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Wednesday, November 23, 2005

The Constitution and its Legitimacy

The Constitution is said to be the supreme law of the land. It is considered as the “god of all man-made laws”.[1] This is the Doctrine of Constitutional Supremacy. Isagani A. Cruz captures the essence of this great doctrine in this wise:

“The Constitution is the basic and paramount law to which all other laws must conform and to which all persons, including the highest officials of the land, must defer. No act shall be valid, however nobly intentioned, if it conflicts with the Constitution. The Constitution must ever remain supreme. All must bow to the mandate of this law. Expediency must not be allowed to sap its strength nor greed for power debase its rectitude. Right or wrong, the Constitution must be upheld as long as it has not been changed by the sovereign people lest its disregard result in the usurpation of the majesty of the law by the pretenders to illegitimate power.”[2]

The Constitution is the basis of the validity of all laws and governmental acts. It is the basis of the legitimacy of the very existence of government. It is the basis of the legitimacy of the exercise by government of powers that interfere with personal autonomy and liberty. It is the anchorage of all legitimacy.

The Constitution does not become legitimate just because it is a constitution and while it cannot be unconstitutional, it can however be illegitimate. Constitutionality therefore is one thing and legitimacy is another. Constitutionality is an attribute of governmental acts and laws that do not contravene the Constitution; legitimacy is an attribute of governmental acts and laws, including the Constitution, that makes them at the least, juridically right, acceptable, and necessary.

As the anchorage of all legitimacy, the Constitution must itself be legitimate. Its legitimacy cannot rests on mere conjectures or shaky theories. It cannot simply be assumed. It must rest on solid ground if it is to the basis of the legitimacy of all governmental acts and laws that depend on it for their own legitimacy.

What does legitimacy of the Constitution consist in? Is it in the positive consent of the majority of the people who ordained it as expressed in the process of its ratification? Is it the mere acquiescence of the people it seeks to govern?

In the landmark case of Javellana v. Executive Secretary[3] where the legitimacy of the 1973 Philippine Constitution was put in question, five questions were agreed upon as reflecting the basic issues involved, to wit:

1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and therefore non-justiciable, question?

2. Has the Constitution proposed by the 1971 Constitutional Convention been ratified validly (with substantial, if not strict, compliance) conformably to the applicable constitutional and statutory provisions?

3. Has the aforementioned proposed Constitution acquiesced in (with or without valid ratification) by the people?

4. Are petitioners entitled to relief? and

5. Is the aforementioned proposed Constitution in force?

The second, third and fifth questions are important to our present inquiry because they give us an insight on how the Philippine Supreme Court understands and regards the legitimacy of the Constitution.

The second question deals with the validity of the ratification of the Constitution. It is simply a question of whether the applicable procedure for ratification was followed. Chief Justice Teehankee expresses the view that “the act of ratification is the act of voting by the people,” [4] that is, on whether or not they approve a proposed constitution.

Ratification is important in the life of a constitution because it is usually the reckoning point of its effectivity. Most modern constitutions contain a provision that says that they take effect upon their ratification. The procedure for ratification may differ from country to country. In the case of the U.S. Constitution, it provides that “the Ratification of the Convention of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the Same.”[5] In other countries, however, including the Philippines, ratification is usually done by the direct popular vote.

With respect to the 1973 Constitution, there are two ways of looking at its ratification: First, if the 1973 Constitution is to be regarded as a distinctly new Constitution, not a mere amendment to the 1935 Philippine Constitution, then it must be ratified upon its own terms, that is, based upon its own provision for ratification found in Section 16 of its Article XVII that says: “This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the purpose x x x.” Second, if the 1973 Constitution is to be regarded as an amendment to the 1935 Constitution, then the procedure for ratification of amendments found in Article XV, Section 1 of the 1935 Constitution should be complied with. The said article provides that “amendments shall be valid as part of this Constitution (1935) when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification.”

