The bingo amendments

by Micah on July 29, 2003

I think Henry’s post below about Will’s arrogance concerning EU constitutionalism is spot on. I was only planning to comment (again, see below), but I can’t resist piling on. Noting that the EU draft constitution contains language saying that “preventive action should be taken” to protect the environment, Will asks, “what in the name of James Madison is it doing in a constitution?” Of course, the obvious answer is that a constitution is, in part, an aspirational document. And aspiring to protect the environment is a legitimate goal of every state—and not merely a fleeting policy preference.

But, in fairness to Will, surely he could have picked some better examples. To find some, he might have turned to American state constitutions. Here are two of my favorites. The Oklahoma state constitution specifies the flashpoint of kerosene. But if EU politicians think that’s a bit too mundane, they can always look for inspiration to the 287 sections and 706 amendments of Alabama’s constitution. In particular, they might want to check out Amendment 612: Bingo Games in Russell County, or, of course, the bingo amendments for Jefferson, Madison, Montgomery, Mobile, Etowah, Calhoun, and St. Clair. Forgive me for leaving off the links for Walker (549), Covington (565), Houston (569), Morgan (599), Lowdnes (674), and Limestone (692) counties. If you read the Alabama state constitution carefully, you’ll find that you’re allowed to play bingo in those counties, too. Oh, and don’t forget about the the City of Jasper.

{ 11 comments }

1

back40 07.29.03 at 7:16 am

Alabama, Oklahoma, EU. Makes sense.

2

micah 07.29.03 at 7:45 am

Makes perfect sense, actually. Will wants to hold up the American constitutional experience as a model for emulation. But that experience is not exhausted by the federal constitution. It is intimately linked to enduring–and lengthy–state constitutions. So it’s not enough for Will, and other American exceptionalists, to say that many years of writing constitutions has given Americans valuable experience (even though that may well be true). State politicians have also been at it a long time, and, while there are some successes, there are also some spectacular failures. Why no commentary on that? What’s different about state constitutions that they don’t deserve the same type of criticism that Will is leveling at the EU? Note that, even if there are important differences (and I’m sure there are), Will doesn’t distinguish between state and federal constitutions. He just says: “A proper constitution does not give canonical status, as rights elevated beyond debate, to the policy preferences of the moment.” I think Henry’s right to suggest in his post that Will doesn’t display much knowledge of the EU, but he also isn’t showing much concern for the full extent of the American constitutional tradition.

3

back40 07.29.03 at 9:50 am

You seem confused Micah. Do you understand the concept of subsidarity?

Briefly, the subsidarity principle gives competences (powers) to the lowest possible level. The union constitution is not cluttered with many and various regional preferences, they are left to those regions. So, in the US you find regional constitutions with items peculiar to the local culture but the Union constitution deals only with issues that apply to all regions.

“State politicians have also been at it a long time, and, while there are some successes, there are also some spectacular failures. Why no commentary on that?”

Perhaps you understand the issue better when you grasp the concept of subsidarity?

“Will doesn’t distinguish between state and federal constitutions. He just says: ‘A proper constitution does not give canonical status, as rights elevated beyond debate, to the policy preferences of the moment’.”

He was only speaking about Union constitutions, not regional constitutions since they are very different things. The subject was the EU constitution and the particular issues related to Unions, such as the EU and the USA. To conflate state and federal constitutions is to miss the essence of subsidarity and the specific issues involved with establishing a Union.

When a Union is formed the new regime is in some ways weaker, and more remote, than the regime they subsume or replace. The effect of this is to increase the desire for independence in regions. In the UK for example Scotland and Wales have renewed interest in local control. Flanders, Wallonia, Catalonia, Lombardia, etc. etc. are all interested in more local control.

Subsidarity is not just an administrative convenience, a way to keep the Union constitution tidy by moving local issues to local documents, it is recognition of the reality created by Union and a mechanism for coping with the issues created by union.

“I think Henry’s right to suggest in his post that Will doesn’t display much knowledge of the EU, but he also isn’t showing much concern for the full extent of the American constitutional tradition.”

