One of the problems perceived by Plato was "the inadequacy of words to express the nature of reality." And, I might add, far more so, a changing reality, or one even whose broad outlines cannot be confidently anticipated. You might well ask, "Who the hell is this Plato and why the devil should we, or anyone else for that matter, be interested in his speculative thought?" Now let's forget Plato for the moment. Language should, as far as possible, be clear and precise. But there's the rub, when trying to express in clear and precise terms matters that are themselves by their very nature not clear and defy precision.
Which brings me to the question of written constitutions which may require not only being adapted to changing conditions and circumstances but require a change to the very process by which the constitutions can themselves be changed. As an aside, a case that immediately comes to mind is that of the benighted Guyanese who have been long fettered with a flawed constitutional arrangement, whose legacy is that of a tattered economy and seemingly scrambled and shambolic race relations condition. What a pity, a land blessed with such vast natural resources pauperised by its politics and politicians. To return from that digression, even if a country's constitution needs to be changed from time to time, that, in my view, shouldn't be done flippantly or for frivolous reasons.
Now there should normally be safeguards in a constitution that can make it unduly rigid or too cumbersome a process of amendment. The US Constitution is a case in point. This is not speculating in a vacuum. For instance, there was that case of the commerce power of the US Congress, which initially envisaged an agricultural country with a few million people, being adapted by the judiciary (the US Supreme Court) to meet the economic needs of a great industrial power with 30 times the initial population. This was possibly a case where judges decided to adapt an old formula in a constitution to embrace new and unforeseen circumstances. This may have been justified on the ground that an unduly rigid constitutional process inhibited appropriate response to an urgent, strongly felt and pressing economic need.
On the other hand, it may be argued that it was not an adoption, as such, but the formula was sufficiently flexible to accommodate their particular interpretation. Thinking specifically of the US Constitution, the difficulty is compounded by the studied lack of clarity and precision of the language in which it is couched. I wonder what Plato might have had to say about that. Someone referred to "the elegant vagueness or the words written by the framers of the US Constitution." US Supreme Court Justice William Brenan stated that "the Founding Fathers hid their differences in cloaks of generality." Lawrence Tribe, professor of constitutional law at Harvard Law School, contended that the "teasingly opaque nature" of some of the majestic phrases in the US Constitution were not there by accident.
In fact, according to Justice John Marshall, the Founding Fathers intended that the US Constitution would "endure for ages to come and adapt to the crises of human affairs." Historian Henry Steele Commager was more specific and suggested that the framers deliberately selected "language flexible enough to anticipate an ever-changing society, economy and political crises." A close look at the aforementioned aspects should show that the problems alluded to are probably inherent in constitution making generally. In the US, the question of interpreting the constitution has given rise to some controversy, which spilled over into the front pages of newspapers.
For instance, whereas "rights and freedoms" are adverted to in absolute terms, it's inconceivable to me that one man could insist that the right to move his fist should extend to where another's nose begins. Now, I'm not being facetious, as some time ago a purported national "human rights organisation" in the US was insisting that debarring legally designated paedophiles from approaching a certain distance to a children's public swimming pool was an infringement of their (the paedophiles) right. Sounds unbelievable, but true. Moving from this ridiculous digression, Robert H Bork, a former professor of public law at Yale Law School, contended that judges should confine themselves to attempting to discern "the principle the framers of the constitution enacted and the values they sought to protect."
Going beyond this, those who subscribe to Bork's perspective aver that would amount to usurping responsibility from elected officials and acting like "a privileged governing elite," striking down laws and executive actions in the name of the constitution. On the other hand, Lawrence Tribe agrees with legal scholar Charles Black that "...a judge's interpretation of the constitution and construction of its intent are necessarily influenced and formed by his/her whole lifetime, by his/her economic and political comprehension and by his/her sense of where justice lies in respect of the great issues of his/her time." It might have been interesting to have Plato having the last word in the sophisticated legal exchanges.
Michael Delblond
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