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Constitutionalism

Constitutionalism is the idea, often associated with the political theories of John Locke and the founders of the American republic, that government can and should be legally limited in its powers, and that its authority or legitimacy depends on its observing these limitations. This idea brings with it a host of vexing questions of interest 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 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 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? How, in the end, one answers these questions depends crucially on how one conceives the nature, identity and authority of constitutions. Must a constitution establish a stable framework for the exercise of public power which is in some way fixed by factors like original public meaning or authorial intentions? Or can it be a living entity which grows and develops in tandem with changing political values and principles? These and other such questions are explored below.

1. Constitutionalism: a Minimal and a Rich Sense

2. sovereign versus government, 3. entrenchment, 4. writtenness, 5. montesquieu and the separation of powers, 6. constitutional law versus constitutional convention, 7. constitutional interpretation, 8. originalism, 9. living constitutionalism, 10. the moral reading, 11. liberal vs common good constitutionalism, 12. critical theories, other internet resources, related entries.

In some minimal sense of the term, a constitution consists of a set of norms (rules, principles or values) creating, structuring, and possibly defining the limits of, government power or authority. Understood in this way, all states have constitutions and all states are constitutional states. Anything recognizable as a state must have some means of constituting and specifying the limits (or lack thereof) placed upon the three basic forms of government power: legislative power (making new laws), executive power (implementing laws) and judicial power (adjudicating disputes under laws). [ 1 ] Take the extreme case of an absolute sovereign, Rex, who combines unlimited power in all three domains. Suppose it is widely acknowledged that Rex has these powers, as well as the authority to exercise them at his pleasure. The constitution of this state might then be said to contain only one rule, which grants unlimited power to Rex. He is not legally answerable for the wisdom or morality of his decrees, nor is he bound by procedures, or any other kinds of limitations or requirements, in exercising his powers. Whatever Rex decrees is constitutionally valid.

When scholars talk of constitutionalism, however, they normally mean something that rules out Rex’s case. They mean not only that there are norms creating legislative, executive and judicial powers, but that these norms impose significant limits on those powers. [ 2 ] Often these limitations are in the form of civil rights against government, rights to things like free expression, association, equality and due process of law. But constitutional limits come in a variety of forms. They can concern such things as the scope of authority (e.g., in a federal system, provincial or state governments may have authority over health care and education while the federal government’s jurisdiction extends to national defence and transportation); the mechanisms used in exercising the relevant power (e.g., procedural requirements governing the form and manner of legislation); and of course civil rights (e.g., in a Charter or Bill of Rights). Constitutionalism in this richer sense of the term is the idea that government can/should be limited in its powers and that its authority depends on its observing these limitations. In this richer sense of the term, Rex’s society has not embraced constitutionalism because the rule conferring his powers impose no constitutional limits on them. Compare a second state in which Regina has all the powers possessed by Rex except that she lacks authority to legislate on matters concerning religion. Suppose further that Regina also lacks the power to implement, or to adjudicate on the basis of, any law which exceeds the scope of her legislative competence. We have here the seeds of constitutionalism as that notion has come to be understood in Western legal thought.

In discussing the history and nature of constitutionalism, a comparison is often drawn between Thomas Hobbes and John Locke who are thought to have defended, respectively, the notion of constitutionally unlimited sovereignty (e.g., Rex) versus that of sovereignty limited by the terms of a social contract containing substantive limitations (e.g., Regina). [ 3 ] But an equally good focal point is the English legal theorist John Austin who, like Hobbes, thought that the very notion of limited sovereignty is incoherent. For Austin, all law is the command of a sovereign person or body of persons, and so the notion that the sovereign could be limited by law requires a sovereign who is self-binding, who commands him/her/itself. But no one can command himself, except in some figurative sense, so the notion of limited sovereignty is, for Austin (and Hobbes), as incoherent as the idea of a square circle. [ 4 ] Though at one time this feature of Austin’s theory had some surface plausibility when applied to the British system of government, where Parliament was often said to be supreme and constitutionally unlimited, [ 5 ] it faces obvious difficulty when applied to most other constitutional democracies such as one finds in the United States, Canada, Mexico and Germany, where it is abundantly clear that the powers of government are legally limited by a constitution. Austin’s answer to this apparent weakness in his theory was to appeal to popular sovereignty , the idea that sovereign power ultimately resides in ‘the people’, that is, the population at large. Government bodies —e.g., Parliament, the President or the judiciary—can be limited by constitutional law, but the sovereign people remain unlimited in their powers to command. Whether this appeal to popular sovereignty provides Austin with an adequate means of dealing with constitutional democracies is questionable. For Austin’s sovereign is supposed to be a determinate individual or group of individuals whose commands to the bulk of the population constitute law. But if we identify the commanders with the people themselves, then we seem inexorably led to the paradoxical result identified by H.L.A. Hart—the commanders are commanding the commanders. In short, we lapse into incoherence (Hart 1994, 73–78; Austin 1995, Lecture VI).

Though there are serious difficulties inherent in Austin’s attempt to make sense of the people’s ultimate sovereignty, his account, with all its weaknesses, does reveal the need to distinguish between two different concepts: sovereignty and government. Roughly speaking, we might define sovereignty as the possession of supreme (and possibly unlimited) normative power and authority over some domain, and government as those persons or institutions through whom that sovereignty is exercised. Once some such distinction is drawn, we see immediately that sovereignty might lie somewhere other than with the government and those who exercise the powers of government. And once this implication is accepted, we can coherently go on to speak of limited government coupled with unlimited sovereignty. Arguably this is what one should say about constitutional democracies where the people’s sovereign authority is thought to be ultimate and unlimited but the government bodies—e.g., legislatures, Presidents and courts—through whom that sovereignty is exercised on the people’s behalf are constitutionally limited and subordinate. As Locke might have said, unlimited sovereignty remains with the people who have the normative power to void the authority of their government (or some part thereof) if it exceeds its constitutional limitations.

Though sovereignty and government are different notions, and normally apply to different entities, it nevertheless seems conceptually possible for them to apply to one and the same individual or institution. It is arguable that Hobbes insisted on the identification of sovereign and government insofar as he seemed to require a (virtually) complete transfer of all rights and powers from sovereign individuals to a political sovereign whose authority was to be absolute, thus rendering it possible to emerge from the wretched state of nature in which life is “solitary, poor, nasty, brutish and short.” [ 6 ] In Hobbes’ theory, ultimate, unlimited sovereignty must reside in the supreme governmental person or body who enjoys unlimited power and authority to rule the commonwealth. Anything less than such an ultimate, unlimited sovereign would, given human nature and the world we inhabit, destroy the potential for stable government and all that it makes possible. So even if ‘sovereignty’ and ‘government’ express different notions, this neither means nor implies that the two could not pertain to one and the same entity.

According to most theorists, another important feature of constitutionalism is that the norms imposing limits upon government power must be in some way, and to some degree, be entrenched , either legally or by way of constitutional convention. [ 7 ] In other words, those whose powers are constitutionally limited—i.e., the institutions of government—must not be constitutionally at liberty to change or expunge those limits at their pleasure. Most written constitutions contain amending formulae which can be triggered by, and require the participation of, the government bodies whose powers they limit. But these formulae invariably require something more than a simple decision on the part of the present government, through e.g., Presidential fiat or simple majority vote in the legislature, to invoke a change. Sometimes constitutional assemblies are required, or super-majority votes, referendums, or the agreement of not only the central government in a federal system but also some number or percentage of the governments or regional units within the federal system. [ 8 ] Entrenchment not only facilitates a degree of stability and predictability over time (a characteristic aspiration of constitutional regimes), it is arguably a requirement of the very possibility of constitutionally limited government. Were a government institution entitled, at its pleasure, to change the very terms of its constitutional limitations, we might begin to question whether there would, in reality, be any such limitations. Consider Regina once again. Were she entitled, at her discretion, to remove (and perhaps later reinstate) the constitutional restriction preventing her from legislating on some religious matter on which she had strong views, then it is perhaps questionable whether Regina could sensibly be said to be bound by this requirement. [ 9 ] On the other hand, were there a constitutional rule or convention specifying that Regina is entitled to remove this restriction only if she succeeds in convincing two thirds of her subjects to vote for the change, then one might feel more comfortable speaking of constitutional limitation. Of course this constitutional meta-rule or convention is itself subject to change or elimination—a fact that raises a host of further puzzles. For example, does such an act require application of the very rule in question—i.e., two third’s majority vote—or are the sovereign people of Regina’s society at liberty to change or expunge it at their pleasure? If we accept (a) the distinction between government and sovereignty urged above; (b) that ultimate sovereignty resides in the people whom Regina governs; and (c) that sovereignty cannot be self-limiting, ( X cannot limit X ) then we might sensibly be led to conclude that the constitutional meta-rule—and hence the constitutional regime of which it is an integral part—both exist at the pleasure of the general population of Regina’s society. Entrenchment may be an essential element of constitutional regimes, but it would seem that constitutions neither can nor should be entrenched against the actions of a sovereign people.

Some scholars believe that constitutional norms do not exist unless they are in some way enshrined in a written document (e.g., Rubenfeld 1998). But most accept that constitutions (or elements of them) can be unwritten, and cite, as an obvious example of this possibility, the constitution of the United Kingdom. One must be careful here, however. Though the UK has nothing resembling the American Constitution and its Bill of Rights, it nevertheless contains a number of written instruments which have, for many centuries, formed central elements of its constitution. Magna Carta (1215 C.E.) is perhaps the earliest document of the British constitution, while others include The Petition of Right (1628) and the Bill of Rights (1689). Furthermore, constitutional limits are also said to be found in certain principles of the common law, explicitly cited in landmark cases concerning the limits of government power. The fact remains, however, that historically the constitution of the UK has largely taken unwritten form, suggesting strongly that writtenness is not a defining feature of constitutionalism.

Why, despite the existence of seemingly obvious counter-examples, might someone be led to think that constitutional norms must be written rules, as opposed to more informal conventions or social rules? One possible reason [ 10 ] is that unwritten rules and conventions are sometimes less precise and therefore more open to interpretation, gradual change, and ultimately avoidance, than written ones. If this were true, then one might question whether an unwritten rule could, at least as a practical matter, serve adequately to limit government power. But there is no reason to accept this line of argument. Long standing social rules and conventions are often clear and precise, as well as more rigid and entrenched than written ones, if only because their elimination, alteration or re-interpretation typically requires widespread changes in traditional attitudes, beliefs and behaviour. And these can be very difficult to bring about.

Does the idea of constitutionalism require, as a matter of conceptual or practical necessity, the division of government powers urged by Montesquieu and celebrated by Americans as a bulwark against abuse of state power? In Regina’s case, there is no such separation: legislative, executive and judicial power all reside in her person. But how, it might be asked, can she be the one (qua judge) who determines whether her legislation satisfies the prescribed constitutional limitation? Even if, in theory , Regina’s constitution prohibits her from removing her constitutional restriction at will (because she must observe the 2/3rds meta-rule) can she not always choose to ignore her restrictions, or to interpret them so as to escape their binding force? Perhaps Bishop Hoadly was right when he said (1717) in a sermon before the English King: “Whoever hath an ultimate authority to interpret any written or spoken laws, it is he who is truly the Law-giver to all intents and purposes, and not the person who first wrote or spoke them.” (quoted in Gray 1986, p.12). Although some constitutional limits, e.g., the one which restricts the Mexican President to a single term of office, seldom raise questions of interpretation, many others (particularly those that concern civil rights) are ripe for such questions. Regina might argue that a decree requiring all shops to close on Sundays (the common Sabbath) does not concern a religious matter because its aim is a common day of rest, not religious observance. Others might argue, with seemingly equal plausibility, that it does concern a religious matter and therefore lies outside Regina’s legislative competence.

That constitutions often raise such interpretive questions gives rise to an important question: Does the possibility of constitutional limitation on legislative and executive power require, as a matter of practical politics, that the judicial power by which such limitations are interpreted and enforced reside in some individual or group of individuals distinct from that in which these legislative and executive powers are vested? In modern terms, must constitutional limits on a legislative body like Parliament, the Duma or Congress, or an executive body like the President or her Cabinet, be subject to interpretation and enforcement by an independent judiciary? Marbury v Madison settled this question in the affirmative as a matter of American law, and most nations follow Marbury (and Montesquieu) in accepting the practical necessity of some such arrangement. But it is not clear that the arrangement truly is practically necessary, let alone conceptually so. Bishop Hoadly notwithstanding, there is nothing nonsensical in the suggestion that X might be bound by an entrenched rule, R , whose interpretation and implementation is left to X . This is, arguably, the situation in New Zealand where the courts are forbidden from striking down legislation on the ground that it exceeds constitutional limits. Observance and enforcement of these limits are left to the legislative bodies whose powers are nonetheless recognized as constitutionally limited (and subject to whatever pressures might be imposed politically when state actions are generally believed to violate the constitution). It is important to realize that what rule, R , actually requires is not necessarily identical with what X believes or says that it requires. Nor is it identical with whatever restrictions X actually observes in practice. This is so even when there is no superior institution with the power and authority to enforce compliance or to correct X ’s judgment when it is, or appears to be, wrong.

That constitutional limits can sometimes be avoided or interpreted so as to avoid their effects, and no recourse be available to correct mistaken interpretations and abuses of power, does not, then, imply the absence of constitutional limitation. But does it imply the absence of effective limitation? Perhaps so, but even here there is reason to be cautious in drawing general conclusions. Once again, we should remember the long-standing traditions within British Parliamentary systems (including New Zealand’s) according to which Parliament alone possesses final authority to create, interpret and implement its own constitutional limits. And whatever their faults, there is little doubt that many Parliaments modeled on the British system typically act responsibly in observing their own constitutional limits.

So the notion of constitutionalism does not seem conceptually to require the separation of powers advocated by Montesquieu. Nor does that principle seem to be required as a matter of practical necessity in all possible cases. Does this mean that separation of powers has no place in a theory of constitutionalism? It could be suggested that, rather than seeing Montesquieu’s tripartite distinction of government functions assigned to different government branches as a necessary component of the very concept of separation of powers, we should instead understand that concept in a moralized, flexible and context-specific manner. On this view, separation of powers dictates more generally that distribution of powers be such that a) tasks are allocated to those institutions that are well-suited to carry them out and b) there are effective checks on the use of government power (Kyritsis 2017, ch 2). However, it does not necessarily prescribe certain institutional forms such as judicial review of primary legislation.

The idea of constitutionalism requires limitation on government power and authority established by constitutional law. But according to most constitutional scholars, there is more to a constitution than constitutional law. Many people will find this suggestion puzzling, believing their constitution to be nothing more (and nothing less) than (usually) a formal, written document, possibly adopted at a special constitutional assembly, which contains the nation’s supreme, fundamental law. But there is a long-standing tradition of conceiving of constitutions as containing much more than constitutional law. Dicey is famous for proposing that, in addition to constitutional law, the British constitutional system contains a number of constitutional conventions which effectively limit government in the absence of legal limitation. These are, in effect, social rules arising within the practices of the political community and which impose important, but non-legal , limits on government powers. An example of a British constitutional convention is the rule that the British Monarch may not refuse Royal Assent to any bill passed by both Houses of the UK Parliament. Perhaps another example lies in a convention that individuals chosen to represent the State of Florida in the American Electoral College (the body which actually chooses the American President by majority vote) must vote for the Presidential candidate for whom a plurality of Floridians voted on election night. Owing to the fact that they are political conventions, unenforceable in courts of law, constitutional conventions are said to be distinguishable from constitutional laws, which can indeed be legally enforced. If we accept Dicey’s distinction, we must not identify the constitution with constitutional law. It includes constitutional conventions as well. We must further recognize the possibility that a government, though legally within its power to embark upon a particular course of action, might nevertheless be constitutionally prohibited from doing so. [ 11 ] It is possible that, as a matter of constitutional law, Regina might enjoy unlimited legislative, executive and judicial powers which are nonetheless limited by constitutional conventions specifying how those powers are to be exercised. Should she violate one of these conventions, she would be acting legally, but unconstitutionally, and her subjects might well feel warranted in condemning her actions, perhaps even removing her from office—a puzzling result only if one thinks that all there is to a constitution is constitutional law.

