Constitutionalism: Law and Limited Government

The most radical idea in modern politics is this: even the highest authority must be subject to law. This is the essence of constitutionalism — the principle that government power must be limited by a framework of rules that no one, not even the most powerful official, can violate. Constitutionalism is not the same as having a constitution. Every state has some form of constitution — a set of rules that allocate power. Constitutionalism requires that those rules genuinely bind the government: that they are enforceable, that they protect fundamental rights, and that they cannot be changed at the whim of those in power. It is the difference between rule by law (where the ruler uses law as an instrument) and the rule of law (where the ruler is subject to law).

The Historical Origins

Constitutionalism emerged from a specific historical crisis: the struggle between monarchs who claimed absolute power and those who insisted that even kings must bow to law.

Magna Carta and the Medieval Constitution

The origins of constitutionalism are often traced to Magna Carta (1215), the document forced on King John by English barons. Magna Carta established that the king was not above the law — that there were limits to royal authority, and that violation of those limits justified resistance. Its most famous clause — “No free man shall be seized or imprisoned … except by the lawful judgment of his equals or by the law of the land” — planted the seed of due process of law.

Magna Carta was not a democratic document. It protected the privileges of the nobility, not the rights of ordinary people. But it established the principle that government must be exercised through law, not through arbitrary will. That principle proved enormously influential.

The English Civil War and the Glorious Revolution

The seventeenth century saw the theory of constitutionalism take modern form. The English Civil War (1642-1651) pitted advocates of absolute monarchy against Parliament and its allies. The outcome — the execution of Charles I and the brief abolition of monarchy — was a dramatic assertion that the king’s authority was not absolute.

The Glorious Revolution of 1688 cemented this principle. The Bill of Rights (1689) established that the monarch could not suspend laws, levy taxes without parliamentary consent, or interfere with parliamentary elections. It established regular parliaments, free elections, and the right to petition the government. These limitations on royal power created the framework for constitutional monarchy.

John Locke’s Second Treatise of Government (1689) provided the philosophical foundation. Locke argued that government is a trust — a delegation of power by the people for limited purposes. When government violates that trust — when it encroaches on the natural rights of life, liberty, and property — the people have the right to resist.

For the philosophical foundations of limited government, explore Liberalism: Individual Rights and Limited Government.

The American Constitution

The American Constitution of 1787 is the paradigmatic achievement of constitutionalism. It created a government of limited, enumerated powers: the federal government could exercise only those powers explicitly granted, with all other powers reserved to the states or the people.

The Constitution’s distinctive contribution to constitutionalism was the system of checks and balances. Power is divided among three branches — legislative, executive, judicial — each of which has the means to check the others. The Federalist Papers, especially Federalist 51 by James Madison, provide the classic rationale: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

The Bill of Rights (1791) added explicit protections for individual liberty — speech, press, religion, assembly, due process, and more. These rights are not grants from the government but limitations on government power. The government cannot violate them, even if a majority wants to.

Key Features of Constitutionalism

Constitutionalist theory identifies several essential features of a genuine constitutional order.

Supremacy of the Constitution

The constitution must be the supreme law of the land — binding on all officials, including the legislature. Any law or action that contradicts the constitution is invalid. This principle, established in American law by Marbury v. Madison (1803), makes the constitution enforceable law, not merely a political aspiration.

Judicial Review

Judicial review is the power of courts to strike down laws that violate the constitution. It is a distinctive feature of American constitutionalism, though many other countries have adopted it. Judicial review empowers unelected judges to override the decisions of elected legislators — which raises its own legitimacy questions. Why should a majority of judges be able to overrule the majority of citizens?

Defenders argue that judicial review protects fundamental rights and constitutional structures from temporary majoritarian passions. Critics argue that it is undemocratic — it transfers final authority on contested questions from the people to a judicial elite.

Entrenchment and Amendment

A constitution must be entrenched — harder to change than ordinary legislation. If the constitution can be changed by a simple majority vote of the legislature, it provides no real constraint on government power. Amendment procedures vary: the United States requires supermajorities in both houses of Congress and ratification by three-quarters of state legislatures.

Entrenchment raises a difficult question: how can one generation bind future generations? Why should we be governed by decisions made centuries ago? The answer is that constitutionalism does not prevent change — it merely requires that changes to the fundamental framework be deliberate, broad-based, and reflective. It is harder to change a constitution than to pass a law, but it is not impossible.

Separation of Powers

The separation of powers divides government authority among distinct branches to prevent any single institution from becoming dominant. The classic formulation — legislative, executive, judicial — is associated with Montesquieu’s The Spirit of the Laws (1748).

The purpose is not efficiency but liberty. Concentrated power is dangerous power. By dividing authority and giving each branch incentives to check the others, separation of powers protects against tyranny — even the tyranny of the majority.

