Taking our Constitution Seriously: A Conception of the Just Constitution (Part Five)

By Dr. Livingston Smith

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, human rights, democracy 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. 

For a constitution to have moral authority it must be, in the principles it advances, grounded in a proper conception of personhood.  It must have legitimacy through widespread support that is democratically ratified.  It also needs moral justification, that is, it must espouse independent normative political truths and do so on the premise that all are worthy of equal moral and political regard.

The just constitution allows for the establishment of basic political and social institutions which are appropriate to realizing the values of liberty and equality of citizens. In modern constitutional thought, the principle of separation of powers is an indispensable basis of the constitution of a country that would fulfil its genuine task of the realization of the rights and the protection of the freedom of its citizens.  A just constitution places fundamental rights completely beyond the reach of democratic politics.  This means that fundamental rights are protected against normal political change. This is crucial.

The constitution must settle constitutional essentials, such as the general structure of government and the political process, the powers of the legislature Executive, and Judiciary, the scope of majority rule, as well as the basic equal rights and liberties of citizenship that legislative majorities are to respect.  Reform of a constitution must proceed only as experience shows that changes are required to ensure political justice for the general good.

The central argument being developed in this “idealistic” framework is that a just constitution must be anchored in a proper conception of personhood. I have argued that the Anglophone Caribbean, though steeped in the Christian tradition, does not draw enough from the positive aspects of the Christian concept of personhood. For example, Christianity endows the individual human being with a high level of importance and sacredness. The biblical narrative asserts that the human being is neither a cosmic accident nor an evolutionary paradigm. In fact, the image-of-God motif, so central to the Genesis account, is possibly the most powerful expression of the dignity and uniqueness of mankind.

Abstracting from the Christian perspective, the citizen – the human being – created in God’s image must be viewed as rational, with the capacity for morality and with guaranteed rights of civility, decency, respect, and freedom. Our society and its constructs need to be grounded in a proper concept of persons as having the capacity to make individual choices and to identify what is meaningful for their lives. The person, then, an emotional, psychic, and social creature, should be treated as an end in himself and not merely as means.  For example, the duty to respect others is grounded in the value of their humanity.  From this premise will flow institutional and social arrangements which can be deemed to be just and fair.

The argument has been developed that a just constitution is one which has as its philosophical base a proper conception of the human person.  However, for a constitution to have salience, relevance, and longevity, considerations of context are critical.  A constitution must be relevant to the historical, politico-economic, and socio-cultural milieu of the society.  The process of constitutional engineering or reform must be sensitive to the peculiarities of that society.  Even when modifications or transplants are made, they must be seen as capable of fitting into the context of the society and capable, too, of being instruments of transformation. The process must be bold enough to subject the present framework, to intense scrutiny, but must avoid like the plaque blindly importing constitutions without proper examination, with a view to shaping them to suit the country’s present and future needs.  In the end, whether a Constitution is good or bad depends upon its suitability for the society.