Constitutionalism

Constitutionalism is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law".[1]

A political organization is constitutional to the extent that it "contain[s] institutionalized mechanisms of power control for the protection of the interests and liberties of the citizenry, including those that may be in the minority".[2] As described by political scientist and constitutional scholar David Fellman:

Constitutionalism is descriptive of a complicated concept, deeply imbedded 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.[3]

Usage

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."[4]

Descriptive

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 U.S. Bill of Rights.[5] 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 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."[6] One example of this prescriptive approach was the project of the National Municipal League[7] to develop a model state constitution.[8]

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."[9] 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" set of fundamental rules by which even the supreme power of the state shall be governed.'"[10] 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."[11]

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 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,[12] 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."[13] 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,

[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.[13]

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."[14]

Constitutional economics

Constitutionalism has been the subject of criticism for its previous ignorance of economic issues but this criticism is now taken into account by the development of constitutional economics.

Constitutional economics is a field of economics and constitutionalism which describes and analyzes the specific interrelationships between constitutional issues and the structure and functioning of the economy. The term “constitutional economics” was used by American economist – James M. Buchanan – as a name for a new academic sub-discipline. Buchanan received in 1986 the Nobel Prize in Economic Sciences for his “development of the contractual and constitutional bases for the theory of economic and political decision-making.”[15] Buchanan rejects “any organic conception of the state as superior in wisdom, to the individuals who are its members.” This philosophical position is, in fact, the very subject matter of constitutional economics.

A constitutional economics approach allows for a combined economic and constitutional analysis, helping to avoid a one-dimensional understanding. Buchanan believes that a constitution, intended for use by at least several generations of citizens, must be able to adjust itself for pragmatic economic decisions and to balance interests of the state and society against those of individuals and their constitutional rights to personal freedom and private happiness. Constitutional economics draws substantial inspiration from the reformist attitude which is characteristic of Adam Smith’s vision, and that Buchanan’s concept can be considered the modern-day counterpart to what Smith called “the science of legislation.” Concurrently with the rise of academic research in the field of constitutional economics in the U.S. in the 1980s, the Supreme Court of India for almost a decade had been encouraging public interest litigation on behalf of the poor and oppressed by using a very broad interpretation of several articles of the Indian Constitution.[16] This is a vivid example of a de facto practical application of the methodology of constitutional economics.

The Russian school of constitutional economics was created in the early twenty-first century with the idea that constitutional economics allows for a combined economic and constitutional analysis in the legislative (especially budgetary) process, thus helping to overcome arbitrariness in the economic and financial decision-making: for instance, when military expenses (and the like) dwarf the budget spending on education and culture. In the English language, the word “constitution” possesses a whole number of meanings, encompassing not only national constitutions as such, but also charters of public organizations, unwritten rules of various clubs, informal groups, etc. The Russian model of constitutional economics, originally intended for transitional and developing countries, focuses entirely on the concept of state constitution. In 2006, the Russian Academy of Sciences officially recognized constitutional economics as a separate academic sub-discipline.[17] Since many a country with transitional political and economic system continues treating its constitution as an abstract legal document disengaged from the economic policy of the state, the practice of constitutional economics becomes there a decisive prerequisite for democratic development of the state and society.

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.[4]

United States

American constitutionalism has been defined as a complex of ideas, attitudes, and patterns of behavior 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 of behavior, 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".[18]

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.[19]

There is a rich tradition of state constitutionalism that offers broader insight into constitutionalism in the United States.[20] 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.[21] 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.[22]

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 seventeenth-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,"[23] led to a well-developed polity with multiple governmental and private institutions that counter the power of the state.[24]

Japan

The recent move of the Japanese government for revisions of its 1947 Constitution under the Abe Shinzo's administration is criticized as anti-constitutionalist 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."[25]

Prescriptive

The prescriptive approach to constitutionalism addresses what a constitution should be. Two observations might be offered about its prescriptive use.

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.[29]

Polish–Lithuanian Commonwealth

The Constitution of May 3, 1791, which historian Norman Davies calls "the first constitution of its kind in Europe",[30] was in effect for only a year. It 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, 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.[31]

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.

