Wednesday, February 22, 2006

Constitutionalism Part III: The Case for African Constitutionalism

As the West actively seeks to endorse and impose constitutions in countries around the globe, there lies a fundamental element of debate for application of a constitution in certain areas of the world. As the State Department notes, the biggest export of America is their constitution around the world; setting up free liberal democracies here and there while granting primitive tribal societies a sense of ‘universal rule of law.’ The African constitutional experience is far different than the European experience. Through my research however, I have concluded that African countries, although different from European countries, should still adopt some form of a constitution in order to 1) establish a framework for development and progress, through the rule of law, internally and externally, 2) improve the well-being of the state, and 3) appeal to the global community.

One of the primary differences between European constitutions and African constitutions, opponents of adopting constitutions in Africa argue, is that the consent of the people or the pull of ethnicity is far greater in Africa than it is in Europe. While this may have some truth to it, the argument about this being a main reason for not adopting a constitution is faulty. The fact of the matter is that the US is the most diverse country, culturally and religiously, yet our Constitution remains in tact. The initial stages of implementation are difficult, yes, and blood may be spilled, but for the long haul the co-existence of a diverse population and a constitution is very practical indeed. The Europeans underwent an easier time adopting it, since they are all usually of one nationality, but this fact alone should not impede African countries from establishing one for itself.

Opponents of my theory also argue that when constitutions are imposed, patrimonialism, which is essentially authoritarianism, exists in the African hierarchy and the rule of law is lost. But what can we say about this absence of the rule of law? Could it be a fracture on the actual constitutional-making process? If the state created an institution which provided checks and balances with a strong independent judiciary, the executive branch could not abuse his power. The framework thus created, enables these countries to develop a sense of national unity and national strength which is facilitated by grossing a GDP and accepting globalization as a form of enlightenment and necessity. The abuse of power can be curbed by reforming the process to a different way than the Europeans; perhaps a more gradual process. Internally they succeed and externally they can open trade with other nations as well.

What of the notion that constitutions contribute to the well-being of the state? Author Yash Ghai states "…neither the substance nor the ideology of the rule of law is necessary to governments and their economic systems in Africa…" Yet more often than not, we find that the countries with unrestricted trade and constitutional governments enjoy higher economic standards of living. This is to say that most of the European countries that parted from communism enjoy great economic success because of the established supreme law of the land. Without this symbolic and literal document, the country is always up for a power struggle and the well-being of the state is decreased. In other words, Ghai fails to mention that without an economic system or rule of law, that sheer anarchy and absolute freedom will ensue, thus giving rise to violence, subjugation, and ultimately self-destruction.

Although opponents make an interesting case for Africa’s self-reliant status apart from the rise of constitutionalism, they fundamentally fail to understand that in a growing, more interconnected world, it’s essential to have an economic system and a political ideology driving the formation of a country. Without a constitution, the well-being of the state, the internal and external structure, and the global community will all be neglected with severe consequences in return.

Thursday, February 09, 2006

Constitutionalism Part II: Global Constitutionalism Erodes Sovereignty

Global constitutionalism is the belief that world governments will defer to the rules and principles enshrined in a worldly constitution and uphold the rule of law within that constitution. Throughout history, constitutionalism has changed in its meaning, authority, and its function of legitimacy. The three different waves of the constitutional process are significantly different than the recent wave of a global constitutional structure, or a New World Order. This new phase is undoubtedly more dangerous and more complicated than the previous phases before it.

The first wave of constitutionalism occurred from the 1700s up until the 1850s. This was the stage which established constitutions as a force and product of a law abiding society. Virtually all of these constitutions were established after a bloody revolution breaking away from a monarchy. Examples range from the United States in 1776 to France which had about 5 revolutions from 1793 to 1848. These constitutions were based upon limited government authority, religious freedom, and were products of the Enlightenment. The global constitutionalism setting is probably most similar to this stage. If in fact there were to be an adopted global constitution, it must remain from being too long and should be pithy; precisely what constitutions during this time frame were based upon. Also, global constitutionalism is brought forth because of the sense of distrust in nation-state actors; much like the constitutions in this era had distrust in government.

