Constitutional rebellions

Should constitutions include an official principle of the people’s right to rebel against their governments?

There has always been a bit of (or a lot of) tension between those who believe the right to revolt is natural and inalienable at all times versus those who believe all transitions must be orderly, legal, and constitutional.

As a pressure valve for self-preservation, the latter camp tends to adopt constitutional systems (formally or informally) that allow for regular turnover, either by frequent election or by scheduled leadership changes. Britain’s modern parliamentary system, for example seeks to keep rebellion in check by making it relatively easy to bring down governments that are messing up, via orderly no confidence votes and early elections. In another example with similar motivations, the current Chinese government leadership has five year terms now between internal party elections and has age limits, to guarantee turnover.

The U.S. model tends to release the pressure through a combination of semi-frequent elections (though no early elections for the presidency, ever) and very formalized removal procedures for misconduct. So, civilians can remove other civilians constitutionally from power and transfer the power down an established chain without elections, and it’s not a coup d’état.

Still other systems allow for less turnover but implicitly favor mass demonstration as the best way to express opposition. The various French Republics, descending from the awkward marriage of a powerful central executive (originally the king) and multiple revolutions, managed to arrive at a strange compromise under De Gaulle’s 5th Republic after 1958. That compromise was to have (more or less) a nearly omnipotent president elected to seven year terms (with more than one term permitted), almost no formal way to express opposition (e.g. no early elections, weak parliament, etc.), and then to just continue to let unions, students, and other protesters go wild in the streets (or at least go on mass strikes) when they became sufficiently furious over something. As in all 15 French constitutions, the one implemented in 1958 included a “right to resist oppression.” This compromise setup posed various problems for the 5th Republic, but it’s certainly been more stable and stronger than the third or fourth republics, which basically collapsed under their own inefficacy. (Both the first and second ended in fluid transitions into dictatorship.) Eventually, though, they did moderate it down to five year terms at the beginning of this century.

In the United States, of course, there’s been lots debate since 1776 (or even before) about whether (and when) people can overthrow their governments. Through repeated use of military force domestically by the government, as well as consistent court decisions, the consensus has been achieved that it’s pretty much not ok to overthrow or take up arms against the U.S. government… unless you count that last time when they waged a war of separation against the British Empire and various loyalist populations. So, had any of those later insurrections — whether in Appalachia, Western Massachusetts, the Confederacy, or among the American Indians — prevailed, I guess it would have been a different story. (And indeed, that one uncomfortable, local armed coup d’état in North Carolina in 1898 went largely ignored by the U.S.) But at the very least, it has been made clear that there is no legal or constitutional right to overthrow the government of the United States, even if perhaps there is a Jeffersonian-style “natural” right to give it your best shot and see what happens.

But there’s also a very curious compromise in a number of countries, occupying a middle ground between the “transition must be legal” faction and the “revolution is a natural right” faction. A study by Daniel Lansberg-Rodriguez, Tom Ginsburg, and Emiliana Versteeg (discussed here after the recent Thailand coup) found that 20% of countries today (up from 10% in 1980) with formal constitutions in effect have adopted constitutional provisions explicitly protecting the right of the people to rebel, revolt, or otherwise topple their governments. Some of them are as vague as the French provision I mentioned above. Others, under the Turkey model, are much more explicit in carving out a role for the country’s military to intervene against the civilian leadership when it oversteps (or is perceived as overstepping) against the people or “democracy” or secularism or whatever.

While Thailand’s erstwhile right to resist allowed only for “peaceful resistance,” other countries like Benin, Ghana, and Cape Verde have gone further: they explicitly authorize the use of force or even upgrade the “right” to a “duty” or “obligation.” Honduras’s constitutional “right of insurrection” has spanned (and likely spawned) several constitutional rewrites since its debut in 1957. When the Honduran congress, backed by the country’s armed forces, removed President Manuel Zelaya from power in 2009, the right was cited as a justification for his ouster. Yet when Zelaya himself sought to harness it to stage a comeback, the requisite mobs failed to materialize.

