Political theorists, jurists, and experts of constitutional law emphasize the necessity of constitution. In terms of language, the word constitution signifies how an entity or an idea is constituted but that is not how the word came to be. Like most things, the word has come to our midst from Latin. In terms of political governance, constitution defines how a state is organised; how its affairs are run, and how the sovereign power of a state is vested in those who run it.
Therefore, the public or the society within a state is governed according to, and within, the ideas enshrined in a constitution. Thus, it becomes the primary source or engine of public administration and public policy within that state. In many cases, constitutions also define the fine line sovereign powers cannot cross.
But, does a constitution guarantee and safeguard the existence and continued integration of a state? And more importantly, does a constitution have an inherent power to protect individual rights, ensure fair discharge of individual duties, and check misuse of state authority? If no, do we really need a constitution then?
The first answer that readily comes to any mind for all these questions is: absolutely.
However, Lysander Spooner once said:
“Whether the constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had or has been powerless to prevent it. In either case, it is unfit to exist.”
Lysander Spooner is not promoting anarchy here as far as I understand it. He is talking about the constitution as an entity with the inherent power to authorize, even patronize, or prevent bad government. I cannot agree with that position. Any law, even constitution for that matter, holds only as much power as those who are committed to upholding it. The law itself, otherwise, is just wasted stationery. It neither has any will of its own nor any means to enforce itself.
James Madison, one of the early US Presidents and “father” of the American constitution, famously stated that no control on government would have been necessary if angels governed men; in fact, he went a mile further and said that no government would have been necessary if angels governed men. Madison, and other western political thinkers, before and after his time, manifests the evolution of western political and social experience. By using this analogy, he is advocating against the divine right of kings as much as divine law. Madison clearly prefers a republic.
Traditionally, constitutions define a mechanism to amend them. They also hold violating, abrogating, suspending, or holding them in abeyance as an offence. One cannot simply discard or overthrow a constitution. This position is also refutable. A constitution is a social contract among the willing who agree about a certain form of government. The power to create implies the power to withdraw life. The consent of the populace in a social contract is inferred and transferred to posterity. This is a line radically different from David Hume’s criticism of social contract who argued that we don’t tacitly give consent to a social contract.
It is opined here that consent to such a contract is not the only thing that is transferred to future generations but the power to overthrow it as well. This construct is closer to the position of John Locke and Jean-Jacques Rousseau.
The final thing, and the most necessary, it can be argued here, is the will of the people. It does not matter which source of law you ascribe to; be it man made or divine. Devoid of the will of the people, any law is a worthless piece of paper.
It does not safeguard us against any “Mukti Bahini”. It does not guarantee us that there will be no strong man who would dare suspend and abrogate it at will. It does not protect the country from sneaky shortcuts in the power corridors. It does not have marshals to enforce its will on those who won’t surrender to it. It cannot ensure compliance. It is deemed worthless by those who are supposed to uphold it. Such a piece of paper needs help.
And such a piece of paper is not necessary.