The Constitution: Unconstitutional?

The concept of unconstitutionality is a cornerstone of constitutionalism, which asserts that sovereignty belongs to the people, who are bound by a set of rules and norms that subordinate the government to their will. An unconstitutional act or amendment is one that violates the constitution, as interpreted by the courts, and can be based on procedural or substantive grounds. The question of whether the Constitution itself can be unconstitutional has been explored by legal scholars and courts worldwide, with some arguing that certain circumstances, such as a lack of unanimous state approval, could render it so. This idea of an unconstitutional Constitution presents a unique paradox and raises questions about the nature of constitutionalism and the rule of law.

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Unconstitutional constitutional amendments

The concept of an "unconstitutional constitutional amendment" is not new and has been a topic of discussion among legal scholars for decades. It is based on the idea that even a properly passed and ratified constitutional amendment can be deemed unconstitutional on substantive grounds, such as when it conflicts with a constitutional norm, value, or principle. This concept has been explored by legal academics such as Yaniv Roznai, who wrote the book "Unconstitutional Constitutional Amendments: The Limits of Amendment Powers".

The US Constitution, for example, sets high standards for amendments but imposes few content restrictions. Despite this, no amendment to the Constitution has ever been declared unconstitutional by a court. Nevertheless, some legal scholars, including former Michigan Supreme Court Chief Justice Thomas M. Cooley and US law professor Arthur Machen, have argued in favour of the possibility of unconstitutional amendments. Cooley argued that amendments "must be harmonious with the body of the instrument" and that an amendment that transforms a democratic government into an aristocracy or monarchy would be "revolutionary" and thus invalid.

In other countries, such as Germany, the Federal Constitutional Court has been active since 1951, focusing on ensuring that both ordinary laws and constitutional amendments passed by Parliament adhere to the core principles of the Basic Law for the Federal Republic of Germany. Similarly, in the 1960s and 1970s, the Indian Supreme Court adopted the "basic structure doctrine", asserting that any constitutional amendment violating the Indian Constitution's basic structure should be deemed unconstitutional.

The debate surrounding unconstitutional constitutional amendments is complex and multifaceted, with proponents and opponents offering various interpretations of constitutional theory and the role of constitutional courts in enforcing limitations on amendments. This issue has become one of the most widely debated topics in comparative constitutional theory, constitutional design, and constitutional adjudication.

The right to secede

One school of thought, known as "Choice Theory," asserts that groups or individuals have a general right to secede for any reason. This theory emphasizes the importance of individual liberty, freedom of association, and private property rights. Proponents of anarcho-capitalism, for instance, believe that individuals should be able to establish their own political arrangements and form ""viable political orders" with like-minded individuals, regardless of the existing state boundaries. In this view, the right to secede is derived from the more fundamental rights of free political association and the enjoyment of private property.

On the other hand, "Just Cause Theory" advocates argue that secession should be considered only to address grave injustices or oppression. Proponents of this theory might point to instances of cultural or ethnic oppression, where a minority group within a state has its culture or identity threatened by a dominant majority. In such cases, secession could be seen as a means to protect and preserve the distinct culture and national identity of the minority group.

It's worth noting that the right to secede is not often explicitly mentioned in constitutions. Consensual secession, which occurs through negotiated agreements or constitutional processes, is relatively rare compared to unilateral secession, which is more frequent and controversial. The lack of constitutional recognition for the right to secede further complicates the matter, often leading to large-scale violence and conflicts over territory, resources, and borders.

In the United States, the question of whether the southern states had the right to secede during the Civil War is a complex one. The Constitution does not explicitly address this issue, making it challenging to take a definitive stance. However, the Articles of Confederation, which preceded the Constitution, specified that any alterations or changes required the unanimous agreement of all member states, implying that secession without unanimous consent would be unconstitutional.