Other provisions just generically say anyone can overthrow an abusive government or resist orders…and sometimes with good reason:

these clauses may tell us more about a country’s past than about its future. Sometimes, countries introduce the right to resist into constitutions following a crisis in which people followed the orders of national authorities, to tragic effect. Rwanda’s first post-genocide constitution, for instance, grants each citizen “the right to defy orders received from his or her superior authority if the orders constitute a serious and manifest violation of human rights and public freedoms.” Similarly, the West Germans adopted a right to resist—a provision that survived unification and remains in Germany’s constitution to this day.

Quite often, the right appears in constitutions written in the immediate aftermath of a military revolt or popular revolution. Such “founding” texts frequently include language meant to justify the overthrow of the old order as well as provide a blueprint for the new.

In all of the varieties of rebellion provisions, the system creates a legal, constitutional way of removing a (usually legally and constitutionally elected) government without going through the usual formal channels. It’s like a weird loophole in the rule of law where the law carves out a provision to to circumvent the rule of law but still not circumvent it (much in the way that some constitutions create provisions for the use martial law and the constitutional suspension of the rest of the constitution).

As you can imagine, such provisions for right to rebellion tends to create a lot of problems. First is the justification issue:

Rights to resist are usually predicated on certain conditions (an interruption of the constitutional order, an illegitimate seizure of power, the violation of individual rights, etc.). Yet such triggers are by nature highly subjective.

That means any old abuse — or even policy you disagree with — can be construed as grounds for toppling the government without formal procedure.

Second is the cyclical, you-brought-this-upon-yourself-you-fool issue:

Step 1: A government with questionable democratic credentials takes administrative control following a coup or revolution, or else is democratically elected after previously failing to seize power through one of the above. Soon afterward, these rulers consolidate their power by drafting a new constitution—one which includes a “right to resist,” ostensibly meant to serve as ex-post-facto validation of their past attempts to overthrow their predecessors.

Step 2: In Faustian fashion, the proviso becomes a thorn in the side of the administrations that govern under the new constitution, as agitators and enemies wield it to foment instability. When that instability grows great enough, it produces a crisis that topples the very system it was supposed to be legitimizing. And yet, the provision—or one like it—often sticks around in the next constitutional revision, since taking it out might signal weakness or fear on the part of the country’s new rulers.

Step 3: Rinse and repeat.

The article notes that this seems to be a persistent problem for countries like Thailand … or in Venezuela (where the provision written in by Chavez after his democratic election following his failed coup was then used in turn during a failed coup against him in 2002). In contrast, Fidel Castro seems to have been one of the few revolutionaries smart enough not to put such a provision back into place even after using it himself.

All in all, though, rather than enshrining some fundamental, natural human right or discouraging abusive behaviors, embedding such “right to rebel/resist” provisions just seems to destabilize a lot of already unstable countries. The study authors suggest some explanations:

these provisions often destabilize politics by legitimizing individuals and groups seeking to undermine the status quo.
One could argue that the Venezuelan people are better off if a right to resist helps them destabilize the likes of Chávez. And it is likewise possible that since unstable countries tend to write more constitutions than stable ones do—Thailand had 19, Venezuela 26—troubled nations simply have more opportunities to adopt the clause. But the fact remains that constitutions are nearly always written with an eye toward ensuring the survival of the system being created—and the constitutional right to resist can undermine that goal and generate greater political instability.

My guess is that they cause (or at least reinforce) more problems than they solve by de-emphasizing the paramount importance of regularized transitions between leaders. The provisions actually seem to strengthen, rather than weaken, the case for revolutionary-might-makes-right (i.e. you have the right to revolt if you successfully revolt). And that’s so arbitrary that it makes democratic transition seem pointless and equally arbitrary. And that in turn probably just encourages ruling by might rather than legitimacy (i.e. freely given popular consent).

In other words, a formalized right to rebel — which isn’t really necessary in stable systems with regular transitions that aren’t at high risk of authoritarian rule — just encourages further authoritarian trends in already unstable places because it’s implied officially in the organizing document that anyone may hold power as long as no one takes it from them … and anyone who does take it from them is also officially allowed to do so.

Bill Humphrey

About Bill Humphrey

Bill Humphrey is the primary host of WVUD's Arsenal For Democracy talk radio show and a local elected official.
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