A Real Constitution Becomes Written
by Jørn K. Baltzersen
by Jørn K. Baltzersen
Det er Kongen og ikke Stortinget som bestemmer hvem som skal være regjeringssjef i dette land. [It is the King and not Parliament who decides who is to be Head of the Cabinet in this country.]
Tuesday February 20 there was a historical sitting of the Norwegian Storting, the Parliament. Two constitutional amendments were passed, the first unanimously, the other with one opposing vote. To most people these are non-issues, but they are certainly interesting.
The first of these constitutional amendments passed was an amendment regarding our Impeachment Tribunal. Involved in this amendment was also the principle of parliamentarism — or parliamentary government — including a constitutional duty for the Cabinet to inform Parliament. The second of the amendments regarded the cameral structure of Parliament. From 1814 until now we have had a so-called modified unicameral Parliament. What is up ahead is a purely unicameral system, to take effect as of the first session of the newly elected Parliament in 2009 — in October. The former amendment was to take effect immediately, notwithstanding that neither amendment was promulgated by the King in Council before last Friday.
Modified Unicameral System
In our modified unicameral system the Parliament basically operates as a bicameral system in the normal legislative process, but without separate committees for each chamber, and in cases of impeachment. In fiscal matters and in the constitutional amendment process, e.g., the Parliament basically functions as a unicameral system.
Members of the Lagting, the upper house, are selected in a plenary parliamentary session following an election — done after the rise of the modern party system in such a way as to simulate the party composition of a plenary session in a chamber session. The remaining MPs — three fourths of Parliament — serve as members of the Odelsting, the lower house. This will be no more. There will be no more packing of the Lagting for political purposes. More on that further down.
In the present system, a bill must wait 3 days after having been passed by the Odelsting before it comes to the floor of the Lagting. Under the new system, a bill will have to be passed twice by Parliament without any amendments the second time, and with at least 3 days in between. No more than 3 "readings" with the new system. In today's system, if the two houses haven't agreed the second time, the bill goes to a joint session requiring a two-thirds majority, to a certain degree similar to the two-thirds requirement in the U.S. Congress to override a presidential veto.
According to those who run the show, the only advantage of separating Parliament in two chambers, apart from the role of the two chambers in impeachment cases, is the possibility of avoiding errors due to having the 3 days to think between "readings." Hence, they are keeping the 3 days in another form in the new model. I would say that this only prevents some kinds of errors. E.g., the essential problem of pervasive government and extremely intrusive legislation of our time is here with either of these "error-avoiding" arrangements.
As an example of what is important to politicians we can take how the Presidium now is being changed. There are now three pairs of speakers and deputy speakers. The chamber speakers and chamber deputy speakers will be no more. They are replaced with 4 deputy speakers, giving us 5 deputy speakers in Parliament. Hence, the size of the Presidium remains the same.
Those in charge believe the modified unicameral system is an anachronism. In a sense they are right. It really has very little function in modern politics and the modern democratic system with its modern party system. However, that's because there is something fundamentally wrong with those concepts, and not because of the modified unicameral system being flawed. That said, I would have preferred that our constitutional fathers had established a pure bicameral system. It's not that I believe that that alone would have saved us from the evils of modern politics, but it might have made a small difference in the right direction.
What might have made an essential difference is if we had one house based on universal suffrage, and the other based on some taxpaying criterion. What if suffrage were exclusive to those who are net taxpayers? What if suffrage, in addition, were not equal among the voters, but proportional to net taxes paid? One could predict that this would lead to less buying of votes with other people's money. Anything that could result in less graft should be seriously considered, but I guess this is a "non-issue" in a world where "everyone" believes in the only right political system, namely modern universal and equal suffrage democracy. How can anyone believe that suffrage is not to be equal and universal?
The Impeachment Tribunal
The Impeachment Tribunal has, until the reform passed some 6 weeks ago, consisted basically of one-third Supreme Court Justices and two-thirds members of the upper chamber. As of the reform, we will have a body of laymen, who cannot be MPs or members of the Cabinet, appointed for a period of 6 years by Parliament. As of the reform, the Parliament as a whole will serve as indicting body, instead of the lower chamber. Under the new system, the Impeachment Tribunal will consist of 6 "laymen" and 5 Supreme Court Justices.
