(Online Course) Pub Ad for IAS Mains: Philosophical and Constitutional framework of government - Constitutionalism (Paper -2)

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Topic: Philosophical and Constitutional framework of government: Constitutionalism

As described by political scientist and constitutional scholar David Fellman:

“Constitution is descriptive of a complicated concept, deeply embedded in historical experience, which subjects the officials who exercise governmental power to the limitations of a higher law. Constitutionalism proclaims the desirability of the rule of law as opposed to rule by the arbitrary judgement or mere that of PUblic officials. Throughout the literature dealing with modern Public Law and the foundations of statecraft the central element of the concept of constitutionalism is that in political society government officials are not free to do anything they please in any manner they choose, they are bound to observe both the limitations on power and their procedures which are set out in the supreme, constitutional law of the community. It may therefore be said that the touchstone of constitutionalism is the concept of limited government under a higher law”.


Constitutionalism has prescriptive and descriptive uses. Law professor Gerhard Casper captured this aspect of the term in nothing 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 …. Constitutions.”

(a) Descriptive Use: One example of constitutionalism’s descriptive use in law professor Bernard Schwartz’s 5 volume compilation of source seeking to trace the origins of the Federal Bill of rights. Beginning with English antecedents going back to 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 principle in a constitutional order.

Example of Descriptive Use

Used descriptive, the concept of constitutional can refer chiefly to the historical struggle for constitutional recognition of the people’s right to “consent” and certain other rights, freedoms, and privileges.

(b) 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 “Model State Constitution.”

Example of Prescriptive Use

The prescriptive approach to constitutional addresses what a constitution should be. Two observations might be offered about its prescriptive use.

There is often conclusion in equating the presence of a written constitution with the conclusion that a state of polity is one based upon institutionalism. 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 labeled [sic] ‘constitution’ which includes the provision 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 distinctive ideology and approach to political life ….. Constitutionalism not only establishes the institutional and intellectual framework, but it also supplies much of the theatrical currency with which political transactions are carried on.” Similarly, Georgetown University Law Center Professor Louis Michael Seidman noted as well the confluence of political with arguments supposedly rooted in constitutionalism. In assessing the “meaning that critical scholar attributed to constitutional law in the late twentieth century,” Professor Seidman notes a “new order….. character.zed 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 critics claim legal reasoning always does-put the lipstick of disinterested constitutionalism on the pig of raw politics.”

Constitutionalism vs. Constitutional Questions

The study of constitutions is not necessarily synonyms with the study of constitutionalism. Although frequently conflated, there are crucial difference. 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 Watt, 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 this differs from a focus a focus that involves “questions of constitutionalism.” Constitutional question 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 question, question of constitutionalism could not be answered by reference to given constitutional next or even judicial opinions. Rather, they were open-ended question drawing upon competing views the Americans developed after independence about the sovereignty of the people and the ongoing role of the people to mother the constitutional order that rested on the sovereign authority.”

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 sence of that term.” In contrast, the Conventions of the Constitution consisted “of customs, practices, maxims, of precepts which are not enforced or recognised by the Courts” yet they “make up a body not lf laws, but of constitutional or political ethics.”

Features of Constitutionalism

Constitutionalism: A Minimal and a Rich Sense: In some minimal sense of the term, a “constitution” consists of a set of rules or norms creating, structuring and defining the limits of, government power or authority. Understood in this way, all states have constitutions and all states are constitutional states. Anything recognizable as a state must have some acknowledged means of constituting and specifying the limits (or lack thereof) placed upon the three basic forms of government power: legislative power (making new laws), executive power (implementing laws) and judicial power (adjudicating disputes under laws), Take the extreme case of an absolute monarch, Rex, who combines unlimited power in all three domains.

