Under the Law

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If you'd told me two years and three months ago that I would ever be devoting any time to thinking about the constitution of Afghanistan, I would definitely have killed myself. However, now that we're here: Julian notes that there is an immense problem in its failure to guarantee the rights of women and religious minorities, but the real issue may be one that's salted through almost every clause in the document. Give the constitution a read-through (PDF), and see how many times you run across phrases like "within the limits of the law," "before the law," "under the law," "regulated by law," etc. This, as Chibli Mallat, an expert on Islamic law, noted to me, is a common feature of the constitutions in most of the Arab countries as well, where every mention of individual rights has a qualifier about "within the law" or some such.

For example, take a look at Article 34 on freedom of expression, which provides for unencumbered rights to publish "by observing the provisions stated in this constitution," then says, "Directives related to printing house, radio, television, press, and other mass media, will be regulated by the law."

Article 36 allows "un-armed demonstrations," but only for "legitimate peaceful purposes." So you're allowed to demonstrate, except when you're not allowed. (No right to bear arms, natch.)

Other beauties:

You need state permission to establish a schoolβ€”not just to get it accredited, but to establish it at all.

Military conscription is enshrined in Article 55.

The President declares war (arguably no different than the way it is in the U.S., but still)…

The state owns all mines and underground resources, foreigners are not allowed to own real estate, and so on.

And finally, it's 47 pages long. Any constitution longer than ten pages has got to be trouble.

This is a horrible constitution that no human being, Muslim or not, would want to live under.

[Responses of the "So I guess they were better off under the Taliban, huh, smart guy" school will be acceptable within the limits of Hit and Run law.]

NEXT: You Move It to the Right

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  1. Limiting consitutional rights by enactment of law isn’t unique to Afghanistan.

    Here’s the first clause of Canada’s Charter of Rights and Freedoms:

    ” 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

    What good is a constitution if it can be trumped by lawmakers who choose to prescribe “reasonable limits”?

    I thought it was supposed to work the other way around. The consitution should impose reasonable limits on lawmakers.

  2. Slippery Pete has it right.

    A constitution is not supposed to be the giant rule book describing how to handle all possible situations. It is supposed to be a framework that describes how different government bodies work together, what their spheres of influence or decision-making are, and what spheres of influence are reserved to the people.

    It is a system for getting along.

  3. Slippery Pete,

    Hmm, well, that may be one opinion, but here is some counter-evidence:

    *Britain has an unwritten constitution, that if it were put in order, is several thousand pages long (million pages?); yet it has had a successful run at being a liberal, capitalist society for quite a long time

    *The US constitution is short certainly, but that has hardly kept Americans from fighting a civil war, repressing the rights of minorities (when they had rights at all), or stamping out dissension regarding what the constitution means.

    *Several Latin American countries have had short constitutions; it did not save them from coup d’etats, etc.

    So I could make the equally valid argument that a short constitution, because it is neccessarily vague and leaves out a lot of areas of future discussion, can be just as much trouble.

    BTW, please point out the cabbage portion of the proposed European Constitution; having read it in its entirety, I can’t say I remember that part.

    Also, the actual length of the proposed European Constitution is much less than 231 pages; with all the headers and generous spacing, it does expand out to around 231 pages, however.

    BTW, I have found that everyone I have discussed this issue with has never actually looked at the constitution it self; which I find to be rather bizarre.

    The proposed constitution can be found here: http://europa.eu.int/eur-lex/en/treaties/dat/constit.html

  4. A constitution that has exceptions for stuff that’s “within the law” is not a constition at all. A constitution is *above*, and a limit on, any ordinary laws.

  5. The whole purpose of a constitution is to establish those things that are easy for legislators to do to citizens so as to distinguish them from those things that require a revision to the constitution before they are foisted upon the citizenry.

    It makes no sense at all to build ‘within the limits of the law’ into a constitution, because this critical distinction is not being made. Each item in a constitution must provide a test that can be failed. Otherwise, you have just created a giant piece of toilet paper that might be in a shape that Americans will find appealing.

    Then again, perhaps that is the only way you can go when you are trying to enshrine a theocracy that the US can publicly accept.

  6. Really, that’s what’s most disturbing about this constitution–nearly all of the provisions for the protection of civil liberties and political rights can be trumped by the actions of the legislature. As I noted in my original analysis, the constitution makes no effort to prevent Taliban leaders from running for elected office, and they haven’t been able to prevent the warlords from intimidating more moderate political opponents. That, combined with the legally mandated Sharia-ruled judiciary, means that the legislature is likely to have many, many members with the express goal of limiting the rights of non-Muslims, women, and political moderates. And under this constitution, it would be perfectly legal for them to do so.
    Is it better than the Taliban? Probably. But it’s nowhere near as good as every human being on earth by rights deserves.

  7. Russ,

    Well, the American Bill of Rights have never been read so as to trump all government decisions; this is even true of the First Amendment. The Fourth Amendment has a lot of qualified, and rather vague, language:

    “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

    At first glance, you have to ask the question: What the fuck is an “unreasonable” search and seizure? And what the fuck is “probable cause?”

  8. Merovingian:

    The question is whether the constitution is designed to be a functioning institution. You can have a constitution that says anything at all, if you are just going to ignore it.

    A short constitution doesn’t prevent later generations from ignoring it, but a long constitution is almost certainly addressing more than the ideological role of government, and one that includes ‘to the limits of the law’ is specifically designed to be ignored.

