THE FUTURE OF CONSTITUTIONALISM

EXECUTIVE SUMMARY

This article is about the future of democracy based on constitutionalism.
What do we mean when we say democracy, fair elections, and constitutionality?
What has been the historical development of constitutionalism and the various forces that shaped it? These include religion, philosophy, historical circumstance, economics, technology, and culture. How will these forces and others stimulate constitutionalism in different cultures in the future and become a universal global standard? What ideas, such as Marxism, have opposed it?

Three books have influenced my thinking: The Future of Freedom by Fareed Zakaria, The Origins of Totalitarian Democracy by Jacob Talmon, and Escape from Freedom by Erich Fromm. My fundamental theme is that before you democratize you had better constitutionalize, lest you end up with a monstrous regime.

DEFINING OUR TERMS

Constitutionalism is an “ism”; it is an ideology acknowledging that human individuals have certain unalienable rights that cannot be obviated by monarch or dictator or majority.

Constitutionalism means the limitation of the power of the sovereign vis-à-vis unalienable rights. The sovereign in England is the monarch— thus the term constitutional monarchy. The sovereign in America is the people (the demos)—thus the term constitutional democracy.

When Americans use the term democracy, they mean constitutional democracy, which we must distinguish from majoritarian democracy. Majoritarian democracy often leads to what the Founding Fathers of the United States called “the tyranny of the majority,” meaning that the majority decides everything, including the rights of minorities and individuals.

Professor Jacob Talmon, in The Origins of Totalitarian Democracy, demonstrated how in the twentieth century majoritarian democracy be- came totalitarian. Adolf Hitler was elected democratically in a fair election. He formed his coalition according to democratic norms and ended democracy in a democratic way. And despite the modern mystic faith that “all human beings desire freedom,” there can be little doubt that, even in fair elections, Stalin, Mao, and Castro would have been elected democratically by the residents of their respective countries.

Erich Fromm’s Escape from Freedom should disabuse us of the popular idolatry of the “human spirit yearning to be free.” So should experience. Recent polling indicates that up to 30% of adult Russians would still vote for Stalin despite his well-documented atrocities. Even critics of Putin’s authoritarian methods acknowledge he is more liberal than 70% of his fellow Russians. And in the United States, large segments of the population view constitutional objections to the “Patriot Act” as un-American—even treasonous. Human and civil rights have always been the concern of a minority, and it has been the job of the nondemocratic courts to preserve and protect these rights against the fears, passions, and prejudices of the majority.

Constitutionality and constitutionalism are not synonymous. Constitutionality refers to what is legitimate according to a constitution. Constitutions per se do not have to reflect the principles of constitutionalism. If the Constitution of Nazi Germany stated it was permissible (even a duty) to kill Jews, then killing Jews was in conformance with constitutionality and was by definition constitutional. In common usage in the West, constitutional refers to the prerogatives and powers of governments, the rights and behaviors of individuals, and the laws of society that are in conformance with the principles of constitutionalism.

Democracy, therefore, is only a positive cultural value when it expands constitutional protections; it has no value in and of itself. Fair elections are only positive when they take place within a democratic tradition dedicated to expanding constitutional protections; they have no value in and of themselves.

The true moral chronicle of human civilization is the ongoing democratization of constitutional protections as they are afforded to an ever widening range of human populations. This has been the past history of human civilization and I believe must also be the future history of human civilization. Whatever retards the march of constitutional protections—whether by dictator or by democratic majority— is iniquitous.

Fair democratic elections do not obligate us to respect “the will of the people” if the consequences are the reduction of constitutional protections. In the Gaza Strip, Hamas was elected in fair, democratic elections. The consequences were the lessening of constitutional protections for women, religious minorities, and political minorities.
Must we really “respect” these results? Should we have respected the will of the German people in electing Hitler? A majoritarian strain in American history respected Jim Crow because it was “the will of the people.” History has shown that majorities can be as vicious, ruthless and indifferent to human suffering as any psychopathic dictator.

A HISTORICAL OVERVIEW OF CONSTITUTIONALISM INTRODUCTION

It is one of the axioms of good futuristic methodology that to know where we are going and could possibly go we must first examine where we are and how we got here. For futurists, “history matters”! By applying historical analogy, along with logic and imagination, to general trends we can do a respectable job of imagineering possible alternative futures. (I stress possible, because futurist visions that contradict the laws of physics, historical trends, human nature, or the political art of the possible in modern democracies do a disservice to our profession.)