Perhaps thinking through the subsidarity issue will help you and Henry gain some understanding of Will’s article. It’s brief, deals only with a few things, but is consistent with more detailed critiques. You may disagree with his criticisms and Will may in fact not be well informed but his article is a brief expression of a thoughtful and complete analysis. I think he stole it, but that’s what journalists do.

You might research the history of other unions such as USSR and Yugoslavia for insights into subsidarity. Switzerland, Spain, Italy and Germany are relatively new nations assembled from bits and pieces of older polities too and so might give insight.

4

micah 07.29.03 at 3:20 pm

Two points, I suppose. Will doesn’t so much as hint at the difference between federal and state constitutions. In fact, his little joke about the French constitution suggests that he thinks his view applies to all constitutions. Of course, there’s not much space in a column, but, then, it doesn’t take much to make this simple point (as I did in passing above–though you seem happy to ignore it). At any rate, you may be attributing an argument to Will that he doesn’t make–and perhaps doesn’t even want to make.

Second, so far as I can tell, you actually haven’t supplied an argument for why state or local governments should use constitutions for low level administrative purposes. For example, an appeal to the subsidiary principle doesn’t help us understand why Vermont’s constitution is 8000 words long, and why Alabama’s is 300,000. There are obviously very different views at work in these states about the purpose of having a constitution. (I haven’t heard anyone clamoring for a massive overhaul of Vermont’s constitution.) Allowing for regional differences, there’s still an argument to be had here about the nature of constitutions–both state and federal.

5

jacob 07.29.03 at 9:27 pm

Back40: What’s the difference between “subsidarity” and federalism? Is there one?

6

back40 07.29.03 at 11:24 pm

hmmm, good question, hard question, but I’ll give it a go.

Federalism is one method of implementing the principle of subsidarity.

Subsidarity asserts that authority and power exist at the lowest level and are partially delegated to the center. This can be understood in contrast to devolution which asserts that power belongs to the center and can be delegated or revoked at will. Little endian, big endian.

7

nick 07.30.03 at 5:05 am

Subsidarity asserts that authority and power exist at the lowest level and are partially delegated to the center.

Gosh, what a coincidence then that the last decade of EU negotiations has been based upon extending the principle of subsidiarity, particularly through regional governance. In fact, even the oh-so-centralised French endorsed this in their most recent constitutional revision: ‘Son organisation est décentralisée.’

8

back40 07.30.03 at 5:43 am

Actually, it’s been an issue for far longer. The Germans are especially keen about subsidarity and see their federal system as the guardian of it. The Swiss are notable in this regard as well.

The UK has had a somewhat more confused position that favors devolution it seems. The French are more like the British in this regard. Both have made efforts to devolve power to the regions but have a hard time with the idea of subsidarity. Devolution and decentralization are not the same as subsidarity.

9

Sandy 07.31.03 at 7:26 pm

About that Alabama constitution, I think the same thing happened in Texas. I just happen to have been through several texas history classes. The Texas constitution dates back to 1886 (approximately). Everyone knows that it is a backward looking and obstructionist document. Back then most residents were resentful about being on the losing end of civil war. Therefore they were punished during the “reconstruction”, where the governor and legislature were tightly controlled by the federal government. When the reconstructionists (carpet-baggers)left the South, everyone made sure that the governor and the state legislature didn’t have the authority to do anything on their own initiative. And also that revising the constitution would be more difficult than ever before.

This is how constitional excrement happens. Being a modern american, I’d say that people angry at “yankee agressors” write bad constitutions. But, at the moment, it’s really up to you Europeans to discern the lessons of history.

10

Ken 08.02.03 at 2:44 am

“When the reconstructionists (carpet-baggers)left the South, everyone made sure that the governor and the state legislature didn’t have the authority to do anything on their own initiative. And also that revising the constitution would be more difficult than ever before.”

Sounds like the same thing that Madison, Jefferson, et al were up to at the Federal level. No single branch of government should have the power to do anything of their own initiative.

I forget who said it, but someone addressed the issue of overspecificity in constitutions by saying “The word ‘asphalt’ should not appear in the constitution”

11

nokia 01.13.04 at 9:57 pm

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