The most well-known impeachment trial in Norwegian history is that of 1883 and 1884. Norwegian lawyer J.B. Hjort has rightly called the verdict against Prime Minister Selmer in 1884 an intentional miscarriage of justice. The verdicts in this "trial" are arguably the worst miscarriages of justice in the history of the Kingdom of Norway at least since the dissolution of Denmark-Norway in 1814. This "trial" was essential and seminal in the destruction of the mixed government established by our constitutional fathers at Eidsvold in 1814. Not only was the process in the hall of the upper house before representatives of mob rule personally taxing for Prime Minister Selmer and his fellow members of the Cabinet for their loyalty to Oscar II and the Constitution, but it has also had significant consequences for liberty. With modern democracy we have arguably had the most cumbersome state authority known to our civilization. We'll look more at that in a moment.
After the election in 1882, which by the way also was the year of the publication of Ibsen's An Enemy of the People, the upper house was completely packed with liberals, with still enough liberals sitting in the lower house to pass the indictment. The phrase "impeachment majority" was born — or at least firmly established. "Impeachment majority" referred to the majority needed to pack the upper house completely and still have a majority in the lower house, i.e., five-eighths.
Political muscle was used to bring about a "constitutional moment." For this only a five-eighths majority was needed, which is slightly less than the two-thirds needed to pass a constitutional amendment. Now, at the time there was also the question of Royal Assent to constitutional amendments, and at that time that was a real issue. In fact, the whole impeachment process was largely about this. A constitutional amendment had been passed by Parliament, but denied sanction by the King in Council. Still, a "tribunal" was used to bring about constitutional changes.
After the process in 1883 and 1884 there have been other impeachment trials, but perhaps even more important has been the institution's role as a threat. It was once used to assert the primacy of Parliament, and "if you are not nice," it can be used again. In light of this, it is a good thing that the institution as we have known it is removed.
The new Impeachment Tribunal is supposedly set up in such a way that using it for political purposes is to be avoided. Such a subjective phrase as "evidently harmful to the Realm" is removed. The tribunal is for cases of unfulfilled constitutional duties, not for any type of crime whatsoever. In theory, the old tribunal could be used for traffic speeding cases. The reformers have sought to make it as clear as possible that the new institution is to be used as a real tribunal, i.e., not for political purposes.
The new body of laymen can also be packed, and now one does not need a five-eighths majority to have an "impeachment majority." Only time will tell if the politicians in future crises resist the temptation to also pack the new body of laymen. Yes, the new body may not consist of MPs or members of the Cabinet, but there are certainly enough of people that are willing to be servile yes-men. Time will tell. Of course, good intentions and arrangements for avoiding "political use" — amongst which are reducing the majority of Parliament appointed tribunal members and signing into legislation a need for a greater majority in the tribunal than there are Parliament appointed members — are fine, but again, these will first be tested in times of crisis.
With this Impeachment Tribunal reform comes a very important "non-issue," namely the writing into our written Constitution the principle of parliamentarism, or at least a very essential part of it. This is a "non-issue" because parliamentarism is constitutional precedence. Constitutional precedence is what comes about when you have "constitutional moments," "living constitutions," and so forth.
This amendment seemingly changes nothing. It creates a constitutional duty for a member of the Cabinet to resign when there is a vote of no confidence in Parliament against him or the Cabinet, and it creates a constitutional duty for the monarch to accept the resignation. A "vacant" article since November of 1905 was used for the purpose. The connection is to the monarchy emasculation year 1905 in more than one way.
The monarch still has the formal power to appoint "his" Cabinet, but with the perpetual Parliament of our time, this hardly makes a difference, unless there is some situation where the parliamentarians can't get their acts together. It can be argued that this amendment is purely symbolic, since it changes nothing in today's reality. However, in a future crisis it may have significance.
It can seem benevolent of politicians to pass a constitutional amendment supposedly abolishing the political function of the Impeachment Tribunal. However, with the institution of vote of no confidence, they don't need the political function of the Impeachment Tribunal that much. They have the institution of vote of no confidence. If a Cabinet refuses to resign as a result of a parliamentary vote of no confidence, it may be impeached for what is now a clearer than ever constitutional duty.
The Parliament generally does not need an Impeachment Tribunal — at least not as a political institution. It is in control anyway.
