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Abstract

Constitutionalism is sometimes regarded as a synonym for limited government. On some accounts, this doctrine is associated in its turn with minimal or less government. But that is only one interpretation and by no means the most prominent historically. A more representative general definition would be that constitutionalism seeks to prevent arbitrary government. At its most generic level, arbitrariness consists in the capacity of rulers to govern wilfully – that is, with complete discretion - and to serve their own interests rather than those of the ruled. Constitutionalism attempts to avoid these dangers by designing mechanisms that determine who can rule, how and for what purposes. However, constitutional traditions differ as to what precisely counts as an arbitrary act and which mechanisms offer the best defence against their occurring. The classical, neo-republican tradition of political constitutionalism identifies arbitrariness with domination of the ruled by their rulers, and seeks to avoid it by establishing a condition of political equality characterised by a balance of power between all the relevant groups and parties within a polity, so that no one can rule without consulting the interests of the ruled. The more modern, liberal tradition identifies arbitrariness with interference with individual rights, and seeks to establish protections for them via the separation of powers and a judicially protected constitution. We begin by tracing these two traditions, and then turn to exploring their respective advantages and disadvantages and any tensions and complementarities that exist between them.
Electronic copy available at: http://ssrn.com/abstract=1676321
Forthcoming in B. Badie, D. Berg-Schlosser and L. Morlino (eds), International
Encyclopedia of Political Science, IPSA/Sage
Constitutionalism
Constitutionalism is sometimes regarded as a synonym for limited government. On some
accounts, this doctrine is associated in its turn with minimal or less government. But that is
only one interpretation and by no means the most prominent historically. A more
representative general definition would be that constitutionalism seeks to prevent arbitrary
government. At its most generic level, arbitrariness consists in the capacity of rulers to
govern wilfully that is, with complete discretion - and to serve their own interests rather
than those of the ruled. Constitutionalism attempts to avoid these dangers by designing
mechanisms that determine who can rule, how and for what purposes. However,
constitutional traditions differ as to what precisely counts as an arbitrary act and which
mechanisms offer the best defence against their occurring. The classical, neo-republican
tradition of political constitutionalism identifies arbitrariness with domination of the ruled by
their rulers, and seeks to avoid it by establishing a condition of political equality
characterised by a balance of power between all the relevant groups and parties within a
polity, so that no one can rule without consulting the interests of the ruled. The more modern,
liberal tradition identifies arbitrariness with interference with individual rights, and seeks to
establish protections for them via the separation of powers and a judicially protected
constitution.
Both traditions are present within most democracies and can be found side by side in many
constitutions. The first tradition focuses on the design and functioning of the democratic
process, including the selection of electoral systems and the choice between presidential or
parliamentary forms of government, of unitary or federal arrangements, and of unicameralism
or bicameralism. Although the detailing of these procedural mechanisms and the relations
between them usually forms the bulk of most constitutional documents, their constitutional
importance has come to be eclipsed in legal circles particularly by the second tradition.
This view emphasises the specification and judicial protection of the different competences of
the political system and of constitutionally entrenched rights by a constitutional court.
However, political theorists and scientists disagree on whether these two traditions are
complementary, mutually entailed or incompatible. The second is often seen as necessary to
Electronic copy available at: http://ssrn.com/abstract=1676321
ensure the fairness of the procedures and/or the outcomes of the first. Yet, it lays itself open
in its turn to doubts that courts are, or could ever be, truly bound by constitutions so that law
rather than judges rule, and if so whether judicial processes are not more arbitrary and prone
to error for deciding constitutional outcomes than the democratic procedures and outcomes
they are often thought legitimately to limit. We begin by tracing these two traditions, and
then turn to exploring their respective advantages and disadvantages and any tensions and
complementarities that exist between them.
Two Traditions of Constitutionalism
Political Constitutionalism: From Mixed Government to Representative Democracy
The theory of mixed government originated with ancient thought and the classification of
political systems on the basis of whether One, a Few or Many ruled. According to this theory,
the three basic types of polity - monarchy, aristocracy and democracy - were liable to
degenerate into tyranny, oligarchy and anarchy respectively. This corruption stemmed from
the concentration of power in the hands of a single person or group, which created a
temptation to its abuse through allowing arbitrary rule. The solution was to ensure
moderation and proportion by combining or mixing various types. As a result, the virtues of
each form of government, namely a strong executive, the involvement of the better elements
of society, and popular legitimacy, could be obtained without the corresponding vices.
