Constitutional protections of
rights
Jon Roland
2003 Jan 29
The design of a constitution to protect rights must enable those individuals or minorities most likely to be unfairly oppressed by a majority to assemble supporting coalitions sufficient to block or reverse government action, without disabling government from performing those functions that are essential, especially for defense and to deliver justice in the courts. Some of the traditional ways to do that are:
1 - Requirement for supermajority votes on some issues, such as constitutional amendments, raising taxes, declaring war, conviction of one criminally accused (unanimous jury verdict).
2 - Division of powers into different departments selected in ways that represent different constituencies differently, such as one house of a legislature based on population and the other on equal representation of geographic units with unequal populations.
3 - Constitutional substantive prohibitions on violations of certain specified rights, no matter how great the popular support for doing so might be.
4 - Procedural constraints, such as due process, requirements to deliberate for a certain period of time, delays in taking votes, etc., to give excited majorities time to cool off and think about it.
5 - Severe constraints on the powers delegated to government and to particular officials, and to funding for them, so they have less of a tendency toward abuse and corruption.
6 - Oversight functions, such as petition hearings, legislative hearings, ombudsmen, inspectors general, or bureaus set up to investigate and perhaps prosecute misconduct on one another, with safeguards against collusion or undue influence. This would include the power of judges to declare official acts unconstitutional and void.
7 - Enablement of corrective actions by private citizens, such as citizen arrests and prosecutions, access to grand juries, grand jury investigations, ballot initiative and referendum, open public meetings and records, access to publication outlets, and maintainance of a well- armed, trained, and organized militia than can operate independently of government supervision.
8 - Basic privacy protections to prevent undue public or private pressure on petitioners or dissidents.
9 - A robust network of independent private associations of all kinds that can easily become the focus of protest and reform, and enable victims of abuse or witnesses to corruption to form blocking or reversing coalitions.
10 - A high level of civic education and encouragement of civic participation by all citizens, starting from an early age, so that it becomes a habit, and civic skills are highly developed.