Eleanor Finch
Constitutionalism is the idea that governments should be limited in their powers and that their authority is dependent on their adherence to these limitations. This concept, often associated with the political theories of John Locke and the founders of the American republic, raises questions about the legal and philosophical foundations of the state. One such question is whether power passes from father to son. Historically, the concept of primogeniture dictated that power and land would pass to the eldest son, or in the absence of a son, to the nearest male relative. However, this practice has evolved, with some countries accepting female rulers and allowing power to pass to the eldest daughter or the next closest female relative. The evolution of constitutionalism and the interpretation of its principles over time further complicate the notion of power passing exclusively from father to son.
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What You'll Learn
Primogeniture and inheritance
Primogeniture is a system of inheritance in which a person's property passes to their firstborn child upon their death. The term comes from the Latin "primo" which means first, and “genitura” which relates to a person's birth.
Historically, primogeniture has favored male heirs, also known as male-preference primogeniture. Under this regime, the eldest living son would inherit the entirety of his parent's estate. A daughter could only inherit if she had no living brothers or the descendants of deceased brothers. This is in opposition to absolute primogeniture, where the firstborn child, regardless of gender, would inherit.
In some regimes, all sons could inherit a throne before any daughter, known as Cognatic primogeniture. Generally, a daughter could inherit if she had no living brothers through semi-Salic law. Other regimes followed Agnatic primogeniture, in which either gender could rule as long as they were descended from a male of the royal line. In this scenario, an elder daughter could be crowned, but her children could not succeed her; instead, she could be succeeded by a sibling or a descendant from the male line.
Today, most monarchies that traditionally favored male-preference primogeniture have abandoned it in favor of absolute primogeniture, although this is not true for every country. Some countries that have made this change include Belgium, Denmark, Luxembourg, the Netherlands, Norway, Sweden, and the United Kingdom. The exceptions are Spain and Monaco (male-preference primogeniture) and Liechtenstein (agnatic primogeniture).
In addition to monarchies, primogeniture has also been used in other cultural contexts. For example, among the Limpopo tribe, it was widely expected that the late Rain Queen's daughter, Masalanabo, would succeed to the queenship upon turning 18. However, in May 2021, the Royal Council announced that Masalanabo would instead be appointed khadi-kholo (great aunt), and the late queen's son, Lekukela, became the first Rain King since the 18th century.
Primogeniture has also been a common method of determining succession in hereditary monarchies. For example, in the case of the Earldom of Gloucester in the 14th century, the title passed to the full sisters of the dead earl, rather than his half-sisters, who were elder but born from the father's first marriage. This illustrates how full siblings were considered higher in proximity than half-siblings.
Over time, primogeniture increasingly won legal cases over proximity, and agnatic primogeniture (the same as Salic Law) became the norm, with succession going to the eldest son of the monarch. If the monarch had no sons, the throne would pass to the nearest male relative in the male line. However, some countries accepted female rulers early on, so if the monarch had no sons, the throne would pass to the eldest daughter or the next closest female relative.
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Constitutionalism and government power
Constitutionalism is the idea that government powers can and should be legally limited and that its authority and legitimacy depend on its adherence to these limitations. It is not just about the power structure of society but also about protecting the interests, rights, and liberties of citizens, especially those from social minorities.
Constitutionalism is deeply rooted in historical experience and is associated with the political theories of John Locke and the founders of the American republic. It is about designing mechanisms that determine who can rule, how, and for what purposes, ensuring that the government serves the interests of the ruled rather than their own interests. This is achieved through the separation of powers and a judicially protected constitution.
Constitutionalism can be understood through two traditions: the classical republican tradition and the modern, liberal tradition. The classical republican tradition focuses on establishing a condition of political equality, characterized by a balance of power between relevant groups and parties within a polity, preventing domination by rulers. The modern, liberal tradition, on the other hand, emphasizes protecting individual rights and establishing a separation of powers and a judicially protected constitution.
Constitutionalism also involves the concept of "popular sovereignty," where the people's sovereign authority is considered ultimate and unlimited, but the government bodies that exercise this sovereignty on their behalf are constitutionally limited and subordinate. This distinction between sovereignty and government is crucial, as it ensures that the people can void the authority of their government if it exceeds its constitutional limitations.
Constitutionalism, therefore, provides a framework for the exercise of public power, specifying the limits or lack thereof on the three basic forms of government power: legislative power (making new laws), executive power (implementing laws), and judicial power (adjudicating disputes under laws). It is about empowering ordinary people in a democracy and allowing them to control the sources of law and shape government actions to their aspirations.
