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Help me write a constitution - CANADIANS REQUESTED PLZ
ProPatriaMori
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Registered User regular
So I've decided that I would like to constitute a government. I don't currently have the resources to do so, but after reading Kim Stanley Robinson's Mars trilogy and enrolling in a state-mandated course on the state's government, I've decided that it sounds fun and that I can't possibly be the worst person for the job (Reconstruction-era Texans set the bar unbelievably low).
Unfortunately, my Google searches are mostly coming up with stuff on the United States constitution. I would rather find some general constitution-writing resources, perhaps a nice textbook if one exists. If you have personal favorites I would very much appreciate knowing about them!
Also, if anyone has read KSR's The Martians, which I think has a copy of the Martian constitution (or was it the Dorsa Brevia declaration?) would you recommend it? It sounded too dry to warrant purchase when I looked on Amazon.
Thank you.
Unfortunately, my Google searches are mostly coming up with stuff on the United States constitution. I would rather find some general constitution-writing resources, perhaps a nice textbook if one exists. If you have personal favorites I would very much appreciate knowing about them!
Also, if anyone has read KSR's The Martians, which I think has a copy of the Martian constitution (or was it the Dorsa Brevia declaration?) would you recommend it? It sounded too dry to warrant purchase when I looked on Amazon.
Thank you.
ProPatriaMori on
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As for actual constitutions I will recommend the german constitution for western germany from 1949, which is considered by some (not just german) historians as one of the most balanced and clear constitution.
1) What is your country's characteristics? Is it a generic "Western" country, i.e educated, wealthy, stable, long democractic continuity? This is important as your country's constitutional needs will vary substantially on the answer to the above - as an example of this in the Soloman Islands Constitution (or at least the one valid in 2004) the appointment of government teachers was a constitutional provision. This is in part because the economic development of the country is very low and a government teacher job is therefore a really sought after, prestigious job. Also with the huge number of ethnic/language groups in the country who gets to teach the children is intensly political - whereas this wouldn't be an issue in a developed, ethnically homogenous country
2) Are you a minimalist or a maximalist? Do you want to talk about everything relating to government in your document or not? Will it talk about how the government is organised in a broad sense or in a specific sense? Will it refer to electoral systems? Will it refer to human rights? Will it refer to official languages or cultural issues? Economic? Social?
3) Define your terms - Despite us all speaking English there can be a significant confusion over what particular words mean in reference to legal concepts - if you are writing from a US perspective then make sure you indicate that at some point as Europeans, other countries or Commonwealth readers may have a different understanding of the same words or concepts. We all use slightly or wildly different legal systems. For example, in my country of residence or my home country we don't have anything like a written constitution like which you refer to, these being the UK and NZ - and we have comparatively similar legal systems (compared to the rest of the world - but legal sstems are not constitutional systems).
Where to research
There are huge amounts of good, contemporary English language research on constitutional issues and drafting, if you have access to academic journals or libraries that contain specialist books. I did my Masters of Law on Constitutional Law about 4 years back and never had any trouble finding thins kind of thing. If you don't have access to such it will be a little harder. However the actual text of constitutions are very easy to find online , as are a lot of discussion papers that would probably suffice for an interest work rather than an academic work.
If you have a good law / political history library near by go pay it a visit. There are loads of specialist books on this topic that you will not get anywhere else. There are also acres of papers produced by students in pursuit of Masters or Doctorates - which rarely see the light of day once submitted.
South Africa
1) The South African Constitution - the 1996 South African constitution is probably one of the best modern English language constitutions, written as it was in the 1990s after 5 years of intense constitutional discussion and following two decades of less intense constitutional discussion - much of which is easily findable (ask if you can't find). For my money you would be best to make this your starting point rather than the US - even though the US is the oldest of its kind in the English language, just because the SA example is contemporary - it was been written by people currently alive in reference to 200 years of constitutional development. There are also two recent constitutions from 1994 and then 1983(or is it 82?) to serve as a comparison.
It also has the most developed modern human rights section currently available (at least in 2004) - by this I mean it includes extensive economic and social rights in addition to the usual civil and political human rights. They make a lot of sense in the context of SA's recent past, but maybe less so to a more developed, peaceful country.