The separation of powers has not been completely formally abolished. An MP must still leave his seat to a stand-in when taking a position as member of the Cabinet, and as long as he remains in the Cabinet, he may not act as MP — as opposed to the way the Westminster system works. Moreover, there is still a strict governmental division of labor, which is perhaps a more appropriate term than "separation of powers." Also, courts are still independent, yet appointed, in practice, by those who "do not explicitly lack confidence of Parliament," but that's another story. The amendment formally abolishes the executive power's independence from the legislature.
The story basically goes like this: they played by the rules first, then they cheated, then they said the rules had magically changed because they had been cheating for so long, then they changed the rules so no one could say they were cheating.
Of course, according to the written Constitution — without referring to "constitutional precedence" until this amendment was passed it had not been unconstitutional for a Cabinet with a vote of no confidence to resign. Now it is unconstitutional for such a Cabinet not to resign.
So at least one can say that playing by the old mixed government rules now is cheating according this recent amendment.
The constitutional amendment on parliamentarism was passed as a part of a constitutional amendment package on the new Impeachment Tribunal. I.e., it was put in there with "small writing." No public debate to speak of was registered prior to the event, but the media were eager to report the "historical event in Parliament" when it had happened. I even asked the Deputy Speaker of Parliament not too long before February 20 about the pure unicameral system. He told me it would be passed along with the new Impeachment Tribunal. No mention of any parliamentarism.
The Parliament has now removed one of the formal powers of the King. That makes one wonder what comes next. How soon will we see an amendment passed stating that all government power is derived from the people?
The Norwegian Parliament may nowadays basically amend the Constitution at will. In former times, there was a need for Royal Assent. These days, all that is needed is the amendment to be properly proposed by the end of September in a year before a parliamentary election, and then it can be passed with a two-thirds majority by the newly elected Parliament — convening in October — following that election before the end of September the year before the next parliamentary election. This requirement has basically remained unchanged since 1814. So in theory the electorate has a say, but in practice that would only apply to really unpopular amendments.
On that same February 20 a motion for a constitutional amendment declaring the right to life from the time of conception was rejected by the Parliament. I am not about to start a discussion on abortion here. I am mentioning the motion because of the language in it. If the motion had passed, the Constitution would have declared a right to life, and it would have declared that specifics would have to be described by law. That kind of language is already in our Constitution. If you read the original Constitution, it seems our constitutional fathers didn't do this. It seems the original Constitution merely sought to protect already existing rights. To what degree it has succeeded I will leave here. I only wish to point out that nowadays rights are declared in the Constitution. A relevant question is also what kind of constitutional protection one has with phrases such as "specifics are to be described by law" in the Constitution. In our time rights are declared in Parliament Hall, on Capitol Hill, at the west bank of the East River, on the shores of Lake Geneva, and in Strasbourg — by the Council of Europe.
The constitutional provision on constitutional amendments contains a ban on amending the Constitution in such a way that its principles are amended. The separation of powers is by most historians seen as one of the three principal principles of the Constitution. Does this mean that we now have seen an unconstitutional amendment to the Constitution? Sorry, I keep forgetting that we're not supposed to ask these kinds of questions!
By the way, there is the institution of promulgation — or announcing in print — of constitutional amendments by the King in Council. It is officially claimed that the amendment regarding the Impeachment Tribunal took effect immediately on February 20, even before its official promulgation or announcement. Why bother with having constitutional amendments brought to the King in Council for promulgation? It's probably because, under the strict formal separation of powers, or strict governmental division of labor, Parliament cannot execute the laws by putting its laws in the official journals of law. But then Parliament must wait for the execution, mustn't it? Oh, but that would be messing with parliamentary sovereignty. Sorry! Sorry! I keep on forgetting not to ask these questions.
A Labor Party MP voted against the end of the modified unicameral system. He said he had doubts about the Impeachment Tribunal. There really wasn't any opposition to speak of. Norwegian Professor of linguistics Finn-Erik Vinje has been working on restoring the language of the Constitution to the 1903 norm, which every amendment is supposed to be in line with. Now he has to move for another amendment because new errors have been introduced. Politicians claim that the process for amending the Constitution assures quality, but when they can't get the language right, one wonders whether the quality otherwise is taken care of. But then I go on asking these questions I'm not supposed to ask.
A Check on Democracy?
Adresseavisen, a Norwegian newspaper based in the old coronation town of Trondhjem, published an opinion poll around the centenary of our last coronation showing a considerable amount of people wanting more powers to the King. The percentage was about 18, and the percentage for those under 30 was 30. That's certainly not a majority, considering that majorities count in this democratic day and age, but it's not exactly negligible either. Perhaps it's the right time for Parliament to act now, while the democratic faith is still pervasive and strong?
