Constitutional law

From Wikipedia, the free encyclopedia

The principles from the FrenchDeclaration of the Rights of Man and of the Citizen still have constitutional value

Constitutional law is the body of law which defines the relationship of different entities within
a state, namely, the executive, thelegislature, and the judiciary.
Not all nation states have codifiedconstitutions, though all such states have a jus commune, or law
of the land, that may consist of a variety of imperative and consensual rules. These may
include customary law,conventions, statutory law, judge-made law, or international rules and norms.
Constitutional law deals with the fundamental principles by which the government exercises its
authority. In some instances, these principles grant specific powers to the government, such as the
power to tax and spend for the welfare of the population. Other times, constitutional principles act to
place limits on what the government can do, such as prohibiting the arrest of an individual without
sufficient cause. In most nations, including the United States, constitutional law is based on the text
of a document ratified at the time the nation came into being.
Contents
[hide]

1State and legal structure

2Human rights

3Legislative procedure

4Study of constitutional law

5The rule of law

6The separation of powers

7See also

8References

State and legal structure[edit]

Constitutional laws may often be considered second order rule making or rules about making rules
to exercise power. It governs the relationships between the judiciary, the legislature and the
executive with the bodies under its authority. One of the key tasks of constitutions within this context
is to indicate hierarchies and relationships of power. For example, in a unitary state, the constitution
will vest ultimate authority in one central administration and legislature, and judiciary, though there is
often a delegation of power or authority to local or municipal authorities. When a constitution
establishes afederal state, it will identify the several levels of government coexisting with exclusive or
shared areas of jurisdiction over lawmaking, application and enforcement.

Human rights[edit]
Main articles: Human rights and Human rights law
Human rights or civil liberties form a crucial part of a country's constitution and govern the rights of
the individual against the state. Most jurisdictions, like the United States and France, have a codified
constitution, with a bill of rights. A recent example is the Charter of Fundamental Rights of the
European Union which was intended to be included in the Treaty establishing a Constitution for
Europe, that failed to be ratified. Perhaps the most important example is the Universal Declaration of
Human Rights under the UN Charter. These are intended to ensure basic political, social and
economic standards that a nation state, or intergovernmental body is obliged to provide to its citizens
but many do include its governments.
Some countries like the United Kingdom have no entrenched document setting out fundamental
rights; in those jurisdictions the constitution is composed of statute, case law and convention. A case
named Entick v. Carrington[1] is a constitutional principle deriving from the common law. John Entick's
house was searched and ransacked by Sherriff Carrington. Carrington argued that a warrant from a
Government minister, the Earl of Halifax was valid authority, even though there was no statutory
provision or court order for it. The court, led by Lord Camden stated that,
"The great end, for which men entered into society, was to secure their property. That right is
preserved sacred and incommunicable in all instances, where it has not been taken away or
abridged by some public law for the good of the whole. By the laws of England, every invasion of
private property, be it ever so minute, is a trespass... If no excuse can be found or produced, the
silence of the books is an authority against the defendant, and the plaintiff must have judgment." [2]
Inspired by John Locke,[3] the fundamental constitutional principle is that the individual can do
anything but that which is forbidden by law, while the state may do nothing but that which is
authorized by law.
The commonwealth and the civil law jurisdictions do not share the same constitutional law
underpinnings.

Legislative procedure[edit]
Main article: Parliamentary procedure
Another main function of constitutions may be to describe the procedure by which parliaments may
legislate. For instance, special majorities may be required to alter the constitution. In bicameral
legislatures, there may be a process laid out for second or third readings of bills before a new law

can enter into force. Alternatively, there may further be requirements for maximum terms that a
government can keep power before holding anelection.

Study of constitutional law[edit]

The examples and perspective in this articlemay not represent a worldwide view of the
subject. Please improve this article and discuss the issue on the talk page. (December 2010)
Constitutional law is a major focus of legal studies and research. For example, most law students in
the United States are required to take a class in Constitutional Law during their first year, and
several law journals are devoted to the discussion of constitutional issues.

The rule of law[edit]

The doctrine of the rule of law dictates that government must be conducted according to law. This
was first established by British legal theorist AV Dicey.
Dicey identified three essential elements of the British Constitution which were indicative of the rule
of law:
1. Absolute supremacy of regular law as opposed to the influence ofarbitrary power;[4]
2. Equality before the law;
3. The Constitution is a result of the ordinary law of the land.
Diceys rule of law formula consists of three classic tenets. The first is that the regular law is
supreme over arbitrary and discretionary powers. [N]o man is punishable ... except for a distinct
breach of the law established in the ordinary legal manner before the ordinary courts of the land. [5]

The separation of powers[edit]

The Separation of Powers is often regarded as a second limb functioning alongside the Rule of Law
to curb the powers of the Government. In most modern nation states, power is divided and vested
into three branches of government: The Executive, the Legislature and the Judiciary. The first and
the second are harmonized in traditional Westminster forms of government.[6]

