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Dictionary of the History of Ideas

Studies of Selected Pivotal Ideas
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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).


Some conception of a higher law will be found
throughout the history of Western political thought.
Thus in the very early Greek classical period Heraclitus
taught that “all human laws are sustained by the one
divine law, which is infinitely strong, and suffices, and
more than suffices, for them all” (quoted in Andrews


[1968], p. 15). Generally speaking, however, the an-
cient Greeks made no distinction between the state
and society. In their view the state is as old as human
association itself, from which it followed that there was
no natural law older than the law of actual states. For
them, the law of nature merely meant the actual laws
which were the same in all states. Furthermore, since
the ancient Greeks had no concept that an unconstitu-
tional law is unenforceable, they had no remedy for
an unconstitutional act short of actual revolution. For
them a revolution did not merely change the public
law of the state; it changed the whole state and its
institutions, which was a very compelling reason why
revolution was so much feared.

Plato believed that human law was at best an imper-
fect reflection of an idea in the world of ideas. Contrary
to the teaching of the later Stoics, he believed that
the law of nature was merely an intellectual standard,
a basis for comparison, and most certainly not a basis
for actual judicial decisions. His ideal, or best form of
government, as set forth in The Republic, was one ruled
over by philosopher-kings who were not limited by
law. But he came to believe that supermen with the
necessary divine qualities were not and were not likely
to become available. Accordingly, in his later thought,
as expressed in The Statesman and in the Laws, Plato
settled for constitutional government, but only as sec-
ond best. The best sort of government would be one
unhindered by law, but this was only an ideal, and he
believed that actual states can only approximate the
ideal. Whether the state had one or several rulers, his
main point was that in a constitutional system govern-
ment is limited by law derived from the uniformities
of nature.

Aristotle, fully committed to the politics of modera-
tion, rejected Plato's ideal state as a form of despotism,
however benevolent. He was unwilling to vest un-
restricted power in any particular individual or class,
and insisted that those who exercise the powers of
government must be guided by the law. Thus he fa-
vored constitutionalism in that the guiding principle
of rulership was the rule of law, not force. He thought
that governments must be responsible to the governed,
and that freedom depends upon the right of men to
have a hand in making the laws they are required to
obey. The rule of law also meant for Aristotle that all
men are equal under the law. The procedural aspects
of constitutionalism were well developed in Aristotle's
Politics. A constitution, he wrote, is “in a sense the
life of the city.” Thus he emphasized law, rather than
human will, as the repository of the basic norms of
the political society.

Natural law theory, which has been an essential
element of concepts of constitutionalism, received its
earliest significant development in the thinking of the
Stoics of Greece and Rome after about 300 B.C. Thus
Cicero made a characteristic statement of the nature
of natural law in the following words:

There is in fact a true law—namely, right reason—which
is in accordance with nature, applies to all men, and is
unchangeable and eternal. By its commands this law sum-
mons men to the performance of their duties; by its prohi-
bitions it restrains them from doing wrong.... To invalidate
this law by human legislation is never morally right, nor
is it permissible ever to restrict its operation, and to annul
it wholly is impossible

(Coker [1938], p. 151).

In accordance with this point of view, the Roman
jurists established a basic distinction between public
law (jus publicum) and private law (jus privatum).
Furthermore, it was a basic principle of Roman juris-
prudence that the ultimate source of all legitimate
political authority in a state is the people, not the ruler.

This principle prevailed through the Middle Ages.
That all political authority is limited by a higher law
was a staple of medieval political thought. The medie-
val schoolmen regarded the origin of natural law as
divine since they tied natural law to God. Illustrative
of this view is the statement of Thomas Aquinas in
the Summa Theologica that man as a “rational creature
... has a share of the Eternal Reason... and this
participation of the eternal law in the rational creature
is called the natural law” (Pegis [1948], p. 618). Thus
God and reason were fused. Above all, the natural law,
along with the Church and the feudal nobility, limited
the power of the king. This is suggested by the well-
known observation of John of Salisbury in Policraticus
(1159) that “there are certain precepts of the law which
have a perpetual necessity, having the force of law
among all nations, and which absolutely cannot be
broken with impunity” (Sabine [1937], p. 247). John
distinguished between a proper king and a tyrant in
terms of whether the ruler obeyed the law.

For medieval England, Magna Carta (1215)
strengthened the traditional view that the law is su-
preme. This supremacy was best stated in Chapter 39,
which declared: “No freeman shall be taken or im-
prisoned or disseised or outlawed or exiled or in any
way destroyed, nor will we go upon him nor send upon
him, except by the lawful judgment of his peers or
by the law of the land (vel per legem terre).” Magna
derived a great measure of its influence from
repeated confirmations by later rulers (there were
forty-four confirmations between 1327 and 1422), and
from its revival and reinterpretation by Coke and other
lawyers and judges in the conflict between parliament
and the Stuart monarchy in the seventeenth century.
Thus, in the words of Arthur Sutherland, “the Great


Charter was obviously a cherished standard, a welcome
assurance that people could set some limitation on the
arbitrary powers of the king” (Constitutionalism in
p. 31).

