Costituzionalismo - Definizione

Constitutionalism

First published Wed Jan 10, 2001; substantive revision Tue Feb 20, 2007

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 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," or is there some way of avoiding this implication? If meaningful limitation is to be possible, must constitutional constraints be somehow "entrenched"? Must they be enshrined in written rules? If so, how are they to be interpreted? In terms of literal meaning or the intentions of their authors, or in terms of the, possibly ever-changing, values they express? How one answers these questions depends crucially on how one conceives the nature, identity, and authority of constitutions. Does a constitution establish a stable framework for the exercise of public power which is in some way fixed by factors like the original meaning or intentions? Or is it a "living tree" 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 and Constitutional Theories
• 8. The Fixed View and the Living Tree
• 9. Textualism: The Meaning of a Constitution's Text
• 10. Originalism
• 11. Hypothetical Intent Theory
• 12. Dworkin: Moral Theory
• 13. Critical Theory
• Bibliography
• Other Internet Resources
• Related Entries

1. Constitutionalism: a minimal and a rich sense

In some minimal sense of the term, a "constitution" consists of a set of rules or norms creating, structuring, and 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 acknowledged 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). Take the extreme case of an absolute monarch, Rex, who combines unlimited power in all three domains. If it is widely acknowledged that Rex has these powers, as well as the authority to exercise them at his pleasure, then the constitution of this state could 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 he 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 rules creating legislative, executive, and judicial powers, but that these rules impose limits on those powers. Often these limitations are in the form of individual or group 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 defense 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 rules defining his authority impose no constitutional limits. 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 authority 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). 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.

Though this feature of Austin's theory has some surface plausibility when applied to the British Parliamentary system, where Parliament is often said to be "supreme" and constitutionally unlimited, it faces obvious difficulty when applied to most other constitutional democracies such as one finds in the United States and Germany, where it is clear that the powers of government are legally limited by a constitution. Austin's answer was to say that sovereignty may lie with the people, or some other person or body whose authority is unlimited. Government bodies — e.g., Parliament or the judiciary — can be limited by constitutional law, but the sovereign — i.e., "the people" — remains unlimited. Whether this provides Austin with an adequate means of dealing with constitutional democracies is highly questionable. For Austin's sovereign is a determinate individual or group of individuals whose commands to others constitute law. But if we identify the commanders with "the people", then we have 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).

2. Sovereign versus government

Though there are serious difficulties inherent in Austin's attempt to make sense of "the people's sovereignty," his account does bring out 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) power and authority over some domain, and "government" as those persons or bodies 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 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 unlimited but the government bodies — e.g., the legislature(s) and the courts — through whom that sovereignty is exercised on the people's behalf is constitutionally limited. As Locke held, 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, it does seem possible for them to apply to the same individual or body. 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." In Hobbes' theory, supreme sovereignty must reside in the supreme governmental person or body who enjoys unlimited power and authority to rule the commonwealth. Anything less than an unlimited sovereign would, given human nature and the world we inhabit, destroy the very possibility of stable government. So even if "sovereignty" and "government" are different notions, this neither means nor implies that the two could not apply to one and the same individual(s).

3. Entrenchment

According to most theorists, a further important feature of constitutionalism is that the rules imposing limits upon government power must be in some way be entrenched, either by law or by way of "constitutional convention." In other words, those whose powers are constitutionally limited — i.e., the organs of government — must not be legally entitled 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 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.

Entrenchment not only facilitates a degree of stability over time (a characteristic aspiration of constitutional regimes), it is arguably a requirement of the very possibility of constitutionally limited government. Were a government entitled, at its pleasure, to change the very terms of its constitutional limitations, it is questionable 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 religious matters, then we might ask whether she could sensibly be said to be "bound" by this requirement. 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 we might meaningfully speak of constitutional limitation.

Of course, this constitutional meta-rule or convention is itself subject to change or elimination — a fact which raises a host of further puzzles. For example, does such an act require application of the very rule in question — i.e., two-thirds majority vote — or are "the people," as sovereign, at liberty to change or expunge it at their pleasure? If we accept the distinction between government and sovereignty urged above, as well as the proposition that sovereignty cannot be self-limiting (X cannot limit X), then we might 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 people. Entrenchment may be an essential element of constitutional regimes, but constitutions cannot be entrenched against the actions of "the sovereign people" at whose pleasure they exist.

4. "Writtenness"

Some scholars believe that constitutional rules do not exist unless they are in some way enshrined in a written document (e.g., Rubenfeld 1998). Others argue that constitutions 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 arguably form a central element of its constitution. Magna Carta (1215 A.D.) 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 Britain seems largely to have an unwritten constitution, suggesting strongly that writtenness is not a defining feature of constitutionalism.

Why would one think that constitutional norms must be written rules, as opposed to more informal conventions or social rules? One possible reason is that unwritten rules are sometimes less precise and therefore more open to "interpretation," gradual change, and ultimately avoidance, than written ones. If this were true, then it would be questionable whether an unwritten rule could, 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 behavior. And these can be very difficult to bring about.

5. Montesquieu and the separation of powers

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-