The Birth Of Constitutionalism: An Idea's Origin

Constitutionalism is a political theory that states that a government should be limited in its powers and that its authority derives from and is limited by a body of fundamental law. The idea of constitutionalism is often attributed to English philosopher Thomas Hobbes, who argued for the notion of constitutionally unlimited sovereignty, and was later expanded upon by John Locke in his Two Treatises on Government. The idea of constitutionalism has evolved over time, with contributions from various legal and political scholars, and has influenced the creation of important documents such as the Magna Carta in 1215, the English Bill of Rights in 1689, and the United States Constitution in 1787.

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The origins of constitutionalism

The idea of constitutionalism has evolved over time, with its roots tracing back to the Magna Carta in 1215, when King John of England was compelled by a group of wealthy nobles to sign a document curtailing his power. While the practical significance of the Magna Carta has been exaggerated, it set a precedent for limited government power.

The concept of constitutionalism is founded on the idea of a social contract between the government and the governed, first proposed by English philosopher and politician Thomas Hobbes. According to Hobbes, the government agrees to protect the interests, lives, and property of its citizens, and in return, the citizens agree to support and sustain the government. This notion of a social contract imposes limitations on government authority and establishes the principle of popular sovereignty, where sovereign power ultimately resides in 'the people'.

John Locke, another English philosopher, expanded upon Hobbes's theory, advocating for sovereignty limited by the terms of a social contract containing substantive restrictions. The work of Hobbes and Locke influenced the development of significant historical documents, including the English Bill of Rights, signed by King William III during the Glorious Revolution in 1689, and the United States Constitution in 1787.

Constitutionalism, as a political theory, asserts that a government should abide by the principles of its constitution and scrutinize its laws and actions accordingly. It emphasizes the notion of limited government power, subject to the rule of law, rather than arbitrary judgments by public officials. Constitutionalism promotes the idea of institutionalized mechanisms of power control to safeguard the interests and liberties of citizens, including those from minority groups.

The study of constitutionalism involves examining the philosophical and legal foundations of the state, addressing questions of power distribution, checks and balances, and the relationship between constitutionalism and democracy. The idea of comparative constitutionalism, originating with Aristotle, further emphasizes the importance of studying and comparing different constitutions to determine the optimal form of government and its associated laws and customs.

The social contract

Rousseau's social contract theory, presented in his 1762 book "The Social Contract" (French: "Du contrat social ou Principes du droit politique"), emphasizes the importance of the "general will", which is directed towards the common good and understood and agreed upon collectively. He also viewed the invention of private property as a pivotal moment in humanity's evolution, marking the emergence of greed, competition, inequality, and vice.

The idea of a social contract has been a subject of debate, with some scholars arguing that consent to join a society does not necessarily imply consent to its government. Instead, they propose that the government must be established according to a constitution that aligns with the unwritten constitutions of nature and society. Additionally, the concept of tacit consent suggests that individuals give consent to be governed by remaining within a society's territory, while explicit consent leaves no room for misinterpretation.

Popular sovereignty

The idea of constitutionalism is often associated with figures like Thomas Hobbes, John Locke, and Jean-Jacques Rousseau, who are known for their theories on social contracts and the limitations of government power.

Now, when it comes to popular sovereignty, a key concept within constitutionalism, there are several important points to consider:

Definition and Core Principles

Historical Context

The idea of popular sovereignty has been a significant force in shaping political thought, particularly in the context of the American Revolution and the founding of the United States of America. The Declaration of Independence of 1776 and the U.S. Constitution, with its Preamble and various articles, strongly asserted popular sovereignty, marking a shift from monarchical forms of government to a republican system.

Application and Manifestation

Global Recognition

The principle of popular sovereignty has gained widespread recognition globally, with many democracies embracing it as a standard for legitimacy. Even non-democratic nations sometimes attempt to claim popular sovereignty to justify their power. For instance, the People's Republic of China's constitution is established in the name of the people, reflecting a similar sentiment.

Limitations and Criticisms

While popular sovereignty is a cornerstone of modern political thought, it has faced limitations and criticisms. For instance, the doctrine's application in the context of the slavery debate in the United States, as seen in the Kansas-Nebraska Act of 1854, illustrated the challenges of reconciling proslavery and antislavery factions within the framework of popular sovereignty. Additionally, the very notion of popular sovereignty has been questioned, with scholars debating the practical implications of unlimited sovereign power vested in the people and the potential paradoxical nature of commanders commanding themselves.

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Separation of powers

The idea of constitutionalism embodies the notion that governments can and should be legally limited in their powers, and that their authority depends on their observation of these limitations. Constitutionalism is deeply embedded in historical experience, and its central element is the idea that the authority of the government is limited by a body of fundamental law.

The Framers of the US Constitution believed that concentrating distinct governmental powers in a single entity would lead to arbitrary and oppressive government action. James Madison, in Federalist No. 48, wrote that the accumulation of all powers, legislative, executive, and judiciary, in the same hands, "may justly be pronounced the very definition of tyranny". Thus, the separation of powers was designed to prevent a concentration of power by a single branch, avoiding unequal control over the government.

Each branch has separate and distinct powers, and generally, one branch is not allowed to exercise the powers of the others. The Legislative Branch, or Congress, has the power to create laws or statutes. The Executive Branch, led by the President, enforces the laws created by the legislature. The Judicial Branch, headed by the Supreme Court, exercises judicial review over the actions of the other two branches.

To maintain the independence of each branch, the Framers incorporated checks and balances. For example, the President can veto legislation passed by Congress, but Congress can overrule such vetoes with a supermajority vote. Additionally, Congress has the power to impeach and remove the President, Vice President, and civil officers. This system of checks and balances aims to prevent one branch from aggrandizing its power and encroaching on the core functions of another.

Comparative constitutionalism

The idea of constitutionalism has been attributed to various figures throughout history, including Thomas Hobbes, John Locke, and John Austin. While the concept has evolved, it centres on the belief that governmental power is derived from and limited by a body of fundamental law, protecting the liberties of citizens.

The discipline has experienced a revival due to two main factors. Firstly, newly emergent states seek to establish constitutional orders informed by the experiences of more established constitutional democracies. Secondly, globalization has intensified horizontal relations between constitutional courts worldwide, with decisions by one constitutional court influencing others.

Centres of academic excellence, such as Oxford University, contribute significantly to the field of comparative constitutionalism. Notable constitutional scholars, including Robert Schütze, offer expertise in comparative federalism and the law of the European Union, enriching our understanding of constitutional doctrine and norms.

The study of comparative constitutionalism is not limited to academic pursuits but also extends to practical applications. For instance, the Center for Comparative Constitutionalism focuses on how societies secure constitutional rights for their citizens, exploring both legal and judicial interpretations. By understanding different approaches to constitutional rights, societies can better safeguard the interests and liberties of their citizens.

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