Mainstream WeeklyThe 4th July will mark the quarter Millennium of American Independence.The Declaration of Independence started with following ringing affirmation:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Government is instituted among Men, deriving their just powers from the consent of the governed.”
The American independence and the French Revolution, occurring in a span of 13 years, were two momentous epochs in the history of evolution of democracy. Both events marked the complete rupture from the old order, ruled by Monarchy, in all parts of the world. The idea that the head of the State would be elected by the people was astonishing in view of calcified monarchical order. The independence of America on 4th July, 1776, however, should not be seen in isolation, but it’s significance can be fully appreciated only by structurally linking it to the French Revolution, which started on 14th July, 1789, with storming of Bastille, and the framing of the US Constitution in the year 1787, and the subsequent incorporation of the Bill of Rights through historic first ten Amendments in the US Constitution in 1791. The perdurable nature of legacy of the American Independence and the French Revolution lies in articulating of the first principle of Constitutional Democracy: “that all power is derived from the people, and their happiness is the end of government”.
Though the seed for idea of liberty was sown in historic declaration of ‘Magna Carta’in the year 1215 in England, another pivotal moment was the revolution of 1688, triggering the disquisition on liberty through the writing of English Philosophers, especially John Locke, and later on by John Stuart Mill and others. Though democracy was functional in England, and the House of Common was discharging its legislative function reasonably independently, its head of State remained King and Queen and the people were mere subject. It is the American independence which transformed subject into citizen.
One of the crowning ironies is that theorization on the liberty and rights by English Political Philosophers acted as a catalyst for American Independence. In this context, the writings of two political thinkers, Thomas Paine and Richard Price, had consequential impact. Thomas Paine wrote his famous treatise “Common Sense,” which was devastating attack on monarchy. He was invited in the US by Benjamin Franklin, who later became one of the most distinguished framers of the US Constitution. The first book of Thomas Paine triggered the war of independence, and his second and monumental work, ”Right of Man” cast its impact on shaping of the Bill of Rights through first ten amendments in 1791. In view of this critical role attributed to writings of Thomas Paine in the American Independence and the framing of the Constitution, he was tried in English Court, and convicted and sentenced, but somehow managed to escape and fled to France, and thereafter went to the US, where he died.
Ever since watershed event of the American independence, the concept of rights and citizenship spread in other parts of the world and soon became the reigning ideology of all democratic countries. With the dismantling of monarchy, the notion of duty cast upon the subject was replaced by the concept of rights guaranteed to citizens. Thus, the America became the first constitutional democracy in the history by becoming the Republic and transforming the subject into citizens with enforceable guaranteed individual rights.
There is no parallel to the American War of Independence and French Revolution in last quarter of millennium. It is the slogan of “Liberty, Equality and Fraternity” emanating from the French Revolution that shaped not only the concept of the Bill of Rights in the US Constitution, but also subsequent declarations, such as, passing of the Universal Declaration of Human Rights by newly created the United Nation in 1948 after the end of second World War and the Indian Constitution.The echo of French Revolution resonates resplendently in the Preamble of the Indian Constitution.
After the independence in 1776, the Constitutional Convention started in Philadelphia for framing the Constitution. There is remarkable congruence among the constitutional mavens that the kind of Philadelphia Convention had no parallel for a long period, and only after the gap of 170 years, such a summit took place in India, when the Constituent Assembly, which lasted for 3 years, framed its sublime Constitution. In the Philadelphia Convention, a very healthy and sharp debate took place between two most distinguished framers, Madison and Hamilton. Hamilton argued for strong Presidency, whereas Madison was in favour of strong Congress which can control the President. Madison in the Constitution-making debates argued that “accumulation of all powers, legislative, executive and judiciary, in the same hands is the very definition of tyranny”--- a view that has become theme song of Constitutional Democracy since then. Ultimately, it was decided that the power of the President can be interrogated by two-third majority of the Congress, and if President turned out to scoundrel, he may be impeached by a special majority in the Congress.
Yet another complete break from the old monarchical order was the introduction of the concept of separation of powers in the US Constitution through the instrument of checks and balances. The doctrine of separation of the powers was propounded by French Philosopher Montesquieu, but it was the US Constitution that concretised it by demarcating power among the President, the Congress and the Supreme Court, and all three organs were supreme in their earmarked sphere. Now theory of separation of power is integral to any notion of democracy.
