CONSTITUTIONALISM is a method by which we shape a cluster of beliefs and cultural symbols into a meaningful arrangement, thereby making it available for purposive action. In this respect, like liberalism and nationalism, constitutionalism is an ideology.1 The ideology of constitutionalism was a key element of eighteenth-century Enlightenment philosophy, becoming the driving force of liberals for whom the struggle to establish a constitution was the great political issue of the nineteenth century. Their aspirations have been eloquently expressed by Giovanni Sartori. Arguing that the struggle was not just for a document recording the basic form of government, he maintains that what these popular movements were demanding was clear. For them, the constitution meant “a fundamental law, or a fundamental set of principles, and a correlative institutional arrangement, which would restrict arbitrary power and ensure a ‘limited government.’ ”2 Following its invention in the late eighteenth century, the constitution became intrinsically linked to the ideology of constitutionalism.
From this enlightened perspective, “constitution” is an evaluative notion incorporating the positive and highly emotive properties of freedom, justice, and democracy. In the century following its invention, Sartori argues, this normative conception was well understood and widely accepted. A constitution, in this sense, contains two essential elements: a framework of government and a charter of rights. Any document establishing a framework of government without such a charter is not a constitution. Critical to the concept is its purpose, its telos, which is to protect basic liberties. The institutional arrangements of government must therefore be so configured as to secure their protection, an arrangement reinforced by defining those liberties in a charter. Once that purpose is apparent from the institutional arrangement, the constitution can be established as the fundamental law. The very concept of the constitution, he maintains, incorporates this essential garantiste element.
During the early decades of the twentieth century, Sartori argues, this accepted understanding of the constitution was lost. One reason is due to the growing influence of legal positivism in late nineteenth-century European jurisprudence. Continental jurists, “anxious to put their rationalistically trained juridical consciences at ease by finding a ‘universal’ definition of constitution,” found it expedient to separate the universal trait—the form of government—from the garantiste component. Once adopted as a matter of legal science, “constitution” became detached from constitutionalism. The impact of this rupture was reinforced by the political changes of the 1920s. In this environment, so-called feeble politics gave way to intense politics or, from a different angle, “the peaceful-legalitarian approach to political relationships was giving way to a warlike view of politics.” Political terminology became abused and corrupted, and the concept of a constitution was converted into an ambiguous term with two very different meanings.3
Sartori might be right about the significance of the political changes of the early twentieth century, but he fails to explain that what he calls the era of “intense politics” was also the period when European regimes were democratized. This development throws into relief the ambivalent relationship between constitutionalism and democracy. Constitutionalism—and constitution in Sartori’s understanding—is exposed as a bourgeois liberal ideology that protects established rights against the will of enfranchised majorities. A constitution, he explains, “is neither an arbitrary stipulation, nor something to be discovered in the ‘popular mind’ of semi-literate majorities.”4
The objective of Sartori’s study is to restore the bond between the term “constitution” and the ideology of constitutionalism. He emphasizes that the term must have a precise normative meaning, revealed by historical experience combined with rational argument. Warning us not to confuse a homonymy with a homology, “the noun with the concept, or … the Latin constitutio with our ‘constitution,’ ” he claims that the modern meaning of the word only begins in the eighteenth century when “constitution” begins to stand for the principle of “limited government.” The term “was re-conceived, adopted and cherished not because it merely meant ‘political order,’ but because it meant much more, because it meant ‘political freedom.’ ”5 Constitution refers to the adoption of a framework of government organized through law for the purpose of restraining the exercise of arbitrary power.
Because the twentieth century brought confusion leading to the loss of the constitution’s normative meaning, adjectival qualifiers must apparently now be appended. Sartori distinguishes between three types: garantiste, nominal, and façade constitutions. Only the former is a constitution properly so called. Nominal constitutions simply express the form of government of a state; they organize but do not restrain the exercise of political power. They simply describe the system of government. Façade constitutions are even more dangerous. Offering no reliable guide to how power is actually exercised, they are merely for show. Since their garantiste aspects are ignored, the regime might have adopted a constitution, but it will lack the practice of constitutional government.6 So too, Sartori suggests, does a regime with a nominal constitution. If that constitution confers arbitrary powers on the government, then a law-governed regime has not been established. Constitution without constitutional government is meaningless.
Writing in the 1960s, Sartori was warning that contestation over the very concept of “constitution” meant losing sight of its precise normative connotation. Whenever the term loses its link to constitutionalism, it is corrupted.