    If you are building a constitution that is going to be used as a way of protecting minorities from majorities, there is virtue in brevity and in the appeal to principles. If you are not designing a constitution for that purpose, why are you bothering? Why not just say, “The gov’ment can do what ever the hell it wants,” and be done?

  9. The U.S. Constitution was not expressly intended to be the supreme law of the land (whatever that means), it was intended to be a delegation of limited sovereignty from the sovereign states to the new federal government. Much of the Constitution therefore addresses those limits vis a vis the states as the subsequent Bill of Rights addresses those limits vis a vis individuals. It was CJ John Marshall in Marbury v. Madison and McCulloch v. Maryland, etc., who first expressly claimed constitutional preemption.

    The notion that an essentially primitive tribal people are suddenly going to embrace democratic pluralism is, to put it mildly, naive, especially given the difficulty the West continues to have with the idea. Moreover, given a mindset and world view that presupposes (1) God is on their side, (2) they (and only they) are on God’s side, and (3) everyone else is evil, corrupt, damned, etc., it would be *immoral* (from that point of view) not to insist on their theocratic rules.

    BTW, social contract mythology aside, who among *us* ever agreed to the laws under which *we* live? I vastly prefer *my* oppressive government to most other oppressive governments, but aren’t we just, as the old joke about hookers goes, quibbling over the price?

  10. If Britain’s constitution is unwritten, then how can we debate its length?

    You cite the US Constitution and the fact that it failed to prevent civil war. Interesting case. Since slavery was legal and common when our constitution was drafted, had your preference been followed, the right to own slaves would necessarily have been written into the constitution. Or a constitution would never have been written. You see this as an improvement, eh?

    Your Latin American examples are wholly beside the point. Correct me if I’m wrong, Mr. constitutional expert, but I doubt many Latin American constitutions enshrine the right to commit coups d’etat. Is it your position that they should, or is it just that longer, more complicated constitutions are likelier to actually be obeyed by would-be juntas?

    You seem to have missed my point entirely.

  11. BTW, those questions are of course addressed to Jean Bart.

  12. The Merovingian wrote in the other thread –
    “I would also suspect that a large portion of Afghani women think its right and proper to wear Burkhas;”

    Amy is obviously talking about women who would rather not wear a burkha but would be coerced into doing so, explicitly or due to social ostracism. Contrary to your TV viewing, Kabul used to be very cosmopolitan before the advent of the Taliban. There is nothing “natural” about the current state of affairs in Afghanistan.

  13. Hi Jean Bart,

    your examples don’t really make sense to me. I have read the EU constitution discussions, etc, looked at it, etc. I know the Danish representative to the discussions from a few years ago, Bertel Haarder. I know a few others there, too. I follow this extensively through the left wing, staunchly pro euroleft, DerStandard, and through the neoliberal pro euromuscle (sorta the neocon of europe) diePresse. I know the head of the Goethe institute here in town whose charge is to promote “european social market economy and culture”. I know a professor at Roskilde University who got a EU grant to “prove” how english (american) is killing cultures and must be stopped, preferably forced by the EU ?berstaat.

    the US constitution and the civil war — how was the constitution supposed to prevent the civil war?

    to answer the question about the minorities, just look at the squeamish people who feel that those of us who object to the HUGE role of religion in public life are accused of religion bashing. We probably should ask them about that shit. These are the same people who talk about being “classical liberals”. go figure. i despise them as much as the pro eu camp. for the same bullying reasons.

    I do know quite a bit about the EU, i was in vienna for the months leading up to their 1994 referrendum, and i was in a seminar next to a student leader for that. I was in Denmark for their 1992 Maastricht. I was there also for all their subsequent votes. a friend from stockholm worked against the swedish vote for the currency, but failed to do it in the fall of 1994. finland’s anti eu group got stomped on, and it lost its university money for antisocial reasons. you bet i get worried about the eu.

    I know how Mitterand and Kohl threatened denmark pre maastricht, the snakry comments against norway, etc. the smoke and mirror show with the 3% is also a joke.

    As a libertarian, I am against the entire EU lock, stock, and barrel. I feel it has NOTHING to do with Liberal principles.

    This is not a tit for tat discussion. Attacking the oh so many things that Bush, Clinton, et al do wrong is no excuse for the EU excesses and the lack of liberty over there. We can get into vehement agreement about the terrible state of affairs on this side of the pond, too, but that Bruges site is pretty good for going after the awful EU. Cato does some good work on that, too. Liberator.dk has some good stuff, as well. But please don’t try that “us agricultural policy is as bad as the CAP” stuff. That is self evident for a libertarian. The hypocrasy on both sides is enough to make you puke, but the more bureaucratic top heavy EU with its mega political elite class is, for me, much much worse (although the theocrasy we’re starting is gonna trump that. dammit, it’s not a contest)

    on the lighter side, how is the article coming along? and you’ll find that most of the people who criticize the eu might not know much about it, you’ll also probably confirm that most of the fox news france bashers can’t point it out on a map either. we can get into vehement agreement about those types on both sides of the pond, too!

    in the mean time, joyeaux vendredi!

    amicalment,
    drf

  14. Jason Ligon,

    “A short constitution doesn’t prevent later generations from ignoring it, but a long constitution is almost certainly addressing more than the ideological role of government, and one that includes ‘to the limits of the law’ is specifically designed to be ignored.”

