Constitutionalism

• Author: Gerhard Casper
• Pages: 633-640

Page 633

Constitutionalism is a term not altogether congenial to American lawyers. It seems to share the characteristics of other "isms": it is neither clearly prescriptive nor clearly descriptive; its contours are difficult to discern; its historical roots are diverse and uncertain. Legal realist WALTON H. HAMILTON, who wrote on the subject for the Encyclopedia of the Social Sciences, began his article in an ironic vein: "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."

Historians, on the other hand, employ the concept with some confidence in its meaning. American historians tend to use it as a shorthand reference to the constitutional thought of the founding period. European historians have a somewhat harder time. Given a largely UNWRITTEN CONSTITUTION and the SOVEREIGNTY of Parliament, what does it mean to refer to British constitutionalism? What is the significance of Dicey's distinction between the "conventions of the constitution" and the "law of the constitution"? How meaningful is the distinction? As Dicey noted: "Whatever may be the advantages of a so-called unwritten constitution, its existence imposes special difficulties on teachers bound to expound its provisions." French authors view constitutionalism as an important element of the French Revolution, but run into difficulties as they contemplate the fact that, since the constitution of 1791, France has had fifteen of them?and by no means all democratic. German historians tend to restrict the use of the term Konstitutionalismus to the Central European constitutional monarchies of the nineteenth century, though German-language equivalents for constitutionalism (Verfassungsstaat, Verfassungsbegriff) are frequently encountered in the literature. The German constitutionalist trauma is, of course, the ease with which the Weimar constitution, in its time viewed as one of the most progressive in the world, could be brought to collapse at the hands of determined enemies who then managed to organize arbitrariness in the form of law.

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. This struggle extends roughly from the seventeenth century to the present day. Its beginnings coincide with the "enlightenment" of the seventeenth and eighteenth centuries. Used prescriptively, especially in the United States, its meaning incorporates those features of government seen as the essential elements of the American Constitution. Thus F. A. Hayek called constitutionalism the American contribution to the RULE OF LAW.

Constitutionalism obviously presupposes the concept of a CONSTITUTION. A Swiss authority of some influence in the American revolution, EMERICH DE VATTEL, in his famous 1758 treatise, The Law of Nations or the Principles of Natural Law, provided a definition: "The FUNDAMENTAL LAW which determines the manner in which the public authority is to be exercised is what forms the constitution of the State. In it can be seen the organization by means of which the Nation acts as a political body; how and by whom the people are to be governed; and what are the rights and duties of those who govern. This constitution is nothing else at bottom than the establishment of the system, according to which a Nation proposed to work in common to obtain the advantages for which a political society is formed."

This rather neutral definition has to be read against the background of Vattel's theory of natural law. Vattel recognized the right of the majority to reform its government and, most important, excluded fundamental laws from the reach of legislators, "unless they are expressly empowered by the nation to change them." Moreover, Vattel believed that the ends of civil society were "to procure for its citizens the necessities, the comforts, and the pleasures of life, and in general their happiness; to secure to each the peaceful enjoyment of his property and a sure means of obtaining justice; and finally to defend the whole body against all external violence."

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Later in the eighteenth century strong prescriptive elements became part of the very definition of a constitution. Two examples are equally famous. On October 21, 1776, the town of Concord, Massachusetts, resolved "that a Constitution in its Proper Idea intends a System of Principles Established to Secure the Subject in the Possession and enjoyment of their Rights and Privileges, against any Encroachment of the Governing Part." (See CONCORD RESOLUTION.) Article 16 of the French Declaration of the Rights of Man of 1789 put it even more bluntly: "A society in which the guarantee of rights is not assured nor the SEPARATION OF POWERS provided for, has no constitution."

Although it would be impractical to make such substantive features a necessary part of one's definition of a written or unwritten constitution, a proper understanding of constitutionalism as a historical phenomenon depends on them. Constitutionalism does not refer simply to having a constitution but to having a particular kind of constitution, however difficult it may be to specify its content. This assertion holds true even in the case of the interplay of old forces (monarchies and estates) with new forces (the middle class in particular) which characterized the emergence of constitutional monarchies in Central Europe during the nineteenth century. Seen from a constitutionalist perspective, many of the German constitutional monarchies were influenced by concepts that had much in common with constitutionalist thought. The most important of these concepts was the Rechtsstaat: a state based on "reason" and a strict regulation of government by law.

The concepts of a constitution and of fundamental laws have not had a constant meaning over time. Since the eighteenth century (though not before), it has become customary to translate Aristotle's word politeia as "constitution": "A constitution is the arrangement of the offices in a polis, but especially of the highest office." This definition precedes Aristotle's differentiation among six forms of government?those for the common good (monarchy, aristocracy, and "polity") and their perversions, which serve individual interests (tyranny, oligarchy, and democracy). Aristotle thus introduced substantive, not merely formal, criteria into his teachings about constitutional arrangements.

Cicero is usually credited with first giving the Latin term constitutio something like its modern meaning. About a mixed form of government, he said in De Re Publica: "This constitution has a great measure of equability without which men can hardly remain free for any length of time." Indeed, Roman law was characterized by constitutional notions. The constitution of the Roman republic, putting other substantive arrangements aside, was marked by the power of the plebs to pass on laws which bound the entire Roman people. While this republican prerogative of the plebs was later replaced by Senate law-making and eventually by the emperor's legislative monopoly, its status is perhaps best illustrated by Augustus's repeated refusal, on "constitutional" grounds, to accept extraordinary powers to renew law and morals. Though this Augustan reticence may have been a triumph of form over substance, "triumphs" of this kind have frequently illustrated how constitutional notions have become deeply entrenched.

In subsequent Roman usage the term constitutio came to identify imperial legislation that preempted all other law. The understanding of constitutio as signifying important legislation was retained during the Middle Ages in the Holy Roman Empire, in the church, and throughout Europe. A well-known English example is the Constitution of Clarendon issued by Henry II in 1164.

In England, the modern use of constitution as referring to the nature, government, and fundamental laws of a state dates from the early seventeenth century. In the House of Commons, in 1610, James Whitelock argued that the imposition of taxes by James I was "against the natural frame and constitution of the policy of this kingdom, which is ius publicum regni, and so subverteth the fundamental law of the realm and induceth a new form of State and government."

In Europe, perception that some laws were more fundamental than others were well established before the eighteenth century. MAGNA CARTA (1215), the PETITION OF RIGHT (1628), and the HABEAS CORPUS ACT (1679) are the best known English illustrations of this point. In addition, by their coronation oaths English kings obliged themselves "to hold and keep the laws and righteous customs which the community of [the] realm shall have chosen." Even if the law could not reach the king, the king was viewed as under the law (and, of course, under God). The bounds of the king's discretion were defined by the ancient laws and customs of England or, put differently, the COMMON LAW. By the seventeenth century, EDWARD COKE was even prepared to claim that acts of Parliament were subject to review under the common law (and natural law).

Though the status of French kings was considerably more mysterious and...