The modern idea of the constitution, Sartori argues, was prescribed by the Enlightenment philosophy of constitutionalism. Its overriding purpose was to protect and promote individual liberty by ensuring that the coercive powers of government are strictly confined. The method of achieving this objective has been to adopt a constitution that ensures that governing authorities act in accordance with known general rules. By virtue of institutional design, we establish a “government of laws, not of men.”7 Constitutionalism thus seeks to preserve individual liberty by promoting “the rule of law.”
But the rule of law is a highly ambiguous notion. Coined during the nineteenth century and extolled by Albert Venn Dicey as a defining characteristic of the British constitution, the term was invoked to explain the importance of certain English governing practices that run counter to the modern idea of the constitution. Acknowledging that the rule of law expressed such liberal principles as equality before the law and the necessity of promulgating law as general rules of conduct, Dicey also emphasizes that it was the distinguishing feature of Britain’s unique and superior constitutional arrangements.
The great strength of the British constitution, he explains, is that its general principles are the product of “judicial decisions determining the rights of private persons in particular cases.” Its unique character rests on the fact that it is a “judge-made constitution,” that its principles are generalizations inferred from judicial decisions and that, contrary to the modern constitution, in which rights are assumed to derive from the text, these rights are inductions that are “inherent in the ordinary law of the land.” These practices might not have been codified in a document specifying “those declarations or definitions of rights so dear to foreign constitutionalists” but that it had evolved and “gradually framed the complicated set of laws and institutions we now call the constitution” conferred distinct benefits. Obliged by the stress of circumstances to advocate a modern constitution, foreign constitutionalists had become preoccupied with specifying rights in texts and were insufficiently attentive to the necessity of ensuring effective remedies. The English Habeas Corpus Acts, by contrast, might “declare no principle and define no rights, but they are for practical purposes worth a hundred articles guaranteeing individual liberty.”8
Dicey recognizes that maintaining a close link between rights and remedies need not be inconsistent with the adoption of a modern constitution. The problem arises because once rights are felt to exist only when declared in a written document, they can all too easily be suspended. Where, by contrast, “the right to individual freedom is part of the constitution because it is inherent in the ordinary law of the land, the right is one that can hardly be destroyed without a thorough revolution in the history and manners of the nation.”9 Adherence to the traditional idea of a constitution, he concludes, offers the best guarantee of rights protection.
These ambiguities are compounded when one compares the analogous German concept of Rechtsstaat. This concept came into common usage during the first half of the nineteenth century but in rather different political circumstances. In most Continental countries, explains Friedrich Hayek, “two hundred years of absolute government had, by the middle of the eighteenth century, destroyed the traditions of liberty.” By the time liberal ideas of governing according to law had developed into a political movement, a powerful centralized administrative machinery had already been built, and this “bureaucracy concerned itself much more with the welfare … of the people than the limited government of the Anglo-Saxon world either could or was expected to do.”10 The concept of Rechtsstaat was invented by German jurists to reconcile modern demands for individual liberty with an already established tradition of authoritarian government.
The liberal idea of Rechtsstaat was inspired by the work of Immanuel Kant. In his Rechtslehre, Kant argues that the three basic powers of the state—legislative, executive, and judicial—can be likened to the three propositions in a practical syllogism. The major premise expresses the law enacted by sovereign will, the minor premise comprises the executive command to act according to the law, and the conclusion contains the legal judgment as to the rights and wrongs of each particular case. Kant’s claim is that legislative and executive acts are mere sources of law: “true” law was to be found in the synthesis of judicial decision.11 He, in effect, offers a rationalized sketch of the underlying logic of what was later to be Dicey’s account of the rule of judicature. But the practical challenges facing German jurists were far removed from Kant’s idealized presentation.
These challenges led to competing conservative and liberal expressions of the Rechtsstaat principle. The conservative version sought only to ensure that the state is organized according to formal rational principles; it was therefore open to the criticism that Rechtsstaat principles were simply placing the cloak of legitimation around an authoritarian regime. Liberals, by contrast, argued that rational organization of the state was not sufficient; its policies and practices must also ensure the protection of liberty, security, and property.12 Tensions between these variants came to a head in the 1848 revolution. The Paulskirche national assembly, which proposed a modern constitution, saw the Rechtsstaat as the embodiment of Enlightenment constitutionalism. But following the failure of that movement, the idea of the Rechtsstaat that circulated during the latter half of the century became an ambiguous compromise between liberalism and monarchical authoritarianism.