As we have just seen, there is often more to a constitution than constitutional law. As we have also seen, constitutional norms need not always be written rules. Despite these important observations, two facts must be acknowledged: (1) the vast majority of constitutional cases hinge on questions of constitutional law; and (2) modern constitutions consist primarily of written documents. [ 12 ] Consequently, constitutional cases often raise theoretical issues concerning the proper approach to the interpretation of written instruments—colored, of course, by the special role constitutions play – or ought to play – in defining and limiting the authority and powers of government. Differences of view on these matters come to light most forcefully when a case turns on the interpretation of a constitutional provision that deals with abstract civil rights (e.g., the right to due process of law, or to equality). [ 13 ] How such provisions are to be interpreted has been subject to intense controversy among legal practitioners and theorists, and it is upon such provisions that this entry will focus. As we shall see, stark differences of opinion on this issue are usually rooted in different views on the aspirations of constitutions or on the appropriate role of judges within constitutional democracies.

Although theories of constitutional interpretation are many and varied, they all seem, in one way or another, to ascribe importance to a number of key factors: textual or semantic meaning; political, social and legal history; intention; original understanding; and moral/political theory. The roles played by each of these factors in a theory of constitutional interpretation depend crucially on how the theorist conceives of a constitution and its role in limiting government power. For example, if a theorist conceives of a constitution as foundational law whose existence, meaning and authority derive from the determinate, historical acts of its authors and/or those they represented(ed), and whose principal point is to fix a long-standing, stable framework or set of ground rules within which legislative, executive and judicial powers are to be exercised by the various branches of government, she may be inclined towards an interpretive theory which accords pride of place to factors like authors’ intentions or the meanings they (and perhaps the general public at the time) would have ascribed to the terms chosen for inclusion in the constitution. On what we will call the fixed view of constitutions, it is natural to think that factors like these should govern whenever they are clear and consistent. And the reason is quite straight forward. On the fixed view, a constitution not only aspires to establish a stable framework within which government powers are to be exercised, it aspires to establish one which is above, or removed from, the deep disagreements and partisan controversies encountered in ordinary, day to day law and politics. It aspires, in short, to be both stable and morally and politically neutral on controversial issues such as whether there should be laws affirming a woman’s right to an abortion, or the right of workers to a minimum wage. To be clear, saying that a constitution aspires, on a fixed view, to be morally and politically neutral, is not meant to deny that those who take this stance believe that it expresses a particular political vision or a set of fundamental commitments to certain values and principles of political morality. Quite the contrary. All constitutional theorists will agree that constitutions typically enshrine, indeed entrench, a range of moral and political commitments to values like democracy, equality, free expression, and the rule of law. But two points need to be stressed.

First, fixed views attempt to transform questions about the moral and political soundness of these commitments into historical questions, principally concerning beliefs about their soundness. The task is not to ask: What do we now think about values like equality and freedom of expression? Rather, it is to ask: What did they —the authors of the constitution or those on whose authority they created the constitution—in fact think about those values? What was their original understanding of them, or the understanding among most members of the general population that existed at the time of the constitution’s creation (or amendment, if the provision in question was introduced at a later time)? So stability and neutrality are, on fixed views, served to the extent that a constitution is capable of transforming questions of political morality into historical ones.

Second, no proponent of the fixed view will deny that the abstract moral commitments expressed in a constitution tend to be widely, if not universally shared among members of the relevant political community. In that sense, then, the constitution, despite the moral commitments it embodies, is neutral as between citizens and their many more partisan differences of opinion on more particular moral questions. Not everyone in a modern, constitutional democracy like the US or Germany agrees on the extent to which the right to free expression demands the liberty to express opinions that display and promote hatred toward an identifiable religious or racial group. But virtually no one would deny the vital importance of expressive freedom in a truly free and democratic society. On fixed views, then, constitutions can be seen as analogous to the ground rules of a debating society. Each sets the mutually agreed, stable framework within which controversial debate (and action) is to take place. And just as a debating society could not function if its ground rules could be revised by a debater in order to win the debate, a constitution could not serve its role if its terms were constantly open to debate and revision by participants within the political and legal processes it aspires to govern in order to achieve a desired result. We avoid this possibility, according to those who espouse the fixed view, to the extent that we are able to replace controversial moral and political questions with historical questions about the intentions of constitutional authors in creating what they did, or about how the terms they chose to express constitutional requirements were publicly understood at the time they were chosen.

To sum up: the desire for stability and neutrality leads modern proponents of the fixed view to view constitutional interpretation as an exercise which, when undertaken properly, focuses on authors’ intentions or on original understandings of the meaning and import of the words chosen to express agreed limits on government power and authority. Those who endorse this fixed view generally espouse what has come to be known as originalism . Only if interpreters restrict themselves to original intentions and/or understandings, and do not attempt to insert their own contentious views under the guise of ‘interpretation’, can the role of a constitution be secured. Only then, originalists maintain, can it serve as the politically neutral, stable framework its nature demands.

But not all constitutional theorists believe that the foundational role of a constitution demands that its meaning and interpretation be somehow fixed, or that its interpretation be absolutely immune from considerations of moral and political theory and debate. On the contrary, many constitutional scholars and judges embrace living constitutionalism, an approach that sees a constitution as an evolving, living entity which, by its very nature, is capable of responding to changing social circumstances and new (and it is hoped better) moral and political beliefs. Along with this very different view of constitutions come very different theories regarding the nature and limits of legitimate constitutional interpretation. One strand within living constitutionalism, upon which we will be focus below, stresses the extent to which constitutional interpretation resembles the kind of reasoning that takes place in other areas of the law pertaining to common law legal systems, such as the law of contracts and torts. Just as the law of contributory negligence emerged and (continuously) evolves in common law countries in a case-by-case, incremental manner, over many decades and as the product of many judicial decisions, the law of equal protection, free expression, due process and the like (continuously) evolves in modern western democracies as constitutional cases are heard and decided.

Disputes between fixed-view originalists and living constitutionalists are among the liveliest and most contentious to have arisen in constitutional scholarship over the past several decades. Debates have tended to focus on abstract civil rights provisions of constitutions, such as the due process clause of the American Constitution, or Section 7 of the Canadian Charter of Rights and Freedoms, which ’guarantees the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [ 14 ] Given the fixed view to which they are committed, contemporary originalists view anything more than an attempt to discover, so as to preserve and apply, original understandings of, or the intentions behind, such provisions as constitutional revision or ‘construction,’ often masquerading as the interpretation of an unchanged original. [ 15 ] On the other side, we find the living constitutionalists who tend to view originalism as a reactionary, overly conservative theory serving only to tie a democratic community to the ‘dead hand of the past.’ Originalists, their opponents claim, render us incapable of responding rationally and responsibly to changing social circumstances and improved moral views concerning the requirements of the abstract values and principles articulated and endorsed in modern constitutions. Living constitutionalists, the originalist counters, recommend constitutional practices that threaten a number of cherished values, among them the rule of law and the separation of powers. They are, in effect, happy to place the constitution in the hands of contemporary judges who are permitted, under the guise of interpreting it, to change the constitution to suit their own political inclinations and moral preferences. And this, originalists claim, only serves to thwart cherished values secured by having a stable, politically neutral constitution, and may render all talk of genuine constitutional constraint meaningless.

Originalism comes in a wide variety of forms (Bork 1990; Scalia 1997; Whittington 1999b; Barnett 2004; Solum 2008). An originalist might claim that her view follows necessarily from a more general theory of interpretation: to interpret is necessarily to retrieve something that existed at the time of authorship—an original object. Another might be happy to acknowledge that interpretation could, theoretically, take the form of an innovative or creative interpretation that evaluates or in some way changes an original, as might be the case with a revolutionary interpretation of a play or work of art. But such a theorist might go on to add that, for reasons of political morality having to do with, e.g., the principles of democracy, the rule of law, and values underlying the separation of powers, such innovative interpretations ought never be pursued by constitutional interpreters. The object of constitutional interpretation should, to the greatest extent possible, remain fixed by factors like original public understandings or authorial intentions. Yet another originalist might be content to leave a little leeway here, suggesting something like the following: though there is a presumption, perhaps a very heavy one, in favor of interpretation as retrieval of an original, it is one which can, on very rare occasions and for truly exceptional reasons, be overcome. For example, this originalist might say that the presumption in favor of retrieval can be defeated when there is a discernible and profound sea change in popular views on some important issue of political morality implicated by an abstract constitutional provision. This was arguably the case in the United States with respect to slavery and equal protection. Presumably ‘equal protection’ was originally understood, both by the authors of the 14 th Amendment and by the people on whose behalf they acted, as fully consistent with segregation. This concrete understanding of equal protection is now, of course, widely condemned. Its wholesale rejection served as the main inspiration behind Brown v. Board of Education, whose innovative interpretation of the equal protection clause arguably changed or replaced the original understanding of the notion. [ 16 ] Yet another concession, in this case one that seems embraced by all originalists, concerns the force and effect of authoritative court interpretations of the constitution. Many originalists believe that Roe v. Wade [ 17 ] rested on a mistaken interpretation of the United States Constitution, one that flew in the face of original understandings and intentions; but virtually no originalist would have gone so far as to deny, before Roe was overturned by the US Supreme Court in Dobbs , [ 18 ] that any contemporary interpretation of the First, Fourth, Fifth, Ninth and Fourteenth Amendments could be justified only if it can be reconciled with that decision. In other words, virtually all originalists agree that established precedent can sometimes override original understanding. Whether this apparent concession is in the end consistent with the spirit of originalism is, perhaps, questionable. Such ‘faint-hearted originalism’ (Scalia 1989) may reduce, in the end, to a form of living constitutionalism. [ 19 ] Indeed, as we shall see in the next section, the role of judicial interpretations of abstract constitutional provisions is central to that prominent form of living constitutionalism which views constitutional interpretation as resting on a form of common-law reasoning.

Another way in which originalists have split is over the identity of the original object of interpretation. Walter Benn Michaels is among those who defend Original Intent Originalism , the view that “you can’t do textual interpretation without some appeal to authorial intention and, perhaps more controversially, you can’t (coherently and non-arbitrarily) think of yourself as still doing textual interpretation as soon as you appeal to something beyond authorial intention...” (Michaels, 2009, 21) Keith Whittington, Randy Barnett, and Larry Solum, on the other hand, defend Original Public Meaning Originalism , commonly referred to as New Originalism , which “emphasizes the meaning that the Constitution (or its amendments) would have had to the relevant audience at the time of its adoption.” (Solum 2021) Whatever its precise contours, an originalist theory is likely to rest on the fixed view of a constitution. The constitution’s rules and principles are fixed by original public meaning or its authors’ intentions and, (barring formal constitutional amendment) these must not be revisited and revised lest the authority and stability of the constitution be threatened. Original intentions or public meanings must always govern the interpretation of a constitution, not the new value judgements and decisions of contemporary judges (or other interpreters) asking the very same questions the author’s actions and decisions were supposed to have settled.

Originalism in all its many forms has undergone extensive critique. For example, original intentions and public meaning are often unclear, if not largely indeterminate, leaving the interpreter with the need to appeal to other factors. In addition, original intentions and understandings can vary from one person to the next. Sometimes the only things upon which joint authors or members of the relevant original audience can agree are the particular words to be included in the constitution. The intentions behind that choice can, however, vary significantly, as can original understandings of what those words mean. These can range from the very general to the highly specific. At one end of the spectrum are the various, and sometimes conflicting, goals and values the authors of a constitutional provision intended their creation to achieve and which an original interpreter might understand the provision to be all about. At the other end are the very specific applications the authors might have had in mind when they chose the particular words upon which they settled, and which would generally have been understood by the relevant audience to cover. Did the intended or understood applications of an equality provision encompass equal access to the legal system by all groups within society? Or only something more specific like equal access to fairness at trial . Did they perhaps include equal economic and social opportunities for all groups? Different authors might have intended all, none, or some of these applications when they agreed upon the equality provision, and similar things can be said about the corresponding understandings of members of the original audience. As with the general goals and values underlying a provision, there is room for inconsistence and conflict. In light of this fact, it can often be unhelpful, when interpreting a constitution, to rely exclusively on original intentions or public meanings.

Let’s suppose, however, that this is not the case: that there is a way for contemporary interpreters actually to determine, independently of their own moral and political views, either the original intentions of constitutional authors or what the earlier generation would have understood the relevant constitutional provision(s) to mean. Would a constitution, understood in one of these two ways, and serving the role ascribed to it by the fixed view, be a good thing for a democratic society to have? Not according to many constitutional scholars. As noted above, constitutions are intended to last a long time and to span many generations. This is one of the main reasons they tend to be entrenched. Suppose that an entrenched constitution has in fact been in existence for a very long time. In such a scenario, we should distinguish between two groups of people: the people-now and the people-then . According to originalism, it is the understandings and intentions of the people-then that will control the proper application by the people-now of constitutional provisions in contemporary settings. In other words, the people-now will in effect be shackled in their attempts to exercise political choice by the prior decisions of someone else — the people-then. It’s at the very least questionable whether this scenario is consistent with our understanding of democracy as a system of ongoing self-government. To be self-governing in an ongoing manner, one must be able to change one’s mind.

How might an originalist get round this apparent difficulty? One way is to note that the so-called dead hand of the past can always be removed through constitutional amendment, difficult as this process might be to engage successfully. A second way is the one generally pursued by new originalists, who draw a distinction between interpretation , on the one hand, and construction , on the other. The former is the process of discovering the communicative meaning or content of words in the text of the constitution, while the latter consists of putting that meaning or content into effect by applying it in particular cases. (Barnett 1999 & 2011; Whittington 1999) According to these new public meaning originalists, the dead hand of the past extends only to the communicative meaning or content of the relevant text and to the process of interpreting it. And importantly, though the communicative meaning or content of, e.g., ‘free expression’, ‘due process’ or ‘cruel and unusual punishment’ is the same now as it was when provisions incorporating these notion were first introduced in, e.g., the US Constitution, that unchanged communicative meaning is not the primary focus in most controversial constitutional cases where questions of construction take the leading role. Here contemporary interpreters must exercise fresh judgment in applying unchanged, but largely uncontentious, original meaning of a constitution’s terms to the complex, new and contentious situations constitutional rights cases being to the fore. They must construct an understanding of, e.g., the right to free expression that allows them to decide controversial cases involving such things as online bullying or attempts to unduly influence voters through the use of internet bots. Given the highly abstract nature of this constitutional right, it seems likely that judicial construction will play the leading role in the vast majority of cases involving its application. And if this is so, then whatever reach the dead hand of the past might have, it will end up being quite minimal.

Whatever else might be said of law, this much is undeniably true: where law exists, our conduct is subject to various forms of restriction. But in many instances, the relevant restrictions can be removed or changed with minimal effort, as when a problematic common-law precedent is overturned because of changing social circumstances, or a statute is repealed or amended because it no longer serves useful purposes. Not so with constitutions. As noted above, they tend to be heavily entrenched. Constitutions are also meant to be long lasting, so as to serve the values of continuity and stability in the basic framework within which the contentious affairs of law and politics are conducted. The entrenched nature of constitutions is largely unproblematic when we consider provisions dealing with such matters as the length of term of a senator or which branch of government is responsible for regulating public education. But things get much more complicated and contentious when we turn to the highly abstract, moral provisions of most modern constitutions which have the effect of limiting the powers of government bodies in significant ways. These special features of constitutions combine to give rise to a fundamental question, one that causes the originalist so much difficulty and to which living constitutionalism purports to provide a better answer: How can one group of people, the people-then, justifiably place entrenched constitutional impediments of a decidedly moral nature in the way of a second group of people, the people-now, who might live in radically different circumstances and perhaps with radically different moral views? How, in short, can one generation legitimately bind the moral choices of another? A satisfactory answer to this intergenerational problem , living constitutionalists contend, requires that we recognize that constitutions can grow and adapt to ever-changing circumstances without losing their identity or their legitimacy.