Criticisms

Constitutionalism has been the subject of criticism by numerous anarchist thinkers. For example, Murray Rothbard, who coined the term "anarcho-capitalism", attacked constitutionalism, arguing that constitutions are incapable of restraining governments and do not protect the rights of citizens from their governments. Rothbard wrote that:

[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.[32]

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.[33]

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."[34] However, the concrete meaning of the notion remains contested among Muslim as well as Western scholars. Influential thinkers like Mohammad Hashim Kamali[35] and Khaled Abou El Fadl,[36] but also younger ones like Asifa Quraishi[37] and Nadirsyah Hosen[38] 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.[39]

See also

References

  1. ↑ Don E. Fehrenbacher, Constitutions and Constitutionalism in the Slaveholding South (University of Georgia Press, 1989) at p. 1. ISBN 978-0-8203-1119-7.
  2. ↑ Gordon, Scott (1999). Controlling the State: Constitutionalism from Ancient Athens to Today. Harvard University Press. p. 4. ISBN 0-674-16987-5.
  3. ↑ Philip P. Wiener, ed., "Dictionary of the History of Ideas: Studies of Selected Pivotal Ideas", (David Fellman, "Constitutionalism"), vol 1, pp. 485, 491–92 (1973–74) ("Whatever particular form of government a constitution delineates, however, it serves as the keystone of the arch of constitutionalism, except in those countries whose written constitutions are mere sham. Constitutionalism as a theory and in practice stands for the principle that there are—in a properly governed state—limitations upon those who exercise the powers of government, and that these limitations are spelled out in a body of higher law which is enforceable in a variety of ways, political and judicial. This is by no means a modern idea, for the concept of a higher law which spells out the basic norms of a political society is as old as Western civilization. That there are standards of rightness which transcend and control public officials, even current popular majorities, represents a critically significant element of man's endless quest for the good life.")
  4. ↑ 4.0 4.1 Leonard Levy, ed., Encyclopedia of the American Constitution, (Gerhard Casper, "Constitutionalism"), vol 2, p. 473 (1986) ISBN 978-0-02-864880-4.
  5. ↑ Bernard Schwartz, The Roots of the Bill of Rights (5 vols., Chelsea House Publisher, 1980) ISBN 9780877542070.
  6. ↑ Stanford Encyclopedia of Philosophy, Wil Waluchow (Constitutionalism) (Intro Jan 2001 (revised Feb 20, 2007).
  7. ↑ Frank Mann Stewart, A Half Century of Municipal Reform: A History of the National Municipal League Ch.2 (Univ. of California Press, 1950).
  8. ↑ "Model State Constitution."
  9. ↑ 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.
  10. ↑ Gordon S. Wood, The Creation of the American Republic, 1770–1787 (W.W.Norton & Co. 1969) at p. 268 ISBN 0-393-31040-X (quoting Demophilus, Genuine Principles, at p. 4> (Demophilus [George Bryan?]: the Genuine Principles of the Ancient Saxon, Or English [,] Constitution).
  11. ↑ Walton H. Hamilton, Constitutionalism. in Edwin R.A. Seligman et al. (eds) Encyclopedia of the Social Sciences (New York: Macmillian 1931) at p. 255.
  12. ↑ (Cambridge University Press, 2008).
  13. ↑ 13.0 13.1 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.
  14. ↑ 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 the constitution and the conventions of the constitution; Ch 14.
  15. ↑ http://nobelprize.org/nobel_prizes/economics/laureates/1986/buchanan.html
  16. ↑ Jeremy Cooper, Poverty and Constitutional Justice, in Philosophy of Law: Classic and Contemporary Readings, edited by Larry May and Jeff Brown, Wiley-Blackwell, UK, 2010
  17. ↑ Peter Barenboim, Natalya Merkulova. "The 25th Anniversary of Constitutional Economics: The Russian Model and Legal Reform in Russia, in The World Rule of Law Movement and Russian Legal Reform", edited by Francis Neate and Holly Nielsen, Justitsinform, Moscow (2007).
  18. ↑ Stephen M. Griffin, "American Constitutionalism: From Theory to Politics" (Princeton University Press, 1996) at p. 5. ISBN 978-0-691-03404-1.
  19. ↑ 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.
  20. ↑ G. Alan Tarr, Understanding State Constitutions (Princeton Univ. Press, 1998) and John J. Dinan, The American State Constitutional Tradition (Univ. Press of Kansas, 2006).
