• Copernicus
    51
    Introduction

    The constitution is often described as the “supreme law of the land,” the foundational text from which all other laws derive legitimacy. Yet one question is almost always left in the shadows: Who is the legitimate author of the constitution itself? If the constitution governs everyone, by what authority, and by whose hand, does it come into being? This question reveals a profound paradox at the heart of political philosophy: every proposed author—be it a ruler, an elite class, the wise, or the people—appears flawed.


    I. Tyranny, Oligarchy, Noocracy, Majoritarianism: The Dilemma of Authorship

    1. A tyrant writing the constitution is plainly illegitimate, for it becomes an instrument of one will imposed upon all.
    2. An oligarchy of representatives is equally suspect. Once elected, representatives function as temporary sovereigns, insulated from direct accountability until reelection. This creates what might be called managed oligarchy, governance by elites with a democratic mask.
    3. A noocracy of the wise appears attractive, since it promises rationality and foresight. Yet who designates the wise, and who guards them against corruption? Noocracy risks becoming enlightened autocracy.
    4. The people themselves, through direct democracy, embody legitimacy in the purest sense. Yet majoritarianism risks trampling minorities, favoring passions over reason, and substituting numbers for justice.

    Thus, every candidate for constitutional authorship appears either unjust or unstable.


    II. Philosophical Attempts to Resolve the Question

    • Plato offered philosopher-kings, privileging wisdom over consent.
    • Aristotle sought balance, a “mixed” constitution blending elements of monarchy, aristocracy, and democracy.
    • Hobbes grounded constitutions in the surrender of all power to a sovereign for the sake of peace.
    • Locke argued for consent and natural rights, yet limited suffrage made his system oligarchic.
    • Rousseau envisioned the “general will” of the people as supreme, but this risks majoritarian tyranny.
    • Modern constitutionalism avoids authorship debates by emphasizing process: checks, balances, rights, and amendment procedures. Yet even here, representatives are the gatekeepers of change, sustaining the oligarchic problem.

    Each tradition gestures toward legitimacy but fails to resolve the authorship dilemma.


    III. The Limits of Representative and Direct Democracy

    • Representative democracy degenerates into oligarchy through tenure and privilege. The representatives, once seated, legislate with near-sovereign power, often detached from the people’s will.
    • Direct democracy appears more authentic, but scales poorly in modern states. It risks devolving into majoritarian despotism, sacrificing minorities and wisdom to the rule of numbers.

    Thus, neither system provides a fully satisfactory author for the constitution.


    IV. Minarchism as an Alternative

    If no group can claim legitimate authorship of the constitution, perhaps the question itself must be reimagined. What if the constitution is not needed as an elaborate architecture of power? What if its very ambition is the source of its illegitimacy?

    Minarchism proposes a minimal state, one restricted to essential functions: defense, policing, and courts. Under this vision:

    • There is no entrenched legislature with tenure privilege.
    • Power is skeletal, designed only to protect life, liberty, and property.
    • Governance, where necessary, may rotate or be subject to constant recall, preventing oligarchic capture.
    • The risk of majoritarianism diminishes, since the state has little scope to impose the will of the majority on minorities.

    Minarchism does not solve the problem of authorship by naming a new author. Instead, it reduces the constitution’s scope so drastically that authorship ceases to be a pressing concern. A minimal framework can be drafted by temporary bodies and revised by consent, while the bulk of human life remains beyond the reach of constitutional power.


    V. Toward an Answer

    The search for a legitimate author of the constitution may be in vain. Tyrants, elites, wise men, and majorities alike are flawed authors. Perhaps, then, the constitution is not a document to be perfectly authored once and for all, but a framework that is modest, revisable, and deliberately self-limiting.

    If legitimacy cannot be found in any singular author, it may be found in the absence of authorship altogether — in a system so minimal that no one’s hand rests heavily upon it. Minarchism emerges not as utopia, but as a pragmatic resolution: when the constitution’s authority cannot be grounded in a flawless author, it can be grounded in its own modesty, in the fact that it governs as little as possible.


    Conclusion

    So, who is the legitimate author of the constitution? The answer may be: no one. Tyranny, oligarchy, noocracy, and majoritarianism all falter as authors. The only path forward is either a constitution that continually rewrites itself through open participation, or a constitution so minimal that authorship no longer matters. Legitimacy may not come from the origin of the constitution, but from its restraint — from a system that governs lightly enough for the people to live freely, without rulers disguised as authors.
  • I like sushi
    5.2k
    The cultural climate dictates the laws from generation to generation. This is almost certainly the case back to the dawn of civilization.
  • I like sushi
    5.2k
    People? If they 'write' it at all.

    Popper refers to Closed and Open Society. Maybe there is something in that that may help you? Any idiot can write something and call it a Law. This is only true for the society they live in if people agree to it and adhere to it for the most part.

