A. Apollonius Cordus to Domitius Constantinus Fuscus,
and to all his fellow-citizens and all peregrines,
rgeetings.
First of all, apologies if I was short with you in my
previous message - as you may have noticed, I'm being
subjected to some rather unpleasant personal remarks
at the moment, and I realise that some of my
frustration got into the tone of my reply to you.
> One thing is the Constitution, that from now one
> IÂ’ll identify with a capital C,
> that being a formal legal document establishing the
> basic principles and
> procedures a country is ruled by and from which the
> magistrates of the country
> take the authority to rule and put in place
> secondary legal acts.
>
> One thing is the constitution, that being the sum of
> the principles considered
> preeminent in a given country and by whom that is
> ruled at a given moment,
> extrapolated by a series of documents like
> (primarily) the Constitution, and
> then the most important laws, the sentences of the
> higher courts and so on.
I'm quite content to accept that distinction, and
indeed I thought I had already made the same
distinction myself, but perhaps it was unclear. I
would add, though, that the constitution with a
lower-case 'c' comprises not only written laws and
judicial decisions but also conventions and agreed
principles.
> Only to the Constitution the concept of “flexible”
> and “rigid” can be applied
> properly as the concept of rigid Constitution
> implies that you can practically
> check if the system of rules can be changed by a
> specific procedure more
> complex than the one needed to change a normal law.
With this I disagree, and, to explain why, I'll first
unpack your argument into its constituent parts. One
is that it is difficult to check whether a
constitution is harder to change than other types of
law. This, I think, is not so: one could simply look
at the history of that constitution and see whether
there are any cases of an action which would have
sufficed to alter or overrule an ordinary law (or
convention, or principle) failing to alter or overrule
a part of the constitution; to double-check, one could
inspect the constitution itself looking for any
institution, mechanism, or criterion whose
participation is necessary for the constitution to be
altered but whose participation is unnecessary for the
alteration of other laws. A second component of your
argument is that a constitution cannot be flexible or
rigid if it is difficult to tell whether it is
flexible or rigid: this, again, strikes me as an
unfounded assumption, since it is rather like saying
that something cannot be white or black unless it is
known whether it is white or black. I know that case
is arguable on a deeper philosophical level, but from
the point of view of constitutional theory I don't
think we'll get very far by saying that things don't
exist if no one's looking at them.
> IÂ’ll even make a step forward and say that, on the
> other hand, a constitution is
> by definition always flexible because, in time, even
> the country with the most
> rigid Constitution imaginable (even the ones that
> have Constitutions derived
> from theological principles, by definition immutable
> in time) places at its
> side a mass of principles and concepts, not
> contrasting with the ones in the
> Constitution, that get to be considered
> constitutional, are more flexible and
> vary in time as the social and culture structure of
> the country evolves.
This is a fair point to a certain extent: it's true
that since all constitutions are likely to contain
some non-entrenched conventions which will constitute
flexible elements. This is not a proof that all
constitutions must be flexible and cannot be rigid; it
is merely a proof that 'flexible' and 'rigid' are
parts of a spectrum rather than mutually exclusive
categories. I'm sure you'll agree that a constitution,
or, if you prefer, a Constitution, can be more or less
rigid: one which can only be amended by a two-thirds
majority in each house of a bicameral legislature plus
approval in a referendum is more rigid than one which
can be amended by a simple majority in a referendum,
but both are rigid if ordinary laws may be amended by
simple majority in the legislature. So although all
constitutions are likely to be felxible in some parts
and to some extent, it is still possible to say that
one is, by and large, rigid, while another is
flexible.
There's a final point on this subject, which I've
mentioned before: perhaps you thought I was joking,
but it is a serious a logically valid point. It is
that a Constitution is a legal document, whereas a
constitution is a system - according to your own
definitions. Legal documents can be long, short,
poetic, rhetorical, detailed, general, and so on; if
you say that a legal document is flexible, you mean
that it is written on a piece of paper (or equivalent)
which is bendy. Systems, on the other hand, cannot be
literally flexible, but they can be metaphorically
flexible, meaning that it is easily changed or
reshaped. Clearly when we talk about constitutions or
Constitutions being flexible, we're using the latter
meaning, and that means that logic requires us to
apply the concept of flexibility to systems, not to
documents.
