Constitutionalism - Knowledge

4016:(Rowman & Littlefield Publishers, Inc. 1998) at pp. 148–149 (Belz further argues: "Constitutionalism shapes political life in a variety of ways. Constitutional principles can become matters of commitment and belief possessing intrinsic value that motivate political action.... When citizens and governing officials internalize constitutional values, acting out of fidelity to law rather than expediency, constitutionalism gives direction to political life. Constitutionalism has a configurative effect also in providing the forms, rhetoric, and symbols by which politics is carried on. Political groups and individuals ordinarily try to choose courses of action that are consistent with or required by the Constitution. They do so not because they are in each instance committed to the constitutional principle or value at issue... because they know that the public takes the Constitution seriously, believing that it embodies fundamental values and formal procedures that are the touchstone of political legitimacy. In American politics the Constitution is a justifying concept, and groups that invoke constitutional arguments do so, from their own perspective perhaps and in an immediate sense, instrumentally. Considered from an external and long-range view in relation to the polity as a whole, however, reliance on constitutional principles and rules is normative and noninstrumental. In this way constitutionalism shapes political events") 3609:, (David Fellman, "Constitutionalism"), vol 1, pp. 485, 491–492 (1973–74) ("Whatever particular form of government a constitution delineates, however, it serves as the keystone of the arch of constitutionalism, except in those countries whose written constitutions are mere sham. Constitutionalism as a theory and in practice stands for the principle that there are—in a properly governed state—limitations upon those who exercise the powers of government, and that these limitations are spelled out in a body of higher law which is enforceable in a variety of ways, political and judicial. This is by no means a modern idea, for the concept of a higher law which spells out the basic norms of a political society is as old as Western civilization. That there are standards of rightness which transcend and control public officials, even current popular majorities, represents a critically significant element of man's endless quest for the good life.") 2936: 2881:

ideas of individual freedoms and privileges through colonial charters and legal understandings. Then in carrying the story forward, he identifies revolutionary declarations and constitutions, documents and judicial decisions of the Confederation period and the formation of the federal Constitution. Finally, he turns to the debates over the federal Constitution's ratification that 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 rights and principles in a constitutional order.

3060:, 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 labelled 'constitution' which includes the provisions customarily found in such a document, it does not follow that it is committed to constitutionalism...." 2744: 3123: 3014:" or "democratic constitutionalism."... But I think it is worth setting out a stark version of the antipathy between constitutionalism and democratic or popular self-government, if only because that will help us to measure more clearly the extent to which a new and mature theory of constitutional law takes proper account of the constitutional burden of ensuring that the people are not disenfranchised by the very document that is supposed to give them their power. 2768: 1670: 1658: 57: 2756: 3250: 2915:

peace, taxation and representation, and "questions of constitutionalism —how to identify the collective sovereign, what powers the sovereign possessed, and how one recognized when that sovereign acted." He noted that "questions of constitutionalism could not be answered by reference to given constitutional text or even judicial opinions" but were "open-ended questions drawing upon competing views".

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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

3140:, usually written," analysts take a variety of positions on what the constitution means. For instance, they describe the document as a document that may specify its relation to statutes, treaties, executive and judicial actions, and the constitutions or laws of regional jurisdictions. This prescriptive use of Constitutionalism is also concerned with the 3069:

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 crits claim legal reasoning always does—put the lipstick of disinterested constitutionalism on the pig of raw politics."

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do anything they please in any manner they choose; they are bound 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 is the concept of limited government under a higher law.

