| | Jonathan Fauth wrote: "A constitution is simply a piece of paper. Once you grant an entity (gov.) the power of coercion, nothing can prevent it from doing what it wants."
A constitution need not be "a piece of paper." The British constitution is unwritten, though elements of it, such as the Bill of Rights of 1689, are documents.
Ideally, a written constitution summarizes the reality of the political expectations of the governed and their government. Read the documentary history of American constitutionalism at the Avalon Project of Yale Law School. The Albany Plan of Union and the New England Confederation were laboriously detailed, even tortured. However, by 1776, when new state constitutions were required, better efforts resulted. The Article of Confederation built on that. The current Constitution capped them all -- based on the experiences of the people who wrote and approved them.
On the other hand, the world has perhaps 150-180 other "constitutions" that are little more than paper of no value. Thirty years ago, a military leader swept into power promising a new constititution. The first one said that no one can serve as president twice -- so he was declared president for life, serving once. Perhaps there was a "crisis" and the parliament granted him "emergency powers" -- then the constitution was "amended." Sometimes there was a series of constitutions as one coup followed another.
Peculiar to the United States, our Supreme Court rules on the "constitutionality" of laws when they are appealed on legal grounds. A good example are the laws against burning the American flag. In Texas v. Johnson (491 US 397; 1989) and United States v. Eichman (496 US 310; 1990), the Supreme Court struck down those laws as being violations of the First Amendment. This experience allows Objectivists to posit a correctly written constitution, supported by courts of "objective law", that effectively limits the government.
However, for every example of limitation, there is at least one counterexample. The so-called "Yankee from Olympus" Oliver Wendell Holmes never met a government power he did not like. When the railroads attempted to challenge Jim Crow laws by putting up a white man, Homer Adolph Plessy, to challenge Louisiana's segregation statutes, they lost. On the eve of World War II, the Supreme Court forced religious adherents to salute the American flag -- with the same right forearm extension used by the fascists ... and then they reversed themselves quickly...
In no case -- the United Kingdom, the United States, Ruritania, Zamunda, or San Marcos -- does a constitution limit the government. Ultimately, every government rests on the consent of the governed. Dictators brutally crush opposition, it is true. It is arguable whether or not the opponents of a cruel regime would be any better once they were in power. Remember that in the United States of 1798, it became a crime to criticize the government. The American federal government was not held in check by the Constitution as much as it was by the frontier.
Can a constitution ever be amended? Earlier this month, we narrowly escaped yet another attempt at a "flag burning amendment." When one passes, it will become the law of the land.
(Edited by Michael E. Marotta on 7/27, 5:29am)
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