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. ; Observation 2 (Use of the word in rhetoric): Often the word "constitutionalism" is used in a rhetorical sense, as a political argument that equates the views of the speaker or writer with a preferred view of the constitution. For instance, University of Maryland Constitutional History Professor Herman Belz's critical assessment of expansive constitutional construction notes that "constitutionalism... ought to be recognized as a distinctive ideology and approach to political life.... Constitutionalism not only establishes the institutional and intellectual framework, but it also supplies much of the rhetorical currency with which political transactions are carried on." Similarly, Georgetown University Law Center Professor
Louis Michael Seidman noted as well the confluence of political rhetoric with arguments supposedly rooted in constitutionalism. In assessing the "meaning that critical scholars attributed to constitutional law in the late twentieth century," Professor Seidman notes a "new order... characterized most prominently by extremely aggressive use of legal argument and rhetoric" and as a result "powerful legal actors are willing to advance arguments previously thought out-of-bounds. They have, in short, used legal reasoning to do exactly what crits claim legal reasoning always does—put the lipstick of disinterested constitutionalism on the pig of raw politics."
United States Descriptive 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". 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. There is a rich tradition of state constitutionalism that offers broader insight into constitutionalism in the United States. 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. 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.
Prescriptive 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. 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. 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. 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.
United Kingdom Descriptive 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,"
Prescriptive 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.
Japan Since 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.
Polish–Lithuanian Commonwealth Descriptive 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."
Prescriptive The
Constitution of May 3, 1791, which historian
Norman Davies calls "the first constitution of its kind in Europe", 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.
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.
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". However, the concrete meaning of the notion remains contested among Muslim as well as Western scholars. Influential thinkers like
Mohammad Hashim Kamali and
Khaled Abou El Fadl, but also younger ones like
Asifa Quraishi and
Nadirsyah Hosen 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. ==See also==