The Golden Calf of Constitutionality

Zdeněk Koudelka, Associate Professor, Department of Constitutional Law and Political Science, Faculty of Law, Masaryk University; Karel Engliš College; Brno, Czech Republic

The text focuses on the theory of the material gist of constitution as an above-constitutional and unchangeable quality in the constitutional law. The author rejects such a theory from both the religious and the democratic point of view. Law and constitution can have an above-constitutional base only in God as a transcendental quality. If the secularized democracy rejects such a base, it cannot be replaced with a material gist. Such a constitution does not have any other base than the required major consent of the people as a sovereign in democracy than enactment of a common statute; however, the constitution is enacted directly by the people or via the parliament. Change of the constitution is in the hands of the people and is determined only by retaining the required procedure of the change and the concerned qualifi ed majority.

Key words: сonstitutionality; substantive core.

 Rationalism, modernism and a plenty of other –isms were only a reaction to the system of traditional society. The main paradigm of such a society was based on religion which was manifested in law as well. Organization of society, public authority, state and law were based on religious authority. The mankind was created by God, and the holders of power existed by the grace of God. The acceptance of royal power by the first Jewish king Saul served as a model. Saul was anointed by the prophet Samuel by the order of God[1]. The position of the holder of power was derived from God who also put the rules including the moral principles which the holder of power had to follow.

The modernists refused to view  God as a base of law. The absence of this quality is most obvious in the constitutional law. Other branches of law see its basis and support in the norms of constitutional law with a higher legal force. The constitution, deprived of the basis in God, exists in itself – solitary, without support and, therefore, unstable. To make the constitution more solid, some people suggest replacing the nothingness which was created after depriving the constitution of God. These people want to be sure about something superior as well. They want the constitution to be religiously neutral but not value-neutral. They want to have some superior (transcendental) basis, but not the religious basis.

After rejecting the divine basis, the modern constitutions derived their dominant position in law and their higher legal force from the procedure of enacting which is more difficult for constitutional statutes than for ordinary statutes. This reason has its own logic. Nevertheless, some people are not satisfied with that. As a reaction to the fact that the democratic constitutions enabled the non-democratic regimes to take up the power, the so-called clauses of inflexibility started to appear in the constitutions. The legal theory created the concept of the material gist of constitution which has a higher rank than other parts of constitution[2]. However, the inflexibility is congruent with eternity and the material gist - with transcendence.

The Clause of Inflexibility

Some constitutions except the constitutional change of some institutions (clause of inflexibility or eternity). However, this clause is likely to be reviewed as declaratory in the course of centuries or millenniums. The inflexibility can exist only where the social development stops. We judge others beyond their epoch and with the course of time but we miss such a course of time when we judge this epoch. In the 1^st century, most  ancient politicians considered the Roman Empire with the Roman peace to be the point of culmination in the history of mankind. However, the Christianity did not accept such a point of culmination and had a different vision of the social development. But after all we can learn from the recent historical periods. Is the clause of inflexibility not similar to the ideas of the chiliad 3^rd German Empire or to “With the Soviet Union for eternity and never otherwise?”. The history shows that the society which declares itself to be the top of the history is at the beginning of its own decline.

The idea of the end of the history contented the medieval chiliad visions of the end of the world or the theory of the end of the world by the victory of communism (Marx, Engels, Lenin)[3] or by capitalism and liberal democracy (Fukuyama)[4]. The supporters of the victory of communism and of capitalism drew the theses of the end of the world from the philosophy of Georg Wilhelm Hegel who considered the drive for appreciation to be the moving force of history. The end of history cannot come, if the mankind lives.

Hayek warned of implementing the ideological concepts to the legal regulations. Hayek identified as moral states in a negative sense those states which bring the ideas of moral problems into the law and impose such ideas on all the people (Nazism and communism). Contrary is the liberal state which is not unmoral and does not impose its ideas of moral problem on all its citizens - its law is created by the system of noted rules where the foreseeability of the consequences is the main priority for the free choice of the people’s behavior[5]. From this point of view, the theory of the material gist seems only to be an endeavor of the constitutional court (which uses this theory as a reasoning for the usurpation of power to repeal the constitutional statute[6]) to regulate particular subjective moral opinions of law in the legal system beyond the traditional enacting mechanism by the constitutional body and by the legislative body in the European continental system. Here, it is possible to remind of Hayek's warning of the arbitrariness of the public authorities: “Broader and broader competences are being conferred to new authorities who without being bound by firm rules have almost unlimited arbitrariness ...”[7]. 

