 | The examples and perspective in this article focus primarily on the United States and may not represent a worldwide view of the subject.(December 2010) |
Constitutional theory is an area of constitutional law that focuses on the underpinnings of constitutional government. It overlaps with legal theory, constitutionalism, philosophy of law and democratic theory. It is not limited by country or jurisdiction.
The Rechtsstaat doctrine (Legal state, State of Right, Constitutional state, constitutional government) was introduced in the latest works of the German philosopher Immanuel Kant (1724–1804) after US and French constitutions were adopted in the late 18th century. Kant's approach is based on the supremacy of a country's written constitution. This supremacy must create guarantees for implementation of his central idea: a permanent peaceful life as a basic condition for the happiness of its people and their prosperity. Kant was basing his doctrine on none other but constitutionalism and constitutional government.
Kant had thus formulated the main problem of constitutionalism, “The constitution of a state is eventually based on the morals of its citizens, which, in its turns, is based on the goodness of this constitution.” Kant's idea is the foundation for the constitutional theory of the twenty-first century. The Legal state concept is based on the ideas, discovered by Immanuel Kant, for example, in his Groundwork of the Metaphysic of Morals: “The task of establishing a universal and permanent peaceful life is not only a part of theory of law within the framework of pure reason, but per se an absolute and ultimate goal. To achieve this goal, a state must become the community of a large number of people, living provided with legislative guarantees of their property rights secured by a common constitution. The supremacy of this constitution… must be derived a priori from the considerations for achievement of the absolute ideal in the most just and fair organization of people’s life under the aegis of public law.”. [1]
The Russian legal system, borne out of transformations in the 19th century under the judicial reform of Alexander II, is based primarily upon the German legal tradition. It was from here that Russia borrowed a doctrine of Rechtsstaat, which literally translates as Legal State. The English most close analogue is «rule of law». [2] Rechtsstaat is a concept in continental European legal thinking, originally borrowed from German legal philosophy, which can be translated as “legal state” or "state of law", or "state of rights", "constitutional state" in which the exercise of governmental power is constrained by the law. The Russian Legal state concept adopts the written constitution as a supreme law of the country (the rule of constitution). [3] The concept of “legal state” (“pravovoe gosudarstvo” in Russian) is a fundamental, but undefined, principle that appears in the very first dispositive provision of Russia's post-Communist constitution: “The Russian Federation – Russia – constitutes a democratic federative legal state with a republican form of governance.” Similarly, the very first dispositive provision of the Constitution of Ukraine declares: “Ukraine is a sovereign and independent, democratic, social, legal state.” The effort to give meaning to definition “Legal State” is anything but theoretical.
Valery Zorkin, President of the Constitutional Court of Russia, wrote in 2003: “Becoming a legal state has long been our ultimate goal, and we have certainly made serious progress in this direction over the past several years. However, no one can say now that we have reached this destination. Such a Legal state simply cannot exist without a lawful and just society. Here, as in no other sphere of our life, the state reflects the level of maturity reached by society.". [4]
The Russian concept of legal state adopted many segments of the constitutional economics. One of the founders of constitutional economics James M. Buchanan, the 1986 recipient of the Nobel Memorial Prize in Economic Sciences argues that in the framework of constitutional government any governmental interventions and regulations have been based on three assumptions.
Constitutional theory in the United States is an academic discipline that focuses on the meaning of the United States Constitution. Its concerns include (but are not limited to) the historical, linguistic, sociological, ethical, and political aspects.
Much of constitutional theory is concerned with theories of judicial review. This is in part because Marbury v. Madison , which established this judicial power in the early 19th century, has given the judiciary near-final authority on constitutional meaning.
Aside from judicial review, constitutional theory in general seeks to ask and answer the following questions:
Although constitutional theory as a discipline has its precursors in The Federalist and Justice Story's Commentaries on the Constitution , modern constitutional theory began with the publication of Alexander Bickel's The Least Dangerous Branch . (The title is an allusion to The Federalist No. 78, in which Alexander Hamilton wrote that the judiciary "will always be the least dangerous to the political rights of the Constitution", because it has neither the sword (like the Executive) nor the purse (like the Legislature). The book's primary (but not sole) contribution was to introduce the idea of the "countermajoritarian difficulty." The idea expressed by the term countermajoritarian difficulty is that there is a tension between democratic government (as he defines it democratic government is majoritarian government) and judicial power. If the judiciary—an unelected branch of government—can overturn popular legislation, then either there is a fundamental contradiction within the democratic system, or there is a tension that must be resolved by curbing judicial power. (One of Bickel's solutions is for the Court to exercise "the passive virtues": that is, to decline to decide more than it has to decide.)
