ABSTRACT
There are many defi nitions of constitutionalism. These defi nitions usually associate constitutionalism with a number of ideas: ‘restrained and divided’ political power, 1 adherence to the rule of law, 2 the protection of fundamental rights 3 and the principle of constitutional supremacy 4 (which is based on a distinction between ordinary and higher laws 5 ). These ideas, although sometimes presented as equivalent to constitutionalism itself, are better understood as ways of achieving constitutionalism’s main objective: limiting political power. Constitutionalism seeks to subject political decision-makers to constitutional principles that are placed outside the scope of their ordinary legal faculties. A regime that respects the ideal of constitutionalism is subject to established law; it is a regime controlled by a number of rules, procedures and structures that create important limits on the political power of governments and their peoples. 6 Thus, for example, dividing power among different branches of government is typically seen as an effective way of achieving that objective, since such an institutional arrangement would avoid the concentration of power in one institution or individual. Respect for the rule of law, understood as requiring at the very least a predictable legal system – one that operates according to stable and clear laws – promotes constitutionalism’s main objective further by offering protection against arbitrary rule. 7
Guaranteeing the enjoyment of a set of fundamental rights (sometimes enforceable by courts) protects individuals from state interference in large areas of their private life and allows citizens to exercise different degrees of control over government policies through ordinary political participation. In order to protect rights and other institutions that promote the existence of a limited government from day-to-day majorities, constitutionalism is generally understood as mandating that they are entrenched in a constitution that is distinct from ordinary legislation: a constitution that is to be considered higher law and whose modifi cation is subject to special procedures (even though a regime that operates under a fl exible unwritten constitution could also effectively limit political power). 8 That these are the ideas and institutional arrangements that characterise modern constitutionalism should not be a matter of controversy; in fact, they do not seem like bad ideas at all. But this is not the whole story. Constitutionalism is also characterised by a Lycurgian 9
obsession with permanence, a fear of constitutional change according to which a constitution that contains the right content – a good, constitutionalist constitution – should also be a fi nished constitution. That is, a constitution that might be improved by correcting some historical mistakes here and there (and that might evolve and be expanded through judicial interpretation), but whose fundamental principles and the governmental structures it creates should be more or less immutable and therefore placed beyond the scope of popular majorities. It is this idea which is at odds with democracy. 10
This component of constitutionalism has been defended at different moments and with different degrees of emphasis. In eighteenth-century France, it was exemplifi ed when Isaac Le Chapelier, the Jacobin jurist, claimed that “the revolution was fi nished”, as there were “no more injustices to overcome, or prejudices to contend with”. 11 Some years later, Napoleon Bonaparte issued a similar declaration: “Citizens, the revolution is determined by the principles that began it. The constitution was founded on the sacred rights of property, equality, freedom. The revolution is over.” 12 The aspiration to permanency that drove Le Chapelier’s and Napoleon’s dicta is alive and well and, perhaps today more than ever, continues to inform liberal constitutionalism. One must not think, however, that it is only the entrenchment of basic liberal rights that drives this ideology. The idea is that to alter the constitution in important ways is to look for trouble, to play with the stability of the political system and to risk the precious ideal of the rule of law.
