Constitutions and Constitutionalism
Constitutions and Constitutionalism
Constitutionalism in its distinctive sense is a modern phenomenon which can be defined only by facing the complexities of defining a constitution. From Aristotle to the present day, many such definitions have been offered, and some of these will be discussed below in connection with the history of constitutionalism.
At the outset, however, the eighteenth-century and nineteenth-century concept of a constitution as a formal written document ought to be discarded. All such documents are subject to a steady evolution; and the living constitution, like all living law, is something transcending such formal enactment as well as preceding it. Furthermore, a constitution such as that of Britain or Israel is just as much “written” as the American or French constitution, that is to say, embodied in written documents of all kinds even though not codified and assembled in a single document. Although outmoded, this documentarian, or code, concept of a constitution played a significant role in the heyday of constitution-making after the French Revolution—as it does, in fact, even today in many of the emergent nations.
In addition to this documentarian concept, one finds several broad philosophical and legal concepts of constitutions which have been important, even though they lack the distinctiveness of the modern Western conception. Aristotle in a sense set the stage for the equivocation which has characterized the basic term throughout its history. When speaking of the politeia, he employed the term to refer both to a distinctive political order, the so-called mixed constitution of the “polity,” and to political order or regime in general. In other words, every regime, even a tyranny, was said to have its constitution or politeia.
Related to this Aristotelian notion is the more modern idea of a constitution as the organization of a government, its offices, and the relation of the offices. A variant is the conception which considers the actual power relations the “living” constitution (McBain 1927; Sternberger 1956). This, too, is a term that might be (and has been) applied to an absolute monarchy or a totalitarian dictatorship as readily as to a political order such as the United States or Great Britain.
Similar to these two conceptions, although distinct from them, is the notion that the constitution is the “basic law” in the sense of incorporating the basic legal rules and conceptions of a given community; it, too, would apply to an absolute monarchy or dictatorship as readily as to any other regime. In contemporary juristic works, however, a constitution is more commonly defined as a decision concerning the organization of government (Kägi 1945; Schmitt 1928), as a legal system of integration (Smend 1928), or as the basic norm (Kelsen 1945). Kelsen would trace any constitution to the one from which it is derived. “The document which embodies the first constitution is a real constitution, a binding norm, only on the condition that the basic norm is presupposed to be valid,” he wrote (1945, p. 115), after having pointed out that “the validity of this first constitution is the last presupposition, the final postulate, upon which the validity of all the norms of our legal order depends” (1945, p. 115). These and similar definitions clearly embody a genetic theory of law; they all derive from a positivist notion of law, according to which law has its origin in the power (usually seen as force) of a government. Still different are those definitions, embodying morphological theories, which describe a constitution in such terms as a system of divided powers (Lowenstein 1957), as a mixture of monarchy, aristocracy, and democracy, and similar indications of the pattern or design of a government. Definitions of this kind are usually given in more concrete terms and refer to a particular pattern or design, making it at times a paradigm or norm for all. Not only in popular parlance but also in advanced juristic thought do we find such statements. A sophisticated variant of morphological theorizing is represented by propositions alleging that the constitution, usually a particular one, is merely a symbol or a myth.
None of these generalized concepts of a constitution—whether philosophical, political, or legal (juristic)—are capable of providing the underpinning for the distinctive notion of constitutionalism as a kind of political order which contrasts sharply with nonconstitutional systems, such as a totalitarian dictatorship. In order to develop such a concept, a constitution must be defined in a way that indicates the features which make it contrast with other kinds of political order. These features come into view when we ask: What is the political function of a constitution? If that question is asked, the constitution is seen as a process by which certain political objectives are realized. What are these objectives?
The first and foremost objective is that of protecting the individual member of the political community against interference in his personal sphere of genuine autonomy. It is his self that each man presumably wishes to have safeguarded. The roots of this concern with the self are predominantly Judaic and Christian, although it must be recognized that self-concern is not completely lacking in Islam, Hinduism, Buddhism, and Confucianism. Such a self is first of all defined by a convictional core which is seen as “inviolable,” if the self is to be maintained in its uniqueness and independence. It is seen as possessing the right (or freedom) of religion. Beyond this core, the individual's sphere is variable; constitutionalism has stressed different rights at different times, and the content of such rights has undergone significant changes. The seventeenth and eighteenth centuries liked to talk about such rights as “natural” and by that adjective to suggest that they inhere in human nature and hence are unalterable. Nowadays the term “human” rights is preferred, because comparative historical observation has shown that these rights are subject to differentiation in time and place and that their real significance must be seen in terms of a minimum sufficient to protect the individual's convictional core.