The Javellana Court regarded the question of validity of the ratification as dealing with whether or not the 1973 Constitution was validly ratified in accordance with Article XV, Section 1 of the 1935 Constitution. Six (6) members of the Court[6] held that the 1973 Constitution was not validly ratified; three (3) members[7] held that under their view there has been in effect substantial compliance with the constitutional requirements for valid ratification; and the last member, Justice Barredo, cast a qualified vote, explaining that:

“x x x I am constrained to hold that, in the political sense, if not in the orthodox legal sense, the people may be deemed to have cast their favorable votes in the belief that in doing so they did the part required of them by Article XV, hence, it may be said that in its political aspect, which is what counts most, after all, said Article has been substantially complied with, and, in effect, the 1973 Constitution has been constitutionally ratified.”

While the majority had voted that there has been no valid ratification, the third question probes into the issue of whether or not the 1973 Constitution was acquiesced in (with or without valid ratification) by the people. In the view of the Javellana Court, the acquiescence by the people can be a sufficient basis of the effectivity of the Constitution. Acquiescence can substitute for the requirement of valid ratification.

On this third question of acquiescence by the people, no majority vote has been reached by the Court. Four of its members[8] held that the people have already accepted the 1973 Constitution; two members[9] held that there can be no free expression, and there has been no expression, by the people qualified to vote all over the Philippines, of their acceptance or repudiation of the 1973 Constitution; and the other three members[10] expressed lack of knowledge and/or competence to rule on the question.

With a majority saying on the second question that there was no valid ratification, and there being no majority vote reached on the third question with regard to the acquiescence by the people, the 1973 Constitution apparently had no basis for its effectivity. Surprisingly, however, the Javellana Court proceeded to a fifth question on whether the 1973 Constitution was already in force. Surprising, because this fifth question cannot in substance be separated from the second and third questions. Theoretically, the issue of whether the Constitution should be considered to be “in force” or not should just be an outcome of either the validity of its ratification or the acquiescence by the people. If it is neither validly ratified nor acquiesced in by the people, then it cannot be “in force.”

On the fifth question of whether the new Constitution of 1973 is in force, four members of the Court[11] held that it is in force by virtue of the people’s acceptance thereof; another four members[12] cast no vote thereon on the premise stated in their votes on the third question that they could not state with judicial certainty whether the people have accepted or not accepted the Constitution; and two members[13] voted that the 1973 Constitution is not in force, with the result that there were not enough votes to declare that the 1973 Constitution was not in force.[14]

Hence, the 1973 Constitution took effect not by virtue of a valid ratification or by the acceptance of, or acquiescence by, the people, but by the sheer technicality of failure to muster the required two-thirds vote to strike it down and declare it as not in force. Therefore, one would search for the legitimacy of the 1973 Constitution and would find it empty.

Fortunately for the 1987 Philippine Constitution, there is no question as to the validity of its ratification; hence, there is no need to discuss the Filipino People’s acceptance or acquiescence independently of the validity of its ratification.

Now, back to the main inquiry on the legitimacy of the Constitution, is the validity of the ratification sufficient to endow the Constitution with legitimacy? What about people’s acquiescence independently of the validity of its ratification? Is the vote of a bare majority in a plebiscite sufficient to bring legitimacy to the Constitution and make it binding on the whole citizenry? If so, and being a document of founding or refounding of a polity, how can the Constitution be legitimately binding on the minority who have not given their positive consent to its mandate? Does the legitimacy of the Constitution depends merely on the empirically discoverable consent of the governed or is there something more to it like the need for the intrinsic validity of the principles and rules that it embodies?

Richard H. Fallon, Jr. in his article “Legitimacy and the Constitution”[15] argues that the term legitimacy invites appeal to three distinct kinds of criteria that in turn support three distinct but partly overlapping concepts of legitimacy – legal, sociological, and moral. He writes:

“When legitimacy functions as a legal concept, legitimacy and illegitimacy are gauged by legal norms. As measured by sociological criteria, the Constitution or a claim of legal authority is legitimate insofar as it is accepted (as a matter of fact) as deserving of respect or obedience – or, in a weaker usage that I shall explain below, insofar as it is otherwise acquiesced in. A final set of criteria is moral. Pursuant to a moral concept, legitimacy inheres in the moral justification, if any, for claims of authority asserted in the name of the law.”[16]

Modern constitution-making is seen by the Federalists as a matter of “reflection and choice.” Alexander Hamilton writes in Federalist No. 1:

“It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are capable or not of establishing good government by reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”[17]