France has a regulation which prohibits change of the republican form of state[8]. Nevertheless, France changed its form of government in the last two and half centuries. Since 1789, France repeatedly changed monarchy in both the absolutist and constitutional form with two concurring dynasties of the Bourbons and the Orleans. France was also an empire and republic in the form of government of the Convent, presidential form and parliamentary form, including the partial presidential form[9].

The constitutional body states what the part of the constitutionality is. The constitutional body is identical with the legislative body in the Czech Republic (Parliament). A bill of a constitutional statute which is marked as a bill of a constitutional statute has to be enacted by a qualified majority within a certain procedure which is different from the procedure to enact an ordinary statute (the consent of both parliamentary chambers is needed). The legitimacy of the constitutional order (supremacy in the legal force) in secular democratic state is given by the wider consent of the society which is represented in the Parliament in the system of representative democracy. This wider consent is determinated by more rigorous procedural rules for enacting the constitutional statutes. The rigidity of the Czech constitution is not very significant in contrast with some other constitutional systems which request, e.g., ratification plebiscite[10], consent of other state bodies[11] or choice of a special constitutional convent for the change of the constitution[12]. Systems with a flexible constitution which can be changed with an ordinary statute (Great Britain) also have their own legitimacy – here is no need for the constitutional court as a guardian of the constitutionality.

From this point of view, it is possible to regard the inflexibility of the constitution as a relative[13] self-limitation of the sovereign which can be withdrawn because no sovereign as a creator of the constitution is everlasting. A sovereign in a monarchy or the nation in democracy change with the death of the old and with the birth of the new people, including opinions about what the public good is. Formally, the sovereign is still the same - a monarch or the nation, but their substantiality is different. The clause of inflexibility can be changed[14] – extended, reduced and abolished.         

The Religious Point of View

From the religious point of view, the desire for seeking the transcendental basis of constitution via its material gist while refusing this basis in God is only the expression of the drive for seeking God out of God. It is the pagan's desire to raise the material gist of constitution to a new divinity which everybody, including the constitutional body, has to worship. Thereafter, the Constitutional Court has a tendency to appoint itself as its absolute interpreter, therefore, a new clergy.

It is the consequence of depriving the constitution of God, but there still exists the drive for something transcendental, which is out of the disposition of the constitutional body and which is newly called a material gist of constitution. It reminds of the Nietzsches' words: “Who left God, believes in morality much stronger”[15]. It is the same as the 3. Moses book describes the Jews impatiently waiting for Moses to return from the Sinai. The Jews persuaded Moses’ brother Aron to build them a golden statue of a bull-calf which they could worship[16]. An idol is always an idol although it is made of gold. After rejection of a divine basis, the constitutional body has to act rigorously and has to face the fact that everything is now in the hands of man. Between the human and the divine there is nothing transitive. There is nothing superhuman and at the same time non-divine. A human creature, also in the form of the core of the Constitution, remains only a human creature and has to be assessed that way[17]. Creating the material gist of constitution as something inflexible that is beyond the disposition of the constitutional body and the sovereign (people) is only an attempt to create an idol – a golden calf – in constitutional law.

A Democratic Point of View

Consent of the majority is the only source of legitimacy in a secular society. Although the government of the majority has its problems, it is the base of democracy which cannot be abolished without loosing the democratic regime. The majority of democratic states enacted rigidity of the fundamental legal rules which they called constitutional legal rules. In order to enact and change such rules, the qualified majority is needed. This procedure provides a wider consent of the society concerning the constitutional norms in contrast to a lesser consent which is required for ordinary statutes. This wider consent brings also a bigger stability of constitutional norms. Nevertheless, the statement of constitutional norms stays within the Parliament, as the body representing the people or the nation itself decides about the constitutional norms in a plebiscite, or a combination is possible as well. Yet everything is within the democracy, which does not have, and cannot have, any other basis of sovereign power than the people. Democracy is based on the faith in people, which fully represents the words of Tomáš Garrigue Masaryk: “...democracy consists in the faith in people, in humanity and there is no faith without love, no love without faith” [18].

