'Constitutionalism is More Important Than the Constitution'

2011

This paper is the introduction to the special issue of the Journal of Constitutional History / Giornale di storia costituzionale, 32, II, 2016, focused on different aspects of the constitutionalism considered by a global point of view. It is a reflection on the different meanings of constitution and constitutionalism now and on the future of the "classic" constitutonalism.

Ours has been called 'the age of constitutions' (Fleiner). Nearly 60 percent of UN members have made 'major' amendments to their constitutions in the decade 1989-1999, and 70 percent of these adopted entirely new constitutions (Klug, 2000, 12). Renewed faith has been placed in constitutions as essential to peaceful and stable national political and economic development. Equally, if less obviously, there is also a renewed faith in the political/legal constitution-making process itself (that is, not the constitution as a document or institution) as a means of national reconciliation and of providing a focusing, structured arena for political settlement and negotiation in transitional and post-conflict societies. It is possible to identify waves of constitution-making, of which we are witnessing the latest. After 1848, Europe witnessed a deal of constitution making as newly-defined countries codified their rules of government. After the First and Second World Wars, further waves followed, as the boundaries of Europe were redrawn. Decolonisation in Africa, Asia and Latin America led to new written constitutions, many modeled on the Westminster system. Some accounts describe the decolonisation period as both novel and banal, illustrated by intense constitution-making for new political and geographical national entities, and yet marked by something more banal, a matter continuity rather than change, especially in the institutions emerging post-decolonisation, which often bore stark resemblance to those of the mother country (Go). This institutional modeling or isomorphism was the result of a combination or direct colonial imposition of institutions (such as constitutions), and of mother-country imitation by the colonised (typically, members of the local elite). 1 Then after the collapse of the Soviet Bloc, eastern Europe became in the 1990s 'a major laboratory of constitutional works' (Ludwikowski). The phenomenon can be identified in the 1990s in some parts of South East Asia, and in UN-designed constitutions for Namibia, Bosnia-Herzegovina, East Timor and others. When Vanuatu applied for membership of the United Nations, it was required to submit a written constitution in order to obtain admission (Fleiner). And today, federal constitutional structures are central to plans for peaceful, modern nations in Afghanistan and Iraq. EU members are in the process of deciding on whether (and how) to formalise Europe's future in constitutional form. A feature common to these waves of constitution-making is the combination of local and external influence on the process and the resulting document, and the degree to which foreign constitutional and institutional models are used in local contexts. Another feature common to them is faith in the transplanted of constitutional models to deliver political stability and the platform for economic growth. The background to this renewed faith is the connection between political reform and governance issues, and economic development, in particular the attraction of international investment, as reflected in the 'Monterrey Consensus' of the March 2002 UN Conference on Financing for Development, New York. Drawing on theory of institutional role and change, studies positing a relationship between weak institution and poor growth (eg North), many macro-studies of development explicitly tie institution building to development, both economic and market development (World Bank 2002) and wider human development (UNDP 2002). This reflects the dogma that good governance is 'perhaps the single most important factor in promoting development' (UNDP, ch 2). Constitutions themselves can be considered institutions. Effective constitutions are seen as an antidote to instability, as they afford (from the perspective of the investor) transparency and reliability and a framework for orderly predictable processes of decision-making. A function of the wider political dynamic of this 'age' is a changing conception of what constitutionalism entails, and what 'counts' as a constitution. This renewed interest in the possibilities of constitutions has reached the point where some observers argue that the idea of a constitution now has a substantive content: only some constitutions 'count', depending on how democratic their content and the process by which they came 1 Dr. Go has challenged the prevailing view that newly independent countries merely imitated the constitutional form of the mother country; instead, the mimicry was neither universal nor whole scale.

Law in the Age of Pluralism, 2007

Liberalism may not have won the global victory that some commentators predicted, but constitutionalism certainly has. The vast majority of countries in the world, democratic and non-democratic alike, have written constitutions that are designed to entrench the basic legal structure of their regime. Most constitutions also enumerate a list of rights and general principles that purport to have a higher legal standing than ordinary law, and most countries entrust the interpretation of their constitution to a court of law. I will not try to speculate here about why this is the case. My aim is to scrutinize the idea of constitutionalism from a moral point of view, arguing that constitutionalism does not quite deserve the celebration that it has occasioned. The argument proceeds as follows: after a preliminary outline of the main features of constitutionalism, I will present what I take to be the main moral concerns about its legitimacy. I will then consider a number of arguments that have been offered to answer those concerns, arguing that the arguments fail to meet the challenge. I will conclude with a few words about the moral implications of this failure and some suggestions for reform.

