Constitutionalism Meaning Scope and Importance
1-Constitutionalism, in its most general meaning, 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"
2-Constitutionalism is the idea, often associated with the political theories of John Locke and the "founders" of the American republic, that government can and should be legally limited in its powers, and that its authority depends on its observing these limitations.Sovereign versus Government
Though there are serious difficulties inherent in Austin's attempt to make sense of the people's sovereignty, his account does reveal the need to distinguish between two different concepts: sovereignty and government. Roughly speaking, we might define sovereignty as the possession of supreme (and possibly unlimited) normative power and authority over some domain, and government as those persons or institutions through whom that sovereignty is exercised. Once some such distinction is drawn, we see immediately that sovereignty might lie somewhere other than with the government. And once this implication is accepted, we can coherently go on to speak of limited government coupled with unlimited sovereignty. Arguably this is what one should say about constitutional democracies where the people's sovereign authority is thought to be ultimate and unlimited but the government bodies—e.g., legislatures and courts—through whom that sovereignty is exercised on the people's behalf is constitutionally limited and subordinate. As Locke might have said, unlimited sovereignty remains with the people who have the normative power to void the authority of their government (or some part thereof) if it exceeds its constitutional limitations.
Though sovereignty and government are different notions, and normally apply to different entities, it nevertheless seems conceptually possible for them to apply to one and the same individual or institution. It is arguable that Hobbes insisted on the identification of sovereign and government insofar as he seemed to require a (virtually) complete transfer of all rights and powers from sovereign individuals to a political sovereign whose authority was to be absolute, thus rendering it possible to emerge from the wretched state of nature in which life is “solitary, poor, nasty, brutish and short.”[6] In Hobbes' theory, ultimate, unlimited sovereignty must reside in the supreme governmental person or body who enjoys unlimited power and authority to rule the commonwealth. Anything less than such an ultimate, unlimited sovereign would, given human nature and the world we inhabit, destroy the very possibility of stable government. So even if ‘sovereignty’ and ‘government’ express different notions, this neither means nor implies that the two could not pertain to one and the same entity.
Entrenchment
According to most theorists, another important feature of constitutionalism is that the norms imposing limits upon government power must be in some way be entrenched, either by law or by way of constitutional convention.[7] In other words, those whose powers are constitutionally limited—i.e., the institutions of government—must not be legally entitled to change or expunge those limits at their pleasure. Most written constitutions contain amending formulae which can be triggered by, and require the participation of, the government bodies whose powers they limit. But these formulae invariably require something more than a simple decision on the part of the present government to invoke a change. Sometimes constitutional assemblies are required, or super-majority votes, referendums, or the agreement of not only the central government in a federal system but also some number or percentage of the governments or regional units within the federal system.[8] Entrenchment not only facilitates a degree of stability over time (a characteristic aspiration of constitutional regimes), it is arguably a requirement of the very possibility of constitutionally limited government. Were a government institution entitled, at its pleasure, to change the very terms of its constitutional limitations, we might begin to question whether there would, in reality, be any such limitations. Consider Regina once again. Were she entitled, at her discretion, to remove (and perhaps later reinstate) the constitutional restriction preventing her from legislating on religious matters, then it is perhaps questionable whether Regina could sensibly be said to be bound by this requirement.[9] On the other hand, were there a constitutional rule or convention specifying that Regina is entitled to remove this restriction only if she succeeds in convincing two thirds of her subjects to vote for the change, then one might feel more comfortable speaking of constitutional limitation. Of course this constitutional meta-rule or convention is itself subject to change or elimination—a fact that raises a host of further puzzles. For example, does such an act require application of the very rule in question—i.e., two third's majority vote—or are the sovereign people of Regina's society at liberty to change or expunge it at their pleasure? If we accept the distinction between government and sovereignty urged above, as well as the proposition that sovereignty cannot be self-limiting, (X cannot limit X) then we might be led to conclude that the constitutional meta-rule—and hence the constitutional regime of which it is an integral part—both exist at the pleasure of the general population. Entrenchment may be an essential element of constitutional regimes, but it is far from clear that constitutions can be entrenched against the actions of a sovereign people.
Writtenness
Some scholars believe that constitutional norms do not exist unless they are in some way enshrined in a written document (e.g., Rubenfeld 1998). But most accept that constitutions (or elements of them) can be unwritten, and cite, as an obvious example of this possibility, the constitution of the United Kingdom. One must be careful here, however. Though the UK has nothing resembling the American Constitution and its Bill of Rights, it nevertheless contains a number of written instruments which have, for many centuries, formed central elements of its constitution. Magna Carta (1215 C.E.) is perhaps the earliest document of the British constitution, while others include The Petition of Right (1628) and the Bill of Rights (1689). Furthermore, constitutional limits are also said to be found in certain principles of the common law, explicitly cited in landmark cases concerning the limits of government power. The fact remains, however, that historically the constitution of the UK has largely taken unwritten form, suggesting strongly that writtenness is not a defining feature of constitutionalism.
