Dictionary of the History of Ideas Studies of Selected Pivotal Ideas |
2 |
3 |
9 |
2 | VI. |
V. |
VI. |
3 | I. |
VI. |
2 | V. |
2 | III. |
3 | III. |
2 | VI. |
1 | VI. |
6 | V. |
3 | V. |
1 | III. |
2 | VII. |
VI. |
1 | VI. |
1 | III. |
III. |
8 | II. |
3 | I. |
2 | I. |
1 | I. |
2 | V. |
1 | VII. |
2 | VI. |
4 | V. |
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9 | III. |
4 | III. |
5 | III. |
16 | II. |
2 | I. |
9 | I. |
1 | I. |
1 | VI. |
VII. |
2 | III. |
1 | VII. |
3 | VII. |
2 | VII. |
2 | V. |
VI. |
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1 | VI. |
2 | VI. |
2 | VI. |
1 | VII. |
III. |
IV. |
10 | VI. |
VI. |
1 | VI. |
1 | V. |
3 | V. |
4 | V. |
10 | III. |
6 | III. |
2 | VII. |
4 | III. |
I. |
7 | V. |
2 | V. | CONSTITUTIONALISM |
2 | VII. |
1 | VI. |
5 | I. |
4 | I. |
7 | I. |
8 | I. |
1 | VI. |
12 | III. |
4 | IV. |
4 | III. |
2 | IV. |
1 | IV. |
1 | IV. |
VI. |
1 | VI. |
3 | VI. |
1 | V. |
2 | III. |
1 | VI. |
Dictionary of the History of Ideas | ||
CONSTITUTIONALISM
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
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).
II
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
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
Carta 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
assurance that people could set some limitation on the
arbitrary powers of the king” (Constitutionalism in
America, 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
use.
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
follows.”
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
concepts.
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.
III
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
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-
tutionalism.
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
Milligan (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
said:
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
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.
Oregon (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.
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
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-
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.
BIBLIOGRAPHY
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-
ern (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-
stitutionalism, 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
Law (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-
premacy (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.”
DAVID FELLMAN
[See also Authority; Democracy; General Will; Law; LegalResponsibility; Nation; Revolution; Right and Good; Social
Contract; State.]
Dictionary of the History of Ideas | ||