The essay detailed below will evaluate the claim that constitutions are essential for maintaining democracy as it varies within different contexts. The essay will start by detailing the strengths of the constitution over the democratic process through its perceived authority. Further on, the essay will also weigh the instances when a constitution was not essential for maintaining democracy especially in national instability, this will provide a more balanced view of the effectiveness of a constitution. This essay will provide support for those claims by analysing key theories from Hobbes, Locke, and the social contract, whilst also reinforcing each point with a current or former world affair.
Cambridge defines democracy as “the belief in freedom and equality between people, or a system of government based on this belief, in which power is either held by elected representatives or directly by the people themselves” (Cambridge English Dictionary, 2020). That core principle complements the idea of a constitution which consists of “the basic principles and laws of a nation, state, or social group that determine the powers and duties of the government and guarantee certain rights to the people in it” (Merriam-webster, 2020).
The core reason why constitutions are essential for the maintenance of democracy is because of the authority invested in it, like the U.S constitution. It can be argued that the authority invested in the U.S constitution is supreme because it originates from consent, based on the social contract theory. A key theorist, Rousseau, theorised that the social contract is a consensual agreement (either tacit or hypothetical) between the people and a ruler or state, because the agreement is perceived as consensual it legitimises the authority of the state or ruler (Blackwell, 2012).
However, it is well known that after the American revolution the ‘Founding Fathers’ did not want a supreme ruler again to whom they would swear allegiance to, instead the supremacy of the state was provided to the U.S constitution, to whom all U.S citizens would swear allegiance to (Madison, 2020). This can be analysed as American citizen’s accepting that supreme authority lies with what the constitution dictates, meaning that all parts of the constitution must be obeyed because they consented to its authority.
This is further supported by theorist Thomas Hobbes, who believed that in a state of nature, which America arguably was during the revolution, citizens will obey whoever can keep the peace to leave anarchism (Wolff, 2006), so it can be concluded that the reason they consented to the constitution is because it ensured democracy and prevented the overthrow of the new republic. It is fair to argue that a democracy can only be prevalent where there is order, in a state of nature, where survival is the only priority, realists claim that that humans are selfish and self-serving (Weiss and Wilkinson, 2013). It can be presumed then, that only a nation of laws codified by a constitution could support democracy.
Democracy is at the heart of the United States constitution. A key way the U.S constitution maintains democracy is through its declaration of 3 co-equal branches of government; the executive, the legislature, and the judiciary (Madison, 2020). This allows the distribution of powers, so one could not act unilaterally. By allowing legislation to be scrutinised by all 3 branches of government it can be assumed this would reduce the chances of a tyranny of the majority (Brown, McLean and McMillan, 2018) because any branch of government can veto the legislation if they believe it to be unconstitutional, like removing the democratic rights of the minority or cancelling the democratic process of voting to their political advantage. It can be justified that restricting the tyranny of the majority would promote more equality and stop the republic from falling back into anarchy.
Moreover, it is broadly accepted that the most fundamental part of democracy is the right to vote. The Greek philosopher Aristotle also indicated his support for public opinion having a role in politics (Minar, 1960). As a fundamental principle in the U.S constitution, it makes the document the backbone for maintaining democracy. It explicitly indicates “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, colour, or previous condition of servitude” (Johnson, 2020, Amendment 15). This monumental constitutional amendment ensured that the constitution would guarantee all men, especially African Americans, have the right to influence the political sphere through voting. This is relevant as the impacts of the amendment ended decades of civil rights violence and the fear of another civil war (Tatel, 2015). The constitutional guarantee of the right to vote forced states to reverse voter suppression laws which further enhanced the democratic process. This shows the constitution is essential, as without the amendment, democracy would still be suppressed.
Furthermore, the first amendment of the U.S. constitution further supports the claim that constitutions are essential for maintaining order and democracy. But they also can appease liberal theorists like John Locke. The first amendment protects the freedom of religion, speech, and petitioning at court (Madison, 2020). Liberal theorist John Locke would support the fact that the state was prohibited by the constitution to suspend the Habeas Corpus (Kim, 2017) because it meant that there could not be unjustified incarceration against your will. It can be interpreted that the constitutional protection for freedom of speech would allow for healthy debate whether controversial or not. Only from debating issues like the critique of the state and governance could people learn new perspectives and implement new improvements to maintain a more sustainable democratic union.
In addition to that, the most controversial example of how the constitution can maintain democracy is through the second amendment which provides the “right to bear arms” (Madison, 2020, Amendment 2). The constitutional guarantee by the ‘Founding Fathers’ to own weapons means that every citizen is entitled to a gun. It can be understood the rationale behind this concept was for the citizens to protect their republic and its democratic values against any future adversary who sought to return them to unilateral rule. The impact of this declaration by the constitution allows for the protection of the constitution.
