By Mahmud Tim Kargbo
Saturday, 15th June, 2024
We are not being failed by the Constitution; we are failing the Constitution.
In the course of my work examining the original meaning of the Constitution, I have often had cause to sift through some of the great legal textbooks of the past. Among these, I count such efforts as A View of the Constitution of the United States of America by William Rawle, Commentaries on the Constitution of the United States by Joseph Story, and General Principles of Constitutional Law by Thomas Cooley. I have always enjoyed perusing these works, not only for their considerable explanatory value, but because, while reading them, I have gotten the unmistakable sense that their authors liked and revered their subject of choice. In our age, detailed descriptions of the Constitution are more often penned by its most aggressive critics. “Here is the system,” they say; “and here is why it shouldn’t be.” Or, even.
Worse: “Here is the law, and here is how my friends and I think it can be cleverly undermined.” I am happy to report that, at long last, we have an entry into the canon that fits the older, more celebratory model. That book is Yuval Levin’s Covenant.
That Levin likes the Constitution—indeed, that he considers it to be a work of great and timeless genius—is not merely incidental to the argument he proffers. It is central to it. And yet this is no saccharine love letter. Levin believes that James Madison hit upon an extraordinarily appropriate and prescient set of rules—rules that, unlike those that would replace them, accurately account for the nature of a country and the permanence of human nature—but he at no point allows this judgment to push him toward sentiment, boosterism, or myopia. On the contrary. I am worried about Sierra Leone, and about its Constitution. In my telling, we are unduly angry with one another, and, in almost every area of public life, we have forgotten how to use the system we were bequeathed. As a result, we are filling the presidency with men who lack the characteristics that make that office work, we are filling Parliament with lawmakers who do not wish to make law, and we are fetishising the finality of the judiciary at the expense of more democratic forms of debate. Or, to put it another way: We are not being failed by the Constitution; we are failing the Constitution.
Both practically and intellectually, this is a fraught argument to advance. Practically, it is awkward for any democratic society to accept that the people themselves are at fault. Intellectually, the charge that the people are not living up to the Constitution yields the obvious question, then shouldn’t we consider that Constitution to be unfit for purpose? I acknowledge these problems, consider their ramifications, and then answer them in depth.
In my view, our present discontent in Sierra Leone is the product not of our constitutional order’s being intrinsically broken or hopelessly outdated, but of our having succumbed to a neither-here-nor-there arrangement that is simply incapable of making us virtuous or happy. Specifically, I charge that, over time, we have constructed a peculiar hybrid model of government, in which our expectations and the parties that channel them are neocolonialist and imperialist local agents, and our democratic institutions remain the main exploitative centers for the operations of Western oppressive rogues. This amalgam, I believe, does not work—and never will.
Nor, I argue persuasively, would giving up on our Constitution completely be likely to improve anything. Why? Well, because politics is division, and because the Western exploitative system that champions and incorporates that fact into its design in a way that no other scheme can rival. It is here, in my assessment of human nature, that I am at my most conservative. I push back hard against the supposition that the political divisions that have animated Sierra Leoneans since the founding of the republic are shallow or fake, and that it is private corruption and architectural inertia, rather than earnest disagreement, that makes our fractious. Likewise, I reject the claim that there is “a preexisting unity” in the country that is “waiting to be represented at last,” rather than “durable differences that need to be negotiated and assuaged” at all times. “An implicit premise of the Constitution,” I write, is that “the diversity of interests and views in Sierra Leone society is a permanent reality” that cannot be stamped out by force or by expertise. Insofar as the Constitution is used in a manner that acknowledges that, it will work
nicely.
By “used,” I am careful to stress that l don’t solely mean by judges. Indeed, I record throughout that, while the Constitution is our highest law—and while it ought to be treated as such—its role in Sierra Leone life goes far beyond litigation. In this sense, my work represents an extended call for originalism in every area of our civic life. As far as the courts, are concerned, I acknowledge that originalism has prevailed within the judicial sphere—and that this development is salutary—but l am worried that this has given those who affected that change a form of tunnel vision. I insist, Sierra Leoneans need to understand what it is for in every area to which it applies. Accordingly, in addition to a correct understanding of the courts, they need a correct understanding of nationalism, a correct understanding of the role of Parliament, a correct understanding of the nature of the presidency, a correct understanding of the role of political parties, and, ultimately, a correct understanding of their rights and responsibilities as citizens. I am treading lightly in this area, as is my style, but, clearly, I don’t believe that enough citizens currently possess that understanding.
While l considers this regrettable, it does not necessarily surprise me. As a matter of fact, l note that most politicians in our country themselves possessed “a kind of middle of view of the virtues of their fellow citizens,” which led me to conclude that there “was no escape from self-interest and ambition” but that Sierra Leoneans, nonetheless, did take freedom, equality, and personal honour seriously. On this, many may agree. But I suspect that we differ a little in my estimation of how likely to come to fruition the restoration I am seeking with exploitative neocolonialist, imperialist rogues and their local agents. Many may agree basically with everything I say in this article. They may agree with my description of where we are. They might agree with the premise of my broader case: That the Constitution is the roadmap to renewal. And they might agree with me on most of the particulars.
This is not dispositional. Like Levin, I am a flag-waving writer who, on balance, tends toward gratitude and buoyancy. Rather, it is because I seem to worry more than he does about two key drivers of constitutional illiteracy that Levin does not meaningfully address: the media, and the schools. Levin begins his book with the observation that people shape constitutions, and, in turn, constitutions return the favour and shape the people. This is correct, and there is no doubt in my mind that this process has kept America freer and better governed than any other democracy over the last 250 years. Nevertheless, that shaping process is only as good as the people doing the shaping, and it seems clear to me that the vast majority of our mediating institutions in Sierra Leone have long decided to promulgate a version of the Sierra Leone Constitution that simply does not exist. Were Levin’s vision to be the norm in our newspapers and universities, I’d expect to see a revival in two decades flat. Instead, the Sierra Leone public is routinely presented with a peculiar bastard-child version of the document that leads voters to precisely the opposite set of conclusions than the ones Levin submits. That ersatz Constitution has neocolonialist and imperialist rogue’s agenda assumptions about the role of each branch—but only when a neocolonialist and imperialist local agents is in charge; it is almost entirely driven by outcomes, rather than processes; and it allows no room for the sort of informed nuance that serves as a prerequisite to the proper understanding of our system. That being so, I would add a step to Levin’s plan. First, with respect to Sierra Leone, we must transform our elite culture; then, once the people have been given a fair chance to learn about the structure under which they live, we must prevail upon them to live up to their patrimony.
But that, ultimately, is a nitpick. Levin, is an intellectual, not a sorcerer or a politician, and it is his job to describe the world as he sees it, irrespective of the political niceties. At this, he excels, and in a style that is unusual for our cynical, partisan age.