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No such thing as a "rock solid" constitution

Anthony Barnett, 27 - 08 - 2008
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Anthony Barnett (London, OK): There  was a short, strong overview of the threat of an authoritarian, corporate cash cow database state by A.C. Grayling in yesterday's CiF. It reinforced the alarm set off by No2ID's Phil Booth in his excellent OK post. I particular liked Grayling's raised eyebrow over Seimens of Germany who are "already supplying 60 countries with a device that monitors and integrates data from phone, email and internet activity". Apparently its system is notorious for throwing up "huge numbers of false positives". I like that phrase "false positives". I suspect it will run and run, as in "We are all false positives now!"

My only objection was to Grayling's stirring conclusion,

We need to stop this assault on civil liberies going further, we need to roll back the attritions they have already suffered, and we need a rock solid written consitution to protect us from those who aim to make us all suspects in the gaze of the unblinking universal eye.

He should know better than that. No constitution, written or unwritten is "rock solid", nor is ever meant to be. Of course he is spot on to see that to roll back the surveillance state we need to constitutionalise our governing settlement. But this is in order for it to be lived in a democratic fashion, not to be set rock solid. Simply to change the governing culture we have to show everyone that our values are rooted in popular sovereignty encoded in a democratic constitition. This is the precondition for stopping the mandarins treating us as colonialised natives. But the constitition that results will be flexible as well as principled, an aid for us to better govern ourselves, a step on the road to emacipation and freedom, not a rock-like fixed point that we will have to bow down to. 

 

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A. C. Grayling (not verified) said:

Wed, 2008-08-27 14:38

Dear Anthony - much as I dislike disagreeing with you about anything I must pick you up on the 'rock solid' point. A constitution that is disposable at the whim of a currently prevailing majority of the legislature gives us nothing better than today's elective tyranny of the House of Commons, which gives any group the power to do whatever it likes if it has one vote more than the rest combined. By a 'rock solid' constitution I mean one that is not vulnerable to party politics or the accumulating off-piste absurdities of a government that has lost its way, but can only be emended by a major process itself consitutional - thorough debate, a referendum - and which institutionalises checks and balances among executive, legislature and genuinely independent judiciary (with the power to strike down laws in conflict with the constitution). The US constitution is not immune to ducks and drakes being played with it, as we see from the Bush years; but it has a lot to recommend it, and can of course be improved upon. What is no longer acceptable is for the party currently in power to dismantle, with an egregious combination of facility and stupidity, the rights and liberties gained by huge endeavour over centuries. - Good wishes to you as always - Anthony Grayling

Keith McBurney said:

Wed, 2008-08-27 16:01

Quote:
Simply to change the governing culture we have to show everyone that our values are rooted in popular sovereignty encoded in a democratic constitution. This is the precondition for stopping the mandarins treating us as colonialised natives. But the constitution that results will be flexible as well as principled, an aid for us to better govern ourselves, a step on the road to emancipation and freedom, not a rock-like fixed point that we will have to bow down to.

Yes please Anthony, albeit my preference would be for "constitutions". Accepting the generic as singular in both senses for now, what then are our means to that end - our governance? If limited to the present choices at the UK ballot box, it's been rather hit and miss at the hands of successive Conservative and New Labour elective dictatorships.

Even at this latest rock bottom juncture, can we rely on the yawning gap in their poll perceived positions to have created sufficient space for some to go boldly where none have gone before? Or can we afford solely to hope that the possibilities of wipe out or a hung parliament at Westminster might result in PR as an enabling step-change either before or after the next General Election? But would that breach allow all to flow through it past the remaining defenders of the status quo? Even if it did, must we rely on getting jammy tomorrow then jam the next day?

