Constitution And Constitutionalism: Understanding The Fundamental Nexus

The constitution and constitutionalism are distinct concepts. The former is a set of rules enforced or recognised by the courts, while the latter describes and prescribes the source and limits of government power derived from fundamental law. Political constitutional theory acknowledges the ever-present potential for conflicts as essential to the political nature of the constitution, and views violations as responses to threats to the political existence of a state. The classical republican tradition seeks to avoid domination of the ruled by their rulers, while the modern liberal tradition seeks to protect individual rights through the separation of powers. The UK is an example of a country with an uncodified constitution and a well-developed polity with multiple governmental and private institutions that counter the power of the state.

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The study of constitutions vs. constitutionalism

The study of constitutions differs from the study of constitutionalism in that the former involves examining how a constitution is interpreted and applied to distribute power and authority, while the latter involves exploring the philosophical foundations of the state, the legitimacy of government, and the relationship between the people and the state.

Constitutions are written documents that outline the rules and principles by which a country or political entity is governed. They establish the powers and responsibilities of different branches of government, such as the executive, legislative, and judicial branches, and may also include provisions on individual rights and freedoms. The study of constitutions involves analysing these written texts, interpreting their meaning, and understanding how they are applied in practice. It involves examining how the different branches of government interact and how power is distributed and exercised within the framework established by the constitution.

On the other hand, constitutionalism is a broader concept that encompasses the ideas, attitudes, and patterns of behaviour that underpin a constitutional system. It is concerned with the philosophical and theoretical foundations of the state and the relationship between the people and their government. Constitutionalism involves exploring questions such as the source and limits of government power, the legitimacy of the state, and the mechanisms by which the government can be held accountable to the people. It is about understanding the underlying principles and values that shape the interpretation and application of the constitution.

For example, a constitution may specify the procedures for passing laws, the separation of powers between different branches of government, and the protection of individual rights. The study of constitutions would involve analysing these provisions and understanding how they are implemented in practice. On the other hand, constitutionalism would involve exploring the underlying principles of law-making, the justification for separating powers, and the theoretical basis for protecting individual rights. It would also encompass historical and philosophical inquiries into the development of these ideas and their evolution over time.

Legal historian Christian G. Fritz distinguishes between "constitutional questions" and "questions of constitutionalism". Constitutional questions focus on the interpretation and application of the constitution in areas such as war and peace, taxation, and representation. Questions of constitutionalism, on the other hand, delve into open-ended inquiries about how to identify the collective sovereign, the powers of the sovereign, and how to recognise when the sovereign acts. These questions cannot be answered by simply referring to a constitutional text or judicial opinions but require a deeper exploration of the underlying principles and values.

In conclusion, while the study of constitutions focuses on the interpretation and application of the written rules and principles outlined in a constitutional document, the study of constitutionalism involves a broader examination of the philosophical, theoretical, and historical underpinnings of constitutional systems. It explores the relationship between the people, the government, and the state, and seeks to understand the underlying principles that shape the interpretation and application of constitutional provisions. By studying constitutionalism, we can gain a deeper understanding of the values and ideas that shape the distribution of power and the relationship between the individual and the state.

The source and limits of government power

Constitutionalism describes and prescribes both the source and the limits of government power derived from fundamental law. This is achieved through the partitioning of the field of public action between delegated powers to the government and the rights of individuals, each of which acts as a restriction on the other.

Constitutionalism is concerned with the principles of constitutional design, which includes the principle that no powers be delegated that are beyond the competence of the government. This is achieved through the separation of powers and a judicially protected constitution. The classical republican tradition, as related to political constitutionalism, identifies arbitrariness with the domination of the ruled by their rulers and seeks to avoid it by establishing a condition of political equality. This is characterised by a balance of power between all the relevant groups and parties within a polity, so that no one can rule without consulting the interests of the ruled.

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. 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 United Kingdom is an example of constitutionalism in a country with an uncodified constitution. The UK's constitutional monarchy and the struggle for power between King and Parliament in the 17th century led to a well-developed polity with multiple governmental and private institutions that counter the power of the state.

The source of government power in constitutionalism is the constitution-giving power, which is responsible for both the constitution as the original sovereign expression of political self-determination and the exceptional breaches and violations made to it. Political constitutional theory claims that a constitution is not political because of a commitment to any particular choice of politics but because commitment itself implies an ever-present and necessary tension between what has been constituted and the “enemies” that potentially threaten it.