A BRIEF HISTORY OF CONSTITUTIONALISM

THE STOICS AND THE HEBREWS CREATED THE FIRST CONSTITUTIONALIST GENES, WHICH HAVE MUTATED AND EVOLVED OVER THE CENTURIES. THE NAT- URAL LAW DOCTRINES OF THE STOICS PROPOUNDED UNIVERSAL IDEAS OF INDIVIDUAL WORTH AND BROTHERHOOD. THE HEBREW BIBLE CLAIMED THAT EVERY HUMAN BEING IS A DESCENDENT OF ADAM AND EVE. DURING THE ENGLISH
PEASANTS REVOLT IN THE FOURTEENTH CENTURY, THIS WAS CITED AS EVIDENCE THAT ALL HUMANS WERE BROTHERS AND SISTERS, AND THUS NONE SHOULD BE MORE PRIVILEGED THAN ANOTHER. THE BIBLICAL CONCEPT THAT WE ARE ALL CREATED IN THE IMAGE OF GOD IMPLIES THAT WE ARE ALL EQUAL IN THE EYES OF GOD AND CONSEQUENTLY WE SHOULD CERTAINLY ALL BE EQUAL IN THE EYES OF HUMAN LAW. THESE STOIC AND HEBREW ANTECEDENTS BECAME SELF-EVIDENT TRUTHS IN THE AMERICAN DECLARATION OF INDEPENDENCE: “…ALL MEN ARE CREATED EQUAL (BEFORE THE LAW) AND ENDOWED WITH CERTAIN UNALIENABLE RIGHTS.…”

The Stoic/Hebrew legacy became the cultural property of Western civilization, modifying, developing, and evolving over the centuries. The Catholic Church democratized sanctity by combining the Stoic and Hebrew traditions. Every human being had a sacred soul— even Jews and Indians—and this made them human. The immediate expression of this belief had horrific consequences. It became the moral duty of the Church to “save souls” from hell—thus the rationalization for the Inquisition and imperialism and their assorted tortures and slaughters: “We will cause you terrible but temporary physical pain in this temporal world in order to save your soul from even more ghastly eternal pain in the eternal world.”

But the antidote for these atrocities was also implicit in their causes. For the church, unlike “pagan” religions and even Greek civilization at its most glorious, was forced to recognize the humanness of the “other” by virtue of their sacred soul. For most Greeks (even Aristotle) the “other” was less than human. Thus we might say that while the Greeks “invented” the framework of constitutionalism and democracy; it was the Hebrews who “invented” the content.

The Reformation democratized belief. All believers had an unmediatedconnection with God, with no need for the intercession of an aristocracy of Church theologians or priest practitioners. This became a major driver in the development of Western individualism.
The individual had to find his or her way to God. This required everyone to read the Bible. The printing press and cheap mass-produced Bibles made this possible. This marks the beginning of universal literacy. But by the very nature of the human mind, people understood the Bible in different ways. People of like mind began to form their own churches and thus the plethora of Protestant denominations.

This had several consequences of constitutional significance. Religious pluralism and the dogmatism inherent in religious belief resulted in the Wars of Religion, which in some areas of Europe took as many lives as the bubonic plague. The reaction to these horrors was the (secular) Enlightenment ideology of tolerance, as well as the objective need for Europe to develop constitutionalism in order to institutionalize tolerance and assure internal social stability.

A concomitant driver was the rise of the commercial state, first in Holland and then in Tudor England. As Weber and Tawney have demonstrated, Protestantism was more amenable to commerce because of its individualist character. Commercial interests often caused Protestant businessmen to subsume their religious inclinations and prejudices to their economic interests.

Commerce is tolerant for the simple reason that it is bad for business to kill your customers or your suppliers because they are of another faith. Commerce became one of the major drivers for the democratization of constitutional protections. The Jews of New Amsterdam were protected from the anti-Semitism of Peter Stuyvesant by the intervention of the Dutch East India Company. Holland had become a haven for Spanish Jews fleeing the Inquisition, despite the protestations of the Calvinist Church. The good Calvinist burghers thought the Jews were good for business and that the Church should mind its own business. The Puritans stopped hanging Quakers when trade between Massachusetts and Pennsylvania became an economic mainstay.

The Inquisition and expulsion of Jews and Arabs transformed Spain from the richest to the poorest country in Europe and Hollandinto the richest. The expulsion of the Huguenots retarded the economic development of France and stimulated the economic development of England. Idi Amin’s expulsion of Uganda’s Indian minority
impoverished his country and enriched England. The slower economic development of the American South in comparison to the Northern states is in part attributed to the fact that they absorbed fewer immigrants. Thus, constitutionalism becomes an economic value, not just a moral one. Throughout history, economic interests
have opposed the impulses of cultural purity and furthered the march of constitutionalism. What part, then, might globalization play in the future of constitutionalism?

The Reformation also gave birth to Anabaptism, which had direct and indirect effect on other Protestant denominations. Anabaptism is constitutionalist in its theology. Baptism only has salvation value if it is made of one’s free will—thus their advocacy for adult Baptism. Free will evolved into freedom of conscience. It was meaningless to force someone to practice a faith he or she did not freely choose. Of the 13 colonies, two—Rhode Island and Pennsylvania—were founded on the principle of freedom of conscience by individuals who themselves were not Anabaptists. Roger Williams, refugee from Puritan intolerance in Massachusetts and the founder of Rhode Island, famously said, “forced prayer stinks in God’s nostrils,” and Quaker William Penn established his proprietary colony on the principles of religious pluralism and tolerance at the very outset. Rhode Island welcomed Quakers, Jews, and Catholics, and Pennsylvania welcomed anyone who worked hard and obeyed the law.

