Constitution And Constitutionalism: Understanding Their Affinity

The study of constitutions is not synonymous with the study of constitutionalism. Constitutionalism refers to the position that government should be limited by a constitution, which may specify its relation to statutes, treaties, executive and judicial actions, and regional laws. It describes and prescribes the source and limits of government power. The classical republican tradition identifies arbitrariness with the domination of the ruled by their rulers and seeks to avoid it by establishing a condition of political equality. The modern, liberal tradition identifies arbitrariness with interference with individual rights and seeks to establish protections for them via the separation of powers and a judicially protected constitution.

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Constitutionalism and the limitation of government power

Constitutionalism is a concept that describes and prescribes both the source and the limits of government power derived from fundamental law. It is about restraining and limiting power, but also about the empowerment of ordinary people in a democracy and allowing them to control the sources of law and harness the apparatus of government to their aspirations.

Constitutionalism is often associated with the idea of limiting government power through a written constitution. This constitution outlines the principles of constitutional design, including the partition of powers between the government and the rights of individuals. It also specifies its relation to statutes, treaties, executive and judicial actions, and the laws of regional jurisdictions. The UK, for example, has an uncodified constitution and is considered a good example of constitutionalism, with its well-developed polity and multiple governmental and private institutions that counter the power of the state.

The classical republican tradition, as interpreted by political constitutionalists, seeks to avoid domination by rulers by establishing a condition of political equality, with a balance of power between all relevant groups and parties within a polity. This ensures that no one group can rule without considering the interests of the ruled. The modern, liberal tradition, on the other hand, focuses on protecting individual rights through the separation of powers and a judicially protected constitution.

Constitutionalism also involves the interpretation and application of the constitution to distribute power and authority. This includes addressing issues of war and peace, taxation, and representation. The legitimacy of government is always a central concern in discussions of constitutionalism.

The notion of limited sovereignty is a key aspect of constitutionalism, with figures like John Locke advocating for sovereignty limited by the terms of a social contract with substantive limitations. However, others like Thomas Hobbes and John Austin argue that the concept of limited sovereignty is incoherent, asserting that all law is the command of a sovereign person or body, and thus the idea of limiting their power is contradictory.

Constitutionalism and democracy

While constitutionalism and democracy may seem complementary, there is a tension between these two concepts. In a constitutional democracy, the power of the people to govern is limited by the constitution, creating a complex dynamic between majority rule and constitutional restraints. This tension is further exacerbated by the different traditions within constitutionalism and the challenges of interpreting and applying constitutional principles in a democratic context.

The classical republican tradition of constitutionalism emphasises the balance of power between different groups and parties within a polity, aiming to prevent domination by ensuring that rulers act in the interests of the ruled. This tradition seeks to establish a condition of political equality and is reflected in the design and functioning of the democratic process, including the selection of electoral systems and the choice between presidential or parliamentary forms of government.

In contrast, the modern, liberal tradition of constitutionalism focuses on protecting individual rights through the separation of powers and a judicially protected constitution. This tradition is prevalent in modern democracies, where constitutional devices like the separation of powers or a system of checks and balances limit the scope of majority rule. For example, the United States Constitution, with its preamble, articles, and amendments, serves as a framework for governing according to rules that limit governmental freedom of action.

Despite the potential tension between constitutionalism and democracy, they can also be viewed as complementary. Constitutionalism provides the ground rules for a democratic society, ensuring that governments conduct their business according to established principles. Additionally, the interpretation and application of constitutional principles can be influenced by democratic values, as legal scholars and courts consider the changing needs and aspirations of the people.

Constitutionalism and individual liberty

Constitutionalism is a concept that deals with the legitimacy of government, describing and prescribing both the source and the limits of government power derived from fundamental law. It is the belief that government should be limited by a constitution, which is a document that establishes the form of government and sets out the principles of liberty. The constitution outlines the underlying principles of the people and government, the structure of the branches of government, and their duties.

Constitutionalism is about restraining and limiting power, but also about empowering ordinary people in a democracy and allowing them to control the sources of law and harness the apparatus of government to their aspirations. It seeks to establish protections for individual rights through the separation of powers and a judicially protected constitution. This is achieved through the specification and judicial protection of the different competences of the political system and of constitutionally entrenched rights by a constitutional court.

