Who is the Legitimate Author of the Constitution?
Introduction
The constitution is often described as the supreme law of the land, the foundational text from which all other laws derive legitimacy. Yet one question is almost always left in the shadows: Who is the legitimate author of the constitution itself? If the constitution governs everyone, by what authority, and by whose hand, does it come into being? This question reveals a profound paradox at the heart of political philosophy: every proposed authorbe it a ruler, an elite class, the wise, or the peopleappears flawed.
I. Tyranny, Oligarchy, Noocracy, Majoritarianism: The Dilemma of Authorship
1. A tyrant writing the constitution is plainly illegitimate, for it becomes an instrument of one will imposed upon all.
2. An oligarchy of representatives is equally suspect. Once elected, representatives function as temporary sovereigns, insulated from direct accountability until reelection. This creates what might be called managed oligarchy, governance by elites with a democratic mask.
3. A noocracy of the wise appears attractive, since it promises rationality and foresight. Yet who designates the wise, and who guards them against corruption? Noocracy risks becoming enlightened autocracy.
4. The people themselves, through direct democracy, embody legitimacy in the purest sense. Yet majoritarianism risks trampling minorities, favoring passions over reason, and substituting numbers for justice.
Thus, every candidate for constitutional authorship appears either unjust or unstable.
II. Philosophical Attempts to Resolve the Question
Plato offered philosopher-kings, privileging wisdom over consent.
Aristotle sought balance, a mixed constitution blending elements of monarchy, aristocracy, and democracy.
Hobbes grounded constitutions in the surrender of all power to a sovereign for the sake of peace.
Locke argued for consent and natural rights, yet limited suffrage made his system oligarchic.
Rousseau envisioned the general will of the people as supreme, but this risks majoritarian tyranny.
Modern constitutionalism avoids authorship debates by emphasizing process: checks, balances, rights, and amendment procedures. Yet even here, representatives are the gatekeepers of change, sustaining the oligarchic problem.
Each tradition gestures toward legitimacy but fails to resolve the authorship dilemma.
III. The Limits of Representative and Direct Democracy
Representative democracy degenerates into oligarchy through tenure and privilege. The representatives, once seated, legislate with near-sovereign power, often detached from the peoples will.
Direct democracy appears more authentic, but scales poorly in modern states. It risks devolving into majoritarian despotism, sacrificing minorities and wisdom to the rule of numbers.
Thus, neither system provides a fully satisfactory author for the constitution.
IV. Minarchism as an Alternative
If no group can claim legitimate authorship of the constitution, perhaps the question itself must be reimagined. What if the constitution is not needed as an elaborate architecture of power? What if its very ambition is the source of its illegitimacy?
Minarchism proposes a minimal state, one restricted to essential functions: defense, policing, and courts. Under this vision:
There is no entrenched legislature with tenure privilege.
Power is skeletal, designed only to protect life, liberty, and property.
Governance, where necessary, may rotate or be subject to constant recall, preventing oligarchic capture.
The risk of majoritarianism diminishes, since the state has little scope to impose the will of the majority on minorities.
Minarchism does not solve the problem of authorship by naming a new author. Instead, it reduces the constitutions scope so drastically that authorship ceases to be a pressing concern. A minimal framework can be drafted by temporary bodies and revised by consent, while the bulk of human life remains beyond the reach of constitutional power.
V. Toward an Answer
The search for a legitimate author of the constitution may be in vain. Tyrants, elites, wise men, and majorities alike are flawed authors. Perhaps, then, the constitution is not a document to be perfectly authored once and for all, but a framework that is modest, revisable, and deliberately self-limiting.
If legitimacy cannot be found in any singular author, it may be found in the absence of authorship altogether in a system so minimal that no ones hand rests heavily upon it. Minarchism emerges not as utopia, but as a pragmatic resolution: when the constitutions authority cannot be grounded in a flawless author, it can be grounded in its own modesty, in the fact that it governs as little as possible.
Conclusion
So, who is the legitimate author of the constitution? The answer may be: no one. Tyranny, oligarchy, noocracy, and majoritarianism all falter as authors. The only path forward is either a constitution that continually rewrites itself through open participation, or a constitution so minimal that authorship no longer matters. Legitimacy may not come from the origin of the constitution, but from its restraint from a system that governs lightly enough for the people to live freely, without rulers disguised as authors.
Comments (55)
Popper refers to Closed and Open Society. Maybe there is something in that that may help you? Any idiot can write something and call it a Law. This is only true for the society they live in if people agree to it and adhere to it for the most part.