The basic objective of protecting the individual member of the political community is reinforced and institutionally safeguarded by the division of political power, both functionally and spatially. Such division may therefore be considered the second objective of a constitution. Typically, the “separation of powers” serves as the functional division, while federalism serves as the spatial. Both require a constitution for their effective operation. They operate as restraints on governmental power. In this perspective, then, a constitutional government is one in which effective restraints divide political power, or, to put it negatively, prevent the concentration of such power. Thus, constitutionalism is both the practice of politics according to “rules of the game,” which insure effective restraints upon governmental and other political action, and the theory—explanatory and justificatory—of this practice.
Modern Western constitutionalism, with its emphasis upon the individual's rights, is not the only form in which constitutionalism, defined as a system of restraints upon governmental action, has historically been practiced. Not to go too far afield, the historical discussion will be limited here to Greek, Roman, and medieval constitutionalism, before turning to the history of English, French, and American constitutionalism. For Greek and Roman, as well as medieval, constitutional ideas have been so important in shaping modern constitutionalism that they greatly help us to understand it. At the same time, the failure to distinguish them clearly from modern constitutionalism has been the source of many confusions and misunderstandings.
Greek constitutionalism (as well as Roman) was largely practice, rather than theory, although Aristotle's doctrine of the politeia in the specific sense of the model regime constituted a significant first theory. Before we turn to it, Plato may be said to have pointed the way by making nomos the criterion by which to distinguish good from bad regimes. For the nomos, while not oriented toward the individual, embodied the prevalent communal notions about what is right and just, and provided a standard that transcended the particular system of rule. Plato was convinced, however, that the observance of nomos could be insured only by concentrating power in the hands of the wise. In his later years, especially in the Laws, he was inclined to concede that much of the nomos might be spelled out in nomoi that were observed by all. However, the mode of finding these nomoi—by means of a nomothetes, or legislator—as well as their ultimate enforcement through the Nocturnal Council, shows him to have retained his ultimate confidence in the wise man rather than in the safeguarding constitution—as do both Confucianism and Hinduism [seePlato]. Aristotle, preoccupied with the general happiness, advanced further toward institutional safeguards. His notion of a mixed constitution which would be a mean between monarchy, aristocracy, and democracy was philosophically related to his preference for mesotes, the middle road, the mean between extremes. Historically, it constituted a rationalization of political practice in a number of Greek poleis, if we are to credit the few hints that survive [seeAristotle].
Both the Aristotelian argument in favor of a mixed constitution and the corresponding practices in a polis, such as those which Solon sought to establish at Athens, rested upon a value preference very different from that of modern constitutionalism. The stress was upon stability and strength. Such was also the core objective of Roman constitutionalism. Slowly evolved over the centuries, the Roman constitution was a wonder of complicated and interrelated restraints. All the different offices, from that of the consuls down to those of the minor functionaries, were subject to carefully elaborated rules embodied in law supported by powerful religious beliefs. Polybius provided a celebrated analysis of this constitutional order, as it presumably worked around 200 b.c.; and Cicero, in the Republic and the Laws, added further touches of insight and rationale. What Polybius marveled at, however, was not how it protected the individual but how it provided the strength which made Rome great by giving the Roman political community a measure of internal stability and providing a balance of the different classes. It was this strength and stability which later inspired Machiavelli, Harrington, and Montesquieu. The problem which they and many others contemplated at length, and which each solved in terms of his own political convictions, was the problem of how this strong and stable system came to decline and eventually to be replaced by monarchical absolutism. John Dickinson added his own interpretation in Death of a Republic (1963), making an analogy between the process and the modern rise of totalitarian dictatorship. Like Montesquieu and others, he interpreted Roman constitutionalism in the perspective of contemporary problems of constitutionalism. The problem is basically simpler; Roman constitutionalism provided strength and stability for a city-state. It was unsuited to the larger territorial power which Rome became as the result of this strength and stability. Rome's decline was inherent in its rise—a built-in dialectic often observed in nature. As Mcllwain has insisted, there can be no doubt that the theory of the Roman constitution was that “the people and the people alone are the source of all law” (1940, p. 48). This means, of course, that for an understanding of Roman constitutionalism a grasp of the nature of lex is vital. The distinction between private and public law is essential and is “a distinction that lies to this day behind the whole history of our legal safeguards of the rights of the individual against encroachment of government” (Mcllwain 1940, p. 48). The Roman notion that law is the common solemn promise of the public became a vital ingredient of Western constitutionalism. Without such a concept of law, constitutionalism's political function as a system of restraints is greatly weakened.