Individual liberty refers to the freedom of individuals to make choices and decisions without interference from others. It is a primary purpose of government to protect and promote liberty. The degree of freedom of action that individuals have varies by political system and can be delineated in a country's constitution. An individualist system emphasises individuals over the community and the government, recognising that individuals inherently possess rights that the government should preserve and promote.

Constitutions can emphasise civil liberties as negative or positive rights. Negative rights refer to limitations on government power and emphasise what the government cannot do to infringe upon the rights of individuals. Positive rights, on the other hand, focus on what the government should do to promote and ensure the rights of individuals.

In a constitutional democracy, the right mix of liberty and order can be difficult to maintain. It is important to find a balance between limiting the power of the government to protect individuals' rights and restricting expressions of individual liberty to maintain public order and stability.

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Constitutionalism and the separation of powers

The concept of constitutionalism is often associated with the idea of limiting government power through a constitution, typically a written document. It involves examining the source and scope of governmental power, as well as the rights and freedoms it guarantees. Constitutionalism is not just about restricting power; it also empowers ordinary people in a democracy, giving them control over the sources of law and the apparatus of the state.

The separation of powers is a fundamental principle within constitutionalism, aiming to prevent the concentration of power and ensure a system of checks and balances. This principle evolved from the theory of mixed government during the English Civil War in the 17th century, when Charles I invoked the idea of joint rule by the monarch, lords, and commons. The execution of Charles I raised the challenge of how to control government without a monarch, leading to the development of the separation of powers.

The separation of powers typically divides governmental functions into three branches: the executive, legislative, and judicial. Each branch has specific roles and responsibilities, and they are designed to be coequal, with no one branch dominating the others. This separation aims to ensure that those who create laws are distinct from those who interpret, apply, and enforce them, thus preventing individuals or groups from being "judges in their own cause."

The evolution of constitutionalism and the separation of powers has been influenced by various thinkers, including Thomas Hobbes, John Locke, and John Austin. Hobbes and Locke presented opposing views on sovereignty, with Hobbes defending constitutionally unlimited sovereignty and Locke advocating for sovereignty limited by a social contract. John Austin, an English legal theorist, agreed with Hobbes, arguing that the notion of limited sovereignty is incoherent.

The implementation of the separation of powers has varied across different countries, including Britain, France, and the United States. The United Kingdom, with its uncodified constitution, provides an interesting example of constitutionalism in action, with its well-developed polity and multiple governmental and private institutions that counter the power of the state.

In conclusion, constitutionalism and the separation of powers are closely linked concepts. The separation of powers is a key mechanism through which constitutionalism achieves its goal of limiting governmental power and ensuring a balanced distribution of authority. By dividing governmental functions into distinct branches and establishing checks and balances, the separation of powers helps to protect individual rights and maintain a healthy political system.

Constitutionalism and the rule of law

Constitutionalism is about limiting the power of the government by a constitution, usually a written one. It describes and prescribes both the source and the limits of government power derived from fundamental law. It is about the empowerment of ordinary people in a democracy, allowing them to control the sources of law and harness the apparatus of government to their aspirations. This is in contrast to the democratic view of constitutions, which focuses on restraining and limiting power.

The classical republican tradition, as related to political constitutionalism, identifies arbitrariness with the domination of the ruled by their rulers. It seeks to avoid this domination by establishing a condition of political equality characterized by a balance of power between all relevant groups and parties within a polity, so that no one can rule without consulting the interests of the ruled. This tradition focuses on the design and functioning of the democratic process, including the selection of electoral systems and the choice between presidential or parliamentary forms of government.

The modern, liberal tradition identifies arbitrariness with interference with individual rights and seeks to establish protections through the separation of powers and a judicially protected constitution. This tradition is concerned with the principles of constitutional design, which includes the principle that the field of public action be partitioned between delegated powers to the government and the rights of individuals, each of which is a restriction of the other, and that no powers be delegated beyond the competence of the government.

The rule of law and constitutionalist ideals are often understood as necessary to create a just political order. They are seen as mutually informing and influencing each other, with constitutional ideals representing the ideal and the rule of law representing the real.

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