January 27, 2004

Approving Constitutions

Steven Den Beste is shocked and appalled over this article describing referenda as a gamble that does not guarantee a positive result.

I'm inclined not to be so panicky. I think, instead, that both methods of passing judgment are flawed, though SDB's favored solution of referenda is closer to right than the EU elite class's reliance on parliamentary passage.

The flaw with referenda is that it is the voice of the mob and the mob can be misled by slick confidence men into making unwise decisions. This is less true than it was in 1789 at the passage of the US Constitution but it still does have some truth to it. But politicians are often elected not for their judgment but for their ability to milk the state teat for all its worth on behalf of their constituents and damn the national interest. Can such a politician be seriously relied upon to do what is right and good in the case of a momentous decision like the adoption of a constitution? I don't think so. They are at least as flawed an arbiter of such questions as the mass of people and even more dangerous.

You can see the bribes offered to the people. Their mass distribution means that they will probably be discovered, before or shortly after the referendum. But politicians who are money oriented can be swayed in much quieter ways.

The solution is a third system which is to convoke a constitutional convention, electing people with the sole task of passing judgment on the constitution. No doubt that this will include a good portion of the political elite but a "Senator Pothole" who concentrates on road repair and other such practicalities will likely be left off the list selected by the people. Other figures who are important intellectually but usually are not tempted to enter the political realm might also become delegates. Laurence Tribe and Robert Bork will never make it to the legislature but I can see them making it to a constitutional convention.

Constitutions are special documents and deserve special consideration. Just ramming an approval through a national legislature is not satisfying but neither is the blunt yes or no of a referendum. There is a third way out but nobody in Europe seems to be interested.

Posted by TMLutas at January 27, 2004 11:56 AM