> The Constitution and the constituion, even if always
> related, sometimes are
> twins, sometimes are many times removed cousins and
> while I always stuck to the
> analysis of the Constitution and how the laws and
> decrees are in contrast with
> it, it seems to me you have moved from the
> Constitution to the constitution and
> back again, more than once and in a slightly
> confusing way, like when you
> address the Constitutional provisions of the America
> Constitution and then in
> the same mail do what is plainly a constitutional
> analysis of Nova Roman
> provision, or when you quote Polybius (who obviously
> was a fan of the
> constitution of Rome, yet just as obviously had no
> concept of Constitution and
> couldnÂ’t have it), to bring point to your line that
> Rome had a flexible
> Constitution. LetÂ’s keep the C and c divided :)
As I hope you'll see from my responses above, I have
consistently held clear in my mind in the distinction
between the system and the document: I think the
reason you didn't pick up on this may be that you have
been working with the assumption that constitutions
cannot be flexible or rigid and therefore whenever I
talk about a rigid or flexible constitution I must be
talking about the Constitution. But if you re-read my
previous messages, particularly the last one, you'll
notice that I generally say 'constitution' for the
system and 'constitutional document' for the document.
My discussion of the U.S. constitution was concerned
with the question whether rigidity is necessary better
than flexibility. In most respects, particularly the
means by which the constitution may be altered, the
constitution and the Constitution of the U.S. are the
same, and consequently I saw no need to make clear
which I was discussing. In the U.S., the fact that
something is written in the Constitution almost always
means that it is an accurate description of the
reality of the constitution; so I can talk about the
Constitution or the constitution rather indifferently.
When there is a significant discrepancy between the
two, as in Nova Roma, I took care to make clear which
I was talking about. When there is no Constitution at
all, as in the old Roman republic, I felt no need to
make such things clear since it should have been
obvious that I was not talking about the Constitution.
I can see why this may have created a confusing effect
across the full span of the e-mail, so I ought to have
been clearer; but I think if you re-read it now it
will probably make more sense to you.
> Prooceding from there, IÂ’ll even say that I stand
> with my opinion that the
> Romans had no idea of Constitution, a legal document
> having supremacy over any
> other legal document and defining the structure of
> the state and the principles
> ruling it, while of course itÂ’s since the Greeks
> that the antiqui had a concept
> of constitution.
Agreed.
> Following the same line, I do not think I did an “
> adopting a very narrow
> definition of 'constitution'” when I state that UK
> and New Zeeland have, in
> different degrees, no written Constitution: we are
> both right in our positions,
> I guess, once itÂ’s understood I speak of
> Constitution and you speak of
> constitution, but given I started the thread and
> always kept on it to a
> Constitutional level, I expected the answers to be
> in kind, hence the
> confusion.
Yes, though this is a slightly different question.
You've defined a Constitution as a single
constitutional document, so in that sense neither
country has a Constitution. However, they each have a
predominantly written constitution in that most of
their constitutional principles and norms are written
down in legal documents, judicial decisions, or
theoretical textbooks - just not in a single, supreme
legal document.
> Yet, again, I started this thread with a
> Constitutional analysis and that being
> my only interested, I will keep to it while you
> introduced instead
> constitutional perspectives that, truly, are not my
> concern and that I will not
> address unless they mix with Constitutional matters.
The reason I brought in questions concerning the
constitution is that these questions are crucially
important to the subject we're discussing. You see, a
legal document is not authoritative merely because it
is a legal document. There's no magic about the word
'Constitution' which means that if you write it at the
top of a document then everyone will automatically
obey that document. Let me illustrate with another
American example (at this rate people will begin to
think I'm American!): the U.S. Constitution says, "the
ratification of the Conventions of nine States shall
be sufficient for the establishment of this
Constitution between the States so ratifying the same"
- which basically means, "this Constitution will
become binding when 9 states approve it". Think about
that - it means that until the Constitution has been
approved, its contents will not be legally binding.