The printing press and the spread of literacy helped secularize the democratization process by making knowledge more accessible. Without the printing press, not only the Reformation but also the Renaissance, Scientific Revolution and Enlightenment would not have occurred

THE ENLIGHTENMENT

If the Catholic Church democratized sanctity and the Reformation democratized belief, then the Renaissance, Scientific Revolution, and Enlightenment democratized (and secularized) knowledge. The democratization of knowledge depends on its being secularized (taken out of the hands of dogmatic authority) and might be the greatest constitutionalist development in history. The enabling of knowledge eventually enables the perception of one’s rights.

Modern constitutionalism derives entirely from the Enlightenment.

The Founding Fathers of the United States were all Enlightenment men. Almost all were Deists and would have been amused to discover that they founded the Republic on Judeo-Christian values. Some were indifferent to these values (Hamilton), others were contemptuous (John Adams and Tom Paine), and some (like efferson) had little respect for the clergy but wisely kept their opinions to themselves.

It is the secularism that enables constitutionalism; indeed, constitutionalism is secular. Freedom of conscience (which includes freedom of religion as well as the freedom not to believe) can only exist within a secular framework—it cannot within a religious framework.
The recent disingenuous claim that “we are guaranteed freedom of religion not freedom from religion” is historically and logically absurd. You cannot be free unless you also have the choice to be free from.

THE ENGLISH SPEAKING WORLD

England and the United States are central to the history of constitutionalism. The Magna Carta is the first written document limiting the power of the sovereign, compelling him to recognize that he is bound by the “Common Law” like every other Englishman. This is neither a democratic document nor a modern one. It is a reaffirmation of the feudal rights and prerogatives of the English nobility visà- vis the king. It is a reaffirmation of the social contract of feudal society. Yet it became a foundational document that immunized England to a great degree from the absolutist tendencies of “divine right” that became dominant on continental Europe centuries later.

In conjunction with the special character of the English Reformation and the transformation of England into a commercial state under the Tudors, it became a keystone in the development of Parliamentarianism and constitutionalism in England. The English Reformation reinforced the common law/Magna Carta tradition. Anti-clericalism in England had been rife for centuries before Martin Luther. John Wycliffe (1320-1384) translated the Bible into vernacular English more than a century before Luther.

Anticipating Luther, he taught that the Church was the community of the faithful, not the institutions of the Church of Rome. His disciple, Jan Hus (1372-1415) in Bohemia, was burned at the stake for similar beliefs. The reason the Reformation did not take off with Wycliffe and Hus was because they had no printing press to mass produce inexpensive Bibles, and they worked in a weak commercial context with no powerful potential allies. How might cheap mass-produced computers and the rapid spread of globalization facilitate both the development and the constitutionalization of the underdeveloped world in the future?

Wycliffe’s followers (the Lollards) produced a document called “The Twelve Conclusions of the Lollards” (1395). Two have constitutionalist significance. The first rejects the accumulation of temporal wealth by the Church. Years later, when Henry VIII confiscated the monasteries in England, much of the population supported him. The sixth calls for separation of Church and State.

In 1381, Lollard Priest John Ball—a leader of the Peasants’ Revolt— said that we are all descendents of Adam and Eve and are brothers and sisters, and thus none should have more privileges than another. The translation of the Bible into vernacular was social dynamite: If all were created in the image of God, then all are equal in the eyes of God and should be equal in the eyes of man’s law.

The Lollards were forerunners of the Levelers who, during the English Civil War, supported constitutional principles such as popular sovereignty and equality before the law. This in a way represented a emocratization of the Magna Carta tradition. When constitutionalism and an expectation of the democratization of constitutionalism have become internalized into the very soul of a nation, when they become cultural assets of that nation and not only external political scaffolding, then they have triumphed. This is a key when looking to the future. The Weimer Constitution failed not because it was poorly written but because it had no resonance in the history and culture of Germany. Russia is now faltering in its attempts to be a constitutionalist state because its 1,000-year history contains nothing that can be referred to. What then are the cultural assets of nations and religions that can be appealed to in order to further the march of constitutionalism in the future?

The confiscation and sale of the monasteries in England helped create a substantial class of free landholders (yeomen). By weakening the Church of Rome, Henry VIII inadvertently strengthened the growth of middle-class freeholders and merchants, who were the taxpaying backbone of England and who dominated Parliament.

