Assume Hitler will govern: The most important (and ignored) principle of constitutional design
6 November 2023
Imagine that you find yourself endowed with the power to draw up a new constitution for South Africa – or whatever other society – but with a significant catch: Adolf Hitler will be resurrected, with all the quirks and plans he had in the 1930s and 40s, and that he will assume the position in the government you design that he believes will best enable him to see those plans through to fruition. You will not govern under your constitution.
What do you do?
This is, of course, a thought experiment. No one person ever has the power to unilaterally design a constitution for a society, and Hitler is never coming back from the dead. But history’s most important function is to teach us lessons, and very few historical periods have been so full of lessons as the early twentieth century.
Humanity continues to ignore many of these lessons at its peril.
A system under which bad men can do least harm
This thought experiment is meant to illustrate to people involved in constitutional planning – government law advisors, policymakers, social figures, opposition leaders, and other ‘influencers’ – that they should engage with the process on the assumption that they will not govern.
Yet, the prevailing mindset is that they will in fact govern, which leads to their trying to incorporate as much of their ideology – and all the usually awesome powers government will need to make it a reality – into their constitutional proposals.
This is why – quite unfortunately – politically compromised constitutions, like South Africa’s, are usually the best in practice. They are best because they do not allow any one constitutional planner to design a constitution for themselves. But the reason it is ‘unfortunate’ is that these constitutions are not always coherent when viewed from the perspective of constitutional theory, and this lack of coherence weakens them.
So, for example, the compromised South African Constitution is leagues better than what the African National Congress would have drafted for themselves. But because it is compromised, it appears at times quite schizophrenic. For example, it dedicates itself to non-racialism but also includes provisions that are explicitly racialist; and it countenances strong property rights but seemingly allows redistribution at the same time.
It would be better if the would-be constitutional designers did not naïvely assume that they alone were destined to govern under whatever they put together, but rather that their greatest enemies were. Compromised constitutions would then no longer be the best, because constitutional planners from all ideological persuasions would design texts that respected the ugly realities of political governance.
Liberal thinkers have been at the forefront of advocating this approach.
Summing up the work of ‘Adam Smith and his contemporaries’ – naming Edmund Burke, Alexis de Tocqueville, and others – the great FA von Hayek said in 1945:
‘[T]he main point about which there can be little doubt is that Smith’s chief concern was not so much with what man might occasionally achieve when he was at his best but that he should have as little opportunity as possible to do harm when he was at his worst. It would scarcely be too much to claim that the main merit of the individualism which he and his contemporaries advocated is that it is a system under which bad men can do least harm.’ (my emphasis)
The system that Hayek is referring to is constitutionalism, or what today is more casually called ‘limited government.’ This is liberalism’s contribution to jurisprudence, and it characterised the most notable and arguably first constitutionalist initiative: the founding of the United States of America.
Assume Hitler will govern
What are the practical implications of this limited-government approach? Let us return to our thought experiment: you are designing a constitution for Hitler to govern under.
Constitutional circumvention
Probably the first thing you have to assume is that the tyrant is going to want to circumvent the constitution right out the gate – as Adolf Hitler, of course, did.
This means you have to design institutions that can withstand constitutional circumvention by opportunistic politicians. This in turn means no ‘suspension clauses’ that allow governments to find emergencies as pretexts to expand their power. It also, potentially – and this is often a difficult pill for democrats to swallow – means that no politician or political party that is clearly opposed to the constitution should be allowed to lawfully campaign under it.
Watchdog institutions that are independent of the political branches – like, but not limited to, the courts – are also worth considering. These would include state institutions with coercive power, but more importantly, must include institutions that exist outside of the state.
In this respect, the constitution should make roomy allowance for civic institutions to operate without interference, especially if they are formed specifically to uphold the constitution.
Related to this item, you must also assume that the charismatic Hitler will try his best, and perhaps succeed, in convincing large swathes (perhaps even a majority) of the population to reject the limited-government constitution. This might especially occur during ‘difficult times’ – governments and opportunistic personalities love a good emergency to justify expanding their power!
The constitution should not merely hope for public support for its effective functioning. Instead, it must take cognizance of human nature and incentivise people to support it. The start to this might be to grant communities a very high degree of self-governance which they will be very reluctant to let go of. People need to be given skin in the game of upholding the framework of limited government.
Powerful institutions
The next thing you must assume is that, if Hitler sees he cannot circumvent the constitution per se, he will try to find the institution granted the most power in the constitution and use that to pursue his ends, potentially circumventing the constitution gradually.