Medieval constitutionalism built on the basis thus laid. It sprang from the medieval idea that all legitimate government is government according to law. But that law was held to be largely in existence and merely in need of being made “public,” although the idea of legislation was never entirely lost. How could it be to men who read the Old Testament and the corpus juris, which are filled with evidence of legislation as a matter of historical fact? But all this law was already at hand, as was the customary law by which men lived in their particular national communities. Medieval constitutionalism arose, as did Greek and Roman constitutionalism, from the struggle of an aristocracy seeking to restrain a monarchical ruler who threatened to become a tyrant. In this struggle, constitutionalism became associated with the church, which in some places and at certain times even played a leading role. The share of the bishops in the fighting preceding the issuance of Magna Charta certainly was considerable. King John's attempts to deal with this ecclesiastical opposition by enlisting the support of the pope miscarried; he misunderstood the position of the church. Vitally interested in the restraining of governments, and anxious to retain control over certain fields of law, such as family law, the church developed the doctrine of natural law as it had come down from the Stoics, more especially Cicero, and had been incorporated in the imperial code, the Corpus Juris Civilis. To determine whether particular laws were in keeping with the natural law—for only then could they be considered fully just laws—the church felt it ought to participate in the making of such laws as well as in the interpretation of established law and custom. In the Roman law, a constitutio was a law established by the emperor; in the medieval world, such collective bodies as the “king in parliament” were seen as the successors to the emperor. Legem constituere meant to establish the law by formal enactment. Ecclesiastics ought to participate—and fairly generally did participate—in this process. For example, the Golden Bull, which, regulated the election of the Holy Roman emperor, was a constitutio in this classical sense. The archbishops of Cologne, Mainz, and Trier participated and were made electors under this “constitutional” charter. For many medieval thinkers, jurists, and philosophers, no distinct constitutional problem existed apart from the general proposition that all government should be according to and under the law. Had not the great Aquinas treated of government just incidentally within the context of a discussion of law and justice as part of the Summa theological [SeeAquinas.]
In England, Bracton is perhaps most representative of this medieval stress on law and the legal restraints on government. But a more distinctive sense of the contrast between English and Continental practice is found in John Fortescue, who made the distinction between a regimen regale and a regimen regale et politicum the keynote of his discussion of English government. Here the word politicum appeared as representative of the Aristotelian politeia in its differentiating sense of a model government of mixed and restrained powers. As authority Fortescue cited Aquinas, thereby incidentally suggesting what has often since been overlooked or even denied, namely, that the great Scholastic was a constitutionalist. In the Summa he clearly states that a mixed government is the best (II, 1, 94, 4 and II, 1, 105, 1); similar statements can be found elsewhere. This view is in accord with the later part of De regimine principum, in which Ptolemy of Lucca elaborated the views of his master, albeit with some liberty. For both Aquinas and Fortescue, it was crucial that a government be subject to legal restraints; government was best when instituted by law. From here the road leads to English seventeenthcentury constitutionalism, but before this development is traced, it is necessary to sketch the constitutionalism embodied in conciliarism.
Conciliarism is, in a sense, the application of medieval constitutionalism to the church itself. The ecclesiastical insistence upon the need for subjecting all authority to legal restraints was claimed to apply to the church. Effective participation of the lower ecclesiastical orders and even of the laity was demanded in the councils which were called upon to formulate the law. In this discussion, the constitutional aspect became increasingly explicit. From William of Ockham to Nicholas of Cusa, the idea of consent as a vital ingredient of law gained ground, and the question of how to organize the expression of such consent was faced. Church councils appeared in analogy to feudal representative assemblies, such as the English Parliament, and their traditional participation in establishing the law was claimed to be applicable to the government of the church.
