What are the Important Features of Constitutionalism?

Constitutionalism:

A Minimal and a Rich Sense: In some minimal sense of the term, a “constitution” consists of a set of rules or norms creating, structuring and defining the limits of, government power or authority.

Understood in this way, all states have constitutions and all states are constitutional states. Anything recognizable as a state must have some acknowledged means of constituting and specifying the limits (or lack thereof) placed upon the three basic forms of government power: legislative power (making new laws), executive power (implementing laws) and judicial power (adjudicating disputes under laws).

Take the extreme case of an absolute monarchy, Rex, who combines unlimited power in all three domains. If it is widely acknowledged that Rex has these powers, as well as the authority to exercise them at his pleasure, then the constitution of this state could be said to contain only one rule, which grants unlimited power to Rex.

He is not legally answerable for the wisdom or morality of his decrees, nor is he bound by procedures, or any other kinds of limitations or requirements, in exercising his powers. Whatever he decrees is constitutionally valid.

When scholars talk of constitutionalism, however, they normally mean something that rules out Rex’s case. They mean not only that there are rules creating legislative, executive and judicial powers, but that these rules impose limits on those powers Often these limitations are in the form of individual or group rights against government, rights to things like free expression, association, equality and due process of law.

But constitutional limits come in a variety of forms. They can concern such things as the scope of authority (e.g., in a federal system, provincial or state governments may have authority over health care and education while the federal government’s jurisdiction extends to national defence and transportation); the mechanisms used in exercising the relevant power (e.g., procedural requirements governing the form and manner of legislation); and of course civil rights (e.g., in a Charter or Bill of Rights).

Constitutionalism in this richer sense of the term is the idea that government can/should be limited in its powers and that its authority depends on its observing these limitations. In this richer sense of the term, Rex’s society has not embraced constitutionalism because the rules defining his authority impose no constitutional limits.

Compare a second state in which Regina has all the powers possessed by Rex except that she lacks authority to legislate on matters concerning religion. Suppose further that Regina also lacks authority to implement, or to adjudicate on the basis of, any law which exceeds the scope of her legislative competence. We have here the seeds of constitutionalism as that notion has come to be understood in Western legal thought.

In discussing the history and nature of constitutionalism, a comparison is often drawn between Thomas Hobbes and John Locke who are thought to have defended, respectively, the notion of constitutionally unlimited sovereignty (e.g., Rex) versus that of sovereignty limited by the terms of a social contract containing substantive limitations (e.g., Regina). But an equally good focal point is the English legal theorist John Austin who, like Hobbes, thought that the very notion of limited sovereignty is incoherent.

For Austin, all law is the command of a sovereign person or body of persons, and so the notion that the sovereign could be limited by law requires a sovereign who is self-binding, who commands him/her/itself. But no one can “command” himself, except in some figurative sense, so the notion of limited sovereignty is, for Austin (and Hobbes), as incoherent as the idea of a square circle.

Though this feature of Austin’s theory has some surface plausibility when applied to the British Parliamentary system, where Parliament is often said to be “supreme” and constitutionally unlimited, it faces obvious difficulty when applied to most other constitutional democracies such as one finds in the United States and Germany, where it is clear that the powers of government are legally limited by a constitution.

Austin’s answer was to say that sovereignty may lie with the people, or some other person or body whose authority is unlimited. Government bodies – e.g., Parliament or the judiciary – can be limited by constitutional law, but the sovereign – i.e., “the people” – remains unlimited.

Whether this provides Austin with an adequate means of dealing with constitutional democracies is highly questionable. For Austin’s sovereign is a determinate individual or group of individuals whose commands to others constitute law. But if we identify the commanders with “the people”, then we have the paradoxical result identified by H.L.A. Hart – the commanders are commanding the commanders.

Entrenchment:

According to most theorists, a further important feature of constitutionalism is that the rules imposing limits upon government power must be in some way be entrenched, either by law or by way of “constitutional convention.” In other words, those whose powers are constitutionally limited – i.e., the organs of government – must not be legally entitled to change or expunge those limits at their pleasure. Most written constitutions contain amending formulae which can be triggered by, and require the participation of, the government bodies whose powers they limit.

