Falling victim to the contagion of the humpty dumpty syndrome

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master – that’s all.”

That exchange is a celebrated passage in Lewis Carroll’s Through the Looking Glass. The point Carroll wanted to make was that every fundamental alteration of the meaning of words is a self-interested effort to grasp power or to gain unwarranted advantage over others.

In Thailand from today to Saturday the Constitution Court is hearing the arguments of both the complainants against and the proponents of the constitutional amendment bill, and will decide whether the bill is constitutional. As such, we are likely to see loads of Humpty Dumpties in action from all factions. In abundance will be fundamental reasoning fallacies and tautologies that nonetheless are taken seriously. The stakes are high, and so are the emotions among the supporters of both sides of the argument.

Many sympathise with the court’s no-win quandary. Many are worried about this political showdown that could tailspin into high-noon gunslinging duels, resulting in widespread unrest and bloodshed. 

Last week in the US, the Supreme Court’s ruling on the constitutionality of President Obama’s healthcare law created quite a commotion. The 5-4 ruling was in favour of the President’s legislation. One Republican congressman likened the court decision to the September 11 terrorist attacks. Some critics said the Supreme Court did not have the authority to rule in such a case. A right-wing radio personality reverted to an ad hominen attack on a court justice, suggesting that his “deviant” ruling was the result of the epilepsy medication he took. Such medication, the host opined, could “introduce mental slowing, forgetfulness and other cognitive dissociation and problems”. 

Another conservative talk-show host called the conservative justice who voted with the more liberal justices a “coward”. Another radio host announced he was sick to death of the destruction of the great nation of the United States by power-hungry Democrats and the “moocher class”. 

This emotionally charged atmosphere even caused two high-profile press outlets – in their extreme efforts to be the first to report the story – to add to the pandemonium by wrongly reporting the court’s decision. They, in their extreme rush to be first, simply did not read the ruling carefully enough. For more than ten minutes the reporters repeated, with an air of authority and certainty, that the court had ruled to strike down the healthcare legislation.

Meanwhile, the swing-vote justice joked that he would be spending the court’s recess time on an “impregnable island fortress” to get away from the firestorm and other unpleasant backlashes.

In the US and elsewhere, there has been case after case where political decrees or actions did not meet the requirements of the law of the land. In those cases, the rulings almost always provoke strong reaction. In 2006, there was an outcry over the decision of a federal appeals court to overturn the Bush administration’s interpretation of a complex section of the Clean Air Act. The judge silenced the vociferous opposition with a wry footnote to Lewis Carroll’s book that only in a Humpty Dumpty world could the law be read otherwise.

But that world is manifesting itself more and more – here, there and everywhere. The “my way or the highway” attitude is on the rise.  If the trend signifies something more menacing, it’s hard to pinpoint. How to buck such an inclination is a conundrum.

There aren’t that many choices that the Thai Constitution Court can embrace. One is to rule that the bill is unconstitutional, but with no intent on the part of the government to overthrow the constitutional monarchy. Two, it may rule that the bill is unconstitutional and there is compelling indication of evidence that the underlying intent of the bill is the routing out of the constitutional monarchy. The third option, and the least plausible, is to confirm the constitutionality of the proposed legislation.  

One thing is certain: the court decision cannot please everyone and will make many irate. It has become a fashion that if some people do not like a law and what it entails, they declare it unjust and demand that it be repealed. The place of the law in our society seems to move more towards serving special interests than those of the public. The key tenet of the liberal theory of the state – that its authority and power are limited – is all but abandoned.

Whatever the outcome of the Constitution Court decision, it’s important that more people keep in mind the role of a constitution. During the writing of the US constitution, James Madison, the most influential draftsman, identified that the main problem confronting the team lay in the fact that the constitution must first enable the government to control the governed, and in the next place oblige it to control itself. The role of the constitution, therefore, is to provide the scope for good government, while at the same time placing limitations on the powers of governors.

While all sides in our constitutionality issue are so psyched up that one can cut the tension with a knife, a call for cooler heads is in order.  Since there is no appeal to the Constitution Court ruling, disaffected people may try to settle the score by other means. It is therefore time to be reminded of the aphorism of an associate justice of the US Supreme Court – Robert H Jackson (1941-54) – describing his institution: “We are not final because we are infallible, but we are infallible because we are final.”