Constitution Vs. Constitutionalism: What's The Difference?

Constitution and constitutionalism are two distinct concepts in political theory. A constitution is a written document that outlines the principles and precedents that govern a country, while constitutionalism refers to the belief that elected officials should adhere to and be limited by the rules and principles set out in that constitution. Constitutionalism upholds the rule of law, ensures basic rights and freedoms for citizens, and institutes checks and balances on governmental power. While a country can have a constitution, it may lack constitutionalism, which curbs the arbitrary use of power by the government.

Explore related products

An Introduction to Constitutional Law: 100+ Supreme Court Cases Everyone Should Know

$26 $34.95

Constitutional Law: [Connected eBook with Study Center] (Aspen Casebook)

$237.39 $359

The Constitution of the United States of America: The Declaration of Independence, The Bill of Rights

$9.99 $9.99

Constitutional Law For Dummies

$18 $29.99

Constitutional Law: Principles and Polices (Aspen Treatise)

$97.38 $126.95

The Constitution of the United States and The Declaration of Independence

$1.99 $6.95

Unitary vs Federal Constitution

A constitution is a country's written document that outlines the fundamental principles and established precedents that guide the governance of a state. Constitutionalism, on the other hand, refers to the belief that elected officials should adhere to and be limited by the rules and principles set out in the constitution. It upholds the rule of law, ensuring equality for all in the eyes of the law, and guarantees basic rights and freedoms to citizens.

Now, when it comes to the differences between a unitary and a federal constitution, the key distinction lies in how power is distributed within a country's system of government.

A unitary constitution concentrates power in the hands of a central government, which holds ultimate authority over its jurisdiction. In this system, the central government sits at the top, with local or municipal governments constituting the only other level of government. While these local governments may enjoy a degree of autonomy, their powers are not constitutionally protected, and the central government can abolish them if it chooses. An example of a unitary state is the United Kingdom, where the government in London holds supreme authority over England, Wales, Scotland, and Northern Ireland, despite the existence of devolved parliaments in Scotland and Wales.

On the other hand, a federal constitution distributes power between a central government and other smaller governments. In this system, there is an intermediate level of governmental authority, typically consisting of states or provinces, which enjoy constitutionally protected sovereignty. Both the national government and these smaller governments have exclusive powers that cannot be changed by the other, with specific powers like taxation and law-making distributed accordingly. The United States of America is a well-known example of a country operating under a federal constitution.

It's important to note that most countries fall somewhere between these two ideal types, with some exhibiting characteristics of both unitary and federal systems. These are often referred to as semifederal states, where regional governments have limited legislative and administrative powers but remain subject to the overriding authority of the central government in certain matters.

Constitutionalism and Limited Government

While the terms "constitution" and "constitutionalism" are often used interchangeably, they represent distinct concepts in political theory. A constitution is a written document outlining the fundamental principles that govern a country or organisation. Constitutionalism, on the other hand, embodies the belief that governmental authority is derived from and limited by this body of fundamental law.

Constitutionalism upholds the concept of limited government, preventing the arbitrary use of power. It ensures that rulers do not possess absolute authority and are subject to the same laws as the people they govern. This is achieved through a system of checks and balances, with power distributed among different branches of government, typically the executive, legislative, and judiciary.

The principles of constitutionalism safeguard against the concentration of power in a single entity, whether an individual or a central government. In a unitary constitution, all powers are vested in the central government. Conversely, a federal constitution embodies constitutionalist ideals by distributing power between the central and regional governments.

Constitutionalism also protects individual rights and freedoms. It guarantees citizens their basic rights, as outlined in the constitution, ensuring that laws created by officials do not violate these rights. Free and fair elections are another cornerstone of constitutionalism, allowing citizens to choose their government through regular, democratic processes.

In summary, while a constitution provides the foundational principles for governing a country or organisation, constitutionalism represents the belief that those in power are bound by these principles and subject to the rule of law. Constitutionalism promotes limited government, individual rights, and democratic ideals, creating a system of checks and balances that safeguards against the arbitrary use of power.

Rule of Law

The rule of law is a fundamental principle of constitutionalism, and it plays a crucial role in distinguishing between a constitution and constitutionalism. The rule of law dictates that all individuals, institutions, and entities, public and private, are subject to and bound by the law. This includes the government and its functionaries, who must act within the limits set by the law. The rule of law is based on several key principles:

• Supremacy of the Law: The law is the supreme authority, and everyone, including the government, is subject to it. No one is above the law, and no one can be exempted from its application.
• Equality Before the Law: The law applies equally to all individuals and entities, regardless of their status, position, or power. Everyone is equal in the eyes of the law, and it treats everyone impartially and without discrimination.
• Clarity and Certainty of the Law: The law must be clearly defined, easily understandable, and predictable. Vague and ambiguous laws can lead to arbitrary interpretations and abuse of power. Clear laws ensure that people know their rights and obligations and can make informed decisions.
• Enforcement and Accessibility of the Law: The law must be effectively enforced and easily accessible to all. This includes ensuring that the justice system is independent, impartial, and competent, providing equal access to justice for all individuals and entities.
• Protection of Fundamental Rights: The rule of law safeguards the fundamental rights and freedoms of individuals, as enshrined in the constitution. These rights serve as limitations on the power of the state, ensuring that the government does not arbitrarily infringe upon the liberties of its citizens.
• Separation of Powers: The rule of law is closely associated with the principle of separation of powers, which divides the functions of the government into independent branches, typically the legislative, executive, and judicial branches. This separation ensures that no single branch holds excessive power and helps prevent abuse and promote accountability.
• Constitutional Supremacy: The rule of law is often associated with constitutionalism, which entails that the constitution is the supreme law of the land. This means that all laws and actions of the government must conform to the principles and provisions laid out in the constitution, thereby safeguarding the rights and freedoms of the people.

In summary, the rule of law is a foundational concept within constitutionalism, emphasizing the primacy of law over all individuals and institutions, including the government. It ensures equality, fairness, and predictability in the application of laws and safeguards the rights and liberties of citizens. The rule of law is a cornerstone of democratic societies, promoting good governance, accountability, and the protection of fundamental rights.

Explore related products

Constitutional Law (University Casebook Series)

$297.73

Examples & Explanations for Constitutional Law: National Power and Federalism (Examples & Explanations Series)

$59.81 $76.95

A Short & Happy Guide to Constitutional Law

$28 $28

Constitutional Law: a QuickStudy Laminated Reference Guide

$8.32 $8.95

Examples & Explanations for Constitutional Law: Individual Rights

$25 $74.95

Examples & Explanations for Constitutional Law: Individual Rights (Examples & Explanations Series)

$76.95 $76.95

Separation of Powers

The concept of the separation of powers is derived from the text and structure of the US Constitution. The US Constitution establishes three separate but equal branches of government: the legislative branch, the executive branch, and the judicial branch.

The legislative branch is responsible for making laws, the executive branch enforces the laws, and the judicial branch interprets the laws. Each branch has its own distinct powers and responsibilities, and they work together to govern the country.

The Framers of the Constitution intentionally separated the powers of the government to prevent the accumulation of power in a single entity, which they believed could lead to arbitrary and oppressive government actions. This belief was influenced by their experience with the British monarchy. By dividing the governmental powers among the three branches, the Framers sought to preserve individual liberty and create a system of checks and balances.

Each branch has some independence, but they also depend on each other's authority for the government to function effectively. The legislative power is vested in Congress, which consists of the Senate and the House of Representatives. The executive power is held by the President, who becomes the Commander-in-Chief of the armed forces and has the power to make treaties, appointments, and ensure the execution of laws. The judicial power is vested in the Supreme Court and any lower courts created by Congress.

The separation of powers is not just a theoretical concept but has practical implications and applications. For example, in the case of Immigration and Naturalization Service v. Chadha (1983), the Supreme Court upheld the principle of separation of powers by deciding that legislative power should be vested in Congress and that a specific procedure should be followed for passing bills into law. In Clinton v. City of New York (1998), the Supreme Court ruled that Congress could not delegate a "line-item veto" to the President, as it would violate the separation of powers.

The separation of powers is a fundamental aspect of the US Constitution and plays a crucial role in maintaining the balance of power among different branches of the government, ensuring that no single branch becomes too powerful and upholding individual liberties.

Protection of Fundamental Rights

A constitution is a written document that outlines the fundamental principles and established precedents that govern a country. It also assures its citizens of certain basic rights. Constitutionalism, on the other hand, refers to the belief that those in power should adhere to the rules and principles set out in the constitution. It upholds the rule of law, ensuring that all individuals are equal before the law and that the government's authority is limited by a body of fundamental laws.

The protection of fundamental rights is a key aspect of both a constitution and constitutionalism. These fundamental rights are a class of rights that protect individual and group liberties, including basic civil rights, political participation, equal rights and privileges, social welfare rights, and rights to cultural and environmental protection. They have developed over time, with governments initially committing to protecting a set of basic civil and political rights, and later recognising social welfare rights and rights to cultural and environmental protection as fundamental.

Constitutional systems play a crucial role in protecting these fundamental rights through moral commitments, government officials, and judicial enforcement. For example, in the United States, the Supreme Court interprets the Constitution to determine which rights are fundamental and has recognised various rights as fundamental, such as the right to privacy and the right to contract. Similarly, in Europe, the European Convention on Human Rights, signed by all member states, serves as a basis for protecting fundamental rights, although the specific rights recognised and the means employed to guarantee them vary across states.

While a constitution provides a written guarantee of fundamental rights, constitutionalism ensures that these rights are respected and enforced by those in power. It prevents the arbitrary use of power and institutes checks and balances among different branches of government. In this way, constitutionalism acts as a safeguard against potential violations of the rights and freedoms outlined in the constitution.

Frequently asked questions