According to living constitutionalists, the meaning or content of an entrenched provision like section 3(1) of the German Basic Law, which proclaims that ‘All persons shall be equal before the law,’ consists in the rights or principles of political morality they express, not what those rights or principles were generally understood to require at the time of enactment or were believed or intended to require by those who chose to include them in the constitution. The choice to employ abstract moral terms (e.g., ‘cruel and unusual punishment’) instead of more concrete, non-moral terms (e.g., ‘public hanging’ or ‘drawing and quartering’), is presumably made in recognition of at least four crucial facts: (1) it’s important that governments not violate certain important rights of political morality; (2) constitutional authors do not always agree fully on what concretely is required in the many scenarios and cases in which those rights are, or will later be seen to be, relevant; (3) constitutional authors can anticipate neither the future nor the many scenarios and cases in which these important rights will be in some way relevant; and (4) even when they do agree on what those rights concretely require at the moment of adoption, and are comfortable binding themselves and their contemporaries to these concrete understandings, they are not particularly comfortable doing so in respect of future generations who will live in very different times and may think very differently. And so the decision is made to express constitutional commitments in very abstract terms—‘cruel and unusual punishment’ versus ‘drawing and quartering’—leaving it to later generations to substitute their possibly different concrete understandings for those of the authors or those who lived at the time of authorship. The result is that as concrete understandings of the entrenched constitutional-rights provisions evolve, the results warranted by these provisions can legitimately change right along with them. And importantly for the living constitutionalist who does not wish to surrender to the charge that she counsels infidelity to the constitution, these changes can occur without the constitution having changed, as would be true were a process of formal amendment successfully invoked and an abstract, rights provision removed from the constitution.

One version of living constitutionalism is common law constitutionalism , a view developed and defended by David Strauss and Wil Waluchow. (Strauss 2010; Waluchow 2007a) This view seeks to constrain and regulate the evolution of constitutional rights so that they can be both responsive to changing circumstances and yet stable enough to accommodate rule of law values such as stability and continuity. Common law constitutionalists assert that the evolution of a constitution is governed largely by a body of precedents. As precedents are set in constitutional rights cases, principles and doctrines emerge that are subject to revision as later cases arise. According to common law constitutionalism, these precedents, and the principles and doctrines they support, ultimately count as much as the written text. The former are as much a part of the constitution as the written document created by constitutional authors. David Strauss goes so far as to suggest, in reference to the US Constitution, that “when a case involves the [written] Constitution, the text routinely gets no attention. On a day-to-day basis, American constitutional law is about precedents...” (Strauss 2010, 34)

Despite its undoubted appeal, (at least to many) living constitutionalism is subject to a number of significant objections. Perhaps the most prominent ones are these: (a) the theory renders all talk of constitutional interpretation, properly understood as the retrieval of existing meaning, utterly senseless: constitutional interpretation becomes nothing more than unconstrained, constitutional creation or construction masquerading as interpretation; (b) living constitutionalism robs the constitution of its ability to serve its guidance function—how can individuals be guided by a constitution whose application to their conduct and choices will be determined by the unconstrained views of later so-called interpreters?; and (c) living constitutionalism violates the separation of powers doctrine—if the constitution and its limits become whatever contemporary interpreters take them to mean, and if those interpreters tend to be found almost exclusively in courts populated by individuals who were appointed not elected, then democratically unaccountable judges end up deciding what the proper limits of government power shall be, a task for which they are eminently unqualified and which ought to be reserved for individuals (e.g., the authors of the constitution) with the democratic authority to serve that function.

Living constitutionalists have a number of responses to these objections. For instance, it might be argued that the theory in no way results in the unconstrained, arbitrary exercise of judicial power its opponents often portray it to be. Living constitutionalists like Strauss (2010) and Waluchow (2007a) suggest that the ongoing interpretation of a constitution’s abstract rights provisions is a process much like the process by which judges develop equally abstract, common-law notions like ‘negligence’ and ‘the reasonable use of force.’ According to Strauss, the U.S. constitutional system

has become a common law system, one in which precedent and past practices are, in their own way as important as the written U.S. Constitution itself…[I]t is not one that judges (or anyone else) can simply manipulate to fit their own ideas. (Strauss 2010, 3)

On this view, constitutional interpretation must accommodate itself to previous attempts to interpret and apply the abstract rights provisions expressed in the constitution’s text. These prior interpretive decisions serve as constitutional precedents. And just as the traditional rules of precedent combine respect for the (albeit limited) wisdom and authority of previous decision makers (legislative and judicial) with an awareness of the need to allow adaptation in the face of changing views, and new or unforeseen circumstances, so too must constitutional interpreters respect the wisdom and authority of previous interpreters, while allowing the constitution to adapt so as to respond to changing views, and new or unforeseen circumstances. Living constitutional interpretation, though flexible and adaptive, is no less constrained and disciplined than reasoning under common law.

Another response open to living constitutionalists is to deny that their theory of interpretation ignores the special role played by a constitution’s text and its authors. The text plays a key role insofar as any constitutional interpretation, innovative as it may be, must be consistent with that text, until such time as it is formally changed via some acknowledged process of constitutional amendment. There is no reason to deny that original understandings of a constitution’s abstract provisions can also be highly relevant to later interpretations. This is especially so for interpretations that occur shortly after the constitution’s adoption, when worries about binding future generations is not in play. Original understandings simply cannot be dispositive, at least not in perpetuity. In the end, the relative importance of factors like textual meaning, original understandings, later interpretations, and intended purposes, may be, as Joseph Raz suggests (1996, 176–91), fundamentally a question of political morality which cannot be answered in the abstract and without considering what it is that justifies, at that particular moment of interpretation, having an entrenched constitution at all, let alone one with such and such particular content. Sometimes, retrieval of an existing concrete understanding will be required, especially when the constitution is in its infancy and was partly meant to settle a range of concrete moral questions as to the proper limits of government power, at least for a while . But if an interpreter has good reason to believe that this settlement function has been overtaken by other more pressing concerns, perhaps the need to adapt in light of dramatically changed circumstances or much better moral understanding, then a more innovative interpretation may be called for. And once again, to say that constitutional interpreters must sometimes be innovative is not to say that a constitution can be interpreted to mean whatever the interpreter wants it to mean.

Yet another response open to living constitutionalists is to note the special institutional structures that many jurisdictions have adopted to lessen democratic worries arising from the key role judges play in developing constitutional rights. These concerns are particularly acute in jurisdictions, such as the US, where the Supreme Court effectively has the final say on the meaning and import of constitutional rights provisions. But not all jurisdictions assign the final say to judges. The United Kingdom, for instance practices a version of what Mark Tushnet calls “weak-form-review.” (Tushnet 2003) It is the responsibility of the UK Supreme Court to rule on whether a provision of Parliament is compatible with (properly interpreted) provisions of the Human Rights Act. But neither the Court’s decision, nor its interpretation of the relevant right, is binding on Parliament. Despite the declared incompatibility, Parliament has the power to leave its legislation as is. The people-now, through their elected members of Parliament, retain the final say on the interpretation and application of the constitutional rights recognized in the Human Rights Act.

Among the most influential critics of originalism was Ronald Dworkin, for whom historical factors like original meanings and intentions, though often important, are in no way dispositive in constitutional rights cases. They in no way fix the limits of government power until such time as an amendment passes or the constitution is abandoned or replaced. On the contrary, constitutions set the terms of an ongoing debate about the moral principles and values it enshrines. And as the political community’s understanding of these principles develops, the very content of the constitution develops and improves along with it. The framers’ contribution to this process is that they enacted some ‘general principles’ which future interpreters must constructively interpret (Dworkin 1996, 8–9; see relatedly Greenberg and Littman 1998). This arguably renders Dworkin’s constitutional theory a version of living constitutionalism.

A crucial element in Dworkin’s constitutional theory is his general claim that the law of a community, including its constitutional law, includes more than any explicit text or decisions authoritatively adopted or made in accordance with accepted procedures. It does, of course, include many such elements and these can be found, paradigmatically, in statute books, judicial decisions and, of course, written constitutions. These are often termed ‘positive law.’ But the positive law in no way exhausts the law according to Dworkin. Most importantly, for our purposes here, it in no way exhausts that part of the law referred to as ‘the constitution’. In Dworkin’s view, a constitution includes the principles of political morality that provide the best explanation and moral justification – i.e., the best interpretation – of whatever limits have been expressed in positive law, including the constitution and any decisions taken in application of it. Hence, constitutional interpretation must always invoke a theory of political morality. One concerned to interpret the limits on government power and authority imposed by a constitution must construct an interpretive theory that provides the written constitution, and the many decisions taken under it, with their best explanation and moral justification.

There are, for our purposes here, three important implications of Dworkin’s theory of constitutional interpretation. First, original intentions and understandings at best set the stage for the ongoing debates of political morality that constitutional rights cases both require and license. They seldom, if every settle matters. Second, constitutional rights cases require the kind of decision-making which is, according to originalism, properly undertaken only by those with the authority to fix the limits on government power contained within a constitution – i.e., its authors or framers. The kind of morally and politically uncontroversial judicial decision-making, within a stable framework established by other responsible agents, to which originalism aspires, is simply impossible on Dworkin’s theory. Dworkin’s theory, like (or as a form of) living constitutionalism, requires wholesale rejection of the fixed view. The constitution is not a finished product, handed down in a form fixed till such time as its amending formula is invoked, or the constitution abandoned or replaced. Rather, it is a work in progress requiring continual revisiting and reworking as our moral and political theories concerning its limits are refined and, it is hoped, improved. It is, in short, a living thing.

A third, related implication of Dworkin’s theory, is that judges in constitutional cases do not simply implement decisions made by others – the constitution’s authors or framers. On the contrary, they are partners with the authors in an ongoing political project, one that requires participants, then and now, to engage in the kind of moral and political decision-making which, on the fixed view, settled matters when the constitution was first adopted (or amended). The limits to government power are, on Dworkin’s theory, continually and essentially contestable. Interpreting the contestable terms of a constitution is an ongoing task, requiring that each and every interpreter provide her own best, and undoubtedly imperfect, interpretation of the limits placed on government by her constitution and the various official decisions taken under it. The latter can never be fixed.

One’s understanding of how constitutions limit power and how they ought to be interpreted depends, as noted above, on one’s conception of their role. For some, that role must be set against the background of the value pluralism that is characteristic of many modern societies. In light of this pluralism, they say, constitutions should not be committed to a particular understanding of the good but should, rather, serve to guarantee those essentials of political justice adherence to which is necessary for legitimating government power to citizens who hold a variety of comprehensive doctrines, that is, conceptions of justice and the good life. This so-called ‘liberal principle of legitimacy’ is taken to issue in an austere list of ‘constitutional essentials’ (Rawls 1996, 227ff; Michelman 2022, 51ff; Sager 2004, ch 8). According to one suggestion, the liberal principle of legitimacy sits more comfortably with the fixed view of constitutions and their meaning. Arguably, it is better served when the interpretation of constitutional essentials track their ‘central range’ (Rawls 1996, 273), thus presumably eliciting broad convergence. However, for other authors such as Michelman, the liberal principle of legitimacy might in fact be satisfied by a certain mode of constitutional argument, one oriented towards reciprocity, even when its application to concrete constitutional issues is disputed (Michelman 2022, 105 ff). In this picture, reciprocity takes seriously the fact of value pluralism and the corresponding requirement that constitutional arrangements be acceptable to all. But its precise contours are sensitive to the suitably constrained moral judgment of citizens and officials.

Opposing this approach is common good constitutionalism, according to which constitutions, even of pluralistic societies like the United States, are geared towards advancing – and must be interpreted in light of – a robust, unitary vision of the common good of society. According to its foremost contemporary proponent, Adrian Vermeule, constitutions and constitutional interpretation “should be based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate” (Vermeule 2020). More specifically:

[t]his approach should take as its starting point substantive moral principles that conduce to the common good, principles that officials (including, but by no means limited to, judges) should read into the majestic generalities and ambiguities of the written Constitution. These principles include … a candid willingness to ‘legislate morality’ – indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority. Such principles promote the common good and make for a just and well-ordered society. (Vermeule 2020)

Vermeule’s constitutional theory, further developed in his Common Good Constitutionalism , arguably represents a new alternative to the constitutional theories discussed above. But perhaps not. Vermeule himself characterizes his view as ‘methodologically Dworkinian,’ noting that it “advocates a very different set of substantive moral commitments and priorities from Dworkin’s, which were of a conventionally left-liberal bent” (Vermeule 2020). This may lead one to wonder whether Vermeule’s theory truly is an alternative to Dworkin’s theory of constitutions and their interpretation, or instead an alternative account of the conclusions Dworkin’s ideal judge, Hercules, (a mythical judge who always gets things right and whose decisions set the standard fallible judges strive to meet) would draw were he to set out to offer a grand interpretation of US constitutional law. (On Hercules, see Dworkin 1986, 239 ff.) Whatever answer one provides to this question, it is nevertheless worth considering whether the moral vision underlying Vermeule’s common good constitutionalism is one that only religious conservatives who share his moral views can endorse. And if it is, then should it frame our understanding of the nature and role of the constitutions of western liberal democracies? There is also the concern that common good constitutionalism has the potential to untether constitutional interpretation from both constitutional text and constitutional precedent, thus providing judges with far too much power to use the law to further that particular moral vision. (See, e.g., Barnett 2020)

Although constitutionalism has been widely embraced round the world, it is by no means without its detractors. This is especially true when we turn to those constitutions that not only create and regulate the offices of government but also purport to protect abstract rights of political morality. Some critics—we’ll call these the hard critics —assert that such apparently rights-protective constitutions cannot effectively and legitimately serve to protect individuals against the oppressive forces of governments. [ 20 ] On the contrary, they only serve to shroud legal and political practice in a false cloak of legitimacy. Other critics—we’ll call these the democratic critics —are not so utterly dismissive of rights-protecting constitutions. Rather, their main concern is to challenge the role that democratically unaccountable judges typically play in the interpretation and application of constitutional rights. This concern appears to arise most forcefully in relation to the interpretive theories of Dworkin, the moral judgments of common good constitutionalism and the judicial precedents of living constitutionalists. But the concern is no less acute when we consider new originalism and the ways in which it resorts to the constitutional constructions of judges.

According to hard critics, factors like original understandings and the supposed discipline of common law reasoning seldom, if ever, succeed in establishing meaningful limits upon government power. As a result, reliance on such factors in constitutional adjudication only serves: (a) to rationalize the purely political decisions of judges pursuing, consciously or not, their own political ideologies. Further consequences include: (b) a serious affront to democracy. In most constitutional democracies, the judges who ultimately decide constitutional cases are appointed, not elected. That is, they hold office not because they were selected to do so by the democratic community, but because of a decision on the part of a President, a Prime Minister, a small group of fellow judges, or a judicial committee of Parliament. Furthermore, these appointed judges tend to come from the privileged classes of society. The end result is a small group of unelected, elitist judges with the power to substitute their own, highly contentious views about the proper limits of government power for the considered judgments of the people’s representatives, e.g., those members of Congress or Parliament duly elected to exercise, on behalf of the people, the latter’s sovereign right to participate in political decisions affecting their basic rights. And possibly (c): suppression of those—women, minority racial groups, the poor, and so on—whose interests are not adequately recognized and protected by the dominant, mainstream ideologies to which these elite judges have an affinity. Instead of the curbing of rights-threatening government power for which the idea of constitutionalism is supposed to stand, we have political suppression disguised in a cloak of false constitutional legitimacy.

