www.viriatosoromenho-marques.com 1
The Idea of
Constitution Rights, Duties and Values
FLUL, Political Philososophy
Viriato Soromenho-Marques
First American State Constitutions
New Hampshire 1776
South Carolina 1776
Rhode Island 1776 (under 1663 Charter)
Virginia 1776
New Jersey 1776
Delaware 1776
Pennsylvania 1776
Connecticut 1776 (under 1662 Charter)
Maryland 1776
North Carolina 1776
Georgia 1777
New York 1777
Massachusetts 1780
www.viriatosoromenho-marques.com 2
JFK: Two traditions…
([...] Our nation's first great politicians
were also among the nation's first
great writers and scholars. The
founders of the American Constitution
were also the founders of American
scholarship. The works of Jefferson,
Madison, Hamilton, Franklin, Paine
and John Adams -- to name but a few -
- influenced the literature of the world
as well as its geography. www.viriatosoromenho-marques.com 3
…the same roots • Books were their tools, not their
enemies. Locke, Milton, Sidney,
Montesquieu, Coke and
Bolingsbroke were among those
widely read in political circles and
frequently quoted in political
pamphlets. Our political leaders
traded in the free commerce of ideas
with lasting results both here and
abroad) (Kennedy, 1991: 39).
www.viriatosoromenho-marques.com 4
www.viriatosoromenho-marques.com 5
Lord Macauly: the 18th Century Whigs
The Whig party had, during seventy years,
an almost uninterrupted possession of
power. It had always been the fundamental
doctrine of that party, that power is a trust
for the people; that it is given to
magistrates, not for their own, but for the
public advantage; that, where it is abused by
magistrates, even by the highest of all, it may lawfully be
withdrawn. It is perfectly true, that the Whigs were not more
exempt than other men from the vices and infirmities of our
nature, and that, when they had power, they sometimes
abused it. But still they stood firm to their theory. That
theory was the badge of their party) (Macaulay, 1986: 553).
•
www.viriatosoromenho-marques.com 6
«Mayflower» Selfgovernment model
• “A government framed by ourselves, for our own benefit, and according to the fairest models of our own minds, and administred by men of our own choice, ought to be more deeply respected, and more religiously supported by us than any kind of imposed authority” (Samuel Cooper, [1780]: 653).
Anthropology as condition to
draft…
• But what is government itself but
the greatest of all reflections on
human nature? If men were angels,
no government would be necessary.
If angels were to govern men,
neither external nor internal
controls on government would be
necessary. (…)
www.viriatosoromenho-marques.com 7
…a fair Constitution
• In framing a government which is to
be administrated by men over men,
the great difficulty lies in this: you
must first enable the government to
control the governed; and in the next
place oblige it to control itself.”
(Madison, FP 51: 319-320).
www.viriatosoromenho-marques.com 8
www.viriatosoromenho-marques.com 9
Thomas Paine: Positive Constitution (1)
A constitution is not a thing in name only,
but in fact. It has not an ideal, but a real
existence; and wherever it cannot be
produced in a visible form there is none. A
constitution is a thing antecedent to a
government, and a government is only the
creature of a constitution. The constitution of
a country is not the act of its government,
but of the people constituting a government.
It is the body of elements …
www.viriatosoromenho-marques.com 10
Thomas Paine: Positive Constitution (2)
…to which you can refer, and quote article
by article; and contains the principles on
which the government shall be established,
the form in which it shall be organized, the
powers it shall have, the mode of elections,
the duration of parliaments, or by what other
name such bodies may be called; the
powers which the executive part of the
government shall have; and, in fine,
everything that relates to the complete
organization of a civil government,
www.viriatosoromenho-marques.com 11
Thomas Paine: Positive Constitution (3)
• …and the principle on which it shall act,
and by which it shall be bound. a
constitution, therefore, is to a government
what the laws made afterwards by that
government are to a court of judicature.
The court of judicature does not make
laws, neither can it alter them; it only acts
in conformity to the laws made; and the
government is in like manner governed by
the constitution.”(Paine [1791]: 48).
www.viriatosoromenho-marques.com 12
Madison: Constitution, Liberty and
Power
• "In America a constitution had become, as Madison pointed out, a charter of power granted by liberty rather than, as in Europe, a charter of liberty granted by power.” (Wood, [1969]: 601).
www.viriatosoromenho-marques.com 13
Hamilton: Time and Constitution
“Constitutions of civil government are
not to be framed upon a calculation of
existing exigencies, but upon a
combination of these with the probable
exigencies of ages, according to the
natural and tried course of human
affairs.[...] There ought to be a CAPACITY
to provide for future contingencies as
they may happen.” (Hamilton, FP 34:
227).
www.viriatosoromenho-marques.com 14
Paine: Constitution as a social
contract (1)
• “In viewing this subject, the case and
circumstances of America present
themselves as in the beginning of a
world; and our inquiry into the origin of
government is shortened by referring
to the facts that have arisen in our day.
