Political organizations are constitutional to the extent that they "contain institutionalized mechanisms of power control for the protection of the interests and liberties of the citizenry, including those that may be in the minority". As described by political scientist and constitutional scholar David Fellman:
Constitutionalism is descriptive of a complicated concept, deeply embedded in historical experience, which subjects the officials who exercise governmental powers to the limitations of a higher law. Constitutionalism proclaims the desirability of the rule of law as opposed to rule by the arbitrary judgment or mere fiat of public officials ... Throughout the literature dealing with modern public law and the foundations of statecraft the central element of the concept of constitutionalism is that in political society government officials are not free to do anything they please in any manner they choose; they are bound to observe both the limitations on power and the procedures which are set out in the supreme, constitutional law of the community. It may therefore be said that the touchstone of constitutionalism is the concept of limited government under a higher law.
Usage
Constitutionalism has prescriptive and descriptive uses. Law professor Gerhard Casper
captured this aspect of the term in noting, "Constitutionalism has both
descriptive and prescriptive connotations. Used descriptively, it
refers chiefly to the historical struggle for constitutional recognition
of the people's right to 'consent' and certain other rights, freedoms,
and privileges. Used prescriptively, its meaning incorporates those
features of government seen as the essential elements of the...
Constitution".
Descriptive
One
example of constitutionalism's descriptive use is law professor Bernard
Schwartz's five volume compilation of sources seeking to trace the
origins of the U.S. Bill of Rights. Beginning with English antecedents going back to Magna Carta
(1215), Schwartz explores the presence and development of ideas of
individual freedoms and privileges through colonial charters and legal
understandings. Then in carrying the story forward, he identifies
revolutionary declarations and constitutions,
documents and judicial decisions of the Confederation period and the
formation of the federal Constitution. Finally, he turns to the debates
over the federal Constitution's ratification that ultimately provided
mounting pressure for a federal bill of rights. While hardly presenting a
straight line, the account illustrates the historical struggle to
recognize and enshrine constitutional rights and principles in a
constitutional order.
Prescriptive
In
contrast to describing what constitutions are, a prescriptive approach
addresses what a constitution should be. As presented by the Canadian
philosopher Wil Waluchow, constitutionalism embodies
the idea ... that government can and should be legally limited in its powers, and that its authority depends on its observing these limitations. This idea brings with it a host of vexing questions of interest not only to legal scholars, but to anyone keen to explore the legal and philosophical foundations of the state.
One example of this prescriptive approach was the project of the National Municipal League to develop a model state constitution.
Authority of government
Whether
reflecting a descriptive or prescriptive focus, treatments of the
concept of constitutionalism all deal with the legitimacy of government.
One recent assessment of American constitutionalism, for example, notes
that the idea of constitutionalism serves to define what it is that
"grants and guides the legitimate exercise of government authority".
Similarly, historian Gordon S. Wood described this American
constitutionalism as "advanced thinking" on the nature of constitutions
in which the constitution was conceived to be a "sett of fundamental rules by which even the supreme power of the state shall be governed."
Ultimately, American constitutionalism came to rest on the collective
sovereignty of the people, the source that legitimized American
governments.
Fundamental law empowering and limiting government
One
of the most salient features of constitutionalism is that it describes
and prescribes both the source and the limits of government power.
William H. Hamilton has captured this dual aspect by noting that
constitutionalism "is the name given to the trust which men repose in
the power of words engrossed on parchment to keep a government in
order."
Constitutionalism and constitutional questions
The
study of constitutions is not necessarily synonymous with the study of
constitutionalism. Although frequently conflated, there are crucial
differences. A discussion of this difference appears in legal historian
Christian G. Fritz's American Sovereigns: The People and America's Constitutional Tradition Before the Civil War,
a study of the early history of American constitutionalism. Fritz notes
that an analyst could approach the study of historic events focusing on
issues that entailed "constitutional questions" and that this differs
from a focus that involves "questions of constitutionalism."
Constitutional questions involve the analyst in examining how the
constitution was interpreted and applied to distribute power and
authority as the new nation struggled with problems of war and peace,
taxation and representation. However,
These political and constitutional controversies also posed questions of constitutionalism—how to identify the collective sovereign, what powers the sovereign possessed, and how one recognized when that sovereign acted. Unlike constitutional questions, questions of constitutionalism could not be answered by reference to given constitutional text or even judicial opinions. Rather, they were open-ended questions drawing upon competing views Americans developed after Independence about the sovereignty of the people and the ongoing role of the people to monitor the constitutional order that rested on their sovereign authority.