Charles I was beheaded because he betrayed every component of English tradition. His absolutist tendencies violated the principle of limitation of power in the Magna Carta, as well as natural rights deriving from the Bible. Because of this, he was forced by Parliament to accept the Petition of Right (1628), which, among other things, confirmed the principles that taxes can only be levied by Parliament (which represented the taxpayers), that martial law and quartering of troops may not be imposed in time of peace, and that due process (trial by jury) and habeas corpus are to be respected. When George III and Parliament ignored these restrictions with respect to the 13 colonies in the 1770s, they ran into a bit of trouble.

Even the Restoration of the Crown following Cromwell’s dictatorial rule did not “restore” everything. Charles II, wiser than his father, kept his head by deferring to Parliament. But his successor, James II, had absolutist tendencies and was deposed in a relatively bloodless coup called the Glorious Revolution (1688). He was replaced by William and Mary at the invitation of Parliament, on condition that they sign a Bill of Rights (1689) that affirmed trial by jury, due process of law, no cruel punishments, no excessive bail or fines, the right to bear arms, the right to petition government, and no taxation without Parliamentary approval. This was accompanied by the Act of Toleration (1689), which granted limited freedom of religion. This marks the official beginning of constitutional monarchy.

In late 1689, John Locke wrote his famous Two Treatises of Government, the second of which was a post facto philosophical justification for the overthrow of unjust government. Locke was the intersection of three modes of thought: the English, the Puritan, and the Scientific. His Enlightenment concepts of natural rights deriving from natural law were greatly influenced by his close friend Isaac Newton. They were both members of the Royal Society.

It is claimed that Jefferson had Locke’s essays on his desk when he was drafting the Declaration of Independence. The United States of America is a product of the English constitutional tradition, Enlightenment values, Reformation individualism, and the commercial experience of the colonial period. The colonies had been 13 schools of self-government, had expanded constitutional concepts beyond the mother country, and were more democratic in that a higher percentage of men were eligible to vote. They had achieved 60% literacy—the highest in the world at the time.

The United States has also had many majoritarian moments. Before the American Civil War, the term popular sovereignty meant that the residents of U.S. territories should decide by majority vote whether slavery would be allowed in the territory—that the White majority would decide the human rights of Black people. Majoritarianism was reflected in certain aspects of the Progressive Movement, especially in regards to Jim Crow. The Progressives said if the White majority wants it, then democratic principles require it. Woodrow Wilson, the great “progressive,” introduced Jim Crow into the American civil service on the basis of this principle.

But on the whole, the history of the United States has reflected the ongoing democratization of constitutional protections, beginning with White man owning property, to universal White men’s suffrage, to Black men’s suffrage (at least in principle), to women’s suffrage, to the end of Jim Crow. Suffrage, the right to vote and decide who sits in government, is the vital power given to individuals and minorities to protect their rights.

The courts themselves have been active rather than reactive in expanding and deepening the constitutional protections of an evergrowing list of minorities and of rights themselves. How might domestic and international judiciaries further the cause of constitutionalism in the future?

Continental Europe has been essentially majoritarian (usually placing the state over the individual) throughout its history. However, the evolution of Enlightenment values and the inherent contrarianism of western European culture have persistently driven Continental Europe toward constitutionalism and subsumed its majoritarian instincts.

Latin America was not so “lucky” with its cultural heritage. There are no “rights as a Spaniard”—no constitutional tradition. The Inquisition destroyed the commercial class and inhibited the growth of a freeholder yeomen class. Spain had no Reformation, was anti-Enlightenment, and had a low level of literacy. The Spanish colonies had no experience of self-government (let alone constitutional self-government). Remember, when 1776 rolled around, Virginia and Massachusetts had been governing themselves for a longer period of time than has elapsed from the Civil War until today. When trying to formulate a constitutionalist strategy for the future, we must keep in mind that both history and culture matter.

THE MARCH OF CONSTITUTIONALISM IN THE 20TH CENTURY

Constitutionalism defeated the three great totalitarian movements of the twentieth century: Fascism, Soviet Communism, and Nazism. I predict it will also prevail over Jihadism and Chinese Communism in the twenty-first century.

Let us review the record since World War II. In 50 years, the United States has gone from lynchings to a Black president. In the 1950s, if someone had suggested there would be Black quarterbacks in the NFL, they would have been committed to a mental hospital. Today, we have a Black president (and lots of Black quarterbacks). We are not only talking about a formal political development. We are talking about the cultural and sociological progress of the constitutional spirit. We are talking about the democratization of the merican soul.

We must also note the subversive quality of international pop culture and consumerism and their contribution to the democratization of constitutionalism and the expansion of constitutional protections across the globe. It wasn’t for nothing that Nazis, Communists, Fascists, and now Jihadists have pilloried American popular culture. They recognized its subversive nature in regards to authority.

Technology and constitutionalist progress also go hand in hand. The media (movies, radio, TV) driving popular culture and mass sports created Black icons, in effect humanizing Blacks. Could there have been a Martin Luther King without a Jesse Owens, Joe Louis, or Jackie Robinson? Could there have been a Barack Obama without Bill Cosby and Oprah Winfrey? How would the civil rights movement of the 1950s have fared without the television images of dogs and fire hoses being used on innocent Black women and children and the instinctive disgust this engendered? Television and satellite dishes also contributed to the end of Communism in Eastern Europe.

