Commentary

Callipolis is the name that Plato’s Socrates gave to the city in speech that he sketched out for Glaucon and Adeimantus in The Republic. Socrates’ Callipolis was what Thomas More would later call a utopia. It was a good place (eutopía), and even more to the point it was no place (outopía). It existed nowhere. Our Callipolis is not a eutopía in the Platonic sense. Its purpose is not the perfection of the human soul. Its aims are more modest – justice and fair-dealing; security; the rule of law; a protection of the rights to life, self-defense, liberty, and property (above all, the fruits of one’s own labor); a protection of religious freedom; and a provision for self-government.

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Our Callipolis is a utopia in the second sense that Thomas More had in mind. It is located nowhere in particular. This is no doubt a defect. A constitution should be designed to fit a particular people situated in a particular place. It should reflect and take advantage of these particularities. It should fit the people and the place to be governed in the way that well-tailored clothing fits the person for whom it has been produced. Our constitution has been framed for a small republic situated on a territory with no defining natural divisions– such as Singapore, Malta, Cyprus, Belgium, Slovenia, Lithuania, Latvia, Estonia, Israel, Jordan, and Tunisia. It is designed for an age in which commerce and technological dynamism loom large. Otherwise, however, it is generic. It is not a blueprint. To fit the needs of any particular people located in a particular place, it would have to be altered and adjusted. We offer it here as a jeu d’esprit. It is intended to provide food for thought. Somewhere its contemplation might even inspire constitutional reform.

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We present this framework of self-government in two forms – the constitution proper and its explication. The former is intended to educate the citizens of Callipolis regarding their rights, the ends to which their government is to be devoted, its peculiar character as a government of limited scope, and the means adopted to form the citizens into a single people and enable them to govern themselves with an eye to those rights, those ends, and a respect for the polity’s restricted compass. The explication, which spells out what is intended in more detail and with greater clarity, is meant to serve as a guide to all three branches of the government. Above all, it is intended as an obstacle to misinterpretation of the Constitution by the judiciary.

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In writing regarding the constitution proposed in the United States by the federal convention in 1787, Alexander Hamilton referred to the judiciary in prospect as the proposed government’s “least dangerous branch.” Thomas Jefferson harbored grave doubts. Thanks to judicial review, he suspected that the constitution would become “a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.” Something of the sort has happened in every republic where there has been judicial review. Dred Scott v. Sandford is a reminder of the damage that rogue judges can do. Many another case could be mentioned.

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It is one thing for a court to have the final say in a particular case. This we do not question. It is a prerequisite for public order. It is, however, something else again for a court to assert its own “supremacy” in deciding larger constitutional questions. Our aim is to empower the judges to see to it that the other branches of Callipolis’ government remain faithful to the constitution while spelling out in the explication the meaning of particular articles in that constitution with a clarity sufficient to reduce the likelihood that the judges will themselves go astray. As will become clear in due course, we have also structured the judiciary in a fashion designed to obviate arrogance and encourage modesty on the part of those charged with interpreting the constitution, and we have provided within the constitution a check on judicial aggrandizement apt to serve as a deterrent.

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Had we been asked to design a constitution for a large republic or a small republic divided by mountains into separate and quasi-independent cantons, we would have made our Callipolis a federal republic. Subsidiarity has been one of our aims throughout. We wanted self-government to be more than merely notional. We wanted it to be real. We wanted local matters to be locally decided, and we did so on the conviction, voiced long ago by Thomas Jefferson, that, if self-government is to be cherished, it must be experienced. We also wanted the citizens of Callipolis to get to know one another well within the neighborhoods in which they reside. In our judgment, the greatest bulwark against encroachment and tyranny is civic spirit – the spirit of cooperation, association, and patriotism that arises when a people are aware of themselves as a people. It is easier to render self-government palpable in a federal than in a unitary republic, but it can be achieved in the latter.

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With this end in mind, we stipulated that Callipolis be divided into wards and that there be districts made up of eleven wards. It is in these wards and districts that local governance and service in the militia will be situated. Subsidiarity we put up front in the constitution for the sake of emphasis. The human beings who constitute Callipolis are to be citizens, not subjects. In community, they are to chart their own path; and, by way of the spirit of cooperation and association that they learn as active participants in the civic activities that take place in their wards and districts, they are to preserve self-government. To this theme, in our commentary, we will return.

