Constitutionalism

The belief that constitutions should legally limit government power, that government officials must obey the country’s laws, and that a government’s legitimacy comes from obeying these limitations and laws has been termed Constitutionalism. It stems from the idea that Constitution Opens in new window must limit absolute power by detailing the powers available to each branch of government.

Constitutionalism as conceptualized by political comparativists

There is no universal definition or circumscription of constitutionalism in legal academia. Besson nevertheless describes the idea behind the concept by stating that

Constitutionalism's main and common theme is that political and legal power should be exercised only within the limits of a constitution, such as the separation of powers, checks and balances, the rule of law, democracy and fundamental rights.Besson

According to Fellman,

the touchstone of constitutionalism is the concept of limited government under a higher law.Fellman

In a narrow sense, constitutionalism does no more nor less than refer to the requirement that a state should have a Constitution, constraining the organization and functioning of the state and the government Opens in new window.

Constitutionalism checks whether the act of a government is legitimate and whether officials conduct their public duties in accordance with the set laws predetermined in the constitutiton.

Amusingly, this implies that having a Constitution alone does not secure or bring about constitutionalism. Except for a few states which have unwritten constitutions, today almost all the nations/states in the world have constitutions. This does not, however, mean that all these states practice constitutionalism. That is why constitutionalism is far more important than a constitution.

Features of Constitutionalism

According to Barnett (1995), constitutionalism comprises:

1. limitation of power (limited government),
2. separation of powers (checks and balances)
3. popular sovereignty and
4. responsible and accountable government.

Thus, we'll spend the remainder of this literature addressing the features, each in turn.

1. Limitation of power

The notion of constitutionalism is that government should be legally limited in its powers, and that its authority depends on observing these limits. Constitution must limit absolute power by detailing the powers available to each branch of government, while protecting people against the arbitrary power of rulers.

The concept of constitutionalism also includes the idea that, as the “rules for making new rules,” provisions in a constitution are above ordinary law. Ordinary laws must conform to constitutional provisions.

2. Separation of Powers (Checks and balances)

Under the umbrella of constitutionalism, power is not concentrated in any one organ of the state. Rather, it is shared among the three organs of the state i.e., the legislature, the executive and the judiciary. If power is monopolized by any one organ of the state there could be abuse of power, tyranny and dictatorship. Nor can there be liberty. For example, the legislature, in addition to its law-making power is not allowed to exercise the roles of the executive; and the judiciary is not allowed to execute the laws which it interprets. These two powers are reserved to the respective organs i.e. the executive and the judiciary, respectively.

3. Popular sovereignty

Popular sovereignty is the extent to which the public is the source or fountain of all governmental authority. The legitimacy of any governmental power is derived from the consent of the public. In other words, the government acquires its mandate from the people.

In essence, the public is involved in the decision making process which may take different forms. The most obvious one is election of representatives. The public is entitled to elect representatives who represent it. However, such election should be free, open (transparent) and fair.

Referendum Opens in new window is another mechanism by which the sovereignty of the public is manifested or expressed. Before a government makes a decision or takes any action which affects the interest of the public, constitutionalism requires it to consult the public and reach a consensus.

4. Responsible and Accountable Government

In democratic countries, people perceive their government as their own servant. The government is there to serve the people or act as the steward of their interest. The governments assume office in the name and on behalf of the public for the benefit of the public. When a government fails to act in the best interest of the public, the latter revokes authorization through the ballot box.

Henkin also identifies the following meta values as essential features or characteristics of constitutionalism:

• popular sovereignty,
• rule of law,
• limited government,
• separation of powers (checks and balances),
• civilian control of the military,
• police governed by law and judicial control,
• an independent judiciary,
• respect for individual rights and
• the right to self-determination