MANY constitutional controversies are attributable to ambiguities over the meaning of the term “constitution.” The word derives from the Latin noun, constitutio, used by ancient Romans to denote an enacted law, and in its plural version, constitutiones, laws promulgated by the emperor. This is quite different from what we now understand as a constitution. Far from signifying a set of laws made by the ruler as an instrument of power, a constitution is now regarded as imposing constraints on those who exercise power.
This modern meaning was inspired by late eighteenth-century revolutionary achievements. Some contend that this was not an organic development but a radical break, signifying the shift from an empirical to a normative phenomenon.1 There can be no doubt that the politics of the period procured a change in the meaning of the term, and this was commonly associated with a more fundamental change in the character of the association we now call the state. But we risk distorting that modern meaning if we invest it with unjustified normative significance. It would be better to say that the traditional and modern conceptions of constitution each carry normative authority but that they draw on different sources of normativity.
Our concern is with the modern concept. But we should begin by considering the traditional idea of a constitution, not least because it is from this idea that an influential set of discourses about the character of constitutional government derives.
The practice of constitutional government long predates the modern idea of the constitution. The ancient Greeks used the term politeia to denote the constitution, though for them it was a purely descriptive term referring to the established form of political order. Politeia comprises “all the innumerable characteristics which determine that state’s peculiar nature, and these include its whole economic and social texture as well as matters governmental in our narrower modern sense.”2 In this respect, constitution simply meant the form of order assumed by a political regime.
A stronger normative inflection emerged during the Middle Ages with the formation of certain practices of governing that came to be called “medieval constitutionalism.” This label was applied to practices of “mixed government,” a term indicating that “the major interests in society must be allowed to take part jointly in the functions of government, so preventing any one interest from being able to impose its will upon the others.”3 Inspired by the works of Aristotle, this ancient idea of mixed government was restated by Aquinas and his followers primarily to strengthen the standing of representative institutions. The most secure method of avoiding arbitrary rule, they maintained, is to establish institutional arrangements that differentiate between the various functions of government.4
This argument was reinforced by early modern jurists who asserted that rulers must comply with the “fundamental law.” Resonant though it sounds, this concept was intensely contested, being inextricably bound up with the ideological struggles of the period.5 Invoked to remind rulers of their obligation to rule according to established practices, the concept mainly drew its authority from strict adherence to the ways of the past.6 These inviolable customs, the rights protected by fundamental law, in reality protected the privileges of the few. By imposing restraints on a ruler’s powers, however, they also carried within them the kernel of a more general claim that governments must act in accordance with settled law and practice. Established as the privileges of a landed class, over time these practices presented themselves as national characteristics of the governing regime.
Such a conception of constitutional government now seems thoroughly conservative. If a deviation from traditional ways is deemed “arbitrary,” then strict adherence to fundamental law imposes significant restraints on innovation. Once rulers were forced to innovate because of social and economic change, a crisis of constitutional government became inevitable. The language through which it was expressed is graphically illustrated by the fate of the Stuart kings of England. When in 1649, following civil war, Parliament put Charles I on trial, the king was charged with possessing “a wicked design totally to subvert the ancient and fundamental laws and liberties of this nation, and in their place to introduce an arbitrary and tyrannical government.” And when the Whig aristocracy stood opposed to the policies of his son, James II was deemed to have abdicated and, in an eerie echo from forty years before, was also charged with “having violated the fundamental laws.”7 The language of lawful conduct evidently remained closely wrapped up with the precepts of medieval constitutionalism.
