Constitutionalism

A government system under which there is a division of powers between a central government and a number of regional governments is called a federal government. A federal system usually outlines this separation of powers through a constitution.

A constitution is a system of fundamental principles according to which a nation is established and governed. There are two basic type of constitutions: the flexible dispersed type, such as that of Great Britain, and the rigid codified type, such as the Constitution of the United States of America and Switzerland.

A constitution is said to be rigid when the constituent assembly leaves specified instructions regarding amendment to the constitution. If there are no such instructions, then the legislative assembly can amend the constitution through ordinary legislation and the constitution is considered flexible.

The British constitution is only partially written and what is written is dispersed throughout many pieces of legislation. The British system evolved through a process of custom, precedent, and law. In countries where the fundamental constitution can be changed by normal legislation, we find that the constitutional and law-making powers can be changed for good or bad much too easily. Notice the total negation of property rights in both Britain and Canada under recent regimes.

The power in Britain has evolved from monarch to assembly of lords to the House of Commons. Today in Britain, we have the sorry sight of a government duly elected by the people violating the property rights of one group of people after another. As Alexander Hamilton observed in the Federalist Papers (1787), "masses of people can be as despotic as individuals who wear crowns". There has been continuous erosion of rights and freedoms in Britain and Canada under successive "socialist" regimes since this paper was written.

Under rigid constitutionalism, rights are accepted as absolutes and are not to be denied or removed for any cause. Governments have not rights, only duties, and a constitution is a law of control to a government. The only moral purpose of government is the protection of the rights of the individual. The constitution should limit the powers of government bodies to this purpose. "It is not for the benefit of those who exercise the power of government, that constitutions, and the governments are established. In all those matters, the right of judging and acting are in those who pay and not those who receive". (Thomas Paine, "Rights of Man", 1775).

If a society is to be free, its government has to be controlled. For this purpose a rigid constitution must be set up to provide a code of ethics for that government. It must contain a Bill of Individual Rights, which guarantees the rights of every person and which cannot be amended in any manner. It should stipulate the limitation of powers of all levels of government. The constitution must specify the manner in which power is to be distributed between the central and the provincial governments and assert the supremacy of the constitution over both. The constitution must outline the separation of powers between the three branches of government: The executive (cabinet), the legislative (House of Commons and Senate), and the judicial (courts). The three branches must be separate and each must have constitutionally designated powers of check against the others. The Supreme Court should be the guardian and final interpreter of the constitution.

The limitations of power on both the central and the provincial governments must explicitly bar them from the fields of taxation, economics and banking, education, and public welfare.

A government's intrusion into the field of Economics and Banking result in chaos because its deficit financing schemes to pay for its welfare and other programs result in inflation of the money supply and the consequent debasement of the currency.

State control of the Education system lowers the quality of education and could result in a useful machine if in the wrong hands. A free enterprise education system would work much more efficiently because the education system would have to be successful to make a profit and stay in business.

In arguing against the monarchy, Thomas Paine came up with a good argument against the welfare state. "Among the numerous instances of abuse which have been acted or protected by governments, both ancient and modern, there is not a greater than that of quartering a man and his heirs upon the public, to be maintained at its expense".

A constitution should be designed to protect an individual from his government. "Rights of people must precede the rights of governments". (Federalism for the Future - a publication of the Government of Canada). In The Constitution And The People of Canada, February 10, 1969, Pierre-Elliott Trudeau suggested these replacements for the Constitution of Canada. "The right of the individual to life, and the liberty and security of person, and the right not to be deprived thereof except by due process of law". "The right of the individual to the enjoyment of property, and the right not to be deprived thereof except according to law" (page 52). These so-called Fundamental Rights would subordinate the individual to the state instead of protecting him from it. (Thus began the sorry state in which we find Canada today).

Douglas R. Calvert, Published in, Property Rights, The Newsletter of The Association to Defend Property Rights, 1975, Alberta, Canada.

Douglas Calvert

Bibliography

Strong, C. F. Modern Political Constitutions

London: Sidgwick & Jackson Limited, 1963

Hamilton, Alexander The Federalist, a collection of essays.

New York, The Modern Library (Random House), 1941

See Federalist Papers link, home page.

Paine, Thomas Basic Writings of Thomas Paine

New York, Willey Book Company, 1942

Rand, Ayn The Virtue of Selfishness, An Introduction

Pennock, J. Roland Political Science, An Introduction