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
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
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.