The second wave of constitutionalism was between the years of the end of WWII till the fall of the Berlin wall in 1989. This stage was focused on nation-states becoming self-determining. From Japan and Germany after WWII to Spain and Portugal in the 1970s this stage focused on political rights and conceptual structures such as popular sovereignty. Global constitutionalism was making a rise in this era as well, with the formation of the UN, the establishment of NATO, and the creation of GATT (present day WTO). These institutions further developed the global states as one uniform body embracing subtle rules of law across the globe. The peril of this global constitutionalism was slowly eroding some sovereignty from many countries participating in this process.

The third wave of constitutionalism occurred after the Berlin Wall fell in 1989. A rise of independent, free of USSR controlled states like Hungary, Poland, East Germany and Romania surfaced in this era, and constitutions were created to ensure freedom for all citizens. The iron grip of the Soviet bloc was destroyed and globally the US was left standing in a great position as the world’s number sole global superpower. These ex-communist countries wanted socio-economic rights in their constitutions, something which global constitutionalism will take no part in.

The formulation of a global constitution is extremely dangerous. Not only will the sovereignty be tarnished in each country, but the philosophical aspect of utopia is simply unattainable. How can a world, which embraces and sustains millions of different ideologies, embrace a structure that impedes freedom and culture in the very aspect it is hoping to achieve? Unfortunately, this is the next phase in constitutionalism; a phase that potentially, could leave a stigma on many freedoms we love and are guaranteed on Earth.

Constitutionalism Part I: The Progression of Constitutionalism

What is constitutionalism? The broad answer of that question is merely the limitation of government by law. Yet the main tenets of constitutionalism are very different in each of the sovereign countries which instituted a constitution in the different historic constitutional periods. The tenets of constitutionalism are essential for defining a national sense of unity and adopting principles which are to guide that country for a sustainable period of time. Constitutionalism is absolutely an ideology which has been modified and tweaked for centuries, and is even entering a new phase of a theoretical configuration amongst the global community.

The initial ideology of what a constitution consisted of was influenced heavily by European philosophers like Locke and Montesquieu. The founding fathers of America based the tents of constitutionalism in our Preamble: “to form a more perfect union, to establish justice, to insure domestic tranquility, to provide for a common defense, to promote the general welfare, and to secure the blessings of liberty to ourselves and our posterity.” These tenets were a reaction to the breaking away of a British monarchy and the establishment of an independent state. The ideology of constitutionalism in this era was nothing more than granting liberties and protecting property rights. It had a very limited sense of government intervention.

Through time however, as mankind progresses and develops more knowledge, the tenets of constitutionalism vastly changed by the mid 20th century. The beginning of the second stage came with the defeat of Japan and Germany in WWII. The Japanese constitution was ratified within days by an imposed General MacArthur. The basic tenets of their constitution were trust within the government and the formation of a liberal parliamentary democracy. An excerpt from the Japanese constitution shows the trust in authority, “government is a sacred trust of the people, the authority for which is derived from the people, the powers of which are exercised by the representatives of the people, and the benefits of which are enjoyed by the people.” The ideology of government being beneficial was leaking even into our country at this time as well, with the passage of legislation which granted a vast amount of money to welfare and government job programs (New Deal). The ideology of constitution was no longer a distrust in government and protection of property rights. It was now blossoming into something beyond that, which political rights and universal suffrage played a big part in.

After the fall of communism, constitutions were bringing the government into many everyday aspects of their lives, because of the ‘status quo’ and how many citizens enjoyed free health care and education under communist rule. The constitution-making process involved a lot more details then did previous transitions of constitutionalism before that. The ideology had once again shifted. No longer did the political rights and univeral suffrage suffice, now governments, like Romania’s and Hungary’s, were to be controlling much of the economy. It was a constitution with a foundation upon socialist principles.