A similar distinction was drawn by British constitutional scholar A.V. Dicey
in assessing Britain's unwritten constitution. Dicey noted a difference
between the "conventions of the constitution" and the "law of the
constitution". The "essential distinction" between the two concepts was
that the law of the constitution was made up of "rules enforced or
recognised by the Courts", making up "a body of 'laws' in the proper
sense of that term." In contrast, the conventions of the constitution
consisted "of customs, practices, maxims, or precepts which are not
enforced or recognised by the Courts" but "make up a body not of laws,
but of constitutional or political ethics".
Examples
Descriptive
Used
descriptively, the concept of constitutionalism can refer chiefly to
the historical struggle for constitutional recognition of the people's
right to "consent" and certain other rights, freedoms, and privileges.
United States
American
constitutionalism has been defined as a complex of ideas, attitudes and
patterns elaborating the principle that the authority of government
derives from the people, and is limited by a body of fundamental law.
These ideas, attitudes and patterns, according to one analyst, derive
from "a dynamic political and historical process rather than from a
static body of thought laid down in the eighteenth century".
In U.S. history, constitutionalism, in both its descriptive and
prescriptive sense, has traditionally focused on the federal
constitution. Indeed, a routine assumption of many scholars has been
that understanding "American constitutionalism" necessarily entails the
thought that went into the drafting of the federal constitution and the
American experience with that constitution since its ratification in
1789.
There is a rich tradition of state constitutionalism that offers broader insight into constitutionalism in the United States.
While state constitutions and the federal constitution operate
differently as a function of federalism from the coexistence and
interplay of governments at both a national and state level, they all
rest on a shared assumption that their legitimacy comes from the
sovereign authority of the people or popular sovereignty. This underlying premise, embraced by the American revolutionaries with the Declaration of Independence unites American constitutional tradition.
Both experience with state constitutions before and after the
federal constitution as well as the emergence and operation of the
latter reflect an ongoing struggle over the idea that all governments in
America rested on the sovereignty of the people for their legitimacy.
United Kingdom
The United Kingdom is perhaps the best instance of constitutionalism in a country that has an uncodified constitution. A variety of developments in 17th century England, including "the protracted struggle for power between King and Parliament was accompanied by an efflorescence of political ideas in which the concept of countervailing powers was clearly defined,"
led to a well-developed polity with multiple governmental and private institutions that counter the power of the state.
Japan
The recent move of the Japanese government for revisions of its 1947 constitution under Shinzō Abe's
administration is criticized as anticonstitutionalist in the sense that
the new constitution would impose obligations on citizens rather than
protect their human rights.
Polish–Lithuanian Commonwealth
From the mid-sixteenth to the late eighteenth century, the Polish–Lithuanian Commonwealth utilized the liberum veto, a form of unanimity voting rule, in its parliamentary deliberations. The "principle of liberum veto
played an important role in [the] emergence of the unique Polish form
of constitutionalism." This constraint on the powers of the monarch were
significant in making the "[r]ule of law, religious tolerance and
limited constitutional government... the norm in Poland in times when
the rest of Europe was being devastated by religious hatred and
despotism."
Prescriptive
The
prescriptive approach to constitutionalism addresses what a
constitution should be. Two observations might be offered about its
prescriptive use.
- There is often confusion in equating the presence of a written constitution with the conclusion that a state or polity is one based upon constitutionalism. As noted by David Fellman, constitutionalism "should not be taken to mean that if a state has a constitution, it is necessarily committed to the idea of constitutionalism. In a very real sense... every state may be said to have a constitution, since every state has institutions which are at the very least expected to be permanent, and every state has established ways of doing things". But even with a "formal written document labelled 'constitution' which includes the provisions customarily found in such a document, it does not follow that it is committed to constitutionalism...."
- Often the word "constitutionalism" is used in a rhetorical sense, as a political argument that equates the views of the speaker or writer with a preferred view of the constitution. For instance, University of Maryland Constitutional History Professor Herman Belz's critical assessment of expansive constitutional construction notes that "constitutionalism... ought to be recognized as a distinctive ideology and approach to political life.... Constitutionalism not only establishes the institutional and intellectual framework, but it also supplies much of the rhetorical currency with which political transactions are carried on." Similarly, Georgetown University Law Center Professor Louis Michael Seidman noted as well the confluence of political rhetoric with arguments supposedly rooted in constitutionalism. In assessing the "meaning that critical scholars attributed to constitutional law in the late twentieth century," Professor Seidman notes a "new order... characterized most prominently by extremely aggressive use of legal argument and rhetoric" and as a result "powerful legal actors are willing to advance arguments previously thought out-of-bounds. They have, in short, used legal reasoning to do exactly what crits claim legal reasoning always does—put the lipstick of disinterested constitutionalism on the pig of raw politics."