Yet in the period between the demise of Charles I and the downfall of James II there are signs that the meaning of the term “constitution” was beginning to change. Sentencing Charles, the High Court of Justice held that he was guilty of overthrowing the “rights and liberties of the people” according to “the fundamental constitutions of this kingdom,”8 a usage quite clearly consistent with the ancient Roman meaning. By contrast, the charge sheet against James maintained that he had “endeavoured to subvert the constitution of the kingdom,” which adopts the modern sense of the term. This modern formulation had begun to make fitful appearances earlier in the century, though its invocation in 1689 marks the first time it had been used in official documentation.9
The modern formulation had appeared fitfully in English civil war pamphlets. An anonymous tract of 1643 in defense of the rights of Parliament, for example, systematically used “constitution” to mean the laws, customs, and practices that shape the political formation of the state. Entitled Touching the Fundamentall Laws, or Politique Constitution of this Kingdom, its author argues that fundamental laws not only regulate the relationship between the king and the people; they are also “things of constitution … giving such an existence and being by an externall polity to King and Subjects, as Head and Members, which constitution in the very being of it is a Law held forth with more evidence, and written in the very heart of the Republique, farre firmlier than can be by pen and paper.”10 Here, the author is plainly using “constitution” to mean much more than merely the rights and responsibilities of governing officers; it signifies the manner of the makeup of the entire polity.
In medieval usage, then, the term “constitution” commonly followed the Roman meaning, retaining a clear distinction between formal enactment and customary source.11 The seventeenth century was a period of transition in which “constitution” was used in both senses without either meaning becoming authoritative. Consequently, despite its earlier, more modern invocation, the 1653 constitution of the Commonwealth of England, Scotland, and Ireland was called “The Instrument of Government.”12 And when John Locke drafted a framework of government for North Carolina in 1669, he employed the traditional Roman usage in designating his 120 regulations “The Fundamental Constitutions of Carolina.”13 It was not until the eighteenth century in Britain that the term “constitution” was regularly employed to explain the manner and conditions of governing. And it was not until the middle of that century that the expression “unconstitutional” first made an appearance in political discourse.14
Traditional usage of the term lingered even longer in continental European regimes, with “constitution” (constitutio or Konstitution) designating a law promulgated by the Holy Roman Emperor until the late eighteenth century. By contrast, the term commonly applied to laws and customs regulating the exercise of political power remained that of “fundamental laws” (leges fundamentales or Grundgesetze).15 In France, it was Emer de Vattel who first gave it a modern meaning when, in 1758, he defined “constitution” as “the fundamental regulation (le règlement fondamental) that determines the manner in which public authority is to be executed.”16
That the early eighteenth century marks the period of transition in European discourse is exemplified by the influential essays of Henry St. John, Viscount Bolingbroke. Writing in 1733, Bolingbroke defined constitution as “that assemblage of laws, institutions and customs, derived from certain fixed principles of reason, directed to certain fixed objects of public good, that compose the general system, according to which the community hath agreed to be governed.” He goes on to explain that constitutional government is established when “the whole administration of public affairs is wisely pursued, and with a strict conformity to the principles and objects of the constitution.”17 Rationalizing the traditional while gesturing toward the modern, Bolingbroke’s definition encapsulates the sense of a term in flux.
The story of constitutional government reaches its apogee in Montesquieu’s The Spirit of the Laws of 1748. His monumental survey of the history of governmental forms employed a standard typology of the main forms of government—republican, aristocratic, monarchical, and despotic. But he was mainly concerned with explaining the principles through which they work: virtue in republics, moderation in aristocracies, honor in monarchies, and fear in despotisms. And the strength of each regime depended on the degree to which form and principle were conjoined.18
Montesquieu’s overall ambition was to discover the constitutional arrangement in which order and liberty are best reconciled. Republican constitutions might seem most likely to fit the bill, but he doubted they could realize their objectives in the modern world. Depending for their authority on the maintenance of a virtuous citizenry, republican constitutions work best in small, homogeneous, and well-integrated societies, which was not the type of world that was unfolding. Ancient republics were too small to protect themselves from external aggression, and modern republics were too big to protect themselves against internal vice.19 Accepting that “any man who has power is led to abuse it,” he maintained that the most important function of a constitution is to protect against this threat: “power must check power by the arrangement of things.”20
In pursuit of that ambition, Montesquieu concluded that there is “one nation in the world whose constitution has political liberty for its direct purpose.”21 This was that of modern England. The English constitution embodied this purpose because it provided for the distribution of power between the legislative, the executive, and the judicial: “When legislative power is united with executive power in a single person or in a single body of the magistracy, there is no liberty.… Nor is there liberty if the power of judging is not separate from the legislative power and from executive power.” These three powers must be formed so that “as they are constrained to move by the necessary motion of things, they will be forced to move in concert.”22
Montesquieu was not describing the realities of eighteenth-century English government; he was presenting what Max Weber would call an ideal type of a constitutional form that could reconcile order and liberty. In this respect, his work is the pivot between traditional practices and modern ideas, between the governing arrangements that establish a basis for constitutional government and the modern idea of constitutionalism.
