Constitutionalism

What Is Constitutionalism?

The term constitutionalism refers to the idea that constitutions are designed to limit the power of government, that government officials must obey the country’s laws, and that upholding these limitations and following these laws is a key source of legitimacy.

The concept of constitutionalism also includes the idea that, as the “rules for making new rules,” provisions in a constitution are above ordinary law. Ordinary laws must conform to constitutional provisions. These constitutional stipulations can be changed, but in most democracies this requires an elaborate process, well beyond the majority support of the national legislature.

Why Constitutionalism Matters

Countries that have succeeded in establishing and maintaining constitutional government have usually been at the forefront of scientific and technological progress, economic power, cultural development and human well-being.

In contrast, those states that have consistently failed to maintain constitutional government have often fallen short of their development potential. This is because constitutional government ensures ‘the fair and impartial exercise of power’; it ‘enables an orderly and peaceful society, protects the rights of individuals and communities, and promotes the proper management of resources and the development of the economy’ (Ghai 2010: 3).

In other words, constitutionalism empowers legitimate authorities to act for the public good in the management of common concerns while protecting people against the arbitrary power of rulers whose powers would otherwise be used for their own benefit and not for the public good.

In providing fundamental rules about the source, transfer, accountability and use of political power in a society, a constitution introduces a separation between the permanent, enduring institutions of the state, on the one hand, and the incumbent government, on the other. The constitution ensures that the government does not own the state: it simply manages the state, under the authority of higher laws, on behalf of citizens.

In this sense, constitutionalism is the opposite of despotism Opens in new window—a system of government in which the governing authorities are a law unto themselves.

Many states around the world have historically been despotic. They are not bound by any higher law that restricts how they rule, for example, by protecting the fundamental rights of the citizens or by ensuring their accountability to the people. As a result, despots govern only for their own good, or for that of a privileged minority who support the ruling class, and not for the common good of all citizens.

In choosing to adopt constitutional government, people are choosing to say no to despotism and to the precariousness of living under rulers who can act arbitrarily. They are choosing to acknowledge that certain rights, principles, values, institutions and processes are too important to depend on the arbitrary will of those in power: they should be entrenched in a way that makes them binding on the government itself. In such a system, the people live under a government of universal rules that are based on broad public consent, and they have freedom from the arbitrary acts of the rulers.