Constitutional Durability: The Constitutions of the Order of Friars Preachers and American Constitutionalism

This post and research paper were written by 2017–18 Values & Capitalism Young Scholar Award recipient, Anne Rodriguez, a recent graduate of Providence College, class of 2018.

In my paper “Constitutional Durability,” I argue that the constitution of the Order of Friars Preachers, a religious order colloquially known as the Dominicans, adds a unique point of view to our political discourse about good governance and durable constitutions. The Dominicans are significant in this conversation because they are over 801-years-old—more than three times older than the United States—and have the world’s oldest democratic constitution.  My thesis is that the Dominican constitution (the LCO) provides a distinct approach to democratic constitutional government that is competitive with the Constitution of the United States in the durability of the document and its protection of freedom. To do this, I engaged in an analysis of both texts and found significant similarities that support the claim that the LCO is competitive with the Constitution. Additionally, I cite differences that highlight the ways that the LCO is distinct from the Constitution.

The four most significant similarities were: the multi-tiered system of government, a complex system of checks and balances, a devotion to the protection of freedom, and a difficult, but not impossible, mechanism of change. The first two similarities speak to the governmental structure established by each document, which highlight the impact of distributed power and authority on the longevity of the institution. The third similarity focuses more on the documents themselves. I examined the way in which they can legally grow with the institution and allow the institution to adapt to changing external environments. Finally, the fourth similarity, centered on the constituents, highlights the necessity of freedom and the consent of the governed in a durable institution.

Each of these similarities, in their own way, protect the freedom of the individual from over-intrusive government and tyrannical rule.  By establishing a strong system of government, each of these qualities increase the durability of the document.

The differences between the two documents remain striking, however, and provide an interesting jumping off point for some thought experiments regarding secular government. One of the significant differences is the mechanism of change for each document. In the Constitution, Article V states that a two-thirds agreement of both houses or all of the states is necessary to start the official amendment process, then a three-fourths agreement of both houses or all of the states is required for the ratification of an amendment. This is relatively straight-forward, particularly when compared with the Dominican mechanism.

The LCO establishes that the legislative body that controls constitutional change is called a general chapter. General chapters happen once every three years and come in three different types depending on what type of representation is present. A complete cycle of general chapters, which is necessary for the permanent alteration of the LCO, takes nine years. This means that permanent constitutional change in the LCO has a necessary built-in trial period and has been approved by three unique representative bodies.

In contrast to the amendment process in the Constitution, which utilizes disagreement among people to slow the process of constitutional change, the LCO instead uses time to encourage compromise and intentionality. In the LCO, the expectation is that the passing of time and the comfort of temporary change will encourage compromise, as well as prevent frivolous change. The Constitution, however, expects that the difficulty of reaching a three fourths agreement will be enough to prevent hasty and frivolous change.

This approach of using time and a multiplicity of representative bodies as a resource for conflict resolution is not entirely foreign to secular politics, but it is certainly foreign to an institution as large as the United States. Though the exact method described in the LCO may not be the proper application of this idea on such a large scale, there remains wisdom to be gleaned from considering how this principle could be successfully manifested in the American system.

Consider the implications of adding trial periods to our mechanism of constitutional change. Certainly, there would be bureaucratic difficulties regarding the swift enactment or dis-enactment of a constitutional change, but the real-life experience of the legal change would provide essential insight regarding the proposed amendment’s viability as a part of the Constitution. This may even encourage more of our elected representatives to be willing to cross party lines and work collaboratively on constitutional issues, especially since the lowered stakes provides less of an obstacle to honest discussion. Time alone may not be able to build bridges across the party divide, but time and temporary change might successfully encourage inter-party cooperation.

Therefore, I argue that studying the LCO adds a unique point of view to our political discourse about good governance and durable constitutions.

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