The list of other constitutionalist victories since World War II includes:

• The transformation of Japan and German from militarist to constitutionalist
  states.
• The growing rights of women deriving from political action in the West and the education of women elsewhere.
• The European Union first absorbing former fascist Spain and Portugal and then most of the former Soviet Communist satellites.
• The end of Apartheid in South Africa.
• The eclipse of rule by military dictatorships in most of Latin America.
• South Korea and Taiwan evolving into parliamentary democracies from their fascistic origins.
• The growth of institutions of regional and international governance, such as the WTO, OECD, EU, and NAFTA. Joining such organizations requires different elements of internal constitutional reform: If you want to join our club, there are rules.
• The spread of property rights to Communist China. Rights are viral and infectious. It took several centuries in Europe, but property rights for the commercial classes soon evolved into political rights for the bourgeoisie. As the middle classes grew, so did the scope of rights. The skilled working men produced by the Industrial Revolution used their indispensability to the system to gain their rights and trigger the labor movement fighting for rights for the working man. Women after the two world wars did the same.
• The growing number of global nomads due to globalization helps spread the infection of constitutionalism. A half a million Chinese students studying at universities in the United States are helping to spread the virus of democracy when they return home. People cannot unlearn what they have learned.
• Cross-border issues such as water and environment have required constitutional frameworks of international governance.
• The increased speed of change and innovation requires the decentralization of authority and a culture of people thinking for themselves. This has constitutional implications.

IDEOLOGICAL CONFLICTS—MARXISM, UTOPIANISM, AND UTILITARIANISM

Constitutionalism works because it makes peace with human imperfection and is a self-correcting system that abjures perfection and tries to make things a little bit better. Categorical certainty and the definite article (the problem, the solution) are the biggest enemies of clear thinking and civilized discourse which are the necessary elements of a society characterized by constitutionalism.

The problem is that constitutionalism appears wimpy (middle class, middle aged, and boring) when confronting perfectionist ideologies and their exciting visions of the future. But history shows that Marxism or utopianism, or any form of religious or secular perfectionism, will inevitably lead to totalitarianism. Marxism and utopianism are essentially majoritarian. Neither is psychologically amenable to the slow, self-correcting, ongoing improvement mechanism of constitutionalism, which they disparage as “selling out.”

Historically, utopianism has had a “my way or the highway” element about it. The advocates of a particular utopia adopt a mode of discourse that might be termed intellectual and moral categorical certainty. In this respect, utopians—right or left—are little different from Marxists in their temperament and contempt for those who cannot see the “truth” of their vision.

The pretensions of Marxism to represent the concrete logic of history in opposition to the abstract formal logic of pre-Hegelian philosophy became, at its pinnacle, a performance of dialectic hairsplitting that would have embarrassed medieval scholastics. Constitutionalism, on the other hand—which was condemned by Marxists as a bourgeoisie abstraction defining abstract rights—was inherently designed to attune itself to the ever-changing human condition and thus has become the most manifest expression of concrete logic in human history.

It is an infantile Marxist argument to dismiss constitutionalism because it was created by the bourgeoisie for the bourgeoisie. While this is historically true, workers, women, different races and religions, used this bourgeoisie invention of constitutionalism to advance and enhance their own humanity. Should we say that, since the zero was invented by brown-skinned Hindus and given to Europe by Arab Muslims (both of whom used it for religious reasons), white-skinned secular Europeans should not use it? Just as the zero is a universal contribution of a particular culture to all of human civilization, so is constitutionalism a universal contribution of a particular culture to all of human civilization.

Marxism ultimately failed in its confrontation with constitutionalism because it was inflexible in its internal logic and did not recognize the truth of Heraclitus that history is like a river constantly changing. Marxism did not anticipate quantum theory or chaos theory or indeterminacy and was contemptuous of the human will. The fact is that nothing is inevitable except the end of the solar system. Constitutionalism is the great modifier of ongoing and constant change—the thermostat that enables human will to modify and adapt. It is a necessity of social evolution.

Neo-Marxists, such as Herbert Marcuse (1898-1979), were greatly distressed by the very essence of constitutionalism—its ability to accommodate and adapt itself to new forces, interest, and groups. This is condemned as co-option. In his 1965 essay “Repressive Tolerance,” Marcuse argues that ideas contrary to (his concept of) progress should not be tolerated, and people espousing those ideas should be suppressed. He calls liberal ideals of tolerance—such as freedom of expression—repressive because they give people a false idea that they are really free. In other words, for Marcuse and his ilk, the fact that relative justice can be achieved bloodlessly is evil because it obviates revolution—which is the only way to achieve true freedom. Instead of revolution to achieve justice, he called for the suppression of relative justice to set the stage for revolution. That constitutionalism had no trouble in shrugging off this silly position is no surprise.