When reviewing the importance of a constitution to preserve democracy, it must also be acknowledged that not all constitutions are the same. In comparison to the U.S. Constitution which is a codified document there are other variant’s; the United Kingdom does not have an explicit constitution but rather an uncodified constitution consisting of acts of Parliament, precedent, court statures, and conventions like the Magna Carta (Political and Constitutional Reform Committee, 2015).
With that in mind, using the process of the United Kingdom’s exit from the European Union as an example, the several failed attempts for the divorce can provide a robust example of constitutional successes for democracy against unilateralism. In 2017, Prime Minister May attempted to subvert the U.K. Parliaments scrutiny and initiate the ‘Article 50 Withdrawal Agreement’ by executive authority; which resulted in litigation with the government at the U.K. Supreme Court (Casciani, 2017). The landmark ruling recognised the democratically elected parliament's sovereignty and declared that Article 50 must be passed through the Parliament (The U.K. Supreme Court Justices, 2017). By assessing these details, it can be concluded that the Supreme Court holding the United Kingdom Government accountable, guaranteed by constitutional precedent, further reinforced democracy by recognising the ‘checks and balance’ system between the executive, the Parliament, and the courts.
However, when assessing the claim that a constitution is essential for maintaining democracy there must be reference to the instances when a constitution does not protect against or encourages undemocratic practices. It is essential to understand both sides on the effectiveness of a constitution, not just in the west but across the world if we are to draw any conclusions on it.
In the United States, the second amendment of the constitution gives the citizens “the right to bear arms” (Madison, 2020, Amendment 2). It can be interpreted that this is to maintain democracy by allowing the citizens to fight against anyone who threatens their democratic rights in the republic. But the reader must also consider the possibility that separatists could exploit their constitutional right and arm themselves against the state with an attempt to overthrow a democratically elected president. Assessing the impacts of this amendment, it can be argued that the constitution justified armed warfare by the Confederacy, which started the American Civil War. The constitution was liberal and vague on the slave trade, so when the U.S government wanted to abolish slavery, the southern states revolted, claimed the government was acting unconstitutionally, and armed against the United States (Smith, 2016). Looking at this information, the constitution can be argued as problematic for a democracy by guaranteeing separatist guns which could overthrow an elected president.
The Electoral College in the United States is another example of why constitutions are not essential for maintaining democracy. Article 2 of the U.S. Constitution lays out the election process of the president by the Electoral College (Madison, 2020). Analysing this process, critics will argue that it is undemocratic to allow a president to be elected to office if he can lose the total popular vote of the United States but win the Electoral College and become president. Critics believe that if the majority of voters don’t vote for a president but still wins the Electoral College it proves that the constitution is not essential for maintaining democracy as it endorses an undemocratic process.
Dissenters of the constitution can also point to voter suppression by gerrymandering as an example of the constitution not maintaining democracy by not restricting voter suppression.
In the photo above, the blue shape represents 1 constituency for a U.S congressmanwoman. The constituencies' distorted shape is due to it the zone being drawn for political advantage, for one party. By drawing zones like this it allows political control over the demographics in each constituency. The photo above is drawn to favour the Republicans, as by drawing around the metro area, they avoid a large African American population who have historically voted overwhelmingly for the Democratic Party, so it gives the Republicans an unfair advantage at winning the constituency; gerrymandering has been referred as ‘rigged electoral maps’ (Wines, 2019). By reviewing this information, it creates a stronger case the U.S constitution does not maintain democracy as it does not restrict voter suppression tactics which are regarded as an afront to democracy. This creates questions on how essential is a constitution for preserving democracy in this era if fundamental democratic rights are suppressed.
Finally, a strong example is to look in the context of Pakistan. Pakistan’s codified constitution separates powers from the head of state (president) and the governmentcourts whilst ratifying a democratic process for elections. But during the ‘2007 State of Emergency,’ the president suspended the constitution, replaced Supreme Court judges, became commander of the army, and was accused of interfering in an upcoming election (Rodhe, 2007). This raises questions on the actual power of a constitution. Is it essential for maintaining democracy if it can just be suspended? The constitution did not stop the undemocratic and unconstitutional actions of the president. Theorists would argue that we must acknowledge that a constitution is only a document and relies on its citizens to protect it. Key theorist Thomas Hobbes acknowledges humans are selfish and put self-interest first (Hobbes, 1969), this is seen by President Musharraf suspending the constitution to hold power, so its reasonable to question if a constitution is essential for maintaining democracy if it relies on citizens, who are viewed as self-interested, to protect it.
In conclusion, when analysing all the facts the essay details how essential the constitution is for maintaining democracy. By weighing both the strengths and weaknesses of the constitutions’ influence over maintaining democracy, it is clear that the argument identifies it is more essential to have a constitution for maintaining democracy. However, the essay also identifies that national stability plays a role in the strength of a constitutions ability to protect democracy, the examples of Pakistan and the United States during their internal crises, civil rights debate and civil wars showed that the constitutions ability to preserve democracy is not effective when there is poor law and order.