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Constitutionalism and democracy
Constitutionalism is the idea that governments should be legally limited in their powers and that their authority and legitimacy are dependent on observing these limitations. This concept is often associated with the political theories of John Locke and the founders of the American republic. It suggests that a government can be "self-limiting", which raises questions about the legal and philosophical foundations of the state.
One way to ensure that a government's powers are constrained is through constitutional constraints that are resistant to change or removal by those whose powers are being limited. This is known as "entrenchment". For example, democratic critics tend to be less dismissive of constitutions and constitutional rights protections, focusing their objections on the practice of judicial or constitutional review. This is where courts are called upon to review a law or official act of the government to determine its compatibility with the constitution. In some jurisdictions, such as the United States, judicial review includes the power to 'strike down' or nullify a law passed by a legislative body, with the decision being final and irreversible.
Constitutionalism can also be understood through the lens of "living constitutionalism", as proposed by Ronald Dworkin. This theory suggests that historical factors like original meanings and intentions are important but do not fix the limits of government power. Instead, constitutions set the terms of an ongoing debate about the moral principles and values it enshrines, and as the political community's understanding of these principles evolves, so does the content of the constitution.
The concept of constitutionalism has been applied to the design of modern political systems, with Niccolò Machiavelli being considered by some as the "Father of Modern Constitutionalism".
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Constitutionalism and judicial review
Constitutionalism is the idea, often associated with the political theories of John Locke and the founders of the American republic, that government powers can and should be legally limited, and that its authority or legitimacy depends on its observation of these limitations.
Constitutionalism, therefore, brings up several questions: How can a government be legally limited if law is the creation of the government? Does this mean that a government can be self-limiting? If not, then is there a way to avoid this implication?
One way to ensure meaningful limitation is to entrench constitutional constraints, making them resistant to change or removal by those whose powers are constrained. This is where the concept of judicial review comes in. Judicial review is the practice whereby courts are called upon to review a law or official act of the government to determine its compatibility with the constitution. Judicial review includes the power to 'strike down' or nullify a law passed by a legislature body, and in some cases, the decision is final and irreversible.
The Supreme Court, as the highest court in the land, is the court of last resort for those seeking justice. Its power of judicial review is essential in ensuring that each branch of the government recognizes the limits of its power. It protects civil rights and liberties by striking down laws that violate the Constitution and sets appropriate limits on democratic governments by ensuring that popular majorities cannot pass laws that harm or take undue advantage of unpopular minorities. The Supreme Court's decisions have a significant impact on society as a whole, not just on lawyers and judges.
While the power of judicial review is not explicitly mentioned in the Constitution, Article III, Section I states that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." This establishes the federal judiciary and permits Congress to decide how to organize it, including the power to alter the number of seats on the Supreme Court.
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Historical factors and constitutional rights
Constitutionalism is the idea that government powers can and should be legally limited and that its authority and legitimacy are dependent on these limitations being observed. This idea raises several questions, including how a government can be limited by the law when the law is created by the government. This has led to the proposal of "entrenching" constitutional constraints, meaning that they are resistant to change or removal by those whose powers are being constrained.
Historical factors are important in constitutional rights cases, but they are not dispositive, according to critics of originalism such as Ronald Dworkin. The understanding of the moral principles and values enshrined in a constitution can develop and improve over time as the political community's understanding of them develops.
The US Constitution and its Bill of Rights are a key example of constitutionalism. The Founding Fathers turned to the composition of the federal Constitution after the Declaration of Independence in 1776. James Madison wrote the first ten amendments to the Constitution, known as the Bill of Rights, which were ratified on December 15, 1791. The Bill of Rights was added to the Constitution to limit government power and protect individual liberties. The roots of the Bill of Rights can be traced back to the Magna Carta in 1215, which protected subjects against royal abuses of power.
The US Constitution and the Bill of Rights have been amended several times to expand individual liberties and limit government power further. For example, the Fourteenth Amendment, which arose from the Civil War and Reconstruction, declares that no state shall "deprive any person of life, liberty, or property, without due process of law." This amendment has been interpreted as ensuring that "no state could deprive its citizens of the privileges and protections of the Bill of Rights."
Another example of a constitutional convention in the British constitutional system is the rule that the British monarch may not refuse Royal Assent to any bill passed by both Houses of the UK Parliament. This is a social rule that arises from the practices of the political community and imposes important non-legal limits on government powers.
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