Three elements underlie this classic theory of mixed government. First, arbitrary
power was defined as the capacity of one individual or group to dominate another that is, to
possess the ability to rule them without consulting their interests. To be dominated in such an
arbitrary way was to be reduced to the condition of a slave who must act as his or her master
wills. Overcoming arbitrariness so conceived requires that a condition of political equality
exists among all free citizens. Only then will no one person or group be able to think or act as
the masters of others. Second, the means to minimise such domination was to ensure none
could rule without the support of at least one other individual or body. The aim was to so mix
social classes and factions in decision-making, that their interests were given equal
consideration, with each being forced to ‘hear the other side’ . To quote another republican
motto, `the price of liberty is eternal vigilance’, with each group watching over the others to
ensure none dominated them by ignoring their concerns. Third, the balance to be achieved
was one that aspired to harmonise different social interests and maintain the stability of the
polity, preventing so far as was possible the inevitable degeneration into one of the corrupt
forms of government.
Thus, mixed government provides a model of constitutionalism as consisting in the
institutions that structure the way decisions are taken. Although elements of the theory can be
found in Aristotle’s Politics, the locus classicus is Book VI of Polybius's Histories. He
underlined its prime purpose as providing mechanisms whereby no individual, body or group
could rule alone, thereby curbing the descent into tyranny, oligarchy or anarchy. Polybius
regarded the republican constitution of ancient Rome as exemplifying this theory. Thus, the
consuls provided the monarchical element; the senate the aristocratic; while the popular
element was represented by the Tribunes of the People, the Plebeian Council and the
electoral, judicial and legislative powers the people could exercise directly. As he noted, the
key feature of Roman republican government was that each of these three groups exercised
slightly different powers but required the cooperation of the others to do so. So consuls might
exercise war powers, yet needed the senate to approve generals, award them triumphs and
provide the necessary funds, while the people approved treaties and could try high officials
and generals for misconduct. Meanwhile, the more executive elements possessing the most
discretion were further weakened by their power being shared between multiple office
holders, dependent on election, and of short duration. Thus, there were two Consuls each able
to veto the other’s decisions, ten Tribunes with similar countervailing powers and so on, with
none able to hold office for more than a year.
The resulting need for different groups to work together was summarised in the
slogan Senatus Populusque Romanus (‘The Senate and the Roman People’, frequently
abbreviated to SPQR. In reality, though, their relationship was far from harmonious, with the
patrician element largely predominating except when factional disputes led a given group
among them to seek the support of the plebeians. The conflict between social classes was
given greater emphasis by Machiavelli, whose Discorsi offered a radical version of the
Polybian argument. He observed how all polities contain two classes, the nobles (grandi) and
the people (popolo), whose desires conflict. However, he claimed their discord, far from
being destructive, actively promoted 'all the laws made in favour of liberty'. For each was led
to promote freedom by virtue of seeking ways of checking the arbitrary power of the other.
However, like Polybius, Machiavelli believed all systems ultimately became corrupted and
degenerated into either tyranny or anarchy the balance of power merely served to stave off
this inevitable cycle.
The seventeenth and eighteenth centuries brought three main changes to the doctrine.
The first, explored below, was the development of the separation of powers as a variation on
the doctrine of mixed government. The theory of mixed government involves no clear
distinction between the different branches of government. Executive, legislative and
especially judicial tasks were shared between the different social classes and exercised by all
the government bodies. Indeed, the popular element exercised certain legislative and judicial
functions directly through plebiscites and as jurors. The second, was a change in the type of
‘balance’ mixed government was supposed to achieve. The classic theory took the idea of the
`body’ politic literally. Just as bodily health was said to rely on a sound physical constitution
and a balanced diet and way of life, so the health of the polity depended on a sound
constitution that achieved a ‘natural’ balance between the various organs and ‘humours’ of
the political body. As we saw, in line with this organic imagery the aim was to hold off the
inevitable degeneration and corruption of the system. Balance was a static equilibrium,
designed to maintain the status quo. However, the seventeenth and eighteenth century saw a
new, more dynamic notion of balance, inspired by Newtonian physics and based on
mechanics and physical forces. In this conception, balance could involve a harnessing of
opposed forces, holding them in a dynamic equilibrium that combined and increased their
joint power. The change can be seen in the notion of the ‘balance of trade’, which went from
being an equal exchange of goods between states to become a competition between trading
nations that encouraged their mutual productivity and innovation. In this account, the ‘cycle
of life’, where growth was followed by decay, became replaced by the idea of progress, in
which change and transformation had positive connotations.
