The essence of constitutionalism in a democracy is not merely to shape and condition the nature of majorities, but also to stipulate that certain things are impermissible, no matter how large and fervent a majority might want them ~ George Will
History
With the coming of the 17th century, an abrupt paradigm shift happened in the arena of political philosophy, marked by the inception of the French Enlightenment. With the coming of the French Enlightenment, came the liberal political thinkers led by the likes of John Locke and J Stuart Mill.
One of the most distinctive, or salient features of political liberalism is emphasizing a strong faith in the idea of a limited constitutional government or Constitutionalism. Though the ideology of Constitutionalism is often associated with the liberal thinkers of the French Enlightenment, its roots can be traced way back to the Magna Carta of 1215. In a strict sense, there is no interconnection between Constitutionalism and the Magna Carta; however, if one traces the political traditions since 1215, they will surely find a proto-constitutionalism envisaged through the Magna Carta proclamation.
As the itinerary moves ahead, the French Revolution in the year 1789 also becomes a landmark event, marking a transition from an ancient idea of Constitutionalism to a more modern and liberal notion of Constitutionalism. The famous trident of civil liberties from the French Revolution, “Liberty! Equality! Fraternity!” became the guiding light for the idea of Constitutionalism for many years to come.
Ideas & Principles
Constitutionalism, in the most unembellished words, can be perceived as the ideology behind the Constitution; however, the former and latter don’t necessarily go hand in hand every time. For example, a country with a dictatorship, where the dictator’s word is the law, can be said to have a constitution, but not constitutionalism.
Constitutionalism essentially is more than just having a set of rules and the law of the land. It not only recognizes the need of the government but also insists upon the limitations and restrictions to be placed upon the powers of the government; to skew down the chances of arbitrary exercise of executive and political powers by those in the government.
This idea brings with it a host of vexing questions not only to legal scholars, but to anyone keen to explore the legal and philosophical foundations of the state. How can a government be legally limited if the law is the creation of government? Does this mean that a government can be ‘self-limiting’? Is this even possible? If not, then is there some way of avoiding this implication? If the meaningful limitation is indeed to be possible, perhaps constitutional constraints must somehow be ‘entrenched’, that is, resistant to change or removal by those whose powers are constrained? Perhaps they must not only be entrenched but enshrined in written rules. If so, how are these rules to be interpreted? In terms of their original, public meaning or the intentions of their authors, or in terms of the, possibly ever-developing, values, and principles they express? [1]
To reach the logical end of such an erudite philosophical quagmire, firstly, we need to develop an understanding of the meaning and significance of constitutionalism.
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Significance
Constitutionalism, in a narrower sense, is the practice of restricting the government by putting into existence a constitution. Constitutionalism, in this milieu, can be said to exist when constitutional rules effectively constrain government institutions and political processes. Constitutionalism connotes, in essence, a limited government or a limitation of government. Thus, in Hegelian vocabulary, we can say that constitutionalism is the antithesis of arbitrary powers. [2]
Constitutionalism tries to weave a realistic narrative that unlimited powers may jeopardize the freedom and liberty of the hoi polloi, or the masses. As Lord Acton has rightly said that power corrupts, and absolute power corrupts absolutely. [3]
The very underlying principle of constitutionalism is that if the constitution confers unrestrained power on either the legislature or the executive, it might lead to an authoritarian and oppressive government, which may subsequently lead to political despotism. More broadly, constitutionalism refers to a set of political values and aspirations that reflect the desire to protect liberty through the establishment of internal and external checks and balances on governmental power. It is typically expressed in support of constitutional provisions that establish this goal, notably a codified constitution, a bill of rights, separation of powers, bicameralism, and federalism or decentralization. Constitutionalism is thus a brainchild of political liberalism. Therefore, constitutionalism is not a self-defining notion, rather an umbrella concept comprising various other liberal ideas.
Features of Constitutionalism
One of the most indispensable features of constitutionalism is having a constitution, or more importantly, a written constitution. A written constitution codifies the significant powers and responsibilities of various institutions under the head of government within a single document.
However, having a written constitution is not a necessity; an uncodified constitution, like in the case of the United Kingdom, may also serve the purpose of constitutionalism, which is to limit the arbitrary powers of the executive.
In a nutshell, the Constitution means “a written organic instrument, under which governmental powers are both conferred and circumscribed” and where “this stress upon grant and limitation of authority is fundamental.” [4]
Now the question that arises out of the above-discussed argument is, how does a constitution pave the path for realizing the goals of a limited and accountable government?
The powers of a government can be restricted and limited only by the mechanism of institutional checks and balances. Such an apparatus can be contrived by applying the doctrine of Separation of Powers. This idea is believed to be firstly thought by the French philosopher, Montesquieu. [5]
This doctrine reflects the opinion that the Executive, the Legislative, and the Judicial functions of a government should be exercised by three crucial but independent organs of the state.
The most subjacent idea originating from the doctrine of Separation of Powers is the existence of an independent judiciary.
