Constitutionalism pdf

A short summary of this paper. Download Download PDF. Translate PDF. The basic purpose of the constitution was to make political power the monarchy subject to the law, hence to create a government of laws, not of men1. In order to reach that objective, the constitution was to embody certain material principles, most importantly the separation of powers and checks and balances2. Constitutionalism asks for a good or legitimate constitution3 An old English constitutional lawyer defined constitutionalism in this way: The idea of constitutionalism involves the proposition that the exercise of governmental power shall be bound by rules, rules prescribing the procedure according to which legislative and executive acts are to be performed and delimiting their permissible content.

Constitutionalism becomes a living reality to the extent that these rules curb arbitrariness of discretion and are in fact observed by the wielders of political power, and to the extent that within the forbidden zones upon which authority may not trespass there is significant room for the enjoyment of individual liberty4.

A The new Commonwealth and its Constitutions, pg By constitutionalism is meant conformity with the broad philosophical values within a state6. Constitutionalism has as its heart and focus the task of defining or clarifying the lawful limits of political authority and therefore the obligation that individual members of that society owe both to the community and to one another The idea of constitutionalism is to limit discretionary power, and accordingly limit or eliminate its abuse thereof.

In other words, constitutionalism is the idea that government should be limited in its powers and that its authority depends on its observation of these limitations In particular, these limitations relate to legislative, executive and judicial powers A constitution is the legal and moral framework setting out these powers and their limitations This framework must represent the will of the people, and should therefore have been arrived at through consensus If these are taken to be the basic tenets of constitutionalism, then not all states with constitutions will have embraced constitutionalism; authoritarian governments or military dictatorships do not fulfil the tenets of the supremacy of law or the separation of powers.

The judiciary in Cambodia for instance, is highly subordinate to the executive, blurring boundaries between the two arms of government The 14 Torre n above page 4.

The message sent to society in these cases is clear: it is not the constitution that reigns supreme, but those in power. It is therefore important to distinguish between adopting a constitution and genuine constitutionalism. This distinction becomes particularly important when constitutions are adopted to protect the interests of the ruling regime Constitutionalism, also, may be defined as a legal order in which the laws are stable, can be known to all, and cannot be subverted by the caprice of a ruler or official.

For instance, constitutionalism is the trait of a government in which every person charged with the same crime will be tried in the same fashion and, if convicted, will receive the same sentence regardless of his economic status, political attitudes, or any other ground for personal distinction Constitutionalism however, is primarily based on the notion of people's sovereignty23, 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 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. Only when the supremacy of the rule of law is established, can supremacy of the constitution exist Constitutionalism additionally requires effective laws and their enforcement to provide structure to its framework In summary, constitutionalism suggests the limitation of power, the separation of powers and the doctrine of responsible accountable government.

It is against these conceptual and practical requirements that the constitution of the United Republic of Tanzania must be studied and evaluated31 1. Constitutionalism principles A constitution is an amalgam of constitutional rules and constitutional principles, which goes under the name of constitutionalism. A number of constitutional principles are applied to construct a democratic constitution.

These principles are; popular sovereignty or sovereignty of the people, supremacy of the constitution, separation of powers, independence of judiciary, rule of law, republicanism, checks and balances and limited government. This is the doctrine of popular sovereignty; the people are deemed the fountainhead of political authority The doctrine requires that the ultimate power and final authority must rest to the people or all citizens It should at once be pointed out that the term "people" had a rather restricted sense in the eighteenth 28 See n above.

So we are left with the question of why we should speculate about what a long-dead group of individuals might have intended or wanted done were they apprised of what we now know. The main appeal of originalism is that it appears to tie constitutional interpretation to morally neutral, historical facts about actual beliefs, intentions and decisions of individuals with the legitimate authority to settle fundamental questions concerning the proper shape and limits of government powers.

If we are now to consider, not what they did decide, believe or understand, but what they should decide were they to exist today and know what we now know, then the main appeal of originalism vanishes.