Writing in the thirteenth century, Bracton, a justice
of King's Bench in the reign of Henry III, and the most
important English law writer before Blackstone, de-
clared in De legibus et consuetudinibus Angliae that
the law “is not anything rashly presumed by will of
the king, but what has been rightly defined with the
king's authorization on the advice of his magnates after
deliberation and conference concerning it.” In this
philosophic treatise on the laws and customs of Eng-
land, Bracton distinguished between “government,”
which was within the king's control, and “right,” which
was based on ancient custom, the elements of which,
“since they have been approved by the consent of those
using them and confirmed by the oath of kings, can
neither be changed nor destroyed without the common
consent of all those with whose counsel and consent
they have been promulgated” (McIlwain [1947], p. 83).
To put it somewhat differently, Bracton made a basic
distinction between government (gubernaculum) and
law (jurisdictio), and held that the king's absolute au-
thority extended only to the former. The basic weak-
ness of this concept, and indeed the fundamental in-
adequacy of all medieval constitutionalism, was that
there was no way to combat violations of the law
except by revolutionary violence or the threat of its

The supremacy of the law over government was
greatly strengthened in England by the stirring events
of the seventeenth century, culminating in the Revolu-
tion of 1689, which made the royal title dependent
upon an act of parliament, the Act of Settlement of
1701, which gave the judges a tenure independent of
the will of the king, and which established parlia-
mentary control over the government. As Coke, one
of the leading spokesmen of the resistance to Stuart
claims to absolute power, declared in 1610: “That
ligeance or obedience of the subject to the Sovereign
is due by the law of nature: 2. That this law of nature
is part of the laws of England: 3. That the law of nature
was before any judicial or municipal law in the world:
4. That the law of nature is immutable, and cannot
be changed.” Speaking as a Justice of the Court of
Common Pleas, Coke went so far in Dr. Bonham's Case
(1610) as to declare that under certain circumstances
the judges could refuse to enforce even an act of Par-
liament, “for when an act of parliament is against
common right and reason, or repugnant, or impossible
to be performed, the common law will controul it and
adjudge such act to be void.” Similarly, in his historic
debate with James I, Coke asserted that “the King hath
no prerogative, but that which the law and the land

While Coke's contention that the judges have the
power to refuse to enforce acts of Parliament which
they deem to be contrary to the supreme law of the
land, now known as the power of judicial review, did
not prevail in subsequent English practice, his view
that Magna Carta, later strengthened by frequent royal
confirmations, was a compact between ruler and the
ruled binding upon government, merged quickly into
broad theories of social compact and natural law which
contributed much to the modern history of higher law

The great natural law philosophers of the sixteenth
and seventeenth centuries—such as Hugo Grotius,
Samuel Pufendorf, Algernon Sydney, and John Locke—
took God out of the law of nature and made it the
basis for the modern secular constitutional state. For
John Locke (Second Treatise on Civil Government,
1690), government was based on a social contract
entered into in a preexisting state of nature operating
under natural law, and for him natural law became
the natural rights of the individual. Since the purpose
of the social contract was to create government in
order more effectively to protect man's natural rights,
Locke, as the justifier of the Revolution of 1689, con-
cluded that when government fails of its central pur-
pose the people regain the right to create a new social
contract. The state, therefore, is committed to consti-
tutionalism, the terms of which are spelled out in a
social contract which controls the acts of government.


American constitutionalism was derived, historically,
from the views of the English common law lawyers
and judges, and the natural law, social contract phi-
losophers. During the period of colonial tutelage, the
American colonists, in their perennial disputes with the
government in London, looked for protection of what
they regarded as their rights in the colonial charters,
thus forming the habit of appealing to a higher law
stated in documents. As the colonists moved from
protest to revolution, American revolutionary doctrine
was, on the whole, in line with English philosophy and
historical precedents. Those who articulated the polit-
ical theory of the revolutionary movement did not even
claim that their ideas were original. On the contrary,
speaking of “Revolutionary principles,” John Adams
declared that “they are the principles of Aristotle and
Plato; of Livy and Cicero; and Sydney, Harrington and
Locke; the principles of nature and eternal reason; the
principles on which the whole government over us now
stands” (Works, IV, 15). It is, of course, wholly under-
standable that the leaders of a revolution should appeal


to familiar principles. The ideas of natural law and
social compact spelled out in the Declaration of Inde-
pendence found wide acceptance among the people
precisely because they were thoroughly familiar ideas.

