Taking our Constitution Seriously

By Dr. Livingston Smith

When the authorities of the Cayman Islands decided that it was important to have a day set aside to celebrate and focus on the constitution, they would have had in mind a vital fact: the critical importance of the constitution. Established to commemorate the July 4th, 1959, constitution, this public holiday seeks to have us reflect on the meaning and significance of this document.

In a series of articles, I will explain what a constitution is, its functions and importance. I will discuss its evolution in these islands as well as the broader English-speaking Caribbean, distinguishing between the independent and non-independent constitutions. In doing this, the framework of government established by the constitution, its democratic credentials, and broader historical, philosophical, and political issues will be examined.

We begin with saying what is a constitution and later we will explain its functions in more detail. It is usual in defining the constitution to do so by firstly explaining its legal importance as the highest law of the land. As such, the constitution lays the foundational framework on which and through which the political and legal systems are founded- the legislative bodies such as parliament, the executive framework, the judiciary.  From this perspective, as the highest law of the land, the constitution outlines the structures of government, and defines their functions, powers and limits as well as the rights and responsibilities of citizens. I will return to this legal definition in more detail in a later article.

However, approaching the definition of a constitution from a sociological perspective, I believe, provides an added dimension to its meaning and profound importance. What is a society? How is a society held together? How does a society achieve social cohesion? What brings a society as a political entity into being? What are the norms and values that a society has decided are important and that its members aught to abide by, and if they don’t must by punished in one way or the other?  What makes a government legitimate? What are the cultural and historical legacies of a society deemed so vital that they need to become ‘permanent’ features of that society? What are the expectations of persons in their social relations within that society? What is the best expression of a people’s collective will? What is a society’s view of what is justice and fairness? How can a society balance the rights of each of its members, with the common good of all its members? What does a just and well-ordered society look like?  And, from my perspective, the most critical question of all: what is a society’s conception of who human beings are?

Let us consider one of these questions-what is a society? It is human beings, living together in a physical space, usually called a community of nation, who through interacting with each other, have developed organized patterns of relationships, bounded by some moral understandings as to what is acceptable behaviour and what is not. In this space, they have social institutions which carry out various functions that together make this living together possible. These institutions which include, the family, religion, a school system, an economy, etcetera, are interconnected and interrelated and are held together in a cohesion based on a moral understanding, a collective agreement of what is acceptable behaviour and what is not. Society has a moral foundation that is responsible for its cohesiveness. Because a constitution embodies and codifies expectations of behaviours, it provides a framework for behaviours which are deemed acceptable. In doing this, it plays a vital role in this societal cohesion. It is within the framework of a constitution that the rights and concomitant responsibilities, duties and expectations of individuals and groups are delineated further cementing social cohesion. It is this social cohesion which makes society possible and by extension our ability to live our full lives.

Approached with these questions in mind, a constitution is a sacred covenant between leaders and citizens that lays the ground rules for the possibility of living together in society and protects the possibility of community, in which individual citizens can live their full lives. It addresses the questions of who are to be included as members of the political community, the kinds of rights and liberties to which they are entitled and the concomitant responsibilities.

Simeon McIntosh, a foremost scholar on Caribbean constitution, in his paper, ‘West Indian Constitutional Discourse: A Poetic of Reconstruction’, published in the Caribbean The Caribbean Law Review, Vol 3, No. 1, Jan. 1993, pp 1-75, describes the constitution as an explicit statement of a peoples’ understanding of who they really are, as a product of the historical process to date’. The constitution aims to shape the lives of citizens “by designing the structure or dwelling” in which they and their posterity will inhabit, and so its construction or reform is superior to all other forms of political acts, McIntosh explains.

This binding document, then, both conceptually and practically, reaches into the lives of citizens, as it is both concerned with the structure of power - that is, the way government can treat its citizens - and the ways citizens may treat each other. The constitution is superior to all other laws. It sketches the fundamental modes of legitimate government operations, guards the fundamental rights of citizens, and is a symbol of the kind of culture, norms, and values, which a society subscribes to. The constitution embodies the expectations held by people towards government, their conception of how power ought to be regulated, of what it is proper to do and not to do. Because of these reasons, the constitution matters for social and political outcomes.