120. TALKING ABOUT MY CONSTITUTION - Why Conversation Is More Important Than Codification
There’s been a lot of constitution chat the last few weeks. From gun control and abortion rights in America following yet another horrific school shooting and the Supreme Court’s internal decision on Roe V Wade, to the myriad ways Boris Johnson and his government seem to have broken the ministerial code - and codes of basic etiquette and decency - over their lockdown parties (and so many other things done under their watch since December 2019). The discussion tends to centre around the pros and cons of written constitutions versus unwritten ones. Here in the UK, part of the problem with saying that anything the current government has done is a wrongdoing of serious significance is that we do not have a formal, written constitution that lays out explicitly our rights and obligations as a people. Meanwhile, in America, the exact opposite is often considered to be the problem: the formal, written document put together in the late 1700s is, all these centuries later, still held up as sacrosanct despite some of its many self-evident failings (for example, its nearly 30 amendments, including those needed to restore legal personhood to citizens excluded from the original document).
The argument usually goes something like this: written constitutions are great because they state very clearly where everybody stands, but are very difficult to change if the country wants to do things differently in the future. Unwritten constitutions allow that flexibility, but are in danger of being too flexible, with core and foundational values left unprotected from the whims of future generations. Personally, as an anarchist, I think that the tensions shown in the debate around having or not having a written constitution stems from the untenable nature of any imposed hierarchical structure of external authority, and that the flexibility and impermanence of possible power structures found within anarchism suggest an important lesson about what is really important here. Anarchists, after all, are not actually advocates of chaos. Where collective needs are identified and agreed upon, most anarchists agree societies can agree to giving certain groups or individuals temporary power to act in a certain way and claim some short-term “authority” over others, so long as it is an authority which is consented to. Usually such consent comes from acknowledging a particular expertise in the individual or group being granted that short-term authority, or simple from acknowledging the benefits of delegating specific issues to specific people to ensure an important job gets done. The difference between the anarchic version of power distribution and the conventional one we see in nation-states today is that such power is given, not taken, and is only to be borrowed, not held permanently. An aim is identified (Z), and a short-term agreement is made that person(s) X have power over population Y within specific parameters and dependent upon consensual agreement that such power is granted only in order to achieve Z. Exercise of power for any other reason is illegitimate and compliance is not offered, and once Z is achieved, the power is lost.
What has this to do with constitutions? Well, we can see that in its written form we have an articulation of a possible set of aims (Z) and a signed agreement that certain persons (X) ought to be granted power over population Y in order to achieve them and with certain obligations and limits on that power. However, unless it is all of population Y signing onto the constitution (not merely a handful of representatives) then no serious claim to consent can be made. And, most importantly, unless every new generation of population Y get to review and revise the constitution to ensure that it still articulates a Z they actually wish to achieve then after a few years a written constitution becomes nothing more than an artefact of a particular historical moment. What Y wanted then might not be what Y wants now no matter who the signatories were at the time of the constitution’s conception.
But if a written constitution were constantly being drawn up and re-written with every new generation it becomes just as unstable as an unwritten one, subject to the whim and caprice of every new generation. At the same time, if we stick to an unwritten constitution then how does population Y actually know which Z they are consenting to when they grant X power? Unless such things are properly articulated then it seems like legitimacy is lost.
The very act of codifying into a constitution the core principles of how your society is to be run is to commit future generations to values that they may not actually hold. It is a normative act, wherein one generation is imposing a set of values in stone on the basis that they believe future generations ought to hold such values. But while human beings remain autonomous agents capable of choosing many different values such an imposition has no guarantee of sticking unless the values are, in fact, actually held by the citizens for whom they are endorsed. This means constitutions are either attempting the impossible and trying to force people into valuing something they don’t value, or they are redundant, as they simply articulate values already held.
This is part of the allure of the unwritten constitution. It is a faith in a shared set of values that do not need to be written down because they are a fundamental and unchanging part of what it means to be a member of population Y. And any values that do change over time must have changed for good reason. By not being stuck in history to the values of a particular moment, countries can keep what they wish and evolve where they need to without being held back by the past.
The problem comes when we have someone like Donald Trump, Boris Johnson, or, indeed, an entire world wide web of disrupters and trolls imposing values anyway and distorting reality to fulfil private agendas and achieve personal gain. The use of effective propaganda to manipulate our core values and twist what we believe into self-serving ideologies can be in no doubt after over a century of mass media and its well-documented effects on us. Without the historical snapshot of a written constitution to ground us in at least a set of principles gained through common prior agreement it is therefore very easy for a society to become untethered from everything it has hitherto achieved and all the progress it has made. If enough people agree today that we no longer want Z and that, instead we want A, divorced from the history of why Z had previously been considered so important, it is very easy to soon see the agreed aims of Z replaced without any meaningful debate. It just becomes a truism - we used to want Z but now we want A. The journey that got us there is lost amidst the populist cheers as sufficient numbers of Y vote to give X the power to achieve A, not Z.