    Well, yeah, that’s your assertion, but so what? The problem for you is that there have been successful, long constitutions; and when I say successful, I mean multi-generational. Costa Rica’s constitution is relatively long; and it is a rather successful country; Britain’s is very long, complex, and not even written down, yet is a very successful country. France’s most successful constitution, that is the constitution of the Fifth Rebublic, is the longest constitution that its ever had! Your theory breaks down when it meets reality in other words.

    “If you are building a constitution that is going to be used as a way of protecting minorities from majorities, there is virtue in brevity and in the appeal to principles.”

    Except in the US, which has a fairly short constitution (about eighteen pages), said brevity didn’t help several minorities – religious (Mormons and Catholics), racial (blacks, asians, etc.), ethnic (Irish, Italians, etc.) – from a whole lot of flat out tyranny, government discrimination, etc.

    I think this metric is flawed at best; at worst, its I think its colored with a lot of national chauvanism. There is a lot more to this issue than the of the length in my mind; what the document says, how its enforced, and the culture in which it exists are far more important in my mind than its mere length.

  15. The U.S. constitution seems to have been written to limit the power of government.

    The E.U. constitution has been written by bureaucrats to keep the population well regulated.

  16. “Except in the US, which has a fairly short constitution (about eighteen pages), said brevity didn’t help several minorities – religious (Mormons and Catholics), racial (blacks, asians, etc.), ethnic (Irish, Italians, etc.) – from a whole lot of flat out tyranny, government discrimination, etc”

    that is a huge issue that i think cuts to the problem of governmental power. the brevity didn’t help against the interment camps during WWII, either. and look at now. The “anti-terror” knee jerk is damaging us more than the terrorists did.

    just use courier font and set the spacing, you can reach the 25-35 page limit with the constitution with those means. the margins are also a good spot πŸ˜‰

    drf

  17. drf,

    Oh goodness, people play hardball politics?

    My examples are extremely pertinent. The entire point of the above meme that “short constitutions” are good is that they neccessarily perform better than a long constitution.

  18. John,

    Hmm, there are lots of limits on the power of the government in the proposed EU constitution as well. Read it some time.

    The US constitution also grants a lot of powers to the federal government, such its ability to regulated commerce (international and interstate), so it was not wholly written to limited the power of the federal government.

  19. As far as Constitutions go, I think that the Americans came pretty close to perfection. (BTW, I’m Canadian).

    There are some serious pitfalls in the document:

    1. “General Welfare…”

    2. “Well regulated militia…”

    3. “to coin money, regulate the Value thereof…”

    4. “to regulate Commerce…”

    5. The even numbered amendments incorporated between 1789 and 1920.

  20. drf,

    I am very much in favor of the EU.

  21. hardball politics πŸ™‚

    very nice! and a good call. after a recent hardball incident in academia, your words resonate very well, and that’s a very well taken point.

    (sorry — images of chris matthews going through my head)

    the problems with the “hardball” during campaigning for the eu was that the state used its powers and its state run media only to present the one side. if it were a free-for-all like the campaign for the north shore seat a coupla years ago, then that wouldn’t be a issue!

    have a good one!
    drf

  22. Bart – Perform better at WHAT? You seem to measure the success of a constitution by how many years it’s been in force or how frequently people choose to ignore it. That’s not a terribly useful gauge.

    I think Tim and the rest of us short-constitutioners here understand that short constitutions are short because the list of things the government may do is short. Unless most of that 231 page Euro constitution consists of a gigantic bill of rights, then it’s a novel-length list of stuff the government may do.

    And, you know, that’s not good libertarian politics. I thought this was a libertarian site, after all.

    (But, happily, you’ve told us it’s mostly headers and footers.)

  23. hey Jean Bart,

    Why are you in favor of the EU?

    most people i know talk a game about free trade, prevention of wars, and nobody talks about the “desire to be the world’s hegemon and be like the neocons in america”, which is how i perceive the EU from both living there and here.

    what are some of the properly functioning (not on paper) reasons you’re for it?

    damn — another friday with good discussions. it’s time to hang up the mr rogers coat and take the afternoon off πŸ™‚ this is great stuff.

    cheers,
    drf

  24. “Except in the US, which has a fairly short constitution (about eighteen pages), said brevity didn’t help several minorities – religious (Mormons and Catholics), racial (blacks, asians, etc.), ethnic (Irish, Italians, etc.) – from a whole lot of flat out tyranny, government discrimination, etc.”

    As I said, anyone can ignore a short document, as in the US. You can also choose to have a document that you don’t appeal to as an institution of government. The question is, when appealed to as an institution, does the constitution serve any purpose? If a constitution goes beyond foundational principles and tests for rights that can be failed, it is not possible to use it as constitutions are supposed to be used. If you appeal to the UK and its “unwritten constitution”, you are saying that if there is sufficient liberal history in a country, you might not need a constitution to have a ‘successful country’. I agree. Ditto with France’s short lived constitutions. You are conflating the success of a country with the success of a constitution. You can be successful as a country in spite of your constitution being a worthless institution, so long as you have sufficient weight towards liberty in your culture, the structure of your government, and so on. This is not to say that you should begin the process of creating a constitutional government with a rambling document that protects no one.

    “I think this metric is flawed at best; at worst, its I think its colored with a lot of national chauvanism. There is a lot more to this issue than the of the length in my mind; what the document says, how its enforced, and the culture in which it exists are far more important in my mind than its mere length.”

