Main Street Architecture and Real Words vs. a “Living” Constitution


By J.K. Baltzersen

Folkets Gaard og Kongens Gaard

Over mod hinanden høine!

Ret som Frender to de staar,

Ser hinanden ind i Øie.

- Henrik Ibsen[1]


People’s pile and royal pile

Opposite each other tower!

Stand like kinfolk, free of guile,

Eye to eye, with equal power.

– as interpreted by John Northam[2]


Anno post Christum natum millesimo octingesimo sexagesimo primo, die Xmo Octobris, Rege Carolo qvinto decimo tertium annum regnante, fundamenta harum ædium iacta sunt a Joanne Christiano Petersen, Norvegici Regis consilii id temporis præside.



This year is the centennial anniversary of the dissolution of the Swedish-Norwegian union. With this anniversary comes the centenary of the last Norwegian royal denial of sanction – or veto if you will. This veto was placed exactly a hundred years ago today – on May 27, 1905 at the Royal Palace in Stockholm. In connection with the union dissolution centenary the main street in downtown Oslo – Karl Johan Street – has been shined up. The main feature of our main street is perhaps that the Royal Palace lies on a hill at the end. Another important – and related – feature, which almost no one gives a thought these days, is that the Parliament lies next to Karl Johan Street on an opposite lower hill, and that, hence, the two piles face each other. According to Stortinget og kunsten – translated into English as The Norwegian Parliament: it’s [sic] art and architecture – the visual relationship between the Royal Palace and the popular assembly was a conscious political move in that the two powers were to keep each other in check.

It was when Abraham Lincoln was very busy mugging the U.S. Constitution that the foundation stone of our capitol was laid down and most of the construction took place. The U.S. Constitution was being destructed. A great symbolism of one of the main features – perhaps the most important – of the Norwegian Constitution was being constructed in Christiania[3].

It was in the reign of Carl XV[4] that the Parliament building was built. The Royal Palace was already in place during the reign of his father and predecessor – Oscar I. The foundation stone was laid down – on October 10, 1861 on the 47th anniversary of the abdication of King Christian Frederik – the later King Christian VIII of Denmark, who led the Norwegian revolt in 1814. Carl’s royal motto was:

Land skal med lov bygges

which translates into[5]

By law the land shall be built

The motto is an amputation of an old Norwegian motto:

Land skal med lov bygges, ei med ulov ødes

which would translate into:

By law the land shall be built, not by bad law devastated

I am aware that much can be said about a claim that land or society is to be built by law. I will leave that for now. I will only touch on what leaving out the last part of the old motto could implicate. Leaving out such a vital specification does not necessarily imply that bad law is not to be avoided. However, it can certainly be interpreted that way, especially when one modifies – or it is conceived that one modifies – an ancient motto in this way. And that is perilous indeed.

The reign of Carl XV involved the end of the assembly of the four estates in Sweden. The estates were replaced by a modern two-chamber parliament. In Norway his reign involved the introduction of the sitting of Parliament every year, as opposed to every third as had been constitutionally provided for previously.[6]

It is probably fair to say that the reign of positive law was in its gestation – or at least positive law in its full blossom was in its gestation. Everyone takes for granted these days that a parliament is to be gathered all year long. Parliaments may have longer “vacations” than their subjects these days, but the limitations on the time they are convened are nothing to what they were in days gone by[7]. To my knowledge it is only the ancient democracy[8] of Switzerland among the countries of Europe, save the mini-states, which still has such limitations. The federal Parliament has 4 ordinary sessions of 3 weeks each. In 2004 it had an extraordinary session of 1 week[9].

Let’s go back to the days before the Danish-Norwegian dual monarchy, before we had our own “king across the water,” more precisely to Magnus V, who was the first crowned king of Norway. In the year 1163, only 7 years old, he was crowned in Bergen under the presence of the papal envoy Stefanus. The new Act of Succession provided for the throne to be ascended by the eldest legitimate son of the late king, unless he was found unfit. According to biographer Langslet it was with Magnus V we got a rechtsstaat and a law-bound regal power.

As Bertrand de Jouvenel told us in On Power:

So said John of Salisbury in the twelfth century: “The difference between a prince and a tyrant is that the prince obeys the laws and governs his people in accordance with right.” This formula receives its full force only if it is remembered that what is here referred to is a law and a right which issue from a source higher than Power.

There was a setback upon his death, but it was not permanent. According to the same biographer the provision about the unfitness was discontinued in the 13th century under Haakon IV.

The Danish-Norwegian union was formalized by a treaty signed in Bergen on August 29, 1450, after Norway and Denmark had actually been in union more or less since 1380, partly also with Sweden. Christian II was crowned King of Denmark in 1513 and King of Norway in 1514, the last separate Norwegian coronation under the Danish-Norwegian dual monarchy. Moreover, the guarantee of the equal status of Norway was not included in the covenant set up at his ascension.

With King Christian III Norway became through a secret article in the throne ascension covenant a vassal realm. The aristocratic Norwegian Council of the Realm was abolished. He was crowned King of Denmark and Norway in Copenhagen on August 12, 1537. The Lutheran king forced Lutheranism upon Norway, which was still totally Catholic. The other side of the ledger is that he let Norway keep the Law of St. Olav and he was relatively moderate in imposing Lutheranism after the first revolutionary acts. Langslet suspects the King feared revolt if he was being too fierce.

Absolutism came to Denmark-Norway in 1660 under the reign of Frederik III. It has been said that the Danish-Norwegian dual monarchy was the most absolute monarchy in Europe, save Tsarist Russia. That might be true. However, according to Bertrand de Jouvenel it was in the Ottoman Empire one found the most total power in the days of the ancien régime. Speaking of absolutism and Bertrand de Jouvenel, it is prudent to draw attention to a few of the things he has said on the term.

In Sovereignty he told us:

The adjective “absolute,” generally used today as a vague term of abuse, has in reality a well-defined meaning: it translates the phrase “legibus solutus” – freed from the laws. Now who is the more uninhibited by the rules? The man who is morally bound to observe the rules, though not subject to sanctions, or the man who is in a position to change them at any moment? Clearly the latter. For that reason the movement in time toward a sovereignty with unrestricted legislative power has been a movement toward absolutism, and the period which we call the absolutist period was in fact only that of the gestation of absolutism.

It is true that the successor of Frederik III, Christian V[10] acted as legislator. We still have the Norwegian Statute of King Christian V. However, there is little doubt that the level of legislative authority under absolutism was quite feeble compared to what the parliamentary legislative authority turned into.

At the end of the reign of Frederik V, a major tax increase was attempted in both Denmark and Norway. There was an uprising against it. Norway was kept as a low-tax country for the next half century, i.e., until the end of the Danish-Norwegian dual monarchy. Langslet also reports of earlier periods with lower taxes in Norway than in Denmark. It certainly can have its advantages to have a king – especially one “over the water.” What treasure it is that has been lost since, culminating in the rise of Scandinavian socialism!

The reign of Christian VII is an example of Hoppean treatment of an unfit monarch. According to Langslet he never actually ruled. There were several changes of de facto rulers. The last one took place in 1784, when Crown Prince Frederik turned 16. From then on he ruled – from 1808 as Frederik VI – until the end of the dual monarchy over Norway.

Nearby the central railway station in Copenhagen stands the Liberty Memorial celebrating Christian VII – King of Danes and Norwegians as the obelisk reads – and his abolition of adscription. Of course, it was just formally the work of Christian VII.

Frederik was behind liberalization in general. However, he did turn. Censoring was reintroduced in 1799. In 1807 he entered the war on Napoleon’s side, after a British raid in Copenhagen. Being on the wrong side in the war, he was forced to cede Norway to Sweden, which was done in Kiel on January 14, 1814.

