Constitutionalism

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Constitutionalism is a word with a variety of meanings. Most generally, it is “a [1] complex of ideas, attitudes, and patterns of behavior [2] elaborating the principle that the authority of government [3] derives from and is limited by a body of fundamental law.” [1]

Contents

[edit] Uses Of The Term Constitutionalism

[edit] Constitutionalism As A “Complex Of Ideas, Attitudes, And Patterns Of Behavior”

As the above definition implies, constitutionalism has prescriptive and descriptive uses. Law professor Gerhard_Casper captured this aspect of the term in noting that: “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.” [2]

[edit] Descriptive Use

One example of constitutionalism’s descriptive use is law professor Bernard Schwartz’s 5 volume compilation of sources seeking to trace the origins of the Federal bill of rights. [3] Beginning with English antecedents going back to the Magna Carta (1215), the author explores the presence and development of ideas of individual freedoms and privileges through colonial charters and legal understandings. Then, in carrying the story forward, the author 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 values and principles in a constitutional order.

[edit] Prescriptive Use

In contrast to describing what constitutions are, a prescriptive approach addresses what a constitution should be. As presented by 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.”[4] One example of this prescriptive approach was the project of the National Municipal League to develop a “Model State Constitution.”


[edit] 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.” [5] Similarly, historian Gordon S. Wood described this American constitutionalism as “advanced thinking” on the nature of constitutions in which the a constitution was conceived to be “a ‘sett of fundamental rules by which even the supreme power of the state shall be governed.’” [6] Ultimately, American constitutionalism came to rest on the collective sovereignty of the people - the source that legitimated American governments.

[edit] 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 givn to the trust which men repose in the power of words engrossed on parchment to keep a government in order.” [7]

[edit] Questions of Constitutionalism vs. Constitutional Questions

The study of constitutions is not necessarily synonymous with the study of constitutionalism. Although frequently conflated, there are crucial differences. A most useful discussion of this difference appears in legal historian Christian G. Fritz’s study of American constitutionalism prior to the Civil War. 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.” [8] 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. But

“[t]hese 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.”

[9]

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” yet they “make up a body not of laws, but of constitutional or political ethics.” [10]

[edit] Examples

[edit] United States

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. [11]

In point of fact, there is a rich tradition of state constitutionalism that offers broader insight into constitutionalism in the United States. [12] While state constitutions and the federal Constitution operate differently as a function of federalism—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 the American constitutional tradition. [13] Both the experience with state constitutions before—and after—the federal Constitution as well as the emergence and operation of the federal Constitution reflect an on-going struggle over the idea that all governments in America rested on the sovereignty of the people for their legitimacy. [14]

[edit] Polish–Lithuanian Commonwealth

The Constitution of May 3, 1791 is generally recognized as Europe's first and the world's second modern codified national constitution, following the 1787–90 ratification of the United States Constitution. It was in effect for only a year.

The May 3rd Constitution was designed to redress long-standing 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,[4] thus mitigating the worst abuses of serfdom.

[edit] United Kingdom

The United Kingdom is perhaps the best instance of constitutionalism in a country that does not have a written constitution. A variety of developments in seventeenth-century England, including "the protracted struggle for power between king and Parliament was accompanied by an efflourescence of political ideas in which the concept of countervailing powers was clearly defined," [15] led to a well-developed polity with multiple governmental and private institutions that counter the power of the state. [16]

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. (See the Constitution of the United Kingdom.)

[edit] 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. Juan 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.

[edit] Other countries

In 1820 Constitutionalist revolutions occurred in Portugal and the Kingdom of the Two Sicilies. In 1906, constitutionalism was introduced in Iran.