Political constitutionalism vs. political constitutional theory

The nexus between constitution and constitutionalism is a complex and multifaceted concept that has been explored by legal and political scholars for centuries. At its core, it revolves around the study of constitutions and constitutionalism as distinct but interconnected fields. While the study of constitutions examines the interpretation and application of constitutional texts in distributing power and authority, constitutionalism delves into the philosophical and legal foundations of state power.

Political constitutionalism and political constitutional theory offer contrasting perspectives on the relationship between politics, power, and the constitution. Political constitutionalism, as outlined by Panu Minkkinen, views politics as consensual governance and interprets the constitution as a set of principles and institutions that facilitate conflict management. It assumes that conflicts can be resolved through established mechanisms, maintaining stability and order.

On the other hand, political constitutional theory, influenced by the work of Carl Schmitt, acknowledges the inherent potential for conflicts within the political nature of the constitution. This theory recognises that conflicts are essential to the political process and can manifest as exceptional constitutional violations. These violations reaffirm the sovereign constituent power that underpins the democratic foundation of political and legal institutions. Schmitt's approach underscores the dynamic and contested nature of political constitutional theory, which cannot be confined to a static orthodoxy.

While political constitutionalism emphasises consensus and stability, political constitutional theory embraces dissent and the unrestrained possibility of disagreement. This theoretical framework challenges the notion of a fixed, unchanging constitution, recognising that constitutional principles and institutions are subject to adaptation and violation. The theory accounts for exceptional measures adopted by institutions when faced with threats to existing constitutional norms.

In summary, political constitutionalism and political constitutional theory represent divergent approaches to understanding the interplay between politics, power, and the constitution. Political constitutionalism seeks consensus and stability through established constitutional mechanisms, while political constitutional theory acknowledges the dynamic and conflictual nature of politics and the potential for constitutional violations. These perspectives contribute to our understanding of the complex nexus between constitution and constitutionalism.

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Constitutional interpretation and reasoning

Interpreting a constitution and reasoning with it is a complex task that involves legal and philosophical foundations. The study of constitutions is not necessarily the same as the study of constitutionalism. For example, legal historian Christian G. Fritz differentiates between "constitutional questions", which examine how the constitution was interpreted and applied to distribute power and authority, and "questions of constitutionalism", which deal with recognising and identifying the collective sovereign, their powers, and their actions.

The interpretation and reasoning of constitutionalism also depend on the political and philosophical context. Political constitutional theory acknowledges the potential for conflicts and exceptional constitutional violations that reaffirm sovereign constituent power. It views these violations as responses to threats that endanger the political existence constituted by political and legal institutions. In contrast, political constitutionalism views occasional constitutional violations as anomalies.

Additionally, the relationship between government bodies, such as Parliament, the President, or the judiciary, and their limitation by constitutional law, plays a role in constitutional interpretation and reasoning. The concept of popular sovereignty adds complexity, as it raises questions about the coherence of commanders commanding themselves.

The democratic view of constitutions

Constitutions in a democracy serve to establish the structure and limits of government power, with the ultimate source of authority being the people. This is reflected in the daily realities of the political system, where citizens have the right and opportunity to participate in a government of, by, and for the people. In a constitutional democracy, the authority of the majority is limited by legal and institutional means to protect the rights of individuals and minorities. This is characterised by popular sovereignty, majority rule with minority rights, and limited government.

Popular sovereignty, a key principle of constitutional democracy, recognises that the people are the ultimate source of government authority, deriving its right to govern from their consent. This consent is expressed through democratic processes, such as elections, where citizens elect representatives to govern on their behalf. The majority's power is exercised within a framework that protects minority rights, ensuring that the will of the majority does not infringe upon the fundamental rights of individuals.

Majority rule in a constitutional democracy is balanced by the protection of minority rights. While the majority's decisions hold sway, the rights and freedoms of individuals within minority groups are safeguarded by legal and constitutional mechanisms. These rights may include life, liberty, property, and social and economic entitlements such as employment, healthcare, and education. Additionally, constitutional democracies prioritise the protection of freedom of conscience and expression, recognising the value of these freedoms for both the healthy functioning of democracy and the development of individuals.

Limited government is another essential characteristic of constitutional democracy. The powers of the government are constrained by law, including a written or unwritten constitution, to prevent arbitrary rule. This limitation on government power can be achieved through various means, such as the delegation of powers to different branches of government, the establishment of individual rights, and the creation of checks and balances within the governmental system.

In conclusion, the democratic view of constitutions emphasises the empowerment of citizens and the protection of their rights within a framework of limited government. Constitutional democracy, characterised by popular sovereignty, majority rule with minority rights, and limited government, aims to create a system of governance that is responsive to the needs and aspirations of the people while also upholding fundamental freedoms and protections.

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