Sunday, July 12, 2009

Constitutional questions

Betsy Newmark links to an essay in The New Republic that claims our position on Honduras is really a reflection of how we perceive constitutions in general:

So where you come down on Honduras really depends on which view of constitutions you favor. If you favor the dominant American view, you would tend to side with Zelaya. True, the Honduras constitution prohibits amendments related to presidential terms, but this rule flies in the face of the American notion that a constitution should be amendable in just about any direction--and Zelaya was simply exercising his right to try and correct that. If you favor the German view, you would tend to side with the supreme court and the military. After all, the changes Zelaya was seeking to the constitution were foundational and revolutionary. And a constitution should be able to protect against certain kinds of constitutional changes.


Betsy begs to differ:

Well, there's just one problem. We can't judge Honduras' constitution by either Germany's or our legal standards. That is not how constitutions work - to be changed according to a foreigner's idea of how amendments should be made. It isn't correct for our judges to look for answers in foreign laws and we shouldn't require that Honduras look to our traditions. We might accept that amendments can cover any aspect of our government, but Hondurans, concerned about the region's history of dictators seizing control, wrote their constitution differently than ours. And constitutions aren't mutable documents according to whatever ideological argument holds sway at the time. There are procedures for amending a constitution and, whether or not you like the way your country's procedures were designed, you have to play under those rules.


Miguel Estrada, a Honduran native who might have been the first Hispanic nominee for the Supreme Court if the Democrats hadn't blocked his advancement to the appellate court, looked at the actual text of the Honduran constitution. And he found that, according to the country's constitution, the ouster of President Zelaya was perfectly constitutional.
When Nixon was forced to resign under the threat of impeachment and probably conviction by the Senate, scholars celebrated that as proof that our Constitution worked and was stronger than any one man's criminality. Instead of trying to assert an American view of what we think should or should not have taken place in that country, we should also be celebrating a fragile democracy's efforts to withstand the ambitious efforts of one man's efforts to circumvent the rule of law.

In effect, Zelaya believed in a "living, breathing Constitution", meaning one which meant what he wanted it to mean, without the annoying text getting in the way.

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