This article was published in the Autumn 1996 issue of Formulations
by the Free Nation Foundation
Constitutions: Written and Actual
by Richard O. Hammer

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Is a constitution worth anything? Two recent articles in Formulations, one by Randy Dumse1 and another by Jim Davidson2, have raised important issues. Here I add a few thoughts. Within limits I believe that a written constitution could advance our interests.

First, notice that the word "constitution" has several meanings. To us the word most commonly refers to a document, to the written constitution of a nation. But notice that the word can also refer to the structure of something. Every organization has a structure. (If an organization did not have structure, it would not deserve the name "organization.") Therefore every organization has a constitution, whether written or not. I will distinguish this meaning of "constitution" by calling it an "actual constitution."

An actual constitution includes formal structure, the sort of thing that might be shown by an organization chart, but only to the extent that formal structure influences events. More importantly, an actual constitution includes mechanisms, ways that people in the organization work to get things done. And, as we all know, ways that people actually work in an organization often differ from ways that would be suggested by the formal structure of the organization.

I believe we can use this distinction between two types of constitution, written and actual, to inform our discussion of whether it might be wise to write a constitution for a nation. We are painfully aware of organizations, such as the U.S.A., where the actual constitution differs from the written constitution. And from this experience we might infer that it is pointless to ever write a constitution for an organization. But consider this example which illustrates one extreme:

An outsider admires an organization, and asks, "How do you do it?"

An insider responds, "Well, we never wrote it down. But we could. For your sake we will."

With this example I mean to show that there does not have to be a difference between a written constitution and the actual constitution; the writing of a constitution could simply portray what exists.

Now a question may arise: If the writing merely describes an actual constitution, if the writing does not attempt to change that actual constitution, why write? What good will it do?

I answer: Since the outsider asked, the outsider must have some need. People sometimes hunger to know how an organization works. Examples are:

people starting a new organization want to emulate some or all of the characteristics of an existing organization;

people moving into an organization want to become part of that organization and are eager to learn its ways;

people within an organization come into conflict and want to know the tradition in the organization as it bears upon their case.

We see a demand for information. Where success of an organization suggests that the organization must have a good actual constitution, people will demand copies of that constitution in writing.

So, can a written constitution change anything? Yes, I think, within limits. A written constitution will change things to the extent that it shows people how they can actually advance their ends.

Every organization will contain interests which possess, or which can assemble, power to change the actual constitution. And these interests will change the actual constitution as they like whether we like it or not. Given this reality, a written constitution may survive, in that it will continue to portray the actual constitution, if it gives, to those interests with power to change the actual constitution, mechanisms to accordingly amend the written constitution.

This may sound like a gloomy statement, offering little hope for us idealists of non-coercion. But, as I have argued elsewhere, I believe the greatest powers in nature stand on our side.3 These powers will go to work for us when we constitute low-transaction-cost ways to confront aggression from the state.

Join me now in using these ideas to evaluate the most commonly-clamored-for section of a written constitution, a bill of rights. The typical plank in a bill of rights says something like:

"Government shall never, never, under any circumstance do X." I believe such a plank is almost worthless. Taken alone the plank does nothing to place power in the hands of the victims of X. The victims, not having power to defend themselves, can only hope they have friends who have power and who will use that power on behalf of the victims.

A constitution needs mechanisms, not rhetoric.4 Better would be something like this:

"Any citizen, considering himself to be a victim of X on the part of an agent of the government, may present evidence to any Certified Board of Arbitration. If that Board finds the evidence convincing then: the agent, along with all superiors of the agent cognizant of X, shall be immediately removed from government service; and the government must submit to arbitration if the citizen chooses to sue for damages resulting from X." So our challenge becomes to discover mechanisms which empower people to do what we want them to be able to do (and which they also want to do). These mechanisms, taken together, and assuming they work, constitute an actual constitution. When we write a description of this actual constitution we will have a written constitution.

Then, hopefully we will find people who hunger for knowledge of the organization described therein. D



1 Randy Dumse, "Constitutions: When They Protect and When They Do Not," Formulations Vol. III, No. 2.

2 Jim Davidson "Constitutions Are A Beginning," Formulations Vol. III, No. 4.

3 See my "Might Makes Right: An Observation and a Tool," Formulations Vol. III, No. 1; and also my FNF working paper "Win-Win Society is Possible."

4 This idea came to me from both Roderick Long, in his FNF writings about constitutions, and Isabel Paterson, in The God of the Machine.

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