Items like taking someone's life are generally considered taboo in all communities.
Quoting I like sushi
Either way, the same kind of civilization building around the globe has generally resulted in people choosing Human Rule over the harsh realities that mother nature threw at them.
There's always going to be people and groups vying for power in some way or another.
People in power will determine what the constitution looks like, by and large.
But if they diverge from what people want so bad they risk revolt and losing the mandate of heaven.... and then you get another group with the power to change what's in the constitution, probably more in line with what people want.
So yes, there is no legitimate author, but you will have an author.
In a way Hobbes was closest to mark. The last thing one wants is a constant war of everybody against everybody as that is worse for everybody in the long run, so it makes sense to trade some freedoms for peace.
Theocracy? What if the people are secular and prefer free will?
I'm probably in favour of a kind of minimal state, though I think our societies have become so complex and highly technological that a lot would probably have to be included in that minimum. To give an example, you probably need some kind of environmental regulation now that we have the capacity to pollute as much as we do. That used to be less of an issue.
I presented the options with counterarguments to see if any of you can come up with an alternative.
The State means nothing to me. I am a human. In reality I do adhere to rules because I either agree with them, or it is a necessary trade off. I judge what to do.
I do nto think it is right to punch people, steal money from people or kill people. It is not hte law that makes me think this way. In effect, a lot of what I do is what I believe to be just. I am no saint, so I do undoubtedly make mistakes.
I abhor the idea of people looking to some body of laws, so as to abscond from taking carefully considered acts. People usually choose tyranny over freedom (which is responsibility).
If law said to rape every girl with blonde hair you saw on a bus would you do it. Generally speaking we act as our conscience dictates not the laws of the land.
but jail/police doesn't follow your conscience.
The laws are not rules to live by. They are forms of Positive Liberty put in place to protect individuals. They can, and are, misused. People overtime force governing bodies to amend laws or throw them out.
Generally spekaing Negative Liberty trumps Positive.
The law/police do not dictate how people behave, although they do undoubtedly influence many decisions people make.
I'm talking consequences here.
Suggest a solution on who should write the constitution?
https://en.wikipedia.org/wiki/Ship_of_Theseus
Bit of an aft reference but relevant (I would assume) since we're talking about a body or structure composed of multiple pieces or components contributed by multiple persons.
Kind of a "at what point does an antique house become modern after one too many renovations/replacements" way of framing the conversation.
Otherwise, it's simply "multiple authors." Not really that philosophical, perhaps? Not sure. :chin:
Bye. Done here.
I'm touching on doctrine here.
Does illegitimacy even have meaning absent any legal order? Isn't legitimacy only a thing if there is already an established (legal) order? Or what do you take the word to mean?
And if it indeed doesn't have meaning in that case, then the whole question of what is a legitimate author of a constitution is in fact a meaningless question, and consequently the whole argumentation following that has no real basis.
take it as "logical or acceptable in principle".
Isn't this far too generic? As my favorite euphemism I've read on this site goes "there are far too many tails pinned on that donkey for it to have any sort of clear, singular (rather, usable and feasible) meaning."
One man's principle is generally defined on his upbringing and life experience or otherwise cultural and societal norms. The worst things you could imagine are "acceptable in principle" depending on who you're asking or for example if one is fighting a war.
If something is "logical or acceptable in principle", while it does enforce logic so something utopian or otherwise silly but otherwise exclusively "acceptable" in principle, such as, all men should live in peace and not commit crimes, still seems to be far too subjective and varying to offer any sort of grounds as far as universal justifications are concerned. Doesn't it?
Edit: I'll respond to your request to list any flaws I may or may not find in your OP shortly. I'm not intimately familiar with "minarchism" so wish to read up on it a bit more before providing a response.
One man's trash is another man's treasure.
Not all that glitters is gold.
A drop of wine in a vat of sewage is still sewage; a drop of sewage in a vat of wine is now a vat of sewage.
Ignorance is bliss, delusion is honey; Together, man thinks himself a god, knowing all there is to know, thus alleviating his existential fears of mortality and shame, yet all while remaining a simple child.
Perhaps. But one should ask oneself, sometimes at least, what is achieved. Even if we merely play games, then at least there's a winner and loser.
We are blind in this world. We have senses, such as they are. But they are nothing suitable to understand the vastness of the universe. We poke and prod into the abyss, finding so-called "answers", at least things that satisfy our most primal senses, food, comfort, safety, entertainment, things a chipmunk also seeks and finds to satisfaction. But what of it?