Now was to rise what historians have referred to as “the America of Europe.”[11] Prince Christian Frederik, heir apparent to the Danish throne, called a constitutional convention. Constitution Hall at Eidsvold is our equivalent to Independence Hall in Philadelphia. We do not have a declaration of independence, as our tie to Denmark was untied by the King’s renunciation of his rights to Norway[12].

We often hear that it was at Eidsvold that we received our liberty and our democracy. We got political liberty.

Bertrand de Jouvenel in his On Power gives us something to reflect on in that respect:

[P]articipation in government (absurdly called “political liberty” when it is in reality one of the means given to the individual of safeguarding his liberty against the unending onslaught of the sovereignty) has come to seem to him more precious than liberty itself? That this participation of his in Power has sufficed to induce him to raise up and encourage state encroachments, which have, thanks to the approval of the mob, been carried to much further lengths than absolute monarchy could ever have carried them?

It was at Eidsvold we abandoned the ancien régime. Often it is referred to the cradle of our modern state. Again Bertrand de Jouvenel and On Power offer us reflection:

Why does the modern state meet no organized resistance?

The ancien régime met with such resistance, which was offered it by the representatives of the various elements in the nation who fought in line against Power. But in the modern regime these elements have become Power, and the people are left in consequence without a champion. Those who are the state reserve to themselves alone the right to talk in the name of the nation; an interest of the nation as distinct from the interest of the state has no existence for them.

This leads us to what Erik von Kuehnelt-Leddihn in Liberty or Equality told us about the state and society:

It is evident that modern government has achieved an autonomy from society (we mean autonomy: the power to make and live by its own laws) which would baffle and frighten the medieval observer. Nietzsche’s “coldest of all monsters” would terrify pre-Renaissance man.

Further Bertrand de Jouvenel told us in Sovereignty:

The general view in our own times is that societies have always acknowledged an authority which, as Jurieu puts it, has no need to be right for its acts to be valid – an authority which creates and destroys rights to any extent and has nothing but its own will to regulate it: sit pro ratione voluntas. Current belief is that this authority was formerly in bad hands and today rests in good hands, and to have put it in good hands is the only safeguard as to its use which can be given to the citizens. But it is a mistake to suppose that over time Sovereignty has merely changed masters. More than anything else, history records the actual erection of this boundless and unregulated Sovereignty of today, of which our ancestors had no conception.

Considering the experience of tendency towards arbitrariness the men of that time had with the ancien régime it is perhaps understandable that they were seeking something else. The last King, Frederik VI, did perhaps not contribute to the good name of the old order. However, if we compare it to democracy, absolute monarchy comes out as the better. Again we refer to Bertrand de Jouvenel and his On Power:

The only effect of the proclamation of the sovereignty of the people was to substitute for a king of flesh and blood that hypostasized queen, the general will, whose nature is always to be adolescent and incapable of personal rule; the occasional inconveniences which arise in a monarchy during the minority or mental incapacity of the sovereign being now permanently present, the aforesaid queen boldly entrusted her person to a succession of favourites, who abused their position the more freely the less she became an object of controversy. The only possible safeguard was in the sense and morals of that regency council, the sovereign assembly.

And Rivarol, as quoted in Liberty or Equality:

The absolute ruler may be a Nero, but he is sometimes Titus or Marcus Aurelius; the people is often Nero, and never Marcus Aurelius.

Now, that democracy was delivered to Norway in 1814 is at best a dubious claim. What we got was a constitutional monarchy. Christian Frederik was by the grace of God and under the Constitution of the Realm King of Norway from his election in May until his abdication in October. It was a constitutional monarchy, but not in the hijacked modern meaning of the word. Joseph Crisp II has elegantly said about modern monarchs who are “above politics”:

Throughout the world today, wherever monarchy is seen as permissible, it is understood that it must be a “constitutional monarchy”, which today effectively means, “limited to the point of political irrelevance”. This is an important point since there is no reason that a constitutional monarchy necessarily be a purely symbolic one. Once there were many monarchies which had written constitutions, but constitutions which clearly defined and gave a strong, in cases even “sacred, absolute and inviolable” position and authority to the monarch.

It seems to be quite common to view the mixed governments between the French Revolution and World War I as merely a transitional form of government on the path to democracy. Professor Paul Gottfried offers another view in his After Liberalism:

François Guizot (1787-1874) the Huguenot prime minister under France’s liberal July monarchy and a distinguished historian of England, considered democracy to be as much a curse as monarchical absolutism. As French prime minister in the 1840s, Guizot fought doggedly against the extension of the limited franchise, the cens, from propertied taxpayers to other French citizens. He distinguished sharply in his speeches and political tracts between those civil rights suitable for all citizens, such as freedom of worship, and the vote. By means of the second, Guizot maintained, the lower class could destabilize society, radically redistributing property and bringing resourceful demagogues to power.

Further Gottfried notes:

When Benjamin Constant and François Guizot argued for a political juste milieu in the 1820s, in the form of constitutional monarchy, they were not simply advocating moderation or an Aristotelian golden mean. They were looking at the educated haute bourgeoisie as a natural leadership class that could maneuver between the equally disastrous shoals of absolute monarchy and democracy.

Guizot and Constant can perhaps be excused for believing that democracy was no more than equally disastrous when compared to absolute monarchy, since they had not experienced the modern democracy of the 20th century. Erik von Kuehnelt-Leddihn offers a viewpoint in Leftism Revisited probably closer to the truth:

There are totalitarian and monolithic tendencies inherent in democracy that are not present even in a so-called absolute monarchy, much less so in a mixed government which, without exaggeration, can be called the great Western tradition.

The Norwegian Constitution is said to be second oldest written constitution in the world, only outranked in age by the U.S. Constitution[13]. Every Norwegian school child is told that the three principal principles of the Constitution of the Kingdom of Norway are popular sovereignty, distribution of powers, and individual rights. So we are told at, e.g., Parliament’s own web page about the matter as well. The strange thing, though, is that the principle of popular sovereignty until this day can be found nowhere in the Constitution, as it is written. Are we witness to a legitimization strategy of the later usurpations?

What can be found is that the executive power is vested in the King, and that the legislative power is vested in the people through Parliament. When the people explicitly is left with the legislative authority, and executive power is left exclusively to a hereditary monarch, that sounds to me as some sort of mixed government – not a form of government were there is one sovereign power. We see clearly the Montesquieu separation of powers written in the Constitution. We even see more of Montesquieu[14] than the reduced formal separation of powers to which his theory sadly has been reduced.

Bertrand de Jouvenel is quite clear on what we should be calling Montesquieu reductionism in On Power:

The circumstances of the time and the tendency to “catch the nearest way” brought the entire principle of limitation of Power down to a formal system of separation of powers. Had not Montesquieu praised this aspect of the English Constitution in a famous chapter of L’Esprit des Lois? As it was a big, fat book, the reading of a single chapter was held to qualify for the office of interpreter. And so this doctrine, at once simple and formal, took root in the political science which was spread by the French all over the Continent, that there must be an executive, a lower chamber, and an upper chamber – and then all would be well.

He goes on:

Then ensued the pons asinorum of constitution-makers. Never was seen such light-mindedness! One power, they said, would check another – and no doubt it would if each distinct institution was the organ of a force pre-existent in society. But if both are emanations of the same force, never.