Why are these regal powers so important? Aren't Kings, Presidents, MPs, Senators, and Congressmen equally bad? Or aren't those who can be replaced at an election better? If they're bad, can't we replace the elected? Well, the majority can kick out the government, but the majority can't be kicked out. At least that's the theory. In practice, it often turns out that we get an undesirable form of minority rule, partly because popular feeling quite easily can be manipulated.
Philosophers have rightly argued for centuries that democracy is a bad form of government. It is only very recently that society has embraced democracy almost as if Cupid has shot his arrow through the heart of man when man was looking at democracy, with man refusing to see that there ever has or ever can be anything better than modern democracy.
People often cite thoughtlessly the well-known democracy dictum of Winston Churchill. Now, Churchill is not the soundest on democracy, but a little examination would perhaps reveal that he is not as bad as many of those who cite him. Someone once said that democracy is the most efficient form of political rule. Spot on! It's very efficient indeed. This is partly because democracy creates the illusion that we rule ourselves.
We have seen in this age of democracy a state of a formidable size and reach. That does not necessarily imply that this is because of democracy. That two phenomena occur simultaneously does not as such imply causality between them, but there are factors that suggest that there is causality in this case. The legitimacy that regular elections create for political rule is one such factor. While there certainly may be kings that are worse than some presidents, there are factors that contribute to an opposite tendency.
A mixed government, at least a genuine mixed government, gives a system with an alternative source of power than that of the people. A formal separation of powers, which only seeks to check and balance different parts of a government against each other, will be a poor solution, to a large extent because it is based on the thesis that it is only government that is the problem, and that there are no problems with democracy per se. A mixed government provides something more than just mere separation of different branches of government. In addition, the non-democratic elements may come with virtues democracy has less of and vices democracy has more of. For more on this, see, e.g., Ryan McMaken's reflections on Count de Tocqueville.
Why do politicians so often fear other sources of authority than the people? It's probably partly because of the democratic faith. Another important reason may be that the populus is the source of their power. Being checked by something else, which cannot that easily be swayed, challenges their power.
We have seen a decline in the use of royal authority since the days of Oscar II. Haakon VII accepted the concept of absolute popular sovereignty, but had some real confrontations with politicians behind the scenes. Olav V only asked questions, which could lead to — and did at least once — withdrawal of motions, and he drove his car without a seat belt. Rumors say, Harald V doesn't even have questions.
Around 1913 politicians were considering having a go at the King's powers and privileges. His Majesty was insulted. The project was abandoned, at least partly. We are about 6 years short of a hundred years from then, when Royal Assent to constitutional amendments was abolished. One can only speculate on the differences between the reactions of the current monarch and that of his grandfather Haakon VII, especially when Parliament passed the amendment the day before His Majesty's 70th birthday. One might say Parliament gave His Majesty 2 gifts.
One can understand that people can't see the meaning of having a monarchy any longer. The royals no longer have a say. They don't seem to behave particularly royally. They find themselves consorts of the lowest order. However, the monarchy may pay an important role in crises. Moreover, it is hard to see the monarchy replaced with something better.
It is often said that we will keep the royals as long as they behave. Of course, having royals that actually do not behave is not desirable. However, "behaving" often means not getting in the way of politicians. I would rather have royals that don't "behave" than omnipotent democracy.
It is often said that in a democracy we get no better than we deserve. It would be more precise to say that in a democracy we get no better than the majority deserves.
On May 23, 1964 — 6 days after the 150th anniversary of our Constitution — Farmand, for which Erik von Kuehnelt-Leddihn and Ludwig von Mises, among many other notables, wrote, had an editorial advising against writing present practice into the Constitution. There might be a "slight hope that future generations would wake up and wipe the dust off the articles and discover that they'd been had." The editorial had given examples of how some articles on individual rights could be amended without any change to practice at the time.
The amendments passed this February 20 are about government bodies and relations between them, not directly about rights. However, some institutional arrangements are better for liberty than others.
Those currently in charge are playing it safe. The democratic faith is strong, and there are no serious challenges to it on the horizon, but that may not last forever. It is better for them to put it in writing while the democratic faith is still going strong.
The Constitution is amended as of March 30, 2007.
I beg to differ.
April 2, 2007
Copyright © 2007 LewRockwell.com