If we accept the existence of the non-defined material gist of constitution and  hence the  possibility of cancelling the constitutional statutes by the Constitutional Court for reasons other than the fact that the enacting procedure was imperfect, then the Constitutional Court becomes an unlimited and absolute state body which takes off the sovereignty from the people and usurps it[19]. It is an attempt to find some other legitimacy in a secularized society than the consent of majority. The constitutional court gets the supremacy in the state, its sovereignty. The extent of such a power depends only on the self-limitation of the constitutional court. Provided that the constitutional court does the above mentioned things in the situation when it uses the theory of the material gist of the constitution without defining it properly, there comes up an uncertainty because the people do not know what the constitutional court considers to be the material gist. Virtually there is a rule for each uncontrollable power usurper. Such usurper cancels what he wants to cancel, and his reason is the teleological interpretation of the material gist of constitution.

Holländer argues to the alleged unconstitutionality of the constitutional statute on the shortening of the electoral term of the Parliament, that not even the constitutional statute can shorten the electoral term of the members of Parliament, because the consensus of all affected people is not ensured[20]. In this case, the constitutional court itself did not meet the requirement of the unanimity. If we accept that constitutional statutes can be cancelled if they are contradictory to the democratic regime, and the Parliament used its competences, which it was delegated by the people, against the people itself- should such an explicitness not be evident and should there not exist a demand for unanimity of the constitutional court?

Conclusion

The theory of the material gist of constitution as something unchangeable and untouchable by the people is an expression of fear of admitting the democratic consequence of depriving the constitution of the theocratic base which leads to the reign of people. Some fear of the people, regarding it for the crowd which can savage[21]. And they are right. Nevertheless, the material gist of constitutionality is nothing else than an attempt to a third way between the democratic base of power in people and the transcendental base in God. The material gist is likely to be created by the people during the first establishing of the power, but it is no longer changeable because it is out of the disposition of the people, it becomes superhuman. It is a similar third way to the one Muammar Kaddáfí created in Libya as a brand new form of state which should have been something between capitalism and communism – Jamahiriya[22], but it was, however, only another name for a totalitarian state.

Virtually, the theory of material gist of constitution is in a similar position to the main source of law of the Nazis which was not the written law but the legal certitude coming from the spirit of the nation and from the chief's (Hitler) will. However, the spirit of the nation and the chief's will were not defined in the law of the pan-German empire; in spite of this fact, they had an upper-constitutional quality. Virtually, such a system enabled arbitrariness of the judges, which was legitimated by an alleged chief's will[23]. Also, the communistic theory of law maintains that a judge is bound by class-conditional socialistic legal conscience[24].

Nazism, as well as communism, tolerated the religious faith but these regimes did not need such a faith. Nazism looked for some transcendental quality for a base of its law – it was the chief's will coming from the Providence. This immaterial idol, which was not golden any more, worshiped the Nazi authorities. Spectacular is the proximity of the base of the source of law of Nazis – legal certitude to the source of law in a socialist state – legal conscience.

In law, as well as in economy and politics, there  is an attempt to construct a third way accompanied by an internal conflict, because people are trying to connect incompatible things.  Either is the religious faith contained in the constitutional base and then the theories of material gist of constitution are useless, or we push the God out of the constitution, but then we cannot look for some transcendental base of constitution. In a secularized society, the people are the lord of the constitution, including its base (gist). Is it not dangerous and with unpredictable consequences? Yes, it is – but in there is the charm of the history. As the individual does not know his future existence, neither does the society know its future existence. Or its non-existence. Maybe it is terrible but it is not possible to choose between the faith connected with humility and the desire of controlling everything. The construction of a third way in the form of the material gist of constitution does not replace the difficulty of choice. The constitutional judge Jan Musil said it well: “The idea that lawyers are those who in the last instance solve the feud between good and evil is a total mistake, and this theory was many times displaced in the history. In this case historical parallels are very often used (many of them I find totally improper), and I would like to ask one question as well: did the lawyers prevent from creation and functioning of totalitarian regimes? Did the judges not assist in the crimes of fascist and communist justice?”[25].

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