Constitution and Constitutionalism

Constitution

Constitution is a document with legal force that contains a set of fundamental principles and laws of a state. The concept of constitution is connected with the philosophy of constitutionalism. The government of a state has to conduct itself according to this document. Legally, it is the supreme law of the land and above everyone including the government. Constitutions have been classified into certain types by different scholars. They are:

Evolved/Cumulative Constitution: Evolved or Cumulative constitution is not a constitution created through a national convention. It is a product of evolution of many years. It has not come into force suddenly. The elements of this type of constitution have been cumulatively added over a period of time. For example, the Constitution of the UK is a cumulative constitution.  

Enacted/Conventional Constitution: Enacted or Convention Constitution is a document which has been  developed and framed by a Constituent Assembly.  It has come into force at a specific date.

For example: The US Constitution, and the Indian Constitution. 

Legal Constitution: Legal Constitution is nothing but the bare text of the written Constitution. 

Real: This type of Constitution also includes, in addition to Legal Constitution, conventions and judicial decisions relating to it form the real Constitution. 

Other types of Constitution include written and unwritten and rigid and flexible. According to the opinion of Dr. Garner, a written and enacted Constitution, and an unwritten and evolved Constitution, is essentially the same. Rigid Constitution refers to a type in which the provisions are difficult to amend and can be done only through a complicated procedure. Example: the US constitution. Flexible Constitution refers to a Constitution whose provisions can be easily amended. Example: the Swiss Constitution. 

There are certain features of an ideal Constitution. A good constitution has to be clear and should not be ambiguous. All the provisions contained in it have to unambiguous. Secondly, there has to be a balance between precision and comprehensiveness. It should not be verbose and must be precise in its expression. While achieving preciseness, it must not sacrifice comprehensiveness. It has to comprehensive to account for all possibilities. An ideal Constitution should aim for a balance between precision and comprehensiveness. It should also aim for a balance between rigidity and flexibility. Though rigidity makes a Constitution stable, there is a disadvantage of becoming unresponsive to changing circumstances. Flexibility allows to introduce changes to meet the changing requirements. Therefore, a right balance between rigidity and flexibility has to be achieved.

Constitutionalism

Constitutionalism is the philosophy that there must exist a Constitution that guides the government of a state how to and how not to act. According to this philosophy, every citizen of a state and the government itself must obey the Constitution. An ideal Constitution has to reflect the ideals and desires of the state’s citizens. The goal of constitutionalism is to prevent arbitrary usage of power and abuse of power. According to Don E. Fehrenbacher, constitutionalism is “a complex of ideas, attitudes, and patterns of behaviour elaborating the principle that the authority of government derives from, and is limited by, a body of fundamental law.” According to constitutional scholar David Fellman, the touchstone of constitutionalism is the concept of limited government under a higher law. 

The roots of constitutionalism can be traced back to Athens, Greece. Athens was a well-known city state in its time. The state was run on the basis of Constitution built on the basis of direct democracy.

Between 624 – 404 BCE, there existed 11 Constitutions which governed Athens. Aristotle has studied and described a large number of Constitutions in his seminal work ‘Politics’. In this work, he discusses about constitutional government. Plato also regarded a constitutional government the best form of government. According to Plato, the philosopher-king is the best king, but even such a king should be subject to restrictions. 

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