Judicial independence is a cornerstone of constitutionalism. As one of the main goals of constitutionalism is to limit the arbitrary powers of the government and to make it legally accountable before the law of land, submitting the performance of public functions to the scrutiny of an independent body i.e., the judiciary, ensures the supremacy of the law and represents a fundamental step in building an accountable state. [6] Faith in the judiciary is of prime importance. India is a free nation. Among such people, respect for law and belief in its constitutional interpretation by courts requires an extraordinary degree of tolerance and cooperation for the value of democracy and survival of constitutionalism. [7] And, to foster such faith by the people in the judiciary, it is very important for the judiciary to exist independently, devoid of any kind of prejudice and bias.
Another cardinal instrument for realizing the goals of constitutionalism is the doctrine of the Rule of Law. Rule of Law, in most simpler terms, can be understood as that the law is supreme. No one is above law; not even the government. According to AV Dicey, rule of law envisages the following:-
- No one is punishable except for a distinct breach of law established in the ordinary legal
manner before the ordinary courts of the land;
- No person is above the law;
- Courts play a vital role in protecting the rights of individuals. [8]
The very first postulate of the doctrine of Rule of Law is pertinent to the Principle of Legality. In other words, if a certain category of behavior is not criminalized by the lawmaking organ of the state, it is not punishable and is treated as an innocent act. Moreover, for a particular act to qualify as punishable, the act must be categorized and recognized as a criminal act and anything extra-judicial would not be legitimate and legal.
During medieval times, it was a prevalent political belief that the king or the ruler is of divine origin, and he himself is a representative of God. However, the advent of liberalism challenged this position.
In the same fashion, the second postulate of the Rule of Law establishes absolute supremacy of the Law above everyone, including the government itself. The third postulate of this doctrine, also emphasizes greatly upon the role of the courts, that mere inclusion of a right in the constitution doesn’t guarantee its safeguard. The rights recognized by a constitution and other laws are to be protected or defended through the medium of courts whenever these rights are infringed. Though the courts need to protect and defend the fundamental and human rights of its citizens, this in itself is not an end. In a true manner, ensuring that fundamental and human rights are respected and fostered should come from the citizenry itself. However, by the means of some constitutional provisions, it is possible to restrict some of these rights in the case of an emergency.
However, there are certain basic rights that may not be derogated from even at the time of an emergency. For example, when in 1975, emergency provisions were proclaimed in India, the Courts observed that they don’t have the power to deal with habeas corpus cases as nothing and no right is protected against the Emergency.[9] However, soon it was realized how important the right to life and personal liberty are. They are one of the natural rights as suggested by Locke and are almost innate rights available to every citizen of the state, thus, Article 20 and 21 of the Indian Constitution were safeguarded against the Emergency provisions.
Apart from the above-mentioned essentials of constitutionalism, federalism, sovereignty, having sicilian powers over the Military and not vice-versa are some of the other important instruments to realize the utopian goals of constitutionalism, i.e to limit the arbitrary powers of the state.
Conclusion
Constitutionalism, though an important idea in political philosophy, is often underappreciated and that most probably is because of its subjective vastness and complexity. However, constitutionalism in our times i.e in a globalized world is something which is of paramount importance.
The significance of the idea of constitutionalism lies in the fact that it is of central importance if democracy is to persist and prosper. Constitutionalism in our modern times is often said to be a complementary idea of the idea of democracy. It answers to the incompleteness of democracy and it does so both by helping to realize democracy (the internal dimension) and by seeking to supplement and perhaps qualify democracy (the external dimension). [10]
Thus, Constitutionalism springs from a belief in a limited government. As Professor Vile has remarked, “Western institutional theorists have concerned themselves with the problems of ensuring that the exercise of governmental power, which is essential to the realization of the values of their societies should be controlled in order that it should not itself be destructive of the values it was intended to promote.” [11]
The idea of constitutionalism is not new and is embedded deeply in human thought. It would be not an exaggeration if it is concluded by saying that more than just a political notion, constitutionalism is something more innate to humanity; something prevalent to the world of homo sapiens since times immemorial.
References
[1] Waluchow, Wil, “Constitutionalism”, The Stanford Encyclopedia of Philosophy, Spring 2018 Edition, Edward N. Zalta (ed.), https://plato.stanford.edu/archives/spr2018/entries/constitutionalism/ (Last accessed on 7th November 2020).
[2] Charles H. Mcilwain, Constitutionalism: Ancient and Modern, 21 (Liberty Fund, Inc.; Revised edition, 2007).
[3] J.N. Figgis and R.V Laurence, Historical Essays and Studies (Macmillan, London, 1907).
[4] Bernard Schwartz, Constitutional Law: A Textbook, 1 (Macmillan, 1972).
[5] Charles de Secondat, Baron de Montesquieu, The Spirit of Laws (1748).
[6] Borough of Duryea v. Guarnieri, 564 U.S. 379 (2011), p. 44.
[7] Indra Sawhney and Ors. v. Union of India, AIR 1993 SC 477.
[8] Albert Venn Dicey, Introduction to the Study of Law of Constitution, 188 (Macmillan, London & New York, 1995).
[9] ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521.
[10] Neil Walker, “Constitutionalism and the Incompleteness of Democracy: An Iterative Relationship”, 3 Netherlands Journal of Legal Philosophy, 206-233 (2010).
[11] M.J.C. Vile, Constitutionalism and the Separation of Powers, 1 (Liberty Fund Inc, January 1998).
BY DHRUV VATSYAYAN | FACULTY OF LAW , BHU