FINAL VERSION OF TERM PAPER ON CONSTITUTIONALISM NOV
Tish Sarfo
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Abstract
A critical reading of the above comment indeed affirms the contention between the concept of constitutionalism and the concept of philosophical foundation of the state leading to a host of vexing questions, including how a government can be legally limited if law is the creation of government? I will attempt to discuss this dichotomy in the two concepts by looking at the nature, identity and authority of constitutions, what constitutionalism is, the philosophical foundations of the state, the relationship between the two concepts in terms of situations where constitutionalism is practiced as against situations where constitutionalism is absent with examples and authorities from mainly Ghana and finally conclude this term paper with the position on whether or not this contention is a settled matter. A constitution is the blue print of a nation. It establishes the basic framework for the operation of the state and expresses its important social and political values. In many ways, it functions as the national conscience. The Free Dictionary defines constitution as " the fundamental law, written or unwritten, that establishes the character of a government by defining the basic principles to which a society must conform; by describing the organization of the government and regulation, distribution, and limitations on the functions of different government departments; and by prescribing the extent and manner of the exercise of its sovereign powers. " In modern Europe, written constitutions came into greater use during the eighteenth and nineteenth centuries. Constitutions such as that of the United States, created in 1787, were influenced by the ancient Greek models. During the twentieth century, an increasing number of countries around the world concluded that constitutions are a necessary part of democratic or republican government. Many thus adopted their own constitutions. In its ideal form, a constitution emanates from the consent and will of the people whom it governs. Besides establishing the institutions of government and the manner in which they function toward each other and toward the people, a constitution may also set forth the rights of the individual and a government's responsibility to honor those rights. Constitutions, whether written or unwritten, typically function as an evolving body of legal custom and opinion. Their evolution generally involves changes in judicial interpretation or in themselves, the latter usually through a process called amendment. Amendment of a constitution is usually designed to be a difficult process in order to give the constitution greater stability. On the other hand, if a constitution is extremely difficult to amend, it might be too inflexible to survive over time. In a truly constitutional form of government, the three basic forms of governmental power: namely legislative power (making new laws), executive power (implementing laws) and judicial power (adjudicating disputes under law) are all subject to constitutional rules and provisions and may not violate them without punishment. Such constitutional governments are also called limited governments because the constitution restricts the scope of their power over the people. However, some governments that have constitutions do not practice true constitutionalism, the mere existence of a constitution of a state does not mean it is a constitutional government. The former
