Democracy to necrocracy

The argument

Democracy locates authority in the living. Whatever else it requires, it requires that the people governed by a set of rules are the people with the power to change them. An unamendable constitution withdraws exactly that power. The introduction of an unamendable constitution forces future citizens to be constrained by a constitution that reflects the values and beliefs of their ancestors. Those ancestors may have legislated wisely, but they legislated for the circumstances and moral assumptions of their own moment, and they cannot be consulted about anything that has happened since. The 'dead hands' of a society's forefathers thereby restrain social and political development: the settlement is fixed at the point at which it was written, and whatever the society subsequently learns or becomes has to be accommodated around it rather than expressed through it. Under these conditions a democracy decays into a necrocracy — government by the dead over the living. The second objection concerns the standing of the citizens themselves. An unamendable constitution places certain laws above the will of the people. In a democratic society the people decide what laws and constitutional elements they want; that is what makes the arrangement theirs rather than something imposed on them. Where a provision is beyond amendment, voters retain the form of deliberation without its substance. They may argue about the provision, campaign on it and elect representatives who oppose it, and none of that can issue in change. What is denied is not a particular outcome but the exercise of democratic rights as such. Both strands converge on the same conclusion. Removing a question permanently from popular control is not an ordinary limit on democratic power but a suspension of democracy within that domain, and it is therefore incompatible with democratic principles. An unamendable constitution is undemocratic.

Context

A constitution is designed to protect the values of a society. But a society’s values are constantly changing. In healthy societies, core values are constantly being critically examined and those that are found wanting are quickly abandoned in favour of new values more aligned with current social and political thinking.

Premises

Counter-arguments

Even with an unamendable constitution, voters keep their primary constituent powers. Unamendable constitutions stipulate that no government may amend the constitution, but they cannot stop a government from drawing up a new constitution. Therefore, the voters retain their right to choose the constitutional elements that they want to live under but instead of amending an existing constitution, they would need to get their government to draw up a new one. Because voters are able to keep their constituent powers, unamendable constitutions are compatible with democratic principles and have a place in democratic societies. This argument also suffers from a narrow definition of democracy. Democracy is not merely the process through which we appoint leaders and make collective decisions. Democracy is also the process of guaranteeing individual rights to all citizens. Building an unamendable constitution furthers democracy in this sense. By preventing constitutional tinkering, an unamendable constitution can ensure individual rights are protected from malign political actors forever, guaranteeing the survival of a fully democratic society.

Rejecting the premises

[Rejecting P2] The constituents always retain the power to draft a new constitution. Therefore, they always have full democratic control.