Showing posts with label constitutional law. Show all posts
Showing posts with label constitutional law. Show all posts

All That We Need In The Constitution Is Right There In The Text

My essay on sufficiency of written constitution, written for online course

Constitutional Law
by Akhil Reed Amar

    My task was as follows:

    "All that we need in the Constitution is right there in the text." Attack or defend this statement with at least three distinct arguments, using specific examples to illustrate your points.

      My essay:

      I don't agree the suggestion "All that we need in the Constitution is right there in the text". It is too dogmatic, shortsighted and incoherent, because a constitution must be much more than what is written in the text so that it can overcome every challenge that may arise by time, by unexpected occasions and by any interpretation that was not contemplated by its authors.

      Constitution's Spirit Against Text

      A written constitution reflects the idea behind foundation of a state. But that reflection is not the idea itself; the written constitution is only tangible appearance, an outcome of the idea. As in United Kingdom, a country can be governed by an unwritten constitution, whereas there are many unconstitutional countries that have written so-called constitutions just for show. Therefore, the written constitution must be used as a means of proof, commitment and record with regard to the founding spirit but must not be and cannot used for turning its underlying spirit into a fixed document of letters.

      In particular, the US constitution is not considered an intellectual product of particular person or persons.[1] Though it is attributed to Thomas Jefferson, he admits that he only penned the independence declaration, a fundamental constitutional instrument, the declaration itself was in the air among the minds of the people that gather to found the USA. Therefore, US Constitution must be considered the common approach for political and civil matters, which was embodied for the purpose of popular dissemination, not textual limitation.

      A Constitution For Future Challenges

      Even there could be a way to perfectly transfer the ideas into letters, that would be a conveyance of that time only. That would cause great lack in responding to the coming challenges in several aspects.

      Considering the fact that the technology got advanced in last 200 hundred years more than the total of the ages before, one can see it is highly critical for the Constitution to be able to adapt to every new development in science. Does the constitution's text really able to handle the matters of broadcast, internet, electronic voting, cyber battles, Wikileaks etc? Right to make propaganda through web, might not be inferred from the constitution if the constitional freedom of expression was handled literally. For example, the frequency of the election has changed by the time, owing to the advancement in the means of transportation and communication.[2]

      Aside from the technology, many manners of social life has also tremendously changed since adoption of the Constitution; not only in national but also international level. Much before now, people were fighting duels, killing each other on personal, sometimes unimportant matters of honor -in their sense of dignity of that time. Or KKK could freely conduct great rallies on streets, defending their rights. Not only the technological tools but also social acceptances are advanced, mostly in liberal way, by time. This is why a paper, formed of constant propositions cannot be used as a recipe to solve every social problem. Otherwise, the right to information and even free press could not be derived from the constitutional provisions concerning the freedom of speech.[3] Freedom of getting information from the government, without giving any reasoning was something that perhaps could not be imagined during the times the constiution's words were shaped. Today it is possible by handling today's social needs through the constitutional mentality, not the text itself.

      Power of Amendment Presuming Imperfect Nature of Text

      Though there are several checks, the legislative body's power to amend[4] the constitution itself implies that what is written in the Constitution may be wrong; it may not be the true Constitution, but a text that misinterprets the standpoint that constituted the USA. Therefore 'all we need in the constitution' is not the text itself, but the political will that had led to the written constitution and new interpretations of or constructions from that political will is what makes the later amendments legitimate.


      [1] This is why it begins with the wording "We, the people" and as Mr. Amar mention in the first lecture, the noun "we" does not refer to the undersigners; it refers to the people of the USA.

      [2] Mr. Amar in the early lectures had stated that the House elections were held less frequently in the first years, because it took time to make elections and send the elected person to the capital city. It was a common practice of that time as a result the level of the technology by then.

      [3] In Houchins v. KQED, Inc., 438 U.S. 1, 15–16 (1978) decision, Supreme Court Justice Steven's dissenting opinion later allowed the right to obtain information from government by wide interpretation of freedom of expression for the press. Mr. Amar made reference to this case in his lecture on Supreme Court's contribution to the constitutional law.

      [4] Though the 'amendments' are the supplements to the Constitution, I here refer both to those additions to the Constitution and also the modification on the original deed.