Why, despite the existence of seemingly obvious counter-examples, might someone be led to think that constitutional norms must be written rules, as opposed to more informal conventions or social rules? One possible reason[10] is that unwritten rules and conventions are sometimes less precise and therefore more open to interpretation, gradual change, and ultimately avoidance, than written ones. If this were true, then one might question whether an unwritten rule could, at least as a practical matter, serve adequately to limit government power. But there is no reason to accept this line of argument. Long standing social rules and conventions are often clear and precise, as well as more rigid and entrenched than written ones, if only because their elimination, alteration or re-interpretation typically requires widespread changes in traditional attitudes, beliefs and behaviour. And these can be very difficult to bring about.
Montesquieu and the Separation of Powers
Does the idea of constitutionalism require, as a matter of conceptual or practical necessity, the division of government powers urged by Montesquieu and celebrated by Americans as a bulwark against abuse of state power? In Regina's case, there is no such separation: legislative, executive and judicial power all reside in her person. But how, it might be asked, can she be the one (qua judge) who determines whether her legislation satisfies the prescribed constitutional limitation? Even if, in theory, Regina's constitution prohibits her from removing her constitutional restriction at will (because she must observe the 2/3rds meta-rule) can she not always choose to ignore her restrictions, or to interpret them so as to escape their binding force? Perhaps Bishop Hoadly was right when he said (1717) in a sermon before the English King: “Whoever hath an ultimate authority to interpret any written or spoken laws, it is he who is truly the Law-giver to all intents and purposes, and not the person who first wrote or spoke them.” (quoted in Gray 1986, p.12). Although some constitutional limits, e.g., the one which restricts the Mexican President to a single term of office, seldom raise questions of interpretation, many others (particularly those that concern civil rights) are ripe for such questions. Regina might argue that a decree requiring all shops to close on Sundays (the common Sabbath) does not concern a religious matter because its aim is a common day of rest, not religious observance. Others might argue, with seemingly equal plausibility, that it does concern a religious matter and therefore lies outside Regina's legislative competence.
That constitutions often raise such interpretive questions gives rise to an important question: Does the possibility of constitutional limitation on legislative and executive power require, as a matter of practical politics, that the judicial power by which such limitations are interpreted and enforced reside in some individual or group of individuals distinct from that in which these legislative and executive powers are vested? In modern terms, must constitutional limits on a legislative body like Parliament, the Duma or Congress, or an executive body like the President or her Cabinet, be subject to interpretation and enforcement by an independent judiciary? Marbury v Madison settled this question in the affirmative as a matter of American law, and most nations follow Marbury (and Montesquieu) in accepting the practical necessity of some such arrangement. But it is not clear that the arrangement truly is practically necessary, let alone conceptually so. Bishop Hoadly notwithstanding, there is nothing nonsensical in the suggestion that X might be bound by an entrenched rule, R, whose interpretation and implementation is left to X. This is, arguably, the situation in New Zealand where the courts are forbidden from striking down legislation on the ground that it exceeds constitutional limits. Observance and enforcement of these limits are left to the legislative bodies whose powers are nonetheless recognized as constitutionally limited (and subject to whatever pressures might be imposed politically when state actions are generally believed to violate the constitution). It is important to realize that what rule, R, actually requires is not necessarily identical with what X believes or says that it requires. Nor is it identical with whatever restrictions X actually observes in practice. This is so even when there is no superior institution with the power and authority to enforce compliance or to correct X's judgment when it is, or appears to be, wrong.
That constitutional limits can sometimes be avoided or interpreted so as to avoid their effects, and no recourse be available to correct mistaken interpretations and abuses of power, does not, then, imply the absence of constitutional limitation. But does it imply the absence of effective limitation? Perhaps so, but even here there is reason to be cautious in drawing general conclusions. Once again, we should remember the long-standing traditions within British Parliamentary systems (including New Zealand's) according to which Parliament alone possesses final authority to create, interpret and implement its own constitutional limits. And whatever its faults, there is little doubt that Parliaments modeled on the British system typically act responsibly in observing their own constitutional limits.
3- Constitutionalism is the idea, often associated with the political theories of John Locke and the founders of the American republic, that government can and should be legally limited in its powers, and that its authority or legitimacy 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. How can a government be legally limited if law is the creation of government? Does this mean that a government can be ‘self-limiting’? Is this even possible? If not, then is there some way of avoiding this implication? If meaningful limitation is indeed to be possible, perhaps constitutional constraints must somehow be ‘entrenched’, that is, resistant to change or removal by those whose powers are constrained? Perhaps they must not only be entrenched, but enshrined in written rules. If so, how are these rules to be interpreted? In terms of their original, public meaning or the intentions of their authors, or in terms of the, possibly ever-changing, values and principles they express? How, in the end, one answers these questions depends crucially on how one conceives the nature, identity and authority of constitutions. Does a constitution establish a stable framework for the exercise of public power which is in some way fixed by factors like original public meaning or authorial intentions? Or is it a living entity which grows and develops in tandem with changing political values and principles? These and other such questions are explored below.