But hold on - if that's true, then the clause I've
just quoted isn't valid until it's been approved by 9
states. But if it's not valid until then, how do we
know when it will become valid if the only thing that
tells us is the clause itself? We go around and around
in circles. This example shows the limitations of a
Constitution: it cannot stand alone. The mere fact
that it claims to be supreme doesn't make it supreme.
What does make it supreme is the recognition of its
supremacy by the constitution: if it is a principle of
the constitution that the Constitution is supreme,
then it is. But that principle can never be embodied
in the Constitution - it must always remain outside
it.
This is the heart of what I am arguing: the
constitution of Nova Roma does not recognize the
Constitution of Nova Roma as supreme, because in the
constitution the tribunes have the power to permit the
Constitution to be overruled. I agree that the
Constitution of Nova Roma clearly intends the
constitution to be rigid; and I agree that if you read
the Constitution alone you would conclude that the
constitution is rigid. But the Constitution is set
within the constitution, and since the constitution
doesn't agree with the Constitution on the subject of
the Constitution's supremacy, it also doesn't agree
with the Constitution about whether the constitution
is rigid. Do you see why we can't set aside
constitutions for a separate discussion at another
time?
> And why the Constitution of any nation is the
> supreme authority of that state,
> given that most probably it has not been voted
> directly by the citizens and
> itÂ’s the only document affirming its supremacy? And
> even if the citizens had
> originally voted it, why should it be considered
> binding to the future
> generation, who didnÂ’t have a chance of expressing
> their opinion? :)
>
> Argh, Apollonie!!! That I wouldnÂ’t had expected from
> you. Following your line of
> thought the Constitution is not indeed the supreme
> document of the nation
> because itÂ’s authority is self-affirmed and
> self-referential, when itÂ’s indeed
> in the nature of any Constitution to be so.
That's absolutely right. The Constitution is only
supreme if the constitution treats it as supreme. In
most countries it does, but that's because in most
countries there exist institutions or mechanisms which
keep it that way. Those institutions or mechanisms - a
constitutional court, for example - are parts of the
constitution, not parts of the Constitution. The
Constitution may instruct that these things should
exist, but they are not *in* the Constitution - they
are in the constitution.
I could write a Constitution for Germany. But if the
constitution of Germany doesn't accept my Constitution
as the supreme legal document of Germany, it won't
have any force whatsoever. A country can have many,
many Constitutions at once, but only one constitution.
That's why it's the latter that we have to look at
first.
> Also, following your line, every single legal act we
> have enacted so far is
> void, given the magistrates were deprived of any
> authority in issuing them
> (being they derive their authority from the
> Constitution), the comitia were
> equally deprived of any authority in taking any
> decision (as they are given the
> power to vote by teh Constitution and is again the
> Constitution that state the
> results of teh Comitia are binding for every
> citizen) and the Senate as well is
> just a bunch of people meeting and assuming a title
> granted by them by a piece
> of paper of no real authority. Anarchy, is what you
> are suggesting. But I will
> take your lines as a dialectic provocation and
> nothing more, and I hope it was
> so indeed.
Not at all. My position is one which recognizes the
wider reality within whose context Constitutions and
laws operate. I know it's not something lawyers and
legal thinkers discuss very often, because in most
cases it's adequate to make an a priori assumption
that all laws are authoritative by virtue of their
being laws, and so on; but in a discussion of this
kind we can't get away with that assumption, because
it's simply not true. Laws derive their authority
from, on the one hand, the fact that the people accept
the unwritten principle that laws are binding, and, on
the other hand, the existence of institutions which
will, if necessary, use physical force to compel the
people to obey the laws. A law which is not accepted
by the people or enforced by the authorities is not
binding, even if it says it is.
Now, you mention the magistrates. They derive their
authority not from the Constitution but from the
constitution and ultimately from the people: they are
elected by the people, and are accountable to the
people, according to procedures and principles which
form part of the constitution. The comitia have the
power to create binding laws because they are the
assemblies of the people, and at the last ditch the
people will enforce them - through their elected
magistrates if possible, but, if not, in spite of the
magistrates. Why do the people have all this power?