      Inferring The Right To Wear Hat From US Constitution

      My essay on inferring the right to wear hat from the US Constitution, written for online course

      Constitutional Law
      by Akhil Reed Amar

        My task was as follows:

        Suppose you had to defend the right to wear a hat—how would you do it? What kind of arguments would you make?

          My essay:
          The right to wear a hat is not expressly provided for in the constitution but it implicitly stems from several provisions of the Constitution.

          First of all, the preamble of the constitution says " the blessings of liberty", where liberty is not limited to national independence. It refers to the people's way of living in every aspect. The fact that the constitution, unlike many other countries of the time, does not require any certain religion or life style for being president, senator or representative implies that this liberty covers every aspect of life style, doubtlessly including the wearings. I emphasize on this aspect of freedom, because the most common barrier, if any, against wearing a hat or any other choice of wearing relates to religious concerns.

          In connection with and addition to the foregoing argument, the first amendment expressly states that US ctiziens are free to exercise their religion and they have freedom of speech. Wearing a hat, may also be a way of expressing oneself's ideas. The more an individual wears different from the regular style the more protesting that person would look and that may be the point that individual is trying to make by wearing a particular type of hat.

          The fourth amendment states that no person's properties can be subject to unreasonable seizure, which in practice results that a government officer must have to find the reason for disallowing the people from wearing hat; the individuals do not have to find a special reason to defend their immunity about wearing hat as a way of possessing a property.

          The nineth amendment says enumeration in the Constitution, of certain rights, shall not be construed to deny others retained by the people. Given the fact that people were wearing hat even before foundation of the United States, and there is no express provision that later prohibited hats, people's right to wear hat was already recognized by the nineth amendment. So, it is a constitutional right to wear hat under the nineth amendment.

          Also, according to the Declaration of Independence, as a major US constitutional text, people's unalienable rights include the right to life, liberty and the pursuit of happiness. In her or his way in pursuits of happiness, one may enjoy the right to do anything that makes oneself feel better, to the extent it exceeds to the same right of other people. Wearing hat may well be one of the ways to enjoy these rights in pursuits of happiness, if it makes the person feel better and does not harm the counter rights of other individuals or the public order.

          In addition to the written sources of the Constitution, this freedom can be inferred from the precedences of the Supreme Court, which has accepted many right that were not clearly mentioned or even implied in the Constitution but commonly adopted by the states, such as right to free advocate. Considering the practice of the states all over the territory, Supreme Court would see this is a right practically recognized by all states, so it is already a requirement of the Constitution that does not limit itself with its own text.

          Lastly, Abraham Lincoln, the iconic image of the constitution, and deliverer of the Getsyburg Address, used to wear stove pipe hat, so anyone in the country must be allowed to wear it!

          What Makes US Constitution Unique

          My essay on the unique nature of the US Constitution, written for online course

          Constitutional Law
          by Akhil Reed Amar

            My task was as follows:

            In 1787, the Constitution was the largest-scale instance of a democratic form of self-government in the history of the planet.
            • What specific provisions or features of the Constitution best exemplify or demonstrate the embodiment of the value of democracy?
            • How were these features uniquely democratic compared to other forms of government at the time, such as the monarchy and Parliament of England, or under the Articles of Confederation?

            My essay:
            The Constitution's preamble beginning with the words "We, the people..." is the best indicator of the value attached to democray by authors of the Constitution, because it certifies that the Constitution was not written under particular people's superior authority, supposedly received from god or any nobelty. It was a declaration representing the will of the people, i.e. all man, as they were created equal[1]. The documents was, of course, penned by particular people, the Constitution was not an internal agreement or determination of the undersigners; it was in the air and the undersigners just put the words down onto the paper.[2]

            In addition, the Constitution used the term "people", not "commons", a term underestimating the people, or "nation", a term that implies too much commitment among individuals of a people, or "subject", a term that indicates existence of a monarch. The Constitution refers to individuals of the time as "people", because it does not consider them having more o less power than they could factually hold as a result of the Constitution.

