Constitutionalism

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Constitutionalism has a variety of meanings. Most generally, it is "a complex of ideas,

attitudes, and patterns of behavior elaborating the principle that the authority of
government derives from and is limited by a body of fundamental law."[1] These ideas,
attitudes and patterns of behavior, according to one analyst, form "a dynamic political and
historical process rather than as a static body of thought laid down in the eighteenth
century."[2] A political organization is constitutional to the extent that it "contain[s]
institutionalized mechanisms of power control for the protection of the interests and
liberties of the citizenry, including those that may be in the minority."[3]

As described by political scientist and constitutional scholar David Fellman:

"Constitutionalism is descriptive of a complicated concept, deeply imbedded

“ in historical experience, which subjects the officials who exercise
governmental powers to the limitations of a higher law. Constitutionalism
proclaims the desirability of the rule of law as opposed to rule by the arbitrary
judgment or mere fiat of public officials…. Throughout the literature dealing
with modern public law and the foundations of statecraft the central element
of the concept of constitutionalism is that in political society government
officials are not free to do anything they please in any manner they choose;
they are bound to observe both the limitations on power and the procedures
which are set out in the supreme, constitutional law of the community. It may
therefore be said that the touchstone of constitutionalism is the concept of
limited government under a higher law."[4] ”
[edit] Usage
Constitutionalism has prescriptive and descriptive uses. Law professor Gerhard Casper
captured this aspect of the term in noting that: "Constitutionalism has both descriptive
and prescriptive connotations. Used descriptively, it refers chiefly to the historical
struggle for constitutional recognition of the people's right to 'consent' and certain other
rights, freedoms, and privileges…. Used prescriptively … its meaning incorporates those
features of government seen as the essential elements of the … Constitution."[5]

[edit] Descriptive use

One example of constitutionalism's descriptive use is law professor Bernard Schwartz's 5

volume compilation of sources seeking to trace the origins of the Federal bill of rights.[6]
Beginning with English antecedents going back to the Magna Carta (1215), the author
explores the presence and development of ideas of individual freedoms and privileges
through colonial charters and legal understandings. Then, in carrying the story forward,
the author identifies revolutionary declarations and constitutions, documents and judicial
decisions of the Confederation period and the formation of the federal Constitution.
Finally, he turns to the debates over the federal Constitution's ratification that ultimately
provided mounting pressure for a federal bill of rights. While hardly presenting a
"straight-line," the account illustrates the historical struggle to recognize and enshrine
constitutional values and principles in a constitutional order.

[edit] Prescriptive use

In contrast to describing what constitutions are, a prescriptive approach addresses what a

constitution should be. As presented by Canadian philosopher Wil Waluchow,
constitutionalism embodies "the idea … that government can and should be legally
limited in its powers, and that its authority depends on its observing these limitations.
This idea brings with it a host of vexing questions of interest not only to legal scholars,
but to anyone keen to explore the legal and philosophical foundations of the state."[7] One
example of this prescriptive approach was the project of the National Municipal League[8]
to develop a "Model State Constitution."

[edit] Authority of government

Whether reflecting a descriptive or prescriptive focus, treatments of the concept of

constitutionalism all deal with the legitimacy of government. One recent assessment of
American constitutionalism, for example, notes that the idea of constitutionalism serves
to define what it is that "grants and guides the legitimate exercise of government
authority."[9] Similarly, historian Gordon S. Wood described this American
constitutionalism as "advanced thinking" on the nature of constitutions in which the a
constitution was conceived to be "a 'sett of fundamental rules by which even the supreme
power of the state shall be governed.'"[10] Ultimately, American constitutionalism came to
rest on the collective sovereignty of the people - the source that legitimated American
governments.

[edit] Fundamental law empowering and limiting government

One of the most salient features of constitutionalism is that it describes and prescribes
both the source and the limits of government power. William H. Hamilton has captured
this dual aspect by noting that constitutionalism "is the name given to the trust which men
repose in the power of words engrossed on parchment to keep a government in order."[11]

[edit] Constitutionalism vs. constitutional questions

The study of constitutions is not necessarily synonymous with the study of
constitutionalism. Although frequently conflated, there are crucial differences. A
discussion of this difference appears in legal historian Christian G. Fritz's American
Sovereigns: The People and America's Constitutional Tradition Before the Civil War,[12] a
study of the early history of American constitutionalism. Fritz notes that an analyst could
approach the study of historic events focusing on issues that entailed "constitutional
questions" and that this differs from a focus that involves "questions of
constitutionalism."[13] Constitutional questions involve the analyst in examining how the
constitution was interpreted and applied to distribute power and authority as the new
nation struggled with problems of war and peace, taxation and representation.

However,

"[t]hese political and constitutional controversies also posed questions of

“ constitutionalism – how to identify the collective sovereign, what powers the
sovereign possessed, and how one recognized when that sovereign acted.
Unlike constitutional questions, questions of constitutionalism could not be
answered by reference to given constitutional text or even judicial opinions.
Rather, they were open-ended questions drawing upon competing views
Americans developed after Independence about the sovereignty of the people
and the ongoing role of the people to monitor the constitutional order that
rested on their sovereign authority."[13] ”
A similar distinction was drawn by British constitutional scholar A.V. Dicey in assessing
Britain's unwritten constitution. Dicey noted a difference between the "conventions of the
constitution" and the "law of the constitution." The "essential distinction" between the
two concepts was that the Law of the Constitution was made up of "rules enforced or
recognised by the Courts," making up "a body of 'laws' in the proper sense of that term."
In contrast, the Conventions of the Constitution consisted "of customs, practices, maxims,
or precepts which are not enforced or recognised by the Courts" yet they "make up a
body not of laws, but of constitutional or political ethics."[14]

United States

In U.S. History, constitutionalism—in both its descriptive and prescriptive sense—has

traditionally focused on the federal Constitution. Indeed, a routine assumption of many
scholars has been that understanding "American constitutionalism" necessarily entails the
thought that went into the drafting of the federal Constitution and the American
experience with that constitution since its ratification in 1789.[16]

In point of fact, there is a rich tradition of state constitutionalism that offers broader
insight into constitutionalism in the United States.[17] While state constitutions and the
federal Constitution operate differently as a function of federalism—the coexistence and
interplay of governments at both a national and state level—they all rest on a shared
assumption that their legitimacy comes from the sovereign authority of the people or
Popular sovereignty. This underlying premise—embraced by the American
revolutionaries with the Declaration of Independence—unites the American constitutional
tradition.[18] Both the experience with state constitutions before—and after—the federal
Constitution as well as the emergence and operation of the federal Constitution reflect an
on-going struggle over the idea that all governments in America rested on the sovereignty
of the people for their legitimacy.[19]

Books
Stephen M. Griffin, "American Constitutionalism: From Theory to Politics" (Princeton University
Press, 1996) at p. 5.

Don E. Fehrenbacher, Constitutions and Constitutionalism in the Slaveholding South (University

of Georgia Press, 1989) at p. 1.

Gordon, Scott (1999). Controlling the State: Constitutionalism from Ancient Athens to Today.
Harvard University Press. p. 4.

^ G. Alan Tarr, Understanding State Constitutions (Princeton Univ. Press, 1998) and John J.
Dinan, The American State Constitutional Tradition (Univ. Press of Kansas, 2006).

Christian G. Fritz, American Sovereigns: The People and America's Constitutional Tradition
Before the Civil War (Cambridge University Press, 2008) at p. 284 (Observing that from the
Revolutionary era to the period before the Civil War "Americans continued to wrestle with what
it meant that their national as well as state governments rested on the sovereignty of the people")