I
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. Consti-
tutionalism proclaims the
desirability of the rule of law
as opposed to rule by the arbitrary
judgment or mere
flat of public officials. Thus Charles H. McIlwain
has
written that the essential quality of constitutionalism
is that
“it is a legal limitation on government; it is
the antithesis of
arbitrary rule...” (Constitutionalism:
Ancient
and Modern, p. 21). Another eminent scholar
of constitutional law,
Howard Jay Graham, has ob-
served that
“constitutionalism... is the art and the
process of assimilating
and converting statute and
precedent, ideals and aspirations, into the
forms and
the Rule of Law—into a Fundamental and Supreme
Law” (Everyman's Constitution, p. 6).
Throughout the literature dealing with modern pub-
lic 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 consti-
tutionalism is the concept of
limited government under
a higher law.
This 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
has a constitution, if by a constitution is meant, in
the
words of Lord Bryce, “the aggregate of the laws and
customs through and under which the public life of
a State goes
on...” (Studies..., I, 159). A consti-
tution, Bryce asserted, is
“a frame of political society,
organised by and through law;
that is to say, one in
which law has established permanent institutions
with
recognized functions and definite rights” (ibid.,
195).
In this sense, every state may be said to have a consti-
tution, since every state has
institutions which are at
the very least expected to be permanent, and
every
state has established ways of doing things. Even if the
essence
of the constitution is that the dictator exercises
absolute or despotic
powers, it may be said, for what-
ever it may
be worth, that this is the constitution of
the state. But no one would
assert that in a despotically
governed state the idea of constitutionalism
has any
place. In the absence of a commitment to limited
government
under the rule of law, it may be said that
a state has a constitution
without any constitutionalism.
Furthermore, even if a state does in fact possess 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, if in fact the document is a mere
sham
and not a statement of higher law which is actu-
ally followed and reasonably well enforced. Scholars
have pointed up the distinction between
“normative”
and “nominal”
constitutions. A good illustration of this
point is the so-called Stalin
Constitution of the Soviet
Union. For a variety of reasons the Russian
dictator
found it desirable, in 1936, to adopt a written consti-
tution. He was then trying to
organize a collective
security system against Hitler; this occurred in
the
popular front period when Stalin found it useful to
try to win
over the world's great body of democratic
opinion. The Stalin Constitution
was also intended to
serve as a measure of progress for the Russian Revolu-
tion, and as the expression of goals
for the future. It
is also a testimony to the strength of the tradition
of
constitutional democracy that Stalin thought he would
derive some
political advantage from going through
the motions of producing a written
constitution in the
democratic style. Even so, the Stalin Constitution
does
not purport to guarantee traditional individual free-
doms in clear and unequivocal terms. For example,
Article 125 declares that citizens are guaranteed free-
dom of speech, press, assembly, street processions and
demonstrations, but only “in conformity with the in-
terests of the working people, and in order
to
strengthen the socialist system....” Furthermore,
these
individual freedoms are not in fact respected by
the government of the
Soviet Union, and even mild
expressions of dissent from prevailing official
policy are
subject to police repression and severe punishment.
Communist China presents another example of a
state which has a constitution
without a commitment
to constitutionalism. For example, Article 87 of
the
Constitution of the People's Republic of China (1954)
provides:
“Citizens of the People's Republic of China
enjoy freedom of
speech, freedom of the press, freedom
of assembly, freedom of association,
freedom of pro-
cession and freedom of
demonstration.” In actual fact,
these freedoms do not exist in
Communist China, and
institutions and procedures are lacking for their
effec-
tive implementation.
There is, however, a tradition in the history of polit-
ical thought which describes a constitution in
terms
of a higher law which is an expression of the will of
the
people. In this view, the people are the ultimate
source of all political
power, and in promulgating a
constitution they declare the supreme will of
the state,
binding upon all organs of the state. Thus, by definition,
government is created by the constitution, and the
constitution endows
government with its powers and
establishes limitations upon the exercise of
those pow-
ers. Appropriate government officials
may create stat-
ute laws, but the statute law
must conform with the
requirements of the higher law of the
constitution.
Implicit in this conception of the constitution is a
basic
distinction between the state and the government, and
between statute law and constitutional law. The state
is
created by and is organized by the people in the
writing and adoption of a
constitution, and government
derives its authority, institutions, and
procedures from
this constitution. Statute law is law, but it is subordi-
nate to the higher law of the
constitution. These con-
cepts are underscored
by the fact that different
methods are utilized to create constitutions and
stat-
utes. The higher law of the
constitution is not subject
to formal alteration by ordinary legislative
procedures,
and the constitution, unlike statutes, emanates directly
from the whole body of citizens in the form of an
organic document written
and ratified in some special
way which stresses that the people are the
ultimate
repository of political power, and that their enduring
will
must be obeyed by government officials.
This conception of a constitution was well stated
by Bolingbroke when he
wrote, in 1733: “By consti-
tution we mean, whenever we speak with propriety
and exactness, that
assemblage of laws, institutions and
customs, derived from certain fixed
principles of rea-
son, directed to certain fixed
objects of public good,
that compose the general system, according to
which
the community hath agreed to be governed.” Similarly
Thomas Paine maintained that any government which
violates the constitution
exercises “power without
right.” If the distinction
between constitution and gov-
ernment is
ignored, then, Paine argued, there being
no check upon the will of the
government, it follows
that the state is a despotism. A true, written consti-
tution, he held, was always
antecedent to the actual
government, for, in his words, “The
constitution is not
the act of its government, but of the people consti-
tuting a government” (Basic Writings..., p. 42).
Generally speaking, this
conception of the nature of
a constitution prevails in countries committed
to de-
mocracy and freedom. Where such a
concept exists,
it follows that constitutionalism is also concerned
with
freedom and the ultimate responsibility of government
to the
people. Thus in his classic treatment of this
subject, McIlwain concluded
his book with this sen-
tence: “The
two fundamental correlative elements of
constitutionalism for which all
lovers of liberty must
yet fight are the legal limits to arbitrary power
and
a complete political responsibility of government to
the
governed” (Constitutionalism..., p. 146).