Elsewhere in the same excellent work:

Power cannot […] be limited by the mere dismemberment of the imperium into constituent parts each with its distinct organ. For limitation of this kind to succeed, there must be in existence sectional interests in a sufficiently advanced state, conscious of their identity, and armed with strength to stop the encroachments of Power on their own spheres, together with a system of law which is independent enough to arbitrate their clashes and escape from being the instrument of the central command.

It is true that the poison of popular sovereignty had much influence on the making of the Norwegian Constitution. For its time it had quite an extensive franchise. The parliamentary franchise established by it was extensive for the time as well. The new King was to be elected by the Convention, and in future Kings were to be elected by Parliament, but only when there was no heir. There was only a suspensive royal veto for legislation. There was no royal veto for constitutional amendments put in writing. However, being a constitutional monarchy an absolute veto for constitutional amendments[15] was part of our constitutional law at least until 1884. Money bills were not subject to any royal sanction. It must be considered a historical error to leave tax and financial matters in a popular assembly – at least when totally unchecked. The development of the conception that “we tax ourselves,” with taxes rising to unprecedented levels, should be ample evidence of that.

Even Montesquieu was aware of the taxing capacities of different forms of government:

Taxes may be increased in most republics, because the citizen, who thinks he is paying himself, cheerfully submits to them, and moreover is generally able to bear their weight, from the nature of the government.

It must be conceded that he goes on saying that also in monarchies taxes can be increased, but for another reason:

In a monarchy taxes may be increased, because the moderation of the government is capable of procuring opulence: it is a recompense, as it were, granted to the prince for the respect he shows to the laws. In despotic governments they cannot be increased, because there can be no increase of the extremity of slavery.

Only having a suspensive veto checking legislation from a popular assembly must also be considered a historical error. The relatively weak regal power in the Constitution was certainly unwise. For sure it can be said that our constitutional fathers did not heed Montesquieu:

Were the executive power not to have a right of restraining the encroachments of the legislative body, the latter would become despotic; for as it might arrogate to itself what authority it pleased, it would soon destroy all the other powers.

It is also true that the Constitutional Convention itself and the fact that the new king was elected by it are an expression of popular sovereignty.

Much can be said about putting the legislative authority in the hands of a popular assembly, and Bertrand de Jouvenel has in On Power:

When at a given moment of historical development we find Power making laws with the assent either of the people as a whole or of an assembly, and being unable to make them except with this assent, we are apt to interpret these rights of the people or assembly as a limitation on Power, as a decline from its primitive state of absolutism. But this primitive absolutism is pure myth. It is not true that mankind has emerged from a former state in which magistrates and monarchs dictated out of their own heads the rules of behaviour. They had not in truth such a right, or, more accurately perhaps, of such power.

Also he said:

[I]s it possible for law not to change at all? Certainly it is not. What was possible, and what to preserve its sacred character was necessary, was that a change in it should be the imperceptible labour of time, the slow work of custom, helped by the invisible and toil of scholars laying precedent on precedent, or else a solemn act, looked on by all as dangerous and impious, justifiable only when it seemed amply probable that the substance of what was effected conformed with the dictates of objective reason. There had, to put it shortly, to be a belief in the necessary character of the laws; they had to be looked on as inscribed in the nature of things, and not merely as a product of the human will.

What in fact happened was that the laws came to be looked on as mere regulations which were always open to criticism and revision.

He goes on:

The life of democracies has been marked by a growth in the precariousness of laws. Kings, chambers of peers, senates, anything that might have checked the immediate translation into law of whatever opinion was in vogue, have everywhere been swept away or rendered powerless. The law is no longer like some higher necessity presiding over the life of the country: it has become the expression of the passions of the moment.

Also, we should perhaps revise the popular view of Baron de Montesquieu[16] as a champion of positive law? The baron told us:

Particular intelligent beings may have laws of their own making, but they have some likewise which they never made. Before there were intelligent beings, they were possible; they had therefore possible relations, and consequently possible laws. Before laws were made, there were relations of possible justice. To say that there is nothing just or unjust but what is commanded or forbidden by positive laws, is the same as saying that before the describing of a circle all the radii were not equal.

Montesquieu was perhaps overoptimistic about parliaments as check. What is quite certain though is that the medication – medication we seem to have grown addicted to – against the problems of monarchical absolutism is today a much worse problem than the disease it was to cure.

Although it can be argued that Montesquieu had great sympathy for republics, the government for liberty was for him a mixed government monarchy which he described in book XI of his The Spirit of Laws. Montesquieu was interested in checking the monarch, who was to have the executive power. Yet the United States is today described the major Montesquieu government of our time, with only having different branches elected through formally different elections. The French baron was indeed right when he noted:

In fine, as in democracies the people seem to act almost as they please, this sort of government has been deemed the most free, and the power of the people has been confounded with their liberty.

The Norwegian constitutional fathers did not heed Montesquieu when it comes to the question of nobility. The baron told us:

There are men who have endeavoured in some countries in Europe to suppress the jurisdiction of the nobility, not perceiving that they were driving at the very thing that was done by the parliament of England. Abolish the privileges of the lords, the clergy and cities in a monarchy, and you will soon have a popular state, or else a despotic government.

It is said that our Constitution was under American, British, and French influence[17]. Our Constitution seems influenced by the French Revolution[18] in more ways than one. Among these several can be said to be the dissolution of the Danish-Norwegian dual monarchy, which was due to the Napoleonic Wars. Also, although I have seen no claims that it played any significant role for Norway in 1814, it is clear that the republican idea had suffered a setback with the horrors the rise of Napoleon brought. The negative consequences of openness of the highest office to those with high ambitions had been clearly demonstrated. If there were any republican sentiments in Norway at the time, it is plausible that they were weakened because of this[19]. Moreover, the Constitutional Convention was under pressure from a son of the French Revolution, Carl Johan Bernadotte, who was our Crown Prince from November 4 that year.

To my knowledge there is little pointing at the Norwegian uprising of 1814 being Jacobin. However, our constitutional fathers did give us a provision forbidding new nobility being created. Knowing the role the nobility has played in being a check on government that was probably not wise. Moreover, in the same provision it was stated that no new fideicommissa or entailed estates could be established[20]. As Dr. Sean Gabb has noted on monarchy, but which is highly applicable to nobility as well:

Another claim is that the Monarchy is a visible symbol of inequality – a barrier to an ideal society in which everyone will be equal in status, and in which everyone will have the right, if not the ability, to rise to the highest position. It is a knife pointing at the heart of democracy. This may sound a persuasive claim. Historically, though, attempts to create such societies have usually gone far beyond abolishing a Monarchy – they have ended with attacks on anyone with a nice house and money in the bank, or on anyone with a good coat on his back. Those who hate the Queen for her jewels and palaces generally have no time either for the middle classes.

In the course of a few years the new Parliament was to abolish what little was of nobility. The parliamentarians obviously weren’t satisfied by there not being new ennoblements made.

Montesquieu recommended a two-chamber legislature:

The legislative power is therefore committed to the body of the nobles, and to that which represents the people, each having their assemblies and deliberations apart, each their separate views and interests.

And he goes on:

The body of the nobility ought to be hereditary. In the first place it is so in its own nature; and in the next there must be a considerable interest to preserve its privileges -- privileges that in themselves are obnoxious to popular envy, and of course in a free state are always in danger.

Montesquieu further gives a good defense of the impunity of the monarch, which is generally attacked for being a violation of the principle of equality before the law:

[T]he legislative body ought not to have a power of arraigning the person, nor, of course, the conduct, of him who is entrusted with the executive power. His person should be sacred, because as it is necessary for the good of the state to prevent the legislative body from rendering themselves arbitrary, the moment he is accused or tried there is an end of liberty.

Perhaps he had the trial of King Charles I in Westminster in mind when writing this[21]?

