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If we say that the natural law of a constitution in a democratic government has to protect the minority from the majority, by whom is it written?

If the majority writes it, it might not protect the minority, and if the minority writes it, it might not be democratic?

  • A democracy is established upon the majority of consensus. The "minority" has no play in its function. – user96931 Dec 18 '19 at 22:05
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    If one accepts the natural law doctrine the natural law is not written by anybody. It is derived from the teleology supposedly implicit in the nature of beings like us, rational/moral beings, to be determined in a way akin to discovering the laws of physics. The forms most common today are traceable to Christian doctrines where God is the giver of the natural law, who determines the right purposes and values of such beings, but this is not necessary. One can believe in objective moral values/laws even without God in the picture. – Conifold Dec 19 '19 at 0:59
  • In the US, the writers set up the beginning of a structure to protect minority interests, but it had to be developed through Supreme Court case law, Marbury v. Madison, The Bill of Rights (Amendments to Constitution), Post Civil War Amendments, and through the 14th Amendment to the states. – Gordon Dec 19 '19 at 6:29
  • Just for interest - Simone Weil wrote a constitution for France and it makes interesting reading. It was not adopted. Much too sophisticated. . – user20253 Dec 19 '19 at 11:23
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Welcome Taeith

If the majority write it [the natural law of a constitution], it can't protect the minority. And if the minority write it, it's not democratic.

I am not sure what you mean by 'the natural law of a constitution'. A constitution defines the powers and structure of government and the legal rights and obligations of citizens. If there is such a thing as natural law, an idea defended by a long tradition of political philosophy and ethics, a constitution might embody it or some portion of it. The constitution would then involve assumptions about the rights and obligations we have, given the kind of beings we are. There is more to natural law than this but there is at least this. Natural law may be seen as a deliverable of and discoverable by reason or as having a divine origin - or both. Its existence is controversial.

But I venture to suggest that you are not using 'natural law' in this sense at all. My impression is that in your view it is inherent in the nature of a democratic constitution - 'natural' to it - to protect the minority (or minorities) from the majority. You then pose the dilemma about who should write the democratic constitution, who should create it : the majority or the minority?

Is there really a problem here, a philosophical or conceptual problem? Here's why I think not.

A constitution is democratic by virtue of its contents and implementation, not by virtue of who created it. There is no reason why a majority should not create a constitution that protects the rights of minorities. And there is equally no reason why a minority should not create a constitution that protects the rights of the majority. Nor is there any reason why a constitution cannot both protect the rights of the majority, within prescribed limits, and protect the rights of minorities also within prescribed limits. There is no inherent incompatibility between the equal protection of rights for the majority and for minorities within a constitution.

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    Just to support the last point: One of the highest held and most often copied democratic constitutions of modern times is the German Grundgesetz, which had been conceived by an unelected assembly of 65 people. Both the choice of these people and the constitution itself hung at the approval of foreign military governors, even if state parliaments had to approve as well. But there has never been a decision made by a majority of the electorate, not even for its extension to the former GDR. Still, it protects minorities quite well. – Philip Klöcking Dec 19 '19 at 8:53
  • There is a lot of reasons that can make majority oppress minority. Like if they don't have the same religion or values. For example, majority can choose to forbid same sex marriage and oppress the minority. The majority homophobic can't write it in the constitution because it's oppress minority and minority can't write it because it's not democratic. fuck – Taeith Dec 19 '19 at 9:06
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    @Taeith In a working democracy, it sometimes takes time, but a voiced oppression will eventually seize to exist. A state where there is no division of state and religion cannot be truly democratic since it discriminates other religions by definition. To be fair, it is often the constitutional courts who decide that something is discriminating long before parliaments would ever care to deal with it. – Philip Klöcking Dec 19 '19 at 9:16
  • A state where there is no division of state and religion cannot be truly democratic since it discriminates -> Discrimination can be democratic. – Taeith Dec 19 '19 at 10:50
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    @ Taieth The modern political concept of democracy involves safety of minorities and Rule of Law, so no, it cannot. You are using an antique conception of democracy, something that hundreds of years ago has rightfully been called "tyranny of the masses" (Kant). – Philip Klöcking Dec 19 '19 at 11:00
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There might be a way out of this paradox : having a dynamic constitution, that is rewritten on a regular basis by randomly selected people (let's call these randomly selected people agents).

This should be the only immutable law of this dynamic constitution. This way, any potential abuse made by former agents might be deleted.

As the time goes, the best consensuses should remain.

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  • -1: Such a proposal cannot be classified as a democracy. – user96931 Dec 18 '19 at 22:05
  • Actually, there are many constitutions which explicitly contain a failsafe against such a proposal (e.g. the German constitution cannot be changed with regard to the human rights and form of state as defined there by any kind of political power; there would have to be a whole.new constitution approved for that). – Philip Klöcking Dec 19 '19 at 8:56
  • @user96931 Why not? Can you give me your definition of democracy and explain why this constitution doesn't match your definition, please :) – Olivier Roche Dec 19 '19 at 16:14
  • A democracy, @OlivierRoche, is a government determined by the people. The people determine its policy by consensus, and the consensus of the majority necessarily represents the most of the people, hence it is democratic. – user96931 Dec 20 '19 at 1:31
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    This would not protect minority from oppression by the majority. If the constitution is rewritten every 1 year, the 5% minority would only gain an advantage every 20 years, but oppressed for most of their lives. Also, the majority of people are thoroughly unqualified to make fully informed decisions on the matters of writing constitutions. If a random people is chosen, what's to protect the people from a psychopath writing into the constitution that the Führer will choose half the population is to be killed and their wealth transferred to the remaining half by Führer's choice? – Lie Ryan Dec 21 '19 at 5:54

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