Here is your short essay on Constitutionalism

Constitutionalism is the idea, often associated with the political theories of John Locke and the “founders” of the American Republic, 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. How can a government be legally limited if law is the creation of government? Does this mean that a government can be “self-limiting,” or is there some way of avoiding this implication? If meaningful limitation is to be possible, must constitutional constraints be somehow “entrenched”? Must they be enshrined in written rules? If so, how are they to be interpreted? In terms of literal meaning or the intentions of their authors, or in terms of the, possibly ever-changing, values they express? How one answers these questions depends crucially on how one conceives the nature, identity and authority of constitutions.

Does a constitution establish a stable framework for the exercise of public power which is in some way fixed by factors like the original meaning or intentions? Or is it a “living tree” which and develops in tandem with changing political values and principles? These and other such question is explored below.

As described by political scientist and constitutional scholar David Fell man:

“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 la Constitutionalism proclaims the desirability of the rule of law as opposed to rule by the arbitrary judge or mere fiat of public officials…. Throughout the literature dealing with modern public law and foundations of statecraft the central element of the concept of constitutionalism is that in political social government officials are not free to do anything they please in any manner they choose; they are 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 the concept of limited government under a higher law.”

Usage

Constitutionalism has prescriptive and descriptive uses. Law professor Gerhard Casper captured this aspect of the term in noting that: “Constitutionalism has both descriptive and prescriptive connotations Used descriptively, it refers chiefly to the historical struggle for constitutional recognition of the people right to ‘consent’ and certain other rights, freedoms, and privileges Used prescriptively its meaninlrested incorporates those features of government seen as the essential elements of the Constitution.”

(a) Descriptive Use:

One example of constitutionalism’s descriptive use is law professor Bernard Schwartz’s 5 volume compilation of sources seeking to trace the origins of the Federal Bill of rights! “Law Beginning with English antecedents going back to the Magna Carat (1215), the author explores the presence and development of ideas of individual freedoms and privileges through colonial charters in the pi legal understandings.

Then, in carrying the story forward, the author identifies revolutionary declaration! Practices, and constitutions, documents and judicial decisions of the Confederation period and the formation of a body m the federal Constitution finally, he turns to the debates over the federal Constitution’s ratification that Examples 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 values and principles in a constitutional order.

(b) Prescriptive Use:

In contrast to describing what constitutions are, a prescriptive approach addresses what a constitution should be. As presented by 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 vexinc questions of interest not only to legal scholars, but to anyone keen to explore the legal and philosophical foundations of the state.” One example of this prescriptive approach was the project of the National Municipal League to develop a “Model State Constitution.”

Authority of Government

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.”

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 ‘set of fundamental rules by which even the supreme power of the state shall be governed.'” Ultimately, American constitutionalism came to rest on the collective sovereignty of the people – the source that legitimated American governments.

Fundamental Law Empowering and Limiting Government

One of the most salient features of constitutionalism is that it describes and prescribes both the source and the limits of government power. 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.”