The basic values of the Rechtsstaat were further compromised by the growing dominance of legal positivist jurisprudence. In this, the state was conceived as a legal person embodying sovereign authority, an idea anathema to any notion that rights-bearing individuals might impose limits on the state’s authority. Once rights were regarded as the creation of objective law, the concept of the Rechtsstaat became subsumed in a broader concept of Staatsrecht. The Rechtsstaat principle thus implied only that the state and its agencies must act in accordance with the promulgated rules. To the extent that a broader, liberal conception lived on in German jurisprudence, it could only take the form of political aspiration.13
A further important distinction must be drawn between common law and continental conceptions. For Dicey, the rule of law means the rule of ordinary law: equality before the law means equal subjection to one law equally administered by the ordinary courts. It means that “every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen.”14 However, throughout continental Europe, officials were subject to an evolving administrative jurisdiction rather than accountable to the ordinary courts. This was justified on the grounds that “disputes over administrative acts require a knowledge both of branches of law and fact which the ordinary judge … cannot be expected to possess.” But it was also believed, explains Hayek, that “disputes about the lawfulness of an administrative act cannot be decided on as a pure matter of law, since they always involve issues of government policy or expediency.”15 For Dicey, this continental notion of administrative law “rests on ideas foreign to the fundamental assumptions of our English common law, and especially to what we have termed the rule of law.”16
It was already apparent at the time he wrote that Dicey had grossly underestimated the extent to which Continental administrative jurisdiction had been regularized as a special system of law.17 Yet he resolutely stuck to his argument long after the emergence of evidence contradicting his claims. He also held on to his romanticized beliefs in the constitutional value of the rule of law long after he admitted they no longer matched the governmental conditions of his time. In his lectures on law and public opinion in England, published twenty years after Law of the Constitution, he charts a shift from the era of individualism (1825–1870) to collectivism (1865–1900). He characterizes this as one of steady decline in which “faith in laissez faire suffered an eclipse,” and the mechanisms for protecting individual liberty were eroded.18 In the extended introduction to his last edition of Law of the Constitution in 1915, the implications of this for the rule of law became clear. Veneration of the rule of law, he concludes, is now suffering “a marked decline” because English law is being “officialised” by legislation passed under the influence of “socialistic ideas.”19
Dicey had to concede that the rule of law, that genius of traditional English constitutional practice, was being undermined by structural changes in government. Only modern constitutional reconstruction could preserve the values that the rule of law sought to uphold. Dicey poured scorn on the benefits of modern constitutional arrangements, on charters of rights and jurisdictions that sought to establish a liberal Rechtsstaat. But this could not prevent an emerging liberal consensus that in the modern world of democratic government this was the sole means of promoting constitutionalism.
Montesquieu’s great achievement was to have based the justification for modern liberal government on an institutional doctrine concerning the need for separated powers. This doctrine had a profound influence on American and French revolutionaries. Having asserted that all political power emanates from the people, their revolutionary task was to design a system of government on the principles of delegated authority and the accountability of officeholders to the people. The republican solution was the doctrine of the separation of powers. But revolutionaries soon found that the apparent simplicity of this doctrine was deceptive.
Separation of powers had been devised as the alternative to the idea of mixed government. Mixed government, a central theme of what had been called “medieval constitutionalism,” was the idea that the institutional arrangements of government should ensure that all major interests in society were represented. Revolutionaries rejected this on the ground that it would mean the retention of power by monarchical and aristocratic factions. Being antithetical to republicanism, mixed government was off the agenda.
Some in the revolutionary vanguard did suggest establishing a regime of balanced government rather than a strict separation of powers. But their proposals were opposed by republicans who felt that the idea that institutions of government would provide a series of checks and balances on one another effectively introduced an aristocratic principle into modern constitutionalism. In postrevolutionary debates, these theories of balanced government and separation of powers presented themselves as rivals for the mantle of American constitutionalism.
In 1776, the doctrine of the separation of powers represented republicanism in its purest form. It expressed a new type of constitutional design that, rather than being inherited from the traditions of British government, was devised to accord with first principles. Separation of powers arose from the principle that governmental power must be susceptible to control by the people. Each branch of government—legislative, executive, and judicial—must acquire its mandate from the people, each must keep within its constitutionally conferred powers and, since they acquired authority from delegation by the people, each must be elected and subject to regular recall.
