IN September, 231 years ago, an infant nation was floundering. The American Articles of Confederation had established a “league of friendship” among the states, but the former colonies appeared in disarray. Therefore, a constitutional reboot was undertaken by the founding fathers of America.
During the constitutional convention lasting four months, the delegates disagreed, fought and debated on achieving a consensus. Finally, Benjamin Franklin delivered the speech of a lifetime urging the constituent assembly to adopt the new constitution “with all its faults”. That worked and the instrument was signed. When Franklin came out of the hall, a woman shouted, “Doctor, what have we got — a republic or a monarchy?” Franklin’s witty response: “A republic, if you can keep it.”
The founding fathers of America had rejected royal absolutism, but clearly articulated that the survival of freedom depended on people — not a ‘parchment’. The constitution contained Madisonian architecture infused with a balancing act: three separate, coequal branches locked, according to judge Don Willett of the US Circuit Court of Appeals, in “synchronous orbit by competing interests … ambition counteracting ambition”.
Democracy is about duty and responsibility.
The three rival branches of executive, congress and judiciary derived their source of authority and power from three extraordinary words at the core of the script: “We the people.” Ultimate sovereignty residing not in the government, but in the governed, was nothing short of a revolutionary idea in an era of kings and sultans. Democracy isn’t just a theoretical concept, it is about a sense of duty and responsibility.
America these days appears far more civically illiterate than it was more than two centuries ago. History has its ways of subtle reminders to the collective follies of nations. By choosing Donald Trump as president, Americans are watching a drama unfold in which the checks-and-balances system of its institutions is under stress.
The recent debate over the nomination of Judge Brett Kavanaugh for the supreme court points to the future direction of the republic at stake. This appointment will determine the political tilt of the apex court that is the ultimate arbiter of the laws. The debate among 55 Philadelphia delegates at the 1787 convention points out the prescriptions for judicial power under Article 3 of the constitution: the last thing the 39 signatories of the document wanted was for the supreme court to become ‘supreme’.
The framers expected that status to belong to Congress, and most of them wanted each branch of government to decide the scope of its authority. They thought of the judiciary as an unrepresentative body and most removed from “the wellspring of ultimate authority” in “the people”.
Accordingly, the supreme court only infrequently stepped forward to redefine the political landscape in a decisive fashion. The liberal interpretation of the debate in the US is based on the belief that the judges interpret a “living constitution” that obliged them to adjust its meaning to evolving standards of justice. The conservative view endorses the judicial theory of originalism that claims that contemporary standards of justice cannot take precedence over the values that prevailed when the constitution was ratified.
This originalist perspective derives its judicial insight from the founders who enjoyed “privileged access to eternal truths”, according to author Joseph Ellis, in whose view Judge Kavanaugh’s nomination process became “so transparently partisan and thoroughly politicised that no exalted image of the supreme court as a uniquely American version of the Oracle at Delphi is sustainable any longer”.
Where does this leave the American people? Ellis asks US citizens “to lower our expectations and realise that the supreme court cannot perform the impossible and otherworldly mission it has been assigned in our time”. He wants the judges of the apex court to “take a vow of humility, content themselves with incremental reforms of the law except on rare occasions, and thereby place the burden on Congress to perform its constitutional task of shaping the direction of domestic policy, as the founders intended”.
Perhaps the dialogue taking place around America’s constitution day this month contains lessons for Pakistan: while citizens have the right to life, liberty and freedom, there are important duties as responsible citizens that Prime Minister Imran Khan alluded to on the election-day: talk to the media, their vigilance and courage to fight for the rule of law will determine if we can hold the democratic republic intact.
Moreover, the role and restraints inbuilt in the system of checks and balances in the executive, parliament and judiciary have to be properly defined and adhered to. None from these institutions can claim to be oracles; anyone claiming such status is either a charlatan or demagogue.
We the people must vow to protect our republic from the totalitarian hounds of ‘martialville’.
The writer is former IG Police and author of The Faltering State.
Published in Dawn, September 23rd, 2018