    All important variables, but unless you are going to argue that the extra length is devoted to internally consistent issues of principle and structure, the extra length is necessarily putting minor points on institutional par with major principles. Once you have a defined principle and a nit picky point side by side in the same document, people are left to conclude either that the nit picky point is of equal value or that the document is flawed. People will choose B, and the document will be ignored.

    Ask first what purpose does my constitution serve? Then create a document that does only that.

  25. The dangers of a long constition: Here are a few nice gems from the EU’s proposed constitution. (I did not include headers and footers.)

    EVERYONE HAS THE RIGHT TO COMPULSION
    This right includes the possibility to receive free compulsory education.

    DEPT. OF REDUNDANCY DEPT.
    (b) the prohibition of eugenic practices, in particular those aiming at the selection of persons,

    PARENTING
    Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

    WOMEN SHALL BE EQUAL, IF NOT MORE SO
    Equality between men and women must be ensured in all areas, including employment, work and pay.

    The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.

    TAKING MOM TO THE FOOTBALL GAME
    The Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life.

    JOB PLACEMENT
    Everyone has the right of access to a free placement service.

    NO ONE MAY WORK AT KFC
    Every worker has the right to working conditions which respect his or her health, safety and dignity.

  26. The dangers of a long constition: Here are a few nice gems from the EU’s proposed constitution. (I did not include headers and footers.)

    EVERYONE HAS THE RIGHT TO COMPULSION
    This right includes the possibility to receive free compulsory education.

    DEPT. OF REDUNDANCY DEPT.
    (b) the prohibition of eugenic practices, in particular those aiming at the selection of persons,

    PARENTING
    Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

    WOMEN SHALL BE EQUAL, IF NOT MORE SO
    Equality between men and women must be ensured in all areas, including employment, work and pay.

    The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.

    TAKING MOM TO THE FOOTBALL GAME
    The Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life.

    JOB PLACEMENT
    Everyone has the right of access to a free placement service.

    NO ONE MAY WORK AT KFC
    Every worker has the right to working conditions which respect his or her health, safety and dignity.

    This is just from Part II

  27. There are some serious pitfalls in the document

    Really, at least a couple of these are not so much pitfalls as clauses that have been deliberately an obtusely misread for political purposes

    The General Welfare Clause is written, not as a grant of power to the government to do whatever advances the general welfare (as it is often misread), but rather as a restriction on government, stating that government may not do anything unless it advances the general welfare.

    The “well regulated militia” clause in the Second Amendment is not a limitation on the right to keep and bear arms. Rather, it is an attempt to reinforce the importance of that right by stating its purpose. At the time, the “militia” was pretty much the sum and substance of America’s national defense capabilities.

    The Interstate Commerce Clause is not drafted particularly tightly, but it is much more consistent with the power to regulate the means, but not the content, of interstate commerce. The cases underlying the expansion of Commerce Clause power into a sweeping police power will make you weep – the linchpin of this line of cases held that wheat grown and consumed entirely on a single farm was nonetheless in interstate commerce and subject to federal regulation.

  28. DA: Point well made about the US Constitution delineating Federal v. State v. Individual. It doesn’t address a host of specific issues, because as I like to believe, those things can be handled beneath the federal level and differently in different States.

    Afghanistan accepting(?) that there is an authority different from religion seems a good step. Rights that can be subverted by law is not a perfect answer, but a decent start.

    If I didn’t like Maine’s defintion of cabbage, I could move to Virginia, where the cabbage is more accurate, but still retain a basic set of rights.

    Would the US Con be more like the EU if we included the entire body of US Code laws?

  29. The EU is a good idea in principle. They seem determined to reverse the trend of nations starting out lean and efficient then burdening themselves with regulation over time though.

  30. RC: I love that reading of the GW clause, but wouldn’t it be argued that something which promotes a specific subset of welfare implicity promotes general welfare?

    And, where can I find that wheat case? I need a good cry…

  31. Wow,Pete, those are some real gems.

    “The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.”

    Aren’t males under-represented, in terms of numbers, globally?

    “This right includes the possibility to receive free compulsory education.”

    HUH, “you will be indoctrinated”…but we can’t charge you for it….

    “Everyone has the right of access to a free placement service.”

    Where’s the law that states a certain number of people must work for free at the free placement service? Or is it an empty room (constructed for free) you go to to meet employers?

    I’ve got to print out a copy of that thing – my leftist friends are going to drool all over it.

  32. “Would the US Con be more like the EU if we included the entire body of US Code laws?”

    Not sure I understand. The U.S. Constitution presumed a sort of federalism which arguably began to be undermined by the Marshall Court, was certainly changed significantly by the Civil War and has all but disappeared since the New Deal.

    In principle, it’s much easier to repeal a bad law in the U.S. Code than to amend the U.S. Constitution, so in the sense that the U.S. would have an even worse system than it now has, yes, I suppose it would be more like the proposed EU constitution.

    I don’t get too worked up over “original intent” arguments or short vs. long constitution arguments because the system is never any better than the people who administer it and they are never any better than the people who elect them (or, at least, tolerate their leadership) insist they be.

    Thus, I also don’t expect much from any Afghani constitution. As human beings we may all be the same, but the cultural differences between the West and the Arab world are so vast one might as well argue about whether it would be easier to get a cat to play the tuba or the violin. (shrug) Beats me.

  33. You guys are making my original point.

  34. Yes, but we’re doing it so much more eloquently!

  35. I been looking at what posts get the most comments on this site and my conclusion is–sex, drugs, and constitutions. Go figure.