The third development drew on these two. This was the idea that political ‘balance’
now consisted in the competition between government and a ‘loyal’ opposition. As parties
evolved from simple factions and patronage networks among rivals for office, and became
electoral machines defined as much by ideology and social composition as by the personal
ambitions and interests of the political class, they became the organs of this new type of
balance. In keeping with the older theory of mixed government, one of the virtues of parties
was their ability to mix different social classes and interests and combine them around a
common programme. Indeed, just as economic competition led rival firms to compete over
price, innovate and explore untapped markets, so electoral competition led rival parties to
compete over policy efficiency and effectiveness, devise novel forms of delivery and focus
on areas appealing to different sections of the electorate. This modern form of political
constitutionalism proves constitutional in both form and substance. Equal votes, majority rule
and competitive party elections offer a mechanism for impartially and equitably weighing and
combining the views of millions of citizens about the nature of the public good. And in
making politicians popularly accountable, it gives them an incentive to rule in non-arbitrary
ways that respond to the concerns of the different minorities that form any working majority,
thereby upholding both rights and the public interest rather than their own.
Meanwhile mixed government has developed in new ways through federal and
convocational arrangements that likewise seek to ensure different kinds of interest are
involved in the policy and law-making process on an equal basis. Yet nobody would deny the
systems of most democracies are far from perfect, and it has become increasingly common to
look to the other constitutional tradition to rectify these problems.
Legal Constitutionalism: From the Separation of Powers to Rights and Judicial Review
According to Article 16 of the French Declaration of the Rights of Man and of the Citizen of
1789, ‘A society where rights are not secured or the separation of powers established has no
constitution at all.’ Though widely accepted today, this view was novel at the time, shaped by
the experience of the English, American and French revolutions. The separation of powers
developed out of the theory of mixed government during the English civil war of the mid-
seventeenth century. In 1642 Charles I belatedly invoked the doctrine of mixed government
to defend the joint rule of Monarch, Lords and Commons as implied by the notion that
Parliament meant all three (the doctrine of ‘King in Parliament’ as the sovereign body of the
realm). His execution posed the problem of how to control government in a society without
distinctions of rank. Dividing the executive, legislative and judicial functions between three
distinct agencies appeared to provide a response to this dilemma. However, it took some time
to evolve. Although Book XI Ch VI of Montesquieu’s The Spirit of the Laws has been
credited with offering a definitive statement of the doctrine, his account still bore the
hallmarks of its origins in the system of mixed government - not least because of its being
based on an analysis of the British parliamentary system and the respective roles of Monarch,
Lords and Commons within it. The functional division also remained far from clear cut, with
the judicial branch and function still imperfectly differentiated from the other two. Only with
the drafting of US constitution and debates surrounding it, most notably the Federalist
Papers, did the doctrine emerge in its mature form.
The underlying rationale of this separation is that individuals or groups should not be
`judges in their own cause. The division between the three branches aims to ensure that those
who formulate the laws are distinct from those entrusted with their interpretation, application
and enforcement. In this way, law-makers are subject to the same laws and so have an
incentive to avoid self-interested legislation and to frame it in general terms that will be
equally applicable to all. These laws then guide the decisions of the executive and judiciary,
who because they are similarly under the law also have good reason to act in an impartial
manner. Separating functions also brings the efficiency gains associated with the division of
labour. In particular, the activity of the legislature is made less cumbersome through
devolving more short-term decisions to an executive branch capable of acting with greater
coherence and dispatch.
On its own, it is unclear how effective this separation is. Not only are the four
functions hard to distinguish clearly, but unless a different group operates each branch there
is nothing to prevent their acting in concert. However, four other theoretical developments
accompanied the shift from mixed government to the separation of powers that changed its
character. First, mixed government had been challenged earlier by theorists of sovereignty,
such as Bodin and Hobbes, who regarded the idea of dividing power as incoherent. The
separation of powers came into being in a context shaped by the notion that at some level
power had to be concentrated, and in the context of the English, American and French
revolutions the natural assumption was to shift the sovereign power of the monarch to the
people as a whole. Second, the notion of the people as a whole was likewise new. Previously,
the ‘people’ had simply meant the ‘commons’ or the ‘many’. The whole people became the
authors of the constitution, which as the embodiment of their will became itself sovereign
over the will of any subdivision of the people, including a majority. Third, as a corollary,
constitutions became entrenched written documents expressing a ‘higher’ law, which could
only be amended by the people as a whole or some super-majority that could plausibly be
said to represent their will. Fourth, notions of rights became key aspects of the constitution.
Initially rights were no more an intrinsic part of the separation of powers than they had been
of mixed government. Notoriously, the bill of rights was an appendix to the US constitution,
which had previously been confined to describing the system of government. Nevertheless,
the securing of individual rights gradually became the goal of all constitutional arrangements.
These four developments but particularly the last two had a tremendous impact on
constitutionalism and proved crucial in moving it in a legal and especially a judicial direction.