Canada
They transitioned from a Imperial Federation constitional model* to a model that includes enforcable human rights. If you are from a Commonwealth country like Australia, the UK or NZ then this is probably going to be of more use to you as it provides a relevant model to base change on. This board is full of Canadians. They will be no doubt able to tell you all about their recent changes (over the last 20-30 years) which are really interesting from a constitutional law perspective.
*By this term I mean the federation movements in the English speaking colonies of the British Empire in the late 19th to early 20th century - specifically Canada, Australia and South Africa. Their constitions should be ideally read in reference to each other and in reference to British constitutional theory of the time, rather than say US, French or other models of the same era.
Ireland
Another 20th century English speaking written constitution (note that the Irish Gaelic version takes precedence, but that isn't really important for us). I don't really know alot about it except that it has an economic and social rights provision.
Also I am interested in the Canadian perspective you mention and am amending the title to indicate this.
Additionally, look into the Magna Carta, the Ancient Greeks, and the English Bill of Rights. I realize this may not be nearly as helpful to you, as Kalkino's post is bloody amazing, but hopefully this will be of some help to you or others who read this thread.
http://laws.justice.gc.ca/en/charter/
That's the official government link to it and it goes into a fair amount of detail pertaining rights and freedoms. Also talks about enforcement and what not as well. Up here we also have a human rights tribunal that will perform investigations on any complaints made by citizens that involve violation of human rights and priveleges though there's a lot of people who are wanting a reform on this as it's seeming rather biased towards the complainant rather then being impartial to both parties until all information is collected and formal hearings concluded. Regardless, I hope the link helps.
Basically, there are limits put on the rights the Charter embodies (section 1) and an explicit over-ride clause for the legislature (section 33). The practical result is a dialogue between the two branches as neither is supreme - the court can still strike-down the majority of legislation and the legislature can still respond by passing it under section 33 (but never do because it's more or less political suicide - outside of Quebec - to make the declaration "notwithstanding the violations in our legislation, we're passing it anyway").
For other resources, Peter Hogg is pretty much the expert on Canadian constitutionalism.
Another thing I forgot to include was Judges and Courts. - this is one of the more important bits as these guys can and often end up being the key actor in the constitution (witness the power of the USSC for example) when it proves very hard to change the constitution via amendment. If we look at the South African model, or more correctly, the Austrian model, they use a specialist final constitutional court that acts as the ultimate definer and interpreter, rather than say a court of universal jurisdiction (like the USSC or the Canadian Supreme Court). They also have a final appeals court for "regular" law.
Re the human rights - start with the SA Constitution's Bill of Rights - you would be hard pressed to find a better high level overview. Bits of interest are 1) who can approach the Courts for HR infringement 2) the scope of the rights 3) and a couple of cases, specifically this one
In Britain, for example, the "constitution" is made up of several different documents (like the Magna Carta), judicial decisions, and unwritten traditions. Technically speaking, the Prime Minister can legally declare himself the supreme dictator for life of Britain, and legally speaking, all that can be done if the House of Commons approves the law is that the House of Lords can delay it for one year. Of course, it's expected at that point that the people rise up in armed rebellion, and it generally isn't done because of the longstanding traditions of the British government. While they don't have the written protections the U.S. Constitution provides, something like passing a law ex post facto would almost certainly result in a change of government at the next election. However, as I said, technically the Parliament can do whatever it wants to, though in practice, there are some serious limitations to that.
I disagree. The Queen would be entitled to exercise her reserve powers in your scenario. We don't really know the extent of these reserve powers either - they have not been tested properly for several centuries, predating the current parliementary supremecy system. The closest the UK has come to knowing the full extent of the monarch's powers would be the 3rd Home Rule Crisis which just predated the Great War and even then there is sufficient doubt about the conclusions of that in reference to your question.
Further there is a body of opinion that seeks to overturn judicial deference to parliament in the UK - If they chose to act then possibly they could stymie the PM as well.
Then there is the EU and all the law that swells around it. No one really knows how far the EU could or would intervene in such a situation - there would be an argument that legally they might have grounds too.
