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chapter three: The Condition Necessary to Stop Constitutional Violations - Benjamin Constant, Principles of Politics Applicable to All Governments [1815]

Edition used:

Principles of Politics Applicable to a all Governments, trans. Dennis O’Keeffe, ed. Etienne Hofmann, Introduction by Nicholas Capaldi (Indianapolis: Liberty Fund, 2003).

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chapter three

The Condition Necessary to Stop Constitutional Violations

Although we have forbidden ourselves in this work any reflection on constitutions as such, what we have just established on the necessity of not violating them under any pretext, where they exist, forces us to speak about a condition which is indispensable for preventing these violations.

The happiness of societies and individual security rest on certain positive and fixed principles. These principles are true in all climates and latitudes. They cannot vary, whatever the extent of the country, its degree of civilization, its customs, religion, and usages. It is as incontestable in a hamlet of a hundred and twenty huts as in a nation of forty million men, that no one can be arrested arbitrarily, punished without having been tried, tried other than according to law and due process, prevented from manifesting his opinion or putting his industry to work or managing his options in an innocent and peaceful way.

A constitution is the guarantee of these principles. Consequently everything which stems from these principles is constitutional, and consequently also, nothing is constitutional which does not. There are great ground rules which all properly constituted powers [116] must be unable to touch. These powers together, however, must be able to do everything not contrary to these rules.

To stretch a constitution to cover everything is to make everything a danger to it. It is to create reefs to surround it. You cannot sufficiently predict the effect of incomplete arrangements to give up any leeway for changing them. A line, a word, in a constitution, can produce results of which you have not the least idea. If the constitution goes into a multitude of details, it will inevitably be violated: in little things, because the hindrances the government meets in its necessary business falling always on the governed, the latter themselves will call for this violation. But this constitution will also be violated in important things, because the government will move on from its violation of little ones in order to arrogate to itself the same freedom in important matters. A rather specious sophism will furnish it with an excuse. If considerations of slight utility permit us to deviate from the constitutional charter, it will say, there is much greater reason when it is a matter of saving the State.

The severe confinement of a constitution within its limits is a thousand times preferable to the superstitious veneration with which in some countries people have wanted to surround the successive constitutions they have been given, as if attachment and enthusiasm were transferable properties, always belonging by right of conquest to the constitution of the day.

This inevitably and manifestly hypocritical mass veneration has a number of drawbacks, like everything lacking in precision and truth.

The people either believe in it or they do not.

If they believe it, they regard the constitution as an indivisible whole, and when the frictions caused by the defects of this constitution hurt them, they break away from it totally. Instead of directing their discontent against certain bits whose improvement they could hope for, they direct it against the whole thing, which they see as incorrigible.

[117] On the other hand, if the people do not believe in the veneration professed, they become accustomed to suspecting the holders of power of hypocrisy and duplicity. They call into question everything the government says. They see lying honored; and it has to be feared that in their private lives they may resort to the same behavior their leaders exemplify publicly.

One can exist tolerably under a vicious government, when there is no constitution, because then the government is a variable thing which depends on men, which changes as they change, and which experience corrects or palliates. A vicious constitution, however, when it is unchangeable, is much more dire, because its defects are permanent, reproduce themselves endlessly, and cannot be imperceptibly or tacitly corrected by experience. To make the disadvantages of an imperfect government disappear for a while, one has only to displace or enlighten a few men. To battle against those of a bad constitution, one has to violate that constitution, that is to say, perform an ill much greater in its consequences to come than the present good one wants to attain.

People always imagine the modifications made to the constitution of a sovereign authority to be accompanied by terrible convulsions and great calamities. If they studied history they would see that these calamities most often take place only because nations form for themselves an exaggerated idea of their constitution and do not reserve for themselves any way of improving it imperceptibly. We noted earlier that man showed a singular facility for failing in his most real duties, once he freed himself from one duty, even an imaginary one. This truth applies to constitutions. When a nation has not kept in reserve in its political organization any way of correcting the latter’s defects, the slightest modification [118] becomes as dangerous an act for that nation, and as unsettling, as the most total upheaval. If, however, envisaging its constitution only as a way of arriving at the highest possible degree of good fortune and freedom, the nation had set up within its organization itself, with all due precautions and periods of reflection, a means of bringing to bear on its constitution appropriate improvements, then, since it would not at all, in using this means, feel it was failing in a duty or subjecting society to a universal shake-up, the required or desired modification would be effected peacefully.

Any time it is necessary, to attain an end, that law and due process be violated, one has to fear that this effort in itself oversteps the purpose. When, on the contrary, the course is actually set by the constitution, movement becomes orderly. Men, having decided where they want to get, do not rush forward haphazardly and do not, slaves to the very movement they have chosen themselves, overstep the mark.

For stability itself, the possibility of a gradual improvement is a thousand times preferable to the inflexibility of an unchangeable constitution. The more secure the prospect of improvement, the less will malcontents have any purchase. One can defend a constitution as a whole to far better advantage by demonstrating to the people the appropriateness of postponing a change than by turning their having to persist with something they think an abuse into a kind of mystical duty and by opposing their belief with superstitious scruples which forbid scrutiny or render it pointless. At a certain level of social civilization all superstition, running counter to all other ideas, morals, and habits, has only a fleeting influence. Nothing is durable for a nation as soon as it has started to reason, unless it is explained by reasoning and demonstrated by experience.