This doctrine was enunciated in several state constitutions and declarations of the period. In 1776, the framers of the Constitution of Virginia, for example, declared: “The legislative, executive and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belong to the other: nor shall any person exercise the powers of more than one of them at the same time.”20 Yet this constitutional theory was soon superseded by the idea that instead of complete separation, a constitutional order should establish a system of checks and balances.
The main problem with the separation of powers doctrine was to determine the limits of legislative power. Legislative power was to be supreme in that its decisions could not be challenged by any other institution of government. But it was also accepted that, if constituent power was vested in the people, the legislature exercised a delegated power that must necessarily be limited. It was, after all, in opposition to the British assertion of the absolute legislative authority of the Crown-in-Parliament that American independence was asserted. How, then, might a supreme but limited legislature be constituted?
The solution was the theory of checks and balances. Balancing the three powers against one another would prevent arbitrariness in government and secure liberty. The theory was developed by the Federalists in opposition to the republican theory of separation. It is most clearly articulated by Madison in Federalist 47, who notes that one of the republican objections to the 1787 Constitution was its supposed violation of the separation of powers. That objection arose because, in the Constitution, the several departments “are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form,” and this exposes some parts of the edifice to “the danger of being crushed by the disproportionate weight of the other parts.” Madison avers that this notion of strict separation misconstrues Montesquieu’s argument, whose true meaning was that “where the whole power of one department is exercised by the same hands which possess the whole power have another department, the fundamental principles of a free constitution are subverted.”21
The critical disagreement was over judicial review. In the republican doctrine of the separation of powers, no one branch has the authority to intervene in the functions of another. On this basis, judicial review, like the power of the executive to veto legislation, is impermissible. The principle of separated powers is therefore a necessary but not sufficient basis for the doctrine of judicial review. As Hamilton explains in Federalist 78, judicial review can be justified only by modifying the doctrine of a pure separation of powers according to the Federalist principle of balanced government. If the Constitution is to be established as higher-order law, it seems incumbent on the judiciary to disapply or refuse to enforce laws that conflict with the Constitution. Tellingly, such a principle is not universally accepted by modern regimes establishing constitutions on the principle of the separation of powers.
The federal Constitution of 1787 represented the victory of the theory of the balanced constitution over the republican doctrine of separation of powers.22 The American model established a moderated system of separated powers reinforced by checks and balances built into the Constitution. During the early nineteenth century, this was contested by Jeffersonian republicans asserting that the balanced constitution introduced elements of restraint that, independent of popular power, could yet impose restrictions on the direct representatives of that power. Republicanism, Jefferson had explained, meant the control of the people over their government, and mechanisms like judicial review were incompatible with a republican constitution that affords each branch of government equal power. If the people are the only legitimate agency of control, all branches of government must be popularly elected and subject to regular recall.23 This debate rumbled on; it was not until after the Civil War of the 1860s that the Federalist principle could truly be said to have triumphed.
The American experience of constitutional design can be contrasted with the French. In the American case, the main objective had been to break from the authority of the British Crown, resulting in the adopted Constitution bolstering an already-established social order. But the purpose of the French Revolution had as its much more radical aim the eradication of the old order in its entirety. The Declaration of the Rights of Man and the Citizen had enunciated the principles on which the new order was to be established, albeit with juridical implications that then were only latent. With respect to constitutional design, Montesquieu’s doctrine of the separation of powers was also a powerful influence, evident in the Declaration, announcing in Article 16 that “any society in which the guarantee of rights is not assured, nor the separation of powers secured, has no constitution.” But unlike in the United States, Rousseau’s ideas were equally important. Law, he argued, is an expression of the general will, by which he meant a “common interest” that unites the sovereign people. This sovereign will of the people is exercised through legislative power. Rousseau recognized that the executive powers of government could and should be differentiated, and also that legislative power is absolute and inviolable.24 He therefore rejected theories of balanced government if that meant that institutions were invested with the power to check the legislature. And this meant that Montesquieu’s theory could only be accepted in its pure republican form.
