When a constitution gets rights wrong

Last month, after Chileans rejected a new proposed constitution, I offered some possible reasons for this rejection: Chile's constitution: back to square one. Now another article appears that puts Chile's constitutional issue in a larger historical context: What the Constitutions of the Soviet Union and North Korea Can Teach Us about Rights—and the Purpose of a Constitution. The author, Jack Elbaum, recounts the adoption of the 1936 Soviet Constitution which the country's leaders praised as "the most democratic in the world."

What made it so striking was that it granted more rights — civic, political, and personal — than almost any Western constitution did (or does today, for that matter). Forget the universal right to vote, the five freedoms granted in the First Amendment of the US Constitution, or the right to privacy; the Soviet Constitution guaranteed all of that and more. There was the right to “rest and leisure,” “the right to maintenance in old age and also in the case of sickness or loss of capacity to work,” and the ”right to employment and payment for their work in accordance with its quantity and quality.”

Despite this new, egalitarian Constitution, the next two years were notable for its escalation of terror and Stalin’s campaign “to eliminate dissenting members of the Communist Party and anyone else he considered a threat.” Over 750,000 people were executed and more than a million were put in the Gulag (a system of forced labor camps). This period became known as the Great Purge.

What went wrong? 

The horrors of the USSR were able to take place, despite all of the rights included in their Constitution, for two reasons.

The first reason is that the framework the USSR Constitution outlined — and the structures it put in place — did not prevent the centralization of power. In fact, it actually did the opposite by maintaining the absolute power of the Communist Party, while also granting the government jurisdiction over basically every area of life.

However, the creation of systems designed to keep total power out of the hands of any group is both the purpose and the sign of a strong constitution. It ensures that even if some people would like to violate the rights of others — whether it be for personal gain or ideological reasons — they will not be able to because there are checks on the amount of power any individual or body can accumulate.

The second reason is that the USSR Constitution enshrined a utopian vision into law. The issue, of course, is that it is impossible to achieve utopia — even if one includes it in a constitution.

Once again, Chileans were wise to reject a similar constitution last month. As I wrote at the time, a constitution has four principal purposes:

• to establish the proper legislative, executive, and judicial institutions; 
• to invest them with their respective spheres of authority; 
• to list the basic rights of citizens; and 
• to provide a process for amendment. 

Anything beyond these basic purposes should be left to the give and take of the ordinary policy process. A constitution that claims to do too much paradoxically runs the risk of ending constitutional government altogether.