Even though the conciliar movement failed, there can be little doubt that it spread some of the key ideas of constitutionalism. Thus reinforced, constitutionalism might have triumphed throughout Europe in a broader secular form, had it not been thwarted by the countervailing arguments arising from religious dissension and civil war. For against these divisive tendencies, the ineluctable demand arose for a concentration of power in the hands of a ruler—the famous doctrine of sovereignty as first enunciated by Jean Bodin [seeBodin]. Although this doctrine was perfected and radicalized by Thomas Hobbes, England's insularity made the demand seem less urgent [seeHobbes]. The constitutionalist position had in the meantime been maintained in spite of Tudor “absolutism” and was developed in the sixteenth century by Sir Thomas Smith and Richard Hooker. In his De republica Anglorum (1583), Smith stressed the representative function of the “king in parliament” and delineated in functional terms the emergent notion of a mixed government through a separation of powers. Richard Hooker, in his celebrated Laws of Ecclesiastical Polity (1593–1597), developed a careful elaboration of Aquinas' philosophy of law and the need for general consent, if it is to hold. But the consensus in terms of which both Smith and Hooker wrote and argued gradually declined, and the more poignant issues of modern constitutionalism presented themselves in the course of the revolution and its aftermath which filled much of the seventeenth century.
Probably the most significant and certainly the most lasting legal contribution to the modernization of medieval constitutionalism was made by Edward Coke. With all the skill of a great lawyer and an extraordinary capacity for historical learning, combined with a striking lack of historical sense, he brought medieval precedent to bear upon the issues arising between the king and Parliament or, more realistically, between Puritans and Anglicans, between old wealth and new wealth, between landed property and trading interests. Coke, more than any other man, made Magna Charta the battle cry of those who insisted on man's rights [seeCoke]. The Petition of Rights of 1628, while the first major official declaration of such rights, was still preoccupied with the rights of Englishmen, as prescriptively recognized since Magna Charta. As the revolutionary movement gained momentum after the calling of the Long Parliament in 1640, the historic and legal guarantees were reinforced by the idea that these rights derive from the very essence of man's nature. And while the Petition of Rights had been concerned with property rights, the right to a man's freedom of conscience—the right, that is, of freely confessing one's religious conviction—moved into the foreground. It was at the heart of Oliver Cromwell's outlook and was given eloquent expression in John Milton's Areopagitica (1644). The so-called Agreement of the People proposed by Cromwell's more radical following was the first of a series of attempts toward effectively institutionalizing these rights through the protection of a constitutional system. In a number of epoch-making statements, Cromwell proclaimed the idea that in any constitution there is “somewhat fundamental” which ought not to be subject to change by Parliament. Since Parliament insisted on violating such restraints upon its own exercise of power, Cromwell eventually had to rule arbitrarily, a dictateur malgré lui.
Cromwell's desperate efforts were accompanied by two striking theoretical efforts, each reflecting, in a sense, one horn of his dilemma. Thomas Hobbes, the philosopher, rejecting outright the idea of constitutionalism, pleaded in his Leviathan (1651) for a radical concentration of powers in the hands of the sovereign. Opposing him, James Harrington, the political theorist, in his Oceana (1656) recognized that the hoary doctrine of a mixed constitution implied a separation of the powers of governing and that a “government of laws and not of men” can be achieved only if those governing are “constrained to shake off this or that inclination.” According to him, there are two ever-recurring orders, the “natural aristocracy” and the common people. They must concur in making laws, and together constitute the legislative power. A third power, the magistracy, must execute the laws. The balance between these three bodies is achieved in a constitution, and a commonwealth consists of “the senate proposing, the people resolving, and the magistracy executing.” It is evident that Harrington's generalization was based upon Roman and English experience [seeHarrington].