What is most important then, is not whether a constitution is written or not written. What is important is that societies of any size talk about what they want. That the discussion is a live one at all times. That no-one is blindly following words on an old outdated document signed by long-dead individuals, but that any member of a society today, still following the principles of a constitution articulated over 200 years ago (or more) can explain without just saying “it’s in the constitution” what the reasons are for following that same principle. That the arguments continue to be understood, scrutinised and defended as live issues and not simply their conclusions regurgitated without contemporary analysis. Or, for those societies with unwritten constitutions, that we don’t just rely on the assumption that every new generation holds the same basic views on life as the last and hope that values replicate themselves, but instead actively discuss what our values are. Hold them up to the daylight and talk about whether they still reflect who we are or if we could do any better. An unwritten constitution is no constitution at all unless it remains alive in the hearts and minds of the citizens who have chosen not to write it down. If it is not alive there, then it is nothing more than a memory of a world that once was; a world we have no seeming obligation to ever return to if it is lost.
What has allowed the leaders of two completely different countries - one with a written constitution and one without - to completely erode the norms and institutions of their respective democracies is that, in both the case of Donald Trump in America and of Boris Johnson in the UK, professional politicians have enabled and added to the erosion by acting as apologists for the disrupters and doing nothing of significance to oppose it, and everyday citizens have sat back and watched it happen without doing anything about it themselves. And, in both cases, a significant number of those populations have voted for the erosion and continue to support it. Which tells us that in both countries what is lacking is not a constitution, but a continuing agreement on the shared values and goals of a common, collective life.
Americans, UK citizens, they do not have a clearly articulated idea in 2022 of what they actually stand for. What they want to achieve and how they might best achieve it. And the formerly lofty ideas of each country - ideas about institutions as the means for achieving shared goals peacefully and the norms of public behaviour - have not survived the assault because the ideals were never actually articulated to all. They were mainly the province of those already in power, shared in ivory tower classrooms or within the corridors of government. They were the guiding vision for each country but what that vision was, what it meant for everyday life, was not deemed worth talking about regularly to the citizens themselves. That was what lawyers and politicians were for. Academics and leaders. The rulers could rule, using the constitutional conventions passed down to them by their forebears, and the ruled could just accept that how things were was the way that things must always be.
But just like the church, when the advent of the printing press disrupted the privileged authority of priests and popes and allowed the entire world to read scripture for themselves if they wanted - an innovation that ended the homogeneity of belief and splintered the faith into a slew of independent, and conflicting, denominations - today, mass media, especially the internet, has taken control of those conversations away from the privileged few in charge and led to just as catastrophic a schism as individuals found themselves able to understand, question and critique the assumptions on which their political arrangements were based. Instead of having a shared, ongoing, national conversation about such things and reaching mutual agreement, we are having fractured conversations online, in echo chambers that cross oceans and continents, often manipulated and fuelled by invisible vested interests. Denominations are forming, and they are forming in opposition to the established authorities, articulating all new constitutions of their own, believed to be the constitution we were always supposed to be following before “they” messed everything up. Each group with its own enemies and historical flashpoints. Each group knowing itself to be right and everyone else wrong. Each conversation locked in a bubble with no intention of engaging in serious dialogue with the conversations of the “enemy”.
When you don’t have a conversation out in the open, people speak behind each other’s backs. They plot. They conspire. They blame. They demonise. They pick sides. The most significant challenge of the twenty-first century if we are not to see the continuing erosion of norms and institutions is to remember how to reengage in public discourse. Not tweets and posts and memes, but actual open-minded back and forth conversation between differing individuals and groups seeking to find common ground and re-establish a shared co-operative endeavour together. Our supposed constitutions - written and unwritten - have failed us because they have been divorced from continued public conversation. When we “like” or share a post on social media, we are not conversing, we are nodding our heads in agreement and clapping our hands at the familiar. We are not engaging with ideas and we are learning nothing except for what we already like. And when we engage in battles in the comments sections we are not seeking truth and mutual agreement, we are seeking merely to “win”. This is not useful and keeps us isolated no matter how much it might look like dialogue. Two parallel and unmoving monologues does not a dialogue make.
We need to stop spouting our outrage onto social media feeds and return to actually speaking to friends, colleagues and neighbours. Find out what they think. Have a conversation. Try and change a mind and be open to having your own mind changed too. Discuss whether the country you are currently living in is the country you want it to be. Identify what has gone wrong and where you can find some common ground. Speak about what you love and want to see more of. Doing it ourselves and not through the media. We’ve let mass media set the agenda on what we find important for too long now and look where it has gotten us.
Eventually, through conversation, slowly but surely, we’ll discover something far better than a written or unwritten constitution. We will discover community again. The aims we want to achieve and what we need to do to achieve them.
The real problem of our time is not whether the constitution should be written or not, it is that by talking of constitutions at all we have outsourced the shared job of every member of a fully functioning society to a piece of paper, or to a small professional class, and forgotten that if we stop having a continuing, every day conversation about what we want to achieve and what we need to do to achieve it, someone else will have that conversation for us and without us.
And before we know it the world that we want will be gone.
Author: DaN McKee
My book - AUTHENTIC DEMOCRACY: An Ethical Justification of Anarchism - is available HERE , from the publisher, and from all good booksellers. Read my Anarchist Studies journal paper on Anarchism and Character Education here. For everything else DaN McKee related: www.everythingdanmckee.com