The following is a partial list of important American theorists and thinkers:
Constitutional law is a body of law which defines the role, powers, and structure of different entities within a state, namely, the executive, the parliament or legislature, and the judiciary; as well as the basic rights of citizens and, in federal countries such as the United States and Canada, the relationship between the central government and state, provincial, or territorial governments.
James McGill Buchanan Jr. was an American economist known for his work on public choice theory originally outlined in his most famous work, The Calculus of Consent, co-authored with Gordon Tullock in 1962. He continued to develop the theory, eventually receiving the Nobel Memorial Prize in Economic Sciences in 1986. Buchanan's work initiated research on how politicians' and bureaucrats' self-interest, utility maximization, and other non-wealth-maximizing considerations affect their decision-making. He was a member of the Board of Advisors of The Independent Institute as well as of the Institute of Economic Affairs, a member of the Mont Pelerin Society (MPS) and MPS president from 1984 to 1986, a Distinguished Senior Fellow of the Cato Institute, and professor at George Mason University.
Originalism is a method of constitutional and statutory interpretation. Originalists assert that legal text should be interpreted based on the original understanding at the time of adoption. Originalists object to the idea of the significant legal evolution being driven by judges in a common law framework and instead favor modifications of laws through the Legislature or through Constitutional amendment.
Reva B. Siegel is the Nicholas deB. Katzenbach Professor of Law at Yale Law School. Siegel's writing draws on legal history to explore questions of law and inequality, and to analyze how courts interact with representative government and popular movements in interpreting the Constitution. She is currently writing on the role of social movement conflict in guiding constitutional change, addressing this question in recent articles on reproductive rights, originalism and the Second Amendment, the "de facto ERA," and the enforcement of Brown. Her publications include Processes of Constitutional Decisionmaking ; The Constitution in 2020 ; and Directions in Sexual Harassment Law. Professor Siegel received her B.A., M.Phil, and J.D. from Yale University, clerked for Judge Spottswood William Robinson III on the D.C. Circuit, and began teaching at the University of California at Berkeley. She is a member of the American Academy of Arts and Sciences, and is active in the American Society for Legal History, the Association of American Law Schools, the American Constitution Society, in the national organization and as faculty advisor of Yale's chapter. She was elected to the American Philosophical Society in 2018.
Law reform or legal reform is the process of examining existing laws, and advocating and implementing change in a legal system, usually with the aim of enhancing justice or efficiency.
Rechtsstaat is a doctrine in continental European legal thinking, originating in Dutch and German jurisprudence. It can be translated into English as "rule of law", alternatively "legal state", state of law, "state of justice", or "state based on justice and integrity". It means that everyone is subjected to the law, especially governments.
David E. Bernstein is a law professor at the George Mason University School of Law in Arlington, Virginia, where he has taught since 1995. His primary areas of scholarly research are constitutional history and the admissibility of expert testimony. Bernstein is a contributor to the legal blog The Volokh Conspiracy. Bernstein is a graduate of the Yale Law School, where he was a John M. Olin Fellow in Law, Economics and Public Policy, a Claude Lambe Fellow of the Institute for Humane Studies, and a senior editor of the Yale Law Journal. He received his undergraduate degree from Brandeis University.
Alexander Mordecai Bickel was an American legal scholar and expert on the United States Constitution. One of the most influential constitutional commentators of the twentieth century, his writings emphasize judicial restraint.
Jack M. Balkin is an American legal scholar. He is the Knight Professor of Constitutional Law and the First Amendment at Yale Law School. Balkin is the founder and director of the Yale Information Society Project (ISP), a research center whose mission is "to study the implications of the Internet, telecommunications, and the new information technologies for law and society." He also directs the Knight Law and Media Program and the Abrams Institute for Free Expression at Yale Law School.