Soon after Cromwell's death, English sentiment swung back to its traditional constitution and in the course of the Restoration recaptured a measure of that consensus upon which it had rested. When James n threatened to disrupt this consensus, it powerfully reasserted itself in the so-called Glorious Revolution, a smoothly efficient coup d'état that replaced one king with another and reaffirmed the basic rights in a traditional declaration, the bill of rights, in 1689. John Locke was, of course, the theorist of these events, who skillfully summed up and generalized English constitutional thought. His Two Treatises of Government (1690), although they antedate the Glorious Revolution by nearly a decade, have long and rightly been taken to be a justification of this proceeding; for, especially in the second treatise, Locke plainly asserts a people's right to give itself its own constitution [seeLocke]. This right, although first stated by John Milton, was part of a congeries of rights that Locke held to be natural and universal, and epitomized in the formula of the rights of life, liberty, and property. Property was, of course, dear to the rising bourgeoisie; but in Locke's understanding, it still was very broadly construed to mean virtually the entire personal sphere of what is a man's own. It was the firm belief of Locke and succeeding generations that no government which failed to recognize these rights could possibly be considered legitimate, because no one could be held to have surrendered what “he has no power to part with.” Hence, the “freedom” to choose a form of government really excluded the right to choose a nonconstitutional government. Constitutional government was a government in which the crucial power to make laws was divided between king, Lords, and Commons, while the other two powers, the executive and federative, distinguished by Locke from the legislative one, were attributed to the king along with his share of the legislative power. Only in the Act of Settlement in 1701 was the independence of the judiciary recognized, thus laying the basis for Montesquieu's interpretation of the separation of powers in more strictly functional terms.
In a celebrated chapter of The Spirit of Laws (1748) Montesquieu undertook to restate the doctrine of restraints in more nearly systematic and “logical” terms than Locke's tradition-derived view had offered. His formulation of the doctrine, distinguishing the legislative, executive, and judicial functions and attributing each to a separate individual or group, achieved universal acclaim, was institutionalized in the American and French revolutions, and became the basis of nineteenth-century constitution making. These three functions still revolved around the idea of law: the lawmaking function was contrasted with the law-administering (executive) and the law-interpreting (judicial) functions [seeMontesquieu]. Although he called these three functions “powers,” Montesquieu pointed out that the judicial power was “in a sense nil” (dans une façon nul)—that is, no power at all. By this curious phrase, Montesquieu did not, of course, wish to suggest that the judiciary had no function but, rather, that this function depended for its implementation upon sanctions which ultimately required force. (It was precisely this “impotence” of the judicial power which recommended it to the American constitution makers as the “guardian” of the constitution.) The French revolutionary movement, which far transcended the governmental and constitutional sphere, did not stop to consider such niceties. Bent upon achieving the millennium, the successive constitutions were increasingly inspired by Rousseau's radicalism, which would “force men to be free” [seeRousseau]. Between the Declaration of the Rights of Man and Citizen, issued in 1789, and the dictatorship of Napoleon, the French ranged through all the phases of revolutionary violence; and the truly constitutional beginnings, inspired by Montesquieu and Mirabeau, soon yielded to a concentration of powers in support of a program of social transformation and renewal carried out with religious zeal. Even so, the French more fully grasped the key notion of a constituent power than had previously been the case.
Very different and sharply contrasting was the evolution of constitutional thought in America. Starting from English precedent and utilizing the experience derived from colonial charters, the fathers of American constitutionalism were anything but revolutionary in outlook. Washington, Adams, Jefferson, Hamilton, and Madison—to mention only the most illustrious names—were all men who believed in order as well as progress. To them, the position which independence had occasioned required orderly resolution without delay. The two successive constitutions which they helped fashion were both inspired by the ideas of Locke and Montesquieu and of the entire constitutionalist tradition which they represented and embodied. But such inspiration as the American constitutionalists received was tempered by their knowledge that concrete and unprecedented problems were facing them. As a result, they discovered a number of highly significant institutional solutions which past constitutionalism had failed to resolve, notably federalism, judicial review of legislation, and the process of constitutional amendment. This achievement was theoretically reinforced by its skillful defense in The Federalist, in which Hamilton, with the help of Madison and Jay, expounded the doctrine of modern constitutionalism in such elaboration that it could become the basis of nineteenth-century constitution making. Along with the ideological stimulation of the French revolutions —for the great revolution of 1789 was followed by a series of coup d'état-like revolutions in 1833, 1848, 1851, and 1871—the American Revolution seemed to prove that a community's political order may be rationally constituted and that an act of political decision making can organize the government and make it legitimate.
In spite of lingering doubts which the notion of organic growth instilled in the minds of the more conservative elements, European nations undertook the task of constitution making. Belgium, the Netherlands, the Scandinavian kingdoms, the several German kingdoms, Switzerland, Spain, Austria-Hungary, and Italy all fashioned constitutions in the image of those of Britain and the United States. Constitutionalism became the battle cry of all progressive forces; and broadly based popular movements, such as that of German unification, were conceived in terms of making a constitution. The unsuccessful attempt, in 1848, to achieve such a constitutional order on a broadly representative and liberal basis was, to be sure, replaced by an authoritarian solution in the Reich of Bismarck's creation; but even then a constitution crowned the newly won unity.