            Further, the value attached to democracy by the Constitution is also apparent in the fact that the first article is devoted to the Congress, the most populous organ of the government. Appointment of the President was based on electoral college as well, but he or she is just one individual. The best way to represent the people, including their discussions and differences inside, is the Congress and it has a certain priority in the Constitution, showing that the constitution is for the people indeed.

            Democratic nature of the Constitution is also seen in the second article, which provides for the qualificiations of Presidency. Firstly, the second article does not require the President to be White. For today's people this may be normal, but for that time it is a choice beyond its time, because many, maybe majority of the people would not find a racial discrimination strange by that time. Secondly, the second article does not require the President to be owner of particular amount of land. This is very democratic for that time, because the aristocratic nature of Britain had a strong reflection on the structure of the economic and political organization of the new lands in American continent, i.e. land owners had more money, more voice and more influence in the society[3]. However, the authors of the Constitution managed to avoid such economic discrimination, too.

            The Constitution was uniquely democratic compared to other countries of the time, because, first of all, it was the first written constitution in human history. Though there had been many older constitutional documents in past, such as Magna Carta, the Constitution was the first written instrument, by which the creators of a state makes written commitments relating to democratic nature of the government.

            It was also quite unique since it does not anticipate a permanent head of state. The president would be elected for a certain period and would quit the office by the end of the term; and so did George Washington. Therefore, the Constitution's unique nature was not dependant only on its theoritical anticipations, but also the way is properly implementation.

            [1] The second paragraph of the Declaration of Independence (issued by the Congress in 1776, 11 years earlier) says "We hold these truths to be self-evident, that all men are created equal...", so the coverage of the wording "we the people" is clearly defined in the same document.
            [2] It is believed that Thomas Jefferson made this admission years after the Constitution, to author of his biography.
            [3] This was more true for southern states, where slavery and therefore "mastership" was still very common.

            Under-Performance in the Muslim World

            My essay on modernity challenge faced by Muslim world, written for online course

            Constitutional Struggles in the Muslim World
            by Dr Ebrahim Afsah

            My task was

            Write a well-argued, clearly structured exposition that addresses the following key points plus any other you deem relevant:
            • definition of under-performance (economic, social, military, etc.)
            • role of institutions
            • reasons for this negative trends, giving examples from different regions examined in weeks 2-9
            • role of political Islam or Islamisation campaigns in that process
            • countries/phenomena that the instructor highlighted as exceptions from this general trend and their recipe for relative success.

            My essay:
            Under-performance is failure by state organs to maintain the country's stability together with legitimacy. In countries with Muslim societies, the legitimacy of the government depends on the country's constitutional approach to Islam [1], though at a varying level. This creates a paradox at the first look, because Islam is a religion that regulates not only the worshiping methods but many further aspects of life, such as government and law and this fact leads to the idea that a country that provides for Islamic rule in its constitution would have to adopt a dogmatic system of law, based on non-disputable rules of Islam; so a constitutionally Islamic country cannot be governed with legal norms freely enacted according to the people's democratic choice.

            This under-performance has several aspects. Though there is a common belief that Arabic countries are rich thanks to their resource of oil[2], there are two facts negating this belief: 1) not all, only some Arabic countries have rich sources [3] 2) Countries that have more natural sources are less productive, which is called resource curse[4]. The rent in these economies are spent for patronage, more than investment as it's the easiest and most attractive way of remaining in power in those countries.

            Military aspect of under-performance is most severely felt in Arabic countries' struggle against Israel. In spite of the defeats, Arabic peoples have kept on believing that it is not a matter of size, budget etc., but only the governments' inability to perform the military actions properly. It is so common a problem that every group that held power in Egypt and Levant region were deposed by the popular majority following their defeat or insufficient attack against Israel.[5]

            Social aspect of under-performance may be rated by the illiteracy and lack of democracy and other virtues in Muslim countries. Though these can be explained by the economic under-performance, there is also an argument that constitutional Islam, per se, prevents the social progress.

            Role of Institutions
            Just like in many under-developed countries, the Muslim countries tend to rely on their military as the most institutional organisation. This is natural in one way; armies are based on hierarchy and it is the easiest way to prevent individuals from seeking their own interests in spite of a collective interest; so armies become the, relatively, most institutions in Muslim countries.[6]

            In most of these countries, armies act as protector of constitutional Islam, which makes their oppressive government easily legitimate. However, some countries' armies act as protector of the secularism, as in Turkey in 1999 [7], or at least a shield against fundamentalism, as in Egypt.