It's not for any grand ideological reason, but for a
very practical one: the people as a whole outnumber
any individual or small group, and can if necessary
force them to accept the will of the majority. In the
old republic, the assemblies - particularly the
centuriate assembly - were the army in civilian
clothes, and their decisions were backed up with
military force. Ultimately, if all the people had
decided to abolish the senate or overthrow the
magistrates, it would have happened; so it was a
simple and pragmatic fact that the senate, the
magistrates, the assemblies, and all the other
elements which made up the constitution as a whole
system derived their authority ultimately from the
people.
> Indeed, we both know that the Constitution is the
> supreme document because
> (most) of the cives recognize themselves in what it
> says, because in asking for
> citizenship we implicitly (or even explicitly? I
> canÂ’t remember anymore the
> enrollment procedure, has been a few years)
> recognize its supremacy, because
> the whole nation is (sadly, sometimes only
> nominally) ruled by that and with
> continuous reference to that. Without going too much
> into legal philosophy, the
> Constitution is what Kelsen defined as grund-norme,
> from which stems the
> authority of all the restÂ… take it away, and you
> will have to start all over
> again.
That's precisely what I've been saying, with a single
exception: what you are describing is not the
Constitution but the constitution. The Constitution is
only a grund-norme if the nation treats it as such,
and the fact is that Nova Roma demonstrably does not
treat the Constitution as such: the tribunes have the
power to permit the Constitution to be overruled, and
they have that power because the people permit them to
exercise it.
> Nope, constitution can be changed, Constitution can
> be changed only in the way
> it allows itself to be changed. That acts have been
> put in place against it
> doesnÂ’t overrule the Constitution, but makes those
> acts unlawful. That people
> have obeyed them in the past and keep doing it just
> proves they have not been
> properly educated in constitutional matters or that
> the Constitution is not in
> line anymore with the constitution and should be
> changed by the means it
> provides to be changed.
You say the Constitution can be changed only in the
way it allows itself to be changed: as you'll be able
to guess, I disagree. The Constitution can be changed
only in the way the constitution allows it to be
changed. If the Constitution says it can be amended in
such and such a way, and the constitution accepts that
statement, then it is true in that political system;
and obviously if the constitution acknowledges the
Constitution as supreme then it will accept the
statement. But if the constitution doesn't recognize
the Constitution as supreme, it can decide how the
Constitution can be amended, or at can decide not to
bother with amending the Constitution at all and
simply ignore it instead, which is what has happened
in some cases in Nova Roma.
In case you're still not convinced, imagine this
scenario: the consuls propose a law to amend the
Constitution to create a new magistrate, the Cudetor,
whose job will be to design, mint, and sell NR coins.
The comitia approves the law. The consuls direct the
webmaster to amend the text of the Constitution
accordingly. The tribunes cast no veto. The people
voice no complaint. The webmaster makes the change. A
by-election is held, and a Cudetor is elected. the
Cudetor gets on which his or her job. Life goes on for
years and years and years. Now, perhaps you stand up
ten years later (don't as me why you didn't do it
earlier - maybe you were on a long holiday) and say,
'the existence of the Cudetor is unConstitutional,
because the Constitution was amended without the
correct procedure as laid out in the Constitution'.
But the official text of the Constitution now contains
an explicit job description for the Cudetor. The
office has existed for ten years. No one has ever
objected before. Were it not for the archives and our
own memories, we might not even know that there had
ever not been a Cudetor. So what happens now? Are you
seriously going to argue that the Cudetor is not an
established part of Nova Roma's political system? Are
you going to demand that every past act of every past
Cudetor be declared illegal and reversed? Are you
going to argue that the present text of the
Constitution is not the legitimate official text of
the Constitution?
> And in fact, I suggested way back that either the
> unCostitutional acts should be
> struck down or that the Constitution should be
> changed to be in line with the
> laws, if so is the will of the people. But to keep
> the Constitution as it is
> and at the same time laws that counter it.. no, that
> wonÂ’t do.