Constitutionalism and Democracy

The relationship between constitutionalism and democracy is complex and contested.

The Counter-Majoritarian Difficulty

Constitutionalism limits what democratic majorities can do. If a constitution protects free speech, the majority cannot criminalize criticism of the government. If it protects property rights, the majority cannot expropriate private wealth without compensation. This is the “counter-majoritarian difficulty” — the tension between constitutional limits and democratic self-government.

One response is that constitutional limits are themselves democratic — they are established by “the people” in their constitution-making capacity and express their deepest commitments. Judicial review enforces the people’s own prior decisions against their momentary passions. Critics respond that this is a fiction: contemporary citizens did not ratify the constitution, and interpreting its meaning is not a mechanical exercise.

Forms of Constitutional Democracy

Different constitutional systems manage this tension differently. The American system gives strong power to courts to strike down legislation. The British system, with its principle of parliamentary sovereignty, does not allow courts to override acts of Parliament — but relies on political culture, tradition, and the difficulty of reversing established conventions to constrain government.

The Canadian system offers a middle ground. Its Charter of Rights and Freedoms (1982) protects fundamental rights and gives courts the power to strike down legislation. But Section 33 — the “notwithstanding clause” — allows Parliament or provincial legislatures to override certain Charter provisions for five-year periods. This preserves a measure of legislative supremacy while maintaining judicial oversight.

For a discussion of how different political systems handle these trade-offs, see Comparative Politics: Systems of Government.

Contemporary Challenges

Constitutionalism faces significant challenges in the twenty-first century.

Executive Power and Emergency

Constitutional limits on executive power are most severely tested in emergencies — war, terrorism, pandemic, natural disaster. The proper scope of emergency powers is a central debate in contemporary constitutional theory.

Carl Schmitt’s infamous argument — “Sovereign is he who decides on the exception” — captures the challenge. In a crisis, someone must decide what to do, and that decision cannot be fully governed by preexisting rules. Liberal constitutionalists argue that emergency powers must be defined, limited, and subject to oversight. But the temptation for executives to exploit crises to expand their power is a recurring theme of contemporary politics.

Democratic Backsliding

Constitutionalism is supposed to protect democracy against its enemies. But in the twenty-first century, elected leaders in many countries — Hungary, Poland, Turkey, Israel, the United States — have used constitutional mechanisms to undermine democratic institutions.

They pack courts with loyalists, change electoral rules to entrench their power, neuter oversight bodies, and control the media — all while staying within the letter of the constitution. This is “autocratic legalism”: using law to kill democracy. Constitutionalism, designed to protect liberty against government power, has become a weapon in the hands of those who would destroy it.

Global Constitutionalism

The traditional model of constitutionalism is national: each state has its own constitution that governs its own territory. But globalization has created sites of power beyond the nation-state — the European Union, the World Trade Organization, international human rights tribunals — that exercise authority not rooted in any national constitution.

Some theorists argue that we need “global constitutionalism” to subject these institutions to legal limits and democratic accountability. Others argue that constitutionalism is inherently tied to the state and that global governance must rely on different mechanisms of accountability.

FAQ

What is the difference between a constitution and constitutionalism?

A constitution is a set of rules — written or unwritten — that defines how power is organized in a state. Constitutionalism is the normative commitment to limited government: the principle that government must be genuinely constrained by those rules, not free to change or ignore them at will.

Why is judicial review controversial?

Judicial review is controversial because it empowers unelected judges to overrule democratically enacted legislation. Critics argue it is undemocratic; defenders argue it protects fundamental rights and constitutional structures from majoritarian tyranny.

Can a constitution be too hard to amend?

Yes. If a constitution is too hard to amend, it can entrench outdated provisions and prevent needed reforms. The U.S. Constitution, with its extraordinarily difficult amendment process, is often criticized on these grounds. The balance between entrenchment and flexibility is a central design question of constitutionalism.

What is the difference between written and unwritten constitutions?

A written constitution is codified in a single document. An unwritten constitution (like the United Kingdom’s) is composed of statutes, judicial decisions, conventions, and traditions. Written constitutions are more entrenched and provide clearer standards for judicial review. Unwritten constitutions are more flexible and rely more on political culture to constrain government.

Does constitutionalism require a bill of rights?

Most constitutionalist systems include explicit protection of fundamental rights, but constitutionalism is primarily about limiting government power, and this can be achieved through structural means — separation of powers, federalism, bicameralism — without a bill of rights. However, rights provisions have become a standard feature of modern constitutionalism.

How does constitutionalism deal with emergencies?

Constitutionalism requires that emergency powers be defined, limited, and subject to oversight. Most constitutions include provisions for states of emergency, but these provisions must be carefully designed to prevent abuse. The challenge is to empower the executive to respond effectively to crises while preventing emergency measures from becoming permanent.