Lastly you have the sub national units of the UK - Scotland, Wales and Ireland all have national parliaments now, ones that work and are commonly accepted by their people. They might develop a sudden constitutional principle that challenges the supremcy of Westminster.
TL;DR - your view is the orthodox position and probably is still right but there are a couple of angles that could stop a PM dictator.
However if your example was retargetted to New Zealand then I'd think you would have firmer ground. The Queen's Representative, the Governor General has no where near the authority (in every sense of the word) that the Queen has, in a pissing contest with the PM he(we now have a man again) would lose. We don't have the EU nor any of the other protections the UK has.
In fact our major protection against such events is our proportional representation electoral system. Which is a pretty slim protection indeed given it takes only simple parliamentary majority to overturn it
Some of the EU treaties might have an effect, yes, but really, my basic point still stands.
Basically you'll have much more success reading a good essay on the document than you will researching it and all of the history that it relies upon directly. You can get a good introduction to the general structure of the whole system at the wikipedia: http://en.wikipedia.org/wiki/Canadian_federalism
CUZ THERE'S SOMETHING IN THE MIDDLE AND IT'S GIVING ME A RASH
I'm not disagreeing there hasn't been extensive discussion on these points - but there are variables here which have not been tested to any degree since Devolution is only 11 years old. While you state rightly that the devolved parliaments are creations of the Westminster Parliament that doesn't mean to say they always will be - after all constitutional conventions do organically develop - just like the supremacy of Westminster did. That is how things work in fluid constitutional systems like the UK. We can state that the Scottish Parliament is subordinate to Westminster now and it is. But what if it, as a freely elected, PR parliament, declared it wasn't, if say a British PM decided she was PM Dictator? In a game of constitutional guessing games it is equally likely - knowing the SNP or Plaid Cymru - they are no lap dogs of Westminster. The old centralised model of the UK is dying and the new model hasn't been shaped yet. However the UK is still intellectually focused on the London centric model and that will take time to filter out.
Further, while the discussion of the disbanding of the monarchy in one simple act has been discussed that is all it has been. To discuss and to do are two vastly different things. It might be as simple as we all hope, and as a republican I am fully supportive of this. But in the UK at least it won't be that easy. For example, the linkages between some of the parts of the UK or Great Britain or w/e are based around the monarch and not on the powers of the Parliament at Westminster - e.g. the Channel Isles and Man - also perhaps Wales might be at question. In the case of the former the link goes via the Privy Council, which flows from the Queen not the Parliament - so remove the Queen and her ancient prerogatives and perhaps they could just bugger off and join the EU. Who knows? Nothing like this has happened before
Even if all the parts of the UK/GB were happy to remain in this new non monarchy - how would it be organised? Would the PM be the new sovereign or would there be a president? What would the president do? Would he be a non executive sovereign or executive? Who would he answer to? Who would appoint him and how? The easy solution would be to make the Prez assume the powers of the Monarch and be appointed by the Parliament via the PM (sorta like what the Governor Generals are in the Commonwealth), but whenever this question is put to people they usually want an elected President. But why would one elect a non executive President? Why does a figurehead need an electoral mandate?
In an attempt to further harness the level of awesome flowing into this thread, I should note that I am basically ignorant of law, legal procedure, and legal language. I have an okay handle on leasing a place to live now and learned what tort proceedings actually were about two days ago.
Hopefully this isn't covered by stuff that is linked to already--totally getting into that tomorrow, just kind of checking in here today--but re:Thanatos' noting that a government need not be established with a single document titled THE CONSTITUTION (readme.txt), is there a general consensus on what are effective modern methods of nation building? I get the idea that Constitution+big book of statutes+precedent is popular for having a legitimate government using laws and authority and such, but do scholars have some kind of...ranking? I imagine having a constitution is preferred to "Whomsoever the Jaguar Bites, but Does not Eat Entirely."
The problem with unwritten constitutions like in the UK or NZ is that trying to replicate their successful bits is hard as hell. The first problem is that nailing down exactly what is the constitution and how it interacts with the rest of the system, then actually trying to build that, well that is going to be hard - how do you replicate several hundred years of practice and tradition that isn't written down anywhere except in some semi speculative academic tomes?