And so the question naturally arises: Why not just forget this theoretically suspect, counterfactual exercise and make the decisions ourselves? But if we are not to be tied in these ways to the so-called dead hand of the past when we engage in constitutional interpretation, how are we to proceed?

The dominant alternative, living constitutionalism, takes its inspiration from the difficulties in originalism sketched in the preceding paragraphs. Whatever else might be said of law, this much is undeniably true: where law exists, our conduct is subject to various forms of restriction.

But in many instances, the relevant restrictions can be removed or changed with minimal effort, as when a problematic common-law precedent is overturned because of changing social circumstances, or a statute is repealed or amended because it no longer serves useful purposes. Not so with constitutions. As noted above, they tend to be heavily entrenched. Constitutions are also meant to be long lasting, so as to serve the values of continuity and stability in the basic framework within which the contentious affairs of law and politics are conducted.

The entrenched nature of constitutions is largely unproblematic when we consider provisions dealing with such matters as the length of term of a senator or which branch of government is responsible for regulating public education. But things get much more complicated and contentious when we turn to the highly abstract, moral provisions of most modern constitutions which have the effect of limiting the powers of government bodies in significant ways.

These special features of constitutions combine to give rise to a fundamental question, one that causes the originalist so much difficulty and to which living constitutionalism purports to provide a better answer: How can one group of people justifiably place entrenched constitutional impediments of a decidedly moral nature in the way of a second group of people who might live in radically different circumstances and perhaps with radically different moral views?

How, in short, can one generation legitimately bind the moral choices of another? A satisfactory answer to this intergenerational problem , living constitutionalists contend, requires that we recognize that constitutions can grow and adapt to ever-changing circumstances without losing their identity or their legitimacy.

The choice to employ abstract moral terms e. The result is that as concrete understandings of the entrenched constitutional-rights provisions evolve, the results warranted by these provisions can legitimately change right along with them. And importantly for the living constitutionalist who does not wish to surrender to the charge that she counsels infidelity to the constitution, these changes can occur without the constitution having changed, as would be true were a process of formal amendment successfully invoked and an abstract, rights provision removed from the constitution.

Despite its undoubted appeal, at least to many living constitutionalism is subject to a number of significant objections. Perhaps the most prominent ones are these: a the theory renders all talk of constitutional interpretation, properly understood as the retrieval of existing meaning, utterly senseless: constitutional interpretation becomes nothing more than unconstrained, constitutional creation or construction masquerading as interpretation; b living constitutionalism robs the constitution of its ability to serve its guidance function—how can individuals be guided by a constitution whose application to their conduct and choices will be determined by the unconstrained views of later so-called interpreters?

Hence the appeal of originalism. Living constitutionalists have a number of responses to these objections. For instance, it might be argued that the theory in no way results in the unconstrained, arbitrary exercise of judicial power its opponents often portray it to be. These prior interpretive decisions serve as constitutional precedents.

And just as the traditional rules of precedent combine respect for the albeit limited wisdom and authority of previous decision makers legislative and judicial with an awareness of the need to allow adaptation in the face of changing views, and new or unforeseen circumstances, so too must constitutional interpreters respect the wisdom and authority of previous interpreters, while allowing the constitution to adapt so as to respond to changing views, and new or unforeseen circumstances.

Living constitutional interpretation, though flexible and adaptive, is no less constrained and disciplined than reasoning under common law. The text plays a key role insofar as any constitutional interpretation, innovative as it may be, must be consistent with that text, until such time as it is formally changed via some acknowledged process of constitutional amendment.

Original understandings simply cannot be dispositive, at least not in perpetuity. In the end, the relative importance of factors like textual meaning, original understandings, later interpretations, and intended purposes, may be, as Joseph Raz suggests , —91 , fundamentally a question of political morality which cannot be answered in the abstract and without considering what it is that justifies, at that particular moment of interpretation, having an entrenched constitution at all, let alone one with such and such particular content.

Sometimes, retrieval of an existing concrete understanding will be required, especially when the constitution is in its infancy and was partly meant to settle a range of concrete moral questions as to the proper limits of government power, at least for a while. But if an interpreter has good reason to believe that this settlement function has been overtaken by other more pressing concerns, perhaps the need to adapt in light of dramatically changed circumstances or much better moral understanding, then a more innovative interpretation may be called for.