  36. I’m up to page 17. Seems like an okay document. I wonder how it compares to our Articles of Confederation?

  37. From the EU draft constitution Preamle:

    “Convinced that, thus ?united in its diversity?, Europe offers them the best chance of pursuing, with due regard for the rights of each individual and in awareness of their responsibilities towards future generations and the Earth, the great venture which makes of it a special area of human hope,…”

    Yikes. The simultaneous enshrinement of an oxymoron and the wisdom of Paul Erlich into a statement of guiding principles. Be afraid …

  38. Pete,

    “I think Tim and the rest of us short-constitutioners here understand that short constitutions are short because the list of things the government may do is short.”

    Of course, in reality, that’s not the case. Short constitutions, because they are neccessarily vague, leave much unsettled as I have already argued – as such, they allow lots of meddling around the edges.

    Jason Ligon,

    Your defense that later on people can ignore short constitutions, etc. is hardly a defense for a defense for a short constitution, and simply illustrates my point. The more you leave unsaid, the more likely you are going to get people who will bend the document to their will.

    Mark Fox,

    The original US Constitution, meaning the part without the amendments, doesn’t really talk about individuals at all; in fact, most of the document which addresses individuals is in the various amendments.

    Joe2 & Slippery Pete,

    I think essentially you unwittingly point out what you don’t like about the EU constitution; it has a lot of positive rights that you object to.

    BTW, the notion that Americans don’t want positive rights is hogwash; there is no great call to abolish compulsory public education amongst most Americans, or to end welfare (reform it yes, end it no), or get rid of unemployment insurance. That you’ve enshrined these “rights” (and yes, one has procedural and some substantive rights in these things) outside your Constitution, does not mean that they do not exist.

  39. Compulsory education is a right?

  40. D.A. Ridgely,

    Sure, if the state says that all children must be educated to some level of quality, then by neccessity citizens have a right to that level of quality of education. In fact, in states like Mississippi and Alabama fractious court cases have been fought over the state not living up to those standards it itsels set.

  41. Human Dignity:

    Human dignity is inviolable. It must be respected and protected.

    No Torture:

    No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

    Liberty and Security:

    Everyone has the right to liberty and security of person.

    Personal Data:

    Everyone has the right to the protection of personal data concerning him or her.

    Freedom of expression:

    Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

    Freedom of the Arts & Sciences:

    The arts and scientific research shall be free of constraint. Academic freedom shall be respected.

    Of course a lot of you are going to argue that many of the freedoms in the Charter can come into conflict; of course the same is true of any constiution, including the US Constitution (think about balancing the Free Exercise Clause with the Establishment Clause).

  42. “Your defense that later on people can ignore short constitutions, etc. is hardly a defense for a defense for a short constitution, and simply illustrates my point. The more you leave unsaid, the more likely you are going to get people who will bend the document to their will.”

    I guess I don’t understand what your idea of the purpose of a constitution is. If you have an assumption of liberty, the document should be very short. If you create a document that assumes power to regulate anything not mentioned in the constitution, you are hosed from a liberty standpoint.

    What is your vision of a good reason to have a constitution?

  43. Saying that people must be fed vegetables and then proceeding to force feed them lima beans is not giving or honoring or protecting a right, it is compelling behavior.

  44. It depends on how you define a ‘right’. The traditional ‘natural rights’ definition would preclude you having a right to anything that someone else had to give you. Thus, under natural rights, there can be no right to education, or a job, or lima beans. You have a right to persue these things as a natural right, but you can’t compel someone to give them to you.

    These days, there seems to be a notion that government grants rights. Rights are something inherent to every human being, derived from God (if you believe in that kind of thing) or derived from our nature (if you don’t). I have a hard time accepting a notion of rights that can compel other people to do things on my behalf.

  45. Quick reminder. This thread was supposed to be about specific provisions in the proposed AFGHAN constitution.

  46. No, Jean Bart, that’s not what I’m saying. What I’m saying very simply is that if you make EVERY GODDAMN THING a constitutional right…if the right to talk back to your mom, for example, is elevated to constitutional status…then the document becomes extremely difficult to amend, and defintions of “rights” cannot change to reflect reality.

    Outside of our constitution, there are a number of “rights” we enjoy here in the US. Social security is one of them. But it’s not in the constitution – thankfully – so if our representatives decide that it must change somehow, a minority cannot hold up the legislation because it’s LEGISLATION, not a damn constitutional amendment. Does that make sense?

    Another example – welfare was a defacto “right” until Bill Clinton signed the bill reforming it and essentially revoking its status as an entitlement. As it turns out, most people view that as a good thing. My point is not to argue the merits of the welfare bill, but to illustrate that it didn’t take a freaking constitutional amendment to change it. If it had been enshrined as a right – ie an entitlement – that reform would never have been possible.

  47. Welfare and social security are not ‘rights’. They are more properly defined as ‘entitlements’. Whether or not it’s a social good for governments to provide these things is another argument. But it is not a right in the sense that our founding fathers understood rights. I do not have any ‘right’ to the fruits of someone else’s labor.

  48. The US Constitution may be short, but my lawyer’s got a huge law library.

  49. Just from the short snippets of the EU constitution listed here, you can tell they’re screwed. Case in point: “Every worker has the right to working conditions which respect his or her health, safety and dignity”, “Everyone has the right to freedom of expression.” What happens if, say, an employer insults a worker’s ethnicity? It seems like you’ve got a constitutional crisis on your hands.

