Taking our Constitution Seriously- Its Importance and Functions

By Dr. Livingston Smith

Government structures such as legislatures, political parties and bureaucracies take on lives of their own and shape the behavior and attitudes of the people who live within and benefit from them in one form or another. The formal and informal rules which are embedded in them both constrain and enable the behavior of individuals and groups. Thus, these power structures do not simply reflect the consensus of values that a society has agreed on, they also shape and structure our behaviors as social creatures impacted by the society in which we live and have our being. Are the above statements true? Clearly. Consider, for example, how political parties impact the behavior of citizens, making us behave in a variety of ways- both good and unpleasant.

It is the same with constitutions. How they are structured, what they allow and disallow, the institutions that they permit, the rights they allow, and so on, have real life implications. But many can’t see a link between the constitution and ‘bread and butter issues’ as some call these everyday practical requirements to sustain life.

However, when one thinks about this, the reality that the constitution affects our everyday lives becomes more obvious. For example, it is the constitution that establishes permanent institutions which have specific functions and give rights to their citizens. The constitution says how a government is put together, the rights of those governed and the ongoing relationship between the two. Part One of the Cayman constitution, for example, the Bill of Rights, outlines the rights of citizens which means that public officials will have to act in line with what is outlined in the Bill of Rights. This is not only very important at the macro level, it has a real impact on the life of each person. This is a statement of the ‘house’ we intend to live in. The constitution outlines the role of the Governor, how Cabinet, the Executive is comprised and so on.

A constitution, whatever its form, outlines how the various structures are organized, the powers that each is entrusted with and how these institutions of government should exercise their power. A critical function of the constitution, then, is outlining and demarcating the powers, how power should be administered and the rights and responsibilities of citizens. By doing this, the constitution also limits the arbitrary actions of government and guaranteeing the rights of those governed.

The function of limiting the arbitrary actions of government is vital. By laying down the ground rules, the constitution makes it more difficult for government institutions and officials to base their decisions on personal biases and preferences. Laws act as checks upon the passionate element of human nature, Aristotle had observed. Both laws and political decisions, must appeal to rationality and general rules.  It obviously does not make it impossible, but it certainly provides a way to know when it happens and the consequences that should follow. Arbitrary actions are not based on established principles and so can infringe on individual rights, making for discrimination and abuse of power.

The constitution functions as a plan, a binding framework for how our society is ordered. In fact, the constitution is a critical part of the process of bringing into existence a political community or even ‘refounding’ a community to use the ideas of Simeon McIntosh, preeminent Caribbean constitutional expert. He further explains that the words of the constitution ‘narrate the polity into existence’. The constitution entails a vision of a form of life for the people whose lives it must govern according to the moral principles which it either states expressly or implies.  A constitution defines the arrangement of the essential powers: the executive, the legislative and the judicial, that mark the sovereignty of the state and its authority over the countless other institutions of social life-familial, economic, cultural and the like. 

A constitution, speaking broadly, defines how human beings are to live with one another in a society; the politically ways in which certain fundamental claims and needs of humans are treated in the society in which they live. It addresses question of who are to be included as members of the political community and the consequent kinds of rights, liberties and responsibilities that they are entitled to.

The very term ‘constitution’ comprehends virtually the whole of what is sometimes called the ‘form of life’ of a human community, describing what that life should be like, and creating the institutional design for achieving that life. In a word, the constitution is a plan for a way of life. Even if it does not say so explicitly, a constitution embodies those values that would support certain conceptions of the good life and a certain conception of justice. It is an elaboration of those institutions which are the means by which this way of life is to be achieved; the range of activities on which these activities will bear; and who, as full citizens, those holding full political rights, will share in the operations of those institutions.

If all the above are correct, then a proper constitution must be grounded on moral principles such as justice, equality and due process. We examine these in subsequent articles. We must also ask the question, does the existence of a constitution necessarily mean that what is says are really followed? Are there not countless examples in which their existence and espousal of the most wonderful ideas, are ignored and overturned? These are questions that must also be examined.