And once again, to say that constitutional interpreters must sometimes be innovative is not to say that a constitution can be interpreted to mean whatever the interpreter wants it to mean.

Although constitutionalism has been widely embraced round the world, it is by no means without its detractors. This is especially true when we turn to those constitutions that not only create and regulate the offices of government but also purport to protect abstract rights of political morality. Rather, their main concern is to challenge the role that democratically unaccountable judges typically play in the interpretation and application of such constitutions.

According to hard critics, factors like original understandings and the supposed discipline of common law reasoning seldom, if ever, succeed in fixing meaningful limits upon government power. As a result, reliance on such factors in constitutional adjudication only serves: a to rationalize the purely political decisions of judges pursuing, consciously or not, their own political ideologies. Further consequences include: b a serious affront to democracy.

In most constitutional democracies, the judges who ultimately decide constitutional cases are appointed, not elected. That is, they hold office not because they were selected to do so by the democratic community, but because of a decision on the part of a President, a Prime Minister, a small group of fellow judges, or a judicial committee of Parliament.

Furthermore, these appointed judges tend to come from the privileged classes of society. And possibly c : suppression of those—women, minority racial groups, the poor, and so on—whose interests are not adequately recognized and protected by the dominant, mainstream ideologies to which these elite judges have an affinity. Instead of the curbing of rights-threatening government power for which the idea of constitutionalism is supposed to stand, we have political suppression disguised in a cloak of false constitutional legitimacy.

So hard critics are highly skeptical of constitutional practice and of those theories that applaud constitutionalism as a bulwark against oppression. Instead of being composed of a group of individuals united in their concern for basic rights, western societies are comprised of various groups competing either for domination e.

The law, including constitutional law, is a powerful tool which has, historically, been utilized by dominant groups to secure and maintain their superior status. According to hard critics, the Lochner era is but one small piece of a much larger picture. To sum up, according to hard critics, a constitution is anything but the protection from unwarranted government power that its champions have heralded over the centuries.

What is taken to be the best articulation of the right to equality emerging from a fair and disciplined common-law analysis of that right, is nothing but a rationalization of current social structures, all of which systematically oppress the interests of women, minorities and the poor. As noted above, democratic critics tend not to be as utterly dismissive of constitutions and constitutional rights protections as their more hard-line cousins.

Their principal objections revolve around a practice with which these aspects of modern constitutional regimes are typically associated: judicial or constitutional review. This is the practice whereby courts are sometimes called upon to review a law or some other official act of government e.

In other jurisdictions, the courts either do not have the power to strike down or nullify, or a decision to do so is reversible by some other body of government. But they do have the authority, under section 4 of the Human Rights Act , officially to declare legislation incompatible with The European Convention on Human Rights.

Upon such a declaration, Parliament usually undertakes to amend or repeal the offending legislation. But should it chose not to do so, the legislation remains valid and the courts have no further legal recourse. In Canada, the Supreme Court has the power to strike down a law which it believes unjustifiably infringes a right guaranteed in Sections 2 or 7—15 of The Canadian Charter of Rights and Freedoms , but Section 33 of that same Charter grants Parliament or the legislature of a province the power to override that decision.

Among the most influential of contemporary democratic critics is Jeremy Waldron. Waldron is, to put it mildly, no fan of constitutional review. Nor is he enamored of the grandiose constitutional charters and bills of rights which serve as the most contentious ground in terms of which that power is often exercised by courts.

According to Waldron and his fellow democratic critics, constitutional review under an entrenched charter or bill of rights is fraught with both theoretical and practical difficulty.

It threatens democracy and is both fundamentally unfair and politically dangerous. It also relies on outmoded views about the nature of moral rights—that there are objective, universal rights of political morality to which charters or bills of rights make reference, upon which there is widespread agreement within democratic communities, and to which judges can sensibly and justifiably be asked to appeal in protecting citizens against recalcitrant exercises of government power.