We have no occasion to roam for
information into the obscure field of
antiquity, nor hazard ourselves upon
conjecture.
www.viriatosoromenho-marques.com 15
Paine: Constitution as a social
contract (2)
• We are brought at once to the point of
seeing government begins, as if we
had lived in the beginning of time.
The real volume, not of history, but of
facts, is directly before us,
unmutilated by contrivance or the
errors of tradition.” ( Paine, [1791]:
182).
www.viriatosoromenho-marques.com 16
Por uma Bill of Rights
• “[...] the omission of a bill of rights
providing clearly and without the aid of
sophisms for freedom of religion, freedom
of the press, protection against standing
armies, restriction against monopolies, the
eternal and unremitting force of the
habeas corpus laws, and trials by jury in
all matters of fact triable by the laws of the
land and not by the law of Nations)
(Jefferson, 1977: 429).
www.viriatosoromenho-marques.com 17
Two reasons in favout of …
1. The political truths declared in that
solemn manner acquire by degrees the
character of fundamental maxims of
free Government, and as they become
incorporated with the national
sentiment, counteract the impulses of
interest and passion.
www.viriatosoromenho-marques.com 18
…a Bill of Rights
• 2. Altho' it be generally true as above stated that the danger of oppression lies in the interested majorities of the people rather than in usurped acts of the Government, yet there may be occasions on which the evil may spring from the latter sources; and on such, a bill of rights will be a good ground for an appeal to the sense of community) (Banning, 1995: 152).
www.viriatosoromenho-marques.com 19
Anticipating the Constitutional Court
“In the arguments in favor of a declaration of
rights, you omit one which has great weight
with me, the legal check with it puts into the
hands of the judiciary. This is a body, which
if rendered independent, and kept strictly to
their own department merits great
confidence for their learning and integrity [...]
Half a loaf is better than no bread. If we
cannot secure all our rights, let us secure
what we can) (Jefferson, 1977: 438-439).
The Constitution as…
No legislative act, therefore, contrary to
the Constitution, can be valid. To deny
this would be to affirm [...] that the
servant is above his master; that the
representatives of the people are
superior to the people themeselves
[...]The interpretation of the laws is the
proper and peculiar province of the
courts. www.viriatosoromenho-marques.com 20
…The fundamental law • A constitution is, in fact, and must be
regarded by the judges as, a fundamental
law [...]The Constitution ought to be
preferred to the statute, the intention of the
people to the intention of their agents. Nor
does this conclusion by any means
suppose a superiority of the judicial to the
legislative power. It only supposes that the
power of the people is superior to both.”
• (Hamilton, FP 78: 438-439,
www.viriatosoromenho-marques.com 21
The USA Constitution
1. Drafted in the Philadelphia Convention in
1787.
2. Entered in force in 1788 (the requirement
was the approval of 9 among the 13 States).
3. The Constitution was completed with the
adoption of the first 10 Amendments, known
as the Bill of Rights, in December 15th,
1791.
4. Only 7 articles, being the I on the legislative
power, the II on the executive power and the
III on the judicial power. www.viriatosoromenho-marques.com 22
www.viriatosoromenho-marques.com 23
USA (1788) and France (1791)…
• Principle of people’s sovereignty (souveraineté nationale).
• Principle of religious neutrality (laïcité de l'Etat).
• Principle of separation of powers(nécessité d'une séparation des pouvoirs)
• Principle of representative political system(d'un régime représentatif).
www.viriatosoromenho-marques.com 24
…common principles in
constitutional law
• Principle of legal equality (l' égale soumission à la loi).
• Principle of no taxation without representation(consentement à l' impôt).
• Principle of legal impeachment from the elected officials (de la responsabilité des agents publics et de l'armée devant la Nation) (J. Morange, 1993: 7).
www.viriatosoromenho-marques.com 25
Defining the structure and the…
• Defines the type of “good life“(values and principles).
• Defines the people included in the Community-Society that exercises sovereignty
• Determines the territory belonging to the sovereign.
• Defines the politial institutions that allow the exercise of sovereignty.
www.viriatosoromenho-marques.com 26
…Key software elements of…
• Defines the Forma imperii/Form der Beherrschung/Form of sovereignty (quantitative element): [autocracy; aristocracy; democracy]).
• Defines the Forma regiminis/Form der Regierung/Form of government qualitative element): the issue of political representation> Republicanism or despotism]).
• Defines the rights and duties of citizenship and its requirements.