Federalism scholar Daniel J. Elazar considers constitutional choice as an art and to bring the constituency to endow the constitution with legitimacy is even a greater art because legitimacy is a commitment that cannot be coerced. He explains:

“Constitutional legitimacy involves consent. It is not a commitment which can be coerced – however much people can be coerced into obedience to a particular regime. Consensual legitimacy is utterly necessary for a constitution to have real meaning and to last. The very fact that, while rule can be imposed by force, constitutions can only exist as meaningful instruments by consent, is another demonstration that constitution-making is the preeminent political act.”[18]

The U.S. Constitution provides that “the ratification of the Convention of nine States shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”[19] The 1987 Philippine Constitution in turn provides that “this Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose and shall supersede all previous Constitution.”[20]

In modern consitutions, this act of ratification as a way of expressing the “consent of the governed” is regarded as the core of the Constitution’s legitimacy. This consensus that is manifested during ratification gives life and meaning to the phrase “We, the People” that usually begins preambles of modern constitutions. “We, the People” operates to endow the Constitution with legitimacy by announcing from the very start that the Constitution is the handywork of the people, that they are the author, and they are the ones that have breathed life into that foundational document.

[1] Angel Aguirre, Jr. & Ramsey Domingo Pichay, Postulates in Constitutional Law, Revised Edition 1992, Lex Scripta Suprema Publishers, Inc., p. 3
[2] Isagani A. Cruz, Philippine Political Law, Central Lawbook Publishing, Co., Inc. 1991 Ed., p. 11
[3] G.R. No. L-36142, March 31, 1973
[4] Chief Justice Teehankee, Concurring Opinion in De Leon v. Esguerra, G.R. No. 78059, August 31, 1987
[5] Article VII, Constitution of the United States of America
[6] Chief Justice Concepcion and Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee
[7] Justices Makasiar, Antonio, and Esguerra
[8] Justices Barredo, Makasiar, Antonio, and Esguerra
[9] Chief Justice Concepcion and Justice Zaldivar
[10] Justices Makalintal, Castro, and Teehankee
[11] Justices Barredo, Makasiar, Antonio, and Esguerra
[12] Justices Makalintal, Castro, Fernando, and Teehankee
[13] Chief Justice Concepcion and Justice Zaldivar
[14] Article VIII, Section 10 of the 1935 Constitution provides that “no treaty or law may be declared unconstitutional without the concurrence of two-thirds of all the members of the Court.”
[15] Richard H. Fallon Jr., Legitimacy and the Constitution, Harvard Law Review, Volume 118 Number 6, April 2005, p. 1787
[16] Ibid., at pp. 1790-1791
[17] The Federalist Papers, Federalist No. 81, (with Kesler Introduction and Notes), New American Library, 1989, p. 1
[18] Daniel J. Elazar, Constitution-Making: The Pre-eminently Political Act, Constitutionalism: The Israeli and American Experiences - Chapter 1,
[19] Article VII, U.S. Constitution
[20] Article XVIII, Section 27, 1987 Philippine Constitution

Friday, November 18, 2005

Constitutional Fundamentalism

The term “constitutional fundamentalism” had found its way once in the records of the Supreme Court in the landmark case of Aquino v. Enrile[1] particularly in the concurring and dissenting opinion of Justice (later Chief Justice) Enrique Fernando. The said case involved the application for habeas corpus of Benigno S. Aquino, Jr., et al. and revolved around the issue of whether or not the Court may issue the same considering that martial law had been proclaimed by the President and which is ultimately dependent upon the main issue of whether the Court may inquire into the validity of the proclamation of martial law. The pertinent portion of the said opinion mentioning “constitutional fundamentalism” provides:

“4. Equally so, the decisive issue is one of liberty not only because of the nature of the petitions, but also because that is the mandate of the Constitution. That is its philosophy. It is a regime of liberty to which our people are so deeply and firmly committed. 18 The fate of the individual petitioners hangs in the balance. That is of great concern. What is at stake, however, is more than that — much more. There is a paramount public interest involved The momentous question is how far in times of stress fidelity can be manifested to the claims of liberty. So it is ordained by the Constitution, and it is the highest law. It must be obeyed. Nor does it make a crucial difference. to my mind, that martial law exists. It may call for a more cautious approach. The simplicity of constitutional fundamentalism may not suffice for the complex problems of the day. Still the duty remains to assure that the supremacy of the Constitution is upheld. Whether in good times or bad, it must be accorded the utmost respect and deference. That is what constitutionalism connotes. It is its distinctive characteristic. x x x.”[2]
Modern constitutionalism is usually founded upon some organic acts of a fundamental character, whether embodied in a single instrument or set of instruments like the U.S. Constitution or scattered in various sources, such as statutes of a fundamental character, judicial decisions, commentaries of publicists, customs and traditions, and certain common law principles like in what is regarded as the British Constitution.[3]
This means that constitutionalism does not presuppose or require a single document or an integrated set of documents to embody the fundamental law; otherwise there would be no such thing as British Constitutionalism. As Gregory Mahler elucidates:

“When we discuss constitutional governments, then, we are really not talking about whether there exists a single, specific document; rather, we are interested in a kind of political behavior, political culture, political tradition, or political history.... The forms may vary, but the behavioral results are the same: Limits are imposed upon what governments may do.”[4]
While the British Constitution had been called an “unwritten constitution,” it is however in fact contained in various written instruments. Lord Bolingbroke described the British Constitution in this wise:
“By constitution we mean ... that assemblage of laws, institutions and customs, derived from certain fixed principles of reason, directed to certain fixed objects of public good, that compose the general system, according to which the community hath agreed to be governed.”[5]
However, since most of the constitutions in the world today have been patterned after the American model of having a single document of set of documents to embody their fundamental law, this inquiry will be confined to this American concept of constitutionalism.
A distinctive character of this concept of American Constitutionalism is its adherence to principles that have been objectively embodied in positive form and in a single instrument or set of instrument. In a formal sense American Constitutionalism consisted in the stipulation of principles, institutions, and rules of government by the people or their representatives.[6]
Hence, the written document or the Constitution becomes the supreme and fundamental law of the land. It becomes the touchstone of the validity of all governmental acts and some even refer to it as “the God of all man-made laws.” Hence, to fundamentalists, the Constitution has become a sacred scripture and adherence to its text constitution worship. This is the essence of Constitutional Fundamentalism.
Constitutional Fundamentalism regards the documentary text as an instantiation, a sign or symbol, of fundamental law. It expresses in modern form the view of classical philosophy that the “endurance of ‘writings’ provides the possibility of meeting the variability of human things by preserving wisdom in however diluted a form beyond the demise of the wise founder.”[7]
The problem with Constitutional Fundamentalism, however, inherent in its strict allegiance to the Constitutional or organic text, is the difficulty in discovering the original intent, whether the latter could really be discovered and even if discovered whether it should really be adhered to, especially after some radical and fundamental changes in circumstances have taken place since its ratification or adoption.
It also gives rise to the issue of what does original intent consist in. Is it simply the embodiment of the intent of the framers, the actual drafters of the Constitutional text? Are the speeches of the individual members of a constitutional convention to be held as reflective of the general intent of the entire convention? Or, are we to take the intent of the people as the controlling intent, as the latter are the theoretical authors of the Constitutional text following republican representative traditions?
Discovering the intent of the people or their original understanding at the time they ratified the Constitutional text poses a bigger challenge. This is never manifested in written form that is empirically or positively verifiable.
Moreover, the Constitution, as a document of founding or refounding, amounts to a comprehensive picture of a people only at a given time[8] and like any living law, Isagani Cruz holds the thesis that the Constitution must move with the moving society it is supposed to govern and a law that has ceased to grow has ceased to be, and he maintains that this is true especially of the supreme and fundamental law.[9]
Isagani Cruz further observes that “the political or philosophical aphorism of one generation is doubted by the next and entirely discarded by the third.” This being so, he suggests that, the Constitution must be able to adjust to the change, conforming itself to the needs of society that must be dynamic if it is to progress and endure.[10]
What could keep Constitutional Fundamentalism at bay is an active judiciary that regards the Constitution as a living document. This is best explained in the exposition of Justice Jose Vitug in his concurring opinion in the landmark case of Estrada v. Arroyo[11] where the Supreme Court was faced with the issue of the legitimacy of President Arroyo’s assumption of the Presidency:
“More than just an eloquent piece of frozen document, the Constitution should be deemed to be a living testament and memorial of the sovereign will of the people from whom all government authority emanates. Certainly, this fundamental statement is not without meaning. Nourished by time, it grows and copes with the changing milieu. The framers of the Constitution could not have anticipated all conditions that might arise in the aftermath of events. A constitution does not deal in details, but enunciates the general tenets that are intended to apply to all facts that may come about but which can be brought within its directions. Behind its conciseness is its inclusiveness and its aperture overridingly lie, not fragmented bur integrated and encompassing, its spirit and its intent. The Constitution cannot be permitted to deteriorate into just a petrified code of legal maxims and hand-tied to its restrictive letters and wordings, rather than be the pulsating law that it is. Designed to be an enduring instrument, its interpretation is not to be confined to the conditions and outlook which prevail at the time of its adoption; instead, it must be given flexibility to bring it in accord with the vicissitudes of changing and advancing affairs of men.”[12]
However, this in itself must also be tempered by strict parameters lest it be brought to the extreme and the judiciary assumes a role of a continuing constitutional convention.
Constitutional principles should then be divided into “movable” and “non-movable principles”. Movable principles, like the due process clause, may move with the times and may be given a contemporary meaning. Non-movable principles, however, like the structure or form of government cannot change, except by another act of an organic character that amends or revises the same.