While it is true that constitutional review need not be based on an appeal to abstract rights of political morality—it could, for example, be restricted to questions such as whether Congress or a provincial legislature has followed proper procedure—and true that it need not include the ability actually to strike down legislation, the main focus of democratic critics has been on strong-form constitutional review which exemplifies these two features.

According to democratic critics it is difficult to underestimate the considerable power which constitutional review under an entrenched charter or bill of rights places in the hands of judges who are, in modern constitutional democracies, typically unelected and hence not directly accountable to the democratic community. Despite their lack of accountability, these judges are assigned the task of providing authoritative answers to the deeply controversial questions of political morality that arise under constitutional review and with respect to which there is so much deep disagreement.

Examples can range from the permissibility of abortion or physician-assisted suicide, to the banning of hate speech or the publication of violent and degrading pornography on the intenet. On the basis of these highly controversial answers they end up determining what shall be deemed lawful in the community. This is far too much political power for a small group of unelected people to wield over an entire democratic community, no matter how learned and wise they might happen to be.

But perhaps more importantly, the granting of such power is fundamentally undemocratic in principle: individual citizens have, in effect, been disenfranchised by this arrangement. Each citizen of voting age should have an equal right, in a democratic society, to contribute to the creation of the laws by which she is governed. This she exercises directly via the ballot box and by whatever contributions to public discourse and debate about controversial issues she chooses to make.

She also does so indirectly via the legislative votes of her elected representatives, whose task is to represent her interests and opinions. Yet with strong-form constitutional review all this has been replaced by subjection to the pronouncements of judges. The duly considered views of citizens and their representatives about the laws by which they are to be governed, arrived at it is hoped through fair processes of democratic decision-making, have, in effect, been set aside in favour of the contentious moral pronouncements of a handful of democratically unaccountable, elite judges.

This unhappy situation is further exacerbated by the undeniable fact that judges on appeal courts often disagree vehemently among themselves about rights of political morality and must often, in the end, rely on majority voting to settle their own disagreements. It is not at all uncommon to see split votes when a court deals with a contentious issue of moral principle like affirmative action, abortion or pornography.

And often these split votes follow patterns which are closely correlated with the all too discernible political leanings of judges. And no matter the high esteem in which we tend to hold our judges in modern constitutional democracies, this is not a form of government to be eagerly embraced.

Critical theories, both hard and democratic, represent a serious challenge not only to conventional theories and established practices of constitutional interpretation, but to the very idea of constitutionalism itself—the idea that government can and should be limited in ways that serve to protect us from unwarranted state power. According to originalism, the constitution protects us from judges and other officials by restricting them largely to politically and morally uncontroversial, neutral decisions about historical intentions and understandings.

According to one strand of living constitutionalism, our evolving constitution can do the same while at the same time allowing the constitution to grow and adapt to changing circumstances and it is hoped better moral understandings.

It can effect this balancing act so long as the judges, in whom the power of constitutional interpretation and enforcement has largely been placed, are willing to subject their deliberations to the discipline of common law reasoning.

Critics, however, remain highly skeptical. Ordinary judges are not, critical theorists will insist, Platonic kings and queens, dispensing justice in the light of objective moral truth.

We must always remember, critics insist, that our judges are ordinary, flawed human beings with all the intellectual and moral shortcomings, weaknesses and biases of their fellow human beings. They are also, more often than not, members of a dominant group e.

But if constitutions are all at the mercy of dominant ideologies and the whims and convictions of elite judges, then the kind of protections heralded by the idea of constitutionalism may be a myth, and a harmful one at that. So what is the solution according to critical theorists? The proffered solutions can vary considerably, depending on how hard-line the theorist tends to be. A theocrat might advocate the complete overthrow of constitutional, democratic government, while a liberal feminist critic might be content to work within existing constitutional systems to eradicate the vestiges of patriarchy which have survived recent feminist movements MacKinnon, ; Strossen Waldron and his fellow democratic critics ague that we should abandon the practice of constitutional review of legislation under entrenched charters or bills of rights and leave political decisions where they belong: the people and their elected and accountable representatives Waldron, , ; Marmor, Having pointed this out, the next move is to recommend weaker forms of review which arguably reflect a healthier balance between respect for fundamental rights, on the one hand, and the importance of democratic procedure on the other Gardbaum, Whether the idea of constitutionalism can survive the lessons of such critical scrutiny is a very good question.