  21. ↑ 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").
  22. ↑ 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.
  23. ↑ Gordon, Scott (1999). Controlling the State: Constitutionalism from Ancient Athens to Today. Harvard University Press. pp. 5, 223–83, 327–57. ISBN 0-674-16987-5.
  24. ↑ Bagehot, Walter (1867). The English Constitution. Chapman and Hall. pp. 2, 348. (Bagehot noted his intent to correct mistaken views of the British constitution, including whether the constitution was "laid down as a principle of the English polity, that in it the legislative, the executive, and the judicial powers, are quite divided….” )
  25. ↑ Rohac, Dalibor (June 2008). "The unanimity rule and religious fractionalisation in the Polish-Lithuanian Republic". Constitutional Political Economy (Springer) 19 (2): 111–28. doi:10.1007/s10602-008-9037-5. Retrieved 2009-05-18.
  26. ↑ Philip P. Wiener, ed., "Dictionary of the History of Ideas: Studies of Selected Pivotal Ideas", (David Fellman, "Constitutionalism"), vol 1, p. 485 (1973–74).
  27. ↑ Herman Belz, "A Living Constitution or Fundamental Law? American Constitutionalism in Historical Perspective" (Rowman & Littlefield Publishers, Inc. 1998) at pp. 148–49 (Belz further argues: "Constitutionalism shapes political life in a variety of ways. Constitutional principles can become matters of commitment and belief possessing intrinsic value that motivate political action. . . . When citizens and governing officials internalize constitutional values, acting out of fidelity to law rather than expediency, constitutionalism gives direction to political life. Constitutionalism has a configurative effect also in providing the forms, rhetoric, and symbols by which politics is carried on. Political groups and individuals ordinarily try to choose courses of action that are consistent with or required by the Constitution. They do so not because they are in each instance committed to the constitutional principle or value at issue . . . [but] because they know that the public takes the Constitution seriously, believing that it embodies fundamental values and formal procedures that are the touchstone of political legitimacy. In American politics the Constitution is a justifying concept, and groups that invoke constitutional arguments do so, from their own perspective perhaps and in an immediate sense, instrumentally. Considered from an external and long-range view in relation to the polity as a whole, however, reliance on constitutional principles and rules is normative and noninstrumental. In this way constitutionalism shapes political events") ISBN 978-0-8476-8643-8.
  28. ↑ Louis Michael Seidman, "Critical Constitutionalism Now", 75 Fordham Law Review pp. 575, 586 (Nov. 2006).
  29. ↑ James Madison, in his remarks introducing the Bill of Rights, 8 June 1789, Annals 1:424–50. Link
  30. ↑ Davies, Norman (1996). Europe: A History. Oxford University Press. p. 699. ISBN 0-19-820171-0.
  31. ↑ British parliamentary election results 1918-1949, Craig, F.W.S.
  32. ↑ Murray N. Rothbard, For a New Liberty: The Libertarian Manifesto (1978), p. 48.
  33. ↑ Waldron, Jeremy (2009). "Constitutionalism – A Skeptical View". In Christiano, Thomas; Christman, John. Contemporary Debates in Political Philosophy. p. 279.
  34. ↑ Ann E. Mayer, Conundrums in Constitutionalism: Islamic Monarchies in an Era of Transition, 1 UCLA J. Islamic & Near E.L. 183 (Spring / Summer, 2002).
  35. ↑ Mohammad Hashim Kamali, Constitutionalism in Islamic Countries: A Contemporary Perspective of Islamic Law, in: Rainer Grote and Tilmann Röder (eds.), Constitutionalism in Islamic Countries: Between Upheaval and Continuity, Oxford University Press, Oxford/New York 2011.
  36. ↑ Khaled Abou El Fadl, Shariah and Constitutionalism in: Rainer Grote and Tilmann Röder (eds.), Constitutionalism in Islamic Countries: Between Upheaval and Continuity, Oxford University Press, Oxford/New York 2011.
  37. ↑ Asifa Quraishi, The Separation of Powers in the Tradition of Muslim Governments, in: Rainer Grote and Tilmann Röder (eds.), Constitutionalism in Islamic Countries: Between Upheaval and Continuity, Oxford University Press, Oxford/New York 2011.
  38. ↑ Nadirsyah Hosen, "In search of Islamic Constitutionalism", American Journal of Islamic Social Sciences, Volume 21, No. 2, 2004, 23 foll.
  39. ↑ See, e.g. the monitoring project "Constitutional Reform in Arab Countries", http://www.mpil.de/red/crac.

Further reading

External links