The Articles of Confederation

However, the Articles of Confederation were considered a near-total failure. The central government had insufficient power to regulate commerce, levy taxes, or set commercial policy. It also lacked the power to effectively support a war effort and settle disputes between states. As a result, the country was on the brink of economic disaster and political collapse. The limitations on the central government, such as in assembling delegates, raising funds, and regulating commerce, limited its ability to govern the continually growing 13 colonial states.

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Minimalist government

The argument that the US Constitution is "unconstitutional" is based on the Articles of Confederation, which declared itself to be the "perpetual" form of government for the newly independent nation. The Articles of Confederation specified that nothing in it could be changed without the unanimous agreement of all member states. However, when it came to drafting the Constitution, it was clear that unanimous approval of the states would not be possible, as some states, like Rhode Island, were deeply opposed. This resulted in the bypassing of state legislatures in favour of new-fangled "conventions" created under the new Article VII.

The idea of a minimalist government, as outlined in the Articles of Confederation, has been criticised as impractical and a near-total failure. A minimalist government, or minimal state, is typically associated with libertarian and objectivist political philosophy, and is characterised by limited intervention in the economy and society. The responsibilities of a minimal state are generally understood to include the provision of policing, a judiciary, and defence of the nation, as well as upholding property rights, enforcing contract laws, and defending the gains from trade.

Proponents of a minimalist government, or a night-watchman state, argue for a limited government that only provides these essential functions. This philosophy is often advocated by right-libertarians and minarchists, who believe that the state is a logical consequence of the non-aggression principle. They argue that anarcho-capitalism is impractical because it cannot sufficiently enforce laws and maintain order.

However, critics of minimalist government argue that it is not practical and can lead to a near-total failure of governance. They contend that a more involved government, or "big government," is necessary to effectively regulate interstate commerce, resolve trade wars, and address complex societal issues. The historical context of the transition from the Articles of Confederation to the Constitution illustrates the challenges of implementing a minimalist government in a diverse and evolving nation.

In conclusion, while the argument that the Constitution is "unconstitutional" based on the Articles of Confederation raises interesting points, it also highlights the impracticality of a minimalist government. The evolution of governance in the United States demonstrates a shift towards a more involved and powerful central government to address the complex needs of a growing nation.

Anti-constitutionalism

The concept of anti-constitutionalism is a complex and multifaceted one, often invoking passionate debates and differing interpretations. At its core, anti-constitutionalism represents a stance or action that goes against the fundamental principles and values enshrined in a constitution, the very document meant to safeguard individual rights, outline governmental powers, and uphold democratic ideals.

In the United States, for instance, the Constitution is the supreme law of the land, serving as the foundation for the nation's political system and outlining the rights and liberties of its citizens. However, throughout American history, there have been instances where certain actions or policies implemented by leaders have been deemed anti-constitutional, posing a direct challenge to the ideals enshrined in the Constitution.

One notable example of potential anti-constitutionalism was during the presidency of Donald Trump. Some of his policies and executive actions were viewed as contradicting the values and protections guaranteed by the Constitution. For instance, his order overturning birthright citizenship was considered by many as a direct violation of the 14th Amendment, thus sparking intense debates about the boundaries of executive power and the role of the judiciary in interpreting and safeguarding constitutional rights.

In a broader context, anti-constitutionalism can manifest in various ways, including but not limited to, the subversion of democratic processes, the concentration of power in a single individual or entity, the denial of fundamental rights and freedoms, or the implementation of policies that directly contradict the spirit and letter of the constitution. It is worth noting that the interpretation of what constitutes anti-constitutionalism can vary based on political ideologies, legal scholarship, and cultural contexts.

Furthermore, the concept of "unconstitutional constitutional amendments" adds another layer of complexity to anti-constitutionalism. This concept explores the idea that even properly ratified amendments to a constitution can be deemed unconstitutional if they conflict with the underlying values, norms, or principles of that constitution. This doctrine has been explored by legal scholars worldwide, and it underscores the dynamic and evolving nature of constitutional interpretation.

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