‘It isn’t a Bill of Rights that produces freedom. It’s the structure of government that prevents anybody from seizing all the power. Once that happens, you ignore the Bill of Rights. So, you know, keep your eye on the ball. Structure … is destiny.’ – Justice Antonin Scalia
I am not a lawyer, but the more I listen to the late Justice Antonin Scalia, the more I feel he was on to something. His dismissal of the significance of a Bill of Rights (he is correct, every dictator has one) resonates with my feeling of dissatisfaction with the account of constitutionalism that places a Bill of Rights at the centre. The thing that attracts me to this view is that it seems to be getting at the logic of consensus.
The threshold for stopping acts of government being passed, and being executed, must be small. The best way to do that lies in dividing power across two axes. First, at the level of government at which power is exercised, power must be divided. Second, power must also be divided across the levels of government, i.e, from national to municipal government.
South Africa should consider laying the groundwork for this by teaching citizens about the different types of constitutions that exist and have existed around the world. We cannot have a lasting Constitution without citizens who can give their educated consent to it. The lessons that high school students could learn from analysing the federalist as well as the anti-federalist papers, along with the American Constitution itself, would be more valuable than the lessons they get from a subject like Life Orientation, for example.
The Covid-19 lockdown proved that South Africans do value their liberty, but an understanding of how this liberty is safeguarded through institutions is what is lacking.
Decide for themselves
An accurate and broad history education would complement this project; all points of view should be taught and students encouraged to decide for themselves what is rational.
Then we can have citizens who can do what is required of them to maintain a state of liberty, and to build local institutions that also protect the rights of citizens. These institutions would be built in such a way as to protect the rights of any person without having to explicitly enumerate these rights. Learning from Africa’s history should be a part of this, but not to the exclusion of everything else.
We have entered a dangerous time in our history, with existing social instabilities having grown alarmingly since the lockdown started. The risks of a violent constitutional change will remain high into the foreseeable future. The American revolution presents one of the rare examples in history where a revolution actually worked, producing the most prosperous nation in history, and the most free, despite its initial tolerance for slavery and discrimination against women.
If revolution is in the air because of the economic conditions caused by our government, it is important that this energy be directed instead towards building institutions that will guarantee freedom for us and all posterity. It simply makes no sense to turn our energy to destroying one another when we can instead build the institutions that will allow us to pursue the change we want.
Unlike the American revolutionaries, we do not need to fight a war: we can direct our energy to building institutions for bringing about economic and political change. The American Constitution came after the states. It did not create the states, but the states created the Constitution. This is a clue as to how communities can reclaim power from the national government, by first learning to govern themselves.
Liberty
Local institutions can be set up to deal with matters such as crime, enforcing community rules and adjudicating local disputes. Communities could organise themselves in this manner, with structures that embody the very thing that is so precious to every community: liberty. The national government – which has weakened itself by further harming the economy – as well as municipal governments, will have to respect these de facto governments.
This is not to say anything will be easy. There are serious challenges involved in doing something like this, not least of which is the need to raise money from the community (raising money from the community itself instead of externally is crucial). The most important challenge is figuring out an institutional design that provides utility to the vast majority of community members (repairing potholes, fighting crime and so on) while embodying logic that allows the community to naturally accept the institution.
This kind of work is necessarily bottom-up; an imposed solution will very likely fail. Building lasting institutions is not a spectator sport. The adults of today must be able to explain to coming generations the nature of the institutions and why that design is important. The current Constitution is foreign to many of the people who supposedly consented to it, and this is a serious problem for the future of this country.
[Picture: John R Perry from Pixabay]
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