Although Montesquieu recommended the executive himself untouchable when it comes to tribunals, he did describe how others could be impeached:

[B]efore what court shall [the legislative power] bring its impeachment? Must it go and demean itself before the ordinary tribunals, which are its inferiors, and, being composed, moreover, of men who are chosen from the people as well as itself, will naturally be swayed by the authority of so powerful an accuser? No: in order to preserve the dignity of the people, and the security of the subject, the legislative part which represents the people must bring in its charge before the legislative part which represents the nobility, who have neither the same interests nor the same passions.

The Parliament that was set up was a one-chamber assembly. Well, that is putting it simply. It is true that we have the one-chamber assembly – Stortinget. However, it does in matters of legislation and impeachment separate into two chambers – Odelstinget, the lower chamber, and Lagtinget, the upper chamber. It is however elected as a single-chamber parliament. Until the rise of modern parties it in fact did work very much as a two-chamber parliament in legislation cases. For money bills and constitutional amendments it works as a single-chamber legislature.

The impeachment tribunal consists of 2/3 from Lagtinget and 1/3 from the Supreme Court. A verdict requires a 2/3 majority. Odelstinget prosecutes with a simple majority. This we were to see some 7 decades later was a great peril. The packing of the impeachment tribunal brought the mixed government system in grave danger. There is little doubt that a real two-chamber system would have been better[22].

The sentiment at the Constitutional Convention was probably very much for limiting power, although I concede that I have not investigated this matter in detail. It is likely that they did not imagine the monolithic Parliament of today, defining its own powers. One of the constitutional drafts had a provision on a separate constitutional assembly with approving referenda. This constitutional assembly was to assemble exclusively for deliberating on constitutional amendments. Constitutional amendments were to be proposed by this assembly and approved by a referendum with a 2/3 majority[23]. Such an arrangement would perhaps have modified the absolute sovereignty of Parliament of today. It might have worked as a check, and the result might have been better than what we do have. However, given the experience of the past two centuries one should view with skepticism anything that provides for explicit mandates from the people. There is much strength in such mandates. E.g., a popularly mandated “abolition” of property rights is in a way worse than such an “abolition” with no such mandate.

What is often brought up in relation to our Constitutional Convention by friends of liberty is the lack of a systematic rights declaration. The Constitution does provide for the protection for certain rights. This provides justification for the claim that individual rights was one of the principal principles of the Constitution. Of course, such rights are important, but I will not discuss the issue in depth. I will only say that the Constitution generally was not set up in the form “there is this and that right.” Rather it was set up in the form “this and that right shall not be infringed.” What is more important is that for constitutional rights to have any significant effect there most be elements in place so that such rights are respected and are not subject to the good will of the majority. The combination of lack of such elements in 1814 and later erosions of such elements are far more important to address than how we could have set up – or how we can do so now – a better system of rights, when it is clear that those with “protection” already are not being respected.

Professor of law Eivind Smith addressed in an essay[24] a few years ago the erosion of the respect of the Constitution. It is plausible that the cause of this is that it is natural for such an erosion to go hand in hand with the rise of the absolute popular sovereignty[25]. As Erik von Kuehnelt-Leddihn noted there is nothing in a democracy to prevent the elected officials from packing the courts. We saw the effects of Pres. F.D. Roosevelt’s attempted packing of the Supreme Court of the United States. On Power offers some insight on the issue:

[W]hen once Power is based on the sovereignty of all, the distrust comes to seem unreasonable and the vigilance pointless: and the limits set on authority no longer get defended.

Elsewhere in the same work:

The fact is that public feeling today, which apprehends things in terms of a delusive simplicity, declines utterly to permit the opinion of a few men to act as a brake, all on its own, on what the opinion of society as a whole demands. That it is thought, is a sin against the principle of popular sovereignty.

Bertrand de Jouvenel goes on:

The legislative authority, now regarded as the expression of the will of all, or, more accurately, of the whole, exercises a total sovereignty. Who dares hinder it?

The Constitution provided for conscription for all men. I will not claim that the regimes of absolutism and pre-absolutism did not claim subjects as soldiers and officers. However, now it was put in writing in the Constitution, and when this provision became reality later in the 19th century, there is little doubt that the new constitutional conscription exceeded previous levels by far.

Now, one can analyze why all the errors were committed. Perhaps the most obvious, and stated by King Oscar II in his memoirs, is that our Constitution was a creation in a hurry. Due to Swedish pressure[26] the Constitutional Convention only met for 5 to 6 weeks. Although drafts had been made before the Convention convened, that was probably far too little time. It is hard enough for mortal humans with all their shortcomings to come up with a good system with plenty of time to do it.

Much can be said about the lack of rights protection. However, we must remember that at that time they had only experienced the abuses of the ancien régime. One should perhaps expect of constitution-makers to see what is to come, but the totalitarianism of our time was probably far removed from even their imagination.

It has been claimed that the Norwegian constitutional fathers did not have the intellectual capacity of the American Founding Fathers. Perhaps so. We do not have equivalents of the Federalist Papers and the Anti-Federalist Papers. If we do, they are very little known, and hence they would not be equivalents. Written and printed material – among this material are diaries – does exist though. There is also little doubt that there were Convention members who were educated within relevant fields. Whether there were people there without a satisfactory education I will not endeavor at this time to consider. Nor will I at this time endeavor to compare the intellectual levels in Philadelphia and Eidsvold.

The Constitution is highly held in Norway. However, the original content, as in America, does not matter that much. Moreover, the religious character of praising the Constitution does not reach the level that it does in America. Politicians do not have to pay lip service to the Constitution in the way they have to in those United States. It is also fair to say that our constitutional fathers do not have the religious status at a comparable level with the religious status of the American Founding Fathers. Our National Day, though, is Constitution Day – May 17. Our Constitution is more of a symbol of “national freedom” than of a check on government power.

We don’t to the same degree as for the U.S. Constitution have a “movement” stating that the constitutional fathers did not create a democracy. Not having analyzed the thoughts of the constitutional fathers to any considerable depth, I cannot claim that they were not democrats or that they despised democracy[27]. However, a few facts certainly lead one to suspect so. The fact that they left the executive power in the hands of a monarch speaks out loud for itself. Those who state that our constitutional fathers did not create a democracy[28] generally do so very quietly or they stay in the closet. Also, we do not have a gang of people claiming that the mixed government put in place by the constitutional fathers is still in place.

Although the Constitution created a very weak monarch, some thought the royal office was not weak enough. G. P. Blom was bitter about what he thought was a too strong royal office:

[The royalists have] now built a real temple of the new sovereignty on the seeming tomb of the blessed deceased.

Just before the Convention was dissolved Georg Sverdrup proclaimed:

Reist er altsaa inden Norges Enemærker Norges gamle Kongestol, der Adelstener og Sverrer beklædte, og hvorfra de med Visdom og Kraft styrede gamle Norge.

At den Visdom og Kraft der prydede hine vore hedenolds store Konger maa ogsaa besjele den Fyrste vi Norges frie Mænd, overensstemmende med hele Folkets Ønske, af Takknemmelighed og Erkjendtlighed i dag enstemmigen have valgt, er et Ønske som sikkerlig enhver Norges egte Søn med mig nærer. Gud bevare gamle Norge!

which would translate into something like:

Erected is thus within the bounds of Norway the old throne of Norway, upon which Adelstens and Sverres sat, and from which they with wisdom and strength ruled old Norway.

May that wisdom and strength which marked those our pagan ancient great Kings also inspire the Prince we, the free men of Norway, in accordance with the wish of the whole people of Norway, of gratefulness and acknowledgement today unanimously have elected, is a wish which surely every true son of Norway shares with me. God save old Norway!