A special word of thanks to Scott Shapiro for his very helpful comments on an earlier draft of this revised entry. Constitutionalism: a Minimal and a Rich Sense 2. Sovereign versus Government 3. Entrenchment 4. Writtenness 5. Montesquieu and the Separation of Powers 6. Constitutional Law versus Constitutional Convention 7.

Constitutional Interpretation 8. Originalism 9. Living Constitutionalism Constitutionalism: a Minimal and a Rich Sense In some minimal sense of the term, a constitution consists of a set of norms rules, principles or values creating, structuring, and possibly defining the limits of, government power or authority. Entrenchment According to most theorists, another important feature of constitutionalism is that the norms imposing limits upon government power must be in some way, and to some degree, be entrenched , either legally or by way of constitutional convention.

Writtenness Some scholars believe that constitutional norms do not exist unless they are in some way enshrined in a written document e. 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?

Constitutional Law versus Constitutional Convention The idea of constitutionalism requires limitation on government power and authority established by constitutional law.

Constitutional Interpretation As we have just seen, there is often more to a constitution than constitutional law. Originalism Originalism [ 16 ] comes in a wide variety of forms Bork ; Scalia ; Whittington b; Barnett ; Solum Living Constitutionalism Whatever else might be said of law, this much is undeniably true: where law exists, our conduct is subject to various forms of restriction.

Constitution itself…[I]t is not one that judges or anyone else can simply manipulate to fit their own ideas. The constitution has some limitations of the law making power of parliament. These limitations depend on what the constitutional architects wanted. The Relevancy with separation of powers Constitutionalism is supported by the doctrine of separation of powers, to establish impartiality and to prevent abuse of power. On the other hand, the separation of powers guarantees that the human rights, freedom and liberties of the citizens are best protected through a constitution.

However, the constitution cannot do anything in isolation without the high regard for the rule of law and should be given due recognition. Constitutionalism thus proclaims the desirability of rule of law over the arbitrary judgment. Thus, having the constitutional rights as the back bone undoubtedly protect the rights, freedoms and liberties of the citizens. Thus, the constitution assists the citizens, to determine whether any public official has acted ultra vires beyond the powers or intra vires within the powers.

Violations of fundamental rights are to be dealt with legal action, and remedy for such is also often prescribed in the constitution. The congress did not have the power to add the original jurisdiction of the Supreme Court.

Since, judges could ascertain the constitutionality of legislations, judicial review is the most practical means to uphold the constitutionalism. Here the main criticism is where unelected judges could strike down laws passed by elected representatives of the people. The Supreme Court has jurisdiction in respect of constitutional matters, consistency of bills with the constitution, etc.

Constitutionalism has the duty to protect individual autonomy of citizens, specifically from the hand of the majority. So the constitution should reflect the principles of democracy, fundamental rights and the conscience of every citizen in the country. An extra protection must be given to minorities as they are vulnerable in the hand of the majority. In most Asian countries including Sri Lanka, democracy has converted into a democratic process.

This is evident in the constitution and the referendum held to extend the period of parliament, where the wishes and sentiments of the majority were highlighted. Articles 16, 80 3 and in the constitution violates the supremacy of constitution and accepts the supremacy of the parliament. Since most laws are drafted in the last century; article 16 show that values, freedoms, guaranteed in the new constitution apply in a limited scale.

However these errors have been mitigated in most democratic constitutions like, o Article 2, South African constitution of o Section 6, Thailand Constitution of o Section 1, Nigerian constitution of In federal governments, the constitution is complicated and it must address; division of powers, mechanism for dispute resolution, power sharing agreements, relationship between the centre and peripherals.