Constitutionalism
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Constitutionalism 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]
Political organizations are constitutional to the extent that they "contain institutionalizedmechanisms
of power control for the protection of the interests and liberties of thecitizenry, including those that
may be in the minority".[2] As described by political scientist and constitutional scholar David Fellman:
Constitutionalism is descriptive of a complicated concept, deeply embedded 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 societygovernment 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 lawof the community. It may therefore be said that the touchstone
of constitutionalism is the concept of limited government under a higher law.[3]
Contents
[hide]

1Usage
o

1.1Descriptive

1.2Prescriptive

1.3Authority of government

1.4Fundamental law empowering and limiting government

2Constitutionalism and constitutional questions

3Constitutional economics

4Examples
4.1Descriptive

4.1.1United States

4.1.2United Kingdom

4.1.3Japan

4.1.4PolishLithuanian Commonwealth
4.2Prescriptive

4.2.1United States

4.2.2PolishLithuanian Commonwealth

4.2.3United Kingdom

4.2.4Dominican Republic

5Criticisms

6Islamic constitutionalism

7See also

8References

9Further reading

10External links

Usage[edit]
Constitutionalism has prescriptive and descriptive uses. Law professorGerhard Casper captured this
aspect of the term in noting, "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".[4]

Descriptive[edit]
One example of constitutionalism's descriptive use is law professor Bernard Schwartz's five volume
compilation of sources seeking to trace the origins of the U.S. Bill of Rights. [5] Beginning with English
antecedents going back toMagna Carta (1215), Schwartz explores the presence and development of
ideas of individual freedoms and privileges through colonial charters and legal understandings. Then
in carrying the story forward, he 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 rights and principles in a
constitutional order.

Prescriptive[edit]
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."[6] One example of this prescriptive approach was the project
of the National Municipal League[7] to develop a model state constitution.[8]

Authority of government[edit]
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
constitution was conceived to be "a" set 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 legitimized American governments.

Fundamental law empowering and limiting government[edit]

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]

Constitutionalism and constitutional questions[edit]

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,
These 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" but
"make up a body not of laws, but of constitutional or political ethics".[14]

Constitutional economics[edit]
Constitutionalism has been the subject of criticism for its previous ignorance of economic issues but
this criticism is now taken into account by the development of constitutional economics.
Constitutional economics is a field of economics and constitutionalism and describes and analyzes
the specific interrelationships between constitutional issues and the structure and functioning of
the economy. The term constitutional economics was used by American economist James M.
Buchanan as a name for a new academic sub-discipline. Buchanan received in 1986 the Nobel Prize
in Economic Sciences for his "development of the contractual and constitutional bases for the theory
of economic and political decision-making".[15] Buchanan rejects "any organic conception of the state
as superior in wisdom, to the individuals who are its members". This philosophical position is, in fact,
the very subject matter of constitutional economics.
A constitutional economics approach allows for a combined economic and constitutional analysis,
helping to avoid a unidimensional understanding. Buchanan believes that a constitution, intended for

use by at least several generations of citizens, must be able to adjust itself for pragmatic economic
decisions and to balance interests of the state and society against those of individuals and their
constitutional rights to personal freedom and privatehappiness. Constitutional economics draws
substantial inspiration from the reformist attitude which is characteristic of Adam Smith's vision, and
that Buchanans concept can be considered the modern-day counterpart to what Smith called "the
science of legislation".
Concurrently with the rise of academic research in the field of constitutional economics in the U.S. in
the 1980s, the Supreme Court of India for almost a decade had been encouraging public interest
litigation on behalf of the poor and oppressed by using a very broad interpretation of several articles
of theIndian Constitution.[16] This is a vivid example of a de facto practical application of the
methodology of constitutional economics.
The Russian school of constitutional economics was created in the early 21st century with the idea
that constitutional economics allows for a combined economic and constitutional analysis in the
legislative (especially budgetary) process, thus helping to overcome arbitrariness in the economic
and financial decision-making: for instance, when military expenses (and the like) dwarf the budget
spending on education and culture. In the English language, the word "constitution" possesses a
whole number of meanings, encompassing not only national constitutions as such, but also charters
of public organizations, unwritten rules of various clubs, informal groups, etc. The Russian model of
constitutional economics, originally intended for transitional and developing countries, focuses
entirely on the concept of the state constitution. In 2006, the Russian Academy of Sciences officially
recognized constitutional economics as a separate academic sub-discipline. [17] Since many countries
with transitional political and economic systems continue to treat their constitutions as abstract legal
documents disengaged from the economic policy of the state, the practice of constitutional
economics becomes there a decisive prerequisite for democratic development of the state and
society.

