|
|
|
|
Constitutionalism
|
| |
|
| |
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." 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." As described by political scientist and constitutional scholar David Fellman:
titutionalism has prescriptive and descriptive uses.
Discussion
Ask a question about 'Constitutionalism' Start a new discussion about 'Constitutionalism' Answer questions from other users |
Encyclopedia
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." 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." As described by political scientist and constitutional scholar David Fellman:
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."
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. 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.
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." One example of this prescriptive approach was the project of the National Municipal League to develop a
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." 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.'" Ultimately, American constitutionalism came to rest on the collective sovereignty of the people - the source that legitimated American governments.
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."
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 , 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." 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,
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." xamples
Descriptive use
Used descriptively, the concept of constitutionalism can refer chiefly to the historical struggle for constitutional recognition of the people's right to "consent" and certain other rights, freedoms, and privileges.
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.
In point of fact, there is a rich tradition of state constitutionalism that offers broader insight into constitutionalism in the United States. 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. 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.
United Kingdom
The United Kingdom is perhaps the best instance of constitutionalism in a country that does not have a written constitution. A variety of developments in seventeenth-century England, including "the protracted struggle for power between king and Parliament was accompanied by an efflorescence of political ideas in which the concept of countervailing powers was clearly defined,"
led to a well-developed polity with multiple governmental and private institutions that counter the power of the state.
Prescriptive use
The prescriptive approach to constitutionalism addresses what a constitution should be. Two observations might be offered about its prescriptive use.
- There is often confusion in equating the presence of a constitution with the conclusion that a state or polity is one based upon constitutionalism. As noted by David Fellman constitutionalism "should not be taken to mean that if a state has a constitution, it is necessarily committed to the idea of constitutionalism. In a very real sense… every state may be said to have a constitution, since every state has institutions which are at the very least expected to be permanent, and every state has established ways of doing things." But even with a "formal written document labelled [sic] 'constitution' which includes the provisions customarily found in such a document, it does not follow that it is committed to constitutionalism…."
- Often the word "constitutionalism" is used in a rhetorical sense – as a political argument that equates the views of the speaker or writer with a preferred view of the constitution. For instance, University of Maryland Constitutional History Professor Herman Belz's critical assessment of expansive constitutional construction notes that "constitutionalism . . . ought to be recognized as a distinctive ideology and approach to political life…. Constitutionalism not only establishes the institutional and intellectual framework, but it also supplies much of the rhetorical currency with which political transactions are carried on." Similarly, Georgetown University Law Center Professor Louis Michael Seidman noted as well the confluence of political rhetoric with arguments supposedly rooted in constitutionalism. In assessing the "meaning that critical scholars attributed to constitutional law in the late twentieth century," Professor Seidman notes a "new order ... characterized most prominently by extremely aggressive use of legal argument and rhetoric" and as a result "powerful legal actors are willing to advance arguments previously thought out-of-bounds. They have, in short, used legal reasoning to do exactly what crits claim legal reasoning always does - put the lipstick of disinterested constitutionalism on the pig of raw politics."
United States
Starting with the proposition that "'Constitutionalism' refers to the position or practice that government be limited by a constitution, usually written," analysts take a variety of positions on what the constitution means. For instance, they describe the document as a document that may specify its relation to statutes, treaties, executive and judicial actions, and the constitutions or laws of regional jurisdictions. This prescriptive use of Constitutionalism is also 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 that are beyond the competence of government.
Polish–Lithuanian Commonwealth
The Constitution of May 3, 1791 is generally recognized as Europe's first and the world's second modern codified national constitution, following the 1787–90 ratification of the United States Constitution. It was in effect for only a year.
The May 3rd Constitution was designed to redress long-standing political defects of the Polish–Lithuanian Commonwealth and its traditional system of "Golden Liberty". The Constitution introduced political equality between townspeople and nobility (szlachta) and placed the peasants under the protection of the government, thus mitigating the worst abuses of serfdom.
United Kingdom
Constitutionalist was also a label used by some Independent candidates in UK general elections in the early 1920s. Most of the candidates were former Liberal Party members, and many of them joined the Conservative Party soon after being elected. The best known Constitutionalist candidate was Winston Churchill in the 1924 UK general election.
Dominican Republic
After the democratically elected government of president Juan Bosch in the Dominican Republic was deposed, the Constitutionalist movement was born in the country. As opposed to said movement, the Anticonstitutionalist movement was also born. Juan Bosch had to depart to Puerto Rico after he was deposed. His first leader was Colonel Rafael Tomás Fernández Domínguez, and he wanted Bosch to come back to power once again. Colonel Fernández Domínguez was exiled to Puerto Rico where Bosch was. The Constitutionalists had a new leader: Colonel Francisco Alberto Caamaño Deñó.
See also
External links
- , (David Fellman, "Constitutionalism"), vol 1, p. 485, 491-92 (1973-74)
-
|
| |
|
|
