More than at any other time in modern history, the place of the constitution in the political and social life of the nation has become a matter of intense interest. No longer merely a document that establishes the framework for government, we look to the constitution for answers to our most intractable political controversies. Yet how can a document drafted at a specific moment in time, generally in exceptional circumstances, serve as an enduring symbol of the collective identity of the people? The answer is not obvious, but the theory of constitutionalism provides the key.
The problem is that constitutionalism, though often extolled, is rarely defined. It certainly expresses a belief that order, freedom, and justice are best promoted in a regime whose main characteristics are defined by a founding text elevated above the ordinary cut and thrust of politics. Beyond that basic assumption, its meaning remains obscure. The few works devoted to the study of constitutionalism invariably concede that the theory is “evocative and persuasive in its connotations yet cloudy in its analytic and descriptive content.”1
Given how much has been written about other ideologies that occupy a central place in modern political and legal thought, this is a surprising gap. Compare, for example, the many studies devoted to nationalism, conservatism, liberalism, and socialism. Aspirations commonly associated with constitutionalism are, of course, easy to identify and have been much analyzed. Crucial elements are those of imposing curbs on the exercise of arbitrary power, advancing “the rule of law,” establishing a regime of limited government, and ensuring that the citizen’s basic rights are protected. But having paid lip service to these primary objectives, studies of constitutionalism tend to veer off in various directions, conflating constitutionalism with constitutional government, with a medley of liberal values, or simply with having adopted a modern type of constitution.2
This protean quality might serve the interests of its many advocates, but it must surely leave others dissatisfied. The apparent ubiquity of its professed ideals now renders the concept alarmingly vacuous. Constitutionalism was first formulated in the eighteenth century as an expression of the values of those who aspired to overthrow regimes of arbitrary rule and set in place a system of limited government that maximized individual liberty. But far from lingering on as a set of rhetorical tropes of increasing irrelevance to today’s challenges, it has continued to evolve in ways not contemplated by those eighteenth-century aspirations. Constitutionalism is now an over-powerful theory of state-building, rapidly becoming the world’s most influential contemporary philosophy of government.
These developments demand that the concept be subjected to close critical analysis. This is the main objective of this book, but it is not the only one. I propose to show that constitutionalism is not some vague amalgam of liberal values but a specific and deeply contentious governing philosophy. Constitutionalism has become the primary medium through which an insulated elite, while paying lip service to the claims of democracy, is able to perpetuate its authority to rule.
It is accepted that modern democracies are sustained by institutions through which popular opinion is sifted, refined, and converted into effective policy and action. That is the chief feature of constitutional democracy. The burden of my argument will be to show that, contrary to the claims of many, constitutionalism should not be equated to constitutional democracy. Arguing that constitutionalism is an aberrant mode of governing that must be overcome if faith in a constitutional democracy is to be maintained, this book makes the case for constitutional democracy against constitutionalism.
This is not written as a direct assault on the citadel of contemporary constitutionalism. My method has been to show how constitutionalism was constructed and how it has evolved so that the weaknesses of its foundations are exposed. This requires me to situate constitutionalism within an account of the development of modern constitutional thought. To that end, I divide the work into three distinct parts. The first part shows that constitutionalism in its classical formulation is incompatible with the demands of modern government. The second indicates how, despite being widely conflated with constitutional democracy, the two are structurally dissonant philosophies. The third, which analyzes the contemporary significance of constitutionalism, explains how it has recently undergone a remarkable transformation and now exerts a worldwide influence that is as powerful as it is contentious.