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The Stability of Constitutions

What makes for the stability of a constitution?  In the United States, we take stability for granted, but “the median country faces violent political change about once every eight years.”  So what promotes constitutional stability?

Over the past several years, Barry Weingast has argued (along with some other authors, especially Sonia Mittal) that there are three basic conditions that are needed for constitutional stability.  Satisfying these conditions operates to promote a self stabilizing constitution.

1. The Limit Condition. The first condition concerns the fact that citizens are fearful of governments that pose a threat to their assets and well being. When a regime threatens citizens, they often will support extra constitutional actions to prevent the government from taking hostile actions.  Self stabilizing constitutions address this problem by lowering “the stakes of politics . . . by placing limits on legitimate government actions.”  In other words, if a constitution places significant limits on the actions that the government can take, then people have less to lose if the other party prevails.  They will then have less incentive to take violent or extra-constitutional actions to prevent a government they fear from governing.

2. The Consensus Condition. The second condition allows citizens to unite together to remove officials and governments that violate the constitutional limits. Since diverse citizens may disagree amongst themselves as to what the appropriate limits are, it is important to have focal points that people will agree upon.  Thus, the clearer the constitutional rules, the more likely there is to be agreement among the people and among the different branches of the government so that they check a government that exceeds its limits.

3. The Adaptation Condition. The third condition involves how the constitution responds to the shocks, such as technological innovations and demographic change, that all countries face.  The constitution must allow for it to adapt to these changes so that the three conditions are successfully maintained over time.

This question of what makes for a stable constitution is one that most constitutional theorists have ignored.  Yet, it is an essential issue for the development and maintenance of a successful, long term constitution.  The U.S. Constitution does well in terms of these conditions.  But, as I will argue in a future post, it does much better if it interpreted according to its original meaning.

Reader Discussion

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on October 22, 2015 at 14:23:40 pm

In “the median country faces violent political change,” on what parameter is 50% determined and how is “violent” measured? Is G.W. Bush’s faith-based declaration (action seems like a declaration) that the First Amendment’s religion clauses limit Congress (but not the administration) violent offense against the people?

1. I assert that the most important provision for limits is in the preamble to the constitution for the USA. Paraphrasing that civic sentence, the people in their states, who agree to stated goals, organize and limit a central government. The preamble is not secular unless the definition of “secular” is “areligious.” One might refer to that portion of the people who agree to the above civic contract, the preamble, as citizens, but then that would wrongly exclude dissidents to the contract. One might follow Aristotle, who described a citizen as one who contributes to civic justice throughout his or her life. But again, a person is a citizen merely by being born or naturalizing here.
You employ the phrase “if the other party prevails.” In your idea of “the other party,” who is the first party? I doubt it is the people who alienate the preamble to the constitution for the USA but assert the majority rebukes the preamble by calling it a secular sentence.
I assert that the inhabitants of the land are citizens, and the citizens are divided into two parties: Those who want to maintain—keep updated in detail but limited in scope--and effect the civic contract stated in the preamble versus those who don’t. Collectively, the two parties are We the People of the United States.
Everything else in the constitution for the USA is subject to change as needed by the people who work to use the preamble.
I assert they are a civic people—those who admit to themselves that inhabitants are connected because they occupy the same land or real estate. Within the culture of a civic people there are no-harm social factions that are appreciated and flourish--factional civic societies. Additionally there are alienators, dissidents, criminals, evils, and others who must be contained by civic morality, in some cases the rule of force, otherwise known as the law. A civic people must take charge of the monopoly on force, and their agents, whether elected or appointed, must have the power for enforcement.
2. Respecting consensus, it is obvious that neither theism, nor any other religious construct, nor science can be used to mediate consensus. Furthermore, a civic people cannot be divided on hereditary economic status. Citizens, who together produce the gross domestic product, must have equitable shares or stakes in the GDP. Fundamentally each collaborative adult's share must cover the cost of living plus 15% for accumulation of assets. Those who take financial risks cannot be protected against those who provide consumerism and rescue risk-takers when they take too much risk. Industries that prosper on war cannot be protected from supporting the supply of warriors. Presidents who would take the people to war based on influence from their personal god-of-everything must be kept out of office. A president who would bankrupt the country trying to control hurricanes is no worse than one who would bankrupt the world trying to control global warming as evidenced by scientific studies, and such presidents must be kept out of office.
A civic people need a reformed basis for mediation of consensus. We propose physics, defined as energy, mass and space-time, from which everything emerges as the mediator. Humankind inexorably marches in the continual discovery of the emergences from physics and how to best benefit from them. Understanding how to benefit constitutes the ethics, and the interrelated understanding comprises physics-based ethics. The emergences respond to nothing humankind may do: reason, coerce, pray, worship, force, construct, lie, fictionalize, and so on; the emergences persist and humankind must respond in order to benefit.
The first step in the discovery of the emergences is imagination about a perceived observation (which may be a mirage). The imagination of a god of everything is a first step that was taken by many cultures. However, so far, physics neither confirms nor denies the existence of a god of everything. So far, humankind had not imagined how to test the theory; that does not mean there is no theory. Thus, every no-harm person’s heartfelt god of everything is indisputable. However, regardless of their motives, people who perpetrate harm must be contained; limited; incarcerated. There can be an over-arching culture of a civic people who collaborate for consensus on physics-based ethics. Scholars hesitate, because physics-based civic morality has never been tried. However, the scholar who spends some time on it can help effect the reform.
3. The USA has not adapted to its own “melting pot,” which in its mere existence offers the opportunity for the achievable culture of no-harm personal liberty with domestic goodwill—PLwDG (revised from PL&DG, which used the vague conjunction, “and” now "with"). As long as the population was 100% Christian, there was religious consensus imposed on civic consensus, which inhabitants now observe is merely erroneous tribalism: Protestantism vs Catholicism vs Orthodox; Protestant sectarianism with its internal squabbles; black church vs white church; black god vs white god vs red god vs philosophies; on and on. But now, with a more diverse population, inhabitants may collaborate for an over-arching culture wherein every no-harm religious institution may flourish for their believers.
Since 1790, the demographic has changed from nearly 100% Christian with 6% of citizens (excluding slaves) able to vote to 70% Christian and 24% non-religious and 100% of non-criminals able to vote. An even more urgent need for reform is how to pay the bills and encourage contributions: constructive distribution of GNP according to value of each person’s collaboration for civic morality.

I have written before in this forum that the originalist debate isolates constitutional scholars to egocentricity that cannot possibly serve a civic people of the United States. My points are that inhabitants no longer represent inhabitants of 1787, governance under a god of everything has over two-hundred, twenty-six years proven itself a disaster, and protection of property at the expense of contributions to civic morality is divergent.

USA history spans twenty-eight 8-year “median country . . . violent political change.” Going back to before does not serve the people, and the importance of the constitution for the USA pales before the quest for safety with personal well-being of each of the people. A stable constitution would empower PLwDG.

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Phil Beaver
on October 22, 2015 at 16:44:19 pm

What makes a constitution unstable? Control those things and what you have left is a stable constitution, yes?

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Scott Amorian

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