[edit] References

  1. ^ Don E. Fehrenbacher, Constitutions and Constitutionalism in the Slaveholding South (University of Georgia Press, 1989) at p. 1. ISBN 978-0820311197 (blocked numbers added)
  2. ^ Leonard Levy, ed., Encyclopedia of the American Constitution, (Gerhard Casper, “Constitutionalism”), vol 2, p. 473, 473 (1986) ISBN 9780028648804
  3. ^ Bernard Schwartz, The Roots of the Bill of Rights (5 vols., Chelsea House Publisher, 1980) [ISBN 9780877542070]
  4. ^ Stanford Encyclopedia of Philosophy, Wil Waluchow (Constitutionalism) (Intro Jan 2001 (revised Feb 20, 2007)
  5. ^ Christian G. Fritz, American Sovereigns: The People and America’s Constitutional Tradition Before the Civil War (Cambridge University Press, 2008) at p. 1 [ISBN 978-0-521-88188-3
  6. ^ Gordon S. Wood, The Creation of the American Republic, 1770-1787 (W.W.Norton & Co. 1969) at p. 268 [ISBN 0-393-31040] (quoting Demophilus, Genuine Principles, at p. 4> (Demophilus [George Bryan?]: the Genuine Principles of the Ancient Saxon, Or English [,] Constitution)
  7. ^ Walton H. Hamilton, Constitutionalism. in Edwin R.A. Seligman et al. (eds) Encyclopedia of the Social Sciences (New York: Macmillian 1931) at p. 255.
  8. ^ Christian G. Fritz, American Sovereigns: The People and America’s Constitutional Tradition Before the Civil War (Cambridge University Press, 2008) at p. 6 [ISBN 978-0-521-88188-3
  9. ^ Id.
  10. ^ Dicey, A.V., Introduction to the Study of the Law of the Constitution, 8th ed. (London: Macmillan 1914) (Part III: The Connection between the law of he constitution and the conventions of the constitution; Ch 14
  11. ^ For the assumptions by historians, political scientists, and lawyers that have contributed to a view of constitutionalism essentially connected and confined to the U.S. Constitution, see Christian G. Fritz, “Fallacies of American Constitutionalism ,” 35 Rutgers Law Journal (2004), 1327-69. See also, Christian G. Fritz, American Sovereigns: The People and America’s Constitutional Tradition Before the Civil War (Cambridge University Press, 2008) at p. 284 (“Invariably, the state constitutional tradition is deemed less authentic because of its departure from the federal model. This has led to the assumption that one need only study the federal Constitution to discover what American constitutionalism was then and is today.”) [ISBN 978-0-521-88188-3]
  12. ^ G. Alan Tarr, Understanding State Constitutions (Princeton Univ. Press, 1998) and John J. Dinan, The American State Constitutional Tradition (Univ. Press of Kansas, 2006).
  13. ^ Paul K. Conkin, Self-Evident Truths: Being a Discourse on the Origins & Development of the First Principles of American Government—Popular Sovereignty, Natural Rights, and Balance & Separation of Powers (Indiana Univ. Press, 1974), 52 (describing “the almost unanimous acceptance of popular sovereignty at the level of abstract principle”); Edmund S. Morgan, “The Problem of Popular Sovereignty,” in Aspects of American Liberty: Philosophical, Historical and Political (The American Philosophical Society, 1977), 101 (concluding the American Revolution “confirmed and completed the subordination of government to the will of the people”); Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era (University of North Carolina Press, 1980), 137 (asserting that statements of the “principle” of the people’s sovereignty “expressed the very heart of the consensus among the victors of 1776”).
  14. ^ Christian G. Fritz, American Sovereigns: The People and America’s Constitutional Tradition Before the Civil War (Cambridge University Press, 2008) at p. 284 (Observing that from the Revolutionary era to the period before the Civil War “Americans continued to wrestle with what it meant that their national as well as state governments rested on the sovereignty of the people”) [ISBN 978-0-521-88188-3]
  15. ^ Gordon, Scott (1999). Controlling the State: Constitutionalism from Ancient Athens to Today. Harvard University Press, 5, 226, 223-283, 327-357). ISBN 0674169875. 
  16. ^ Bagehot, Walter (1867). The English Constitution. Chapman and Hall, 348. 

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