Тег: Constitution

The Constitution, but not that one

I have reviewed the widely publicized draft of the new constitution from the Society. Future and its leader, Roman Yuneman. I am deeply disappointed.

As I already mentioned in the article about Constitution Day, only one thing matters to me in such documents: exactly what the state declaratively prohibits itself from doing in relation to its citizens. All those complex relationships between branches of government are something like a handbook on the mating habits of toads and vipers, which only makes sense to study from the perspective of navigating between them to minimize one’s own losses.

So here it is: Yuneman’s new constitution does not introduce a single new prohibition on the state squeezing the little people. The state is still prohibited from forcing citizens to testify against themselves, executing them, introducing taxes retroactively—and that’s basically it. Oh, well, except it additionally prohibits obstructing internet access, but implicitly, in the form of “a citizen has the right to hang out on the internet.”

Various citizens’ rights to peaceful assembly are still accompanied by the caveat “without weapons,” which means the state has the right to set boundaries and frisk participants of peaceful assemblies to ensure their constitutional right to assemble specifically without weapons. Voting rights are restricted for prisoners, which opens the door for political persecution to obstruct electoral procedures. Even universal military conscription—the authors of the draft constitution somehow managed to keep it, as if possessed by some demon—which is why Shaveddinov and company are waving to Yuneman from offstage.

Much attention in the project is given to the design of checks and balances between branches of government, while enormous presidential powers are still maintained. The explanation is simple: well, we want the ability to carry out rapid reforms, and for that, a concentration of power is needed. A strange archaism has been preserved whereby the president has the right to stay in power for two terms. Why specifically two? Simply because once upon a time, President Washington did not run for a third term after his second and wrote that enough is enough, and he wouldn’t recommend it to anyone. You’d think—if you want to fight the administrative resource and ensure the rotation of power—you’d make it exactly one presidential term, followed by a ban on holding any government positions. And that’s it; the presidency becomes the natural crown of a career, followed by a normal private life, without shitty personal pensions and other privileges. No, damn it, we want to go back to the nineties, when it was two by four.

The phrasing in the draft of the new constitution is just as disgusting as in the old one. Instead of Shulman’s crisp formula “do not enter—will kill,” the typical form of a constitutional article is something like “the state guarantees non-interference,” with a complete absence of instructions on sanctions for interfering.

The right to bear arms, so widely publicized by Yuneman, boils down to the right to acquire it in accordance with federal law (which can be as restrictive as desired) and the right to self-defense. There is no right to armed rebellion; on the contrary, the state is granted the right to squeeze any illegal armed formations, so a “well-regulated militia” in the spirit of the Second Amendment is out of the question for Russians. An inferior populace; they didn’t earn it.

By the way, about Russians. This unfortunate adjective sticks out of every second article in the draft constitution without carrying any meaning. Well, there is some formal entity called by such-and-such a word, so what. In this regard, Yuneman’s constitution resembles Putin’s amendments, where a lot of stylistic garbage is also inserted into the text of the existing document, but nothing changes in substance. There was a multinational people; now there are Russians and other indigenous peoples of Russia. Same difference, in short. However, for everyone who is not a nationalist, this is rather a plus.

Happy Constitution Day!

At the heart of documents such as constitutions lies a rather peculiar paradox of thinking. On one hand, law is equated with legislation, and any order from the reigning sovereign becomes law. On the other hand, there is a glimmer of understanding that the consistent implementation of such an approach creates conditions that are not very conducive to living and, in particular, greatly hinders long-term planning.

And here is what the creators of the idea of the constitution did. They proposed: let us establish a law that declares the people as the sovereign, and the actual ruler as merely the executor of the sovereign’s will. What would this achieve? This: we will explicitly write the limitations of the ruler’s powers in this very document. And since the ruler is not the sovereign, he cannot repeal them, meaning they must be observed—after all, the law is what is written on the paper.

Over several centuries of implementing the idea of constitutional limits on state power, it became clear how this works.

If relatively simple mechanisms for its amendment are embedded in the constitution, then it will be changed in accordance with the desires of interested parties in the government.

If, instead of concrete norms, the articles of the constitution provide references to laws that the government must adopt to comply with the constitution’s wishes, these laws very quickly become such that, in the name of the sovereign “people,” representatives of that very people—who have nothing to do with the exercise of state power—are repressed, while representatives of the “state” service organization are gently moved out of harm’s way.

Finally, if the constitution contrasts sharply with the wishes of sufficiently influential actors in the government, its norms are simply ignored, since a constitution usually does not contain norms specifying exactly how the sovereign has the right to hold the government—established by the sovereign—accountable when the government refuses to observe the constitutional restrictions established by that sovereign.

In short, the idea of a constitution is an interesting attempt to limit absolute power without departing from the principles of legalism, and this attempt had some success. However, no constitution has ever worked on its own. A constitution always works only on the general belief that, first, a constitution should exist and, second, it must be observed.

So, as long as we still live in a state, it is worth remembering that a constitution is a limitation on state power, not on civil rights. A citizen cannot violate the constitution; only a person vested with state authority can violate it. Since the constitution works on faith, shove this sacred scripture in the faces of government officials more often. Tell them: all laws are what you wrote against us, and only the constitution is what you wrote against yourselves. Therefore, I will demand that you observe the constitution, and specifically as I, the sovereign, understand it—that is, literally. And if any law, secondary act, job description, or oral directive from your immediate superiors violates this very constitution, then I, the sovereign, perceive this as a conspiracy against myself, the sovereign, and I will put a stop to it; so it is better to push aside all other scrap paper and talk about how you must observe my constitutional rights.

As lawyer Mikhail Benyash said in an interview with Mikhail Svetov: be as naive as children, demand the observance of the constitution.

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