1. How is constitutionalism being practiced in contemporary states?

2. How constitutions shape political practices in advanced industrial societies. Give eg

3. Theory and practice of constitutionalism in western liberal societies.
4. Different models/forms of constitutionalism being practiced in contemporary capitalist
states.
5. Liberal model of constitutionalism. What is constitutional morality.
UNIT – 3

Constitutionalism: Theory and Practice in Contemporary States

Meaning –

In ordinary parlance, constitutionalism may be defined as a ‘belief in constitutional government.’

Constitutionalism can be defined as the doctrine that governs the legitimacy of government action, and
it implies something far more important than the idea of legality that requires official conduct to be in
accordance with pre-fixed legal rules. In other words, constitutionalism checks whether the act of a
government is legitimate and whether officials conduct their public duties in accordance with laws pre-
fixed/ pre-determined in advance. The latter definition shows 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.

In Political Science, constitutionalism would mean the way a state and its authority are constituted. A
Constitution is believed to have the quality of stability and respectability to the extent that the people
expect it to be followed by the members and organs of the Government. This practice of the
Government following the Constitution is called 'constitutionalism'. This means that the Government
cannot be run by any person's whims. A principle of representative government has, therefore, been
universally accepted. Because the representatives have handed over power to rule in future, a
constitution becomes necessary to lay down the limits of their power-'the rules of the game,'.

The very idea that every state must have a constitution of its own and that its government must be
organized and conducted according to the rules of the constitution so that the people have a ‘rule of
law’ and not a ‘rule of man’, it constitutes the case of ‘constitutionalism.’

Constitutionalism, thus, stands for the existence of a constitution in a state, since it is the instrument of
government, or the fundamental law of the land, whose objects “are to limit the arbitrary action of the
government, to guarantee the rights of the governed, and to define the operation of the sovereign
power.”

Features –

According to Barnett, constitutionalism embraces –

- limitation of power (limited government),

- separation of powers (checks and balances) and
- responsible and accountable government
We shall thus focus on the following basic elements:

1. Popular sovereignty –

Popular sovereignty envisages the fact that 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 other words, 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. When the public loses
confidence in its representatives and where the latter fail to represent the interest of the public,
representatives may be recalled before the expiry of their term of office.

2. Separation of Powers (checks and balances) –

Under constitutionalism, power is not concentrated in any one organ of the state. It is diffused (divided)
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.

a) USA - In the United States of America, the three organs of state and their respective powers and
duties are enshrined in the constitution. Similarly, the system of checks and balances is embodied in the
constitution. According to the US Constitution, Congress (i.e., the House of Representatives) and the
Senate are the sole law-making power. The principal feature of the US Constitution is that it does not
allow an individual to exercise different powers or act in different capacities at the same time. For
example, members of Congress are not allowed to become members of the Executive or the Judiciary
and the vice-versa.
b) France - France is another example where the three organs of the state are identified in the
constitution. There is an “autonomous institution” called Constitutional Council. It is this institution
which is empowered to check the constitutionality of acts passed by the legislature. It is the
Constitutional Council which is entrusted with the power of judicial or constitutional review. The
decision of the Constitutional Council is final and non-reviewable.
c) Germany - The laws passed by the parliament after counter-signature by the federal Chancellor
shall be certified by the president and are promulgated. After promulgation, the law may be subject to
constitutional/judicial review. The Federal Constitutional Court is empowered to check the compatibility
of such laws with the Basic law. According to Article 93 of the Basic Law, even individuals are allowed to
lodge their complaint to the Constitutional Court.

3. Responsible and accountable government –

In the democratic nations (countries) people perceive their government as their own servant. The
government is there to serve their interest 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. As a government
assumes office in the name and on behalf of the public, it is directly accountable or responsible to the
public. When a government (i.e., the agent) fails to act in the best interest of the public (i.e., the
principal), the latter revokes authorization through the ballot box.
4. Rule of law-

Rule of law denotes a government of laws and not of men. Individuals working within the state
machinery are expected to exercise their official duties and responsibilities in accordance with the law.
In other words, rule of law represents the supremacy of law. The first component of rule of law is
related to the principle of legality. If a certain behavior is not categorized as a criminal act by the
constitutionally mandated lawmaking organ, it is not treated as a criminal act and is not punishable. It is
treated as an innocent act. Secondly for an act to be punishable, the act must be classified or identified
as a criminal act by the legislature through the law-making process enshrined in a constitution and other
laws. Finally, once a certain behavior is classified as a criminal act, the accused should be tried and
punished by the ordinary courts. No one is above the law and Rights are based on the actual decision of
courts.

5. An independent judiciary -

“Judicial independence is the hallmark of liberal democracy”. The rights of individuals are ensured and
respected. Courts play a vital role in ensuring and respecting the rights of individuals. An independent
judiciary is the cornerstone of a free society and rule of law. An independent judiciary is also necessary
to maintain the supremacy of a constitution. If the legislature comes up with a law which is contrary to
the constitution, an independent judiciary, through the principle of judicial or constitutional review, has
the power to declare it null and void.