    As for Afghanistan, I fully agree with Gadfly, it’s their country. Don’t spout BS about the Taliban, they were basically foreign invaders and had no claim to legitimacy. As long as the Afghan government is a democracy, I’m much less worried about them than about the EU and its unelected leaders.

  50. Jason Ligon,

    The entire nature of your argument is the following: “short constitutions are good.” I continue to ask why this is a remotely decent metric for determining what is and is not a good constitution. Now you’ve layered it with things like “purpose” of a constitution and the like, which is fine. But a short constitution can have as evil or benign a purpose as a long one can.

    “If you have an assumption of liberty, the document should be very short.”

    Again, that is your assertion, now prove it.

    D.A. Ridgely,

    And if the government does not live up to its responsibilities, then people can sue to have that right enforced. This is a very basic concept, and its common to American jurisprudence.

    Sebastion,

    “Rights are something inherent to every human being, derived from God (if you believe in that kind of thing) or derived from our nature (if you don’t).”

    Sort of funny that if we have “natural rights” they are not self-enforcing. To be frank, the right to a free press, etc. are no more “natural” than anything else that is part of human culture. We’ve enshrined these rights because our experience has shown them to be important to the sort of society that we want and find most efficacious.

    Slippery Pete,

    Reformed or not, one still has procedural rights under vis a vis welfare; that is it cannot be denied, or revoked, without some minimum due process.

    And to be frank, you make the rather moronic mistake that everything in a constitution is a “right.” Well guess what, that’s not the the case. So your criticism that everything in the EU constitution is a constitutional right is hogwash (in other words, it falls flat on its face); read the damn thing before you comment on it. Thanks.

    Sebastion,

    Welfare can be defined as a right, or as an entitlement; depends on the legal circumstance, structure, etc.

    Augustus,

    Well, as I already stated earlier, the fact that there are conflicts within a constitution is hardly surprising. If you are an American, you should no by now that rights conflict, and that issues must be sorted out; this is a fairly obvious point.

    So everytime there is a conflict over the religion clauses that are part of the First Amendment, does that cause a constitutional crisis in the US?

    The paranoid rantings of the lot of you are beyond belief at times.

  51. Augustus,

    If you had cared to read the constitution, you would know that it expands the powers of the elected European Parliament – thus politicizing the EU even more. To be frank, the mere fact that we Europeans are having the debates that we do over the EU is a pretty good sign that process is working.

    I also think that Americans as a rule see dissension in the EU about the EU as a sign that all is not well; that is about to collapse. However, the lot of you need to be reminded that the US constitution in its creation was hardly a care-free process, and it too was challanged (some of you someday might wish to read the anti-federalist writers). I think the comments of the Americans here illustrate the point of the historian Ernst Renan: “No nation exists without the falsification of its own history.”

    As to Eurocrats, look in the damn mirror at your own government.

  52. drf,

    And yes, I do get rather annoyed with people who know shit about the creation of the EU, what the EU constitution says, etc. chattering on about the propaganda they’ve read in the Murdoch press.

    To be frank, their paranoid rantings remind of the same crap that I see coming out of the anti-globalization crowd – uninformed, emotionally driven, clueless opinions.

  53. “don’t know shit”

  54. hey jean bart (is the russell crowe movie about you?)

    yup.

    the anti globalization crowd, the pro expansion of religion crowd, the anti sex with mailbox crowd. whoops that was a bit much…

    dontcha check yer email?

    cheers!
    drf

  55. drf,

    Not all the time; no.

    I am an advocate of the EU because binding Europe together is a means to quell ethnic rivalries (look at the Balkans); a means to prosper economically; and a means to meld together what I see as a generally common European culture.

    To be frank, I think Americans are largely suspicious of the EU because it can be viewed as a rival of the US. Everytime I talk to an American about this, its hinted at underneath their “concerns.”

  56. drf,

    I assume that the movie is based on Patrick O’Brian’s novel “Master and Commander” (its the first of a series). The book takes place during the Napoleonic wars; long after Jean Bart is dead in other words.

  57. If you devise a system of government where “right” means “freedom from law,” then you don’t constantly have to weigh the rights of one person against rights of the others.

    On the other hand, if “right” means “entitlement” then the government is required to intervene to sort out whose rights take precedence.

    I’m imagining the case where a small company lays off a worker whom they can’t quite afford. But wait, he has a “right” to a job. Who then is obligated to provide this? Who pays for it? In deciding who pays, you take away from other people, trouncing their property rights.

  58. Instead of “within the limits of the law,” they ought to just make heavy use of “compelling state interest.” That’s always served our courts in good stead when they had to prove the Constitution didn’t really mean what it said.

    What’s Pashtun for “fire in a crowded theater”?

  59. >To be frank, I think Americans are largely suspicious of the EU because it can be viewed as a rival of the US.

    Er, not me. Speaking as one American, I don’t think this constitution will enable Europe to become more prosperous at all.

    I think it will stifle enterprise and private rights all across your continent, and you’ll end up either ignoring it where it is inconvenient to you, or overhauling the whole thing. Assuming, of course, that nobody seizes the handy concentration of power.

  60. Good Luck,

    Where do see anything which says that the person has a “right” to a job? “Every worker has the right to working conditions which respect his or her health, safety and dignity” does not mean a person has a right to a job.