The keystone of American constitutionalism has been
the written national Constitution of 1787, for this
document is deeply rooted in a complex mythology
which makes the American higher law doctrine truly
meaningful and effective. To begin with, the Consti-
tution was drafted in a special way, by a convention
of delegates selected for this one purpose, and ratified
in a special way, by conventions selected for this single
function in the states. This is a far cry from the ordinary
process of national legislation, which is in the hands
of Congress and the President. In addition, there is a
special method of amending the Constitution, by an
extraordinary two-thirds vote of Congress plus ap-
proval by three-fourths of the states, which is alto-
gether different and more complicated than the
method available for amending legislation. These spe-
cial procedures have the effect of highlighting the
distinction between constitutional law and statute law.
Other provisions of the Constitution underscore the
supremacy of the former over the latter.

Thus the preamble recites the fact that “We the
People of the United States... do ordain and establish
this Constitution for the United States of America.”
This is consistent with the widely accepted notion that
the people are the true and original source of all gov-
ernmental authority, that government is their agent,
not their master, that government is based on the
popular will. In addition, Article VI declares that this
Constitution “shall be the supreme Law of the Land,”
and goes on to say that “the Judges in every State shall
be bound thereby, any thing in the Constitution or
Laws of any State to the Contrary notwithstanding,”
and provides that all national and state officials must
take an oath or affirmation to support this Constitution.
Furthermore, all civil officers of the United States are,
under the terms of Article II, Section 4, subject to
impeachment if they betray the people's trust.

Finally, the Constitution achieves viability as a
higher law through the practice of judicial review,
which means that the judges, and ultimately the Jus-
tices of the United States Supreme Court, have the
power to refuse to enforce legislative or executive acts
found to be contrary to the Constitution. While the
Constitution does not provide for judicial review in
clear and unequivocal language, it was established
early in the history of the document as a natural out-
growth of higher law doctrine and colonial experience.
That courts have the power of judicial review was first
established in the jurisprudence of the United States
Supreme Court, in 1803, by Chief Justice John Marshall
in the celebrated case of Marbury v. Madison (1 Cranch
137). For Marshall the choice before the Court was
a simple one: either the Constitution controls any
legislative act repugnant to it, or, in the alternative,
the legislature may change the Constitution by ordi-
nary legislation. There is, he insisted, no middle ground
between these alternatives.

The constitution is either a superior paramount law, un-
changeable by ordinary means, or it is on a level with
ordinary legislative acts, and, like other acts, is alterable
when the legislature shall please to alter it. If the former
part of the alternative be true, then a legislative act contrary
to the constitution is now law: if the latter part be true,
then written constitutions are absurd attempts, on the part
of the people, to limit a power in its own nature illimitable.

John Marshall maintained that a written Constitution
is intended to serve as the nation's “fundamental and
paramount” law. He went on to say that

it is emphatically the province and duty of the judicial
department to say what the law is. Those who apply the
law to particular cases, must of necessity expound and
interpret that rule. If two laws conflict with each other,
the courts must decide on the operation of each. So if a
law be in opposition to the constitution; if both the law
and the constitution apply to a particular case, so that the
court must either decide that case conformably to the law,
disregarding the constitution; or conformably to the consti-
tution, disregarding the law; the court must determine
which of these conflicting rules governs the case. This is
of the very essence of judicial duty. If, then, the courts are
to regard the constitution, and the constitution is superior
to any ordinary act of the legislature, the constitution, and
not such ordinary act, must govern the case to which they
both apply.

However the cogency of this reasoning may be chal-
lenged—and there have been challenges—this aspect
of the Constitution as judicially-enforceable higher law
has prevailed in subsequent American history. Judicial
review by an independent judiciary, that is, a judiciary
independent of the political branches of the govern-
ment, is an indispensable element of American consti-

This aspect of constitutionalism has been stated and
restated by many members of the United States Su-
preme Court. Thus, in the landmark case of ex parte
(4 Wall. 2), decided in 1866, the point was
made that the Constitution is the supreme law of the
land even in time of war. In this case, Justice Davis

The Constitution of the United States is a law for rulers
and people, equally in war and in peace, and covers with
the shield of its protection all classes of men, at all times,
and under all circumstances. No doctrine, involving more
pernicious consequences, was ever invented by the wit of


man than that any of its provisions can be suspended during
any of the great exigencies of government. Such a doctrine
leads directly to anarchy or despotism...

(4 Wall. 120).

