Jackson, Popular sovereignty and constitutional law

The other day, as I was sitting in court for a session that should have ended my legal problems over a now extinguished debt to Seguro Social, waiting for a prosecutor who never showed up for the hearing, I heard words of praise and admiration for the US legal and constitutional order from a man who, despite being well educated, didn’t really know very much about the topic with which he dealt. A few days earlier, I sat in a cafe with a fellow Panagringo dual citizen, a bright young law student who’s a bit more panameño and less gringo than I am on the cultural continuum, and he compared the size of the American constitution to the larger Panamanian one and the vastly expanded one that some of this country’s reformers would prefer.

These two discussions represented some important phases of a debate that Panama really ought to have, but if that’s as deep as we go we Panamanians will have shortchanged ourselves.

In some respects, the rule of law that prevails in the United States is an instructive guide to the direction in which Panama ought to go. But in many other respects it is not.

Panama should look first and foremost to the Panamanian experience --- good and bad --- for guidance on constitutional questions. By first looking inward, we can set a proper context to consider the merits and demerits of various aspects of the systems of governance used in other countries.

And let’s not be fawning sycophants about it. Panamanians who are looking abroad for examples would do well to look at the failures as well as the successes of the American system, and to consider the experiences of other democratic countries with legal systems that have done well at maximizing justice and minimizing corruption.

The great weakness of the US Constitution is that it’s very hard to change. Its great strength is that it’s much more easy to bend. But that great weakness can become a strength, and that great strength can become a weakness. Most of all, it depends on what the American people are willing to tolerate.

At the moment the United States is in one of those occasional anomalous situations in which it is ruled by a president who lost the popular vote. That’s because, whether it’s a good thing or a bad thing, the Electoral College is an anti-democratic feature of the American constitutional order.

No doubt somebody will call me anti-American for having the temerity to allege that the constitution that he or she idolizes has anti-democratic features. However, those aspects that the American people cherish most are precisely the most anti-democratic features of the system.

As in the Bill of Rights. Yes, now that Osama’s boys have picked a jihad with everyone in the world but themselves there are plenty of rednecks out there who would prohibit Islam in the United States. They might even be able to mobilize the votes to have Congress pass such a law. However, the First Amendment to the US Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....” Even if there’s a democratic mandate to prohibit Islam, or to require Christian prayers in public schools, the anti-democratic First Amendment protects religious minorities from the impositions of the majority.

However, the precise boundaries that separate religion and government are not defined in the US Constitution. Whether and to what extent religious objections to abortion may be enshrined into law, or the religious content of historical events may be taught in public schools, or sessions of Congress may be opened with a prayer --- these questions are left to legislative bodies and ultimately to courts. People who feel aggrieved by the Supreme Court’s last word can take political action to amend the constitution, but that’s nearly impossible to do.

So is this system the unsurmountable pinnacle of human genius in the field of political science?

I’m part of that small minority of Americans which says that it’s not. The best proof of our argument that the US Constitution is flawed took place in middle of the 19th century, when a political stalemate over the issue of slavery led to a constitutional crisis and a war in which more than 600,000 people were killed. The constitution was subsequently amended by a rigged process in which the defeated pro-slavery forces were disenfranchised, but Americans still haven’t resolved the issue of race relations.

Along the way to the great failure known as the Civil War, the concept of “popular sovereignty” was invoked. As in, new states would be admitted to the union as free states or slave states according to a popular vote of the adult white male residents of the territories seeking statehood, which would decide whether people of African descent would be held in bondage. This “democratic” method resolved nothing. All it yielded was a precursor of the Civil War in what is now the state of Kansas.

The present Panamanian Constitution was a deal between a military dictatorship and the more opportunistic elements of a political class that the dictatorship supplanted for a generation. The basic proposition was that the military would hold real power but the politicians who played along would get a share of the proceeds of a racket posing as a democratic government. The dictatorship’s constitution is more easily changed that the US Constitution, but formal changes depend on a venal and discredited political class, while practical changes by way of judicial interpretation depend on a equally corrupt and disreputable court system and are moreover ephemeral because our legal system discounts the power of judicial precedents.

I think, along with most of my fellow citizens, that Panama needs wholesale constitutional change.

We also need some changes in our laws and social realities, but it would be a mistake to enshrine partisan platforms or economic theories in the constitution. Matters like the content of public school curricula or eligibility for social security benefits are of great importance, but they have no place in a constitution that’s designed to endure the test of time. We need a system in which those holding, for example, neo-liberal economic ideas or socialist ones, can advance their programs or be set back according to the shifting opinions of the Panamanian electorate. We don’t need a system that rules out the ideas of either of these factions in advance of the people’s choice.

(“What?” I can hear certain conservatives roar, “Let the commies into the system?” And I ask them --- and you --- whether it’s better to have Panama’s leftists blocking the streets or going door to door in search of votes.)

The gist of the constitutional question is how we and posterity are going to govern ourselves, not the specific decisions to be made in the course of self-determination.

The most important constitutional question facing Panamanians is how the constitution and laws can be changed, and in this regard I don’t think that the American system holds the answers that we need. We ought to have something more democratic than what the United States has.

There is no provision for legislation by direct popular sovereignty through national initiatives, referenda or recalls in the United States. In Panama we can only have a referendum if the politicians call one, and notwithstanding what the present constitution says, there is no effective way to remove a corrupt legislator, supreme court magistrate or president. In these areas we ought to have more popular sovereignty.

If the same faction of crooks wins two legislative elections in a row, should that give it the right to change the constitution to favor themselves, their families and their friends? I don’t think so.

However, I do believe that if enough voters sign a petition to change the constitution in a specific way, the proposition should be put to a vote and if a sufficient majority casts ballots in favor the constitution ought to be so amended.

Should a party caucus be able to remove a legislator who breaks with partisan discipline, be it for reasons of conscience or as the result of bribery by another faction? I don’t think so.

However, I do believe that if enough voters sign a petition to recall that legislator, the proposition should be put to a vote and if a sufficient majority casts ballots in favor that legislator ought to be removed from office.

Such democratic reforms are, of course, no guarantee against abuse. Without a conscientious and civic-minded electorate standing guard, any constitution can be subverted for corrupt ends. But we can and should give ourselves the constitutional tools we need to clean up political messes like the one in which we are presently mired.

Also in this section:
Jackson, Constitutions and popular sovereignty
Bernal, Standing up to a university inquisition
Committee to Protect Journalists, Eisenmann's case
Revolutionary Association of the Women of Afghanistan, Taking stock on March 8, 2004
Caribbean Community, Heads of state weigh in on Haiti
Panama Vote 2004, NY Panamanians honor Afro-Panamanian women, back Torrijos
Fisher, Scarlet Letters

opinion

Popular sovereignty and constitutional reform

Popular sovereignty and
constitutional reform