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Dictionary of the History of Ideas

Studies of Selected Pivotal Ideas
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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


486

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).