Writtenness:

Some scholars believe that constitutional rules do not exist unless they are in some way enshrined in a written document (e.g., Rubenfeld 1998). Others argue that constitutions can be unwritten, and cite, as an obvious example of this possibility, the constitution of the United Kingdom. One must be careful here, however.

Though the UK has nothing resembling the American Constitution and its Bill of Rights, it nevertheless contains a number of written instruments which arguably form a central element of its constitution. Magna Carta (1215 A.D.) is perhaps the earliest document of the British constitution, while others include The Petition of Right (1628) and the Bill of Rights (1689).

Furthermore, constitutional limits are also said to be found in certain principles of the common law, explicitly cited in landmark cases concerning the limits of government power. The fact remains, however, that Britain seems largely to have an unwritten constitution, suggesting strongly that Writtenness is not a defining feature of constitutionalism.

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? In Regina’s case, there is no such separation: legislative, executive and judicial power all reside in her person.

Constitutional Law versus Constitutional Convention:

The idea of constitutionalism is usually thought to require legal limitation on government power and authority. But according to most consti­tutional scholars, there is more to a constitution than constitutional law. Many people will find this suggestion puzzling, believing their constitution to be nothing more (and nothing less) than a formal document, possibly adopted at a special constitutional assembly, which contains the nation’s su­preme law.

But there is a long-standing tradition of conceiving of constitutions as containing much more than constitutional law. Dicey is famous for proposing that, in addition to constitutional law, the British constitutional system contains a number of “constitutional conventions” which effectively limit government in the absence of legal limitation. These are, in effect, social rules arising within the practices of the political community and which impose important, but non-legal, limits on government powers.

Constitutional Interpretation and Constitutional Theories:

As we have just seen, there is (often) more to a constitution than constitutional law. As we have also seen, constitutional norms need not always be written rules.

Despite these important observations, two facts must be acknowl­edged: (1) the vast majority of constitutional cases hinge on questions of constitutional law; and (2) modern constitutions are predominantly written documents.

Consequently, constitutional cases often raise theoretical issues concerning the proper approach to the interpretation of written instruments – coloured, of course, by the special role of constitutions in defining and limiting the authority and powers of government.

Constitutionalism in India

India is a democratic country with a written Constitution. Rule of Law is the basis for governance of the country and all the administrative structures are expected to follow it in both letter and spirit. It is expected that Constitutionalism is a natural corollary to governance in India.

But the experience with the process of governance in India in the last six decades is a mixed one. On the one hand, we have excellent administrative structures put in place to oversee even the minutest of details related to welfare maximization but crucially on the other it has only resulted in excessive bureaucratization and eventual alienation of the rulers from the ruled.

Since independence, those regions which were backward remained the same, the gap between the rich and poor has widened, people at the bottom level of the pyramid remained at the periphery of developmental process, bureaucracy retained colonial characters and overall development remained much below the expectations of the people.

But at the same time, many positive

1. Judicial reforms should be implemented with immediate effect as more than 30 million cases are pending in various courts all over the country.

Criticism

Constitutionalism has been the subject of criticism by numerous anarchist thinkers. For example, Murray Rothberg, who coined the term “anarcho- capitalism,” attacked constitutionalism, arguing that constitutions are incapable of restraining governments and do not protect the rights of citizens from their governments.

Rothberg wrote that is true that, in the United States, at least, we have a constitution that imposes strict limits on some powers of government. But, as we have discovered in the past century, no constitution can interpret or enforce itself; it must be interpreted by men.

And if the ultimate power to interpret a constitution is given to the government’s own Supreme Court, then the inevitable tendency is for the Court to continue to place its imprimatur on ever-broader powers for its own government. Furthermore, the highly touted “checks and balances” and “separation of powers” in the American government are flimsy indeed, since in the final analysis all of these divisions are part of the same government and are governed by the same set of rulers.

2. Criminalization of politics is a bane for democracy and unless urgent steps are taken to counter it, might see the eventual failings of it.

3. Political and administrative corruption is a sad reality of Indian administration and this cancer should be removed from the body politic of Indian democracy on an emergency basis. 4. Economic backwardness has resulted in anti social movements in the form of rise of Naxalism unless it is curbed it can turn into a serious problem for Indian administration.

5. Aspirations of people at the local level are increasing at an exponential manner and if they are fulfilled, the mounting frustrations are extremely dangerous for functioning of democratic system.