So hard critics are highly skeptical of constitutional practice and of those theories that applaud constitutionalism as a bulwark against oppression. [ 21 ] As noted at the outset of this entry, a key element in the idea of constitutionalism is that government can/should be limited in its powers and that its authority depends on observance of those limits. It was further noted that the authority of constitutions in constitutional democracies is generally thought to rest with ‘the people.’ One further claim of hard critical theories is: (d) that the concept of ‘the people’ is very much a fabrication. Instead of being composed of a group of individuals united in their concern for basic rights, western societies are comprised of various groups competing either for domination (e.g., white males and the wealthy) or for recognition and the elimination of oppression (e.g., the poor, women, and racial minorities). The law, including constitutional law, is a powerful tool which has, historically, been utilized by dominant groups to secure and maintain their superior status.

A particularly vivid example of this last consequence is arguably found in Lochner v New York , a notorious case in which the United States Supreme Court ruled that a New York State law requiring that bakery employees work no more than ten hours per day and sixty hours per week violated the Fourteenth Amendment, which asserts that no State may “deprive any person of life, liberty, or property, without due process of law.”. [ 22 ] The Fourteenth Amendment, the Court held, entails ‘the right and liberty of the individual to contract’ for a longer work week. The Lochner decision gave rise to what is commonly called ‘the Lochner era,’ a period stretching roughly from 1905 till 1937 in which the Supreme Court struck down numerous Federal and State statutes aimed at improving the working conditions of employees. As such, it may well have been a period during which the United States Constitution, in the hands of an elitist Court, served only to legitimize overt political suppression. According to hard critics, the Lochner era is but one small piece of a much larger picture.

To sum up, according to hard critics, a constitution is anything but the protection from unwarranted government power that its champions have heralded over the centuries. What is taken to be the obvious meaning of a key term like ‘equal before the law’ is what the dominant group understands or claims it to be. What is taken to be the obvious original understandings or historical intentions of the constitution’s authors are whatever understandings or intentions fit the ideologies of the dominant groups. What is taken to be the best articulation of the right to equality emerging from a fair and disciplined common-law analysis of that right, from a Dworkinian interpretive theory, or from an articulation of the common good is nothing but a rationalization of current social structures, all of which systematically oppress the interests of women, minorities and the poor.

As noted above, democratic critics tend not to be as utterly dismissive of constitutions and constitutional rights protections as their more hard-line cousins. Their principal objections revolve around a practice with which these aspects of modern constitutional regimes are typically associated: judicial or constitutional review . This is the practice whereby courts are sometimes called upon to review a law or some other official act of government (e.g., the decision of an administrative agency like the US Food and Drug Administration or the Canadian Radio-television and Telecommunications Commission) to determine its compatibility with the constitution. [ 23 ] Particular instances of this practice vary considerably. As noted above, in some jurisdictions, such as the United States, judicial review includes the power to ‘strike down’ or nullify a law duly passed by a legislature body or administrative body and the decision is final and irreversible. In other jurisdictions, the courts either do not have the power to strike down or nullify, or a decision to do so is reversible by some other body of government. As we saw, courts in the United Kingdom do not have the power to invalidate Parliament’s legislation, that is, declare it void and of no force and effect. But they do have the authority, under section 4 of the Human Rights Act 1998, officially to declare legislation incompatible with The Human Rights Act . Upon such a declaration, Parliament usually undertakes to amend or repeal the offending legislation. But should it chose not to do so, the legislation remains valid and the courts have no further legal recourse. In Canada, the Supreme Court has the power to strike down a law which it believes unjustifiably infringes a right guaranteed in Sections 2 or 7–15 of The Canadian Charter of Rights and Freedoms , but Section 33 of that same Charter grants Parliament or the legislature of a province the power to override that decision. This co-called ‘notwithstanding clause’ allows Parliament or a provincial legislature to declare that, notwithstanding its unjustifiable infringement of an enumerated right, the offending legislation will stand as constitutionally valid. Insofar as these two versions of weak-form review leave the final decision regarding the meaning and scope of a constitutional right and the limits it imposes on government powers in the hands of the legislature, it is touted by its defenders as consistent with democratic principle. According to critics of weak-form review, however, the practice strips the constitution of one of its most vital functions: the protection of individual and minority rights against what Mill, following de Tocqueville, famously called ‘the tyranny of the majority.’ [ 24 ]

Among the most influential of contemporary democratic critics is Jeremy Waldron. Waldron is, to put it mildly, no fan of constitutional review. Nor is he enamored of the grandiose constitutional charters and bills of rights which serve as the most contentious ground in terms of which that power is often exercised by courts. According to Waldron and his fellow democratic critics, constitutional review under an entrenched charter or bill of rights is fraught with both theoretical and practical difficulty. It threatens democracy and is both fundamentally unfair and politically dangerous. It also relies on outmoded views about the nature of moral rights—that there are objective, universal rights of political morality to which charters or bills of rights make reference, upon which there is widespread agreement within democratic communities, and to which judges can sensibly and justifiably be asked to appeal in protecting citizens against recalcitrant exercises of government power. While it is true that constitutional review need not be based on an appeal to abstract rights of political morality (it could, for example, be restricted to questions such as whether Congress or a provincial legislature has followed proper procedure) and true that it need not include the ability actually to strike down legislation, the main focus of democratic critics has been on strong-form constitutional review which exemplifies these two features.

According to democratic critics it is difficult to underestimate the considerable power which constitutional review under an entrenched charter or bill of rights places in the hands of judges who are, in modern constitutional democracies, typically unelected and hence not directly accountable to the democratic community. Despite their lack of accountability, these judges are assigned the task of providing authoritative answers to the deeply controversial questions of political morality that arise under constitutional review and with respect to which there is so much deep disagreement. Examples can range from the permissibility of abortion or physician-assisted suicide, to the banning of hate speech or the publication of violent and degrading pornography on the internet. On the basis of these highly controversial answers they end up determining what shall be deemed lawful in the community. This is far too much political power for a small group of unelected people to wield over an entire democratic community, no matter how learned and wise they might happen to be. But perhaps more importantly, the granting of such power is fundamentally undemocratic in principle: individual citizens have, in effect, been disenfranchised by this arrangement. Each citizen of voting age should have an equal right, in a democratic society, to contribute to the creation of the laws by which she is governed. This she exercises directly via the ballot box and by whatever contributions to public discourse and debate about controversial issues she chooses to make. She also does so indirectly via the legislative votes of her elected representatives, whose task is to represent her interests and opinions. Yet with strong-form constitutional review all this has been replaced by subjection to the pronouncements of judges. The duly considered views of citizens and their representatives about the laws by which they are to be governed, arrived at (it is hoped) through fair processes of democratic decision-making, have, in effect, been set aside in favour of the contentious moral pronouncements of a handful of democratically unaccountable, elite judges. This unhappy situation is further exacerbated by the undeniable fact that judges on appeal courts often disagree vehemently among themselves about rights of political morality and must often, in the end, rely on majority voting to settle their own disagreements. It is not at all uncommon to see split votes when a court deals with a contentious issue of moral principle like affirmative action, abortion or pornography. And often these split votes follow patterns which are closely correlated with the all too discernible political leanings of judges. [ 25 ] Add to this the fact that judges render decisions which all too often appear to conflict not only with views widely shared in the community at large, but also with their own previous decisions in earlier cases, and what might seem like a marvelous idea in the abstract—constitutionally guaranteeing moral rights and fundamental interests against the abuse of government power—is transformed into a living nightmare. A nightmare in which democracy, fairness and the rule of law have, in effect, been abandoned and replaced by the rule of a few men and women, by a kind of ‘judicial oligarchy.’ And no matter the high esteem in which we tend to hold our judges in modern constitutional democracies, this is not a form of government to be eagerly embraced.

Critical theories, both hard and democratic, represent a serious challenge not only to conventional theories and established practices of constitutional interpretation, but to the very idea of constitutionalism itself—the idea that government can and should be limited in ways that serve to protect us from unwarranted state power. According to originalism, the constitution protects us from judges and other officials by restricting them (largely) to politically and morally uncontroversial, neutral decisions about historical intentions and understandings. According to one strand of living constitutionalism, our evolving constitution can do the same while at the same time allowing the constitution to grow and adapt to changing circumstances and (it is hoped) better moral understandings. It can effect this balancing act so long as the judges, in whom the power of constitutional interpretation and enforcement has largely been placed, are willing to subject their deliberations to the discipline of common law reasoning. Critics, however, remain highly skeptical. Ordinary judges are not, critical theorists will insist, Platonic kings and queens, dispensing justice in the light of objective moral truth. We must always remember, critics insist, that our judges are ordinary, flawed human beings with all the intellectual and moral shortcomings, weaknesses and biases of their fellow human beings. They are also, more often than not, members of a dominant group (e.g., wealthy, white males) who share the social background, education, perspective, and moral values of that group. But if constitutions are all at the mercy of dominant ideologies and the whims and convictions of elite judges, then the kind of protections heralded by the idea of constitutionalism may be a myth, and a harmful one at that.

So what is the solution according to critical theorists? The proffered solutions can vary considerably, depending on how hard-line the theorist tends to be. A theocrat might advocate the complete overthrow of constitutional, democratic government, while a liberal feminist critic might be content to work within existing constitutional systems to eradicate the vestiges of patriarchy which have survived recent feminist movements (MacKinnon, 1989; Strossen 1995). Waldron and his fellow democratic critics ague that we should abandon the practice of constitutional review of legislation under entrenched charters or bills of rights and leave political decisions where they belong: the people and their elected and accountable representatives (Waldron, 1992, 2006; Marmor, 2007). Yet another avenue of response is to highlight the extent to which the critics’ most powerful objections apply only to strong-form review, where judicial decisions are final and can have the effect of nullifying the efforts of democratically accounted legislatures. Having pointed this out, the next move is to recommend weaker forms of review which arguably reflect a healthier balance between respect for fundamental rights, on the one hand, and the importance of democratic procedure on the other (Gardbaum, 2013). Were an effective version of something like Canada’s Section 33 override included within a constitution, the courts might well be able to maintain their intended role as defenders of rights, while leaving the final word to the legislature in cases where intractable differences of opinion run deep.

In recent years another solution has been offered by populism. Although often seen as antithetical to constitutionalism (Müller 2016) because of its perceived tendency towards totalitarianism, populism could instead be viewed as a reaction to a specific form of constitutionalism and the type of constitutional practice to which it lends itself (Vergara 2020). Thus understood, populism targets constitutional constraints that take political power away from the people and place it in the hands of elites, most notably the judges who decide constitutional cases but also, to some extent, elected representatives. Conversely, it favors constitutional arrangements that allow for or encourage broad public participation and deliberation in respect of controversial issues of political morality, especially with a view to empowering and engaging in the political process the marginalised and excluded segments of society (Gargarella 2022). Although this solution is animated by egalitarianism, just like Waldron and other democratic critics, it insists that it is not enough to point to the legislature –even a reasonably well formed one– as the forum that vindicates political equality. Indeed, we may have to look beyond traditional institutional forms to reinvigorate the polity.

Whatever the preferred solution, all critics of constitutionalism seem to agree that progress can be made only if the myths surrounding constitutional protection—the constraining force of original understanding, intention, history, the discipline of common law, and so on— are all exposed, and that the true political forces at work in constitutional practice are acknowledged and dealt with openly. Whether the idea of constitutionalism can survive the lessons of such critical scrutiny is a very good question.

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Austin, John | authority | democracy | Hobbes, Thomas | Locke, John | rights | sovereignty

Acknowledgements

A special word of thanks to Scott Shapiro for his very helpful comments on an earlier draft of this revised entry.

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• Introduction

Political constitutionalism: from mixed government to representative democracy

• Legal constitutionalism: from the separation of powers to rights and judicial review
• Political and legal constitutionalism compared

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constitutionalism , doctrine that a government’s authority is determined by a body of laws or constitution . Although constitutionalism is sometimes regarded as a synonym for limited government, that is only one interpretation and by no means the most prominent one historically. More generally constitutionalism refers to efforts to prevent arbitrary government.

At its most generic level, arbitrariness consists in the capacity of rulers to govern willfully—that is, with complete discretion—and to serve their own interests rather than those of the ruled. Constitutionalism attempts to avoid these dangers by designing mechanisms that determine who can rule, how, and for what purposes. However, constitutional traditions differ as to what precisely counts as an arbitrary act and which mechanisms offer the best defense against arbitrary acts occurring. The classical republican tradition, as related by its neorepublican interpreters to political constitutionalism, identifies arbitrariness with domination of the ruled by their rulers and seeks to avoid it by establishing a condition of political equality characterized by a balance of power between all the relevant groups and parties within a polity, so that no one can rule without consulting the interests of the ruled. The more modern, liberal tradition identifies arbitrariness with interference with individual rights and seeks to establish protections for them via the separation of powers and a judicially protected constitution.

Both traditions are present within most democracies and can be found side by side in many constitutions. The first tradition focuses on the design and functioning of the democratic process, including the selection of electoral systems and the choice between presidential or parliamentary forms of government, of unitary or federal arrangements, and of unicameralism or bicameralism. Although the detailing of these procedural mechanisms and the relations between them usually forms the bulk of most constitutional documents, their constitutional importance has come to be eclipsed—in legal circles particularly—by the second tradition. This view emphasizes the specification and judicial protection of the different competences of the political system and of constitutionally entrenched rights by a constitutional court. Political theorists and scientists disagree, however, on whether these two traditions are complementary, mutually entailed, or incompatible. The second is often seen as necessary to ensure the fairness of the procedures and/or the outcomes of the first. Yet it lays itself open in turn to doubts about whether courts are, or could ever be, truly bound by constitutions so that law rather than judges rule and, if so, whether judicial processes are not more arbitrary and prone to error for deciding constitutional outcomes than the democratic procedures and outcomes they are often thought to legitimately limit. In the following sections, this entry traces these two traditions and then turns to exploring their respective advantages and disadvantages and any tensions and complementarities that exist between them.

Two traditions of constitutionalism

The theory of mixed government originated with ancient thought and the classification of political systems on the basis of whether one, a few, or many ruled. According to this theory, the three basic types of polity—monarchy, aristocracy , and democracy—were liable to degenerate into tyranny , oligarchy , and anarchy , respectively. This corruption stemmed from the concentration of power in the hands of a single person or group, which created a temptation to its abuse through allowing arbitrary rule. The solution was to ensure moderation and proportion by combining or mixing various types. As a result, the virtues of each form of government, namely, a strong executive, the involvement of the “better” elements of society, and popular legitimacy, theoretically could be obtained without the corresponding vices.

Three elements underlie this classic theory of mixed government. First, arbitrary power was defined as the capacity of one individual or group to dominate another—that is, to possess the ability to rule them without consulting their interests. To be dominated in such an arbitrary way was to be reduced to the condition of a slave who must act as his or her master wills. Overcoming arbitrariness so conceived requires that a condition of political equality exist among all free citizens. Only then will no one person or group be able to think or act as the master of others. Second, the means to minimize such domination was to ensure that no one could rule without the support of at least one other individual or body. The aim was to so mix social classes and factions in decision making to ensure that their interests were given equal consideration , with each being forced to “hear the other side.” To quote another republican motto, “The price of liberty is eternal vigilance,” with each group watching over the others to ensure that none of them dominated the other by ignoring their concerns. Third, the balance to be achieved was one that aspired to harmonize different social interests and maintain the stability of the polity, preventing so far as was possible the inevitable degeneration into one of the corrupt forms of government.

