What is the difference between Constitutionalism and Constitutional Questions?

The study of constitutions is not necessarily synonymous with the study of constitutionalism. Although frequently conflated, there are crucial differences.

A discussion of this difference appears in legal historian Christian G. Fritz’s American Sovereigns: The People and America’s Constitutional Tradition before the Civil War, a study of the early history of American constitutionalism.

Fritz notes that an analyst could approach the study of historic events focusing on issues that entailed “constitutional questions” and that this differs from a focus that involves “questions of constitutionalism.” Constitutional questions involve the analyst in examining how the constitution was interpreted and applied to distribute power and authority as the new nation struggled with problems of war and peace, taxation and representation.

However, these political and constitutional controversies also posed questions of constitutionalism – how to identify the collective sovereign, what powers the sovereign possessed, and how one recognized when that sovereign acted. Unlike constitutional questions, questions of constitutionalism could not be answered by reference to given constitutional text or even judicial opinions.

Rather, they were open- ended questions drawing upon competing views the Americans developed after Independence about the sovereignty of the people and the ongoing role of the people to monitor the constitutional order that rested on their sovereign authority.”

A similar distinction was drawn by British constitutional scholar A.V. Dicey in assessing Britain’s unwritten Constitution. Dicey noted a difference between the “conventions of the constitution” and the “law of the constitution.”

The “essential distinction” between the two concepts was that the Law of the Constitution was made up of “rules enforced or recognised by the Courts,” making up “a body of ‘laws’ in the proper sense of that term.”

In contrast, the Conventions of the Constitution consisted “of customs, practices, maxims, or precepts which are not enforced or recognised by the Courts” yet they “make up a body not of laws, but of constitutional or political ethics.”

Examples of Descriptive Use

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.

Examples of Prescriptive Use

The prescriptive approach to constitutionalism addresses what a constitution should be. Two observations might be offered about its prescriptive use.

» There is often confusion in equating the presence of a written constitution with the conclusion that a state or polity is one based upon constitutionalism. As noted by David Fell man constitutionalism “should not be taken to mean that if a state has a constitution, it is necessarily committed to the idea of constitutionalism.

In a very real sense… every state may be said to have a constitution, since every state has institutions which are at the very least expected to be permanent, and every state has established ways of doing things.” But even with a “formal written document labeled [sic] ‘constitution’ which includes the provisions customarily found in such a document, it does not follow that it is committed to constitutionalism….”

» 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 critics claim legal reasoning always does – put the lipstick of disinterested constitutionalism on the pig of raw politics.”