Second to subsidiarity and its contribution to self-government is a listing of natural and civic rights. The former constitute the ends of government; the latter, the prerequisites for effective self-government and for the preservation of liberty. Some serve as ends and also function as means. Among these we include freedom of association, freedom of conscience and religion, and freedom of communication. Speculation, reflection, worship, association, and communication are essential for the pursuit of happiness. They are also, no less than the freedom to petition for a redress of grievances and peaceably to assemble, prerequisite for sustaining liberty and self-government. Where associations are suppressed; where philosophy, religion, and political disputation suffer constraint; and where communication is censored, elections are apt to be meaningless rituals and political liberty a sham. Where silence reigns, representative government is hardly distinguishable from oligarchy or tyranny.

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Among the natural rights that are also civic rights, we also include the freedom to marry and the freedom and responsibility of parents and guardians to rear children. For most human beings, family life is part and parcel of the pursuit of happiness, and the family is necessary for social reproduction. Moreover, independent and strong families where thoughts and beliefs can be shared and expressed in private and in confidence, help inspire industriousness and orderliness, help promote economic stability, and thereby provide a firm foundation for political liberty.

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We leave open, for settlement by the legislature, the question of same-sex marriage. As institutions go, same-sex marriage is a recent invention. Civil marriage existed in ancient Mesopotamia, in ancient Israel, in pagan Greece and Roman, in Christendom, in the House of Islam, and elsewhere as well. In none of these places – not even in ancient Greece where same-sex liaisons were so commonplace that they were taken for granted – was there same-sex marriage. The reason for this institution’s absence was straightforward. In all of these civilizations, marriage was regulated by the political community for one reason and one reason only: the polity had an interest in social reproduction – in the procreation and rearing of the next generation – and the stable union of husband and wife was understood as a means essential for achieving this end. For the most part, the political community as such did not take cognizance of relationships not apt to contribute directly to this end. Whether it should do so today is open to debate.

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In the third article, we specify a number of ways in which civic rights implicate civic responsibilities. Absent a military, to take a crucial example, there can be no safety, no security, no protection of rights, no justice. It is our contention that those who confederate for these ends must also embrace the means requisite for the achievement of these ends – among them military service or, for conscientious objectors and for those disabled in any way, an equivalent (insofar as this is possible).

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It is in this connection that we assert not only the right to keep and bear arms but the duty to do so. This will no doubt give rise to controversy. It has become an article of faith in many advanced industrial societies that ordinary human beings cannot be trusted with firearms. In practice, in most of the wealthier nations in the world, the citizenry is disarmed; in these polities, only the police and the small number of citizens actively serving in the military are entrusted with arms. This we regard as a grave danger. In the absence of the police, who cannot be everywhere, it makes self-defense against criminals difficult. It also opens the door to military coups. It has been fifty years since a coup d’état has taken place anywhere in Europe, but it has long been commonplace in Latin America and Africa – and, in the last century, it was by no means unknown in Asia. There is no reason to suppose that we have entered a glorious new era in which military coups will be unknown. It is a grave mistake to simply extrapolate from recent experience. Times change – and not always for the better.

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Thanks to the requirement for military service and the ongoing responsibilities accorded the citizens in the militia, nearly everyone in Callipolis will be trained in firearm safety, nearly everyone will be adept in the use of firearms, and nearly everyone will be expected to keep and bear arms. Small republics are vulnerable to attack. An armed citizenry is a potent deterrent. Our model in this regard is Switzerland, which has maintained its liberty by these means for centuries. It is also a country with a notably low crime rate. We share Machiavelli’s conviction that the citizens are themselves the best guardians of their own security and well-being. No one who refuses civic responsibilities can rightfully expect to remain in Callipolis and enjoy the benefits attendant thereon.

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Among those responsibilities will be jury service and service in public office. In the latter regard, with an eye to human frailty, we make provision against the use of public office to attain private gain; and to this end, we specify that there be a public authority to manage the economic activities of officeholders. In current circumstances, throughout the world, self-dealing by officeholders is commonplace.

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The fourth article is dedicated to education. It is our conviction that no republic can long endure in which civic and moral education are neglected. We are also persuaded that in a modern, commercial, technologically dynamic republic literacy, numeracy, and basic scientific knowledge are required. It is our conviction that the family is the foundation of the political community, and so we expect that the adult citizens in the wards and districts will be deeply involved in managing the education of the young. Their involvement will itself, we suspect, be an education for those with children – for to attempt to ascertain what the next generation needs to learn and understand is to ruminate on the ends of communal life and on the means necessary and proper for the attainment of those ends in the circumstances emerging.