The transformation of constitutionalism in a historical context is quite stunning. As man pushed further into progress and development, the initial ideology of constitutions became somewhat obsolete, although it is worth noting that the root of constitutionalism still lies within that initial stage. As the ideology develops, we can infer that the tenets of constitutionalism will only seek to become modified in the future. This tranformation may soon be implemented within the global construct, endangering every transitional ideology before it.

Friday, February 03, 2006

Cry Me A River Mohhamed

The recent indignation coming from the Muslim world is innately showing the global community how the Middle East population ultimately views their culture in the world; which is, unfortunately, a selfish, and inconsiderate, naïve view that is normatively silent in hate against humanity, except when it is placed upon them in the form of a cartoon. This ire is in lieu of the recent political cartoon published in a Danish newspaper, which essentially alleged that the Prophet Mohamed was a terrorist. It pictured him wearing a turban that had a lit fuse at the top of the garment.

All hell has now broken loose in the Middle East. From top Muslim clerics calling for beheadings, to militant groups sending out threats to citizens of Denmark and Norway, and to even masked gunmen raiding the European Union office in the Gaza City, the Muslim community has gone bonkers. After threatening the Danish and Norwegian citizens, one militant leader said, "We are calling on the citizens of the two countries to take this threat seriously because our cells are ready to implement this all over Gaza.”

Wow! They wish to implement terror; beheadings, destruction, chaos, and fear into the citizens of a country that had one newspaper’s political cartoonist satirically embrace the Prophet Mohamed as a terrorist. What can be said of this? Well now that the world is watching a lot of true revelations have come forth about the Muslim society.

First, this in fact proves how egotistical the leaders and the people in that region really are. Why do they spark huge protests and express complete discontent about a satirically driven cartoon published in a paper about their religious leader, when they never spark huge protests or express discontent of the terrorism that is going on around the world? Where was this incitement and zeal after 9/11 happened, or after the Madrid bombings, or after the London bombings? There was no outrage from the leaders or violent protests in the street calling for the beheadings of the terrorists. There was a dead, ominous silence coming from the Middle East that was ironically deafening. The fact that the Muslim world thinks anyone is going to give a damn how they react to a political cartoon, shows us that they are in desperate need of fulfilling their narcissistic aims at believing in their righteous superiority of “sensitivity” or “political correctness.” The deeper concern is that the Muslim world has no respect or regard for calling for the complete annihilation of Israel, or comparing Sharon to Hitler in Muslim newspapers. The double standard is rooted in ethnocentricity and a fundamental Islamic belief that the world would be better served without the nation of Israel. It’s uncanny that the Muslim community can become this upset over a cartoon but not over the massacre of innocent civilians in other countries or the other demoralizations of other religions coming from their very own region.

If there is any justification for persecution of ANY citizenship or religion, it would have had to come about after 3,000 Americans were slaughtered on their own soil on 9/11. Did anyone in the Bush administration actively say that we need to reprimand or take violent action against the Muslim community since it was carried out by them? No. In fact Bush flew some Muslims out of the country for their own safety, because of some radical morons who already were racist against Muslims before the attack even happened. No one was calling for violence to a citizen of Middle Eastern descent. And this was over the biggest terrorist attack in history where innocent people were actually murdered in large numbers. No one was physically hurt from this cartoon, but now the Muslim leaders wish to hurt people as a result of it being published.

Can you even imagine this scenario in reverse? Can you imagine what would happen if a major Muslim paper published the Pope in some terrible demeaning manner? Here’s what would happen. The Christian Right and the religious extremists would be up in arms about the insensitivity of the Muslim newspaper. They would advocate for a boycott and maybe speak out against the actual publication itself. But what if the Christian Right began to assail the Muslim community in general? What if high Catholic bishops called for the beheading of the people who did it, or called for militant groups to storm any Muslim related shop in the US and hold them up at gunpoint in protest of what some newspaper organization published? The liberals in this country would be on every talk radio and TV show denouncing these actions so frequently, that all the planned parenthoods, environmental protests, and welfare programs would shut down for a week. So where are the liberals condemning this reaction in the Middle East now?

