Constitutionalism
Encyclopedia
- "Constitutionalist" redirects here. For parties called Constitutionalist see Constitution PartyConstitution PartyConstitution Party, Constitutional Party, or Constitutionalist Party may refer to one of several political parties.In Estonia:* Constitution Party , merged into Estonian United Left PartyIn Iran:*Constitutionalist Party of Iran...
.
Constitutionalism has a variety of meanings. Most generally, it 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".
A political organization is constitutional to the extent that it "contain[s] institution
Institution
An institution is any structure or mechanism of social order and cooperation governing the behavior of a set of individuals within a given human community...
alized mechanisms of power control for the protection of the interests and liberties
Liberty
Liberty is a moral and political principle, or Right, that identifies the condition in which human beings are able to govern themselves, to behave according to their own free will, and take responsibility for their actions...
of the citizenry, including those that may be in the minority
Minority group
A minority is a sociological group within a demographic. The demographic could be based on many factors from ethnicity, gender, wealth, power, etc. The term extends to numerous situations, and civilizations within history, despite the misnomer of minorities associated with a numerical statistic...
". As described by political scientist and constitutional scholar David Fellman
David Fellman
David Fellman was an United States law and civil liberties and advocate for academic freedom. He taught general constitutional law, administrative law and civil liberties .Born in Omaha, Nebraska, Fellman was a member of the Omaha Central High...
:
Usage
Constitutionalism has prescriptive and descriptive uses. Law professor Gerhard CasperGerhard Casper
Gerhard Casper was the 9th president of Stanford University from 1992-2000. He is currently the Peter and Helen Bing Professor in Undergraduate Education at Stanford...
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."
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 U.S. Bill of Rights. Beginning with English antecedents going back to the Magna CartaMagna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
(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 constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
s, 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 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." 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 'set 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 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, 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,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."
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 economicsConstitutional economics
Constitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...
.
Constitutional economics is a field of economics
Economics
Economics is the social science that analyzes the production, distribution, and consumption of goods and services. The term economics comes from the Ancient Greek from + , hence "rules of the house"...
and constitutionalism which describes and analyzes the specific interrelationships between constitutional issues and the structure and functioning of the economy
Economy
An economy consists of the economic system of a country or other area; the labor, capital and land resources; and the manufacturing, trade, distribution, and consumption of goods and services of that area...
. The term “constitutional economics” was used by American economist – James M. Buchanan
James M. Buchanan
James McGill Buchanan, Jr. is an American economist known for his work on public choice theory, for which he received the 1986 Nobel Memorial Prize in Economic Sciences. Buchanan's work initiated research on how politicians' self-interest and non-economic forces affect government economic policy...
– 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.” 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
State (polity)
A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...
and society
Society
A society, or a human society, is a group of people related to each other through persistent relations, or a large social grouping sharing the same geographical or virtual territory, subject to the same political authority and dominant cultural expectations...
against those of individuals and their constitutional rights to personal freedom and private happiness
Happiness
Happiness is a mental state of well-being characterized by positive emotions ranging from contentment to intense joy. A variety of biological, psychological, religious, and philosophical approaches have striven to define happiness and identify its sources....
. Constitutional economics draws substantial inspiration from the reformist attitude which is characteristic of Adam Smith
Adam Smith
Adam Smith was a Scottish social philosopher and a pioneer of political economy. One of the key figures of the Scottish Enlightenment, Smith is the author of The Theory of Moral Sentiments and An Inquiry into the Nature and Causes of the Wealth of Nations...
’s vision, and that Buchanan’s concept can be considered the modern-day counterpart to what Smith called “the science of legislation
Legislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
.”
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
Supreme Court of India
The Supreme Court of India is the highest judicial forum and final court of appeal as established by Part V, Chapter IV of the Constitution of India...
for almost a decade had been encouraging public interest litigation
Public interest litigation
In Indian law, Public Interest Litigation OR जनहित याचिका means litigation for the protection of the public interest. It is litigation introduced in a court of law, not by the aggrieved party but by the court itself or by any other private party...
on behalf of the poor and oppressed by using a very broad interpretation of several articles of the Indian Constitution. 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
Russian Academy of Sciences
The Russian Academy of Sciences consists of the national academy of Russia and a network of scientific research institutes from across the Russian Federation as well as auxiliary scientific and social units like libraries, publishers and hospitals....
officially recognized constitutional economics as a separate academic sub-discipline..
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.
Descriptive use
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 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".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—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
Popular sovereignty
Popular sovereignty or the sovereignty of the people is the political principle that the legitimacy of the state is created and sustained by the will or consent of its people, who are the source of all political power. It is closely associated with Republicanism and the social contract...
. This underlying premise—embraced by the American revolutionaries with the Declaration of Independence—unites the American constitutional tradition. 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.
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 kingMonarchy of the United Kingdom
The monarchy of the United Kingdom is the constitutional monarchy of the United Kingdom and its overseas territories. The present monarch, Queen Elizabeth II, has reigned since 6 February 1952. She and her immediate family undertake various official, ceremonial and representational duties...
and Parliament
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
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.
Polish–Lithuanian Commonwealth
From the mid-sixteenth to the late eighteenth century, the Polish–Lithuanian Commonwealth utilized the liberum vetoLiberum veto
The liberum veto was a parliamentary device in the Polish-Lithuanian Commonwealth. It allowed any member of the Sejm to force an immediate end to the current session and nullify any legislation that had already been passed at the session by shouting Nie pozwalam! .From the mid-16th to the late 18th...