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To encourage broad participation, we specify that there be a school board within each ward charged with managing primary education. The members of each ward’s school board are to be chosen by a combination of sortition and direct election – with the fifty-five citizens chosen by lot from among the citizens living in the ward electing eleven from within their number to serve a term of three years as school board members. We also specify that there be district school boards charged with managing secondary education. Each of the eleven members of a given district board is to be elected by the school board in his ward from among former members of that ward’s board. Finally, there is to be a State Council of Education made up of one member from each district elected by the current district board from among those who have previously served on that district board. It is to determine the standards for educational content and to make rules and regulations for school attendance.

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The point of this elaborate structure is to promote participation at the local level and to ensure that those who take charge of secondary education and of the overall educational structure be men and women with expertise regarding Callipolis’ system of education. We would not be surprised if the State Council of Education were to agitate for the establishment of one or more universities within the confines of Callipolis, and this we would welcome.

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In the fifth article, we turn to the most important feature in the frame of government – the legislative power. Like Charles-Louis de Secondat, baron de La Brède et de Montesquieu in his Spirit of the Laws and like the framers of America’s federal constitution, we believe the rule of law essential for maintaining the security and promoting the well-being of the citizens, and we are persuaded that a separation of powers and a system of balances and checks are a bulwark essential for the rule of law.

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In our view, to an ever-increasing degree, the separation of powers embedded in the American constitution has been subverted and the crucial element in this development has been the eclipse of the legislative power – with law-making for the most part transferred to the executive, to the executive agencies, and the courts, and we believe that something of the sort has happened in virtually every modern republic. It is our aim that, within the limits specified in the constitution of Callipolis, the legislature representing the people of that polity be accorded supremacy. It is one thing for an executive agency to spell out procedures; it is another for it to issue regulations binding the citizenry and make public policy thereby.

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To this end, we stipulate that no laws, rules, or regulations substantially affecting safety, justice, the securing of rights, or public policy more generally be issued by any body or branch of government other than the legislature; that, when in session, it and it alone have the right to declare an emergency; that all emergency powers lapse in short order if not given legislative sanction; and that to endure they must at frequent intervals be renewed by the legislature.

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We emphasize this because the eclipse of the legislative power is a universal phenomenon and because, throughout the world, self-government has become a fiction. In Callipolis, there are to be no unelected legislators; no bureaucrats blessed with the power to make regulations affecting individuals, corporations, or communities; and no executive empowered to declare an emergency and assume forthwith emergency powers for longer than seventy-two hours. We believe that to make a government responsible, one must make it genuinely responsive to those who choose its members. Citizens have a say; subjects do not. The former can vote the rascals out; the latter find themselves faced with bureaucrats who have tenure. To have a say, we argue, one must have leverage – and the citizens, through their elected representatives, must have both.

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The lower chamber in Callipolis is the democratic branch. It is to represent the localities. Its ninety-nine members are to be directly elected in legislative districts made up of a number of school districts, and they are term-limited. When elected, they rotate into office. If re-elected, they can serve up to three terms of four years. Then, when twelve years have passed, they must rotate out and make way for someone else. It is, we believe, vital that the citizens of Callipolis actively participate in their own governance and that they be subject to no laws or regulations except those that have been approved by representatives answerable to them at frequent intervals.

There is to be an upper chamber as well. It is not to be directly elected, and it is not term-limited. Its members, who are each to represent three of the lower chamber’s legislative districts, are  to be chosen by a body made up of those who serve on the district school boards in the three legislative districts. They are to serve three-year terms, and one-third of the body’s members are to be elected each year.

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This elaborate arrangement has a rationale. We regard double-deliberation – the consideration of a bill twice, in two distinct chambers differently constituted – as an encouragement (though not a guarantee) of prudence. For the same reason, we have made provision for an executive veto and, in extreme circumstances, for a legislative override. In our opinion, popular will is not a guarantee of good government. Consent is absolutely necessary: this we assert. Otherwise, there is apt to be abuse. After all, no one is more deeply concerned with the interests of any given individual than the individual in question. But consent must also be reconciled with wisdom, and so we have made provision not only for a lower chamber with a rotating membership directly elected, but also for an upper chamber selected by individuals with considerable experience in local governance and a membership eligible for repeated re-election as well as for an executive charged with implementing the law – all to have voice and vote. It is our hope that the upper chamber will be a repository of wisdom and that the executive will be especially attentive to practicality and to the interests of the whole polity.