    Please, if you are going to criticize the constitution, please find real clauses to criticize. πŸ™‚

    Regarding your “rights” v. “entitlements” differentiation, your argument makes no sense. One can have a “right” to property as much as one has a “right” to free speech; even if the former is a private right (its via some vehicle of inheritance, or by contract, etc.). And in the case of welfare, the right in welfare – money – is just as much a right as it would be if the right were coming from a private party. Now there are certainly sub-sets of rights – civil rights, property rights, human rights, etc. – but the mere fact that the right is a positive right does not mean that it is not a right at all. You may not like positive rights, in other words, but that doesn’t mean that they don’t exist.

    Let’s turn Webster’s definition of the term “right”:

    2 : something to which one has a just claim: as a : the power or privilege to which one is justly entitled b (1) : the interest that one has in a piece of property — often used in plural (2) plural : the property interest possessed under law or custom and agreement in an intangible thing especially of a literary and artistic nature

  61. Perhaps I’m guilty of nitpicking over definitions. I also don’t want to come off as being anti EU. I think the EU is a good idea, even if I’m a little skeptical about the implementation, but time will tell.

    The more I think about it, the more I agree there’s no real difference between ‘right’ and ‘entitlement’. But I still stand by the fact that there can’t be a ‘right’, in the Lockean sense, that requires action on the part of another in order for that right to be fulfilled. You can sue the government because it applies welfare in violation of the equal protection principle, or in violation of the stated law, but, you can’t sue the US government for not providing you with free health care.

    Certainly the entire concept of natural rights is debatable, but I think you’ll generally find most libertarian minded people prefer governments that protect and acknowledge pre-existing natural rights, as opposed to the notion that rights exist simply because they are granted by the government.

  62. It’s their country – kinda – and they can run it any way they want.

  63. Oooh, there’s a sophisticated argument. Got that, Tim? You’re not allowed to have an opinion on Afghanistan’s constitution because you’re not an Afghan(i).

    Anyway, my original point was Tim’s comment that any constitution over 10 pages long is trouble. That must make Europe’s proposed constitution (well over 200 pages long, as I recall) a complete nightmare.

  64. So I guess they were better off under the Taliban, huh, smart guy?

    BTW, what are the limits of Hit and Run law?

  65. How is length a metric for determining the quality of a constitution?

  66. its the adjective “european” which is the warningsign.

  67. The more I think about it…the original post here is dumb in so many different ways. For starters, nobody but an unelected fascist clerical elite “ran” Afghanistan “how they wanted”. The women who took bullets to the head at the soccer stadium’s frequent summary-execution halftime shows didn’t “run it the way they wanted”. The men and children “convicted” without evidence of crimes like stealing bread, whose hands were sawn off at the stadium, certainly didn’t decide that this was how they wanted the country run.

    Who, exactly, decided that that was how Afghanistan would be run? The fascists? So I guess what Gadfly’s saying is that anybody who manages, by whatever means, to gain control over other people, is by definition legitimate and may not be criticized.

    Nice.

  68. Merovingian (sp?) –

    Length is actually a common and respectable heuristic for the quality of a constitution. The theory is that a good constitution sets overarching, general priorities and rights and doesn’t get all wrapped around the axle about what the definition of cabbage is (to cite one example from the proposed European constitution).

  69. “Outside of our constitution, there are a number of “rights” we enjoy here in the US. Social security is one of them. But it’s not in the constitution – thankfully – so if our representatives decide that it must change somehow, a minority cannot hold up the legislation because it’s LEGISLATION, not a damn constitutional amendment. Does that make sense?”

    A good example of this is the European Union Constitution’s proposed ban on human reproductive cloning. Why would they want to enshrine this in a constitution? Yes, it would be a Very Bad IdeaTM to engage in human reproductive cloning at this moment, given all the attendant problems with cloning animals, but this is justification for a temporary legislative moratorium or ban, not putting it in the constitution as one of the fundamental characteristics of a society that respects human dignity.

  70. Brian Carnell,

    Its what the Catholic nations want – particularly Italy, as well as upcoming entrants like Malta, Poland, etc. The delegates from those governments feel that human reproductive cloning is immoral no matter how “safe,” “effective,” etc. it is. Compromise is the nature of any constitution that deals with a federation of states. As I recall, this ban was a compromise so as to not ban therapeutic cloning, and as part of a deal concerning the language regarding abortion in the Charter.

  71. Merovingian,
    >Regarding your “rights” v. “entitlements” differentiation, your argument makes no sense.

    I’m not trying to make any fine philosophical point here, more of a practical one. I’ll put it another way.

    The U.S. Bill of Rights originally meant exactly what I said: freedom from law. The right to free speech meant “the government shall pass no law abridging” speech. In fact, I think that’s the wording. It certainly did not mean that you were entitled to a specific outcome of being heard, or of having equal air time or anything like that.

    More recent political thought, however, has tried to ensure outcomes as opposed to process. I’m speaking of both the U.S. and elsewhere in the world.

    For example, the Supreme Court narrowly decided to allow someone to distribute political pamphlets on someone else’s private property (a shopping mall), against that other person’s wishes. (I’m sorry, I forget the date of this case–I think 1943.) In deciding to interpret “right to free speech” as an entitlement to an outcome, the court trounced the other guy’s property rights.

    In the former case, where a right is a freedom from government interference, it’s easy to see if that right is being trampled or not. In this formulation, everyone can have exactly the same right and the law is neutral as to the participants.