Erik von Kuehnelt-Leddihn told us in Leftism Revisited on the U.S. Constitution:

One ought not to forget that the term “democratic” appears neither in the Declaration of Independence nor in the Constitution. Nor does the word “republic”; the Constitution merely insists that the member states of the Union have a “republican” form of government. The Constitution, if analyzed in its original form, is a serious attempt to establish a mixed government with democratic, aristocratic, and monarchical elements, a government of checks and balances. Had the three elements derived their power from different sources, the attempt might have been successful, but the Constitution provided for a republican polity rather than for a regimen mixtum.

Against that it can of course be said that Norway didn’t succeed either. However, had America remained true to her founding, not to speak of if those United States had chosen a regimen mixtum with different sources of von Kuehnelt-Leddihn’s liking, it is more likely that the old European order had survived.

The mixed government of Norway survived for 70 years. It is said the old American republic survived until 1861. That is 72 years. If we give it until 1865, when the American Jacobin Revolution had succeeded, it is 76 years. That is 6 years more than the Norwegian regime survived. However, Erik von Kuehnelt-Leddihn also told us in Leftism Revisited:

Dr. Mortimer Adler is more right than wrong when he says that “the dawn of American democracy really begins with Jackson.”

When Andrew Jackson stood for election in 1824 the original property based franchise had disappeared in most states, and popular elections had replaced the state legislature appointment of electors in the Electoral College[29] to a large degree. Andrew Jackson, who won the election in 1828, was a president for the “common people.” If we accept the theory that the old aristocratic republic went on the ash heap of history with Andrew Jackson or that America was a democracy by the time Alexis de Tocqueville toured the United States, the old regime is given about 4 decades.

Liberty or Equality tells us the obvious about court packing:

There is, in a democracy, no Supreme Court which a political party long enough in power, cannot “pack.”

Franklin D. Roosevelt’s attempted packing of the Supreme Court of the United States and its “failure” is well known. The problem with a constitution and all offices being filled by the majority[30] - or any other source for that matter – is that it is the majority that guards this constitution. If one supposes that the purpose of the constitution is to protect the minority, it is ultimately up to the majority if those rights are to be observed. If one supposes that the purpose is to protect the people against the government, the majority is still there to remove the government at its whim whenever there is an election. What is then the point of having constitutional provisions limiting the powers of government?

I do have great sympathy for the position that it was an error that America did not become a monarchy. The position of the late Dr. John Attarian on George III I find agreeable. However, as Professor Leland B. Yeager, among others, has noted, it would probably be better for those United States to return to earlier republican traditions. Perhaps Americans should wait for the white smoke – or perhaps the red, white, and blue smoke – out of the chimney at the end of a presidential term?

I will not be claiming that the Norwegian mixed government of the 19th century is the best form of government ever known to mankind, or even the best form of government at the time. It was a regimen mixtum, it did in a way draw its authority from different sources, and it clearly was a better form of government than modern democracy.

Among all the errors committed, one very wise decision indeed was to leave the executive power – or the imperium, as de Jouvenel calls it – with a hereditary monarch. The liberty we had was only to end when this arrangement was tampered with. Montesquieu prophetically told us[31]:

But if there were no monarch, and the executive power should be committed to a certain number of persons selected from the legislative body, there would be an end then of liberty; by reason the two powers would be united, as the same persons would sometimes possess, and would be always able to possess, a share in both.

Providing for Parliament to meet relatively rarely was also wise, for as also the French baron told us:

It would be needless for the legislative body to continue always assembled. This would be troublesome to the representatives, and, moreover, would cut out too much work for the executive power, so as to take off its attention to its office, and oblige it to think only of defending its own prerogatives, and the right it has to execute.

The first 70 years after 1814 was marked by a monarch as executive and an officials class – or a mostly non-noble aristocracy if you will – that supported the monarchy. Was it perfect? Of course not. Publications that were not favored by the authorities were made subject to an excessive stamp tax, made possible by the government mail monopoly. That’s one example.

The first phase was, according to Professor of history Francis Sejersted, characterized by power being bound by law in the sense that right makes right – not that might makes right. The Parliament was exercising “negative power.” In the 1830s, however, according to Sejersted, one starts talking about democracy[32]. Only about 2 decades have elapsed. The Parliament starts taking positive initiatives. There is a tendency to erase the separation between law and politics – to govern by law. Law becomes amendable in a new sense. However, it can probably not be compared to a very large extent to the legal positivism of today. In 1842 a law was passed to ban totally the production of liquor. The law was fortunately denied royal sanction.

The real watershed, however, came in 1884, with what can be called the trial to end liberty in Norway[33]. If we are to point out something as our Jacobin Revolution, this would be it. This is the one major incident that put an end to the government of laws and not of men[34].

The major issue was a constitutional reform requiring the members of the Council of State to meet in Parliament and the royal veto used for blocking the amendment. The leader of the gang for bringing an end to the old regime was Johan Sverdrup, considered the “father of Norwegian parliamentarism.” He is connected with the motto “all power in this hall.” All power in Parliament Hall is what we have today, and it is the source of so many problems[35].

It was Frederik Stang who was the front general in fighting Sverdrup and defending what was called the “Stang system.” He would not have the Cabinet mixed with parliamentarians. That was contrary to the strict separation of powers. His Majesty rejected the constitutional amendment every time in accordance with the advice of Stang, the King’s Norwegian Chief Minister. The opposition held the position that constitutional amendments were subject to the same system of suspensive veto as legislation. Hence, upon the third passing of the amendment – in 1880 – the Parliament declared that the Constitution was amended in spite of the royal veto. Stang was quite furious over this resolution. The executive office refused to proclaim the amendment as part of the Constitution.

Later that year Stang was to resign due to declining health. The new Prime Minister was Christian August Selmer. We were soon to see considerable changes. The upcoming election was in 1882. Sverdrup wanted a mandate for impeaching the sitting Cabinet. He got that mandate, and the minority rule by the officials class ended. This officials class had together with the bourgeoisie made up the upper class in Norway. The peasants were to a large extent the class challenging the old rule. Grimmelshausen’s dictum, quoted in Liberty or Equality, is very fitting indeed:

Es ist kein Schwerdt, das schärffer schiert,
Als wann ein Baur zum Herren wird.

which translates into:

There is no sword that cuts sharper
than when a peasant becomes master.

The principle of majority rule, although not thereafter always strictly abided by, was brought about. That brings us to something Lord Acton, the man with the famous dictum “power tends to corrupt, absolute power corrupts absolutely,” told us:

It is bad to be oppressed by a minority, but it is worse to be oppressed by a majority. For there is a reserve of latent power in the masses which, if it is called into play, the minority can seldom resist. But from the absolute will of an entire people there is no appeal, no redemption, no refuge but treason!

It is a noteworthy coincidence that 1882 also was the year of the first release of En folkefiendeAn Enemy of the People. Henrik Ibsen’s Dr. Tomas Stockmann tells us here:

The minority is always in the right.

Also Dr. Tomas Stockmann tells us:

The worst enemy of truth and freedom among us is the compact majority.

At the time we had no direct elections. There were a number of electoral colleges electing the parliamentary representatives. Moreover, everyone wishing to vote had to give an oath to the Constitution, something unthinkable today. Suffrage had not formally been expanded since 1814. However, at this 1882 election a weakness in the franchise system was exploited. Men who did not originally have the right to vote bought almost worthless swamps, giving them the right to vote and the nickname “swamp men.”