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Most of the other provisions dealing with the legislature need no discussion. They point out the duties of the members of the legislative branch, they restrict their powers in matters where abuse has taken place in the past and do so in ways familiar to students of the history of constitutional government, and they confer on each chamber a right to expel an offending member via a vote requiring a supermajority. There is also provision for the impeachment, trial, and conviction of an executive officer who has committed a crime or abused the public trust. In this case, a supermajority in the lower chamber is required for impeachment and a supermajority in the upper chamber, for conviction. Thanks to the supermajority required, it is unlikely that frivolous impeachments will take place; and it is no less likely that, where there is an impeachment, there will be a conviction.

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There are two provisions that need special emphasis. The first has to do with legislative measures: they are to be “written in plain, clear language” for two reasons: so that the constituents of those serving in the legislature can easily understand what their representatives are up to, and so that the courts have little to no leeway in their interpretation. Moreover, each measure is to address a single subject only so that what has been done can be clearly discerned and judged by the citizens.

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The second measure has to do with the declaration of emergencies. Lodging this power in the executive, as is commonplace, is an invitation to histrionics and abuse. Making it possible for the legislature to declare an emergency and to leave the declaration in place for an extended period is to encourage on the part of the people’s representatives an evasion of responsibility. Emergency powers are a danger to liberty. Powers of this sort should not be conferred on anyone except in extremis, and their advisability should be reconsidered repeatedly thereafter. The price of liberty is vigilance.

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Article Six deals with the power of the purse. Historically, this has been the foundation of the legislative power. Recently, in many a republic, this prerogative has in effect been ceded to the executive. This is one of the principal sources of the eclipse of the legislative power and of a drift toward executive tyranny. The first few provisions within this article are designed to force the legislature – the lower chamber, first and foremost – to live up to its responsibilities and pass a budget. There is another provision restricting a power that has nearly everywhere been abused: the power to borrow. This it does with an eye to the propensity of those in power to seek present political advantage by voting benefits, postponing the attendant burdens, and imposing them on future generations. There is also a provision barring a graduated income tax and placing a limit on the percentage of an individual’s income that can be taken thereby. This is designed to protect the right to the fruits of one’s labor and to put an end to schemes aimed at soaking some for the benefit of others. In our judgment, this provision will reward and thereby encourage hard work and ingenuity.

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One of the most important ways in which the separation of powers supports the rule of law is the distinction it draws between law-making and enforcement. It is rightly thought an aid to prudential deliberation that members of the legislature be made aware that the laws they pass will be enforced against them and against their friends and family. Painful experience taught Englishmen in the seventeenth century that combining the two powers in the hands of an individual, as was done under Charles I, or in the hands of a legislative body, as was done under the Long Parliament, is a recipe for abuse. For this reason, in Article VII, we have established an independent executive directly elected by the people of Callipolis who will in no way be a creature of the legislature.

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To encourage responsibility, vigor, and alacrity, we have opted for a unitary executive. It is the executive who will be in the public eye; it is the executive who will be held responsible by the general public – and among the responsibilities imposed on the executive will be the execution of the laws and the exercise of what John Locke called the federative power, which is to say, it is the executive who will take responsibility for the conduct of foreign policy. The citizen holding this office is to command the armed forces, to conduct diplomacy, to negotiate treaties, to submit them to the legislature for approval, to recommend to the legislature the abrogation of treaties no longer desirable, and to propose, when necessary, a declaration of war. In extremis, but only when the legislature is not already in session, this figure is also charged with declaring an emergency and with summoning the legislature to judge its propriety and to approve the declaration or, by failing to do so, to cause it to lapse in short order.

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To encourage long-term planning, we have made the individual elected to this office eligible for re-election. To discourage tyranny, we have limited the individual elected to this office to two terms. If the individual chosen for this post is to be held responsible, he or she must be in charge. To this end, the executive must be in a position to nominate all of the leading executive officers. If malfeasance is to be avoided, the upper chamber must be given an opportunity to reject the executive’s nominees. Inferior officers, who are apt to gain experience and wisdom from long service, should be protected against dismissal as long as they are willing to take direction from the executive elected by the citizens.