Utilitarianism also opens the door to majoritarianism. The concept of the greatest good for the greatest number (an anti-constitutionalist concept if there ever was one) could have been cited by Hitler to justify his policy of exterminating the physically and mentally handicapped to eliminate their economic and social burden on society. This would have been the greatest good for the greatest number.

THE FUTURE OF CONSTITUTIONALISM

WE HAVE SEEN HOW PHILOSOPHY, RELIGION, GREED, HISTORY, CULTURE AND TECHNOLOGY AS WELL AS NATURAL, POSITIVE AND HISTORICAL LAW HAVE CONVERGED TO GENERATE A GENERAL CONSTITUTIONALIST TREND IN HISTORY. HOW MIGHT THESE FORCES BE USED TO ASSURE THE GLOBAL TRIUMPH OF CONSTITUTIONALISM IN THE TWENTY-FIRST CENTURY?

Is international governance to be majoritarian or constitutionalist? That is the question. Are countries with minority populations and cultures to be considered as “international persons” with unalienable rights or will their rights be overwhelmed by an undifferentiated mass of “voters,” voting directly for a world government? Will the “tyranny of the majority” in the UN General Assembly continue its practice of voting Bills of Attainder for unpopular countries and causes or will some kind of global constitutionalist framework be formed?

THE DYNAMIC RATE OF CURRENT TECHNOLOGICAL AND ECONOMIC CHANGE COMPELS THE DECENTRALIZATION OF AUTHORITY AND POWER—NOT FOR IDEOLOGICAL REASONS BUT FOR SURVIVAL REASONS. BUT IT ALSO REQUIRES EVER-INCREASING COOPERATION BETWEEN THESE CENTERS OF POWER—ALSO FOR SURVIVAL REASONS. THIS REQUIRES GLOBAL INSTITUTIONS TO WHICH ALL ARE LIABLE. THESE INSTITUTIONS MUST BE LIMITED BY CONSTITUTIONALIST PRINCIPLES IN ORDER TO ENABLE THE VARIOUS CENTERS TO THRIVE.

There are different paths to constitutionalism that must reflect the history and temperament and intellectual imagination of each individual culture. For example, the United States is structurally secular, ideologically neutral, and sociologically one of the most religious countries in the world. Britain, on the other hand, is structurally theocratic (the Queen is both head of state and head of the state church), ideologically neutral, and sociologically mostly post-Christian. France is ideologically secular (as the formal state ideology), sociologically mostly post-Christian, and structurally mixed (unlike the United States, it subsidizes religious institutions). Turkey is, like France, ideologically secular (as the formal state ideology) but, like the United States, sociologically religious and, like France again, structurally mixed. All of these examples reflect a particular history that cannot be ignored. But constitutionalism can survive and flourish in these and other societal structures.

UNIVERSAL ISSUES THAT AFFECT THE DEVELOPMENT OF CONSTITUTIONALISM

Education can be a great driver of constitutionalism. There is no guarantee, of course. The behavior of professors, scientists, philosophers, lawyers, and engineers under the Nazi regime is not exactly a good poster child for the civilizing attributes of education. But, in general, over the course of history, literacy and education have been major drivers for the progress of constitutionalism.

Education is the key to creating a global middle and professional class as well as achieving the worldwide equalization of rights and status of women. The middle class has been the primary driver of constitutionalism in the past. I suggest that the rights of women will be its primary driver in the twenty-first century. Indeed, in another context I have called the twenty-first century “The Women’s Century.” In the non-Western world, the advancement of women is the key to the development of a middle class. This is certainly so in Africa and
the Muslim world.

The media and the glare of negative public relations and world opinion should also not be underestimated. Sometimes external pressure can boomerang when applied crudely in a discriminatory fashion. But on the whole, media glare has played a positive role for human rights. Might not the Iraqi Kurds have been the victims of genocide but for CNN broadcasting their plight? Some think so. Some go as far as to say that if there had been television during World War II there could not have been a Holocaust.

Bureaucracy is another constitutional issue. It is a universal phenomenon, and no complex human activity (public or private) can be accomplished without it. The problem is that it has no constitutional standing, yet it impacts on our daily lives more than the three branches of government. Its place in constitutionalism is dualistic. On the one hand, it is a stabilizing constitutional force by being the bridge between old and new governments. Yet, it is a prominent violator of individual rights. “You can’t fight City Hall” encapsulates this. In other words, you can’t fight the bureaucratic jungle, so you might as well give up. What is required is some kind of instrumentality that enables real-time responses to bureaucratic infringements on individual liberties, rights, and prerogatives of the individual citizen so that you can fight City Hall.