By whom should it be struck down? No one has the power
to do it without violating the Constitution you want
to protect. That won't do either. As for your other
suggestion, that the Constitution be updated, I would
be quite content for that to happen; it would make
things clearer and less misleading. But let's
recognize that if there's a discrepancy between the
Constitution and the constitution, that doesn't mean
that al sorts of things are invalid and illegal and
bad and must be shot at dawn and jumped up and down on
until they're flat like pancakes; the constitution,
which is the reality of the polticial system, carries
on as before, and no one's significantly worse off.
> And please let’s not start with “the people voted
> it, the people wanted it so,
> Constitutional or not, it will be so” because it has
> been the line usually used
> by the most infamous regimes to seize power and I
> shall never accept it as a
> valid argument point in a system that pretends to
> follow the rule of law.
I'm sure you'll have grasped by now that I'm making no
such argument, and there is no need to paint me as a
fascist as you seem to be shaping up to do.
> >The only evidence supporting the authoritative
> status of the constitutional
> >document is the fact that the constitutional
> document says it has authoritative
> >status.
>
> And again I hope that is just an argument taken to
> the limit and you are not
> really saying the Constitution isnÂ’t above the other
> laws. What then gives the
> US Constitution itÂ’s authority and supremacy, to
> make an example?
As I've explained, the U.S. Constitution derives its
supremacy from the U.S. constitution, which contains a
fundamental principle that the Constitution is supreme
and which also includes various institutional
protections and supports for the Constitution. Without
these, it would indeed be merely a piece of paper with
'trust me, I'm a Constitution' written on it.
> >The U.S. constitutional document states that the
> president will be elected by
> >state Electors. In practice the president is
> elected by the people of the
> >states, with the Electors having by convention no
> personal influence in the
> >matter. That's a pretty important difference.
>
> ItÂ’s not. The Constitution states not, as far as I
> remember from my compared
> constitutional law studies, how the Electors shall
> be nominated. What happened
> in this case was that the constitution didnÂ’t change
> the Constitution, but put
> at its side a principle (the universal suffrage)
> that does NOT contradict the
> letter of the Constitution. The presidents IS indeed
> elect by Electors who are
> elected (not in contrast with the constitution) by
> the people. A perfectly
> valid C/constitutional move.
I didn't say it's unconstitutional, simply that it's
misleading and demonstrates the way in which a rigid
constitution can create an increasing divergence
between the constitution and the Constitution.
But I must point out that if this is not
unconstitutional, then the 'blasphemy decree' isn't
unconstitutional. Your argument for its
unconstitutionality was, I think, that it restricts
the freedoms of expression and political action which
are implicit in the Constitution. Now, the
Constitution doesn't explicitly state that citizens
have the right to advocate and attempt to achieve the
diestablishment of the religio Romana, so those rights
are implied by, firstly, the general right of freedom
of expression which is mentioned, and secondly, the
absence of any statement to the contrary. Compare this
to the case of the U.S. electors. Firstly, the
Constitution gives them the general right to elect the
president; and secondly, it does not mention that
their freedom to elect the president is to be limited
or restricted in any way. Nonetheless, there is a
convention (and perhaps a law, I don't know) which
requires the electors to vote in a way which takes
account of the votes of the populace in the states. So
although the electors in principle retain the right to
cast votes in the election, their freedom to exercise
this right in whatever way they choose is
significantly restricted; in the same way, the
blasphemy decree allows citizens to retain in
principle the right to speak freely, but in practice
significantly restricts their freedom to exercise this
right in whatever way they choose. Now, I can
understand the view that this constitutes a breach of
the Constitution, and I can understand the view that
it doesn't; but whichever you choose, it must be the
same for both the electors and the blasphemy decree.
> Actually, your evidence proves exactly the contrary.
> The political system
> strives to be in line with the Constitution as much
> as it can. Yes, it
> occasionally commits mistakes and yes, right now the
> Constitution is imperfect
> because it has not the means to correct those
> mistakes past the 72 hours
> allowed for tribunician intervention, yet I think
> most of us here, and IÂ’m
> sure all the magistrates, find the statement “Yes,
> the constitution says
> something, but the system actually works in a
> different way” abhorrent.
