The constitution should precisely prescribe the duties and limits of each official’s role. If instead convention is relied on, then the people’s safety is built upon sand. The likes of Sulla, Caesar and Lloyd George will brush convention aside, justifying their actions by claiming, rightly or wrongly, that their opponents painted them into a corner by breaching convention themselves. Whatever the pretext, once convention has been broken, it becomes progressively easier to break, until eventually nothing is considered sacred.
Uncertainty leads to tyranny
Some will argue that in times of crisis, flexibility is vital. Yet nothing could be further from the truth. Safeguards are designed to give protection precisely when people are not thinking straight. Soldiers, trauma surgeons, airline pilots, firefighters all testify that in times of crisis it is not ‘inspired innovation’ that saved the day, but rather adherence to detailed and well thought-out procedures. Consider this passage from Plutarch’s Life of Marius:
He was chosen tribune of the people. In this office he proposed a law for regulating the manner of voting, which tended to lessen the authority of the patricians in matters of judicature. Cotta the consul, therefore, persuaded the senate to reject it, and to cite Marius to give account of his conduct. Such a decree being made, Marius, when he entered the senate, showed not the embarrassment of a young man advanced to office … he threatened to send Cotta to prison, if he did not revoke the decree. Cotta, turning to Metellus, and asking his opinion, Metellus rose up, and voted with the consul. Hereupon Marius called in a lictor, and ordered him to take Metellus into custody. Metellus appealed to the other tribunes, but as not one of them lent him any assistance, the senate gave way, and repealed their decree.
Had there been a written Roman constitution which expressly prescribed the manner and form for changing laws regulating the manner of voting, Marius could not have been subjected to censure. Likewise, had there been written rules of privilege within the senate house and serious penalties for intimidating senators, the lictor would never have dared to follow Marius’ directions. Marius would have been forced to behave legally, or else be impeached as a madman. In a free country, the average person will always rally to the side of the law, even against partisan interest—but only if there is a clear law which they can rally to.
Checks and balances
And if a few among them should find it their interest to abuse their power, it will be the interest of all the rest to punish them for it: and then our government would act mechanically, and a rogue will as naturally be hanged as a clock strike twelve when the hour is come. This is the fountain-head from whence the people expect all their happiness.
—John Trenchard. A short history of standing armies in England, 1698.
In the final years of both the Weimar Republic and the Roman Republic, virile, brutal young men pressured and intimidated older, saner men. And because both republics lacked checks and balances embedded in a written constitution, the older men were forced to resort to skullduggery in order to hold back the onslaught, until they themselves became just as corrupt and lawless as the men they opposed. Had the older men been invested with clear powers to check the younger men, they could have commanded the allegiance of those who rallied to the law. Instead, there was nothing to choose between them.