Because bureaucratic infringements are fundamentally trivial in comparison to the general fights for human rights (having to do with getting business licenses, improving your property or your home, overcharging on taxes, etc.), they are unlikely to get human rights activists excited. They can be likened to termites nibbling away at the foundations of everyday individual autonomy. This may be even more dangerous in the long run, for they make citizens fearful of their government and officialdom and inhibit the willingness to express one’s opinion for fear that the bureaucracy will take revenge. This is particularly true in the undeveloped world, where it often takes hundreds of days to get the simplest license legally. The resultant corruption makes a mockery of constitutionalist rights and is a major inhibitor of economic development.

Privacy is a vital component in a constitutionalist society. Without acknowledging that a private sphere is a categorical necessity of human freedom and a basic self-evident right, it would be impossible to sustain a constitutional democracy. To argue otherwise because the Constitution does not specifically cite privacy as a right is disingenuous. This disingenuous argument shows the genius of the Ninth Amendment,7 which was James Madison’s antidote to the fear of unmentioned rights not being recognized. The private sphere is the very foundation upon which life is made worthwhile, liberty made possible, the pursuit of happiness facilitated. Orwell’s 1984 is a vision of society without the right to privacy.

How might constitutionalism progress in non-Western cultures?

It is always best to progress on the basis of indigenous cultural assets—values and customs that are familiar and comfortable. The American Founding Fathers were fighting for their centuries-old rights as Englishmen as they found common expression in Enlightenment philosophies and Reformation individualism.

But for a civilization with cultural self-confidence, there is no shame in borrowing the values of another culture. Every great culture in the world has been a borrower. There would have been no uropean Renaissance or Scientific Revolution without the Arab philosophical, mathematical, and scientific contribution. The Arabs themselves had borrowed from the Hindus, the Byzantines, the Persians, and the Chinese—in fact the Caliphate might be termed the greatest cultural entrepôt in history. Openness to other cultures is itself an indigenous cultural asset.

The ability to discern analogies with other cultures is useful. Following are some speculations as to how non-Western cultures might constitutionalize in the twenty-first century.

India has been a constitutional democracy since its inception and has been proactively trying to reform its caste system, educate its people, and provide women with equal rights and opportunities. Its religious pluralism, like Europe in the seventeenth and eighteenth centuries, requires it to constitutionalize even further in order to guarantee social stability. Its integration into the global economic system over the past 20 years and its very large overseas communities have stimulated ever greater concerns for human rights and constitutionalism.

Latin America, with some obvious exceptions, has been increasingly internalizing the Enlightenment heritage of Europe and becoming part of the global economic system. It is also an ethnically diverse continent. It seems to me that the constitutionalist process is irreversible.

CONSTITUTIONALIZING THE MUSLIM WORLD

Islam is the great wild card in speculations about the possibilities of constitutionalization. I, for one, am optimistic. This is because Islam is part of the monotheistic inheritance that has given us two fundamental constitutionalist concepts. We are all made “in the image of God” and we are all descendents of Adam and Eve.

Equality before God is inherent in Islam. Its most radical expression is the Haj to Mecca where all pilgrims must dress alike to avoid differentiation between class, race, or nation. The Haj, joined with certain Islamic traditions that define the inherent [unalienable] rights of the individual human being (probably derived from Stoic concepts about natural rights)—as well as the proper function of leadership being to serve the people—indicates that being optimistic about the possibilities of the development of constitutionalism in the Muslim world is not Pollyannaish.

Furthermore, Mohammed is the only founder of a major religion who was a businessman. He would have found nothing anti-Islamic about globalization. Indeed, the golden age of Islam was one of unprecedented cosmopolitan globalization bought about and dominated by Islam.

Self-criticism (a fundamental component of the constitutionalist temperament) coming out of the Muslim world in the last couple of years is encouraging. It derives from the tradition of ijtihad, which is the attempt of Muslims to arrive at a solution to a problem through the exertion of independent, critical reasoning. It literally means conducting a jihad with your own conscience, intellect and inherited beliefs. Ijtihad has been the key terminology through which reformist Muslims have articulated their visions for over a thousand years.

Muslim women continue to assert their inherent value as persons not conditional on the approval of men. Some of the most trenchant self-criticism of Islamic society has been coming from Muslim women. Women with high-school diplomas and college degrees, who are increasingly involved in the modern economy, will not for long accept an inferior status. In Israel, 20% of Muslim women over age 30 are still single (as opposed to less than 10% in the Jewish sector). These women are for the most part well-educated and are, in effect, telling their male co-religionists that “if you want to get married you better change your attitude towards women.” In the extension branches of American universities in the Gulf states, women outnumber men by 3 to 1.

CONSTITUTIONALIZING AFRICA AND CHINA

Every African culture is its own civilization. Unlike Christendom, Islam, India, or China, it has not inherited a unifying meta-civilization. This is probably one of the reasons Pan-Africanism failed. Given the extreme pluralism of Africa, constitutionalism itself might become the meta-civilization of Africa. Are the European wars of religion analogous to the ethnic strife in Africa, and do they require the same constitutionalist medicine? Time will tell. Here, I believe that a futurist vision of a constitutionalist Africa in 2030 could play a very valuable part.