Indeed, many monarchical rulers sought added legitimacy during the post-1848 period by “giving a constitution” to their people. Such royal constitution making regarded the constitution as a grant from the “sovereign” and hence as an alternative to the democratic legitimacy of a popularly elected constituent assembly. While imperfect as a realization of constitution making, it was nonetheless a step in the direction of establishing restraint on government, through autolimitation. That it constituted progress may readily be surmised, if one considers the possibility of a totalitarian regime today believing itself to be bound by the “constitution” it has established, instead of treating it merely as a façade. Monarchical constitutionalism was, in the sense of autolimitation, government according to law. As the democratic forces gained ascendancy in the course of the nineteenth century, such monarchical constitution making became outmoded. It lacked the legitimacy of a constitution based upon popular approval. In Switzerland and other countries, democratically based procedures, similar to those used in the United States, were generally adopted.
Making constitutions of this democratic kind generally calls for a representative constituent assembly in which the constitution is debated and eventually adopted. The work of such an assembly may be reinforced by submitting the constitution to popular referendum, but such plebiscites are of doubtful value. Rejections have been few, the most striking recent instance being that of the first postwar constitution, submitted to the French electorate in April 1946. In the case of federal systems, there is also likely to be some procedure for securing the assent of a majority of the member units, through either legislative action or referenda. As constitutional experience has accumulated, the role of “experts” has become more and more important. Indeed, preparatory commissions have often been established to draft a constitutional proposal, as was done in the case of Puerto Rico in 1952 and the several German Lander under American occupation in 1946. Experts, whether jurists or political scientists, can be most effectively employed at this formative stage of constitution making. The problem confronting the modern constitution maker is that of fitting past experience with constitutional government to the particular circumstances of time and place. In the emergent nations, this task often involves complicated problems of cultural adaptation. But such adaptations apart, there is the more general problem of determining the components of a model constitution. Within a particular cultural context, such models have been laid out for municipalities and states in the United States. Whether it is possible to formulate a broadly conceived common denominator of universal validity is an open question.
It remains to delineate briefly some aspects of contemporary constitutionalism in Europe, the emergent nations, and the Soviet sphere. Since the second world war, constitutionalism in Europe has served the goal of giving expression to what have been called the “negative revolutions” in France, Italy, and Germany. By these revolutions a defunct and generally rejected totalitarian fascist past has been negated and replaced by a more or less conventional constitutional order. The constitutions of the Fourth Republic, of the Italian Republic, and of the Federal Republic of Germany closely resemble the orders which existed prior to the seizure of power by Mussolini, Hitler, and the Petain Laval group. There were and are significant differences, of course: the Fourth Republic attempted the federalization of France's colonial empire; Italy abolished the monarchy; and the Federal Republic is still only a torso, although it is stabilizing its executive and moving toward a two-party system. Moreover, the Fourth Republic has yielded to the Fifth, which is characterized by a vigorous presidential system with little more than the trappings of parliamentarism remaining. At the same time, its colonial empire has all but vanished. Both changes together constitute a more radical and revolutionary transformation than has occurred in either Italy or Germany. The constitution under which they have occurred did not envisage them, even though it has permitted them. It has proved a feeble restraint upon de Gaulle's determination to govern the country as he sees fit. While the Italian and German constitutions have more nearly achieved the functional purpose of restraint, they, too, have been bent and twisted in various ways. Thus all three constitutions serve to illustrate the weakening of constitutionalism in Europe. This decline is not to be wondered at when one observes the lack of interest in and support for constitutionalism among the citizenry.