[1] G.R. No. L-35546, September 17, 1974
[2] Concurring and Dissenting Opinion of Justice Fernando in Aquino v. Enrile, supra.
[3] Isagani A. Cruz, Constitutional Law, 2003 Ed. (Central Lawbook Publishing), pp. 4-5
[4] Gregory Mahler, Comparative Politics: An Institutional and Cross-National Approach, Upper Saddle River, New Jersey: Prentice Hall, 2000, p. 28
[5] Cited in Constitutionalism: Ancient and Modern, by Charles H. McIlwain, Cambridge, 1958, p. 3 and in Herman Belz, A Living Constitution or Fundamental Law? American Constitutionalism in Historical Perspective, Chapter 1,
[6] Herman Belz, A Living Constitution or Fundamental Law? American Constitutionalism in Historical Perspective, supra
[7] Herman Belz, A Living Constitution or Fundamental Law? American Constitutionalism in Historical Perspective citing Paul Stern, The Rule of Wisdom and the Rule of Law in Plato's States man, American Political Science Review, Vol. 91 (1997), p. 271
[8] Donald S. Lutz, The Origins of American Constitutionalism, Louisiana State University Press, 1988, p. 3
[9] Isagani A. Cruz, Philippine Political Law, 1991 Ed., Central Lawbook Publishing, p. 342
[10] Ibid.
[11] G.R. No. 146738, March 2, 2001
[12] Justice Jose Vitug, Concurring Opinion in Estrada v. Arroyo, G.R. No. 146738, March 2, 2001

Saturday, November 12, 2005

Constitutionalism and Judicial Review

In De la Llana v. Alba,[1] the Court, speaking through Chief Justice Enrique Fernando, has held that “it is of the essence of constitutionalism to assure that neither agency is precluded from acting within the boundaries of its conceded competence.” The Chief Justice likewise stated that “pursuant to its grave responsibility of passing upon the validity of any executive or legislative act in an appropriate case, the Court has to resolve the crucial issue of the constitutionality of Batas Pambansa Blg. 129, entitled ‘An Act Reorganizing the Judiciary, Appropriating Funds Therefor and for Other Purposes.’”

In the same case, Chief Justice Fernando also held that “Philippine Constitutionalism proceeds upon the theory that a strong Supreme Court with power of judicial review is necessary to fulfill the essence of constitutionalism to ensure that all branches and instrumentalities of the government would not go beyond the limits of their powers or jurisdiction nor act with grave abuse of discretion.