The nature of the theory of constitutionalism was
explained by Chief Justice Hughes in De Jonge v.
(299 U.S. 353, 365), decided in 1937, in the
following language:

The greater the importance of safeguarding the community
from incitements to the overthrow of our institutions by
force and violence, the more imperative is the need to
preserve inviolate the constitutional rights of free speech,
free press and free assembly in order to maintain the oppor-
tunity for free political discussion, to the end that govern-
ment may be responsive to the will of the people and that
changes, if desired, may be obtained by peaceful means.
Therein lies the security of the Republic, the very founda-
tion of constitutional government.

The concept of constitutionalism was spelled out
from a different angle of vision by Justice Jackson in
the Flag Salute Case of 1943, West Virginia State Board
of Education v. Barnette
(319 U.S. 624, 638), where
he wrote:

The very purpose of a Bill of Rights was to withdraw certain
subjects from the vicissitudes of political controversy, to
place them beyond the reach of majorities and officials and
to establish them as legal principles to be applied by the
courts. One's right to life, liberty, and property, to free
speech, a free press, freedom of worship and assembly, and
other fundamental rights may not be submitted to vote;
they depend on the outcome of no elections.

This statement goes to the very heart of the American
concept of constitutionalism, that the constitution is
a fundamental written law superior in obligation to
all other forms of law. Indeed, there is a standard for
measuring the justness of governmental acts which is
not only binding upon all agents of the government,
but which is independent even of the will of the current
popular majority. While the American system is com-
mitted to majority rule as being preferable to rule by
elites or by divine right, it is also committed to the
proposition that government must be righteous and
just, in spite of majority rule. These objectives are
sought through a variety of devices, including judicial
review by an independent judiciary, an enforceable Bill
of Rights, the guaranty of equality before the law, the
diffusion of governmental power through territorial
federalism and functional separation of powers, checks
and balances, and the subordination of military to civil
authority. The government is obliged to observe the
fundamental law, and the Constitution cannot be
changed except in some special way.

American constitutionalism has been remarkably
successful, if success is measured by such criteria as
longevity and consensus. The American Constitution
is the oldest written national constitution in service
today, and mere survival is a benchmark of success in
the difficult, complex world of government. Further-
more, age alone confers respectability, although the
veneration of the United States Constitution is attrib-
utable to many other sources. Derived from the solid
authority of “We the People,” it was drafted by a
convention which included many of the nation's most
revered national heroes. It was not imposed upon the
people by outside authority, but was, rather, an act
of free will. In an age which believed that only a social
contract created legitimate government, the Consti-
tution, as a written document, was regarded from its
inception as the very model of what a soundly con-
ceived social contract should say.

The success of the American economy has been tied
in with the success of the Constitution, the one inter-
acting with the other. Above all, American consti-
tutionalism has succeeded because it has been sup-
ported by a general popular consensus. This does not
mean that the people have been in agreement on
everything, since such agreement has never existed
anywhere. But it does mean that there has been general
acceptance of basic institutions and procedures that
matter most, and that have the potentiality of becom-
ing the sort of issues that men fight about. As a bare
minimum, consensus as the underpinning of consti-
tutionalism is possible only if there is very wide agree-
ment on such vital matters as the regime itself, the
form of government, the basic methods for making and
unmaking policy decisions, and the fundamental goals
of the society.


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


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-
) 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-


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.


The leading books on the concept of constitutionalism
from the point of view of general history are by Charles
H. McIlwain, Constitutionalism and the Changing World
(New York, 1939), and Constitutionalism: Ancient and Mod-
(Ithaca, 1947). Other useful books on constitutional-
ism around the world are: Carl J. Friedrich, The Impact
of American Constitutionalism Abroad
(Boston, 1967);
Leslie Wolf-Phillips, Constitutions of Modern States (Lon-
don, 1968); William G. Andrews, Constitutions and Con-
3rd ed. (Princeton, 1968); and Francis D.
Wormuth, The Origins of Modern Constitutionalism (New
York, 1949). Leading books on American constitutionalism
which are well worth consulting include: Edward S. Corwin,
The “Higher Law” Background of American Constitutional
(reprint, Ithaca, 1955); Howard Lee McBain, The
Living Constitution
(New York, 1927); Arthur E. Sutherland,
Constitutionalism in America (New York, 1965); Howard Jay
Graham, Everyman's Constitution (Madison, 1968); and
Charles G. Haines, The American Doctrine of Judicial Su-
(New York, 1914). Useful essays will be found in
James Bryce, Studies in History and Jurisprudence (Oxford,
1901), Vol. I, Ch. III, pp. 145-254, “Flexible and Written
Constitutions,” and Vol. II, Ch. XI, pp. 112-71, “The Law
of Nature.”


[See also Authority; Democracy; General Will; Law; Legal
Responsibility; Nation; Revolution; Right and Good; Social
Contract; State.]