, a form of unanimity voting rule
Unanimity
Unanimity is agreement by all people in a given situation. When unanimous, everybody is of the same mind and acting together as one. Though unlike uniformity, it does not constitute absolute agreement. Many groups consider unanimous decisions a sign of agreement, solidarity, and unity...
, 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 use
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 FellmanDavid FellmanDavid Fellman was an United States law and civil liberties and advocate for academic freedom. He taught general constitutional law, administrative law and civil liberties .Born in Omaha, Nebraska, Fellman was a member of the Omaha Central High...
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 [sic] '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 SeidmanLouis Michael SeidmanLouis Michael Seidman is the Carmack Waterhouse Professor of Constitutional Law at Georgetown University Law Center in Washington DC, a widely read constitutional law scholar and major proponent of the critical legal studies movement....
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 governmentGovernment
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
be limited by a constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
, 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 power
Delegation
Delegation is the assignment of authority and responsibility to another person to carry out specific activities. However the person who delegated the work remains accountable for the outcome of the delegated work. Delegation empowers a subordinate to make decisions, i.e...
s to the government
Government
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
and the rights
Rights
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...
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, 1791Constitution of May 3, 1791
The Constitution of May 3, 1791 was adopted as a "Government Act" on that date by the Sejm of the Polish–Lithuanian Commonwealth. Historian Norman Davies calls it "the first constitution of its type in Europe"; other scholars also refer to it as the world's second oldest constitution...
, which historian Norman Davies
Norman Davies
Professor Ivor Norman Richard Davies FBA, FRHistS is a leading English historian of Welsh descent, noted for his publications on the history of Europe, Poland, and the United Kingdom.- Academic career :...
calls "the first constitution of its kind in Europe", 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 PartyLiberal Party (UK)
The Liberal Party was one of the two major political parties of the United Kingdom during the 19th and early 20th centuries. It was a third party of negligible importance throughout the latter half of the 20th Century, before merging with the Social Democratic Party in 1988 to form the present day...
members, and many of them joined the Conservative Party
Conservative Party (UK)
The Conservative Party, formally the Conservative and Unionist Party, is a centre-right political party in the United Kingdom that adheres to the philosophies of conservatism and British unionism. It is the largest political party in the UK, and is currently the largest single party in the House...
soon after being elected. The best known Constitutionalist candidate was Winston Churchill
Winston Churchill
Sir Winston Leonard Spencer-Churchill, was a predominantly Conservative British politician and statesman known for his leadership of the United Kingdom during the Second World War. He is widely regarded as one of the greatest wartime leaders of the century and served as Prime Minister twice...
in the 1924 UK general election
United Kingdom general election, 1924
- Seats summary :- References :* F. W. S. Craig, British Electoral Facts: 1832-1987* - External links :* * *...
.
Dominican Republic
After the democratically elected government of president Juan BoschJuan Bosch
Juan Emilio Bosch Gaviño was a politician, historian, short story writer, essayist, educator, and the first cleanly elected president of the Dominican Republic for a brief time in 1963. Previously, he had been the leader of the Dominican opposition in exile to the dictatorial regime of Rafael...
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
Francisco Caamaño
Col. Francisco Alberto Caamaño Deñó [Cah-MAH-nyoh Deh-NYOH] was a Dominican soldier and politician....
.
Criticism
Constitutionalism has been the subject of criticism by numerous anarchistAnarchism
Anarchism is generally defined as the political philosophy which holds the state to be undesirable, unnecessary, and harmful, or alternatively as opposing authority in the conduct of human relations...
thinkers. For example, Murray Rothbard
Murray Rothbard
Murray Newton Rothbard was an American author and economist of the Austrian School who helped define capitalist libertarianism and popularized a form of free-market anarchism he termed "anarcho-capitalism." Rothbard wrote over twenty books and is considered a centrally important figure in the...
, who coined the term "anarcho-capitalism,"
Anarcho-capitalism
Anarcho-capitalism is a libertarian and individualist anarchist political philosophy that advocates the elimination of the state in favour of individual sovereignty in a free market...
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.
See also
- ConstitutionConstitutionA constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
- Constitutional economicsConstitutional economicsConstitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...
- Constitutional lawConstitutional lawConstitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....
- Social contractSocial contractThe social contract is an intellectual device intended to explain the appropriate relationship between individuals and their governments. Social contract arguments assert that individuals unite into political societies by a process of mutual consent, agreeing to abide by common rules and accept...
- LibertarianismLibertarianismLibertarianism, in the strictest sense, is the political philosophy that holds individual liberty as the basic moral principle of society. In the broadest sense, it is any political philosophy which approximates this view...
- Rule of lawRule of lawThe rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
- Separation of powersSeparation of powersThe separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
- JudiciaryJudiciaryThe judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
- Rule According to Higher LawRule according to higher lawThe rule according to a higher law means that no written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice...
External links
- Philip P. Wiener, ed., "Dictionary of the History of Ideas: Studies of Selected Pivotal Ideas", (David Fellman, "Constitutionalism"), vol 1, p. 485, 491-92 (1973–74)
- National Humanities Institute
- MJC Vile Constitutionalism and the Separation of Powers (1967, Indianapolis: Liberty Fund, 1998) Second edition.
- "Economics and the Rule of Law" The EconomistThe EconomistThe Economist is an English-language weekly news and international affairs publication owned by The Economist Newspaper Ltd. and edited in offices in the City of Westminster, London, England. Continuous publication began under founder James Wilson in September 1843...
(2008-03-13).