Foundational Elements of a Just Constitution (Part Three)

By Dr. Livingston Smith

The institutional framework of the political system is crucial, which means that constitutions, the basic framework, matter for what ultimately happens in the economy and the broader society generally. For example, where democracies function, it is their constitutions that provide the basic political structures, rules, and incentive systems concerning how governments are formed, their continuation, and the democratic guidance on how they come to an end. The constitution being the highest law, defines the rights, duties and relationships of the state and its citizens. The constitution has symbolic as well as real meaning to the identity of the nation-state.

In this series on the constitution and constitutional reform, I have been arguing that the discussion and analysis that precede constitutional reform should centre on personhood and evolve around foundational issues of citizenship, justice, democracy human rights and context. In other words, a ‘just’ constitution will have as its foundation, firstly and most importantly, a proper conception of personhood which should then be used as a guide in framing issues of citizenship, democracy, justice and human rights, and the logic of context. 

A Conception of Democracy

The theory and practice of modern democracy evolved out of many sources. The philosophy and practice of the city-states of ancient Greece and the French, Bolshevik and American Revolutions have had an enduring effect in the West. The elements involved are sometimes contradictory and inconsistent and explain why any detailed and rigorous definition of democracy can be problematic. It has had very different meanings and connotations in its long history, and in some ways, it is understood differently today in the context of different social and economic systems.

Democracy is more than a set of forms and procedures of government. Its bedrock principle is that it respects equally the autonomy and freedom of the individuals who comprise the state in question. Its core principle is rule by the people and restriction or limitation on the power of government.  An appropriate understanding of democracy should be linked to a proper conception of the human person. For example, the legal and political procedures of democracy are intrinsically invaluable because they embody the ultimate moral value of human dignity and, therefore, rest on a conception of the person as being worthy of respect. 

A purely procedural definition of democracy, that is, contested elections decided by the majority based on universal adult suffrage and due process of law, though intrinsically valuable, is inadequate. A richer definition of democracy must include a determination of the human rights that a free citizenry finds worthy of protection. It must mean allowing citizens to participate fully in decision-making processes that ultimately affect them. The majority rules, fundamental individual rights are protected, freedom of expression, tolerance of minorities and full participation in the decision-making process are necessary for the essential dignity of the human individual, with equal opportunity for each to develop freely to his fullest capacity. A just constitution is grounded in these and other core ideas of what a democratic system should be.