The Constitution vs A Constitution

In thinking about the U.S. Constitution this week, I was reminded of a short passage written in 2009 on the subject by Mencius Moldbug. As follows:

Britain, of course, is famous for its unwritten constitution - a phrase which strikes the worm-gnawed American brain as oxymoronic. In fact, unwritten constitution is a tautology. It is our written constitution - or large-C Constitution - which is a concept comical, impossible, and fundamentally fraudulent. Please allow me to explain.

England had a constitution well before America had a Constitution, and De Quincey (whose political journalism is remarkably underrated) defines the concept succinctly:

...the equilibrium of forces in a political system, as recognised and fixed by distinct political acts...

In other words, a government's constitution (small c) is its actual structure of power. The constitution is the process by which the government formulates its decisions. When we ask why government G made decision D1 to take action A1, or decision D2 not to take action A2, we inquire as to its constitution.

Thus the trouble with these written constitutions. If the Constitution is identical to the constitution, it is superfluous. If the Constitution is not identical to the constitution, it is deceptive. There are no other choices.

It's easy to show that the latter is the case for USG. For example, the two-party system is clearly part of USG's constitution. But not only does the Constitution not mention political parties, the design notes indicate an intention to preclude them. Obviously this was not successful.

For another example, American law schools teach something called constitutional law, a body of judicial precedent which purports to be a mere elucidation of the text of the Constitution. Yet no one seriously believes that an alien, reading the Constitution, would produce anything like the same results. Moreover, the meta-rules on which constitutional law rests, such as stare decisis, are entirely unwritten, and have been violated in patterns not best explained by theories of textual interpretation. Thus the small 'c' in constitutional law is indeed correct.

In retrospect, the written-constitution design is another case of the pattern of wishful thinking that appears over and over again in the democratic mind. From the perspective of a subject, political stability is a highly desirable quality in a sovereign. We should all be ruled by governments whose constitution does not change. The error is to assume that this outcome can be achieved by simply inscribing a desirable constitution. This is a quick dive off the pons asinorum of political engineering, the quis custodietproblem.

If the constitution is in fact stable, inscribing it (while a prudent clerical task) makes it no more stable. If the constitution is not in fact stable, the equilibrium of forces can shift away from the original intent of the designers, and the inscription becomes a fraud.




I find this argument highly convincing. I would appreciate your views!