6. Respect for individual rights –

The incorporation of the rights of individuals in a constitution and other laws is essential, but not an end
by itself. It is a means to an end. It must be seen that these rights are duly respected and protected.

7. Respect to self-determination –

Self-determination refers to the right of a people living in a territory to determine the political and legal
status of the territory, for example, by setting up a state of their own or by choosing to become part of
another state. By virtue of that right they freely determine their political status and freely pursue their
economic, social and cultural development.

8. Civilian control of the military –

In democratic countries, it is the democratically elected officials who are allowed to govern or control
the military, although technical affairs are left to the military personnel.

9. Police governed by law and judicial control –

The prime responsibility of ensuring peace and order is borne by the police. It shoulders the duty of
bringing wrong-doers to justice. However, when the police discharge such duties, constitutionalism
requires them to honor and respect the rights, dignity and freedoms of individuals including wrong-
doers and persons suspected of offences. It is to be noted that a suspect has the right to be presumed
innocent until proved guilty by the competent court. In general, the police are expected to act according
to the law.

Models of Constitutionalism –
Greek Constitutionalism:

Constitutionalism in a rather primitive form began in Greece some twenty-three centuries ago. The
Greek Constitution was the general system of authority by means of which the functions of the state
were performed. It was the essence of the state. The constitution fixed the number and relationship of
the organs of government, the methods of selecting its officers, and the location of the supreme or
sovereign power. The location of the sovereign power determined the nature of the constitution. If it
was exercised by the people, the constitution was a democracy; if by a few, the constitution was an
oligarchy. Constitution then to the Greek mind meant the general nature or character of the state. To
the Greeks, what was right was law, and what was wrong was unlaw, what was right was discovered
from "the law of nature." They had city-state system in which the benefits of citizenship were open to
the freemen only. Most of the city-states had a direct democratic system, though Sparta was under the
rule of military junta. The Greeks, however, had a peculiar notion about the state and the role of the
people (citizens) therein. As Strong says: “A Greek citizen was actually and in person a soldier, a judge
and a member of the governing assembly...The state to the Greek was his whole scheme of association,
a city where in all his needs, material and spiritual, were satisfied...”

Rome Constitutionalism –

Rome's contribution to constitutionalism consists of (1) the principle of checks and balances, (2) the
doctrine of popular sovereignty, and (3) the principle of a higher law or the doctrine of natural law, or
the doctrine of a limited government.

British

In Britain, the Constitution being unwritten, sovereignty of the Parliament is the prevailing principle of
government. That means that the Crown is a part of the Parliament but not a member of any House. The
Crown can address the Houses. No court can review or invalidate an Act of Parliament even though the
British courts interpret Parliamentary enactments quite liberally. There is no concept of strict separation
of power in the British constitutional system.

In the British Constitutional system there is a bicameral legislature the upper chamber -the House of
Lords -is made up of hereditary and nominated Peers and the lower chamber -of elected representatives
of the people. The executive power is vested, nominally, in the monarch but actually in the Council of
Ministers that contains members of both the Houses but is responsible to the House of Commons. This
responsibility-meaning the liability of the Council of Ministers to be removed from office if it loses
confidence of the House of Commons-is an insurance against the tyranny of the executive. On the other
hand, the power of the Council of Ministers to obtain dissolution of the House of Commons and seek a
fresh election is an insurance against the tyranny of the House. An election means a reference to the
voters who are the political sovereign. A possible conflict between the judiciary is sought to be resolved
by the arrangement that the highest court of the country is the House of Lords and the House of Lords is
generally aloof from the humdrum of the country's politics. This, however, is not strict separation of
power. The House of Lords as a whole has the power to delay the passage of a law at the most.

US Model –
The basic difference between the constitutional systems of Britain and the USA is that, the US
Constitution being written, the constitutional law there has been placed above the ordinary laws,
while in Britain there is no written Constitution and all laws made by the Parliament are of equal
strength. While interpreting the laws in the USA, the Supreme Court places the Constitutional Law
above the ordinary law and overrules any legislation that, in its opinion, conflicts with the Constitution.
A salient feature of the US Constitution that marks it apart from the British Constitutional system is its
federal character. Britain -officially, the United Kingdom -is a unitary state, governed as one unit.
Sovereignty, or the governing power, in the United Kingdom is exclusively vested in the King/Queen in
Parliament. In the United States of America sovereignty is divided between the Union and the States.
The powers the Union are limited by the Constitution. The residual powers belong to the States. Being
the guardian of the Constitution the Federal Supreme Court is also the guardian of the federal relations.
The States have their own courts.

The nominal and the real executive in the USA is the President, elected indirectly by the people. The
legislative power in the USA is vested in the elected, bi-cameral, Congress. There is no responsibility of
the executive to the legislature. But the system works on the basis of control -the concept of 'checks and
balances,' as it is called. The President has a team of Secretaries work for him at the head of each
administrative department. His choices are of course subject to ratification of the second chamber of
the US Congress-the Senate or the Council of States. All laws are enacted by the Congress, but the
assent of the President is necessary. The Congress is also the sole controller of the funds of the
Government. The President cannot address the Congress but he, or his secretaries, may meet the
Congressional committees. Legislations and Finance Bills are drafted by the Congressional Committees.

