Constitutional Ism

Constitutionalism From Wikipedia, the free encyclopedia

Jump to: navigation, search Constitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law."[1] These ideas, attitudes and patterns of behavior, according to one analyst, form "a dynamic political and historical process rather than as a static body of thought laid down in the eighteenth century."[2] A political organization is constitutional to the extent that it "contain[s] institutionalized mechanisms of power control for the protection of the interests and liberties of the citizenry, including those that may be in the minority."[3] As described by political scientist and constitutional scholar David Fellman:

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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. Constitutionalism proclaims the desirability of the rule of law as opposed to rule by the arbitrary judgment or mere fiat of public officials…. Throughout the literature dealing with modern public 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 constitutionalism is the concept of limited government under a higher law."[4]

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[edit] Usage Constitutionalism has prescriptive and descriptive uses. Law professor Gerhard Casper captured this aspect of the term in noting that: "Constitutionalism has both descriptive and prescriptive connotations. Used descriptively, it refers chiefly to the historical struggle for constitutional recognition of the people's right to 'consent' and certain other rights, freedoms, and privileges…. Used prescriptively … its meaning incorporates those features of government seen as the essential elements of the … Constitution."[5]

[edit] Descriptive use One example of constitutionalism's descriptive use is law professor Bernard Schwartz's 5 volume compilation of sources seeking to trace the origins of the Federal bill of rights.[6] Beginning with English antecedents going back to the Magna Carta (1215), the author

explores the presence and development of ideas of individual freedoms and privileges through colonial charters and legal understandings. Then, in carrying the story forward, the author identifies revolutionary declarations and constitutions, documents and judicial decisions of the Confederation period and the formation of the federal Constitution. Finally, he turns to the debates over the federal Constitution's ratification that ultimately provided mounting pressure for a federal bill of rights. While hardly presenting a "straight-line," the account illustrates the historical struggle to recognize and enshrine constitutional values and principles in a constitutional order.

[edit] Prescriptive use In contrast to describing what constitutions are, a prescriptive approach addresses what a constitution should be. As presented by Canadian philosopher Wil Waluchow, constitutionalism embodies "the idea … that government can and should be legally limited in its powers, and that its authority depends on its observing these limitations. This idea brings with it a host of vexing questions of interest not only to legal scholars, but to anyone keen to explore the legal and philosophical foundations of the state."[7] One example of this prescriptive approach was the project of the National Municipal League[8] to develop a "Model State Constitution."

[edit] Authority of government Whether reflecting a descriptive or prescriptive focus, treatments of the concept of constitutionalism all deal with the legitimacy of government. One recent assessment of American constitutionalism, for example, notes that the idea of constitutionalism serves to define what it is that "grants and guides the legitimate exercise of government authority."[9] Similarly, historian Gordon S. Wood described this American constitutionalism as "advanced thinking" on the nature of constitutions in which the a constitution was conceived to be "a 'sett of fundamental rules by which even the supreme power of the state shall be governed.'"[10] Ultimately, American constitutionalism came to rest on the collective sovereignty of the people - the source that legitimated American governments.

[edit] Fundamental law empowering and limiting government One of the most salient features of constitutionalism is that it describes and prescribes both the source and the limits of government power. William H. Hamilton has captured this dual aspect by noting that constitutionalism "is the name given to the trust which men repose in the power of words engrossed on parchment to keep a government in order."[11]

[edit] Constitutionalism vs. constitutional questions The study of constitutions is not necessarily synonymous with the study of constitutionalism. Although frequently conflated, there are crucial differences. A discussion of this difference appears in legal historian Christian G. Fritz's American

Sovereigns: The People and America's Constitutional Tradition Before the Civil War,[12] a study of the early history of American constitutionalism. Fritz notes that an analyst could approach the study of historic events focusing on issues that entailed "constitutional questions" and that this differs from a focus that involves "questions of constitutionalism."[13] Constitutional questions involve the analyst in examining how the constitution was interpreted and applied to distribute power and authority as the new nation struggled with problems of war and peace, taxation and representation. However,

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"[t]hese political and constitutional controversies also posed questions of constitutionalism – how to identify the collective sovereign, what powers the sovereign possessed, and how one recognized when that sovereign acted. Unlike constitutional questions, questions of constitutionalism could not be answered by reference to given constitutional text or even judicial opinions. Rather, they were open-ended questions drawing upon competing views Americans developed after Independence about the sovereignty of the people and the ongoing role of the people to monitor the constitutional order that rested on their sovereign authority."[13]

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A similar distinction was drawn by British constitutional scholar A.V. Dicey in assessing Britain's unwritten constitution. Dicey noted a difference between the "conventions of the constitution" and the "law of the constitution." The "essential distinction" between the two concepts was that the Law of the Constitution was made up of "rules enforced or recognised by the Courts," making up "a body of 'laws' in the proper sense of that term." In contrast, the Conventions of the Constitution consisted "of customs, practices, maxims, or precepts which are not enforced or recognised by the Courts" yet they "make up a body not of laws, but of constitutional or political ethics."[14]

United States In U.S. History, constitutionalism—in both its descriptive and prescriptive sense—has traditionally focused on the federal Constitution. Indeed, a routine assumption of many scholars has been that understanding "American constitutionalism" necessarily entails the thought that went into the drafting of the federal Constitution and the American experience with that constitution since its ratification in 1789.[16] In point of fact, there is a rich tradition of state constitutionalism that offers broader insight into constitutionalism in the United States.[17] While state constitutions and the federal Constitution operate differently as a function of federalism—the coexistence and interplay of governments at both a national and state level—they all rest on a shared assumption that their legitimacy comes from the sovereign authority of the people or Popular sovereignty. This underlying premise—embraced by the American revolutionaries with the Declaration of Independence—unites the American constitutional tradition.[18] Both the experience with state constitutions before—and after—the federal

Constitution as well as the emergence and operation of the federal Constitution reflect an on-going struggle over the idea that all governments in America rested on the sovereignty of the people for their legitimacy.[19]

Books Stephen M. Griffin, "American Constitutionalism: From Theory to Politics" (Princeton University Press, 1996) at p. 5. Don E. Fehrenbacher, Constitutions and Constitutionalism in the Slaveholding South (University of Georgia Press, 1989) at p. 1. Gordon, Scott (1999). Controlling the State: Constitutionalism from Ancient Athens to Today. Harvard University Press. p. 4. ^ G. Alan Tarr, Understanding State Constitutions (Princeton Univ. Press, 1998) and John J. Dinan, The American State Constitutional Tradition (Univ. Press of Kansas, 2006). Christian G. Fritz, American Sovereigns: The People and America's Constitutional Tradition Before the Civil War (Cambridge University Press, 2008) at p. 284 (Observing that from the Revolutionary era to the period before the Civil War "Americans continued to wrestle with what it meant that their national as well as state governments rested on the sovereignty of the people")