The Spirit of the Laws may have taken the form of a historical study of systems of government, but its focus was on the modern world then emerging. This indicates its lasting value. Montesquieu provided us with the blueprint of a new constitutional order that is neither a classical republic nor a noble aristocracy, and certainly not a feudal monarchy. His study of the history of governmental forms and principles is directed toward outlining the essential characteristics of the modern constitutional state. In signaling this shift from traditional to modern, Montesquieu converted the medieval practices of the mixed constitution into a modern institutional template based on a separation of powers. He achieved this only by an idealized reconstruction of British constitutional arrangements, but in doing so, as Judith Shklar surmises, he effectively made “the equivalent of a first draft available to constitution-makers on a distant continent.”23
The idea of the constitution as a written text that establishes and limits the powers of government is an invention of the late eighteenth century. It was devised and implemented in North America, adopted in revolutionary France, from where it was extended to much of the European continent and subsequently across the world.
Constructed by the emerging bourgeoisie as a tool for overthrowing hereditary monarchies, the constitution became a key symbol of modernity. For liberals the struggle for a modern constitution was the great political issue of nineteenth-century Europe. “Such high expectations were attached to it,” explains Dieter Grimm, “that innumerable people were prepared to risk their careers, their property, their freedom and even their lives for it.” That process reached its culmination at the end of the First World War, when, following the collapse of European empires, the adoption of a modern type of constitution prevailed across much of the continent and subsequently extended to “parts of the world subject to European influence.”24 Such was the prestige attached to the concept that during the twentieth century even socialist states formed in revolutionary circumstances recognized the benefits of adopting it. Only in the country that inspired Montesquieu’s reflections on the virtues of constitutional government have its attractions been resisted.
Yet this synopsis conceals a more complicated history. Even before late eighteenth-century revolutionary upheavals, documentary constitutions had been adopted in many states. Some were “scraps of parchment dependent from day-to-day upon a king’s pleasure”; others were “compacts between citizens of free communities”; and between these two poles were “a welter of charters, statutes, bulls, treaty clauses, political testaments, pragmatic sanctions, manifestoes and mere undertakings that had managed to stick like burrs to the body politic on its way down the ages.”25 Often, these documents were struck off as concessions made by rulers at moments of crisis. Far from signaling comprehensive reconstruction, they were mostly mere modifications to the old order.
Even after 1789, the picture across Europe remained messy.26 In the decade that followed its revolutionary upheaval, France became an elaborate laboratory of constitutional experiment but one that culminated in Napoleon’s coup d’état of 1799 and his coronation as emperor in 1804. What followed was the conversion of much of Europe into dependent republics and subservient monarchies.27 And although the principle of the written constitution was generally accepted after the Bourbon Restoration of 1814, few nineteenth-century European constitutions were free acts of the people; in reality, they amounted to not much more than concessions wrested from authoritarian rulers. Such “legitimist” constitutions sought in effect to reestablish order while staving off the twin evils of revolution and republicanism.28 Consequently, modern constitutional democracies were not established on any significant scale until the creation of nation-states from the bowels of collapsed empires at the end of the First World War.