United States
Starting with the proposition that "'Constitutionalism' refers to the position or practice that government be limited by a constitution,
usually written," analysts take a variety of positions on what the
constitution means. For instance, they describe the document as a
document that may specify its relation to statutes, treaties, executive
and judicial actions, and the constitutions or laws of regional
jurisdictions. This prescriptive use of Constitutionalism is also
concerned with the principles of constitutional design, which includes the principle that the field of public action be partitioned between delegated powers to the government and the rights
of individuals, each of which is a restriction of the other, and that
no powers be delegated that are beyond the competence of government.
Polish–Lithuanian Commonwealth
The Constitution of May 3, 1791, which historian Norman Davies calls "the first constitution of its kind in Europe",
was in effect for only a year. It was designed to redress longstanding
political defects of the Polish–Lithuanian Commonwealth and its
traditional system of "Golden Liberty". The Constitution introduced
political equality between townspeople and nobility (szlachta) and placed the peasants under the protection of the government, thus mitigating the worst abuses of serfdom.
United Kingdom
Constitutionalist was also a label used by some independent candidates in UK general elections in the early 1920s. Most of the candidates were former Liberal Party members, and many of them joined the Conservative Party soon after being elected. The best known Constitutionalist candidate was Winston Churchill in the 1924 UK general election.
Dominican Republic
After the democratically elected government of president Juan Bosch
in the Dominican Republic was deposed, the Constitutionalist movement
was born in the country. As opposed to said movement, the
Anticonstitutionalist movement was also born. Bosch had to depart to Puerto Rico
after he was deposed. His first leader was Colonel Rafael Tomás
Fernández Domínguez, and he wanted Bosch to come back to power once
again. Colonel Fernández Domínguez was exiled to Puerto Rico where Bosch
was. The Constitutionalists had a new leader: Colonel Francisco Alberto Caamaño Deñó.
Criticisms
Legal scholar Jeremy Waldron contends that constitutionalism is often undemocratic:
Constitutions are not just about retraining and limiting power; they are about the empowerment of ordinary people in a democracy and allowing them to control the sources of law and harness the apparatus of government to their aspirations. That is the democratic view of constitutions, but it is not the constitutionalist view.... Of course, it is always possible to present an alternative to constitutionalism as an alternative form of constitutionalism: scholars talk of "popular constitutionalism" or "democratic constitutionalism."... But I think it is worth setting out a stark version of the antipathy between constitutionalism and democratic or popular self-government, if only because that will help us to measure more clearly the extent to which a new and mature theory of constitutional law takes proper account of the constitutional burden of ensuring that the people are not disenfranchised by the very document that is supposed to give them their power.
Constitutionalism has also been the subject of criticism by Murray Rothbard,
who attacked constitutionalism as incapable of restraining governments
and does not protect the rights of citizens from their governments:
[i]t is true that, in the United States, at least, we have a constitution that imposes strict limits on some powers of government. But, as we have discovered in the past century, no constitution can interpret or enforce itself; it must be interpreted by men. And if the ultimate power to interpret a constitution is given to the government's own Supreme Court, then the inevitable tendency is for the Court to continue to place its imprimatur on ever-broader powers for its own government. Furthermore, the highly touted "checks and balances" and "separation of powers" in the American government are flimsy indeed, since in the final analysis all of these divisions are part of the same government and are governed by the same set of rulers.
Islamic constitutionalism
The
scope and limits of constitutionalism in Muslim countries have
attracted growing interest in recent years. Authors such as Ann E. Mayer
define Islamic constitutionalism as "constitutionalism that is in some
form based on Islamic principles, as opposed to constitutionalism that
has developed in countries that happen to be Muslim but that has not
been informed by distinctively Islamic principles".
However, the concrete meaning of the notion remains contested among
Muslim as well as Western scholars. Influential thinkers like Mohammad Hashim Kamali and Khaled Abou El Fadl, but also younger ones like Asifa Quraishi and Nadirsyah Hosen combine classic Islamic law with modern constitutionalism. The constitutional changes initiated by the Arab Spring movement have already brought into reality many new hybrid models of Islamic constitutionalism.