Again, Chief Justice Fernando in his concurring opinion in NFSW v. Ovejera[2] argues that if the decisive consideration only in deciding a case is the language of the applicable statutes, the decision of the Court can still stand the test of scrutiny based on sheer logic. That would not suffice, however, he adds and he explains that:

“Such an approach, to my mind, is quite limited. The standard that should govern is the one supplied by the Constitution. That is the clear implication of constitutionalism. Anything less would deprive it of its quality as the fundamental law. It is my submission, therefore, that statutes, codes, decrees, administrative rules, municipal ordinances and any other jural norms must be construed in the light of and in accordance with the Constitution. There is this explicit affirmation in the recently decided case of De la Llana v. Alba sustaining the validity of Batas Pambansa Blg. 129 reorganizing the judiciary: ‘The principle that the Constitution enters into and forms part of every act to avoid any unconstitutional taint must be applied.’ x x x”

The principle that statutes, codes, decrees, administrative rules, municipal ordinances and any other jural norms must be construed in the light of and in accordance with the Constitution requires an ultimate authority with power to construe and interpret the Constitution.

In British Constitutionalism, this ultimate authority rests with the House of Lords, while in American Constitutionalism where Philippine Constitutionalism takes its roots, this authority rests with a separate and distinct Supreme Court.

The criticism against having a separate and distinct Supreme Court was summarized by Alexander Hamilton in Federalist No. 81, viz.:

“The arguments or rather suggestions, upon which this charge is founded are to this effect: ‘The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the spirit of the Constitution will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is unprecedented as it is dangerous. In Britain the judicial power, in the last resort, resides in the House of Lords, which is a branch of the legislature; and this part of the British government has been imitated in the State constitutions in general. The Parliament of Great Britain, and the legislatures of several States, can at any time rectify, by law, the exceptional decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless.’”[3]

Hamilton considers this criticism as made up altogether of false reasoning upon misconceived fact. He explains:

“In the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than what may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard for construction of the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of convention, but the general theory of limited Constitution; and as far as it is true is equally applicable to most if not to all the State governments.”[4]

While Hamilton acknowledges that there is no direct constitutional grant of the power of judicial review to the Supreme Court of the United States, he sees, however, as a doctrine flowing from the general theory of limited Constitution, that the Constitution shall be the standard for the validity of all laws and that any law in opposition to it must vow to its mandate.

Hamilton’s dictum that “laws ought to give place to the Constitution,” that is, whenever there is an evident opposition, has been the very same basis used by Chief Justice John Marshall in Marbury v. Madison[5] when he secured for the Supreme Court of the United States the power of judicial review notwithstanding the lack of an express grant of such power in the Constitutional text. Marshall argues:

“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the court must decide on the operation of each.

“So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the court must either decide the case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the essence of judicial duty.

“If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”

Constitutionalism cannot be divorced from judicial review. If the Constitution is to remain supreme, there has to be an effective mechanism by which the system itself could clean itself up of the excesses and ultra vires acts of government. In this sense, constitutionalism is dependent on the existence and the courageous exercise of the power of judicial review.

Chief Justice Fernando expounds on this concept further in his concurring and dissenting opinion in the case of Peralta v. Comelec[6]:

It is a reassuring feature of the martial law regime in the Philippines that this Court had repeatedly entertained suits challenging the validity of presidential decrees raised in appropriate legal proceedings. It is a role it had never shunned. There is thus adherence to the path of constitutionalism, both in normal times and under crisis conditions. Even during this period of emergency, parties had come to this Tribunal whenever, in their opinion, the executive act assailed was tainted by the vice of nullity. They did complain, and they were heard. In that way, this Court manifested fealty to the basic tenet of constitutionalism. For there is no issue so basic that it cannot be settled within the constitutional framework. Courts, in the language of Chief Justice Concepcion, ‘have, not only jurisdiction to pass upon [such questions] but also the duty to do so, which cannot be evaded without violating the fundamental law and paving the way to its eventual destruction.’ Judicial review is thus the dominant constitutional concept to assure that the Constitution remains supreme. It is an awesome power, to be sure, but reasons of delicacy as well as the courtesy due a coordinate branch do not suffice to ward off judicial intervention in proper cases. More specifically, this Tribunal cannot avoid the responsibility thrust upon it to vindicate the rights safeguarded by the Constitution.

Guarding the exalted position of the Constitution as the supreme law is the essence of constitutionalism, and judicial review stands is its best safeguard. Justice Laurel champions this concept in the landmark case of Angara v. Electoral Commission:[7]

“The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments, it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed ‘judicial supremacy’ which properly is the power of judicial review under the Constitution.”