The basic principle of the modern constitution is that it is drafted by elected representatives of the people meeting in a constituent assembly with the purpose of establishing a regime of limited government that respects the fundamental rights of the individual. This modern type was widely instituted only in the twentieth century. It was commonly drafted at moments of crisis when discontent was being expressed not just about the character of the ruler but also about the entire system of rule. The constitution thus sought to rejuvenate the political life of the nation on new founding principles.
Like the early modern proponents of fundamental law who argued that the commonwealth was based on some original contract by which the people bestowed a limited authority on the ruler,29 the drafters of modern constitutions also gained inspiration from the works of social contract thinkers. But whereas the former sought to restore some mythical ancient constitution,30 the latter looked to the future for the realization of their ambitions. And whereas the former invoked natural rights to measure the legitimacy of the law, the latter sought to convert ideal principles into positive constitutional law.
This last innovation has had the most profound impact. The enactment of a modern constitution inscribed a hierarchical principle in the legal order. Whereas law had once been defined as the commands of the sovereign authority—in the ancient meaning, the ruler’s “constitutions”—those commands were now subservient to the rules of the constitution. Once the constitution determines the competencies of the institutions of government, including those of the law-making power, then that law-making power must ipso facto be limited. And to be effective, that constitution must be legally binding.
The modern constitution takes effect as fundamental law. Promulgating a set of norms about the legitimate scope of norm-making, it takes precedence over all other forms of law. Once this principle is established, so too is the principle of constitutional jurisdiction. That is, the judiciary is entrusted with the responsibility of acting as “guardian of the constitution.” In Montesquieu’s worldview, the judges were “only the mouth that pronounces the words of the law, inanimate beings who can moderate neither its force nor its rigor.”31 Once judges acquire the power of review to nullify the effects of laws made by the legislature on the basis that they infringe the rules and principles of the constitutional text, however, their role is transformed. In effect, the judiciary emerges as a new type of political actor.
These juridical innovations show why the modern idea of the constitution is not simply a rationalizing mechanism, a device by which the terms of legitimate governing are specified in documentary form. This innovation marks a much more fundamental shift in the foundations of political authority. The constitution, no longer regarded as an inheritance, is now the product of momentous decision, a decision by “the people” who by an act of “constituent power” have authorized the very terms by which they are to be governed. It is at this moment, when the people are acknowledged as the ultimate source of constitutional authority, that “the state” acquires its modern meaning as the regulatory idea in which the people of a defined territory, through its established apparatus of rule, governs itself.
This modern worldview distinguishes between public and private, between what is of collective interest and what remains a matter of private responsibility. The boundary between public and private remains one of continuous contestation that cannot easily be resolved by constitutional texts. But having brought new clarity and precision to the forms of government, the modern constitution leads to that issue gradually being fought out through competing theories of constitutional interpretation.
It is tempting to treat the modern constitution as marking a clean break with the traditional idea of a constitution as an evolving set of customary practices. Yet this cannot be assumed. The constitution might proclaim that the state’s authority rests on a body of general liberal democratic principles inscribed in that text, but the constitution itself cannot guarantee their realization. The degree to which those principles are made real depends on the extent to which dominant political actors accept that the constitution has normative force.
This explains why idealized normative claims made of the constitution have often been met with skepticism. In the 1790s, a powerful attack on the entire enterprise was launched by the French counter-revolutionary thinker Joseph de Maistre. Pondering over the essential features of the constitution specified in what he called Paine’s “evil book on the rights of man,” he declaimed that “it would be difficult to get more errors into fewer lines.” The belief that “a constitution can be made as a watchmaker makes a watch,” he asserted, was one of the greatest errors of Enlightenment thought, not least because “the constitution of a nation is never the product of deliberation.”32 For de Maistre, the break marked by such an exercise in reconstitution could never establish anything new; at best, it could only amount to a formal declaration of rights that were already present within the regime.