Well, so far we've had two items of feedback on my
theory, one of which strongly opposes it (that's you)
and one of which strongly supports it (that's Senator
Palladius). I don't see any reason to assume that all
magistrates will find it abhorrent - perhaps you ought
to do a survey. In fact I can guarantee you that not
all magistrates find it abhorrent, because I'm a
magistrate and I don't.
Your characterize the examples of divergence between
the real political syste and the text of the
Constitution as 'mistakes', and argue that because
they are mistakes that shows that they are not genuine
divergences; but you haven't proved that they are
mistakes. Have you interviewed the tribunes of the
time? If not, I see no reason to assume that they were
incompetent - surely it's more charitable and more
polite to assume that they were doing their job
properly, considered whether the bits of legislation
you're worried about were acceptable or not, and
deliberately chose not to veto them. Or have you
evidence to the contrary?
> >What evidence does the constitutional document
> offer? That it says so, and it's
> >always right because it says so.
>
> And that is good to me and I hope for everyone else
> but, it seems, you. “The
> Constitution says so therefore that is right and
> must be put in place” sounds
> as perfectly good and sounding argument to me just
> as much as “If a law
> directly or indirectly goes against the Constitution
> or produces directly or
> indirectly effects that are against the
> Constitution, that law must be
> eliminated” and I hope to all the cives they both
> sounds just as good.
I'm worried by your willingness to found an entire
legal and political system on what you must surely
recognize to be a logical absurdity. I'm assuming that
you understand the concept of a circular argument, and
that you understand that a circular argument is not
sound logic. Is this correct? If not, please say so
and I'll try to explain in more detail why this is so.
> First of all, romans had a constitution, not a
> Constitution, but besides this
> little pointÂ… the success? The flexible constitution
> (small c) of the Romans
> was exactly the thing that allowed the republic to
> be eradicatedÂ… if that is a
> success to youÂ…
The constitutional factors at work in the collapse of
the republic were not as significant as you imply. The
problem was not any flaw in the constitution itself
but the collapse of the consensus that the
constitution ought to be observed. Any state may
suffer such a collapse, because as we've both said
above a constitution relies ultimately on its
acceptance by those who operate within it. The problem
was that the armies, and those in control of them,
began to disregard the constitution altogether and
base their actions not on constitutional principles
but on their own moral principles and personal
ambitions, backed up with military force. To be sure,
constitutional reforms could perhaps have prevented it
or delayed it - one possibility, suggested to me by my
former tutor Miriam Griffin, would have been to
legislate to take the power to distribute booty and
military pensions away from the generals and give it
to the senate - but such reforms would have been
harder to achieve if the constitution had been a rigid
one.
> ... My idea is to
> force the courts (and the people of Nova Roma) to
> practically face the
> unConstitutionality of some laws and then state
> “yes, the law is indeed against
> the letter of the constitution, yet we do not have a
> mean to make it right, we
> have to apply it and condemn you” and then I hope
> that the sheer injustice of
> it will force someone to do something. And then I
> hope that someone else will
> do the smae again so much that the courts will
> have to condemn so many people
> out of an unConstitutional law that someone will
> HAVE to do something following
> the Constitutional means provided or by changing the
> Constitution, again using
> the Constitutional means to do that.
Well, you could do that; but I find it hard to see the
difference between that idea and Ghandi's idea of
saying "yes this is the law, and yes I have broken it,
because I wish to show that it is an unjust law and
ought to be changed". That's an extremely respectable
strategy, and has a good chance of success, but it
makes very little difference whether you begin it by
saying "this law is unConstitutional and I have broken
it" or whether you begin it by saying "this law is
unjust and I have broken it".
> And the Lex Iunia de Iusiuranda and the decree about
> blashpemy are
> unConstitutional.
Or are they? See above.
Incidentally, I'm noticing that no one else is joining
in this thread, and I suspect few are reading it. If
that's so, it might be better for us to move it to the
Laws list and so free up some space in the Forum. If
you agree, just reply to me on the Laws list.
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