            Therefore, having military as the only or the most remarkable institution of the nation is not caused by the interpretation of Islam. It is a natural result of the underdevelopment of the democratic institutions in the country.

            The Islamic scholars also constitute important institutions in Muslim countries, though their way of organisation may vary much depending on the country, the relevant Islamic sect and the political environment. The common function of them is the fact that Muslim people seek not the governmental authority, but scholar review of Islamic scholars in governmental acts, examining whether the government works in compliance with law[8]. This is a more democratic way of legitimacy through constitutionalised Islam. Iran's new constitutional approach is promising about full democratisation of this examination process, where Islamic scholar's review about a legislative act is denied by the vast majority of votes, it is considered that the scholars are missing a point in interpreting Islam, since Islam cannot be against the people's necessities.[9]

            Reasons of Failure
            There are several reasons attributed to these failures. The first is the colonial period, which was suffered by almost all countries with Muslim population[10]. However this is not a strong argument. First, it has been so long time since the colonial period ended and many countries cannot still provide political legitimacy, because they are seen, by their people, nothing more than substitutes of the colonial powers, especially in Sub-Saharan Africa.[11] Secondly, there are cases indicating a negative correlation. For example Malaysia, which has a significant history colonialism, is better in many aspects, than almost all, (maybe with exception of Turkey) other countries with shorter or lighter experience of colonialism.

            The colonial period is also seen as and indirect source of the instability, considering the ethnic disintegration in the countries they left behind[12]. However, there are also cases disproving this. Firstly, Somali, as a rare post-colonial country with integral ethnic structure is also the worst country in terms of governmental performance; it is a failed state. When governmental stability cannot be maintained together with political legitimacy, even the tribes of the same ethnic origin may cause a civil war that collapses the state. On the other hand, there are model non-Muslim countries with multi-ethnic structure, such as Switzerland, Belgium etc. Once people of a country has a legitimate common history[13], the ethnic differences may be tolerated by good governance.

            The failure of these states is also attributed to general nature of Islam, arguing that Muslim countries had stopped progress long before the colonial period. According to this argument, the religion of Islam prevents the people from making any advance of civilisation by its unchangeable nature stuck in centuries old collection of rules.[14] However, this is false in many aspects. Firstly Muslims are not the only group of people that fell behind the colonial powers; East Asian countries and non-Muslim sub-Saharan countries shared nearly the same fate. Secondly, there are many ways of interpreting Islam to create laws or to form a constitution. Being stuck in certain rules is not an essential nature of Islam.[15]

            For relative success, each country must base its legitimacy on its own way of Islam. And this legitimisation must be constitutional and be limited to ensuring the people about non violation of Islam. It must not be used as an instrument of authority or dogmatism. Constitutional mechanisms balancing the Islamic jurisdiction's power may maintain the stability with legitimacy.

            [1] Ebrahim Afsah, Constitution Making in Islamic Countries - A Theoritical Framework p. 40
            [2] Daniel Atzori, The Political Economy of Oil and the Crisis of the Arab State System, p. 4
            [3] Let us note that the term resource here does not solely refer to natural sources, but also foreign aids that are earned by chance of political opportunities, such as in Afghanistan and Sudan cases.
            [4] Ebrahim Afsah, i.b.i.d., p. 5
            [5] Third and sixth weeks' lectures
            [6] Third week's lecture
            [7] Second week's lecture
            [8] Fifth week's lecture
            [9] Nineth weeks's lecture
            [10] Ebrahim Afsah, "Creed, Cabal, or Conspiracy - The Origins of the current Neo-Conservative Revolution in US Strategic Thinking", p. 1
            [11] Clark Lombardi and Nathan J. Brown, Islam in Egypt's New Constitution, "Foreign Policy", December 13, 2012, p. 5
            [12] Iza Hussin, Islam, Ethnicity and the Problem of Mixed Legality: Two Malaysian Cases, "Yearbook of Islamic and Middle Eastern Law", 2010, p. 9
            [13] As appositely suggested by Nietzsche
            [14] Clark B. Lombardi, Designing Islamic Constitutions: Past Trends And Options For a Democratic Future, "International Journal of Constitutional Law" 2013, p. 2
            [15] Ebrahim Afsah, Characteristics of a Sacred Law, "Journal of the History of International Law 10, 2008, p. 283