The declaration of American Independence and the French Revolution, however, were not immune from the pangs of teething troubles. As the old system of monarchy, rested on the duty of the subject, was ruptured, the new system started on tabula rasa without any existing institution. Apart from the absence of institution, there was structural flaw also in the US Constitution, where right to franchise was guaranteed only to few white males and that too on the criteria of property. The Blacks were kept out of radar of democracy and hideous practice of slavery was allowed to continue. In fact, all the leading figures of the era, including the first President, George Washington and one of the leading framers of the American Constitution and its third President, Thomas Jefferson, owned thousand slaves. It is these structural weaknesses that gave rise to the civil war in 1860s, triggered mainly by the call for abolition of slavery by one of the greatest President of the US, Ibrahim Lincoln. The slavery was abolished and the guarantee of equality and due process were introduced in the US Constitution through historic 13th and 14th Amendments respectively after the Civil War and the tragic assassination of Lincoln. It is the emancipatory 13th Amendment that transformed the Blacks from the mere property into person.
Likewise, clearing all detritus of monarchy and beginning on the clean slate in France after the revolution led to anarchy, and eventually, paved the way for emergence of Napoleon. Though Napoleon was a dictator and an imperialistic, yet he was the great institution- builder and institutions built by him stood France in good stead.
Coincidentally, 250 anniversary of the American Independence is taking place when democracy is backsliding, propelled by the alarming rise of toxic combination of transnational companies-driven neo-imperialism and ethnic/racial politics. The lever of financial power is controlled by less than 100 multinational companies, which have emerged as more powerful than state. This has accentuated the inequality, and is fostering cynicism with democracy. Therefore,the occasion for 250th Anniversary of the US Independence, no doubt, deserves celebration, but also demands introspection, especially after Donald Trump became the President of US in 2016 and converted the office of Presidency into imperial presidency without any interrogation by the Congress.
As happened in India, when Constitution was framed by galaxy of geniuses at a time when the political persons were men and women of unimpeachable character and vision, the US framers, too, debated the power of the Presidency in the light of sterling character of its first President, George Washington. With hindsight, it is crystal clear that on this aspect they proved out to be myopic. After completing the first term, George Washington was requested by all to continue as the President, but he declined the requests and set up a very healthy precedent. It is this example of the first President, George Washington which lulled the framers of the Constitution to believe that future presidents would be of the same stellar character.
The hope and optimism envisioned by the distinguished framers of the US Constitution is dashed with the arrival of Trump in the White House, and the framers would be astonished by the breadth of executive power in the Trump’s hand, as insightfully argued recently by Sai Krishna Prakash, a Law Professor at the University of Virginia. Prof.Prakash goes on to add that “They (framers) failed to anticipate a development that would make impeachment improbable: The rise of Political Parties” --- an argument I have been raising from the long time in Indian context that in theory the Parliament controls the Executive, but in practice, it is the executive, on the strength of its party’s majority, controls the Parliament. In India, this is further aggravated through Tenth Schedule (popularly known as ant-defection law) incorporated in the Constitution by 52nd Amendment in 1985.
It is the stranglehold of political parties, with sharp rise of polarization, – not only in the US, but in all parts of the World, including India – that has resulted in eroding the authority of the Legislature and its power to interrogate the executive. Whether it is the Iran War or imposition of Punitive Tariff, Trump has bypassed the Congress with impunity, and Congress cannot interrogate him by flexing its muscle because half of the Congress is in the President’s pocket. At the occasion of 250th Anniversary, what has become desideratum is the restoration of the power and authority of the Congress to act as a counterweight to the executive overreach.
Presently, democracy, grounded in rights conferred on citizens, is being taken as a granted, but it requires nourishment, especially in view of menacing rise of far-right politics, grounded in ethnicity, cultural majoritarianism, and white supremacism. When the US Constitution was framed, one of its distinguished framers, Benjamin Franklin wrote that “we have created the Republic; can we keep it?” Today Liberalism, Democracy and Constitutionalism have come under intense strain, and the occasion desiderates to renew our commitment to preserve it. The saying that “eternal vigilance is the price of liberty” needs internalisation by masses in all parts of the world.
The American Independence marked the inauguration of constitutionalism, and the Constitution framed thereafter, is the oldest Constitution still in the force in the world ---- a great, enviable and exceptional achievement –- in light of the finding in the compilation, carried out after the meticulous research, by three American constitutional scholars: Zachary Elkins, Tom Ginsburg and James Milton that average life-span of the Constitution is 17 years! The commemoration of the American Independence, leading to the establishment of first Constitutional Democracy,has enduring legacy and demands entrenchment through renewed commitment to deepen democracy by diffusing the structure of power and making democracy more equitable, inclusive and humane.
(Author: Vijay Kumar, Senior Advocate, Supreme Court Of India.
The author of book : “The Theory Of Basic Structure : Saviour Of The Constitution And Democracy”)