Within the ‘pure’ theory of the separation of powers all three branches were co-equal. As
with the theory mixed government, the aim was to prevent any one section of society
dominating another by obliging each to collaborate with the others. If anything, the
legislative power was logically prior to the others producing in the US scheme federal and
bicameral arrangements within the legislature that harked back to the doctrine of mixed
government and a clear division between the legislature and executive. As we noted, the
distinctiveness of judicial functions was weak in the doctrine of mixed government and slow
to emerge in the theory of the separation of powers. However, making a legal document
sovereign only challengeable by the sovereignty of the people as a whole - inevitably
empowered the judiciary, particularly given the comparative length of judicial appointments
and their relative isolation from electoral pressures by contrast to the other branches. The
judiciary now decided the competences of the various branches of government, including
their own, and set limits not only to the processes of government but also to its goals with
regard to individual rights. These features have come to define modern constitutionalism and
are reflected in all the constitutional arrangements of post-war democracies. Yet they also co-
exist with forms of political constitutionalism and mixed government. It remains to explore
their respective advantages and disadvantages, and the tensions between them.
Political and Legal Constitutionalism Compared
An entrenched, rights-based and justiciable constitution is said to ensure stable and
accountable government, that obliges legislatures and executives to operate according to the
established rules and procedures and above all prevents their sacrificing individual rights to
administrative convenience, popular prejudices, or short-term gains. Given no working
constitutional government has not been also a working democracy, few analysts believe
constitutions can restrain a genuinely tyrannical government. Rather, the aim is to prevent
democratic governments from falling below their self-professed standards of showing all
equal concern and respect. So, a legal constitution is seen as a corrective to even a
foundation for a working political constitution. Yet, it remains a moot point whether it
performs its appointed task any more effectively or legitimately.
Democratic governments are said to be prone to overreacting to emergency situations,
sacrificing civil rights to security, and pandering to either electorally important, yet
unrepresentative, minorities or the populist sentiments of the majority. Insulated from such
pressures, a court can be more impartial while its judgements are bound by constitutional law.
However, others contend these supposed advantages turn out to be disadvantageous. Going to
law offers an alternative to entering the political realm, yet access is more restricted than
voting and the costs of a case as prohibitive to most ordinary citizens as founding a new
party. Meanwhile, it allows those with deep pockets to fasten on to a single issue that affects
their interests without the necessity of winning others around to their point of view. Courts
may be restricted to the law in their judgements but what does that mean? Is the law to be
found in the text of the constitution, the original intentions of those who drafted it, the
objective meaning of the principles, the common understandings of the people? Words are
open to multiple meanings, so textualism hardly proves that binding on judgements while
semantics seems an odd way to decide difficult moral and political issues. The intentions of
the drafters are unlikely to be consistent or that knowable, and may well be inappropriate in
contemporary conditions. Being bound by the past favours the status quo and those privileged
by current arrangements, thereby hindering progressive reform. If the principles behind the
constitution are universal and timeless, then it could be applied to any and all situations. Yet,
legal philosophers - no less than citizens - disagree whether such principles even exist, let
alone what they might require in particular cases. Appealing to a popular consensus will not
resolve that problem, for it is either unlikely or better provided by a political
constitutionalism that consults popular views directly. In all these respects, judicial review
risks becoming arbitrary itself rather than a block on arbitrariness.
As legal constitutionalism has spread, establishing itself not just in former
authoritarian regimes but also in the UK and commonwealth countries where political
constitutionalism had hitherto held sway alone, so empirical scholarship has highlighted these
drawbacks. More often than not legal constitutionalist arrangements have been introduced by
hegemonic groups fearing political challenges to their position, with the record of the new
regimes faring no better overall on civil rights and, from an egalitarian perspective, rather
worse on social and economic rights. Whereas political constitutionalism responds to
majority views for enhanced and more equal public goods, legal constitutionalism has
invariably inhibited such reforms on grounds of their interfering with individual property and
other rights. Nor has it upheld political constitutional arrangements particularly well for
example, blocking campaign finance limits in many jurisdictions. Of course, important
exceptions exist, with the progressive rulings of the Warren Court in the US offering an
apparent contrast to the free market decisions of the Lochner era. However, these decisions
largely reflected sustained, national, majority opinion and only became effective when
backed by legislative rulings and executive action. At best legal constitutionalism proves only
as good as the political constitution, at worst it inhibits its more equitable and legitimate
working.
Further reading
Bellamy, Richard (2007) Political Constitutionalism: A Republican Defence of the
Constitutionality of Democracy, Cambridge, Cambridge University Press
Hirschl, R. (2004) Towards Juristocracy: The Origins and Consequences of the New
Constitutionalism, Cambridge MA, Harvard University Press
Vile, M. (1967) Constitutionalism and the Separation of Powers, Oxford: Clarendon Press.
Richard Bellamy, UCL
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