Rousseau’s ideas on popular sovereignty had a powerful influence on French revolutionary thought, though with the significant modification that in a modern state—unlike Rousseau’s ideal of a small city republic—power had necessarily to be exercised by a representative assembly. Emmanuel-Joseph Sieyes, the main architect of this modification, accepted that, as the sovereign power, the nation “cannot alienate or prohibit its right to will” but must entrust this power to its representatives. Sieyes distinguished between two categories of power: the legislative power to make laws and the constituent power to determine the constitutional form of the state. The nation is the source of that power in both cases, but the ability of “extraordinary representatives” acting as “a surrogate for an assembly of that nation” to make the constitution must be differentiated from the ordinary representatives of the people who are “entrusted with exercising, according to constitutional forms, that portion of the common will that is necessary for good social administration.”25
In other respects, Rousseau’s influence prevailed. French courts were not invested with the power to review legislation, nor could the civil courts engage in the review of administrative action.26 But the authority of these republican constitutional arrangements proved difficult to establish in the postrevolutionary context. After a turbulent decade, the path was prepared for the imperial ambitions of Napoleon.
Following Napoleon’s downfall, theories of balanced government were entertained, most notably in the Charte of 1814 and through the influence of such jurists as Benjamin Constant, Pierre Royer-Collard, and François Guizot.27 But the basic principles of constitutionalism that continued to be debated in nineteenth-century France were then threatened by social, economic, and political changes. Leading to the extension of democracy and the growth of governmental powers, these changes undermined the authority of the principles of both the separation of powers and balanced government.28 In the process, the Enlightenment philosophy of constitutionalism, so influential with late eighteenth-century revolutionaries, came to be seen as the philosophy of an earlier era with little relevance to a new world of administrative government.
The coming of democracy in the twentieth century gave rise to what Sartori called “intense politics” and Dicey the “era of collectivism.” In this world of party government organized through the administrative delivery of public services, constitutionalism seemed an obsolete eighteenth-century philosophy. Born of the conflict between the emerging liberal bourgeoisie and absolute monarchy, its attempt to establish limited, law-bounded, and liberty-preserving government through the medium of institutional design seemed singularly unsuited to contemporary requirements.
It had long been accepted that the republican doctrine of the separation of powers could only work when governmental functions were restricted to defense, law and order, and the preservation of individual liberty. But as social conditions rapidly changed, so had the essential constitutional task. The challenge was no longer to fix the boundaries of a preexisting hierarchically ordered regime; it was to create conditions that could enable a democratic regime to flourish. In this environment, the range of governmental responsibilities extended greatly, transforming the task of maintaining a balance between legislature, executive, and judiciary. Founded on the assumption that the legislature posed the greatest threat to liberties, the ideology of constitutionalism was upended when the so-called executive branch—the government—began to absorb many of the tasks of the other two. The two pillars of classical constitutionalism—separation and balance—had been erected on foundations of sand.
The task of subjecting government to law was also affected. The driving principle of the Rechtsstaat had force when the powers of the executive were limited by a legislature formed as a representative assembly of the people. But when the executive was also established on popular lines and, especially in parliamentary systems, came to control the legislature, restraints on governmental action diminished. Even Dicey’s paean to the common law rang hollow: the rule of judicature, he suggested, could not be undermined without a revolution in “the history and manners of the [political] nation.” This is precisely what the coming of democracy brought about.
Constitutionalism, in short, was the expression of a bourgeois liberal philosophy of governing that could not survive the age of mass democracy. In his defense of the ideology in the 1960s, Sartori acknowledges that assumptions about the fixity of its written form had to be revised. In an age of interpretation, the idea of the “living constitution” had to be acknowledged but provided the telos of the document was maintained, constitutionalism could be adapted to these new circumstances. But Sartori was very concerned about more recently adopted constitutions. These, he argues, are invariably “bad constitutions technically speaking” in that they include “unrealistic promises and glamorous professions of faith on the one hand, and numberless frivolous details on the other.” Most importantly, some are “so ‘democratic’ that … they are no longer constitutions,” because the constitution must limit “the ‘will of the people’ concept of democracy just as much as it limits the will of the power holders.”29
Sartori was not alone in this assessment. During the twentieth century, the belief that the rise of democracy signaled the decline of constitutionalism was widespread.30 Given the recent ubiquity of constitution-making, this might suggest that the constitution, having lost its historic purpose of limiting power, now merely performs the function of legitimating power. But is it possible that constitutionalism has been able to survive the era of mass democracy by jettisoning its classical doctrines of institutional design and reinventing itself? Just as the meaning accorded to political freedom changes with each age, so too might the meaning of constitutionalism. Can the ideology of constitutionalism evolve and engage effectively with the challenge of specifying conditions of legitimate rule in the era of big government? This is the issue that is taken up in Chapter 4, but first the nature of the political association that the constitution aspires to regulate must be considered.