[1] G.R. No. 57883, March 12, 1982
[2] G.R. No. L-59743, May 31, 1982
[3] The Federalist Papers, Federalist No. 81, (with Kesler Introduction and Notes), New American Library, 1989, p. 450
[4] Ibid.
[5] 5 U.S. (1 Cranch) 137; 2 L. Ed. 60 (1803)
[6] G.R. No. L-47771, March 11, 1978
[7] 63 Phil. 139 (1936)

Monday, November 07, 2005

The Constitution as a Social Contract

In Marcos v. Manglapus,[1] the Supreme Court speaking through Justice Cortes categorically opined that “the Constitution, aside from being an allocation of power is also a social contract whereby the people have surrendered their sovereign powers to the State for the common good.”

The Social Contract Theory is nearly as old as philosophy itself. In general, it is the view that persons’ moral and/or political obligations are dependent upon a contract or agreement between them to form society.[2] As a modern political theory, it has taken its full shape in the writings of the three main social contract theorists: Thomas Hobbes, John Locke and Jean-Jacques Rousseau. In the twentieth century, it gained revival in the works of John Rawls.

In laying down the foundation and basis for this paper, a brief summary of the different versions of the social contract theory is in order, and for this purpose, I reproduce the summaries made by the Internet Encyclopedia of Philosophy’s article on the Social Contract Theory[3] with very slight modifications, viz.:
Thomas Hobbes’ Version
According to Thomas Hobbes, the justification for political obligation is this: given that men are naturally self-interested, yet they are rational, they will choose to submit to the authority of a Sovereign in order to be able to live in a civil society, which is conducive to their own interests. Hobbes argues for this by imagining men in their natural state, or in other words, the State of Nature. In the State of Nature, which is purely hypothetical according to Hobbes, men are naturally and exclusively self-interested, they are more or less equal to one another, there are limited resources, and yet there is no power able to force men to cooperate.

Given these conditions in the State of Nature, Hobbes concludes that the State of Nature would be unbearably brutal and he concludes that the State of Nature is the worst possible situation in which men can find themselves. It is the state of perpetual and unavoidable war. The situation is not, however, hopeless. Because men are reasonable, they can see their way out of such a state by recognizing the laws of nature, which show them the means by which to escape the State of Nature and create a civil society.

Being reasonable, and recognizing the rationality of this basic precept of reason, men can be expected to construct a Social Contract that will afford them a life other than that available to them in the State of Nature. This contract is constituted by two distinguishable contracts. First, they must agree to establish society by collectively and reciprocally renouncing the rights they had against one another in the State of Nature. Second, they must imbue some one person or assembly of persons with the authority and power to enforce the initial contract.
After these contracts are established, then society becomes possible, and people can be expected to keep their promises, cooperate with one another, and so on. The Social Contract is the most fundamental source of all that is good and that which we depend upon to live well. Our choice is either to abide by the terms of the contract, or return to the State of Nature, which Hobbes argues no reasonable person could possibly prefer.
John Locke’s Version
In contrast to Hobbes’ concept of the hypothetical State of Nature, Locke considers the State of Nature as a state of perfect and complete liberty to conduct one's life as one best sees fit, free from the interference of others. So, the State of Nature is a state of liberty where persons are free to pursue their own interests and plans, free from interference, and, because of the Law of Nature and the restrictions that it imposes upon persons, it is relatively peaceful.
However, since in the State of Nature there is no civil power to whom men can appeal, and since the Law of Nature allows them to defend their own lives, they may then kill those who would bring force against them. Since the State of Nature lacks civil authority, once war begins it is likely to continue. And this is one of the strongest reasons that men have to abandon the State of Nature by contracting together to form civil government.
Jean-Jacques Rousseau’s Version

