ill-constituted ponderings

I read somewhere recently¹ (smarter suppliants of the Spiders maybe will be able to find it quickly?) a historian contending that the Mediaeval and similar documents (primarily Magna Carta) such as we would now call constitutions were attempts to codify what "everyone" "here" was already doing; that "Bad" King John had been checked by his barons and given this constitution because he had tried to change the rules. Or some such thing. (The original Carta was promptly invalidated by John deftly submitting his Kingdom as a Direct Subject of the Pope... which gave the Pope ideas... which may, I am fuzzy on tracing the threads through the centuries, have had some bearing on the unfolding of Avignon/Urban/"Consiliarism"... which left Europe ripe with ferment for Luther to sour... oh, that Bad King John...). But a Funny Thing Happened in 1775 in the British Colonies.

The colonists, you see, had got tired of how Westminster wouldn't give them seats (never mind Two Figs that it would take a week to get there, and a week to argue things over, and a week to get back, every time... in Good Weather... once the Colonies had Heard What Was Up in the First Place)... despite Westminster taking as much money as they could manage. You know, the King's business. Anyways, the upshot was that the colonists decided to chuck King George and Westminster, and ... all that. But knowing they didn't want anarchy (most of them) they decided to set down what The Rules ought to have been all along. Which was, mostly, the same as they always had been, but with some pointed Differences, mostly to make the Revolution consistent with the new Constitution (it couldn't be consistent with the Old). This was, I believe, the first instance of a Constitution being an instrument of revolution.

Not long before, the implicit constitutions (which Written constitutions were trying to approximate) had been invented or discovered by Rousseau and given the name "Social Contract". And that's the trouble with giving something a name... the name itself quickly gains a weird life of its own, becomes separated from what it was supposed to be and before you know it, people are putting them on pictures of cats and calling that the "meme".²

In other words, by discovering Social Contract, Rousseau made it possible for Constitutions to exist appart from any natural Social Contract, and in particular to become instruments of Revolution, which is exactly what they did. Nowadays it is still more common for Constitutions to become the excuse for whatever revolution — the Soviet Union, e.g., had a beautiful liberal bill of rights in its constitution, singing poetically the dignity of man and his natural democratic freedom... The trouble was: no-one in Russia had ever lived in a democracy, they had no idea how to maintain one whether as its subjects or its enforcers, and the people who had engineered and operated the whole thing had no intention of actually running the country that way.

Constitutions are only as good as the Tradition they draw on. More: Constitutions are only as good as the Tradition that survives them.

There's another Tradition, related to constitutional disobedience, called in the British nomenclature "muddling through". The Constitutionalist implementation of Muddling is mostly accomplished by Ammendment, though Executive Directive also has its place... A cynical interpretation of Muddling would hold that what we actually do has nothing to do with our written laws at all, but we'll update the old ones now and again to make it look alright. A more moderate interpretation would point out that Circumstances Will Arise which the old written formulas simply have not foreseen and won't work for. A good Catholic will point out that Murder is still, and always, wrong. Anyways, back in Europe, treaties were the reigning instrument of what today we'd call International Law, and all the princes who signed them were entirely used to them being broken and ignored left right and centre. (And then there was that one time, Princedom having become so very tired, when scrupulous obedience to Treaty turned into World War I).

Written Treaty was exported, during the colonial period, to North America, and ... you know what, I wasn't there, neither were you nor your grandfather, it was long long before that. I don't know what either side was really expecting, but I'm quite sure that Strict Observance of Treaty was not in the European mind; I'm pretty sure that Elision of Treaty, or its closest analogue, was also a perfectly ordinary thing among the locals — that I've heard stories of this tribe cheating that other, and burying hatchets, and then fighting again...; and all of whom, by the way, were nomadic, even the farmers. How you understand a teritorial treaty with people who just don't stay put I don't... but anyways. The only novelty to them, I believe, was that the European Treaties were written documents and (in some cases) can still be examined in person.

The European of the time probably thought of the Treaty (I guess), in the old Mediaeval way, as recognizing a pre-existing thing. And because of this, ignoring the same treaty you had written would be not quite a dishonest move: just because a thing existed before didn't mean you agreed it would always be a good idea. Having it written out did mean you could tell when you had to talk things over, again, and that can be a good thing for everyone involved. On the other hand, treaty disobedience could certainly be handled in a bad way, too, and certainly Princes have done wicked things, for their worldly enrichment.

I get the impression that there is, in some among today's younger generations, an idea that those same antique treaties have, unammended, moral binding force on today's living neighbours of the people who have held on to the relevant actual written paper. Never mind that one of the Crowns signing those treaties doesn't exist anymore, and the other has suffered heavy changes to its own "Treaty" with Westminster (or the succeeding local Capital). And it's not that I think what's in them might be wrong or such; it's that I think this is a use that neither signatory of those treaties ever intended them to bear. It's either dishonest or a fundmantal misunderstanding. It's not clear to me that Strict Observance of these particular treaties is any good for either side.

Why not let's sit down and write some new ones? But, do you know? ... I don't much trust the heirs of Westminster, today, either.

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1) My memory works in weird ways; and this may be a difficulty that limits my effectiveness as a Scholar... "recently" can mean any time since the last Upheaval in my life, and I just can't pin down when this particular reading happened...

2) We live in a strange world in which the same people of a certain kind simultaneously believes that Incorporeal Creatures by the name of Angels are mythical, or at best nonsense, but simultaneously believe that Elemental Communicable Ideas do have a life of their own, and that people can become "addicted" to them. If that's not some kind of Demonic Obsession, I don't know...