    Items like taking someone's life are generally considered taboo in all communities.
  • Copernicus
    51
    How do millions (or billions for India and China) of people come under the same roof and draft a publicly acclaimed constitution?
  • I like sushi
    5.2k
    I thought it was clear I was talking about a larger time scale hence:

    The cultural climate dictates the laws from generation to generation. This is almost certainly the case back to the dawn of civilization.I like sushi

    Either way, the same kind of civilization building around the globe has generally resulted in people choosing Human Rule over the harsh realities that mother nature threw at them.
  • Copernicus
    51
    WHO WRITES the constitution?
  • ChatteringMonkey
    1.5k
    The mandate of heaven.

    There's always going to be people and groups vying for power in some way or another.

    People in power will determine what the constitution looks like, by and large.

    But if they diverge from what people want so bad they risk revolt and losing the mandate of heaven.... and then you get another group with the power to change what's in the constitution, probably more in line with what people want.

    So yes, there is no legitimate author, but you will have an author.

    In a way Hobbes was closest to mark. The last thing one wants is a constant war of everybody against everybody as that is worse for everybody in the long run, so it makes sense to trade some freedoms for peace.
  • Copernicus
    51
    What's your take on minarchism?
  • Copernicus
    51
    The mandate of heavenChatteringMonkey

    Theocracy? What if the people are secular and prefer free will?
  • I like sushi
    5.2k
    It sounds like you know the answer to your own question. So WHO?
  • ChatteringMonkey
    1.5k
    Not theocracy, the Chinese are secular-ish... It's just the idea that those in power can rule, until they have shown to be unworthy of ruling.

    I'm probably in favour of a kind of minimal state, though I think our societies have become so complex and highly technological that a lot would probably have to be included in that minimum. To give an example, you probably need some kind of environmental regulation now that we have the capacity to pollute as much as we do. That used to be less of an issue.
  • Copernicus
    51
    No Constitution seems to be the only answer.

    I presented the options with counterarguments to see if any of you can come up with an alternative.
  • Copernicus
    51
    I see. I'd love your counterarguments against minarchism.
  • I like sushi
    5.2k
    I already told you I decide how I act in relation to whatever the law says. This means if I really wanted to kill someone I would. Laws do not necessarily stop anyone from doing anything.

    The State means nothing to me. I am a human. In reality I do adhere to rules because I either agree with them, or it is a necessary trade off. I judge what to do.

    I do nto think it is right to punch people, steal money from people or kill people. It is not hte law that makes me think this way. In effect, a lot of what I do is what I believe to be just. I am no saint, so I do undoubtedly make mistakes.

    I abhor the idea of people looking to some body of laws, so as to abscond from taking carefully considered acts. People usually choose tyranny over freedom (which is responsibility).
  • Copernicus
    51
    but there are laws and that makes you a criminal.
  • I like sushi
    5.2k
    It makes me a criminal? How so? You think I have killed people. Even if I had if there is no evidence then it does not matter what the law is.

    If law said to rape every girl with blonde hair you saw on a bus would you do it. Generally speaking we act as our conscience dictates not the laws of the land.
  • Copernicus
    51
    we act as our conscience dictates not the laws of the land.I like sushi

    but jail/police doesn't follow your conscience.
  • I like sushi
    5.2k
    So you would rape girls with blonde hair if they used buses if it was the law? Come on!

    The laws are not rules to live by. They are forms of Positive Liberty put in place to protect individuals. They can, and are, misused. People overtime force governing bodies to amend laws or throw them out.

    Generally spekaing Negative Liberty trumps Positive.
  • Copernicus
    51
    unless you live in a world with no formal law or government or police, i don't know what you're talking about.
  • Copernicus
    51
    I'm talking about the world you and I live in.
  • I like sushi
    5.2k
    It is quite simple. If there is a law you find abhorent woudl you follow it anyway just because it was the law. Obviously not.

    The law/police do not dictate how people behave, although they do undoubtedly influence many decisions people make.
  • Copernicus
    51


    I'm talking consequences here.
  • I like sushi
    5.2k
    Consequences of breaking laws may be good or bad.
  • Copernicus
    51
    It puts you in jail.

    Suggest a solution on who should write the constitution?
  • Outlander
    2.8k
    This reminds me of an argument or "systems model" (not sure if I'm using that correctly) one of the mods brought up a while back.

    https://en.wikipedia.org/wiki/Ship_of_Theseus

    Bit of an aft reference but relevant (I would assume) since we're talking about a body or structure composed of multiple pieces or components contributed by multiple persons.

    Kind of a "at what point does an antique house become modern after one too many renovations/replacements" way of framing the conversation.

    Otherwise, it's simply "multiple authors." Not really that philosophical, perhaps? Not sure. :chin:
  • Copernicus
    51
    Can you point out where in my argument you found a flaw and counter it by quoting it?
  • I like sushi
    5.2k
    Who is living in the real world now? Any suggestions you make will not change the reality.

    Bye. Done here.
  • Copernicus
    51
    There is doctrine, there is hypothesis, then there is fantasy.

    I'm touching on doctrine here.
  • ChatteringMonkey
    1.5k
    Ok start here.

    Does illegitimacy even have meaning absent any legal order? Isn't legitimacy only a thing if there is already an established (legal) order? Or what do you take the word to mean?

    And if it indeed doesn't have meaning in that case, then the whole question of what is a legitimate author of a constitution is in fact a meaningless question, and consequently the whole argumentation following that has no real basis.
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