Examples[edit]
Descriptive[edit]
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.[4]

United States[edit]
American constitutionalism has been defined as a complex of ideas, attitudes and patterns
elaborating the principle that the authority of government derives from the people, and is limited by a
body of fundamental law. These ideas, attitudes and patterns, according to one analyst, derive from
"a dynamic political and historical process rather than from a static body of thought laid down in the
eighteenth century".[18]
In US 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.[19]
There is a rich tradition of state constitutionalism that offers broader insight into constitutionalism in
the United States.[20] While state constitutions and the federal constitution operate differently as a
function of federalism from 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 American constitutional tradition.[21]
Both experience with state constitutions before and after the federal constitution as well as the
emergence and operation of the latter reflect an ongoing struggle over the idea that all governments
in America rested on the sovereignty of the people for their legitimacy.[22]
United Kingdom[edit]
The United Kingdom is perhaps the best instance of constitutionalism in a country that has
an uncodified constitution. A variety of developments in 17th century England, including "the
protracted struggle for power between Kingand Parliament was accompanied by an efflorescence of
political ideas in which the concept of countervailing powers was clearly defined," [23] led to a welldeveloped polity with multiple governmental and private institutions that counter the power of the
state.[24]
Japan[edit]
The recent move of the Japanese government for revisions of its 1947 constitution under Abe
Shinzo's administration is criticized as anticonstitutionalist in the sense that the new constitution
would impose obligations on citizens rather than protect their human rights. [citation needed]

PolishLithuanian Commonwealth[edit]
From the mid-sixteenth to the late eighteenth century, the PolishLithuanian Commonwealth utilized
the liberum veto, a form of unanimity voting rule, in its parliamentary deliberations. The "principle
of liberum veto played an important role in [the] emergence of the unique Polish form of
constitutionalism." This constraint on the powers of the monarch were significant in making the "[r]ule
of law, religious tolerance and limited constitutional government... the norm in Poland in times when
the rest of Europe was being devastated by religious hatred and despotism." [25]

Prescriptive[edit]
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 written 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 'constitution' which includes the provisions customarily found
in such a document, it does not follow that it is committed to constitutionalism...." [26]

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."[27] Similarly, Georgetown University Law Center
Professor Louis Michael Seidmannoted 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."[28]

United States[edit]
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.[29]
PolishLithuanian Commonwealth[edit]
The Constitution of May 3, 1791, which historian Norman Davies calls "the first constitution of its kind
in Europe",[30] was in effect for only a year. It was designed to redress longstanding political defects of
the PolishLithuanian 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. [citation needed]
United Kingdom[edit]
See also: Constitution of the United Kingdom
Constitutionalist was also a label used by some independent candidates inUK general elections in
the early 1920s. Most of the candidates were formerLiberal Party members, and many of them
joined the Conservative Partysoon after being elected. The best known Constitutionalist candidate
wasWinston Churchill in the 1924 UK general election.[31]
Dominican Republic[edit]
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. Bosch had to depart to Puerto Rico after he was
deposed. His first leader was Colonel Rafael Toms Fernndez Domnguez, and he wanted Bosch
to come back to power once again. Colonel Fernndez Domnguez was exiled to Puerto Rico where
Bosch was. The Constitutionalists had a new leader: Colonel Francisco Alberto Caamao De.[citation
needed]

Criticisms[edit]

Legal scholar Jeremy Waldron contends that constitutionalism is often undemocratic:

Constitutions are not just about retraining and limiting power; they are about the empowerment of
ordinary people in a democracy and allowing them to control the sources of law and harness the
apparatus of government to their aspirations. That is the democratic view of constitutions, but it is not
the constitutionalist view.... Of course, it is always possible to present an alternative to
constitutionalism as an alternative form of constitutionalism: scholars talk of "popular
constitutionalism" or "democratic constitutionalism."... But I think it is worth setting out a stark version
of the antipathy between constitutionalism and democratic or popular self-government, if only
because that will help us to measure more clearly the extent to which a new and mature theory of
constitutional law takes proper account of the constitutional burden of ensuring that the people are
not disenfranchised by the very document that is supposed to give them their power.[32]
Constitutionalism has also been the subject of criticism by Murray Rothbard, who attacked
constitutionalism as incapable of restraining governments and does not protect the rights of citizens
from their governments:
[i]t is true that, in the United States, at least, we have a constitution that imposes strict limits on some
powers of government. But, as we have discovered in the past century, no constitution can interpret
or enforce itself; it must be interpreted by men. And if the ultimate power to interpret a constitution is
given to the government's own Supreme Court, then the inevitable tendency is for the Court to
continue to place its imprimatur on ever-broader powers for its own government. Furthermore, the
highly touted "checks and balances" and "separation of powers" in the American government are
flimsy indeed, since in the final analysis all of these divisions are part of the same government and
are governed by the same set of rulers.[33]

Islamic constitutionalism[edit]
The scope and limits of constitutionalism in Muslim countries have attracted growing interest in
recent years. Authors such as Ann E. Mayer define Islamic constitutionalism as "constitutionalism
that is in some form based on Islamic principles, as opposed to constitutionalism that has developed
in countries that happen to be Muslim but that has not been informed by distinctively Islamic
principles".[34] However, the concrete meaning of the notion remains contested among Muslim as well
as Western scholars. Influential thinkers like Mohammad Hashim Kamali[35] and Khaled Abou El Fadl,
[36]

but also younger ones like Asifa Quraishi[37] and Nadirsyah Hosen[38] combine classic Islamic law

with modern constitutionalism. The constitutional changes initiated by the Arab spring movement
have already brought into reality many new hybrid models of Islamic constitutionalism. [39]

See also[edit]