If it is widely acknowledged that Rex has these powers, as well as the authority to exercise them at his pleasure, then the constitution of this state could be said to contain only one rule, which grants unlimited power to Rex. He is not legally answerable for the wisdom or morality of his decrees, nor is he bound by procedures, or any other kinds of limitations or requirements, in exercising his powers. Whatever he deer s is constitutionally valid.
In discussing the history and nature of constitutionalist comparison is often drawn between Thomas Hobbes and John Locke who are thought to have defended, respectively, the notion of constitutionally unlimited sovereignty (e.g., Rex) versus that of sovereignty limited by the terms of a social contract containing substantive limitations (e.g., Regina). But an equally good focal point is the English legal theorist John Austin who, like Hobbes, thought that the very notion of limited sovereignty is incoherent. For Austin, all law is the command of a sovereign person or body of persons, and so the notion that the sovereign could be limited by law requires a sovereign who is self-binding, who commands him/her/itself. But no one can ‘command’ himself, except in some figurative sense, so the notion of limited sovereignty is, for Austin (and Hobbes), as incoherent as the idea of a square circle. Though this feature of Austin’s theory has some surface plausibility when applied to the British Parliamentary system, where, Parliament is often said to be ‘supreme’ and constitutionally unlimited, it faces obvious difficulty when applied to most other constitutional democracies such as one finds in the United States and Germany, where it is clear that the powers of government are legally limited by a constitution. Austin’s answer was to say that sovereignty may he with the people, or some other person or body whose authority is unlimited. Government bodies - e.g., Parliament or the judiciary - can be limited by constitutional law, but the sovereign - i.e., ‘the people” - remains unlimited. Whether this provides Austin with an adequate means of dealing with constitutional democracies is highly questionable. For Austin’s sovereign is a determinate individual or group of individuals whose commands to others constitute law. But if we identify the commanders with “the people”, then we have the paradoxical result identified by H.L.A. Hart – the commanders are commanding the commanders.

Entrenchment: According to most theorists, a further important feature of constitutionalism is that the rules Imposing limits upon government power must be in some way be entrenched, either by law or by way of ‘constitutional convention.’ In other words, those whose powers are constitutionally limited - i.e., the organs of government- must not be legally entitled to change or expunge those limits at their pleasure. Most written constitutions contain amending formulae which can be triggered by, and require the participation of, the government bodies whose powers they limit.

Written Document: Some scholars believe that constitutional rules do not exist unless they are in some way enshrined In a written document (e.g., Rubenfeld 1998). Others argue that constitutions can be unwritten and cite, as an obvious example of this possibility, the constitution of the United Kingdom, One must be careful here, however. Though the UK has nothing resembling the American Constitution and its Bill of Rights. It nevertheless contains a number of written instruments which arguably form a central element of its constitution. Magna Carta (1215 A.D.) is perhaps the earliest document of the British constitution, while others include The Petition of Right (1628) and the Bill of Rights (1689). Furthermore, constitutional limits are also said to be found in certain principles of the common law, explicitly cited in landmark cases concerning the limits of government power. The fact remains, however, that Britain seems largely to have an unwritten constitution, suggesting strongly that whiteness is not a defining feature of constitutionalism.

Montesquieu and the Separation of Powers: Does the idea of constitutionalism require, -as a matter of conceptual or practical necessity the division of government powers urged by Montesquieu and celebrated by Americans as a bulwark against abuse of state power? In Regina’s case, there is no such separation: legislative, executive arid judicial power all reside in the person.

Constitutional Law versus Constitutional Convention: The idea of constitutionalism is usually thought to require legal limitation on government power and authority. But according to most constitutional scholars, there is more to a constitution than constitutional law. Many people will find this suggestion puzzlinq, believing their constitution to be nothing more (and nothing less) than a formal document, possibly adopted at a special constitutional assembly, which contains the nation’s supreme law. But there is a long-standing tradition of conceiving of constitutions as containing much more than constitutional law. Dicey is famous for proposing that, in addition to constitutional law, the British constitutional system contains a number of ‘constitutional conventions’ which effectively limit government in the absence of legal limitation. These are, - in effect, - social rules arising within the practices of the political community and which important, but non-legal, limits ‘on government powers.

Constitutional Interpretation and Constitutional Theories: As we have just ‘seen, there is often more to a Constitution than constitutional law. As we have also seen, constitutional norms need not always be written rules. Despite these important observations two facts must be acknowledged: (1) the vast majority of constitutional cases hinge on, questions ·of constitutional law; and (2) modern constitutions are predominantly written documents. Consequently, constitutional cases often raise theoretical issues concerning the proper approach to the Interpretation of written instruments coloured, of course, by the special role of constitutions In’ defining and limiting the authority and powers’ of government.

