The genius of the Constitution

    10040

    ‘The Constitution is a delegation of power, albeit for a temporary period of time, clear limits are imposed on the government, so that they never become more powerful than the people from whom their power is delegated.’

    I LOVED the movie “With Honors,” released in 1994. I saw it at a time when I was still wavering between fulfilling my childhood dream of finishing my law studies and becoming a lawyer, or walking away and exploring the world beyond law. And that’s why every scene and every exchange was memorable; it also was a factor that I had taken a course on negotiation at Harvard’s Law School’s Program on Negotiation that same year.

    “What is the particular genius of the Constitution? What quality distinguishes the American Constitution?” asked Harvard Law professor Pitkannan (played so appropriately by Gore Vidal). After an exchange with the bum Simon Wilder (played by Joe Pesci), the latter answers the question: “The genius of the Constitution is that it can always be changed. It makes no permanent rule other than its faith in the wisdom of ordinary people to govern themselves.” After the professor refers to the Constitution as “crude,” Wilder adds: “Our Founding Fathers were pompous middle-aged white farmers, but they were also great men.

    Because they knew one thing that all great men should know: that they didn’t know everything. They knew that they were gonna make mistakes but they made sure to leave a way to correct them. They didn’t think of themselves as leaders; they wanted a government of citizens, not royalty; a government of listeners, not lecturers; a government that could change, not stand still. The President isn’t an elected king, no matter how many bombs he can drop, because the crude Constitution doesn’t trust him. He is a servant of the people…”

    We never had such an exchange with Chief Justice Enrique Fernando when he was teaching us Constitutional Law in our first year at Malcolm Hall. Then again, I could not imagine anyone of us UP Law freshmen daring enough to refer to him the way Wilder called Pitkannan an “a-hole,” as the bum was walking out of the lecture hall.

    I did walk away from law school, but the movie has never been far from my heart. And every time I think of our own “crude” Constitution, a Constitution I campaigned against and even debated against in 1987, I see it and constitutionalism in a much better light, thanks in part to the movie and to this particular exchange.

    I see the Constitution for what it is: the contract between the sovereign power – the people – and their servants, which is the government of the day, one that is never permanent but subject to change every so often. The Constitution is a delegation of power, albeit for a temporary period of time, clear limits are imposed on the government, so that they never become more powerful than the people from whom their power is delegated. That to me is the “genius” of the Constitution.

    Hence the truth in the quote from another movie, this time “V for Vendetta:” “People should not be afraid of their government; government should be afraid of their people.”

    That’s what constitutionalism is all about.

    But it is not surprising that government after government attempts to change that balance of power, and tilt it in favor of itself. Every excuse is given: that the situation is too complex to be dealt with without extraordinary powers; that there is a crisis requiring a suspension of “normal” rules; that “enemies of the state” are out to topple the government which needs to respond accordingly. And very often this tilting of the balance has to do with laws that affect the power of the government to arrest and seize people (or property) via shortcuts of established legal processes. But governments do not stop there. If they can go beyond passing “extraordinary powers laws,” they’ll “go for gold,” so to speak, and try to revise the constitution itself!

    Whether the basis for the argument is real or, worse, imagined, the granting of extra or extraordinary powers to any government cannot be done willy-nilly without threatening the whole foundation of constitutionalism and undermining the sovereign power that rests in the people.

    And while this sounds so “remote” an issue to you and me, remember that everything we call the “rule of law” has as its foundation the Constitution itself.

    It is also noteworthy that many governments equate themselves with the state, and so argue that enemies of the government are enemies of the state. There is a whale of a difference between an incumbent government (those holding public office for a certain period of time) and the state (the political institution that encompasses the sovereign people living in a specific territory). But governments always want the people to think that those who oppose the government oppose the state, which is false; in truth and in fact there even are times when the government itself becomes the greatest threat to the people and the state!

    And so when we find ourselves in a situation where people fear the government, then it only means that the latter has successfully hijacked the Constitution and turned it on its head. This is easy to do where the people are ill- or un-informed about constitutional government in general and about the Constitution in particular. It’s easier to do when people – maybe out of habit, maybe because of culture, maybe because it is demanded of them – do not treat public officials as public servants, but as rulers who needed to be paid homage to.

    What can be more contrary to constitutionalism than a consciousness that converts the sovereign people into subjects, and the delegated government into rulers? A consciousness that establishes a “government of royalty” instead of one of citizens?

    Can you blame me if I say that the state of the health of constitutionalism in the Philippines is maybe 49%? And can you blame me if I say that a large part of the problem rests with us, because we have hardly taken time and effort to read, and understand, the Constitution of the Philippines, the very document that defines who we are, what we believe in, and what we aspire for?

    Do yourself a favor. Grab a copy of the 1987 Constitution and read it from cover to cover.

    From the Preamble to the transitory provisions. Look at how the Constitution is laid out: what article comes first and what follows and try to ask yourself why it was written so. If we are to be a better country, if ours is to be a stronger state, we have to begin by being better citizens. And there’s no way we can become one if we do not understand “the genius of the Constitution.”