1. Constitutionalism: a Minimal and a Rich Sense
2. Sovereign versus Government
3. Entrenchment
4. Writtenness
5. Montesquieu and the Separation of Powers
6. Constitutional Law versus Constitutional Convention
7. Constitutional Interpretation
8. Originalism
9. Living Constitutionalism
10. Critical Theories
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Constitutionalism: a Minimal and a Rich Sense
In some minimal sense of the term, a constitution consists of a set of norms (rules, principles or values) creating, structuring, and possibly defining the limits of, government power or authority. Understood in this way, all states have constitutions and all states are constitutional states. Anything recognizable as a state must have some acknowledged means of constituting and specifying the limits (or lack thereof) placed upon the three basic forms of government power: legislative power (making new laws), executive power (implementing laws) and judicial power (adjudicating disputes under laws).[1] Take the extreme case of an absolute monarch, Rex, who combines unlimited power in all three domains. Suppose it is widely acknowledged that Rex has these powers, as well as the authority to exercise them at his pleasure. The constitution of this state might then be said to contain only one rule, which grants unlimited power to Rex. He is not legally answerable for the wisdom or morality of his decrees, nor is he bound by procedures, or any other kinds of limitations or requirements, in exercising his powers. Whatever Rex decrees is constitutionally valid.
When scholars talk of constitutionalism, however, they normally mean something that rules out Rex's case. They mean not only that there are norms creating legislative, executive and judicial powers, but that these norms impose significant limits on those powers.[2] Often these limitations are in the form of civil rights against government, rights to things like free expression, association, equality and due process of law. But constitutional limits come in a variety of forms. They can concern such things as the scope of authority (e.g., in a federal system, provincial or state governments may have authority over health care and education while the federal government's jurisdiction extends to national defence and transportation); the mechanisms used in exercising the relevant power (e.g., procedural requirements governing the form and manner of legislation); and of course civil rights (e.g., in a Charter or Bill of Rights). Constitutionalism in this richer sense of the term is the idea that government can/should be limited in its powers and that its authority depends on its observing these limitations. In this richer sense of the term, Rex's society has not embraced constitutionalism because the rules defining his authority impose no constitutional limits. Compare a second state in which Regina has all the powers possessed by Rex except that she lacks authority to legislate on matters concerning religion. Suppose further that Regina also lacks authority to implement, or to adjudicate on the basis of, any law which exceeds the scope of her legislative competence. We have here the seeds of constitutionalism as that notion has come to be understood in Western legal thought.
In discussing the history and nature of constitutionalism, a comparison is often drawn between Thomas Hobbes and John Locke who are thought to have defended, respectively, the notion of constitutionally unlimited sovereignty (e.g., Rex) versus that of sovereignty limited by the terms of a social contract containing substantive limitations (e.g., Regina).[3] But an equally good focal point is the English legal theorist John Austin who, like Hobbes, thought that the very notion of limited sovereignty is incoherent. For Austin, all law is the command of a sovereign person or body of persons, and so the notion that the sovereign could be limited by law requires a sovereign who is self-binding, who commands him/her/itself. But no one can command himself, except in some figurative sense, so the notion of limited sovereignty is, for Austin (and Hobbes), as incoherent as the idea of a square circle.[4] Though this feature of Austin's theory has some surface plausibility when applied to the British system of government, where Parliament is sometimes said to be supreme and constitutionally unlimited,[5] it faces obvious difficulty when applied to most other constitutional democracies such as one finds in the United States and Germany, where it is abundantly clear that the powers of government are legally limited by a constitution. Austin's answer to this apparent weakness in his theory was to appeal to popular sovereignty, the idea that sovereignty resides in ‘the people’, that is, the population at large. Government bodies—e.g., Parliament or the judiciary—can be limited by constitutional law, but the sovereign people remain unlimited in their powers to command. Whether this appeal to popular sovereignty provides Austin with an adequate means of dealing with constitutional democracies is highly questionable. For Austin's sovereign is supposed to be a determinate individual or group of individuals whose commands to the bulk of the population constitute law. But if we identify the commanders with the people themselves, then we seem inexorably led to the paradoxical result identified by H.L.A. Hart—the commanders are commanding the commanders. In short, we lapse into incoherence (Hart 1994, 73–78; Austin 1995, Lecture VI).