Thus, mixed government provides a model of constitutionalism according to the institutions that structure the way decisions are taken. Although elements of the theory can be found in Aristotle’s Politics , the locus classicus is Book VI of Polybius’s Histories . He underlined its prime purpose as providing mechanisms whereby no individual, body, or group could rule alone, thereby curbing the descent into tyranny, oligarchy , or anarchy. Polybius regarded the republican constitution of ancient Rome as exemplifying this theory. Thus, the consuls (highest of the ordinary magistracies in the ancient Roman Republic) provided the monarchical element, the Senate provided the aristocratic, while the popular element was represented by the Tribunes of the People, the Plebeian Council, and the electoral, judicial, and legislative powers the people could exercise directly. As he noted, the key feature of Roman republican government was that each of these three groups exercised slightly different powers but required the cooperation of the others to do so. So consuls might exercise war powers, yet they needed the Senate to approve generals, reward them, and provide the necessary funds, whereas the people approved treaties and could try high officials and generals for misconduct. Meanwhile, the more-executive roles possessing the most discretion were further weakened by their power being shared among multiple officeholders and its being dependent on elections and of short duration. Thus, there were two consuls, each able to veto the other’s decisions; 10 tribunes with similar countervailing powers; and so on, with none able to hold office for more than a year.

The resulting need for different groups to work together was summarized in the slogan Senatus Populusque Romanus (“The Senate and the Roman People,” frequently abbreviated to SPQR). In reality, though, their relationship was far from harmonious, with the patrician element largely predominating, except when factional disputes led a given group among them to seek the support of the plebeians (the general citizenry). The conflict between social classes was given greater emphasis by Niccolò Machiavelli , who offered a radical version of the Polybian argument in his Discorsi . He observed how all polities contain two classes, the nobles ( grandi ) and the people ( popolo ), whose desires conflict. However, he claimed that their discord , far from being destructive, actively promoted “all the laws made in favour of liberty”—each was led to promote freedom by virtue of seeking ways of checking the arbitrary power of the other. However, like Polybius, Machiavelli believed that all systems ultimately become corrupt and degenerate into either tyranny or anarchy—the balance of power merely serving to stave off this inevitable cycle.

The 17th and 18th centuries brought three main changes to the doctrine. The first, explored below, was the development of the separation of powers as a variation on the doctrine of mixed government. The theory of mixed government involves no clear distinction between the different branches of government. Executive, legislative, and especially judicial tasks were shared between the different social classes and exercised by all the government bodies. Indeed, the popular element exercised certain legislative and judicial functions directly through plebiscites and as jurors. The second change was in the type of “balance” mixed government was supposed to achieve. The classic theory took the idea of the “body” politic literally. Just as bodily health was said to rely on a sound physical constitution and a balanced diet and way of life, so the health of the polity depended on a sound constitution that achieved a “natural” balance between the various organs and “humors” of the political body. As we saw, in line with this organic imagery, the aim was to hold off the inevitable degeneration and corruption of the system. Balance was a static equilibrium , designed to maintain the status quo. However, the 17th and 18th centuries saw a new, more dynamic notion of balance, inspired by Newtonian physics and based on mechanics and physical forces. In this conception , balance could involve a harnessing of opposed forces, holding them in a dynamic equilibrium that combined and increased their joint power. The change can be seen in the notion of the “balance of trade,” which went from being an equal exchange of goods between states to a competition between trading nations that encouraged their mutual productivity and innovation . In this account, the “cycle of life,” where growth was followed by decay, became replaced by the idea of progress, in which change and transformation had positive connotations .

The third development drew on the first two. This was the idea that political balance now consisted of the competition between government and a “loyal” opposition. As parties evolved from simple factions and patronage networks among rivals for office to electoral machines defined as much by ideology and social composition as by the personal ambitions and interests of the political class, they became the organs of this new type of balance. In keeping with the older theory of mixed government, one of the virtues of parties was their ability to mix different social classes and interests and combine them around a common program. Indeed, just as economic competition led rival firms to compete over price, innovate, and explore untapped markets, so electoral competition led rival parties to compete over policy efficiency and effectiveness, devise novel forms of delivery, and focus on areas appealing to different sections of the electorate. This modern form of political constitutionalism has proven constitutional in both form and substance. Equal votes, majority rule, and competitive party elections offer a mechanism for impartially and equitably weighing and combining the views of millions of citizens about the nature of the public good. And in making politicians popularly accountable, it gives them an incentive to rule in nonarbitrary ways that respond to the concerns of the different minorities that form any working majority, thereby upholding both rights and the public interest rather than their own interests.

Meanwhile, mixed government has developed in new ways through federal and convocational arrangements that likewise seek to ensure that different kinds of interest are involved in the policy- and lawmaking processes on an equal basis. Yet nobody would deny that the systems of most democracies are far from perfect, and it has become increasingly common to look to other constitutional traditions to rectify these problems.

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Positive and Negative Constitutionalism and the Limits of Universalism: A Review Essay

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Adrienne Stone, Lael K Weis, Positive and Negative Constitutionalism and the Limits of Universalism: A Review Essay, Oxford Journal of Legal Studies , Volume 41, Issue 4, Winter 2021, Pages 1249–1271, https://doi.org/10.1093/ojls/gqab012

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In The Principles of Constitutionalism , Nicholas Barber provides a sophisticated yet highly readable introduction to fundamental constitutional principles. At the same time, Barber seeks to reorient constitutional theory scholarship away from a mistaken ‘negative’ understanding of constitutionalism towards a ‘positive’ understanding. This essay examines that argument. We suggest that the idea of ‘positive constitutionalism’ has a weaker and a stronger sense. In its weak form, the argument calls for greater attention to what constitutions enable as well as what they restrict, and thus serves as a welcome reminder of the full potential of constitutional principles. However, it cannot be regarded as the correction of a widespread mistake. In its strong form, the argument calls for greater recognition that the state’s essential function lies in advancing the ‘well-being’ of its members. Although this amounts to a significant reorientation, it weakens the theory’s claim to universalism. These tensions indicate limitations to efforts to construct general theories of constitutionalism.

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Constitution and constitutionalism : a study perspective in India

This article is written by Aksshay Sharma , from Department of Laws, Punjab University, Chandigarh. This article explains the concept of constitutionalism and how it has been applied in the Indian Constitution.

Table of Contents

Introduction

Constitutionalism is a philosophy which is essential for a democratic setup. It ensures that the freedoms of the individual are given primacy and the State does not encroach upon the liberty of the citizen. It ensures that the government is limited and prevents it from turning the democratic setup into dictatorial and authoritative.

Constitutionalism is a philosophy which is evolutionary in nature. But the central point of Constitutionalism is a “Limited Government”. Constitutionalism recognises the need for a government but at the same time also insists upon restraining its (government’s) power.

According to Michel Rosenfeld , there is “ no accepted definition of constitutionalism but, broadly, modern constitutionalism requires imposing limits on the powers of government, adherence to the rule of law, and the protection of fundamental rights”.

According to Giovani Sartori, constitutionalism calls for restriction on the arbitrary power of the State.

Similarly according to McIlwain, constitutionalism means “ legal limitation on government. It is the antithesis of arbitrary rule. Its opposite is a despotic government, the government of will instead of the law.

Thus constitutionalism means the limitation of government by law. Magna Carta (1215) implies Constitutionalism. It placed a restriction on the power of England’s King John.

Carl Friedrich writes in his Constitutional Government and Democracy that Constitutionalism is built on a simple idea, that the government is organised by people and operated on behalf of the people, but is subject to a series of restraints which attempt to ensure that the power which is needed for such governance is not abused by those who are called upon to do the governing.

Elements of constitutionalism

According to Louis Henkin Constitutionalism implies,

• Popular sovereignty
• The supremacy of the Constitution and Rule of Law
• Political Democracy
• Representative Limited Government
• Separation of Power
• Civilian Control of the Military force
• Police governed by Law and Judicial Control
• An Independent Judiciary

All these elements restrict the power of the State in a particular way. 

According to Michel Rosenfield, modern Constitutionalism requires limits on the power of the government along with the adherence to the Rule of Law and protection of Fundamental Rights.

Negative and positive constitutionalism

Negative constitutionalism.

It is to be noted that the traditional idea of Constitutionalism (as stated above) is a Negative notion of Constitutionalism. Nick Barber calls it “negative Constitutionalism”. In law, a negative understanding of an idea means when it prevents an entity from doing a certain act.

The traditional understanding of Constitutionalism fails to explain the positive role that the States play. The common understanding of Constitutionalism is negative in nature because it considers Constitutionalism as only restricting and limiting the power of the state. From the prism of negative Constitutionalism, a State is a danger that needs to be constrained. The role of law is to limit the dangerous capacities of the executive and legislative branches. For instance, the purpose of Separation of power is to protect the liberty of citizens, by restricting the arbitrary action of the state.

Negative Constitutionalism requiring a constitutional structure which prevents the State action is not always desirable. This understanding of Constitutionalism makes it harder for the state to provide health-care and poverty alleviation schemes, which requires government intervention. Thus it is not desirable especially in India which is a welfare state and which aspires to social and economic justice as well along with political justice.

It is because of this that Jeremy Waldron criticises negative Constitutionalism as being anti-democratic. For Waldren, this understanding of Constitutionalism is fundamentally flawed. For him, this understanding of Constitutionalism is against the notion of Egalitarianism which for Waldron is at the core of a Democracy.

Positive constitutionalism

Positive Constitutionalism challenges the understanding of seeing Constitutionalism entirely in terms of limits upon the State. The positive aspect of Constitutionalism requires the State to be seen in the light of a “Welfare State”. The positive version of Constitutionalism requires the creation of effective and competent state institutions to ensure the well being of its citizens. 

According to M.P. Singh if a Constitution ignores accommodation and respect for diversity and plurality in a society then it fails to meet the requirement of constitutionalism. Several older constitutions that have ignored this aspect of constitutionalism have introduced it either through judicial interpretations, amendments, appropriate legislation and constitutional application.

Need for constitutionalism

The requirement of Constitutionalism as a limitation on the power of the state has been explained by Prof. B. O. Nwabueze in his book “Constitutionalism in the Emergent States, 1973 . According to him “ the last 30 years (starting from 1973) has demonstrated that the greatest danger to constitutional government in emergent states arises from the human factor in politics”, specifically “from the capacity of politicians to distort and vitiate whatever governmental forms may be devised”. 

According to him , “a lot depends upon the actual behaviour of these individuals and upon their willingness to observe the rules.

He says that “the successful working of a constitution depends upon the ’democratic spirit’, that is, a spirit of, fair play, self-restraint and mutual accommodation of differing interests and opinions. There can be no constitutional government unless the wielders of power are prepared to observe the limits upon governmental powers”.

In S.R. Chaudhuri v. State of Punjab (2001 ), constitutional restraints must not be ignored or bypassed if found inconvenient or bent to suit “political expediency”. We should not allow the erosion of principles of constitutionalism.

In New India Assurance Company Ltd. v. Nusli Neville Wadia (2007) , the Court said that “For proper interpretation of Constitutional provisions not only the basic principles of natural justice have to be borne in mind, but also principles of constitutionalism involved therein.”

A constitution is no guarantee for constitutionalism

A written Constitution is no guarantee for Constitutionalism. Even Nazi Germany had a constitution but that does not mean that it adhered to the philosophy of Constitutionalism be it a negative or positive aspect of it.

As the Supreme Court said in S.R. Chaudhuri v. State of Punjab (2001) “the mere existence of a Constitution, by itself, does not ensure constitutionalism. What is important is the political traditions of the people and its spirit and determination to work out its constitutional salvation through the chosen system of its political organisation.”

Unless primacy to democratic policies and individual rights is not given Constitutionalism cannot survive. Subtle assaults to individual rights especially freedom of Speech and Expression and privacy, such as sedition laws, surveillance laws, undermine Constitutionalism.

Agin in R.C. Poudyal v. Union of India (1994) court said that,

“ Mere existence of a Constitution, by itself, does not ensure constitutionalism or a constitutional culture. It is the political maturity and traditions of people that give meaning to a Constitution which otherwise would merely embody the political hopes and ideals”.

For constitutionalism, a constitution needs to have some qualities which would either restrain the government from acting against its citizens or compel it to act for securing a dignified life to each one of them

Constitutionalism in India

Various Constitutional provisions contain in itself, inter-alia the philosophy of Constitutionalism.

A state by the constitution

The Indian State is a result of the Constitution of India. Indian Constitution not just provides the rights and immunities to the citizen, but it also delineates the character and structure of the Indian State. Therefore it can also be said that the powers and extent of the Indian State are limited by the Constitution. Its actions are guided by the Directive Principle of State Policy . The Indian State cannot function beyond what the Constitution provides.

Article 21 and due process of law

Article 21 of the Indian Constitution provides that life and liberty cannot be deprived except by a procedure established by law. This means that there has to be a legal justification for the deprivation of life and liberty of a person. The requirement of law for deprivation acts as a limitation on the arbitrary exercise power of the legislature as well as the executive.

Further such a law should not be just a mere prescription, it must conform to the American Due Process which involves law to have the element of “Fundamental Fairness”.

In Swaran Singh v. State of U. P. (1998) the Court observed that public power, including constitutional power, must never be exercised arbitrarily or malafide, and ordinarily guidelines for fair and equal execution are guarantees of valid use of power. The power being of the greatest moment, cannot be a law unto itself but it must be informed by the finer canons of constitutionalism.

These requirements of Law and of Due process restrict the power of the state. Any violation of these principles would enable the courts to strike down the law.

Fundamental rights

Fundamental rights are the most basic bulwark against the arbitrary exercise of the power of the state. Fundamental Rights act as restraints on the states, directing states what not to do. They serve as negative covenants for the state.

In IR Coelho v. State of Tamil Nadu and Ors (2007) court observed that the principle of constitutionalism is now a legal principle which requires control over the exercise of Governmental power to ensure that it does not destroy the democratic principles and these democratic principles include protection of Fundamental Rights. The principle of constitutionalism is based on the principle of legality which requires the Courts to interpret the legislations on the presumption that the Parliament would not intend to legislate contrary to fundamental rights. The Legislature can restrict fundamental rights but it is impossible for laws protecting fundamental rights to be impliedly repealed by future statutes.

For instance, no law can be made by the state which treats two people who are situated in equal circumstance unequally since it will amount to a violation of Article 14 of the Indian Constitution. Similarly, Freedom of Speech and expression under Article 19(1)(a) can be restricted only on the ground mentioned in Article 19(2) only i.e. It can be restricted only if the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, or public order, decency or morality is threatened or if the speech is in relation to contempt of court, defamation or incitement to an offence. The freedom of speech cannot be restricted by the state on any other grounds. Thus, these restrictions on speech act as limits on the power of the state in the sense that it delineates the extent to which the state can curb freedom of speech.

Written constitution

Indian Constitution being written, codified and regarded as supreme law of the land, the Indian State is thus controlled and restricted. Restricted in the sense that it cannot go beyond the limits and mandate of the Indian Constitution. The mandate of the state cannot go beyond the Directive Principles of State Policy, enshrined in Part IV of the Indian Constitution.

Being a written Constitution it firstly provides for a limited government, which is the core of Constitutionalism. The sovereign powers are divided among 3 organs of the government. Powers of each organ are defined by the constitution and no organ or its instrumentalities can transgress its limits. 

Further, a written Constitution provides for fundamental law of the land and thus the legislature is bound by the Constitutional principles. The legislature cannot make a law which violates the Constitution. Thus the power of the Constitution is restricted.

In the State (NCT of Delhi) v. Union of India (2018) , the court said that:

“ The constitutional functionaries owe a greater degree of responsibility towards this eloquent instrument for it is from this document that they derive their power and authority and, as a natural corollary, they must ensure that they cultivate and develop a spirit of constitutionalism where every action taken by them is governed by and is in strict conformity with the basic tenets of the Constitution”.