The election gave the liberals enough members in Parliament to pack the upper chamber – Lagtinget – completely with their men, without compromising a majority in the lower chamber - Odelstinget. Thus, they had the necessary majority to pass the indictment in Odelstinget and the necessary 2/3 majority to pass the verdict. The indictment against the Cabinet was mainly about its advice to His Majesty on rejecting the constitutional amendment despite its being passed three times, which was the requirement for the number of times for legislation to be passed without royal sanction.

To actually call this “trial” a trial or the “tribunal” a tribunal would certainly be an insult to real trials and tribunals. This was a travesty of justice. There seems to be a general agreement among historians that this was about power and not justice or law. There is hardly anyone seriously believing that this was about justice. It was a fight over power, and the wrong side won.

When Montesquieu recommended that the monarch could not be impeached, he was probably wise in doing so. However, when he recommended that the Cabinet could be exactly so, he had hardly imagined that this opening would be used to end the very separation of powers between monarch and legislature that the impossibility of impeachment of the monarch himself was to prevent.

Although Sverdrup and his cronies were the real coup-makers, distorting what was established constitutional law at the time, and hardly anybody seriously seems to be considering this matter otherwise, what by historians are referred to as coup plans are those plans to counteract the rebels.

Why did the Supreme Court justices, who all voted for acquittal – making the majority as narrow as possible – sit through the entire “trial?” They knew justice would not prevail. Why didn’t they just walk out, clearly removing any legitimacy of the verdict they must – or at least should – have known was going to be illegitimate? There were plans for doing so. Moreover, there were plans for ignoring the verdict altogether, but there wasn’t satisfactory support for these plans. If ignoring the verdict would lead to an uprising, plans existed for militarily counteracting this.

However, His Excellency Prime Minister Christian August Selmer[36] was dismissed by His Majesty King Oscar II. Christian Homann Schweigaard was appointed Prime Minister. He had been “convicted,” but he had only been given a fine, whereas the verdict for Selmer was to lose office. Moreover, the King gave a proclamation on the “verdict” asserting his prerogatives. The Schweigaard Cabinet didn’t last long though. The opposition threatened with a new “trial” due to the military “coup” plans. The King gave in. He appointed Sverdrup as Prime Minister, and he gave sanction to the constitutional amendment.

Of course, it can be argued that plans to roll back the powers of Parliament justifiably can be called “coup plans.” Plans for extending the powers of the royal office and for other arrangements for weakening the democratic element in the Constitution did exist. However, we must remember that when an institution seems to be getting out of control and starts usurping and encroaching, restraining this institution is probably a reasonable defense. Merely keeping it at status quo could easily be seen as unsatisfactory. I do regret that the popular assembly’s powers were not rolled back, even though it must be admitted that the relative peacefulness of the revolution is admirable. During the “trial” gentlemen with top hats almost went loose on each other, and that was basically the level of “war” it reached[37].

Seeing how this “trial” contributed severely to ending a constitutional regime it is striking to see the relatively recent impeachment trial on the other side of the big pond in light of this. Perhaps those who believe the separation of powers in the American federal system still has an effect should consider the effect of impeachment trials in history before looking for any excuse to remove a President from office through such a trial?

Parliamentarism and the enfeeblement of the balance between Parliament and the royal office were not the only evil products of this “trial.” The Liberal Party rose as the first political party out of the triumphing usurping side. The defense of the old regime had been organized in several constitutional associations. These associations made the basis of the Conservative Party when it was organized only slightly later than the establishment of the Liberal Party. Thus, we got modern political parties, and we eventually got modern party rule.

To my knowledge there has never since the infamous impeachment “trial” been any packing of that kind. However, with the modern party system comes the packing in the sense that the two chambers are filled proportionally according to their representation in the whole Parliament.

The written Constitution was not amended to introduce parliamentarism. The requirement for Cabinet secretaries to meet in Parliament was, however. Also, in 1911, a constitutional amendment was passed to make it clear that no resolution made by the King in Council would be valid without the countersignature of a member of the Cabinet. The provision that the King appoints the Cabinet is still there, but no longer observed. A constitutional amendment has, however, been proposed to put in writing that a Cabinet with a vote of no confidence in Parliament is required to resign and that His Majesty is required to accept the resignation. The proposal is co-signed by the Deputy Speaker of Parliament, member of the Conservative Party. This only serves to underscore that the Conservative Party has long ago abandoned its heroic gestation.

The virtual history “reenactment” of a trial against Lincoln gave me the idea of reenacting the trial to end liberty in Norway and possibly connected activities. Perhaps this is a good way of showing posterity how rebellious this “trial” actually was. I have not read any of the proceedings first hand, but from what I know of it I am quite certain they are a grave example of a travesty of justice.

The main street landscape stands until this very day as a reminder of the system that once was. Stortinget og kunstenThe Norwegian Parliament: it’s [sic] art and architecture – tells of this and a few other interesting things. The painting hanging this very day in Parliament Hall depicting the Constitutional Convention, Christie, “the defender of the Constitution,” and the amendment article[38] was commissioned by a doctor on the losing conservative side in the election year of 1882. The artist was Oscar Wergeland. When the painting was offered Parliament, Dr. Ring, well knowing the battle was lost[39], wrote in the letter offering the painting:

A painting which depicts the Convention of the Realm at Eidsvold in 1814 I have believed too will be a protection of that Constitution which the founders established.

In this book on our Parliament’s art and architecture we are also told extensively about expression of popular power. Also, we are told about the expression of openness. The Parliament is to be open to the common people. You can see from outside into Parliament Hall. There were originally 9 doors into the Parliament building from the front. Much criticism came when it was decided to remove eight of them. I would say this abandonment of the original openness better symbolizes the controlling and monolithic character of modern democracy.

One wonders when reading de Jouvenel in On Power if a system with a mix of democracy and monarchy in the long run can survive:

[I]t must be noted that Power which is founded on the sovereignty of the people is in better shape than any other to fight and conquer. If sovereignty resides in a king or aristocracy, so that it belongs to one man or a few, it cannot markedly extend its scope without clashing with the interests of the majority; and if only these interests are provided with an organ of their own, however restricted its power – such as the tribunate in the early days of Rome – the vast forces which in this way find expression will expand the organ by degrees, just as an army which is vastly superior in numbers will necessarily spread out once it has secured a bridgehead. But with an organ of resistance possessed by a minority against the power of the multitude, the opposite must happen; it is sure to wither away by progressive stages, just as a bridgehead narrows when it is held by an army which is much inferior in numbers.

However, is this not the mix that has survived in Europe in the small principalities of Liechtenstein and Monaco to this very day? Montesquieu recommended a mix of monarchy, aristocracy, and democracy. To his defense it must be said that his “democracy” was not a system of universal suffrage, which is what we have today.

Is it so that mixed government only works today in small principalities? Some sort of mixed government did work for quite some time in Europe not long ago. Is it so that this system ended because it did not work, and that we figured out the absolute democracy worked better? Hardly! The truth is rather that someone fought for mixed government. They lost, and those who fought for democracy won. It’s that simple. As we are told in On Power:

The evolution of the nineteenth century – an evolution which more or less continued into the twentieth – presents us with three important facts in regard to the imperium. The first is political: it is the conquest of the imperium by the parliamentary body, which exercises it through a committee, the cabinet, formed from within itself. The second is social: the parliamentary body becomes slowly but surely, more and more plebeian. The third and last is moral: the general acceptance of the democratic principle, understood in the sense that it is the province of the people taken as a whole, not indeed, to pronounce on laws – the true notion of which has been lost – but to govern. It is invariably assumed that this moral fact is the cause of the other two. But the opposite assumption is more probably the correct one.