4117:(Cambridge University Press, 2008). p. 284 ("Invariably, the state constitutional tradition is deemed less authentic because of its departure from the federal model. This has led to the assumption that one need only study the federal Constitution to discover what American constitutionalism was then and is today.") 3101:

There is a rich tradition of state constitutionalism that offers broader insight into constitutionalism in the United States. While state constitutions and the federal constitution operate differently as a function of federalism from the coexistence and interplay of governments at both a national and

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In U.S. history, constitutionalism, in both its descriptive and prescriptive sense, has traditionally focused on the federal constitution. Indeed, a routine assumption of many scholars has been that understanding "American constitutionalism" necessarily entails the thought that went into the drafting

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as opposed to rule by the arbitrary judgment or mere fiat of public officials ... Throughout the literature dealing with modern public law and the foundations of statecraft the central element of the concept of constitutionalism is that in political society government officials are not free to

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calls "the first constitution of its kind in Europe", was in effect for only a year. It was designed to redress longstanding political defects of the Polish–Lithuanian Commonwealth and its traditional system of "Golden Liberty". The Constitution introduced political equality between townspeople and

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played an important role in emergence of the unique Polish form of constitutionalism." This constraint on the powers of the monarch were significant in making the "ule of law, religious tolerance and limited constitutional government... the norm in Poland in times when the rest of Europe was being

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Constitutions are not just about restraining and limiting power; they are about the empowerment of ordinary people in a democracy and allowing them to control the sources of law and harness the apparatus of government to their aspirations. That is the democratic view of constitutions, but it is not

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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 vexing questions of interest not only to legal scholars, but to anyone keen to explore the legal and philosophical

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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

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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. On the other hand, the prescriptive approach to constitutionalism addresses what a

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is not necessarily synonymous with the study of constitutionalism. Legal historian Christian G. Fritz distinguishes between "constitutional questions", examining how the constitution was interpreted and applied to distribute power and authority as the new nation struggled with problems of war and

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One example of constitutionalism's descriptive use is law professor Bernard Schwartz's five volume compilation of sources seeking to trace the origins of the U.S. Bill of Rights. Beginning with English antecedents going back to Magna Carta (1215), Schwartz explores the presence and development of

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captured this aspect of the term in noting, "Constitutionalism has both descriptive and prescriptive connotations. Used descriptively, it refers chiefly to the historical struggle for constitutional recognition of the people's right to 'consent' and certain other rights, freedoms, and privileges.

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Moreover, 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

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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

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have attracted growing interest in recent years. Authors such as Ann E. Mayer define Islamic constitutionalism as "constitutionalism that is in some form based on Islamic principles, as opposed to constitutionalism that has developed in countries that happen to be Muslim but that has not been

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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

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has been defined as a complex of ideas, attitudes and patterns elaborating the principle that the authority of government derives from the people, and is limited by a body of fundamental law. These ideas, attitudes and patterns, according to one analyst, derive from "a dynamic political and

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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" but "make up a body not of laws, but of constitutional or

2964:"grants and guides the legitimate exercise of government authority". Similarly, historian Gordon S. Wood described the most "advanced thinking" on the nature of constitutions wherein the constitution was conceived (according to Demophilis, who was possibly George Bryan) a " 3113:

Both experience with state constitutions before and after the federal constitution as well as the emergence and operation of the latter reflect an ongoing struggle over the idea that all governments in America rested on the sovereignty of the people for their legitimacy.

3034:. 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 " 4629:

Mohammad Hashim Kamali, Constitutionalism in Islamic Countries: A Contemporary Perspective of Islamic Law, in: Rainer Grote and Tilmann Röder (eds.), Constitutionalism in Islamic Countries: Between Upheaval and Continuity, Oxford University Press, Oxford/New York

4203:(Cambridge University Press, 2008). p. 284 (Observing that from the Revolutionary era to the period before the Civil War "Americans continued to wrestle with what it meant that their national as well as state governments rested on the sovereignty of the people") 4495:(Bagehot noted his intent to correct mistaken views of the British constitution, including whether the constitution was "laid down as a principle of the English polity, that in it the legislative, the executive, and the judicial powers, are quite divided....") 3417:

after he was deposed. His first leader was Colonel Rafael Tomás Fernández Domínguez, and he wanted Bosch to come back to power once again. Colonel Fernández Domínguez was exiled to Puerto Rico where Bosch was. The Constitutionalists had a new leader:

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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 law. Constitutionalism proclaims the desirability of the

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was accompanied by an efflorescence of political ideas in which the concept of countervailing powers was clearly defined," led to a well-developed polity with multiple governmental and private institutions that counter the power of the state.

