The Failure of Constitutions

An ordinary Ukrainian on Constitution Day will probably remember the expression “constitutional night.” He might also remember that right now some people led by Kravchuk are writing a new constitution¹. And the more enlightened segment of the ordinary Ukrainian, if asked why all this is being done, will say that it is needed so that Yanukovych can be elected president in parliament. I think I won’t be wrong if I say that the role of the constitution is seen by most Ukrainians as serving the “political expediency” of the Ukrainian elite.

Our Constitution has fully earned such treatment. The expression “the constitution doesn’t work” began to be applied to our fundamental law even before it was adopted. What happened afterward only confirmed the preliminary forecasts.

One can argue for a long time on the topic “why the Ukrainian constitution doesn’t work,” but, as in that joke about the thirty-eight reasons for the surrender of a fortress, in this matter there is a main reason, comparable to the absence of gunpowder — a written constitution simply cannot work. By definition, as it were.

The constitution, in its modern understanding — is a British idea. It just so happened that British “power” turned out to be bound by various written and unwritten rules and restrictions. These rules and restrictions came to be understood as the main condition that allows a person to remain free. In the most general sense, they were called the constitution.

The American Revolution had a simple cause. The colonists believed that George III was violating the English constitution, infringing on the freedoms of the colonists — British subjects. Therefore, upon completion of the revolution, it was not difficult for the colonists to write their own constitution. They believed it would protect their freedoms from the state.

At this point, actually, our story truly begins. The British, after Cromwell’s experiments, no longer attempted to write a constitution, relying on the authority of unwritten rules and the natural course of events. The Americans, however, decided to create and describe a system that, as they believed, would prevent state arbitrariness and be able to put it at the service of the people. Thus began the grand constitutional experiment. From this moment on, every respectable country considered it its duty to have a written constitution. Now we can draw the results of this experiment. Nothing came of it.

And it didn’t work out for the USA itself, let alone all the others. If you wish, you will find plenty of examples of how the American constitution is not observed. Moreover, it is not observed, so to speak, on a regular basis. For example, the Second Amendment. It says that a free person has the right to bear arms. Half of the states ignore this amendment, and the federal government, progressive opinion, and cultural figures constantly conduct campaigns against it. Or take the fact that the US Constitution does not provide for fiat money and says nothing about the Fed. And nothing — they somehow get by. Or, for example, the declaration of war. This is the prerogative of Congress. After World War II, the USA is constantly at war with someone. But no one declares war. The president somehow manages on his own. Congress? What Congress? And recently, the US Supreme Court presented a real gift in the matter of trampling on the constitution — it, in fact, approved “Obamacare.” Let me remind you that this amazing “health insurance” system provides that a person who does not want to use its services… pays a fine. In general, what rights and freedoms are there…

During the constitutional experiment, the following became clear. Always and everywhere in practice, an unwritten constitution works. If it conflicts with the written one, the latter is ignored. Translating for Ukraine — if your unwritten constitution provides that the boss can do whatever he wants, then no piece of paper will help you.

This applies to all written constitutions. It doesn’t matter whether their authors wrote them “for the people” or “for themselves,” for Yanukovych or for Uncle Vasya. The principle itself doesn’t work, regardless of the intentions and qualifications of the authors.

The idea that one government boss will protect you from another government boss because this is prescribed to him by some paper has proven to be unrealizable in practice.

Very well, they will say to me, but what should we do now? Who will “guard the guardians”? Actually, there is a simple answer to this supposedly complex philosophical question: the one who hired them guards the guardians. The imaginary “complexity” that is blown up around this thesis is precisely connected with the careful obscuring of this simple fact. The desired is presented as the actual. They say, “We ‘hire power’ in elections” — we are told. The thing is, no one hires anyone. Hiring is the performance of some pre-known work for an agreed-upon payment. And that’s it. In our case, there is nothing like that — the “guards” have settled comfortably in our house, they regularly take away part of our property for “activities” that they themselves invent. Therefore, the main problem that now needs to be sorted out, now that the constitutional idea has failed, is the question for the “guards.” It sounds simple: “What exactly are you doing here?”