Foundational Elements of a Just Constitution (Part Four)

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 Justice and Human Rights

In his book, Justice as Fairness, John Rawls develops a political conception of justice to show how social institutions are to be arranged to conform to the freedom and equality of citizens as moral persons.  Rawls uses “social contract theory” to argue for principles which make justice the foundation of the state. The task is to create appropriate constitutional designs and accompanying political institutions which would best limit the absolute power of sovereignty in a society thus protecting the basic rights and liberties of the citizens. These must be properly conceived as requirements of justice.

In his conception of justice, Rawls emphasizes a political arrangement which defends values such as freedom of conscience, speech, and religion, the principles of equal protection of the law, and separation of powers. These values are constraints in any reasonably just constitution.

Establishing a conception of justice, must be a part of the constitutional process.  The rules in a constitution must be potentially applicable to all citizens. Justice must be the standard against which the morality of a given society and its institutions are judged.  A proper conception of justice and human rights must be anchored in a sound conception of personhood. A political conception of justice for a political authority of a constitutionally democratic regime guarantees for all citizens certain rights and liberties on the premise that they are free and equal persons and moral agents with a capacity for a sense of justice.

The core notion of democracy is rule by the people, but, at the same time, its soul is the restriction or limitation on the power of government. In defense of democracy, there are substantive values that a free citizenry would find worthy of protection.  These substantive values are the individual or fundamental rights: the right to vote, freedom of speech and association, the rule of law, and the rights to protect religious and ethnic groups.  The challenge is to construct a coherent and systematic model of constitutional democracy that mediates the possible tension between democracy and rights.

Prominent scholar on Caribbean constitutions, Simeon McIntosh, says that searching question for constitutional democracy is how best to structure political power through the institution of majority rule with universal suffrage to achieve the best possible situation where government by electorally accountable representative institutions is reconciled with the protection of individual rights. But this issue may not be as difficult as McIntosh suggests. The Bills of Rights of constitutional democracies such as the Unites States, Canada, Trinidad and Tobago, South Africa, the Cayman Islands and others enumerate fundamental liberties. These fundamental rights are considered morally acceptable limits on majority rule as under the institution of majority rule, majorities can coalesce to endorse policies that infringe on the rights of minorities.

Foundationalists, a modern school of constitutional thought, argue a place for democratic principles, but their enthusiasm is constrained by deeper commitments to fundamental rights.  For them, a just constitution is concerned first, and foremost, with the protection of rights. Critical to this formulation of a philosophical ideal which is to be considered foundational to a just constitution, is a theory of human dignity which explains the dignity of individual as of ultimate importance.  Every detail of a just constitution must flow from this.  A Bill of Rights is of great significance.  Its inclusion as part of a constitution defines that constitution as one of principles, which lays down general, comprehensive, and moral standards of justice, liberty, and political decency regarding the ways in which the Government may or may not treat citizens.  These fundamental rights give expression to our best conception of the human person.  The institution of a just constitution protects individual rights and human dignity. The fundamental rights provision unequivocally defines the constitution as a constitution of principle.

American political philosopher, John Rawls, believes that religious liberty, freedom of speech and universal franchise, are three of the most important individual rights.  He articulates a conception of personhood that is predicated upon certain basic rights and liberties, among which freedom of thought and conscience take prominence. To an extent, the other rights and liberties which the citizen enjoys under a constitutional regime are the further elaboration of this fundamental background right to conscience. The just constitution tolerates, in the full sense, protection of conscience: a toleration of thought, speech and action.  In his quest towards a critical theory to underline the protection of freedom of speech, McIntosh notes that the value of free speech encompasses such notions as the pursuit of truth, democratic self-government, individual self-realization, and the pursuit of the good. The electorate, the ultimate sovereign, needs information to engage intelligent deliberation.  There is plurality of conflicting religious, philosophical, and moral doctrines in a modern democratic society.  A political conception of justice must give prominence to such fundamental values as freedom of speech and religion, if it is to have the allegiance of a substantial majority of the populace.

The principle of free speech allows for the cultivation of a self-reflective, self-critical political culture. Social practices and regulative institutions must be subjected to widespread and conscientious criticism. Free speech is consistent with the liberal notion of the individual as the moral center of society, and emphasizes human dignity, autonomy, self-respect, equality and independence of personality.  The citizens, as human persons, have the collective right to have suitable access to social, political, aesthetic, moral, and other ideas and experiences.

The right to free speech does not include the right to libel or slander.  Thus, fundamental rights are not absolute, but where they can be reasonably restricted, it must be within such limits as “can be demonstrably justified in a free and democratic society.” A democratic polity can pursue principles effectively only if it pursues them prudently.  There is need to avoid extremes with respect to personal, civic and collective responsibilities, as there are social dimensions of personhood. Equality of the vote is the hallmark of democracy. It symbolizes the equality of respect to which everyone is entitled, and is arguably, the most important single protection that an individual citizen of a democracy possesses.