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derived from fundamental law. 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."

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Asifa Quraishi, The Separation of Powers in the Tradition of Muslim Governments, in: Rainer Grote and Tilmann Röder (eds.), Constitutionalism in Islamic Countries: Between Upheaval and Continuity, Oxford University Press, Oxford/New York

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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 legitimized American governments.

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Khaled Abou El Fadl, Shariah and Constitutionalism in: Rainer Grote and Tilmann Röder (eds.), Constitutionalism in Islamic Countries: Between Upheaval and Continuity, Oxford University Press, Oxford/New York

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For the assumptions by historians, political scientists and lawyers that have contributed to a view of constitutionalism essentially connected and confined to the US Constitution, see Christian G. Fritz,

4190:(University of North Carolina Press, 1980), p. 137 (asserting that statements of the "principle" of the people's sovereignty "expressed the very heart of the consensus among the victors of 1776"). 4162:

Self-Evident Truths: Being a Discourse on the Origins & Development of the First Principles of American Government – Popular Sovereignty, Natural Rights, and Balance & Separation of Powers

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informed by distinctively Islamic principles". However, the concrete meaning of the notion remains contested among Muslim as well as Western scholars. Influential thinkers like

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and cement the position of the American judiciary as an independent and co-equal branch of government. On the other hand, Earl Warren, the 14th Chief Justice, greatly extended

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the constitutionalist view.... Of course, it is always possible to present an alternative to constitutionalism as an alternative form of constitutionalism: scholars talk of "

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was deposed, the Constitutionalist movement was born in the country. As opposed to said movement, the Anti-constitutionalist movement was also born. Bosch had to depart to

4177:(The American Philosophical Society, 1977), p. 101 (concluding the American Revolution "confirmed and completed the subordination of government to the will of the people") 3862: 3056:

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

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In contrast to describing what constitutions are, a prescriptive approach addresses what a constitution should be. As presented by the Canadian philosopher

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whereby Supreme Court could strike down federal and state laws if they conflicted with the Constitution. By establishing the principle of judicial review,

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Ann E. Mayer, Conundrums in Constitutionalism: Islamic Monarchies in an Era of Transition, 1 UCLA J. Islamic & Near E.L. 183 (Spring / Summer, 2002).

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is "a compound of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by

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of individuals, each of which is a restriction of the other, and that no powers be delegated that are beyond the competence of government.

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Constitutionalism is not simply about the power structure of society. It also asks for a strong protection of the interests of citizens,

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Used prescriptively, its meaning incorporates those features of government seen as the essential elements of the... Constitution".

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One example of this prescriptive approach was the project of the National Municipal League to develop a model state constitution.

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state level, they all rest on a shared assumption that their legitimacy comes from the sovereign authority of the people or

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The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era

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One of the most salient features of constitutionalism is that it describes and prescribes both the source and the

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Waldron, Jeremy (2009). "Constitutionalism – A Skeptical View". In Christiano, Thomas; Christman, John (eds.).

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of the federal constitution and the American experience with that constitution since its ratification in 1789.

2946:(the "Great Charter") created in 1215 is regarded as one of the greatest constitutional documents of all times. 2691: 2608: 2494: 2163: 845: 414: 6096: 5344: 4007:

Herman Belz, "A Living Constitution or Fundamental Law? American Constitutionalism in Historical Perspective"

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combine classic Islamic law with modern constitutionalism. The constitutional changes initiated by the

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historical process rather than from a static body of thought laid down in the eighteenth century".

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movement have already brought into reality many new hybrid models of Islamic constitutionalism.

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Starting with the proposition that "'Constitutionalism' refers to the position or practice that

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Philip P. Wiener, ed., "Dictionary of the History of Ideas: Studies of Selected Pivotal Ideas"

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Philip P. Wiener, ed., "Dictionary of the History of Ideas: Studies of Selected Pivotal Ideas"

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