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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". [1]


Political organizations are constitutional to the extent that they "contain institutionalized mechanisms of power control for the protection of the interests and liberties of the citizenry, 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 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 the 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. [3]


Constitutionalism has prescriptive and descriptive uses. Law professor Gerhard 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]


[5] Beginning with English antecedents going back to Magna 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.


In contrast to describing what constitutions are, a prescriptive approach addresses what a constitution should be. As presented by the 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]

Constitutionalism vs. Constitution

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, [9] 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." [10] 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. [10]

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". [11]

Core features

Magna Carta of England (the "Great Charter") created in 1215 is regarded as one of the greatest constitutional documents of all times. Magna Carta (British Library Cotton MS Augustus II.106).jpg
Magna Carta of England (the "Great Charter") created in 1215 is regarded as one of the greatest constitutional documents of all times.

Fundamental law and legitimacy of government

One of the most salient features of constitutionalism is that it describes and prescribes both the source and the limits of government power derived from fundamental law. 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." [13]

Moreover, 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". [14] 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 "sett of fundamental rules by which even the supreme power of the state shall be governed." [15] Ultimately, American constitutionalism came to rest on the collective sovereignty of the people, the source that legitimized American governments.

Civil rights and liberties

Constitutionalism is not simply about the power structure of society. It also asks for a strong protection of the interests of citizens, civil rights as well as civil liberties, especially for the social minorities, and has a close relation with democracy. [16] [17] The United Kingdom has had basic laws limiting governmental power for centuries. Historically, there has been little political support for introducing a comprehensive written or codified constitution in the UK. However, several commentators and reformers have argued for a new British Bill of Rights to provide liberty, democracy and the rule of law with more effective constitutional protection. [18]


Legal scholar Jeremy Waldron contends that constitutionalism is often undemocratic:

Constitutions are not just about restraining 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. [19]

Constitutionalism has also been the subject of criticism by Murray Rothbard, who attacked constitutionalism as being incapable of restraining governments and not protecting 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. [20]

Constitutionalism by nations

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] On the other hand, the prescriptive approach to constitutionalism addresses what a constitution should be. Two observations might be offered about its prescriptive use.

United States


Constitutionalism of the United States 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". [24]

In U.S. 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. [25]

There is a rich tradition of state constitutionalism that offers broader insight into constitutionalism in the United States. [26] [27] 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. [28] [29] [30]

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. [31]


Supreme Court of the United States US Supreme Court - corrected.jpg
Supreme Court of the United States

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. [32]

Two notable Chief Justices of the United States who played an important role in the development of American constitutionalism are John Marshall and Earl Warren. John Marshall, the 4th Chief Justice, upheld the principle of judicial review in the 1803 landmark case Marbury v. Madison, whereby Supreme Court could strike down federal and state laws if they conflicted with the Constitution. [33] [34] By establishing the principle of judicial review, Marshall Court helped implement the ideology of separation of powers and cement the position of the American judiciary as an independent and co-equal branch of government. [34] On the other hand, Earl Warren, the 14th Chief Justice, greatly extended civil rights and civil liberties of all Americans through a series of landmark rulings. [35] [36] The Warren Court started a liberal Constitutional Revolution by bringing "one man, one vote" to the United States, tearing apart racial segregation and state laws banning interracial marriage, extending the coverage of Bill of Rights, providing defendants' rights to an attorney and to silence (Miranda warning), and so on. [35] [36] [37] [38] [39]

United Kingdom


Parliament of the United Kingdom UK Parliament HDR.jpg
Parliament of the United Kingdom

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 Constitutional Monarchy and "the protracted struggle for power between King and Parliament was accompanied by an efflorescence of political ideas in which the concept of countervailing powers was clearly defined," [40] led to a well-developed polity with multiple governmental and private institutions that counter the power of the state. [41]


Constitutionalist was also a label used by some independent candidates in UK general elections in the early 1920s. Most of the candidates were former Liberal Party members, and many of them joined the Conservative Party soon after being elected. The best known Constitutionalist candidate was Winston Churchill in the 1924 UK general election. [42]


On May 3, 1947, the sovereign state of Japan has maintained a unitary parliamentary constitutional monarchy with an Emperor and an elected legislature called the National Diet. [43]

Polish–Lithuanian Commonwealth


From the mid-sixteenth to the late eighteenth century, the Polish–Lithuanian 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." [44]


The Constitution of May 3, 1791, which historian Norman Davies calls "the first constitution of its kind in Europe", [45] was in effect for only a year. It was designed to redress longstanding political defects of the Polish–Lithuanian 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 ]

Dominican Republic

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 Anti-constitutionalist movement was also born. Bosch had to depart to Puerto Rico after he was deposed. His first leader was Colonel Rafael Tomás Fernández Domínguez, and he wanted Bosch to come back to power once again. Colonel Fernández Domínguez was exiled to Puerto Rico where Bosch was. The Constitutionalists had a new leader: Colonel Francisco Alberto Caamaño Deñó.[ citation needed ]

Islamic states

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". [46] However, the concrete meaning of the notion remains contested among Muslim as well as Western scholars. Influential thinkers like Mohammad Hashim Kamali [47] and Khaled Abou El Fadl, [48] but also younger ones like Asifa Quraishi [49] and Nadirsyah Hosen [50] 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. [51]

See also

Related Research Articles

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Separation of powers refers to the division of a state's government into "branches", each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typical division into three branches of government, sometimes called the trias politica model, includes a legislature, an executive, and a judiciary. It can be contrasted with the fusion of powers in parliamentary and semi-presidential systems where there can be overlap in membership and functions between different branches, especially the executive and legislative. In most non-authoritarian jurisdictions, however, the judiciary almost never overlaps with the other branches, whether powers in the jurisdiction are separated or fused.