These arguments were controversial, not least because they were tied to his firm belief in divine power and an objective sense of the good. But even without the theology, his arguments have force. The constitution of a state, de Maistre was arguing, expresses the political unity of a people, a sense of unity that is revealed through the actual practices of governing rather than in the formal rules and principles of some text.
Similar arguments were made by Edmund Burke and G. W. F. Hegel. Burke also defends the traditional conception of the constitution as a set of customary practices, though he does not grant it authority merely because of its longevity. Claiming that any constitution must derive its authority from the good outcomes it produces, he maintains that a constitution most worthy of respect has proved its value over many generations. In a metaphor also adopted by de Maistre, he suggests that “an ignorant man, who is not fool enough to meddle with his clock, is however sufficiently confident to think he can safely take to pieces, and put together at his pleasure, a moral machine of another guise, importance and complexity, composed of far other wheels, and springs, and balances, and counteracting and co-operating powers.”33
Recognizing the value—indeed the necessity—of continuous innovation, Burke sees the importance of constitutional renewal while ruling out the possibility of radical change.34 Hegel makes a similar claim, stating that it is impossible to “make” a constitution because, properly understood, a constitution “only develops from the national spirit.”35 Adhering to the traditional conception of a constitution, these writers emphasize that a political constitution must continue to evolve, just as the way of life of “a people” or “a nation” evolves. Constitutions, they maintain, can no more be made than language is made.
There is a core of good sense in Burke and Hegel’s arguments. We need only consider Germany’s first experiment in social democratic constitution-making following its defeat in the First World War and the abdication of the kaiser. On paper, the Weimar Constitution of 1919 is a social democratic model from which many states have subsequently borrowed. But in the turbulent political and economic conditions of the 1920s, it spectacularly failed to establish its authority. Destined to be an idea seeking to become a reality, the constitution appeared to have established a republic without republicans, a constitution without constitutionalists, and a democracy without democrats—at least in sufficient numbers to establish its authority as a constitutional and democratic republic. And thirteen years later, following Hitler’s appointment as chancellor in 1933, it was entirely subverted through constitutional means. In 1967, the German jurist, Ernst-Wolfgang Böckenförde, wrote, “The liberal, secularized state draws its life from presuppositions that it cannot itself guarantee.”36 Widely debated in German constitutional circles, the Böckenförde dictum expresses the critical point that de Maistre, Burke, and Hegel had earlier emphasized.
The evolution of the term, we might conclude, shows that traditional and modern conceptions of a constitution have different meanings and orientations and draw on different sources of normative authority. The traditional focuses on the ethos of a people, the modern on the will expressed in their power to make a constitution. The traditional draws its authority from continuity with the past, while the modern marks a rupture and looks toward the future. As the pace of social, economic, and technological change accelerates, the authority of the traditional conception diminishes. But in seeking to break with the past, the modern is obliged to acknowledge that it cannot establish its authority unless its subjects, many of whom have absorbed the earlier traditions, accept its proclaimed principles.
Yet criticism of the modern idea of the constitution does not just come from traditionalists. It has also been critiqued by radical scholars who attribute the invention of this new piece of political technology to underlying changes in economic power relations. In the nineteenth century, such claims were powerfully advanced by Henri de Saint-Simon, Lorenz von Stein, and Ferdinand Lassalle, who in their various ways all argued that constitutional innovation was a mere surface phenomenon and that the real basis of the constitution was the material conditions of society and its system of property relations.37 And in the early twentieth century, exponents of the new discipline of political science explained this innovation as a method of legitimating changes in coercive political power relations that were leading toward centralization, unification, and uniformity.38
Such materialist critiques might be important, but they cannot fully capture the significance of this change. The emergence of the modern constitution cannot be satisfactorily explained without going beyond material factors and considering change in symbolic representation. Such changes are brought about not only by developments in the means of production or in the techniques of coercion but also in the methods of interpretation and techniques of ideological reproduction.