Constitution and Constitutionalism

A country may have a Constitution, but necessarily ‘constitutionalism.’ For Example, a country where dictator’s word is law can be said to have a constitution, but not constitutionalism. A Constitution does not merely confer powers to various organs of the government, but also seeks to restrain these powers. Constitutionalism envisages checks and balances and puts powers of legislature and executive under some restraint, otherwise freedom of people would be jeopardized, leading an authoritarian, oppressive government. Therefore, to preserve basic freedom of individual and to maintain the dignity and personality, a Constitution should be permeated with Constitutionalism; that is, it should have in-build restrictions on powers.

Democracy and Constitutionalism

Authoritarian governments are by their very nature unconstitutional. Such governments think of themselves as above the law, and therefore see no necessity for the separation of powers or representative governance. Constitutionalism however, is primarily based on the notion of people’s sovereignty, which is to be exercised-in a limited manner-by a representative government. The only consensual and representative form of governance in existence today, is democratic government consisting of multiple political parties, fair elections, freedom of opinion and expression, and the rule of law. In this way, there is a very important and basic link between democracy and constitutionalism.

Just as mere constitutions do not make countries constitutional, political parties and elections do not make governments democratic. Several Asian countries have been termed ‘illiberal democratic’ for while they nave periodic elections, they are not governed by the rule of law and do not protect the rights and liberties of their Citizens. India and Sri Lanka are both examples of such countries, where the politicization of public institutions is common, where politicians and government officials are deemed above the taw and where there is significant violence against minorities and marginalized groups. Genuine democracies rest on the sovereignty of the people, not the rulers. Elected representatives are to exercise authority on behalf of the people, based on the will of the people. Without genuine democracy, there can be no constitutionalism.


Constitutionalism has been the subject of criticism by numerous anarchist thinkers. For example, Murray Rothbard, who coined the term “anarcho-capitalism,” attacked constitutionalism, arguing that constitutions are incapable of restraining governments and do not protect the rights of citizens from their governments. Rothbard wrote that is true that, in the United States, at least, we have a constitution that imposes strict limits on some power of government. But , as we have discovered in the part century, no constitution can interpret or enforce itself; it must be interpreted by men. And if the ultimate power to interpret a constitution is give n to the government’s own Supreme Court, then the inevitable tendency is for the Court to continue to place its imprimatur on ever-broader power 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 division are part of the same government and are governed by the same set of rulers.

Constitutionalism in India

India is a democratic country with a written Constitution. Rule of Law in the basic for governance of the country and all the administrative structures are expected to follow it in both letters and spirit. It is expected that Constitutionalism is a natural corollary to governance in India. But at the same time, many positive developments also took place which tried to ensure the practice of constitutionalism. They include, spectacular progress make at the political level with regular conduct of elections. India is the largest democracy in the world where in political freedom has become a fundamental right for its citizens. Passage of revolutionary Acts like Right of information Act, Mahatma Gandhi NREGA, and the proposed Food Security Act has resulted in ushering of true democracy. The otherwise lethargic bureaucracy was made to toil hard as people have become more assertive about their rights and are questioning the executive about their privileges.

India has still a long way to go before it can claim that constitutionalism is a reality with the country. Following measures should be implemented effectively to ensure its successful implementation.

a. Economic backwardness has resulted in anti social movements in the form of rise of naxalsim and unless it is curbed it can turn into a serious problem for Indian administration.
b. Judicial reforms should be implemented with immediate effect as more than 30 million cases are pending in various courts all over the county.
c. Aspirations of people at the local level are increasing at an exponential manner and if they are not fulfilled, the mounting frustrations are extremely dangerous for functioning of democratic systems.
d. Criminalization of politics is a bane for democracy and unless urgent steps are take to content if, we might see the eventual failings of it.
e. Political and administrative corruption is a sad reality of Indian administration and this cancer should be removed from the body politic of Indian democracy on an emergency basis.

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