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  1. Don E. Fehrenbacher, Constitutions and Constitutionalism in the Slaveholding South (University of Georgia Press, 1989). p. 1. ISBN   978-0-8203-1119-7.
  2. Gordon, Scott (1999). Controlling the State: Constitutionalism from Ancient Athens to Today. Harvard University Press. p. 4. ISBN   0-674-16987-5.
  3. Philip P. Wiener, ed., "Dictionary of the History of Ideas: Studies of Selected Pivotal Ideas" Archived 2006-06-23 at the Wayback Machine , (David Fellman, "Constitutionalism"), vol 1, pp. 485, 491–492 (1973–74) ("Whatever particular form of government a constitution delineates, however, it serves as the keystone of the arch of constitutionalism, except in those countries whose written constitutions are mere sham. Constitutionalism as a theory and in practice stands for the principle that there are—in a properly governed state—limitations upon those who exercise the powers of government, and that these limitations are spelled out in a body of higher law which is enforceable in a variety of ways, political and judicial. This is by no means a modern idea, for the concept of a higher law which spells out the basic norms of a political society is as old as Western civilization. That there are standards of rightness which transcend and control public officials, even current popular majorities, represents a critically significant element of man's endless quest for the good life.")
  4. 1 2 Leonard Levy, ed., Encyclopedia of the American Constitution, (Gerhard Casper, "Constitutionalism"), vol 2, p. 473 (1986) ISBN   978-0-02-864880-4.
  5. Bernard Schwartz, The Roots of the Bill of Rights (5 vols., Chelsea House Publisher, 1980) ISBN   978-0877542070.
  6. Stanford Encyclopedia of Philosophy, Wil Waluchow "Constitutionalism" (Intro Jan. 2001 (revised Feb. 20, 2007).
  7. Frank Mann Stewart, A Half Century of Municipal Reform: A History of the National Municipal League Ch.2 (Univ. of California Press, 1950).
  8. "Model State Constitution" (PDF). Archived from the original (PDF) on 26 February 2013. Retrieved 2 May 2018.
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  10. 1 2 Christian G. Fritz, American Sovereigns: The People and America's Constitutional Tradition Before the Civil War (Cambridge University Press, 2008). p. 6 ISBN   978-0-521-88188-3.
  11. Dicey, A. V., Introduction to the Study of the Law of the Constitution Archived 2004-04-08 at the Wayback Machine , 8th ed. (London: Macmillan 1914) (Part III: The Connection between the law of the constitution and the conventions of the constitution; Ch 14.
  12. "English translation of Magna Carta". The British Library. Retrieved 2019-10-21.
  13. Walton H. Hamilton, "Constitutionalism". in Edwin R.A. Seligman, et al. (eds) Encyclopedia of the Social Sciences (New York: Macmillan 1931). p. 255.
  14. Christian G. Fritz, American Sovereigns: The People and America's Constitutional Tradition Before the Civil War (Cambridge University Press, 2008). p. 1. ISBN   978-0-521-88188-3.
  15. Gordon S. Wood, The Creation of the American Republic, 1770–1787 (Norton & Co. 1969). p. 268. ISBN   0-393-31040-X (quoting Demophilus, Genuine Principles Archived 2011-05-11 at the Wayback Machine . p. 4> (Demophilus [George Bryan?]: the Genuine Principles of the Ancient Saxon, Or English [,] Constitution).
  16. Zuckert, Michael (Spring 2004). "Natural Rights and Modern Constitutionalism". Northwestern Journal of International Human Rights. 2.
  17. Pilon, Roger (1993). "On the First Principles of Constitutionalism: Liberty, Then Democracy". American University International Law Review.
  18. Abbott, Lewis F. Defending Liberty: The Case for a New Bill of Rights. ISR/Google books, 2019. ISBN   9780906321737 [ page needed ]
  19. Waldron, Jeremy (2009). "Constitutionalism – A Skeptical View". In Christiano, Thomas; Christman, John (eds.). Contemporary Debates in Political Philosophy. p. 279.
  20. Murray N. Rothbard, For a New Liberty: The Libertarian Manifesto (1978), p. 48.
  21. Fellman, David (1973–1974). "Constitutionalism". In Wiener, Philip P. (ed.). Dictionary of the History of Ideas: Studies of Selected Pivotal Ideas. Vol. 1. p. 485. Archived from the original on 2006-06-23.
