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The Oxford Companion to the Supreme Court of the United States, 2nd Edition edited by Hall, Kermit L (23rd June 2005)

C, Constitutionalism

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 09 July 2020


is a form of political thought and action that seeks to prevent tyranny and to guarantee the liberty and rights of individuals on which free society depends. This definition, drawn mainly from English and American political history, may be compared with a more formalistic view that regards constitutionalism as the conduct of politics in accordance with a constitution. The import of this definition depends on the meaning of constitution, a term that has been variously interpreted in western political thought. During the American Revolution, Americans conceived of a constitution as the permanent, binding, and paramount political law of the polity. Although this theoretical innovation did not end all controversy over the meaning of the concept, it generally caused constitutionalism to be defined thereafter as the forms, principles, and procedures of limited government.

Constitutionalism addresses the perennial problem of how to establish government with sufficient power to realize a community’s shared purposes, yet so structured and controlled that oppression will be prevented. In the absence of any means of assuring statesmanship in rulers, two approaches to the problem of government have been employed. One approach proceeds through the ordering of political and governmental institutions. From ancient to modern times the idea of the mixed regime, juxtaposing properly balanced institutions of monarchy, aristocracy, and democracy, and the social orders they represent, illustrates this way of limiting government. A second approach to the problem is through the rule of law. Historical examples of this tradition are the Roman idea that the law of nature provides a standard of justice for evaluating the legitimacy of government enactments and the English practice, beginning with Magna Carta, of subjecting the monarchical power to legal limits and *common-law rules protecting the liberty and property of subjects.

Although analytically distinct, these approaches are historically related in the institutional arrangements and practices that provide the basis for defining constitutionalism. In modern political science a constitution is an authoritative text possessing legal force that prescribes the structure and principles of limited government. The constitutional text is normative, stipulating how government shall be organized, the ends it may pursue, and the means to be employed in pursuit of those ends. In premodern political thought constitution had a descriptive connotation, referring to the ordering of the polity or the way institutions had evolved and assumed their present form. It is important to note that this concept of constitution was also thought to have a normative aspect. The English writer Lord Bolingbroke, for example, defined the English constitution in the early eighteenth century as “that assemblage of laws, institutions, and customs, derived from certain fixed principles of reason, directed to certain fixed objects of public good, that compose the general system, according to which the community hath agreed to be governed.” Bolingbroke said a good government exists when the administration of affairs is wisely pursued “and with a strict conformity to the principles and objects of the constitution.”

In Roman and medieval times the word constitutio, constitutiones, of which the term constitution is a transliteration, referred to enactments, decrees, or regulations of a ruler or sovereign. (In Latin, constituere means “to cause to stand,” or “to fix, set, or make” a thing.) It has been suggested that the enactments of the Roman emperor implied the idea of limited government insofar as they collectively defined the scope of state action. Subsequently constitution was superseded by statute with respect to government enactments providing rules of action for the community.

The word constitution entered political discourse as a term describing the structure of the polity or the arrangement of governmental institutions in the seventeenth century. This usage was analogous to that employed in describing the constitution of the human body. Although in the nineteenth century the term constitution was proposed as a translation of the Greek word politeia, before that time politeia was translated as government, regime, or policy. The tradition of political science deriving from Aristotle did not require use of the word constitution.

A form of American constitutionalism began in the seventeenth century as voluntary associations of settlers founded colonies under royal charters conferring on a person or corporate group governmental powers for specific purposes. As the basis of local government, the colonists wrote and adopted covenants, compacts, combinations, (p. 220) ordinances, fundamental orders, and other instruments of mutual consent. Through these documentary agreements they constituted themselves as a political community, defined their purposes, affirmed the principles of a way of life, specified the rights of citizens, and organized governmental institutions.

In the imperial conflicts of the 1760s and 1770s, Americans gained a new understanding of what the constitution of a free state was and how it functioned to guarantee liberty. They rejected the idea that a constitution described the governmental order of the polity. American critics of English policy argued that a constitution was a deliberately framed agreement among the people that imposed effective limits on government in order to protect community and individual liberty. If Parliament was a component of the English constitution and could change the fundamental law by its enactments, they concluded, then England did not have a real constitution. The important distinction was that although a constitution conferred power, it was not the simple equivalent of a mandate to legislate or govern. The Massachusetts General Court in 1768 pointed the direction of modern American constitutionalism in declaring: “in all free States the Constitution is fixed; & as the supreme Legislative derives its Power & Authority from the Constitution, it cannot overleap the Bounds of it, without destroying its own foundation.”

During the Revolution Americans wrote constitutions of liberty, the distinctive feature of which was their legal superiority to legislative enactments and other sources of ordinary law. This supremacy was more theoretical than actual in the early years of written constitutions, when state legislatures framed the documents and often exercised power despite their provisions. Constitutions took on greater authority when popularly elected conventions wrote them and the people ratified them. The Massachusetts constitution of 1780 and the New Hampshire constitution of 1784 were modeled in this way. In employing the constitutional convention device the framers of the federal Constitution established it as the norm for modern constitutionalism.