Separation of power

Separation of powers means that the powers of the state are divided among the three principal organs of the government, which are “the Executive”, “the Legislature”, and “the Judiciary”. Each of the organs is restricted to transgress its limits and this system ensures a check on the power of the other, thus restraining them from acting arbitrarily and unreasonably, without due regard to due process.

In the State (NCT of Delhi) v. Union of India (2018) , Chief Justice Mishra observed that “ The essence of constitutionalism is the control of power by its distribution among several state organs or offices in such a way that they are each subjected to reciprocal controls and forced to cooperate in formulating the will of the state.

The design and character of the Indian Constitution ensure that the powers of the Executive and the Legislature is limited so that the discretion given to these organs does not turn into arbitrariness, an arbitrary exercise. The Fundamental Rights, the basic structure, federal setup of the administration, the amendment procedure all limit the State in a particular way.

• G Sartori, ‘Constitutionalism: A Preliminary Discussion’ (1962) 56 The American Political Science Review 853, 855
• Charles Howard McIlwain, Constitutionalism: Ancient and Modern [1947]
• Barber, Nicholas W (University of Oxford – Faculty of Law), Introduction: Constitutionalism (February 16, 2015). Oxford Legal Studies Research Paper No. 7/2015, Available at SSRN
• CONSTITUTIONALISM IN INDIA IN COMPARATIVE PERSPECTIVE by Prof. (Dr.) Mahendra Pal Singh

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The first amendment, democratic constitutionalism.

by Robert Post and Reva Siegel

The Constitution is the law of lawmaking. It structures and limits the powers of government. Sometimes the Constitution speaks in precise and unambiguous terms. It provides, for example, that the “Senate of the United States shall be composed of two Senators from each State.” Constitutional controversies are relatively rare when the Constitution speaks in this concrete, rule-bound way.

But often constitutional provisions are elliptical and incomplete, filled with grand abstractions. The Constitution gives Congress the power “to regulate Commerce . . . among the several States,” and it forbids Congress from making any “law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.” The Constitution provides that “No State shall make or enforce any law” that denies “to any person within its jurisdiction the equal protection of the laws” or that deprives “any person of life, liberty, or property, without due process of law.” Terms like “commerce,” or “the freedom of speech,” or “equal protection,” or “due process of law” are not precise or self-defining.

Over the centuries the meaning of these essential but obscure constitutional provisions has been subject to fierce debate. Our interpretation of these provisions has evolved dramatically as the nation has developed. In the 19 th Century, congressional commerce power did not include the right to regulate manufacturing or to protect the rights of employees; these were conceived as matters that states alone could control. But by the end of the 20 th Century, congressional commerce power had expanded beyond anything the Framers foresaw or imagined. Congress now routinely enacts laws establishing social security, enforcing fair labor standards, and prohibiting discrimination in employment.

Constitutional change of this kind is commonplace. For over 120 years, the First Amendment’s reach was quite limited. Government could use criminal law to punish persons who published seditious libel, which is speech that challenges public authority. But through cases decided in the last eighty years, we have come to understand that the primary purpose of the First Amendment is to protect from criminal sanctions speech that criticizes the government. Similarly, the Equal Protection Clause was originally interpreted to authorize racial segregation that was “separate but equal.” But in 1954 the Clause was reinterpreted in the famous case of Brown v. Board of Education to prohibit racial segregation.

Although the literal text of these important constitutional provisions has remained unaltered, the meaning of these texts has dramatically evolved. All historians agree that the interpretation of important constitutional texts has constantly changed over the life of the nation. What is the significance of this fact? 

For some, change of this kind is a problem. They look to the Constitution to stand outside of politics and fix the structure of our government. They believe that the chief function of constitutional law is to offer permanence and stability. On this account, the Constitution’s authority flows from consent, from the fact that “We, the People” have ratified the document in 1789. If change is necessary, we must pursue the arduous amendment procedures of Article V to obtain the authority necessary to alter the text of the Constitution. The Constitution’s authority thus flows solely from formal acts of ratification; the Constitution can change only through the rigorous amendment procedures specified in Article V. 

This view of the Constitution is well illustrated by Justice Scalia’s dissent in the recent case of Obergefell v. Hodges (2015) in which the Court held that the Due Process Clause and the Equal Protection Clause prevent states from refusing to marry same-sex couples. Objecting to the Court’s opinion, Justice Scalia asserted:

When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as ‘due process of law’ or ‘equal protection of the laws’—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.  

In this passage Justice Scalia adopts a view of constitutional interpretation that is called “originalism.” Originalism holds that the Constitution should be interpreted as a contract whose meaning is fixed at the moment of ratification.

Some aspects of the Constitution do seem to conform to this account. There are certain parts of the Constitution which we do not experience as ambiguous. These portions of the Constitution in fact seem to stand outside politics and to structure the “rules of the road” for our political life. Good examples are the constitutional rules establishing a bicameral Congress or providing that a presidential veto can be overruled only by a two-thirds vote of the Senate and the House. These aspects of the Constitution can be changed, if at all, only through the arduous process of constitutional amendment.

But this account does not well describe other, more ambiguous parts of the Constitution. The Court has not bound its interpretation of the Constitution’s more abstract clauses, the clauses that set forth fundamental rights, by the understandings of those who ratified these clauses. The Court’s interpretation of “freedom of speech” or “equal protection of the laws” or “due process” has evolved continuously since the ratification of these constitutional texts. 

A good example is how the Equal Protection Clause came to be interpreted to prohibit sex discrimination. For more than 130 years after the ratification of the Constitution, states treated women unequally to men. State laws prevented women from becoming lawyers and obtaining many other forms of employment, and even denied women the right to vote. But women organized, first to obtain the right to vote, and then to secure legislation guaranteeing equality of treatment by government and employers. Although an attempt to amend the Constitution to prohibit sex discrimination failed, the Court nevertheless in 1973 signaled that the Equal Protection Clause would henceforth be interpreted to require the equal treatment of women. Writing a plurality opinion for the Court, Justice Brennan in Frontiero v. Richardson (1973) explicitly noted that the Court would change its interpretation of the Equal Protection Clause in part because “over the past decade, Congress has itself manifested an increasing sensitivity to sex-based classifications.” The Court adjusted its interpretation of the Equal Protection Clause to incorporate the new national ideal of gender equality, which had emerged through decades of political contestation and mobilization.

The Court’s canonical decision in Brown v. Board of Education (1954), which interpreted the Equal Protection Clause to forbid racial segregation, reflects exactly this kind of sensitivity to altered popular values. Those who ratified the Fourteenth Amendment did not understand the Amendment to require desegregated public schools. But racial discrimination had become unacceptable to most Americans in the years after our struggle against Nazism in World War II. In our own time, Justice Kennedy’s opinion for the Court in Obergefell struck down prohibitions on same-sex marriage in part because of the extensive national “deliberation” that the Court believed had caused the country to change its views regarding the justice of same-sex marriage.

Political scientists have shown time after time that judicial review regularly and unavoidably translates deeply-held popular convictions into positive constitutional law. In this way both liberal and conservative understandings have come to shape our interpretation of the Constitution. It is plain, for example, that the Court’s recent creation of individual Second Amendment rights owes far more to the values of mobilized gun advocates of the 1980s and 1990s than to 18 th century ideas. The Court’s recent efforts to restrict affirmative action, or to limit the reach of federal power to regulate interstate commerce, or to limit Congress’s authority to enact legislation enforcing the Fourteenth Amendment, are all responsive to contemporary conservative political mobilization. 

Throughout American history, in contexts both liberal and conservative, the Court has consistently interpreted the Constitution to reflect fundamental contemporary values. The Court has rarely regarded the Constitution as a petrified contract, fixed by terms ratified in the distant past. It has instead appealed to a Constitution whose authority must be earned in each generation. Seen from this angle, the Constitution by which we are governed is plainly not outside of politics. Its authority depends, in part, on its historical lineage and, in part, on its capacity to express living Americans’ understanding of their deepest ideals.

Of course in a large and heterogeneous nation there is bound to be disagreement about the meaning of the Constitution’s commitments to fundamental rights. For this reason, some fear that if the Court were to interpret the Constitution in ways that respond to contemporary ideals, our constitutional order might be undermined by instability and insecurity. This is the fear that underlies originalism as a theory of constitutional interpretation. The hope is that by limiting the Constitution’s interpretation to its original meaning, we can avoid conflict. In the name of this fear, originalists would bind constitutional meaning to the views of those who first consented to the Constitution in 1789, or to the Bill of Rights in 1791, or to the Fourteenth Amendment in 1868. 

This theory has a superficial plausibility. Its attractiveness, however, dissolves on closer inspection. No American alive today was involved in the ratification of these constitutional texts. How, we may ask, are contemporary Americans bound to a contract they did not make? Is it reasonable to ask living Americans to identify with the Framers’ agreement when many—for example, women and African Americans—would not have been permitted to vote had they been alive at the time of the Founding or even when the Fourteenth Amendment was ratified? The prospect of being bound to a document whose meaning was completely fixed by strangers would likely be most alienating. Nor would the infinitesimal possibility of amending the Constitution substitute for the lack of consent by living Americans. Unlike the Constitution of the State of California or the Constitution of India, it is almost impossible to amend the Constitution of the United States. Since 1789, the nation has used the procedures of Article V to ratify only 27 amendments. Instead we have relied on other provisions of the Constitution to enable constitutional change, including those authorizing the democratically elected Congress and President to create federal courts and to appoint federal judges. 

Originalists like Justice Scalia claim to reject change that occurs through judicial interpretation. They argue that judges should instead be bound to the Constitution’s original meaning because this will create a neutral and mechanical way to settle disputes over the Constitution’s meaning. The argument may be appealing, but its logic does not hold. Original meaning is not a simple fact waiting to be uncovered. If it were, the relevant experts would surely be historians who know far more about the facts of the past than judges. But historians rarely understand legal texts to have one meaning for all who ratify them. Uncovering “original meaning” requires interpretive judgment. That is why originalists frequently disagree among themselves. There were originalists arguing on both sides of the Obergefell case—some claiming that bans on same-sex marriage were not prohibited by the original meaning of the Constitution, and some claiming that they were. Because there are many ways to determine the “original meaning” of the Constitution, originalists often seem to “discover” original meanings of the Constitution that are consonant with their own values and ideals.

If it appears strange to interpret the Constitution in light of contemporary “deliberation,” consider that constitutional interpretation has proceeded in this way since the beginning of the Republic when the country debated the constitutionality of a national bank. Judges interpreting the Constitution regularly look to the nation’s history, to the Constitution’s text, to the structure of American government, to judicial precedent, to practical reason, and to the nation’s ideals as they decide the Constitution’s meaning. Judicial interpretations of the Constitution typically embody the stability and predictability that characterize all judge-made law, of which our own common law is a conspicuous example. If the end result of this complex process of decision-making were not consonant with the fundamental values of the American people, the authority of the Constitution would diminish. 

The point is well illustrated by the case of Bolling v. Sharpe (1954). Bolling was a companion case of Brown ; it decided whether Washington, D.C. could operate a school system that was racially segregated. Brown had interpreted the Equal Protection Clause of the Fourteenth Amendment, which applies only to states, to prohibit school segregation in the states. But Washington D.C. is not a state; it is instead a federal territory. The Fifth Amendment, which applies to the federal government and was ratified in 1791, contains a Due Process Clause, but not an Equal Protection Clause. In Bolling the Court interpreted the Due Process Clause of the Fifth Amendment to prohibit racially segregated schools. This conclusion could not possibly be explained in terms of the original meaning of the Fifth Amendment, because in 1791 slavery was an accepted fact of American life, woven into the very fabric of the Constitution. 

Critics of Bolling who espoused an originalist theory of constitutional interpretation objected to this anomaly. Yet the Court did not find differences in the text or history of the Fifth and Fourteenth Amendments sufficient to exempt the federal government from the prohibition against racial segregation that Brown had announced. Because there was no realistic possibility of amending either the Fifth or Fourteenth Amendments to reflect this conclusion, the Court chose in Bolling to use the process of interpretation to align the Constitution with deeply-held American values. If the Constitution had not been interpreted to constrain the federal government as it constrained the states, its authority would have been undermined.

Bolling illustrates that when the Court interprets the Constitution in dialogue with the nation’s fundamental values, it helps sustain the Constitution’s authority. It is because the Court interprets the Constitution in this way that Americans struggle to persuade each other—and the Court—about the Constitution’s meaning. This struggle creates community. Even Americans who disagree about fundamental values are united in their belief that the Constitution is central in American life. This makes our Constitution vibrant and important, in a way that is unique among nations of the world. In other countries, constitutions are the concern chiefly of legal professionals; in the United States, the Constitution matters for the people. This is what President Woodrow Wilson meant when he proclaimed that “the Constitution of the United States is not a mere lawyers’document: it is a vehicle of life, and its spirit is always the spirit of the age.” Woodrow Wilson, Constitutional Government In The United States 69 (1908).

Consider the recent controversy over whether the First Amendment prohibits campaign finance reform. If this issue were truly settled by the meaning of the First Amendment in 1791, there would be no reason for millions of Americans to debate what First Amendment protections now require; As the country debates this question, current generations of Americans argue about the meaning of the Constitution’s commitment to liberty and to democracy. Many, outraged by the Court’s decisions striking down laws limiting donations to political campaigns, question the Court’s authority to restrict campaign finance legislation—just as other Americans question the Court’s authority constitutionally to restrict the regulation of health care, affirmative action, or abortion. Persistent debate of this kind reaffirms the centrality of the Constitution to American life; it also informs the Court about how living Americans understand constitutional meaning.

Some fear that courts interpreting the Constitution in this fashion converts the United States into a juristocracy, in which—to use Justice Scalia’s vivid phrase—“a black-robed supremacy” ( United States v. Windsor (2013) (Scalia, J., dissenting)) can strangle the democratically-elected branches. This is a danger with which the nation has lived since its Founding.

The power of judicial review has in fact been abused, at times egregiously so. Unwise judges can thwart democracy whether they adopt an originalist theory of interpretation, as they did in the infamous case of Dred Scott v. Sandford (1857), which held that African slaves and their descendants could not be citizens of the United States; or whether they adopt some other theory of constitutional interpretation, as they did in the equally infamous case of Lochner v. New York (1905), which struck down a statute limiting the number of hours bakers could work each week. 

The important thing to remember, however, is that the Court never has the last word. When the Court pronounces its view of the Constitution, it is as likely to spark controversy as to end it. This point was made in a pithy and amusing way by the comedian Jon Stewart in his book entitled America (The Book): A Citizen’s Guide to Democracy Inaction . Stewart reports in his discussion of Roe v. Wade (1973) that “[t]he Court rules that the right to privacy protects a woman’s decision to have an abortion and the fetus is not a person with constitutional rights, thus ending all debate on this once-controversial issue.” Jon Stewart, et al., America (The Book): A Citizen's Guide to Democracy Inaction 90 (2004). Stewart’s irony implies what any historian would affirm: although Supreme Court decisions exert immense authority, constitutional interpretations are truly and finally settled only when the people accept their wisdom, not simply when the Supreme Court speaks. 

If the Court interprets the Constitution in ways that mistake the actual commitments of Americans, Americans will oppose its decisions. In the end, Alexis de Tocqueville, as in so many things, correctly perceived the nature of our constitutional polity when he observed that the “power” of Supreme Court justices:

Is immense, but it is power springing from opinion. [Justices] are all-powerful so long as the people consent to obey the law; they can do nothing when they scorn it. Now, of all powers, that of opinion is the hardest to use, for it is impossible to say exactly where its limits come. Often it is as dangerous to lag behind as to outstrip it. The federal judges therefore must not only be good citizens and men of education and integrity, qualities necessary for all magistrates, but must also be statesmen; they must know how to understand the spirit of the age, to confront those obstacles that can be overcome, and to steer out of the current when the tide threatens to carry them away, and with them the sovereignty of the Union and obedience to its laws.