  22. Herman Belz, "A Living Constitution or Fundamental Law? American Constitutionalism in Historical Perspective" Archived 2008-12-02 at the Wayback Machine (Rowman & Littlefield Publishers, Inc. 1998) at pp. 148–149 (Belz further argues: "Constitutionalism shapes political life in a variety of ways. Constitutional principles can become matters of commitment and belief possessing intrinsic value that motivate political action.... When citizens and governing officials internalize constitutional values, acting out of fidelity to law rather than expediency, constitutionalism gives direction to political life. Constitutionalism has a configurative effect also in providing the forms, rhetoric, and symbols by which politics is carried on. Political groups and individuals ordinarily try to choose courses of action that are consistent with or required by the Constitution. They do so not because they are in each instance committed to the constitutional principle or value at issue... [but] because they know that the public takes the Constitution seriously, believing that it embodies fundamental values and formal procedures that are the touchstone of political legitimacy. In American politics the Constitution is a justifying concept, and groups that invoke constitutional arguments do so, from their own perspective perhaps and in an immediate sense, instrumentally. Considered from an external and long-range view in relation to the polity as a whole, however, reliance on constitutional principles and rules is normative and noninstrumental. In this way constitutionalism shapes political events") ISBN   978-0-8476-8643-8.
  23. Seidman, Louis Michael (November 2006). "Critical Constitutionalism Now" (PDF). Fordham Law Review. 75: 575, 586. Archived from the original (PDF) on 2008-09-10.
  24. Stephen M. Griffin, "American Constitutionalism: From Theory to Politics" Archived 2011-08-12 at the Wayback Machine (Princeton University Press, 1996). p. 5. ISBN   978-0-691-03404-1.
  25. For the assumptions by historians, political scientists and lawyers that have contributed to a view of constitutionalism essentially connected and confined to the US Constitution, see Christian G. Fritz, "Fallacies of American Constitutionalism Archived 2011-05-11 at the Wayback Machine ," 35 Rutgers Law Journal (2004), 1327–1369. See also Christian G. Fritz, American Sovereigns: The People and America's Constitutional Tradition Before the Civil War (Cambridge University Press, 2008). p. 284 ("Invariably, the state constitutional tradition is deemed less authentic because of its departure from the federal model. This has led to the assumption that one need only study the federal Constitution to discover what American constitutionalism was then and is today.") ISBN   978-0-521-88188-3.
  26. G. Alan Tarr, Understanding State Constitutions (Princeton Univ. Press, 1998)
  27. John J. Dinan, The American State Constitutional Tradition (Univ. Press of Kansas, 2006).
  28. Paul K. Conkin, Self-Evident Truths: Being a Discourse on the Origins & Development of the First Principles of American Government – Popular Sovereignty, Natural Rights, and Balance & Separation of Powers (Indiana Univ. Press, 1974), p. 52 (describing "the almost unanimous acceptance of popular sovereignty at the level of abstract principle")
  29. Edmund S. Morgan, "The Problem of Popular Sovereignty," in Aspects of American Liberty: Philosophical, Historical and Political (The American Philosophical Society, 1977), p. 101 (concluding the American Revolution "confirmed and completed the subordination of government to the will of the people")
  30. Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era (University of North Carolina Press, 1980), p. 137 (asserting that statements of the "principle" of the people's sovereignty "expressed the very heart of the consensus among the victors of 1776").
  31. Christian G. Fritz, American Sovereigns: The People and America's Constitutional Tradition Before the Civil War (Cambridge University Press, 2008). p. 284 (Observing that from the Revolutionary era to the period before the Civil War "Americans continued to wrestle with what it meant that their national as well as state governments rested on the sovereignty of the people") ISBN   978-0-521-88188-3.
  32. James Madison, in his remarks introducing the Bill of Rights, 8 June 1789, Annals 1:424–450. Link Archived 2009-05-04 at the Wayback Machine
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  34. 1 2, Landmark Supreme Court Cases (555) 123-4567. "Landmark Supreme Court Cases | Cases – Marbury v. Madison". Landmark Supreme Court Cases. Retrieved 2019-10-21.
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  47. Mohammad Hashim Kamali, Constitutionalism in Islamic Countries: A Contemporary Perspective of Islamic Law, in: Rainer Grote and Tilmann Röder (eds.), Constitutionalism in Islamic Countries: Between Upheaval and Continuity, Oxford University Press, Oxford/New York 2011.
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  49. Asifa Quraishi, The Separation of Powers in the Tradition of Muslim Governments, in: Rainer Grote and Tilmann Röder (eds.), Constitutionalism in Islamic Countries: Between Upheaval and Continuity, Oxford University Press, Oxford/New York 2011.
  50. Nadirsyah Hosen, "In search of Islamic Constitutionalism", American Journal of Islamic Social Sciences, Volume 21, No. 2, 2004, 23 foll.
  51. See, e.g. the monitoring project "Constitutional Reform in Arab Countries" (archived from the original on October 19, 2011)

Further reading