Another sad reminder elsewhere in the same work:

It is melancholy but indubitable fact that in a democracy each social category can get what is due to it both in justice and in humanity only in so far as its voting power makes possible its extortion. No working-class vote, no laws protecting the worker. No women’s vote, no laws protecting women.

And so, since the various sectional interests have no other means of expression or weapons of defence on which to rely, sovereignty has to be shared with social categories which are incapable of passing a sound judgment on matters of general interest.

Erik von Kuehnelt-Leddihn summed up goal and status in Leftism Revisited – when describing the Portland Declaration – quite well:

The administration must be of the highest quality and minimal size rather than today’s lowest quality and maximum size[…]

A monarchy with a parliament but without parliamentarism will tend to be a government of minimal size because – to mention one reason – the administration is not under parliamentary control and can thus not be trusted as “one of us.”

Constitution Hall at Eidsvold is today a museum – Eidsvoll 1814 – the Norwegian Center for Constitutional History. A few years ago Aftenposten ran an article on the role plays that are run there every once in a while for schools. The article quoted someone in saying, “the Saddam Hussein arrangement with one man deciding everything was put to an end.” The article didn’t say anything about who said it, but the quote serves as an illustration that people of today have no conception of European monarchical absolutism. I would say such a statement is an insult to absolutism. Equating European monarchical absolutism with modern dictatorship is simply ignorance.

A new modern building – Wergelands Hus, “a house dedicated to democracy and commitment” – at Eidsvoll 1814 was opened just this month. The democracy perspective here is overwhelming. It is perhaps legitimate to see the few weeks at this place back in 1814 as a step towards today’s democracy. However, when the other aspects are underemphasized – and “underemphasized” is putting it very mildly indeed – it turns out wrong. It would probably be fair to say that the Constitutional Convention was much more about limiting power than “making the people boss instead of a King.” They established a form of government which is very much being reduced to a step on the way to today’s democracy. I would have appreciated if the new center had been more balanced instead of almost serving as a propaganda center for democratism and popular sovereignty[40].

There has been a strong tendency in Norway to view things historically in a national perspective. Hence, national freedom has had a tendency to trump individual liberty. Our nation-building history writing has thus in a sense been damaging. In addition we have the “democracy is liberty” perspective. A deep and complete review of our history in the “democracy is not liberty” and the “freedom of the nation is not individual liberty” perspectives, along similar lines as Lecky’s Democracy and Liberty, de Jouvenel’s On Power, and von Kuehnelt-Leddihn’s Leftism Revisited, is very much needed. The Hoppean monarchy and democracy analysis is needed too. Furthermore, we would certainly need a politically incorrect guide to Norwegian history in the spirit of Professor WoodsPolitically Incorrect Guide to American History[41].

Their late Excellencies Prime Ministers Frederik Stang and C.A. Selmer have been left too little honor by posterity. On Constitution Day it is their opponents who are honored, even though it was Stang and Selmer who fought on the side of the Constitution. Selmer’s original grave monument has been removed. There is a street named after Stang in Oslo. Selmer has a street named after him in Drammen. To my knowledge there are no statues of or similar monuments over the two.

In the United States the losing side’s leaders in the War Between the States are at least honored at Stone Mountain.

There is, however, a bust of Abraham Lincoln in Oslo. With some variant of the Norwegian lion the monument reads on the left side of the bust:

JULY 4TH 1914

The monument reads on the right side of the bust with some variant of the American eagle:


This is a disgrace. The date is obviously not arbitrarily chosen. It is the American Independence Day in the centenary year of the Norwegian Constitution. To suggest that the Norwegian constitutional fathers established a form of government expressed by the above quotation, which was obviously implicitly being done, is outrageous. Moreover, it was the Confederacy that fought for that form of government. Perhaps the two distorted, Jacobin transformed constitutions deserve each other? Perhaps the Jacobin transformed Norwegian system deserves that American Jacobin revolutionary?

I would certainly have appreciated the bust more if it were accompanied with a fitting quote from Erik von Kuehnelt-Leddihn’s Liberty or Equality:

While it is perhaps true that “one cannot fool all the people all the time,” it seems that one can fool millions for centuries.

We stand here on the centenary of the last Norwegian veto in this age of democratic absolutism and totalitarianism and look back with envy on those generations blessed with more limited power. It is poignant to be reminded of what Bertrand de Jouvenel told us in On Power on the concept of limited power:

This doctrine has had a strange destiny. In the course of a single century it has burned brightly, concentrated on itself the attention of every thinker of eminence, grown in attraction by reason of the frightful spectacle presented by the outbreak of unbridled absolutism, been the fixed guiding star of all political navigation; it has then, in the very hour of its triumph, paled its fires to the point at which what was in 1840 a truism seems today a paradox.

Norwegian political scientist Trond Nordby has said that the Norwegian Constitution can be described as a lighthouse blinking for a seaway where seldom anyone goes. Perhaps the same can be said about the United States Constitution?

It began with liberty of the people and ended up with power of the people, two concepts whose confusion Montesquieu warned us about; a confusion which, as Bertrand de Jouvenel told us, is at the root of modern despotism.

May 27, 2005.

J.K. Baltzersen is a senior consultant of information technology in Oslo, Norway.

© J.K. Baltzersen 2005

[1] In a prolog on the occasion of the laying of the foundation stone of the Norwegian Parliament building on October 10, 1861, as reported by Morgenbladet on the following day.

[2] The interpretation is quite liberal. The phrase “equal in power” is nowhere in the original text. However, in the speech earlier that day at the stone laying ceremony itself it is made quite clear that the two powers are equal.

[3] Christiania was the name of the capital of Norway from 1814 until 1924, when the old name Oslo was reintroduced as the name of the city. In 1624 Christian IV established Christiania after Oslo had burnt down.

[4]Often referred to as Charles in English. Sometimes referred to as Karl IV of Norway.

[5] The translation found at the Bernadotte exhibition at Maihaugen, Lillehammer is “Society shall be built by the rule of law.”

[6] I am not here blaming King Carl for this “progress.” He was opposed to it. I am merely stating that these changes took place under his reign.

[7] In Norway we had an official dissolution of Parliament by the King until the final days of King Olav V. At that point the dissolution played little real role in limiting the activities of Parliament. It still is disappointing that the Parliament always is officially convened. It never ceases to irritate me that the media complain about the long vacations parliamentarians have. Of course, the vacation members of Parliament have is long compared to the 4-6 weeks other Norwegians have. However, politicians should definitely be more on vacation than they already are.

[8] It may perhaps be argued that the criticism against democracy does not apply to the Confederation of Helvetia. Although attempting to establish a monarchy in Switzerland is probably a worse idea than doing so most other places, that is only partly true. I will not go deeply into this question. Suffice it to say that when visiting a friend outside of Geneva in 1998 I was told that people there tend to tell the police there before they told the people concerned because there they really make the laws themselves.

[9] Speaking of the Helvetic Confederation, I paid a visit to the town of Sion back in 1998. The town serves well as another symbolism of the world before our modern monolithic democratic world. As Let’s Go Austria & Switzerland from 1998 says: “It’s an age-old problem: how to keep the peace between a bossy bishop, a grumpy chapter, and a fractious town. Sion’s solution was to build the bishop’s house, the now towering Château de Tourbillion, on one hill; the chapter’s seat, the Château de Valère on another; and the municipal powerhouse, the Château de la Majorie, down in the town. (A laser beams around this power triangle Thurs.-Sat. nightfall-1am.)”

[10] As the first monarch to ascend the throne under absolutism coronation meant for him to place the crown on his own head.