Alexis De Tocqueville, Democracy In America 150-51  (J.P. Mayer ed., George Lawrence Trans., 1969).

De Tocqueville’s vision of judicial review is profoundly democratic. He affirms that courts can lead and should guide public opinion, but that in the long run courts are tethered to public opinion. The question is always whether the Court has interpreted the Constitution in a way that truly expresses American convictions. For this reason, we may call this understanding of judicial review “democratic constitutionalism.”

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Beyond Originalism

The dominant conservative philosophy for interpreting the Constitution has served its purpose, and scholars ought to develop a more moral framework.

In recent years, allegiance to the constitutional theory known as originalism has become all but mandatory for American legal conservatives. Every justice and almost every judge nominated by recent Republican administrations has pledged adherence to the faith . At the Federalist Society, the influential association of legal conservatives, speakers talk and think of little else. Even some luminaries of the left-liberal legal academy have moved away from speaking about “living constitutionalism,” “fundamental fairness,” and “evolving standards of decency,” and have instead justified their views in originalist terms . One often hears the catchphrase “We are all originalists now.”

Originalism comes in several varieties (baroque debates about key theoretical ideas rage among its proponents), but their common core is the view that constitutional meaning was fixed at the time of the Constitution’s enactment. This approach served legal conservatives well in the hostile environment in which originalism was first developed, and for some time afterward.

But originalism has now outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation. Such an approach—one might call it “common-good constitutionalism”—should be based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate. In this time of global pandemic, the need for such an approach is all the greater, as it has become clear that a just governing order must have ample power to cope with large-scale crises of public health and well-being—reading “health” in many senses, not only literal and physical but also metaphorical and social.

Read: How the pandemic will end

Alternatives to originalism have always existed on the right, loosely defined. One is libertarian (or “classical liberal”) constitutionalism, which emphasizes principles of individual freedom that are often in uneasy tension with the Constitution’s original meaning and the founding generation’s norms. The founding era was hardly libertarian on a number of fronts that loom large today, such as freedom of speech and freedom of religion; consider that in 1811, the New York courts, in an opinion written by the influential early jurist Chancellor James Kent, upheld a conviction for blasphemy against Jesus Christ as an offense against the public peace and morals. Another  alternative is Burkean traditionalism, which tries to slow the pace of legal innovation. Here, too, the difference with originalism is clear, because originalism is sometimes revolutionary; consider the Court’s originalist opinion declaring a constitutional right to own guns , a startling break with the Court’s long-standing precedents.

These alternatives still have scattered adherents, but originalism has prevailed, mainly because it has met the political and rhetorical needs of legal conservatives struggling against an overwhelmingly left-liberal legal culture. The theory of originalism, initially developed in the 1970s and ’80s, enjoyed its initial growth because it helped legal conservatives survive and even flourish in a hostile environment, all without fundamentally challenging the premises of the legal liberalism that dominated both the courts and the academy. It enabled conservatives to oppose constitutional innovations by the Warren and Burger Courts, appealing over the heads of the justices to the putative true meaning of the Constitution itself. When, in recent years, legal conservatism has won the upper hand in the Court and then in the judiciary generally, originalism was the natural coordinating point for a creed, something to which potential nominees could pledge fidelity.

But circumstances have now changed. The hostile environment that made originalism a useful rhetorical and political expedient is now gone. Outside the legal academy, at least, legal conservatism is no longer besieged. If President Donald Trump is reelected, some version of legal conservatism will become the law’s animating spirit for a generation or more; and even if he is not, the reconstruction of the judiciary has proceeded far enough that legal conservatism will remain a potent force, not a beleaguered and eccentric view.

Assured of this, conservatives ought to turn their attention to developing new and more robust alternatives to both originalism and left-liberal constitutionalism. It is now possible to imagine a substantive moral constitutionalism that, although not enslaved to the original meaning of the Constitution, is also liberated from the left-liberals’ overarching sacramental narrative , the relentless expansion of individualistic autonomy. Alternatively, in a formulation I prefer, one can imagine an illiberal legalism that is not “conservative” at all, insofar as standard conservatism is content to play defensively within the procedural rules of the liberal order.

Lee Drutman: America is now the divided republic the Framers feared

This approach should take as its starting point substantive moral principles that conduce to the common good, principles that officials (including, but by no means limited to, judges) should read into the majestic generalities and ambiguities of the written Constitution. These principles include respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to “legislate morality”—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority. Such principles promote the common good and make for a just and well-ordered society.

To be sure, some have attempted to ground an idea of the common good on an originalist understanding , taking advantage of the natural-rights orientation of the founding era. Yet that approach leaves originalism in ultimate control, hoping that the original understanding will happen to be morally appealing. I am talking about a different, more ambitious project, one that abandons the defensive crouch of originalism and that refuses any longer to play within the terms set by legal liberalism. Ronald Dworkin, the legal scholar and philosopher, used to urge “ moral readings of the Constitution .” Common-good constitutionalism is methodologically Dworkinian, but advocates a very different set of substantive moral commitments and priorities from Dworkin’s, which were of a conventionally left-liberal bent.

Common-good constitutionalism is not legal positivism, meaning that it is not tethered to particular written instruments of civil law or the will of the legislators who created them. Instead it draws upon an immemorial tradition that includes, in addition to positive law, sources such as the ius gentium —the law of nations or the “general law” common to all civilized legal systems—and principles of objective natural morality, including legal morality in the sense used by the American legal theorist Lon Fuller : the inner logic that the activity of law should follow in order to function well as law.

Common-good constitutionalism is also not legal liberalism or libertarianism. Its main aim is certainly not to maximize individual autonomy or to minimize the abuse of power (an incoherent goal in any event), but instead to ensure that the ruler has the power needed to rule well. A corollary is that to act outside or against inherent norms of good rule is to act tyrannically, forfeiting the right to rule, but the central aim of the constitutional order is to promote good rule, not to “protect liberty” as an end in itself. Constraints on power are good only derivatively, insofar as they contribute to the common good; the emphasis should not be on liberty as an abstract object of quasi-religious devotion, but on particular human liberties whose protection is a duty of justice or prudence on the part of the ruler.

Finally, unlike legal liberalism, common-good constitutionalism does not suffer from a horror of political domination and hierarchy, because it sees that law is parental, a wise teacher and an inculcator of good habits. Just authority in rulers can be exercised for the good of subjects, if necessary even against the subjects’ own perceptions of what is best for them—perceptions that may change over time anyway, as the law teaches, habituates, and re-forms them. Subjects will come to thank the ruler whose legal strictures, possibly experienced at first as coercive, encourage subjects to form more authentic desires for the individual and common goods, better habits , and beliefs that better track and promote communal well-being.

Common-good constitutionalism draws inspiration from the early modern theory of ragion di stato— “ reason of state ,” which, despite the connotations that have become attached to its name, is not at all a tradition of unscrupulous machination. (Indeed, it was formulated precisely to combat amoral technocratic visions of rule as the maximization of princely power.) Instead the ragion di stato tradition elaborates a set of principles for the just exercise of authority. Promoting a substantive vision of the good is, always and everywhere, the proper function of rulers. Every act of public-regarding government has been founded on such a vision; any contrary view is an illusion . Liberal and libertarian constitutional decisions that claim to rule out “morality” as a ground for public action are incoherent, even fraudulent, for they rest on merely a particular account of morality, an implausible account.

Read: Understanding America's moral divides

Given that it is legitimate for rulers to pursue the common good,  constitutional law should elaborate subsidiary principles that make such rule efficacious. Constitutional law must afford broad scope for rulers to promote—as the ragion di stato put it, in a famous trinity of principles— peace , justice , and abundance . Today, we may add health and safety to that list, in very much the same spirit. In a globalized world that relates to the natural and biological environment in a deeply disordered way, a just state is a state that has ample authority to protect the vulnerable from the ravages of pandemics, natural disasters, and climate change, and from the underlying structures of corporate power that contribute to these events. Because the ragion di stato is not ashamed of strong rule, does not see it as presumptively suspect in the way liberalism does, a further corollary is that authority and hierarchy are also principles of constitutionalism. Finally, and perhaps most important, just rule emphasizes solidarity and subsidiarity. Authority is held in trust for and exercised on behalf of the community and the subsidiary groups that make up a community, not for the benefit of individuals taken one by one.

How, if at all, are these principles to be grounded in the constitutional text and in conventional legal sources? The sweeping generalities and famous ambiguities of our Constitution, an old and in places obscure document, afford ample space for substantive moral readings that promote peace, justice, abundance, health, and safety, by means of just authority, hierarchy, solidarity, and subsidiarity. The general-welfare clause, which gives Congress “power to … provide for the common Defence and general Welfare of the United States,” is an obvious place to ground principles of common-good constitutionalism (despite a liberal tradition of reading the clause in a cramped fashion ), as is the Constitution’s preamble, with its references to general welfare and domestic tranquility, to the perfection of the union, and to justice. Constitutional words such as freedom and liberty need not be given libertarian readings; instead they can be read in light of a better conception of liberty as the natural human capacity to act in accordance with reasoned morality.

More important still, thinking that the common good and its corollary principles have to be grounded in specific texts is a mistake; they can be grounded in the general structure of the constitutional order and in the nature and purposes of government. The Supreme Court, like Congress and the presidency, has often drawn upon broad structural and natural-law principles to determine the just authority of the state. “Police power,” which, despite its misleading name, refers to the general power of state governments to protect health, safety, order, and public morality, is nowhere mentioned in the written Constitution. America’s real, “efficient” C onstitution is largely unwritten or uncodified, as is true of constitutions everywhere .

Stephen Breyer: America's courts can’t ignore the world

This is not the occasion to offer a bill of particulars about how constitutional law might change under this approach, but a few broad strokes can be sketched. The Court’s jurisprudence on free speech, abortion, sexual liberties, and related matters will prove vulnerable under a regime of common-good constitutionalism. The claim , from the notorious joint opinion in Planned Parenthood v. Casey , that each individual may “define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” should be not only rejected but stamped as abominable, beyond the realm of the acceptable forever after. So too should the libertarian assumptions central to free-speech law and free-speech ideology—that government is forbidden to judge the quality and moral worth of public speech, that “ one man’s vulgarity is another’s lyric ,”  and so on—fall under the ax. Libertarian conceptions of property rights and economic rights will also have to go, insofar as they bar the state from enforcing duties of community and solidarity in the use and distribution of resources.

As for the structure and distribution of authority within government, common-good constitutionalism will favor a powerful presidency ruling over a powerful bureaucracy, the latter acting through principles of administrative law’s inner morality with a view to promoting solidarity and subsidiarity. The bureaucracy will be seen not as an enemy, but as the strong hand of legitimate rule . The state is to be entrusted with the authority to protect the populace from the vagaries and injustices of market forces, from employers who would exploit them as atomized individuals, and from corporate exploitation and destruction of the natural environment . Unions, guilds and crafts, cities and localities, and other solidaristic associations will benefit from the presumptive favor of the law, as will the traditional family; in virtue of subsidiarity, the aim of rule will be not to displace these associations, but to help them function well. Elaborating on the common-good principle that no constitutional right to refuse vaccination exists, constitutional law will define in broad terms the authority of the state to protect the public’s health and well-being, protecting the weak from pandemics and scourges of many kinds—biological, social, and economic—even when doing so requires overriding the selfish claims of individuals to private “rights.” Thus the state will enjoy authority to curb the social and economic pretensions of the urban - gentry liberals who so often place their own satisfactions (financial and sexual) and the good of their class or social milieu above the common good .

In this sense, common-good constitutionalism promises to expand and fulfill, in new circumstances and with a new emphasis, the Constitution’s commitments to promoting the general welfare and human dignity. Overall, constitutionalism will become more direct , more openly moral, less tied to tendentious law-office history and endless litigation of dubious claims about events centuries in the past. Originalism has done useful work, and can now give way to a new confidence in authoritative rule for the common good.

This story is part of the project “ The Battle for the Constitution ,” in partnership with the National Constitution Center .

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Essay on Constitution of India

500+ words indian constitution essay for students and children in english.

A Constitution is a set of rules and regulations guiding the administration of a country. The Constitution is the backbone of every democratic and secular fabric of the nation. The Constitution of India is the longest Constitution in the world, which describes the framework for political principles, procedures and powers of the government. The Constitution of India was written on 26 November 1949 and came into force on 26 January 1950. In this essay on the Constitution of India, students will get to know the salient features of India’s Constitution and how it was formed.

Constitution of India Essay

On 26th January 1950, the Constitution of India came into effect. That’s why 26th January is celebrated as Republic Day in India.

How Was the Constitution of India Formed?

The representatives of the Indian people framed the Indian Constitution after a long period of debates and discussions. It is the most detailed Constitution in the world. No other Constitution has gone into such minute details as the Indian Constitution.

The Constitution of India was framed by a Constituent Assembly which was established in 1946. Dr Rajendra Prasad was elected President of the Constituent Assembly. A Drafting Committee was appointed to draft the Constitution and Dr B.R. Ambedkar was appointed as the Chairman. The making of the Constitution took a total of 166 days, which was spread over a period of 2 years, 11 months and 18 days. Some of the salient features of the British, Irish, Swiss, French, Canadian and American Constitutions were incorporated while designing the Indian Constitution.

Also Read: Evolution and Framing of the Constitution

Features of The Constitution of India

The Constitution of India begins with a Preamble which contains the basic ideals and principles of the Constitution. It lays down the objectives of the Constitution.

The Longest Constitution in the world

The Indian Constitution is the lengthiest Constitution in the world. It had 395 articles in 22 parts and 8 schedules at the time of commencement. Now it has 448 articles in 25 parts and 12 schedules. There are 104 amendments (took place on 25th January 2020 to extend the reservation of seats for SCs and STs in the Lok Sabha and state assemblies) that have been made in the Indian Constitution so far.

How Rigid and Flexible is the Indian Constitution?

One of the unique features of our Constitution is that it is not as rigid as the American Constitution or as flexible as the British Constitution. It means it is partly rigid and partly flexible. Owing to this, it can easily change and grow with the change of times.

The Preamble

The Preamble has been added later to the Constitution of India. The original Constitution does not have a preamble. The preamble states that India is a sovereign, socialist, secular and democratic republic. The objectives stated by the Preamble are to secure justice, liberty, and equality for all citizens and promote fraternity to maintain the unity and integrity of the nation.

Federal System with Unitary Features

The powers of the government are divided between the central government and the state governments. The Constitution divides the powers of three state organs, i.e., executive, judiciary and legislature. Hence, the Indian Constitution supports a federal system. It includes many unitary features such as a strong central power, emergency provisions, appointment of Governors by the President, etc.

Fundamental rights and fundamental duties

The Indian Constitution provides an elaborate list of Fundamental Rights to the citizens of India. The Constitution also provides a list of 11 duties of the citizens, known as the Fundamental Duties. Some of these duties include respect for the national flag and national anthem, integrity and unity of the country and safeguarding of public property.

Also Read: Difference between Fundamental Rights and Fundamental Duties

India is a republic which means that a dictator or monarch does not rule the country. The government is of the people, by the people and for the people. Citizens nominate and elect its head after every five years.

Related Read: Constitution of India – 13 Major Features

The Constitution serves as guidelines for every citizen. It helped India to attain the status of a Republic in the world. Once Atal Bihari Vajpayee said that “governments would come and go, political parties would be formed and dissolved, but the country should survive, and democracy should remain there forever”.

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Also Read: Independence Day Essay | Republic Day Essay | Essay on Women Empowerment

Frequently Asked Questions on Constitution of India Essay

Who is the father of our indian constitution.

Dr. B. R. Ambedkar is the father of our Indian Constitution. He framed and drafted our Constitution.

Who signed the Indian Constitution?

