen roam the streets with whips in their hands delivering instant justice for disobeying LAWS written by madmen, only then will the educated middle class Indian understand the meaning of freedom.

Reason has an article on California’s “Proposition 8” that amended the state constitution thus banning gay marriage. Here’s what happened. The “conservative” folk in the state didn’t like “marriage” between same-sex couples. So they amended the constitution to make it illegal. Now, a question does arise about whether the State should have anything to do with marriage at all, but that’s a different debate. Okay, so the constitution is amended. But the “liberals” moved the state Supreme Court to declare the amendment null-and-void. The author asks – what does that mean?

On Thursday, the fight went back to the Supreme Court in San Francisco, where state Atty. Gen. Jerry Brown insisted that the people of California, who created the constitution, don’t have the power to change it as they tried to do this time. He argued that it protects pre-existing inalienable rights, including the right to marry, and that an inalienable right “cannot be taken away by a popular vote.”

But inalienable rights are empty concepts without legal protection—which in this case they enjoy only because of a constitution approved by the people. If those people had wanted to deny themselves the power to repeal rights protected by the state constitution, they could have included a provision to do that. They didn’t.

Instead, they erred on the side of making it easy to amend their charter. Any limits on that power, beyond those imposed by the federal constitution, exist only in the mind of legal fantasists.

It was one thing to demand that the state Supreme Court overrule the will of the people once, and on a mere law. It’s quite another to ask it to repudiate their verdict again, after they had decided to alter the constitution precisely to reverse a decision of the Supreme Court.

[…]

Like it or not, the California Constitution notes a basic truth in a democratic society: “All political power is inherent in the people.” Advocates of same-sex marriage might do better by treating those people not as opponents to be defeated but as allies to be won.

The “limited government” libertarians/ liberals have always written about how the constitution is all important, and that if somehow the perfect constitution were in place, people’s rights would be safeguarded. But is that position really true? Chapman, the author, is right when he says – “All political power is inherent in the people.” Politics is all about people. And the State is originally formed on the basis of an agreement between people. Aristotle writes about the nature of the state-

He who thus considers things in their first growth and origin, whether a state or anything else, will obtain the clearest view of them. In the first place there must be a union of those who cannot exist without each other; namely, of male and female, that the race may continue (and this is a union which is formed, not of deliberate purpose, but because, in common with other animals and with plants, mankind have a natural desire to leave behind them an image of themselves), and of natural ruler and subject, that both may be preserved…Out of these two relationships between man and woman, master and slave, the first thing to arise is the family…But when several families are united, and the association aims at something more than the supply of daily needs, the first society to be formed is the village.

[…]

When several villages are united in a single complete community, large enough to be nearly or quite self sufficing, the state comes into existence, originating in the bare needs of life, and continuing in existence for the sake of a good life. And therefore, if the earlier forms of society are natural, so is the state, for it is the end of them, and the nature of a thing is its end. For what each thing is when fully developed, we call its nature, whether we are speaking of a man, a horse, or a family. Besides, the final cause and end of a thing is the best, and to be self-sufficing is the end and the best. Hence it is evident that the state is a creation of nature, and that man is by nature a political animal. And he who by nature and not by mere accident is without a state, is either a bad man or above humanity.

Accepting, for the time-being, the position that the State is a metaphysical necessity, what is the function of the constitution and how is it to be amended? If the constitution is seen an agreement, it binds all future generations to that agreement. And if it were an immutable agreement – non-amendable, once written – people would need to revolt every time they wished to amend it. That is why most constitutions have provisions regarding their amendment. And therefore, the risk that, sometime in the future, the majority may amend it to take away the rights of the minority is always there – it can happen with property rights as well as individual rights. A solution like the Indian Supreme Court’s “basic structure doctrine” compromise might work, but it does not inspire much confidence because the majority can always disregard the constitution – size does matter. But I am not able to think of any other alternative within this framework.

So, as long as constitutions are being written, the framers should be very careful as to what they consider to be inalienable rights, and work to make that part of the constitution immutable. If it means writing a 1000 page tome explaining what every word of the constitution is supposed to mean, so that idiot prime ministers and presidents don’t turn megalomaniacs, so be it.

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Comments

  • myidea4india  On March 10, 2009 at 1:24 pm

    Please support the online petition for treating members of the LGBT community more humanely. Please vote here

  • warthog  On March 10, 2009 at 11:18 pm

    imo they should sue the police.i dont know when was the last time the police was sued for excessive force and violation of rights.

    also aristotle can you plz do an article about our founders ignorance to include US bill of rights 4th amendment and the history of jury trials in india and why it was removed and was it a privilege or a right.

    you should file a pil to the SC asking to remove the 1st amendment.I read that there was a pil about the illegality of removing right to private property and the sc has sent a notice.
    Bear in mind that in 1951 when the court said that the 1st amendment didn’t violate the basic structure but now after so many draconian act you can say that this has more than weakened the article 19(1). and to remove all the resonalbe restrictions excpet for contempt of court and obsenity.

    We and sushub launched a airtel FUP and it got attention on mint and economic times would soon do a story about this.

    please man you are our only hope.remove 1st amendment

  • you12  On March 11, 2009 at 9:51 am

    Hope? Thats the last word that comes to mind when one thinks of Indian constitution.That thing needs to thrown into garbage. Sometimes I wonder what life would have ben like if we had been ruled by the Uncle Sams instead of the Brits.

    • Aristotle The Geek  On March 12, 2009 at 12:59 am

      Considering the state of politics in the US – in spite of their constitution, I don’t think it would have made much of a difference.

  • yet_another_hindu_infidel  On March 22, 2009 at 1:26 pm

    india is a free nation. you cannot force us to be rational. no you can’t. right?

    rationality and morality is just another part of the debate among the rurals and urbans. these two different groups collide with each other on the “right thing to do” on nearly ever matter. it’s hard to not see a shanty locality beside a 25 floor tower in mumbai. what can you expect when the govt. recruited 10th pass students in govt places like municipalities some decades back and promotion got them holding the top posts today. the notion of “equality” got us fucked up. even today were putting morons in govt. office to lead us. it’s hard to trust anyone below the PMO hierarchy these days. and with mayawati, sharad pawar and other short sighted regional parties claiming there share on the holiest posts, i don’t know what to trust anymore.

    • Aristotle The Geek  On March 22, 2009 at 6:10 pm

      “rationality and morality is just another part of the debate among the rurals and urbans.”
      Its not a rural-urban divide. Its a wise people vs. stupid people divide. And there are more stupid people among the urban crowd than in the villages. Being literate and being wise are not one and the same. And our urban crowd – “youth” and all, prove it every time they do something.

      I blame it on the education system. The government has brainwashed entire generations – people no longer now what freedom is, or what a “republic” is, or what “justice” is, or what the function of a “constitution” is.

      # “i don’t know what to trust anymore.”
      Don’t trust anyone – not the government, not the media and not the yuppie crowd. Start reading, instead.

  • yet_another_hindu_infidel  On March 22, 2009 at 7:24 pm

    I blame it on the education system.
    you think the syllabus structure in far maharashtra is different than the one in mumbai/pune university? i don’t think so. it all comes down to morality which affects your rationality. true, the youth “youngistan” piss pants have zero or a cliche opinion on politics.
    the father of india is the mahatma. both stock are taught that but what about things which there not taught about – like sex education. the result will a defining one. it is a urban/rural divide. and you know people will shouting face to face when equality forces you to give a platform to the rural crowd. i don’t have a problem with equality but when regional politricks make a say in administration functions over at my end then i have a problem.

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