[11] It is quite normal for Norwegians to refer to the period of union with Denmark as a “400 year long night,” which now ended. However, as professor of history Øystein Sørensen has noted, although the decline of the Norwegian elite is unfortunate, those who survived and remained were relatively fortunate. Ruling Norway from Copenhagen was not an easy task.

[12] We do, however, have a war for independence – which is not so called – in our history. It was a minor war, and it ended in compromise and the relatively loose Swedish-Norwegian union.

[13] Of course, if one includes U.S. state constitutions, it’s another story.

[14] Walter Bagehot in The English Constitution refers to a literary theory of the English Constitution, which is a theory of a government system with no sovereign power, which he claims to be incorrect. Is Bagehot right? Obviously, at some point in time absolute sovereignty rested with the people and continued to do so. But has there always been one sovereign power in the English system? Was the time Parliament turned absolute sovereign the Glorious Revolution, or was it actually later? Bagehot claimed so many problems have been caused by misunderstandings of the English system and the consequential establishment of systems with no sovereign power. However, it is highly likely that absolute sovereignty is the problem. I prefer what Bagehot calls the literary theory of the English Constitution over the system with one absolute sovereign, especially if that sovereign is the people or a popularly elected parliament, and I certainly prefer the English system of the time of Montesquieu over the system of the time of Bagehot.

[15] Also, there was an explicit provision that the principles of the Constitution could not be changed – without specifying what those principles were. This suggests that the constitutional fathers believed that there were certain things that could not be altered at the will of the majority however large.

[16] I do not claim to be a great Montesquieu scholar, but I have read all the 31 books of his The Spirit of Laws, which is probably more than can be said for most people who make statements about him. I sincerely do recommend reading him, especially for those who roam around believing that the reduced formal separation of powers is what he presented to the world for all to be fine.

[17] I do not recall having been taught about the British influence in school. However, the British model of constitutional monarchy had great influence on the rest of Europe, also on Norway. It is perhaps more correct to say that the Norwegian constitution was influenced by the American and French constitutions than by the American and French revolutions. It may very well be that this is what Norwegian school kids are taught. However, I do not recall being taught about any such distinction. Moreover, I do not recall being taught about the important differences between the American and French revolutions – a distinction which is even more important – when being taught about their influence.

[18] Of course, French influence is not necessarily only revolutionary influence. Influence from Montesquieu is also French influence.

[19] The rest of Europe to a certain extent returned to the old order after having seen the catastrophe which the French Revolution represented.

[20] E.g., no foundations may be created such that only the interest – or increase in value – may be handed out to the benefit of one’s descendants’ education. This has led to foundations benefiting people who meet certain criteria in addition to members of a particular family, who do not need to meet these criteria.

[21] Marshall Davies Lloyd questions the crediting of Montesquieu for authoring the balance of powers. Davies Lloyd refers us to King Charles I as source for mixed constitutions, in addition to ancient sources.

[22] There was at least one proposal for a system with a more limited franchise upper house.

[23] It was upon this draft arrangement our current arrangement with having amendments being proposed in one term, and not being voted on, and possibly passed by a 2/3 majority, in the next is based. This belies the claim that supermajorities in Parliament are exclusively in place to prevent coincidental majorities in Parliament without there being a popular majority. Anyway, the present party rule system prevents the provision that a constitutional amendment must be placed before an election from being any effective check in most cases.

[24] Titled Fra Eidsvold til Westminster?From Eidsvold to Westminster? – symbolizing the move from sovereignty of the Constitution to parliamentary sovereignty. The essay was published in FaklerTorches – a book marking the 150th anniversary of the Polytechnic Society.

[25] Butler Shaffer is probably right about constitutional democracy being utopia. However, other constitutional governments with real limitations could work.

[26] The Swedish Crown Prince was busy fighting elsewhere, but soon he would come and assert his claim to Norway.

[27] According to Professor of history Francis Sejersted no one talked about democracy in 1814. I am afraid that the same cannot be said about popular sovereignty.

[28] One would think that deceiving people by telling them that democracy was created when it is clear to everybody that the King was left with the executive power is hopeless. It is probably harder to deceive people given this fact. Still the democracy perspective seems overwhelming. It is not that scholars won’t admit the correctness of another perspective that the popular power perspective. Some do. Some don’t. As often is the case, the general problem is generally what is left out.

[29] In the debate of whether the Electoral College should go and replace a direct popular election I clearly recommend keeping the Electoral College. Replacing it with a direct election would probably make things worse. There is little doubt though that the Electoral College today is a mere remnant of what it was meant to be.

[30] The arrangement of one-representative constituencies and the election per state does modify the oneness of the source, but to a very large extent we are still operating with one source. Moreover, the theory that the U.S. Senate represents the states and the U.S. House of Representatives represents the people of those states is nowadays mere formality at best.

[31] It must be added that the constitutional provision that no Member of Parliament can at the same time be Cabinet Secretary is still intact and observed – Cabinet Members have substitutes in Parliament. However, it is hard to see how this remnant of the old regime has much effect. The party whip contributes largely, but not solely, to that.

[32] Do we see here influence from Jacksonian democracy and the British Reform Act of 1832? In a classic in Norwegian juridical literature Frederik Stang calls the system “democratic-monarchical.” Stang was later Chief Minister, succeeding Hans Christian Petersen, who laid the foundation stone of the Parliament building. A curiosity is that the publisher of Stang’s book, published in 1833, was Hoppes forlag. I have, however, been assured that there is no known relation to the author of Democracy – The God that Failed. It must also be noted that in this classic Stang asserted the concept of a suspensive veto for constitutional amendments, a concept he had abandoned by the time he was fighting for the life of the royal prerogatives.

[33] There was also the strategy of passing very detailed money bills, i.e., an attempt to govern through money bills was made.

[34] Of course, Mencken and de Jouvenel are right when pointing out the impossibility of a government which is not of men. However, the pre-1884 system was much more a government of laws and not of men than what we have had since. According to an article in Idéer om frihetIdeas on Liberty in 1983 on freedom of enterprise we have especially the last 100 years [since around 1883] seen a weakening of the position of the Constitution and a development towards legal positivism, i.e., the concept that the legislature can pass any law at will. According to the same article Sejersted is among those historians who believe this development not to be in accordance with the premises laid down at the Constitutional Convention.

[35] According to Norwegian Professor of political science Trond Nordby Johan Sverdrup never said “all power in this hall.” What he did say, according to Nordby, was that all power was to be gathered in Parliament Hall, not that “Parliament Hall” was to have all power. This does make sense since the particular issue being fronted was for the executive Council to meet and take part in the parliamentary debates. According to Professor Nordby the pressure from more radical elements gave parliamentarism. Moreover, Nordby tells us that parliamentarism, contrary to popular belief, was not finally brought about in 1884. Regardless of whether Nordby is correct or not, that does, however, not disestablish the fact that 1884 was a watershed and that the principle was established in 1884. Also, it is a fact of life and history that leaders get the credit – or in this case blame is a better fitting term. Furthermore, the motto “all power in this hall” is de facto pretty much what we are stuck with due to parliamentarism and the rise of absolute popular sovereignty.

[36] When Selmer later ran for the chairmanship of the Conservative Party, he only got 9 votes. This gives a picture of how little support there was for his hard line.

[37]I can of course not guarantee that some gentlemen did not actually go loose on one another.

[38] This was to emphasize that the Constitution was to be amended through due process, not through political “trials.”

[39] It could be that although he knew the battle was lost, he did not consider the “war” lost.

[40] I have never been to Independence Hall in Philadelphia so I would not know what it is like there, but it would not surprise me if it were similar.

[41] Politically incorrect guides to European history and to the history of Western civilization would be welcome as well for that matter.