Unlike the state constitutions, which expressed the idea of forming political communities out of the state of nature, the original U.S. Constitution contained no bill of rights and only a brief preamble stating the nation’s basic principles and ends. In effect the *Declaration of Independence is the preamble to the Constitution. Accordingly, the framers wrote a document that was less a social compact for a cohesive, like-minded community than a contractual specification of the powers, duties, rights, and responsibilities among the diverse people that constituted the American Union. Reacting against state encroachments on liberty and property, the framers emphasized protection of individual rights rather than promotion of virtue and community consensus.

In the political context of the 1780s, the founders’ constitutional reforms signified the creation of energetic government to fill the vacuum of power under the Articles of Confederation. In the perspective of western political thought, the Constitution of 1787 marks the emergence of modern constitutionalism as a political theory combining limited government for the protection of individual rights with the principles of the people as constituent power.

Constitutionalism requires that the primary rules for the conduct of government be impartially maintained against the demands of political passion, interest, ideology, and ambition. It is remarkable therefore that the founders provided for enforcement of the Constitution by the political branches of the government as well as by the judiciary. Each of the coordinate departments was responsible for applying and interpreting the provisions of the constitutional document that defined or regulated the performance of its duties and responsibilities.

Asserted by Presidents Andrew *Jackson and Abraham *Lincoln in the nineteenth century, the departmental theory of constitutional decision making has never been effectively repudiated or expunged from the American political tradition. Yet it has in the twentieth century been obscured by the legalistic approach to constitutional interpretation, institutionalized in judicial review, which confers a monopoly of power on the judiciary with respect to the settlement of constitutional disputes. In *Marbury v. Madison (1803), Chief Justice John *Marshall asserted the power of *judicial review in judiciary cases concerning individual rights, while adhering to the departmental theory in regard to *political questions or public policy matters. In later cases dealing with *federalism and the *Contract Clause, however, Marshall employed a legalistic method of constitutional decision making based on the application of common-law rules of interpretation to the text of the Constitution. In this approach the Constitution became supreme ordinary law susceptible to judicial adaptation and emendation in a way that blurred the distinction between questions of a judiciary nature and policy matters properly subject to determination by the political branches of government. The Constitution was transformed from fundamental political principles into supreme ordinary law. A consequence was the steady expansion of *judicial power into the sphere of public policymaking. By the beginning of the twentieth century, constitutionalism in the United States was considered to be mainly a body (p. 221) of legal doctrines and rules that enabled the courts to play an active role in government and politics.

Constitutionalism in twentieth-century America continued to be largely juridical and increasingly policy oriented. Limited government constitutionalism, grounded in natural rights principles and protective of entrepreneurial liberty and property, persisted until 1937. Political demands for a more socially responsive rule of law that were first asserted in the Progressive period came to fruition in the *New Deal era. The consequence was a general questioning of the nineteenth-century view of limited government and the expansion of government activism in social and economic regulation.

From 1937 until the 1980s, the Supreme Court generally approved governmental activism as a means of guaranteeing positive liberty or the provision of material support as the basis of individual autonomy and self-expression. To some extent the idea of liberty against government (negative government) persisted as the Court nationalized the *Bill of Rights as limitations on the states. In other respects the Court confirmed the activist government tradition by transforming civil rights into group- and class-based claims to public benefits and entitlements.

The expansion of government under the concept of positive liberty raised the question whether the Constitution was the binding political law that limited government, or a rhetorical abstraction or symbol used by government officials, including the Supreme Court, to justify policy decisions. Did the Constitution control the government, or did the government control the Constitution?

From the eighteenth century to the mid-twentieth century, the essential element in modern constitutionalism was the doctrine of limited government under a written fundamental law. Postmodern constitutionalism in the second half of the twentieth century challenged this outlook by creating activist government to achieve social justice and positive liberty. Tension between these two conceptions of constitutionalism was a prominent feature of American politics as the third century of constitutional government began in the 1990s.

Gerhard Casper, “Changing Concepts of Constitutionalism: 18th to 20th Century,” Supreme Court Review (1989): 311–332. Donald S. Lutz, The Origins of American Constitutionalism (1988). Sylvia Snowiss, “From Fundamental Law to Supreme Law of the Land: A Reinterpretation of the Origins of Judicial Review,” Studies in American Political Development 2 (1987): 1–67. Gerald Stourzh, “Constitution: Changing Meanings of the Term from the Early Seventeenth to the Late Eighteenth Century,” in Conceptual Change and the Constitution, edited by Terence Ball and J. G. A. Pocock (1988), pp. 35–54.

Herman Belz