Instead, should we pin our hopes on a new model party of the people, neither royalist nor roundhead but citizens bent on creating our own civic polity in recognition that it is we who are individually and severally sovereign. Alternatively, in scorning what is considered to be an illegitimate franchise yet still taking it to task, would our energies to laud the good not best be served and directed towards setting up and running our own independent and open Citizens' Constitutional Conventions in each of our nations? The aim in outline here would be to determine what form of our governance we would prefer at local, intermediate and national levels based on the ingedredients of authority, responsibility and resources we would wish to see exercised by executives held to our account and on our behalf at each level.

If not that, what is our task and task force? If the "What now?" is not about “Who with?” but we, how do we make what we have fit for public purpose?

And do we wait whilst reinforcing success in the hope it will breed more. Or do we all gang the gether?

Aye Ours,

Keith, frae Fife and Yorkshire, for Independence and Union

britologywatch said:

Thu, 2008-08-28 05:10

Keith has hit the nail on the head again! Of course, it will have to be more than one constitution, as agreeing a single UK-wide constitution of the type AC Grayling describes seems unimaginable.

And again, if popular sovereignty is both the means and the end - which I agree it should be - maybe this does need to be a popular initiative; not something that the people tries to get our unrepresentative representatives to espouse and implement for us.

Dreaming somewhat, this could involve setting up an alternative people's parliament and government: a natural extension of the constitutional convention idea. Obviously, this would have - initially - no executive or judicial power; but it could provide a virtual model of an alternative type of English - yes, English - governance at work. Thinking aloud some more, how about a few hundred of us constitutional reform-minded bods putting ourselves up for membership of this august body, with selection following through a process of sortition, no less? Let's do away with the parties; although they could always be reintroduced in any later realisation of our People's Parliament when / if it became the real parliament. This parliament could even be virtual in the online sense, with debates and votes taking place over the Web.

I have a dream . . . but actually, we've got to do something - almost anything in addition to merely talking - if we want the dream to have any chance of becoming a reality. Think about it: in a couple of years' time, every time the Westminster parliament debated a constitutionally or otherwise controversial topic, its compromised deliberations could be compared by the national media with those of the People's Parliament. And the people might decide they wanted the latter.

James Graham UD said:

Fri, 2008-08-29 14:03

This is a matter of semantics, surely?  Even a rock will break if you whack it hard enough.

I'd want a constitution that is difficult to change (2/3rds of both Houses of Parliament maybe?), but not one that couldn't be changed under any circumstances.  I'm also very suspicious of the hypocritically pious constitution cult you see in the US, with people insisting that it should never be altered (never ever!) whilst simultaneously moving an amendment to outlaw gay marriage.  The idea that the social mores of a bunch of rich landowners and slave traders  200 years ago should be allowed to dictate modern society is frankly offensive, even if they were inspired by a lot of good ideas.

My ideal constitution would include, as its first principle "this document is a human, and thus fallible, artifact and must be allowed to evolve."

Keith McBurney said:

Sat, 2008-08-30 02:43

I wish to try hitting some more constitutional nails.

If popular sovereignty does not mean vested in, but belonging to each person, our preferred governance implies mutual ownership of our codified constitutions in being upheld by our parliaments and courts. And, given our imperfect understanding of the seen and unforeseen, we would be wise to incorporate the wisdom of past ages in their creation to meet our present and future needs.

Evolution will come with time in bringing changes worthy of amendment to cater for the unintended consequences of old and new considerations. This suggests reserving our right to review our constitution from time to time as evaluation of our examined lives befits.

Constitutions are our founding law: the buck of our governance stops with us. However, as we have seen, it would be the thin edge of a wedge in the hands of elective dictatorships if we citizens were to abrogate our responsibility of ownership by ceding it entirely to the judgement and amending action of our parliaments and courts. Such proportionate and precautionary grounds suggest referendums should be the assured means of ensuring our constitution remains fit for public purpose.

This would also recognise that neither parliaments nor we can be bound by our predecessors nor bind our successors. Hence our constitution should also incorporate our right of petition to effect change.

Pliers anyone?

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