Rousseau for his part, begins with the most oft-quoted line “Man was born free, and he is everywhere in chains”. He argues that humans are essentially free, and were free in the State of Nature, but the “progress” of civilization has substituted subservience to others for that freedom, through dependence, economic and social inequalities, and the extent to which we judge ourselves through comparisons with others. Since a return to the State of Nature is neither feasible nor desirable, the purpose of politics is to restore freedom to us, thereby reconciling who we truly and essentially are with how we live together.[4]
The most basic covenant, the social pact, is the agreement to come together and form a people, a collectivity, which by definition is more than and different from a mere aggregation of individual interests and wills. This act, where individual persons become a people is “the real foundation of society”.[5]
John Rawls’ Version
Like Hobbes, Locke, Rousseau and Kant, Rawls belongs to the social contract tradition. However, Rawls’ social contract takes a slightly different form from that of previous thinkers. Specifically, Rawls posits that a just social contract is that which we would agree upon if we did not know in advance where we ourselves would end up in the society that we are agreeing to. This condition of ignorance is known as the “Original Position”. In the original position, “no-one knows his place in society, his class position or social status, nor does anyone know his fortune in the distribution of natural assets and abilities, his intelligence, strength and the like”.[6]
Rawls argues that any rational person inhabiting the original position and placing him or herself behind the veil of ignorance can discover the two principles of justice, Rawls has constructed what is perhaps the most abstract version of a social contract theory. It is highly abstract because rather than demonstrating that we would or even have signed to a contract to establish society, it instead shows us what we must be willing to accept as rational persons in order to be constrained by justice and therefore capable of living in a well ordered society. The principles of justice are more fundamental than the social contract as it has traditionally been conceived. Rather, the principles of justice constrain that contract, and set out the limits of how we can construct society in the first place.[7]
Next in this inquiry is the concept of a Constitution. A Constitution, in the modern sense of the term, may be understood in the light of the British Parliamentary tradition that had no notion that a single document could serve as a Constitution and it may, in contrast, be understood in the light of the American Constitutional tradition that has its foundation in a single codified text, which they aptly named as the Constitution of the United States of America.
Britain has taught America the core tradition of constitutionalism. The ancient Greek notion of politeia, a plan for a way of life, and the Roman concept of constitutio stand as the distant progenitors of the modern construction of the term.[8]
Donald S. Lutz in his book “The Origins of American Constitutionalism”[9] reasons that while the U.S. Constitution stands at the apex of American tradition, it remains simply another political document unless the people choose to use it in a certain way, as the summary of the political commitments and as the standard by which to assess, develop, and run the political system.[10] He regards the Constitution as a document of political founding or refounding and proceeds to discuss that the term “constitution” has to do with making or establishing something, giving it legal status, describing the mode or organization, locating sovereignty, establishing limits, and describing fundamental principles.[11]
Viewed in the light of the Social Contract Theories, the Constitution may be considered as the Social Contract itself in the sense that is the very basis of the decision to constitute a civil society or State, breathing life to its juridical existence, laying down the framework by which it is to be governed, enumerating and limiting its powers, and declaring certain fundamental rights and principles to be inviolable.
On the other hand, the Constitution, as a political document, whether embodied in a single code or scattered in numerous fundamental or organic acts, may be considered as the concrete manifestation or expression of the Social Contract or the decision to abandon the state of nature and organize and found a civil society or State.
However, one clarification is in order to avoid confusion or inaccuracy. A common denominator to all the above treatises on the Social Contract is that the social contract to form a civil society is a contract that is theoretically entered into between and among the people themselves. It does not include the State per se as a party. The social contract precedes the very existence of the State and the government. Having preceded the existence of the State and the government, the social contract could not have had the State or the Government as a party. It is therefore inaccurate or even a mistake to regard the State or the Government as a party to the social contract.
Therefore, the dictum in Marcos v. Manglapus[12] that “the Constitution, aside from being an allocation of power is also a social contract whereby the people have surrendered their sovereign powers to the State for the common good” should not be understood as a social contract between the people and the State or the Government. If it is to be consistent to the original thoughts and conceptions of the great social contract theorists, it must be understood as a social contract between and among the people themselves whereby they have agreed to form a State and surrendered certain powers to the State for the common good.

[1] G.R. No. 88211, September 15, 1989
[2] The Social Contract Theory (Internet Encyclopedia of Philosophy)
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] John Rawls, A Theory of Justice, Wikipedia article,
[7] The Social Contract Theory (Internet Encyclopedia of Philosophy)
[8] Charles H. McIlwain, Constitutionalism: Ancient and Modern, Cambridge, England, 1958, cited in Donald S. Lutz, The Origins of American Constitutionalism, Louisiana State University Press, 1988, p. 9
[9] Louisiana State University Press, 1988
[10] Ibid., p. 3
[11] Ibid., p. 21
[12] G.R. No. 88211, September 15, 1989