China’s awesome economic progress over the past 30 years has turned it into a commercial state de facto. Its present stage of development might be compared to Tudor England—a powerful and growing economic class in variance with a powerful and authoritarian monarch (the Communist party). Joining the WTO has already forced the Chinese state to adopt policies that favor the expanding economic class. Recently, shortages of labor (especially skilled labor) have appeared in certain sectors of the Chinese economy. This will empower the working class. The growth of the economic class and the empowerment of the working class are the primary building blocks of constitutionalism.

CONCLUSION: RECLAIMING NATURAL LAW

THE DECONSTRUCTION OF THOMAS JEFFERSON’S “SELF-EVIDENT TRUTHS” HAS BECOME CHARACTERISTIC OF A CERTAIN KIND OF ACADEMIC SNOOTINESS. IT GOES LIKE THIS: “THIS MEANS THEY ARE TRUE BECAUSE WE SAY THEY ARE TRUE.” YET JEFFERSON MIGHT HAVE BEEN PRESCIENT IN ANTICIPATING THE NEVER-ENDING INTELLECTUAL TWISTING AND TURNING OF THE WORST ASPECTS
OF POSTMODERNISM BY AFFIRMING THAT CERTAIN TRUTHS MUST BE “SELF-EVIDENT”: THAT TO BE CIVILIZED HUMAN BEINGS WE MUST A PRIORI RECOGNIZE THE VALIDITY OF CERTAIN FIRST PRINCIPLES BASED ON NATURAL RIGHTS THAT DERIVE FROM NATURAL LAW.

Even if we believe it empirically impossible to prove natural rights—that rights do not exist in nature but are created by human institutions, as Jeremy Bentham would have argued—we are compelled to act “as if” rights are natural and self-evident. If rights are decided only by human institutions (even institutions constituted by a majority), then no rights are unalienable and there is no objective standard of morality. If X says lynching Black people is immoral, then Y can say, “Says who? My democratically elected institutions say it is quite okay.”

It is one of the paradoxes of modern thought that present advocates of natural law are thought to be reactionary, Catholic, conservative. Yet, think of the progressive causes that have been dependent on this “as if.” The opposition to slavery, equal rights for women, and the Nuremberg war trials are all dependent on the assumption of universal natural justice. If constitutionalism is to triumph in the twentyfirst century, then natural rights based on natural law must also be reclaimed by those on the left. Political discourse between left and right based on the common philosophical legacy of natural law/natural rights/constitutionalism might become more coherent and more civil.

Even science has certain axiomatic beliefs that cannot be proven empirically but without which there is no science: (1) the laws of nature are universal, and (2) the language of existence is mathematics. There is no way these assumptions can be proven empirically, but every scientist who gets up in the morning assumes them to be true, else he or she cannot work. So must the political scientist assume that natural rights based on natural law are true.

It may very well be that we may have to redefine the underlying philosophy of natural law/natural rights. Instead of biblical justification or natural law based on the physics of the eighteenth century, we might resort to a new theory of natural rights based on evolutionary theory. Evolutionary theory attempts to discern the primary survival mechanisms of every species. Some species produce millions of offspring at one time in order that three or four might survive. Others use a survival strategy of herds (or flocks of birds or schools of fish) so that, even when dozens or hundreds or thousands of individuals perish, the herds survive. Some animals hunt in packs, some alone, some fly, some are swift, some are powerful, and so on.

The two major survival instruments of human beings are the individual reasoning brain and organized society. The society that enables optimal freedom to individual human reason without threatening the stability of that society is the one that is most robust in the long term. The reasoning brain requires freedom of thought; freedom of thought requires freedom of speech, freedom of speech requires freedom of the press, freedom of speech requires freedom of assembly, freedom of assembly requires freedom of movement, and all of this requires a great degree of privacy.

Thus, we can reintroduce natural law/natural rights back into the fundamental discourse of constitutionalism.

NOTES

1.  ONE OF THE CULTURAL REFERENCE POINTS FOR THE FOUNDING FATHERS FEARS OF “THE TYRANNY OF THE MAJORITY” WAS THE MAJORITARIAN DEMOCRACY OF ANCIENT ATHENS VOTING TO PUT SOCRATES TO DEATH.
2.  The proper adjective for constitutionalism, not constitutional.
3. By the standards of consequentionalist and not deontological ethics.
4. Regarding the printing press we will often see how technology impacts positively on the development of constitutionalism.
5. Utopianism is not the same as utopian thinking, which is simply imagining possible better futures and how to get there. It is much more reflective of constitutionalism.
6. Bills of Attainder are laws especially designed to impose legal sanctions
   or disabilities on a particular individual or class of people. They have been unconstitutional in the Anglo Saxon legal tradition for centuries and are specifically banned in the English Bill of Rights and in the American Constitution.
7. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

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