    In the latter case, where a right is a specific outcome, there is no possible world that will satisfy all those outcomes, so it’s necesssary to weigh the “rights” of one person against the “rights” of others. And there is nothing neutral about the process.

    A constitution whose bill of rights is a description of desired outcomes is a recipe for conflict. Many political theorists have recognized this. Some think that the conflict can be resolved and made to go away. Not me.

  72. Clap, clap, clap. You’ve once again shown why you are absolutely irrelevent.

    This thread began with a question of clauses in the Afghanistan constitution that certain jingos took exception with. Instead of taking on the pertinent question of whether we, halfway around the world, should write another country’s governing vision the pinheads here spend their fingertips on constitutional heads of pins that have no relevance to Afghanistan in 2003.

    All brains, no wisdom. Congratulations.

  73. Oops. That should have read…

    5) Total Congressional spending is limited to 10% of GDP, except in time of war. (Won’t really be necessary, since my changes to Article I, Section 8 would make it essentially impossible for the Congress to spend money…

    …in excess of 10% of GDP, except during wars.)

  74. Merovingian:

    “But a short constitution can have as evil or benign a purpose as a long one can.”

    “If you have an assumption of liberty, the document should be very short.”

    “Again, that is your assertion, now prove it.”

    I have asked what your vision of the purpose of a constitution is, and you have not answered, so I am left to use the only purpose I can fathom as an example here. The purpose of a constitution is to limit the executive and legislative functions of government on the grounds that some things should not be subject to regulation. In democracies, constitutions serve to protect minorities from majorities.

    If you create a document that includes qualifiers along the lines of, “you have the right to speak freely within the limits of the law,” you have done several things. 1) Though on the surface you have established a ‘right’, what you have really said is that free speech can be curtailed with no constitutional problem. 2) You have made the entire statement of rights something that no one will pay attention to.

    By adding the extra qualifiers, you are doing nothing but weakening the document. A similar case could be made regarding the draft EU constitution when it mentions that its purpose is to establish a union that has due regard for future generations and the Earth. What the hell is that? So, this kind of extra language is necessarily bad.

    Another possibility for extra language in the constitution is the attempt to enumerate specific government policies that have nothing to do with checking government power. An example of this would be the statement that state permission must be given to establish a school. Again, this is no kind of test for laws to pass, it is a law in itself. The result of including this kind of thing? The process of establishing a school through government approval is enshrined right along side a press free from government interference. As such parity is obviously a joke, no one will take either seriously, and again, you will have created rights that mean nothing.

    On a case by case basis, I think that you can go through any language that exceeds the purpose of a constitution as I described above and demonstrate that, well, such language doesn’t support the purpose of the document.

    The “assumption of liberty” idea is to enumerate the powers of government rather than enumerating the rights of the people. As a free people by definition live under a government that is more restricted than they are, the document that enumerates powers of government should be quite short, with all else being assumed as liberties not to be infringed upon. If you build a huge constitution based on this premise, you are saying that the powers of government are proportionately huge.

  75. >Gadfly ends with:
    the pinheads here spend their fingertips on constitutional heads of pins that have no relevance to Afghanistan in 2003. All brains, no wisdom. Congratulations.

    I wasn’t attempting to address the issue of who should write their constitution. And I wasn’t proposing to go in and do it myself.

    The issues that the other “pinheads” and I raise will determine the limits of the government power in Afghanistan, which will in turn determine whether that government devolves into tyranny, as have most governments in history. Human nature is the same everywhere, at all times, and the issues we are raising are both central and will not go away.

    The lack of wisdom is in this constitution, and I think it’s a terrible pity.

  76. “I wasn’t attempting to address the issue of who should write their constitution. And I wasn’t proposing to go in and do it myself.”

    That’s OK, because I’ve already done it myself. πŸ˜‰

    I’ve prepared the “World’s Best Constitution.” It’s basically the U.S. Constitution, with improvements, such as:

    1) (Federal) Senators and Representatives are limited to 12 consecutive years in office (i.e., two terms in the Senate, or 6 terms as a Representative). Then they must sit out 6 years, or run for some other position.

    2) Federal free speech and press are absolute, but state/provincial free speech may legally restricted by slander, libel, fraud. (The way the U.S. Constitution is written, it appears that state free speech is either absolute at all levels–i.e., the 14th amendment prohibits state legislatures from passing any law limiting freedom of speech–or that free speech at the state level is not addressed…except by state constitutions.

    3) The commerce clause is rewritten to not say “regulate”…but instead something like, “make laws promoting commerce among the several states.” (I’ve forgotten my specific language.)

    4) Article I Section 8 is rewritten to make it very clear that Congress can ONLY do the things specifically listed, and not anything that might be related to the “general welfare.”

    5) Total Congressional spending is limited to 10% of GDP, except in time of war. (Won’t really be necessary, since my changes to Article I, Section 8 would make it essentially impossible for the Congress to spend money

    6) The president is expressly forbidden from deploying troops outside the country, except after obtaining a specific declaration of war, specifying the government(s) against which war has been declared.

    7) Other good changes that I can’t remember right now.

    I’m going to post my World’s Best Constitution on my blog fairly soon (“fairly soon,” for me, is by the end of Thanksgiving).

    The U.S. government should take my World’s Best Constitution for Afghanistan and Iraq, and put it to a direct up-or-down referendum of The People of Afghanistan and Iraq. If The People of those countries are too stupid to accept my World’s Best Constitution, they don’t deserve freedom. πŸ˜‰ (Actually, I’m more than a bit serious…)

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