Bruce Arnold Ackerman is an American legal scholar who serves as a Sterling Professor at Yale Law School. In 2010, he was named by Foreign Policy magazine to its list of top global thinkers. Ackerman was also among the unranked bottom 40 in the 2020 Prospect list of the top 50 thinkers for the COVID-19 era.
Budget theory is the academic study of political and social motivations behind government and civil society budgeting. Classic theorists in Public Budgeting include Henry Adams, William F. Willoughby, V. O. Key, Jr., and, more recently, Aaron Wildavsky. Notable recent theorists include Frank R. Baumgartner, Bryan D. Jones, Richard Fenno, Allen Schick, Dennis Ippolito, Naomi Caiden, Irene Rubin, James D. Savage, Thomas Greitens, Gary Wamsley, and Usman W. Chohan. Budget theory was a central topic during the Progressive Era and was much discussed in municipal bureaus and other academic and quasi-academic facilities of that time such as the nascent Brookings Institution.
Cornelius Adrian Comstock Vermeule is an American legal scholar who is currently the Ralph S. Tyler Professor of Constitutional Law at Harvard Law School. He is an expert on constitutional and administrative law, and, since 2016, has voiced support for Catholic integralism. He has articulated this into his theory of common-good constitutionalism.
The political philosophy of Immanuel Kant (1724–1804) favoured a classical republican approach. In Perpetual Peace: A Philosophical Sketch (1795), Kant listed several conditions that he thought necessary for ending wars and creating a lasting peace. They included a world of constitutional republics by establishment of political community. His classical republican theory was extended in Doctrine of Right (1797), the first part of Metaphysics of Morals. At the end of the 20th century Kant's political philosophy had been enjoying a remarkable renaissance in English-speaking countries with more major studies in a few years than had appeared in the preceding many decades.
The rule of law is a political ideal that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. It is sometimes stated simply as "no one is above the law". The term rule of law is closely related to constitutionalism as well as Rechtsstaat. It refers to a political situation, not to any specific legal rule. The rule of law is defined in the Encyclopædia Britannica as "the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law, secures a nonarbitrary form of government, and more generally prevents the arbitrary use of power."
This is an index of articles in jurisprudence.
Constitutional economics is a research program in economics and constitutionalism that has been described as explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the choices and activities of economic and political agents". This extends beyond the definition of "the economic analysis of constitutional law" and is distinct from explaining the choices of economic and political agents within those rules, a subject of orthodox economics. Instead, constitutional economics takes into account the impacts of political economic decisions as opposed to limiting its analysis to economic relationships as functions of the dynamics of distribution of marketable goods and services.
The rule according to a higher law is a statement which expresses that no law may be enforced by the government unless it conforms with certain universal principles of fairness, morality, and justice. Thus, the rule according to a higher law may serve as a practical legal criterion to qualify the instances of political or economical decision-making, when a government, even though acting in conformity with clearly defined and properly enacted law, still produces results which many observers find unfair or unjust.
Louis Michael Seidman is the Carmack Waterhouse Professor of Constitutional Law at Georgetown University Law Center in Washington, D.C.. He is a constitutional law scholar and major proponent of the critical legal studies movement. Seidman's 2012 work is On Constitutional Disobedience, where Seidman challenges the viability of political policy arguments made in reference to constitutional obligation.
Constitutionalism is "a compound 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".
An unconstitutional constitutional amendment is a concept in judicial review based on the idea that even a properly passed and properly ratified constitutional amendment, specifically one that is not explicitly prohibited by a constitution's text, can nevertheless be unconstitutional on substantive grounds—such as due to this amendment conflicting with some constitutional or even extra-constitutional norm, value, and/or principle. As Israeli legal academic Yaniv Roznai's 2017 book Unconstitutional Constitutional Amendments: The Limits of Amendment Powers demonstrates, the unconstitutional constitutional amendment doctrine has been adopted by various courts and legal scholars in various countries throughout history. While this doctrine has generally applied specifically to constitutional amendments, there have been moves and proposals to also apply this doctrine to original parts of a constitution.
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