The debate on political constitutionalism has completely neglected the dimension of constitution making. This is probably due to the reason that constitution making usually brings with it undesirable outcomes like entrenchment of rights or structure. These outcomes do not respect reasonable disagreement among citizens because they violate the only fair system for settling this disagreement: majority rule and equal vote. This article aims to show that political constitutionalists may regret the complete absence of any claim about constitution making. Either they are overlooking certain problems inherent to the electoral process that is supposed to tackle with disagreement or, even worse, they are downplaying the entrenching effect of ordinary political processes by ignoring the redemptive properties of constituent power. In both cases, their claims are actually undermining the political dimension of constitutionalism.

Political Studies, 1996

414 Introduction embody. However, a number of contributors are equally concerned to demonstrate how constitutions in their turn employ the resources of politics both to establish and sustain themselves. Democratic institutions that balance a variety of social forces and ...

SSRN Electronic Journal

It is well known that constitutions, which are valorized as national statements of unity, values, and purpose, are not conceived of nor written by domestic actors alone. Constitution-making relies heavily on international legal traditions and archetypical imageries of the source and purpose of law (Arjomand

The Hidden Power of Systems Thinking - Governance in a Climate Emergency, 2020

Tale of two referenda -Ireland on abortion and UK of the EU Personal ethics, national culture and constitution Beware people in power Constitutions matter What do constitutions do? How to make a constitution Time to change the rules

2009

The paper discusses four conditions required for the maintenance of constitutional government, identifying them as the dominance of a particular conception of constitutional government, its official recognition and implementation by a written or traditional constitution, the existence of an institutional matrix that translates the constitution into the experience of the people and the achievement of economic conditions that sustain the institutional foundations of constitutionalism. The author attributes the decline in the classical understanding of constitutionalism to both public choice dynamics as well as to intellectual reconstructions of key concepts such as law, justice, and freedom that were designed to facilitate the welfare state without formally forsaking the rule of law ideal. The paper proceeds to focus on the social disruption of the late 20th century that weakened the institutional foundations of constitutionalism and the legal and economic causes of this development. ...

The use of constitutional language and concepts has enjoyed a widespread expansion in recent decades. From the relatively narrow confinement within national constitutional law discourses it has, in the wake of globalisation, crept into almost all legal sub-disciplines as well as into political science, international relations and sociology. Does this development mark the triumph of constitutionalism or is it rather an indication of its demise taking the form of an increasingly desperate attempt to maintain the constitutional outlook in the face of structural developments which threaten to undermine state-based constitutional orders? This crucial question, which goes to the core of the future of democracy and the rule of law, is the topic of this brilliantly edited volume.

2016

In a democratic society, the judicial legitimacy of the state and its power, of its institutions, but also the social and political grounds are generated and determined by the Constitution, defined as expressively as possible as being: "The fundamental political and judicial settlement of a people" (I. Deleanu) The supremacy of the Constitution has as main effect the conformity of the entire system of law with the constitutional norms. Guaranteeing the compliance with this principle, essential for the state of law, is first of all an attribution of the Constitutional Court, but also an obligation of the legislative power to receive, through the adopted normative acts, in content and in form, the constitutional norms. Altering the fundamental law of a state represents a political and judicial act extremely complex with major meanings and implications for the socio-political and national systems, but also for each individual. This is why such measure should be very well just...

South African Constitutional Law, 2024

In Chapter 2 on ‘Constitutionalism’, the editors – Jason Brickhill, Adila Hassim, Michael Bishop and Tembeka Ngcukaitobi – stake out the terrain on which all the chapters of the work are ultimately situated. The chapter situates constitutionalism in South Africa’s history and its geo-political position in Africa and the Global South. It traces the evolution of our constitutional law and discourse in broad terms. We advance a conception of constitutionalism – as grounded in the constitutional text, jurisprudence and scholarship – that includes six principles. These are the rule of law and the principle of legality; the separation of powers; democracy; human rights; transformative constitutionalism; and the founding values of freedom, dignity and equality.

Consiiiutionah'sm and Rights (ABD: Brigham Young …, 1987

Constitutionalism is the practical science of designing and balancing institutions of public power and authority so as to prevent monopolies of power or the emergence of tyranny. In spite of continuing attempts to ground constitutions in moralistic political theories, they are best understood as formalizations of citizenry agreements to manage their affairs under the rule of law following rules formulated by their legislatures and applied by their judges, all of which are to be selected through established procedures. The emergence of rule of law in primitive societies and in early modern European politics is noted, and the chief contributors to the twentieth century discussion are identified.