The axiom of the English barons: we do not wish to change the laws of England, was much more reasonable than if they had said: we cannot. The refusal to change the laws, because one does not wish to change them, is explained either by the excellence of these laws or by the disadvantages of an immediate change. When such a refusal [119] is motivated by impotence, however, it becomes unintelligible. What is the cause of this impotence? What is the reality of the barrier put in our way? Whenever reason is excluded from the question, the question is falsified and one is working against one’s purpose.

There are constitutional principles deriving from the rights of the human race, individual freedom, freedom of opinion, of the laws and the courts. None of the authorities can be deemed competent to change the things which constitute the purpose of any association. Everything else is a matter of legislation. The longest mainstay of British liberty is that the three powers combined have a very extensive authority even over constitutional law.

I know nothing so ridiculous as what we have seen constantly replayed during our Revolution. A constitution is drawn up, we discuss it, enact it, put it to work. A thousand lacunae are noticed, a thousand superfluities perceived, a thousand doubts arise. The constitution is commented on, interpreted like some ancient manuscript one might newly have unearthed. The constitution is not explicit, people say, the constitution says nothing, parts of the constitution are shadowy. Oh, unhappy people! Do you really think a nation can be governed by enigmas and that what was yesterday the object of severe public criticism can transform itself suddenly into an object of silent veneration and foolish adoration?

Organize your various powers well. Give all their being, all their morality, all their private economic decision making, all their honorable hopes an interest in the conservation of your public establishment, and if the various branches involved wish collectively to benefit from experience in order to make, to their reciprocal relations, changes which in no way weigh down the citizens, nor threaten personal security, nor free thought, nor the independence of the [120] judiciary, nor the principles of equality, then leave them their full freedom in this regard.

“We have to learn to perfect the constitution,” said the former Bishop of Autun, in his report on public education, on 10 September 1791. “In swearing to defend it, we have not been able to give up the right to improve it nor the hope thereof.”8

If your combined authorities abuse the liberty you accord them, your constitution is corrupt, for a good constitution would have given them an interest in not abusing it.9

But, it will be said, constitutions are not the product of men’s wills. Time makes them. They are brought in gradually and imperceptibly. They are not composed, as has been thought, of new elements, for the combining of which no cement would be solid enough. They are composed of old elements, more or less modified. All deliberately constructed constitutions have collapsed. All constitutions which have existed, or exist still, were not constructed. Why then seek principles for the construction of constitutions?

Without examining the idea supporting this objection, one which we believe in general true enough, we will say that the principle we have established does not apply solely to constitutions to be made, but to all constitutions which have been made. It demonstrates the necessity of freeing them from superfluous details, which prevent their being easily carried out. It proves they must contain within themselves peaceful means of improvement. For the more inflexible they are, the less they are respected.

As to remaining matters, our positive determination not to treat in this work any questions connected with the forms of government forces us to leave several lacunae unfilled and many objections unanswered. There are certain institutions which we consider incompatible with [121] freedom in certain given situations. It is clear that the various constituted authorities in a country cannot legitimately establish these institutions. But to assign this limit to the jurisdiction of the authorities, it would have been necessary to discuss the institutions they must be forbidden to adopt, and this is what we have resolved not to do.

CONSTANT’S NOTES

BOOK VII

On Freedom of Thought

  • Ch. 1. The object of the following three books. 103
  • Ch. 2. On freedom of thought. 103
  • Ch. 3. On the expression of thought. 105
  • Ch. 4. Continuation of the same subject. 112
  • Ch. 5. Continuation of the same subject. 117
  • Ch. 6. Some necessary explication. 123
  • Ch. 7. Final observations. 124

[8. ]Charles-Maurice de Talleyrand-Périgord, Rapport sur l’instruction publique fait au nom du Comité de constitution à l’Assemblée nationale les 10, 11 et 19 septembre 1791, Paris, Baudoin et Du Pont, 1791, pp. 11–12.

[9. ]See Constant’s Note E at the end of Book VI.

[E. [Refers to page 96.]]Note. What is the guarantee of a lasting government? It is when the different classes of the State like it as it is and do not want to change it. Aristotle. Politics, Book II, Chapter 7.17

[E. [Refers to page 96.]]Note. What is the guarantee of a lasting government? It is when the different classes of the State like it as it is and do not want to change it. Aristotle. Politics, Book II, Chapter 7.17

[17]This is probably not a quotation. Furthermore, nothing in Book II, Ch. 7 of Politics is related to the words indicated by Constant. On the other hand, Aristotle debates at length these questions of the causes of revolutions and of the guarantees against the changing of constitutions, in Book V of this same work. See Aristotle, La politique, a new translation with an introduction, notes, and index by J. Tricot, Paris, J. Vrin, 1962, t. II, pp. 337–425.