People tend to romanticise the positions of head of state and head of government as ideally being occupied by some kind of social ‘leader’ who the nation should look up to. This person sets the national agenda and sets an example for citizens. As Afrikaner republican theoreticians of the previous century often wrote, this must be a Christian volksleier (‘
Banish the thought!
Do not allow any position in the constitutional plan to be so powerful that it potentially eclipses any other institutions. No officeholder in government should be elevated to being ‘the leader’ of the country or of society.
Strictly define what every institution may and may not do, and design other institutions that very explicitly ensure that those institutions stay in their lanes. Constitutions should be overwhelmingly focused on checks and balances and the diffusion of power, not only in idyllic peacetime, but also and especially under the aforementioned ‘difficult times.’
Embrace limited conflict!
This is potentially the most contentious point in this article given people’s inherent conflict averseness, but I think it bears emphasis.
Checks and balances and the diffusion of power is all about conflict – or, to adopt a nicer term, ‘competition’. This is why the German-South African notion of ‘cooperative federalism’ is a very weak constitutional framework compared to the American ‘competitive federalism’. Centres of power in society must be set up in opposition to – not in cooperation with – one another.
People fear the spectre of civil wars and bloodshed so much that they are willing to embrace tyranny as an alternative. Too much conflict or constitutional ‘competition’, in many people’s minds, is what led to the American Civil War. They believe the central American government should simply have been able to decree the end of slavery without the states being able to do anything about it, fatally forgetting that such an arrangement would simultaneously have ensured the central American government would have been able to maintain slavery without the states having been able to do anything about it.
Of course, we should want to avoid bloodshed, but not under all circumstances. Although such sentiments are out of vogue nowadays, Thomas Jefferson had a point when he explained that, ‘The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.’
This is not bloodthirst, but instead a realistic understanding that conflict is sometimes – perhaps often – the most appropriate means to secure freedom and resist oppression. Strongly worded letters, petitions, or elections must be first resorts, but do not always deliver the imperative results.
What does this entail?
Firstly, the inalienable, inherent human right of individuals to possess weaponry to protect themselves with, must be guaranteed. The only limitation I can envision here is that the weaponry must be of a defensive nature.
Secondly, any good limited-government constitutional design must include the right of rebellion. This is the part of the social contract that people like to pretend does not exist.
Thirdly, as part of the system of checks and balances, the diffusing institutions must have the right to establish and maintain their own security and militia institutions. This means that the courts must finally be granted some level of parity with the executive, and must have authority over their own enforcement branch. It means that provinces and municipalities must be allowed to establish subnational security and intelligence services. It means that voluntary militias must be formable, and other civic institutions like political parties must be allowed their own security entities.
I am not saying this blasély. Of course, all of this must be strictly (but reasonably) limited by law, and each of these armed institutions must themselves be limited by other checks and balances. Entities and systems that ensure nobody is placing themselves on a war-footing can be introduced, and those who utilise (or simply threaten or attempt to utilise) these defensive institutions offensively should face the highest penalties available under law.
But the key message here is that no good constitution worth the name must be seen to prohibit the right of the population or any segment of it to individual or collective self-defence, or emasculate any institution (like the courts) expected to play an important role in the diffusion of power.
Without embracing, to a limited extent, the potential of conflict, ‘checks and balances’ are nothing more than a romanticised, theoretical concept. ‘Checks and balances’ mean nothing when the army has captured the national broadcaster and is announcing a coup. ‘Checks and balances’ mean nothing when the central police service has a monopoly and can simply refuse to protect opposition-controlled provinces and municipalities.
‘Non-partisanism’ and ‘professionalism’ are fantasies that only see some practical manifestation in homogenous, high-trust societies. While we must always strive for a high degree of professionalism in the civil service, we nonetheless need much more than empty appeals to ‘non-partisanism’ to ensure theoretical checks and balances are expressed in reality.
The limited-government approach works for everyone
This is by no means an exhaustive list of things that must be borne in mind during the process of constitutional planning. And there are likely also other ways than what I have proposed, to give effect to the things we must assume a tyrant will do.
But the best thing about the limited-government approach is that it does not force anyone to adopt an ideology that they do not support.
Even if you were a committed communist, or a card-carrying member of the Nazi Party, what would you put in a constitution if it was guaranteed that your worst enemy would govern your country (and by extension, you) under it? Nobody is asking you to drop your communism or drop your Nazism. You are only being asked to write the constitution as if there was no chance of your being in power – which is always going to be the case at some point.
Martin van Staden is the Head of Policy at the Free Market Foundation. He is pursuing a doctorate in law at the University of Pretoria. For more information visit www.martinvanstaden.com.
This article was first published by Daily Friend on 26 October 2023