Beyond the national borders, constitutionalism has played a certain role in the broad movement for the unification of Europe. Within the European movement, there has been considerable discussion about the most suitable constitution, with federalism and parliamentarism as the key issues. Beyond the initial Council of Europe, the Community of the Six emerged. A draft constitution for this political community was fashioned by a constituent assembly, the Assemblée Ad Hoc, in 1952/1953; quite a few other drafts have been put forward by organizations and individuals. A radical group of European federalists has pleaded for a popularly elected constituent assembly—so far without any significant result. In the meantime the unification has gone forward slowly within the context of cultural and economic life, sanctioned by international treaties and enforced by international institutions. Even a European bill of rights has been agreed upon (within the broader and looser framework of the Council of Europe), and its enforcement machinery has been ratified by a number of states. The role of constitutionalism in all these developments has been limited. To some extent, the lingering conviction of its importance has actually been a hindrance rather than a help to progress, because of its tendency to formalize and institutionalize before the underlying political and social realities justify such actions.
Although constitutionalism is apparently weakening in its heartland, it has been a factor of considerable importance in the emergent nations. To most of them, the fashioning of a constitution for their political order has been significant as a symbol of their newly won freedom. Some of the constitutions are of extraordinary complexity and formal sophistication, notably that of India. Here the task of organizing a whole culture of continental dimensions presented problems never before solved by Western constitutionalism. Working with European and American precedents, India had to add totally new provisions. It is, however, widely felt that the Indian constitution does not really express political reality—a criticism which could, of course, also be applied to most other constitutional systems. Only those parts of politics which can be expressed in legal rules can be reflected in a constitution. Behind the formal organization, an informal one will always operate. It is an essential part of the living constitution, which could not function without it. Insight into this aspect of constitutionalism has often led and continues to lead to a cynicism which looks upon a constitution as merely a façade behind which the true reality of the political order is hidden. Such arguments usually overlook some of the most obvious counter-arguments. Terms of office, modes of election, territorial divisions, and many other provisions in modern constitutions are descriptive of at least part of the political reality. Clearly they do not exhaust that description and may not even mention certain important political institutions—for example, parties. In many of the emergent nations constitutionalism cannot fulfill even this more modest function, and does not restrain the government because it is not the expression of a firm belief in the importance of doing so. More especially, bills of rights remain empty paper declarations because the ruling party or clique readily identifies itself and its power with the public interest. This tendency is enhanced by the practice in totalitarian communist states.
Within the Soviet sphere, and more particularly in the Soviet Union itself, the constitutions are largely façades. The purely formal character of such documents as the successive constitutions of the Soviet Union is revealed by the fact that they do not evolve. They remain what they are, on paper, until one day they are completely altered by the effective rulers of the dominant party. They embody essentially what the regime wishes the world outside and its own people to believe about the political order. They therefore invariably contain extended bills of rights devoid of all enforcement machinery or possibility of implementation. The bill of rights is seen as a declaration of principle, and its function was summed up in 1962 by the Soviet scholar A. I. Lepyoshkin as follows: “… every constitution … is a result of changes in the balance of class forces; it expresses the will and interest of the classes in power, guarantees the principles of such social and state order as is advantageous for and agreeable with the interests of these classes… . The Soviet constitution embodies the principles of socialist democracy, it is a genuinely democratic constitution.” Surprisingly enough, Lepyoshkin did not hesitate to claim that the Soviet constitution “serves as the most important instrument of safeguarding the rights and interests of the Soviet citizens from any encroachment… .” No details were furnished, however, as to how such a constitution actually safeguards these rights; it might conceivably be “the most” important instrument without being an important one, since no other instruments exist.
The broad tradition of constitutionalism has in this century been projected onto the world plane. The Covenant of the League of Nations and the Charter of the United Nations are both embodiments of this international constitutionalism. Quite in keeping with the constitutionalist tradition, a Universal Declaration of Human Rights was adopted after vigorous debate by the United Nations in December 1948; but no enforcement machinery has been set up, except for the weak supervisory machinery provided for dependent territories. Indeed, it is very doubtful that any such enforcement could at present be implemented. International constitutionalism is not a mere façade; but the very fact of the participation of totalitarian regimes makes it inevitable that this constitutionalism partakes to some extent of the character of totalitarian constitutionalism. That such constitutionalism is imperfect, that it does not restrain the governments operating under it to any significant degree, is obvious. That it may nevertheless become the basis for gradual implementation, and thus the starting point for the achievement of genuine constitutionalism, is the hope of many. Such hope may find some confirmation in the past history of constitutionalism.
Carl J. Friedrich
[See alsoConstitutional law; Democracy. Other relevant material may be found inCrisis government; Delegation of powers; Elections; Federalism; Modernization; Parliamentary government; Presidential government; Representation; and in the biographies ofBagehot; Beard; Dicey; Harrington.]