The fact is this; the Muslim community must understand that if they want their fury to be respected, then they must be consistent in 1) condemning the terrorist attacks with just as much enthusiasm and 2) condemning the same ethnocentric treatment they harm the Jewish people with. Also, the freedom of speech must be protected even if it does offend people to the greatest extent. The selfishness within the Muslim population is overwhelming and the inconsideration they demonstrate around the world is scarily expectable.

Kant vs. Mill: A Philosophical Debate

The recent discussion amongst the death penalty poses a very deep psychological question amongst the essence and impetus of human nature. The debate can be categorized into two realms: the Kantian logic of categorical imperatives (a deontologist position) against a Millian logic of utilitarianism (a consequentionalist posititon).

Let's frame the abstract amongst both arguments first, and then one can find where they fit into these ethical normative practices.

The Kantian Logic

The deontologist position is somewhat a little more complicated than the consequentionalist position. Basically Kant believes in a theory of categorical imperatives. A categorical imperative would denote an absolute, unconditional requirement that exerts its authority in all circumstances, and is both required and justified as an end in itself. Kant bases his decision making on a universal maxim, something that does not qualify as an end in itself. The act itself MUST have moral content if it is carried out solely with regard to a sense of moral duty.

An example of Kantian ethics:

Imagine Nazi Germany for a moment. Imagine the Gustapo searching German quarters for violations against the proteting Jews, in a time when they were banished to concentration camps. Imagine the Gustapo coming to a house where Jews were living and questioned the Jews if they were in fact Jews or German citizens. Kant would argue that it is wrong to rob yourself of the moral DUTY of the universal maxim and pretend that you are in fact German. Basically, the result of the decision, by Kantian logic would be that these people are to be wisked away to concentration camps. But it is of no dilemma for Kant. You have maintained a sense of moral obligation to adhere to the categorical imperative of truth and reason. Kant concluded that the expected consequences of an act are themselves morally neutral, and therefore irrelevant to moral deliberation. The only objective basis for moral value would be the rationality of the Good Will, expressed in recognition of MORAL duty.

The Millian Logic

The consequentionalist position is in fact very simple. It's maxim, under the doctrine of utilitarianism, is to achieve the greatest amount of good for the greatest amount of people. To Mill, no matter how cruel of the actual act that is involved, no matter what extent of grotesque and dirty nature of the act, that as long as the end result is better for more people than the act is inherently justified. To Mill, the universal maxim was happiness. He believed the intrinsic moral value of life was for everyone to attain happiness and pleasure (there are different types of pleasures but thats for another discussion).

An example of Millian ethics:

In the same exact situation described above, Mill would have no problem lying to the Gustapo for a greater amount of happiness for humankind (i.e the Jews). It doesn't matter that they abondoned a sense of "moral duty", the bottom line to Mill is that they achieved what human nature should always be in search of: the greates amount of good for the greatest number of people.

By using this example, many people see that they would never adhere to Kantian logic; it seems ridiculous and in fact morally obtrusive itself. However let's take another example where one may completely agree with Kant, BASED on the same principles.

Imagine the entire city of Chicago has received word that the water system is completely diluted with a bacteria and soon a plague develops amongst the entire it spreads through airborne. Now imagine if you will, for sake of the hypothetical point, that the government was able to contain Chicago in a large dome so to stop the spread of the immediate effects of the epidemic to other parts of the world. Yet, many people are talking about revolting against the government dome and roaming outside, because they are in fact not "infected" yet. Let's also pretend that the only way to stop the spread of the disease is to elminate all citizens in Chicago by means of smart missiles. The question then becomes...

Is it morally right to kill every citizen in Chicago for the benefit of the world? In Mill's eyes, yes, more happiness for the entire world is better than more suffering for the entire world. Hence, he would bmob Chicago so the world is "saved." Yet in Kant's eyes, the act itself is so repulsive that it goes against the moral duty and maxim of society to actually destroy massive amounts of human life to save more people. The ends to Kant are of no regard. It is the ACT in which is against his categorical imperatives.