Dr. Rajendra Prasad was the first person from the Constitution Assembly to have signed the Indian Constitution.

What is mentioned in the Preamble of our Indian Constitution?

The preamble clearly communicates the purpose and emphasis the importance of the objectives of the Indian Constitution.

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What do you understand by Constitutionalism? Do you think the concept is still relevant in contemporary times? Explain.

Topic : Indian Constitution—historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

2. What do you understand by Constitutionalism? Do you think the concept is still relevant in contemporary times? Explain. (250 words)

Reference: Indian Polity by Lakshmikant

Why the question: With prelims fast approaching the aim of the question is to aid both mains and prelims preparation through such questions from the foundations of Indian polity. Key Demand of the question: The question is about the concept of constitutionalism and its relevance in the contemporary times. Directive: Explain – Clarify the topic by giving a detailed account as to how and why it occurred, or what is the particular context. You must be defining key terms where ever appropriate, and substantiate with relevant associated facts . Structure of the answer: Introduction: Start by defining what you understand by “Constitutionalism”. Body: Constitutionalism is the doctrine often associated with the political theories of John Locke. It says that government powers should be legally limited and its authority or legitimacy depends on observing these limitations. Briefly discuss the concept and highlight the provisions in the constitution that upholds the principal of constitutionalism example Separation of powers, Rule of Law, Supremacy of constitution, doctrine of checks and balances In next section discuss the contemporary relevance of the doctrine w.r.t the above mentioned points. Like threat to the concept of checks and balance by dilution of RTI act, usage of frequent ordinances to bypass legislature, Judicial overreach etc. Conclusion: Highlight the importance of the concept in today’s scenario and conclude.

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Make Your Note

Constitutional Morality

• 14 May 2020
• Indian Constitution
• GS Paper - 2
• Judgements & Cases

Introduction

• According to Dr. Ambedkar, Constitutional morality would mean effective coordination between conflicting interests of different people and the administrative cooperation to resolve them amicably without any confrontation amongst the various groups working for the realization of their ends at any cost.
• Constitutional morality has been regarded as a paramount reverence for the constitution.
• Constitutional morality provides a principled understanding for unfolding the work of governance. It specifies norms for institutions to survive and an expectation of behaviour that will meet not just the text but the soul of the Constitution. It also makes the governing institutions and representatives accountable.
• Constitutional Morality is scarcely a new concept. It is written largely in the Constitution itself like in the section of Fundamental Rights (Article 12 to 35), Directive Principle of State Policy (Article 36 to 51), Preamble and Fundamental duties.

Elements of constitutional morality

Supreme Court's Judgements and Constitutional Morality

• Constitutional morality is not limited only to following the constitutional provisions literally but is based on values like individual autonomy and liberty; equality without discrimination; recognition of identity with dignity; the right to privacy.
• For Example: In Supreme Court’s Sabarimala verdict religious freedom, gender equality and the right of women to worship guaranteed under Article 14, 21 and 25 of the Constitution was reinstated which struck down the practice of banning entry of women of a certain age to the Sabarimala temple in Kerala as unconstitutional.
• Constitutional morality here went against social morality that discriminates against women based on biological reasons like menstruation.
• In Kesavananda Bharati Case , the Supreme Court restricted the power of the Parliament to violate the Basic Structure of the Constitution.
• In the Naz Foundation case , the Supreme Court opined that only Constitutional Morality and not Public Morality should prevail.
• In Lt Governor of Delhi case , SC proclaimed constitutional morality as a governing ideas that "highlight the need to preserve the trust of people in the institution of democracy.
• In Sabarimala case, the Supreme Court bypassed the “doctrine of essentiality” to uphold the Constitutional morality

Significance

• Constitutional morality ensures the establishment of rule of law in the land while integrating the changing aspirations and ideals of the society.
• Constitutional morality as a governing ideal that highlights the need to preserve the trust of the people in institutions of democracy. As such an ideal, it allows people to cooperate and coordinate to pursue constitutional aspirations that cannot be achieved single-handedly.
• Constitutional morality can use laws and forms to impact and change the persisting social morality. For example, by abolishing the practice of Sati by legislation, the right to dignity and life was passed on to the widows which later on affected the perception of the practice in the society.
• Constitutional morality recognises plurality and diversity in society and tries to make individuals and communities in the society more inclusive in their functioning by constantly providing the scope for improvement and reforms. For example in Navtej Singh Johar v. Union of India, the SC provided a framework to reaffirm the rights of LGBTQ and all gender non-conforming people to their dignity, life, liberty, and identity.
• The term has not been clearly defined by the SC, which leaves the scope of its subjective interpretation by the individual judges.
• This top-down approach to morality can affect the possibility of organic emergence of the solutions to the persisting ethical problems in society.
• Violates the principle of separation of powers: It establishes judicial supremacy over parliamentary supremacy. Against the very principle of democratic government.
• It is claimed that the application of this doctrine amounts to judicial overreach and are thereby pitting “constitutional morality” against “societal/popular morality”

Need to Uphold Constitutional Morality

• To uphold constitutional morality, the constitutional methods must be used for achieving social and economic objectives.
• Awareness creation among the common public regarding their rights which are protected by the Constitution.
• Following the Fundamental Duties while exercising Fundamental Rights.
• The preamble of the constitution explicitly mentions the type of society we wish to establish; it is only through constitutional morality it can become reality.
• The progressive and monumental precedents have been set-up by the judiciary in the past few years, where this doctrine has been applied especially in relation to the cases of gender-justice, institutional propriety, social uplift, checking majoritarianism and other such evils.

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Constitution of India: Meaning, Structure, Enactment, Features & Significance

The Constitution of India , as the fundamental law of the land , embodies the values, principles, and governance framework of our country. It serves as the supreme law, guiding the state’s functioning and ensuring citizen’s rights and responsibilities. With its roots grounded in historical struggles, philosophical ideals, and societal aspirations, it reflects the nation’s collective journey toward democracy, justice, and equality. This article of NEXT IAS aims to explain the meaning, structure, salient features, significance, and other aspects of the Constitution of India.

What is the Meaning of Constitution?

A Constitution of a state is a fundamental set of principles or established precedents according to which the state is governed. It outlines the organization, powers, and limits of government institutions, as well as the rights and duties of citizens. It serves as the supreme law of the land , providing a framework for the functioning of the government, the protection of individual liberties, and the maintenance of social order.

What is Constitution of India?

The Constitution of India is the supreme law of the Republic of India. It lays down the framework for the country’s political system, defining the powers and responsibilities of government institutions, safeguarding fundamental rights, and outlining the principles of governance. It is a set of rules and regulations guiding the administration of a country.

Structure of the Indian Constitution

The Indian Constitution is one of the longest and most detailed written constitutions in the world. Various components of the structure of the Indian Constitution can be seen as follows:

• A “Part” of the Constitution refers to a division within the Constitution that groups together Articles on similar subjects or themes.
• The Indian Constitution is structured into various Parts, each dealing with a specific aspect of the country’s legal, administrative, or governmental framework.
• Originally, there were 22 parts in the Constitution of India. As of now, there are 25 parts of the Indian Constitution.
• An “Article” refers to a specific provision or clause within the Constitution that details various aspects of the country’s legal and governmental framework.
• Each part of the constitution contains several articles numbered sequentially.
• Originally, there were 395 articles in the Constitution of India. As of now, the Indian Constitution contains 448 articles .
• A “Schedule” refers to a list or a table attached to the Constitution that details certain additional information or guidelines relevant to the constitutional provisions.
• They provide clarity and supplementary details, making the Constitution more comprehensive and functional.
• Originally, there were 8 schedules in the Constitution of India. As of now, there are 12 schedules in the Indian Constitution.

Enactment and Adoption of the Indian Constitution

• The Constitution of India was framed by a Constituent Assembly which was established in 1946. The President of the Constituent Assembly was Dr. Rajendra Prasad .
• On 29th August 1947, a resolution was moved in the Constituent Assembly for the appointment of a Drafting Committee to draft a permanent constitution of India. Accordingly, the Drafting Committee was appointed under the chairmanship of Dr. B.R. Ambedkar .
• The Drafting Committee took a total of 166 days , which was spread over 2 years, 11 months, and 18 days to prepare a draft constitution. The final draft of the Constitution was introduced in the Constituent Assembly on 4th November 1948 .
• After many deliberations and some modifications, the Draft Constitution was declared as passed by the Constituent Assembly on 26th November 1949. This is known as the “ Date of Adoption ” of the Constitution of India.
• A few provisions of the Constitution came into force on 26th November 1949. However, the major part of the Constitution came into force on 26th January 1950, making India a sovereign republic. This date is known as the “ Date of Enactment ” of the Constitution of India.

Salient Features of the Indian Constitution

• Several factors that have contributed to its elephantine size include – the need to accommodate the vast diversity of the country, a single constitution for both the Center and States, the presence of legal experts and luminaries in the Constituent Assembly, etc.
• Drawn from Various Sources – The Constitution of India has borrowed most of its provisions from the Government of India Act of 1935 as well as from the constitutions of various other countries.
• The Constitution of India is neither rigid nor flexible, but a synthesis of both.
• Federal System with Unitary Bias – The Constitution of India establishes a federal system of government and contains all the usual features of a federation. However, it also contains a large number of unitary or non-federal features.
• Parliamentary Form of Government – The Constitution of India has adopted the British Parliamentary System of Government. The parliamentary system is based on the principle of cooperation and coordination between the legislative and executive organs.
• While Parliament retains the ultimate authority to make laws , the judiciary serves as the guardian of the Constitution , ensuring that parliamentary actions adhere to constitutional norms and protect fundamental rights.
• An integrated judicial system means that a single system of courts, comprising of Supreme Court , High Courts, and Subordinate Courts, enforces both the central laws as well as the state laws.
• An independent judicial system means that the Indian judiciary operates autonomously, free from the influence of the executive and legislative branches of government.
• Fundamental Rights – The Indian Constitution guarantees 6 fundamental rights to all citizens, which promotes the idea of political democracy in the country. They operate as limitations on the tyranny of the executive and arbitrary laws of the legislature.
• The Directive Principles seek to establish a ‘Welfare State’ in India by promoting the ideal of social and economic democracy.
• These duties serve as a guide for citizens to contribute towards building a strong and harmonious nation.
• A Secular State – The Constitution of India does not uphold any particular religion as the official religion of the Indian State. Instead, it mandates that the state treat all religions equally, refraining from favoring or discriminating against any particular religion.
• Every citizen who is not less than 18 years of age has a right to vote without any discrimination based on caste, race, religion, sex, literacy, wealth, and so on.
• Single Citizenship – Single citizenship is a constitutional principle in India whereby all citizens irrespective of the state in which they are born or reside enjoy the same political and civil rights of citizenship all over the country, and no discrimination is made between them.
• Independent Bodies – The Indian Constitution has established certain independent bodies which are envisaged as the bulwarks of the democratic system of Government in India.
• The rationale behind the incorporation of these provisions is to safeguard the sovereignty, unity, integrity, and security of the country, the democratic political system, and the Constitution .
• This decentralized system allows for effective governance by delegating authority to address regional and local issues, promoting participatory democracy and grassroots development.
• Co-operative Societies – The 97th Constitutional Amendment Act of 2011 gave constitutional status and protection to co-operative societies.

Significance of the Constitution of India

• Rule of Law – The Constitution establishes the framework for governance based on the rule of law, ensuring that no individual, including government officials, is above the law.
• Protection of Rights – It guarantees fundamental rights to citizens, safeguarding their freedoms of speech, expression, religion, and more, while also providing mechanisms for legal redress if these rights are infringed upon.
• Structure of Government – The Constitution delineates the structure of government, defining the roles, powers, and limitations of the executive, legislative, and judicial branches. This separation of powers prevents the concentration of authority and promotes checks and balances.
• Democratic Principles – Through provisions like a universal adult franchise, the constitution upholds democratic principles by ensuring citizens’ participation in governance through free and fair elections.
• Stability and Continuity – The constitution provides stability and continuity in governance, serving as a framework for guiding successive governments and preventing abrupt changes in the political system.
• National Unity – It fosters national unity by recognizing and respecting the diversity of the populace while also promoting a sense of common citizenship and allegiance to the nation.
• Legal Framework – The constitution serves as the legal foundation upon which all laws and regulations are based, providing consistency and coherence in the legal system.
• Adaptability – While providing a stable framework, the constitution also allows for necessary amendments to accommodate changing societal needs and values, ensuring its relevance over time.

Sources of the Constitution of India

• Government of India Act of 1935 – Federal Scheme, Office of Governor, Judiciary, Public Service Commissions, Emergency Provisions, and Administrative Details.
• British Constitution – Parliamentary System of Government, Rule of Law, Legislative Procedure, Single Citizenship, Cabinet System, Prerogative Writs, Parliamentary Privileges, and Bicameralism.
• US Constitution – Fundamental Rights, Independence of the Judiciary, Judicial Review, Impeachment of the President, Removal of Supreme Court and High Court Judges, and the Post of the Vice-President.
• Irish Constitution – Directive Principles of State Policy, the Nomination of Members to Rajya Sabha, and Method of Election of the President.
• Canadian Constitution – Federation with a strong Centre, vesting of residuary powers in the Centre, appointment of state governors by the Centre, and advisory jurisdiction of the Supreme Court.
• Australian Constitution – Concurrent List, Freedom of Trade, Commerce & Intercourse, and a Joint Sitting of the two Houses of Parliament.
• Weimar Constitution of Germany – Suspension of Fundamental Rights during Emergency.
• Soviet Constitution (USSR, now Russia) – Fundamental duties and the ideal of Justice (Social, Economic, and Political) in the Preamble.
• French Constitution – Republic and the ideals of Liberty, Equality, and Fraternity in the Preamble.
• South African Constitution – Procedure for amendment of the Constitution and election of members of Rajya Sabha.
• Japanese Constitution – Procedure established by law.

Various Schedules of the Indian Constitution

Parts of the Constitution

Note – Part-VII (The States in Part B of the First Schedule), has been deleted by the 7th Constitutional Amendment of 1956.

In conclusion, the Indian Constitution stands as a testament to the nation’s democratic ideals and aspirations. Its meticulous crafting, rooted in historical struggles and visionary principles, continues to guide India’s journey towards a more just, inclusive, and prosperous society. The Indian Constitution stands as a testament to upholding its values, fostering unity amidst diversity, and safeguarding the rights and liberties of every citizen, thus ensuring a brighter future for generations to come.

Related Concepts

• Constitutionalism – Constitutionalism is a system where the Constitution is supreme and the institution’s structure and processes are governed by constitutional principles. It provides the template or framework within which the state has to carry out its operations. It also puts limitations on the government.
• Classification of the Constitution – Constitutions across the world have been classified into the following categories and sub-categories:

Frequently Asked Questions (FAQs)

When was the constitution of india adopted.

The Constitution of India was adopted on 26th November 1949 .

Why the Constitution of India is called a bag of Borrowing?

The Constitution of India is called a “bag of borrowing” due to its extensive adaptation of principles and provisions from various global sources. It amalgamates elements from multiple constitutions, including the British, American, Irish, Canadian, and others, reflecting India’s diverse legal heritage and democratic ideals.

Who is known as the ‘Father of Indian Constitution’?

Dr. B.R. Ambedkar is regarded as the “Father of the Indian Constitution” for his pivotal role as the chairman of the Drafting Committee and his significant contributions in shaping the provisions of the Indian Constitution.

When do we Celebrate the Constitution Day?

Constitution Day also famously known as ‘Samvidhan Divas’ , is celebrated in our country on 26th November every year to commemorate the adoption of the Constitution of India.

What is the Philosophy of the Constitution of India?

The philosophy of the Constitution of India revolves around several key principles such as Sovereignty, Equality, Justice, Liberty, Fraternity, Dignity, Secularism, Federalism, Democratic Principles, etc.

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