Classical statements on constitutions and constitutionalism can be found in Aristotle's Politics; Cicero's Republic; Thomas Aquinas' Summa theologica 1265–1273; Marsilius of Padua's Defensor pacis 1324; John Fortescue's The Governance of England 1471; Thomas Smith's De republica Anglorum 1583; Richard Hooker's Laws of Ecclesiastical Polity 1593–1597; John Milton's Areopagitica 1644; Thomas Hobbes's Leviathan 1651; John Harrington's Oceana 1656; John Locke's Two Treatises of Government 1690; Montesquieu's The Spirit of Laws 1748; Rousseau's The Social Contract 1762; The Federalist 1787–1788; Edmund Burke's Reflections on the French Revolution 1790; Immanuel Kant's Rechtslehre 1797; Benjamin Constant's Cours de politique constitutionnelle 1818–1820; Georg Hegel's The Philosophy of Right 1821; and John Stuart Mill's Considerations on Representative Government 1861. For contemporary treatments see the works listed below.
Beard, Charles A. 1943 The Republic: Conversations on Fundamentals. New York: Viking.
Bryce, James 1905 Constitutions. New York: OxfordUniv. Press.
Burdeau, Georges 1959 Droit constitutionnel et institutions politiques. 8th ed. Paris: Librairie Générate de Droit et de Jurisprudence.
Dickinson, John 1963 Death of a Republic: Politics and Political Thought at Rome 59–44 B.C. Edited by George Lee Haskins. New York: Macmillan.
Esmein, AdhÉmar (1896) 1927–1928 Éléments de droit constitutionnel français et comparé. 8th ed. 2 vols. Paris: Sirey.
Friedrich, Carl J. (1937) 1950 Constitutional Government and Democracy: Theory and Practice in Europe and America. Rev. ed. Boston: Ginn. → Originally published as Constitutional Government and Politics: Nature and Development.
Friedrich, Carl J. 1957 Constitutional Reason of State: The Survival of the Constitutional Order. Providence, R.I.: Brown Univ. Press.
KÄgi, Werner 1945 Die Verfassung als rechtliche Grundordnung des Staates: Untersuchungen öber die Entwicklungstendenzen im modernen Verfassungsrecht. Zurich: Polygraphischer Verlag.
Kelsen, Hans (1945) 1961 General Theory of Law and State. 20th Century Legal Philosophy Series, Vol. 1. New York: Russell & Russell. → First published in German.
Loewenstein, Karl 1957 Political Power and the Governmental Process. Univ. of Chicago Press.
McBain, Howard Lee 1927 The Living Constitution: A Consideration of the Realities and Legends of Our Fundamental Law. New York: Workers Education Bureau.
McIlwain, Charles H. (1917–1937) 1939 Constitutionalism and the Changing World. Cambridge Univ. Press; New York: Macmillan.
McIlwain, Charles H. (1940) 1947 Constitutionalism, Ancient and Modern. Rev. ed. Ithaca, N.Y.: Cornell Univ. Press. → A paperback edition was published in 1958.
Pocock, John G. A. 1957 The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the 17th Century. Cambridge Univ. Press.
Schindler, Dietrich 1932 Verfassungsrecht und soziale Struktur. Zurich: Schulthess.
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Smend, Rudolf 1928 Verfassung und Verfassungsrecht. Munich: Duncker & Humblot.
Sternberger, Adolf 1956 Lebende Verfassung: Studien öber Koalition und Opposition. Meisenheim (Germany): Hain.
Stubbs, William 1874–1878 The Constitutional History of England, in Its Origins and Development. 3 vols. Oxford: Clarendon.
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Wormuth, Francis D. 1949 The Origins of Modern Constitutionalism. New York: Harper.
"Constitutions and Constitutionalism." International Encyclopedia of the Social Sciences. . Encyclopedia.com. (December 15, 2017). http://www.encyclopedia.com/social-sciences/applied-and-social-sciences-magazines/constitutions-and-constitutionalism
"Constitutions and Constitutionalism." International Encyclopedia of the Social Sciences. . Retrieved December 15, 2017 from Encyclopedia.com: http://www.encyclopedia.com/social-sciences/applied-and-social-sciences-magazines/constitutions-and-constitutionalism
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