Quoting Ciceronianus
The things people living an unexamined life consider the most important are actually the silliest and trivial of games, the least important of anything a man can do or ever hope to accomplish. In these falsehoods, so-called winners "lose" all opportunity of bettering one's self and learning from others who managed to make it as far as they have, while so-called losers "win" the unquenchable fire of a forced life of eternal betterment. Upon realizing such, we realize such childish mindsets produce no winners, but simple degrees of self-denial in all who embrace them.
Can you not see that? What madness is this?
Principles are more important than practicality. It sets the standard for our actions.
When you break the principles, be it secular or religious, you get an estimation of how deviant your actions have become. You feel bad when you go so far. Even though you're not following the principles line by line, it's working as a compass. But when there is no principle, you'll have no direction. You'll have no restraint. You'll have nothing to shape your life. Be it personal moral codes or societal. Much like law and order.
You're right, principles can have subjective value. But doctrines are universally codified. You can choose to follow them or make something out of it (upon which it becomes a new doctrine).
Such as communism ? socialism, nihilism ? absurdism, etc.
For the sake of fairness, I would like to add a few authors that you did not mention:
1. Philosophers and their ideas: The works of philosophers form the intellectual foundation, but they may be disconnected from the real needs of society.
2. External trends: Fashionable social formations influence constitutions, but they risk ignoring local characteristics.
3. Direct foreign intervention: Constitutions created under the pressure of external forces often serve the interests of foreigners rather than the people.
4. Historical traditions and cultural norms: Constitutions may rely on established traditions, but this can hinder reforms and innovations by perpetuating outdated structures.
What was the idea? You wrote a post in the spirit of the Age of Enlightenment, with elements of sentimentalism and romanticism (like Rousseau or Locke). But we're in the 21st century, the era of postpositivism, relativism, post-structuralism, and much more.
If your question is about a standard (like the standards at the Paris Chamber of Weights and Measures), that's one thing. But if we're talking about something practically useful and modern, that's something else entirely.
I don't have an answer to your question with these initial data.
But I have another answer, in the spirit of processual ontology with elements of the Apokrisis approach, proposed in another thread, as well as a post-positivist approach.
In short, the idea is that there is no single author or factor that influences a constitution to a sufficient degree to merit the title of its author. A constitution is the result of the consensus of a very large number of participants. A constitution is often rewritten and supplemented, depending on the circumstances. A constitution is not the source of everythingit is merely a document that takes into account the interests of all its authors, including the invisible ones. And, most importantly, a constitution is not "given"; a constitution is not a substance or a matter. A constitution is an ongoing process. A very complex process determined by many factors (even the invention of AI or cryptocurrency can influence a constitution). If a constitution turns into a dead set of dogmas enshrined in the 18th century, its value is close to zero. A constitution must be constantly applicable.
I'd also like to point out that a constitution isn't exactly an ancient invention. The earliest known constitution in the modern sense is the US Constitution, adopted in 1787. Although similar documents existed before that (for example, the Magna Carta of 1215 in England), they weren't constitutions in the true sense, as they didn't establish a comprehensive system of government. So, that's 238 years. States, in the sense of organized political structures with centralized power, have existed for approximately 5,500 years. Clearly, a constitution isn't necessary for a state to exist. By this, I'd like to suggest that tomorrow, one might not be necessary.
I don't like the idea of ??a state without a constitution.
Must I have?
If the Constitution is changed, or abolished, it will have no more to do with whether it's "legitimate" than when it was created. Systems of law exist regardless of morality or principles. Laws apply whether they're good or bad.
Why do we need a state?
Who is this "we" you speak of?
"We" need a state because if it is not our state, then it is anybody's state and may become their state.
Any territory (a piece of land) is in some state or other. It may be a state of wilderness, or a state of anarchy, a state of war, a state of transition, a state of tribal occupation, or even a state of the union.
So to answer your original question; The Constitution was written by a bunch of invading and marauding white men in an attempt to lend a veneer of moral legitimacy to their theft of the entire continent from the original inhabitants and the systematic persecution and slaughter of the same.
Jolly good luck with ending that immoral hegemony, but I won't be holding my breath. (I think this makes me officially an 'enemy of the people', where 'we' is 'the people' of the constitution.)
Why do we need a community?
I don't; you don't; but we do. As soon as you ask a question, you are in a relationship that constitutes a community. And you do keep asking questions, like a dependent child - even your rhetorical questions illustrate your dependency; stop waiting for responses to your silliness, and get on with something of your own, if you imagine you have anything at all of your own.