            Muslim World's Modernity Challenge

            My essay on modernity challenge faced by Muslim world, written for online course

            Constitutional Struggles in the Muslim World
            by Dr Ebrahim Afsah

            1. What is special about modernity and which challenges does it generally pose to traditional societies?
            2. Which challenges did Iran face from the 19th century onwards and what had these to do with modernity?
            3. Which elements of the first three response patterns can you make out in modern Iranian history, and what accounts, in your view, for the ultimate success of the fourth in the shape of the victorious Islamic Revolution?
            My essay:

            The most remarkable modernity challenge faced by traditional societies, in particular Muslim societies is the inevitable series of loss in battlefield, in war(1), in diplomacy and lastly in aspect of culture and civilization(2). Though the modernity apparently stems from exclusively Western experiences such as Renaissance, Lutherism and the French Revolution, the total European modernity development is essentially supported by the economic gains, intellectual enhancement and political improvement provided by the geographic discoveries, which were simultaneously the cause for the fall of the Muslim societies. Iran was one, perhaps the worstly affected one of them.

            While Ottomans, having the Turkish Straits, and Egyptians, having the Suez, still had a comperative commercial advantage against the rising powers of Europe, as they are not totally left outside the main trade routes, Iran, the center of the Silk Road and Spice Road, the two  much more popular, profitable and dominating trade routes in the middle ages, was almost totally adandoned as the Europeans had now direct trade connections with China and India. Though Iran used to have cultural influence in nearly 2/3 of the whole Asian continent and had endless but mostly succesful military engagements with its surrounding countries (3), all of which were once established by former Persian statesmen at a point in history (4), it was now more difficult, than any other Muslim country, for Iran to set aside its proud global challenges, admit the inevitable economic downsizing and replace its habits inherited from the heroic past, with the new methods of the Western, which had been considered as the evil for centuries.

            All these factors combines, rendered Iran even more helpless against the invading powers of Russia ang Great Britain; when the governors and the people admitted the need for adopting the Western ways, the governmental institutions that could reach West and bring away the enlightment, as the case in Japan and party in Ottoman, were already ruined by internal conflicts and external hostilities. For Iran, the only way to obtain modernization was expecting it to come to Iran by itself; which was a rationale for welcoming, though not surrending to, the British and Russian territories of influence.

            Now it was too late for Iran, for emulation/secularism and the experience of accelerated adoption of Western culture failed by 1979. Unlike other countries, Iran could not and did not try religious reforms as a means for modernization, because Shiate was the only strong political instrument that the state could employ for providing the order among its people. And its efforts to be a rentier economy with modest traditional objectives was ultimately disappointed by the Amglo-American coup, by the end of which its democratically elected prime minister Mohammad Mosaddegh was taken to exile for rest of his life.

            So, the ultime success of today's Iran to be an advanced republic depends on its ability to create a sound checks and balances systems, formed of 3 elements at least; the current system with one (maybe two) centers of power is not reliable in long term, because once the economy of the country allows the state to challenge its hostile countries, the balance-seeking policy of Iran will evade into history and the constitutional structure will be the only guarantee that keeps Iran people secured from too marginal decisions about the country's fate.

            (1) Turkish-Russian War, Russian-Persian War, Second World War for Turks etc.(2) Low literacy, delayed industrialization and capitalization and inability to seize the technology and social & cultural developments.(3) Turkish-Persian wars between Timur and Bayazit, Hasan and Mehmet II, Shah Ismail and Selim I etc. on one side, Turkmen-Iran strugles on the other side and Iran's series of invasion into Iran, especiallay by Nadir Shah.(4) Ottomans are successor of Rum Seljuks, a Turkic state whose official language was Persian; Persian was also the formal language of Seljuks in Inner Asia and Mughals in India.

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