France Constitutionalism –

France is a republic; the institutions of governance of France are defined by the Constitution, more
specifically by the current constitution, being that of the Fifth Republic. Though the French
constitution is parliamentary, it gave relatively extensive powers to the executive (President and
Ministers) compared to other western democracies.

The Executive Branch

1. The head of state and head of the executive is the President, elected by universal suffrage.
2. The President, who is also the supreme commander of the military, determines policy with the aid of
his Council of Ministers.
3. The President appoints a prime minister, who forms a government.
4. In theory ministers are chosen by the PM; in practice unless the President and the PM are from
different sides of the political spectrum, PM and president work together to form a government.
5. The President must approve the appointment of government ministers.
6. The cabinet, le Conseil des ministres, meets on a weekly basis, and is presided over by the president.
7. Ministers determine policy and put new legislation before Parliament in the form of bills; within the
framework of existing law, they apply policy through decrees

The Legislative Branch

1. The French Parliament is made up of two houses or chambers.

2. The lower and principal house of parliament is the Assemblée nationale, or national assembly; the
second chamber is the Sénat or Senate.
3. Members of Parliament, called Députés, are elected by universal suffrage, in general elections that
take place every five years.
4. Senators are elected by “grand electors”, who are mostly other local elected representatives. The
electoral system for parliamentary elections involves two rounds; a candidate can be elected on the
first round by obtaining an absolute majority of votes cast. The second round is a runoff between
two or more candidates, usually two.

The Judicial Branch

While the Minister of Justice, has powers over the running of the justice system and public prosecutors, the
judiciary is strongly independent of the executive and legislative branches. The official handbook of French
civil law is the Code Civil.

The Constitutional Council

1. The Constitutional Council, exists to determine the constitutionality of new legislation or

decrees.
2. It has powers to strike down a bill before it passes into law, if it is deemed unconstitutional,
or to demand the withdrawal of decrees even after promulgation.
3. The Council is made up of nine members, appointed (three each) by the President of the
Republic, the leader of the National Assembly, and the leader of the Senate, plus all surviving
former heads of state.

Liberal Concept of Constitutionalism:

Western writers like Thomas Paine, Alexis de Tocqueville, Harold J. Laski, , C.F. Strong, Carl J. Friedrich
and a host of others have taken the view that constitutionalism is both an end and a means; it is both
value-free and value-laden; it has both normative and empirical dimensions. The provisions of the
constitution not only provide for the composition of various organs of the government and the powers
entrusted to them, they also attach sanctity to the norms of liberty, equality, justice, rights, etc. For
instance, the Constitution of India in its Preamble enshrines the ideals of Justice, Liberty, Equality and
Fraternity. According to this view, the constitution is not only an end that ought to be respected by all, it
is also a means to an end, the being the achievement of security and the protection of liberty of the
people.

Whether the constitution is in the form of a document made at a particular time of history as the
American constitution or it is in the form of numerous laws, institutions, and conventions as in the case
of the English constitution, the western concept of constitutionalism lays emphasis on this point that the
basic laws of the land should be such that difference between the government of the people and the
constitution of the state is discernible. The constitution is more important than the government. It
makes adequate arrangement for the establishment and maintenance of restraints so that the areas of a
civilized government are well preserved. These restraints may be embodied in the legal framework, they
may also be in the form of informal arrangements. The western or liberal concept of constitutionalism
desires a ‘constitutional state’ that has a well acknowledged body of laws and conventions for the
operation of a limited government. It has a legislature, an executive, and a judiciary all required to work
within the prescribed framework by following the defined procedure. There is the rule of law ensuring
liberty and equality to all; there is the freedom of the press to act as the ‘fourth estate’; there is a plural
society having freedom for all interests to seek the ‘corridors of power’; there is a system that strives to
promote international peace, security and justice.

Marxist Concept of Constitutionalism

In a ‘socialist’ country, the constitution is not an end in itself, it is just a means to implement the
ideology of ‘scientific socialism’. It is a tool in the hands of the ‘dictatorship of the proletariat’ that seeks
establish a classless society that would eventually turn into a stateless condition of life. The purpose of
having the constitution is not to limit the powers of the government but to make them so vast and
comprehensive that the ideal of “workers’ state” is realized and ‘a new type of state’ comes into being.
The real aim of the constitution in such a country is not to ensure liberty and equality, rights and justice
for all but to see that the enemies of socialism are destroyed and the new system is firmly consolidated.
In this way, the real aim of the constitution is “to firmly anchor the new socialist discipline among the
working people.”

The socialist concept of constitutionalism is based on the principles of the particular ideology of
Marxism-Leninism according to which the state is viewed as a class institution whose purpose is to act as
an instrument of exploitation and oppression by one class over another.