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The third and final element in the separation of powers is the judiciary. From Montesquieu’s perspective and that of the framers of America’s federal constitution, if there is to be the rule of law and liberty, if citizens and others are both to be and to feel secure, three functions need to be distinguished and assigned to different, more or less independent bodies: the making of laws, the execution of laws, and the judging of the accused. In judging those accused, the courts not only have to ascertain the facts. They also have to interpret the laws, as we explain in Article Eight.

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One element in the judicial power is the jury. We regard its abandonment in Britain and elsewhere as the elimination of a safeguard necessary for the security of the citizens and their liberty. In Callipolis, in cases involving extended jail time or heavy fines, a jury is to be chosen by lot, and it is to be charged with a determination of the facts and of guilt. A jury chosen in this fashion will be independent. It will be beholden to no one – not to the legislature that passed the law applicable to the case under consideration nor to the executive who enforces it. In short, it will be in a position to exonerate individuals falsely accused or accused on the basis of insufficient evidence, and it will thereby stand in the way of conspiracies, arising from partisan or corrupt motives, which are aimed at targeting an individual or group of individuals for abuse.

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It helps as well that other safeguards are in place: that double jeopardy and self-incrimination are ruled out; that the person accused must be fully informed concerning the nature of the accusation and what occasioned it; that the accused is allowed to confront hostile witnesses, to compel favorable witnesses to appear, and to have the assistance of counsel; and that excessive bail, excessive fines, and cruel and unusual punishments are banned. It is also important that unreasonable searches and seizures are treated as out of bounds and that data held by third parties is expressly included in the material not to be searched or seized without evident cause.

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As is inevitable, interpretation of the law is left to the judges. Although nominated by the executive and subject to scrutiny and possible rejection in the upper chamber of the legislature, they are rendered, once confirmed, independent as a consequence of the stipulations governing their compensation and tenure in office. To be precise, the salaries of judges cannot be reduced while they continue in office, and they serve during good behavior. Like executive officers, they can be removed – but only by impeachment in the lower chamber and a trial and conviction in the upper chamber. In both cases, supermajorities are required.

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The power to interpret the law is, we concede, an invitation to abuse. Judicial oligarchy is by no means unknown in modern republics. To make this less likely, we have stipulated that the judicial power extend only to genuine cases where someone’s harm is at stake and only to those which arise under the constitution of Callipolis, under that polity’s laws, or as a consequence of treaties negotiated by the executive and ratified by the legislature. We have also stipulated that, for the purpose of adjudication, there be three courts: inferior courts to decide ordinary cases, a supreme court with appellate jurisdiction in such cases, and a constitutional court, which is to have appellate jurisdiction in cases in which the interpretation of the constitution comes into question. The constitutional court is not to be an aristocracy of sorts. It is to be composed of seven ordinary judges chosen by sortition from the supreme court and inferior courts; and each of the seven is to serve in this function for just seven years.

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In cases where constitutional interpretation is not at issue, the deciding court is required to provide the legislature with “a clear and concise account” of its interpretation of the law – so that the two chambers can consider whether the pertinent law needs clarification or adjustment by way of amendment. In cases where constitutional interpretation is at issue, the constitutional court is required to provide the legislature with “a clear and concise account” of its interpretation of the pertinent constitutional provision. This allows the two chambers to consider whether to hold a popular referendum to determine whether the court’s construction should have weight as a precedent. If rejected by three-fifths of those voting in such a referendum, the construction will be repudiated and denied precedential value. It is our conviction that the prospect of repudiation will be a deterrent to faithlessness on the part of the constitutional court.

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The ninth and last article in our constitution pertains to the amendment process. Our aim was to make the process less onerous than it is in the American system without rendering it so easy that the Constitution, by being subject to frequent change, has little more authority than ordinary legislation. The two chambers can propose such an amendment to the general body of citizens by a three-fifths vote in each; the citizens of voting age can bypass the legislature and do so by petition; and, in the popular referendum that takes place, a supermajority is required for ratification.

 

That fact that we have made no provision for political parties within our constitution should not be taken as an indication that we naively suppose that partisanship can be dispensed with. Parties are, some say, necessary to the operation of a democratic government, and this claim may well be true. But they can also render democratic government a chimera. Indeed, when unrestrained, they are apt to pose a grave threat to liberty. It is our hope that the constitution that we have proposed—buttressed as it is by a separation of powers, by the staggering of terms, and by restrictions on the exercise of emergency power—will promote compromise, encourage a salutary moderation, and prove to be an insuperable obstacle to the passage and implementation of the tyrannical measures that partisan rage can so easily inspire.