University of Virginia Library

Search this document 
Dictionary of the History of Ideas

Studies of Selected Pivotal Ideas
7 occurrences of Dictionary_of_the_History_of_Ideas
[Clear Hits]
  
  
expand section 
  
expand section 
  
  

expand sectionVI. 
expand sectionV. 
expand sectionVI. 
expand sectionI. 
expand sectionVI. 
expand sectionV. 
expand sectionIII. 
expand sectionIII. 
expand sectionVI. 
expand sectionVI. 
expand sectionV. 
expand sectionV. 
expand sectionIII. 
expand sectionVII. 
expand sectionVI. 
expand sectionVI. 
expand sectionIII. 
expand sectionIII. 
expand sectionII. 
expand sectionI. 
expand sectionI. 
expand sectionI. 
expand sectionV. 
expand sectionVII. 
expand sectionVI. 
expand sectionV. 
expand sectionIII. 
collapse sectionIII. 
  
expand section 
expand section 
  
expand sectionIII. 
expand sectionII. 
expand sectionI. 
expand sectionI. 
expand sectionI. 
expand sectionVI. 
expand sectionVII. 
expand sectionIII. 
expand sectionVII. 
expand sectionVII. 
expand sectionVII. 
expand sectionV. 
expand sectionVI. 
expand sectionVI. 
expand sectionVI. 
expand sectionVI. 
expand sectionVI. 
expand sectionVII. 
expand sectionIII. 
expand sectionIV. 
expand sectionVI. 
expand sectionVI. 
expand sectionVI. 
expand sectionV. 
expand sectionV. 
expand sectionV. 
expand sectionIII. 
expand sectionIII. 
expand sectionVII. 
expand sectionIII. 
expand sectionI. 
expand sectionV. 
expand sectionV. 
expand sectionVII. 
expand sectionVI. 
expand sectionI. 
expand sectionI. 
expand sectionI. 
expand sectionI. 
expand sectionVI. 
expand sectionIII. 
expand sectionIV. 
expand sectionIII. 
expand sectionIV. 
expand sectionIV. 
expand sectionIV. 
expand sectionVI. 
expand sectionVI. 
expand sectionVI. 
expand sectionV. 
expand sectionIII. 
expand sectionVI. 

7 occurrences of Dictionary_of_the_History_of_Ideas
[Clear Hits]

IV

There are many differences among constitutions
from the point of view of both style and content.
Indeed, Great Britain to this day has no single docu-
ment labelled “Constitution,” and for this reason it has
become customary to describe the British Constitution
as being an “unwritten” one. This is very misleading,
since many parts of this Constitution are written, for
constitutional status is invariably ascribed to such doc-
uments as Magna Carta (1215), the Habeas Corpus Act
(1641), the Bill of Rights (1689), the Act of Settlement
(1701), the Act of Union (1707), the Parliament Act
(1911), and the successive Representation of the Peo-
ple, Judicature, and Local Government Acts.

All of these written documents, it is generally agreed,
are parts of the British Constitution. But this Consti-
tution includes much more, notably the rules of the
common law, and well-established customs and con-
ventions which deal with very basic matters, such as
the principle of ministerial responsibility to the House


491

of Commons, and which are observed as faithfully as
the formal law itself. During the troubled and revolu-
tionary days of the Cromwellian period, several efforts
were made to reconcile the prerogatives of the ruler
with the privileges of Parliament by the device of some
sort of written constitution, but these efforts failed, and
with the death of Cromwell the monarchy was
promptly restored. Since then the limitations which
the traditional parts of the English Constitution impose
upon arbitrary rule have been so clearly delineated and
so effective in operation that it has not been found
necessary to state the basic constitutional law of the
realm in the style of a formal written code. There is
general agreement among students of government with
the observation made by William E. Gladstone in 1878
that “the British Constitution is the most subtile orga-
nism which has proceeded from the womb and the long
gestation of progressive history” (Wolf-Phillips [1968],
p. 182).

A much more significant difference between the
English and the American constitutions than mere
matters of form and style is the existence in Britain
of the principle of parliamentary supremacy. From the
point of view of fundamental constitutional law, par-
liamentary supremacy means that the courts of the
realm are legally incapable of refusing to enforce an
act of Parliament on grounds of unconstitutionality.
To be sure, the word “unconstitutional” is often used
in Great Britain to describe an act believed to be
contrary to the basic law of the country, but this does
not have the legal significance which the term has in
the United States. Parliament is supreme in the sense
that all of its enactments have the quality of law. This
does not mean that the English courts are powerless,
since they have the responsibility of interpreting stat-
utes. In view of the fact that Parliament legislates less
than does the American Congress, and usually in more
general language, the judicial power of statutory inter-
pretation is not to be taken lightly.

Most of the new states of Africa and Asia have, in
the twentieth century, felt that it was necessary to
adopt formal, written constitutions, although the State
of Israel has preferred to follow the English example.
Israel has no formal constitutional document, and ac-
cepts the principle of parliamentary supremacy, for
the Israeli courts do not have the power of judicial
review. On the other hand, on the continent of Europe
the practice has prevailed in modern times of having
formal written constitutions, but usually without judi-
cial enforcement. The 1948 Constitution of West Ger-
many, however, created a Constitutional Court
(Bundesverfassungsgericht) with judicial review pow-
ers, and the Supreme Court of Canada has such powers
also. The de Gaulle Constitution of France (1958)
created a Constitutional Council (conseil consti-
tutionnel
) with the power to declare organic laws of
Parliament unconstitutional before enactment, and
ordinary laws invalid if sent to it by the President or
Parliament. But this Council is not a true court and
is not part of the judicial system; private individuals
and groups have no access to it, and it does not hear
appeals from lower courts.

The absence of judicial review, however, as the
English and Israeli examples illustrate, does not mean
the absence of constitutionalism. An independent judi-
ciary endowed with judicial review powers may exert
a powerful influence as a limitation upon the exercise
of governmental powers, but there are other instru-
ments available to make constitutionalism a viable
concept. These include periodic elections, a free press,
opposition political parties, and various elements of
political responsibility. As a protection against the
exercise of arbitrary authority in Britain, for example,
constitutionalism is a viable force because it is fully
accepted by an informed electorate which has the
power of voting out of office a government which
would presume to ignore its requirements.

A constitution is more than a mere document, and
even in judicial review countries, more than a mere
law. It imposes restraints upon government, but at the
same time it also legitimizes its power. It is a record
of national experience and a symbol of the nation's
aspirations. It serves the important function of articu-
lating the ideals of the community, of stating its social
and economic aims. It exerts a tremendous educational
influence as a convenient, easily-read compendium of
the nation's basic purposes and principles.

There are many differences among constitutions.
Some are extremely detailed (e.g., the constitutions of
India and Mexico), and some, like that of the United
States, are very short. Some are judicially enforceable,
while most are not. Some constitutions are “norma-
tive,” while others are merely “nominal,” not to be
taken too seriously. Some are stable, others are fragile.
Some are republican, while others are monarchical.
Some create parliamentary systems of government,
while others provide for presidential systems. Some
establish federal systems while others, such as the
American states, provide for unitary systems. Some are
described as rigid, and others as flexible, depending
upon the ease or difficulty of the processes of consti-
tutional amendment. There are many other terms used
to describe various constitutions—such as revolu-
tionary, bonapartist, legitimist, programmatic, confirm-
atory—all suggesting aspects of world history.

Whatever particular form of government a consti-
tution delineates, however, it serves as the keystone
of the arch of constitutionalism, except in those coun-


492

tries whose written constitutions are mere sham. Con-
stitutionalism 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 stand-
ards 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.