(Online Course) Public Administration for IAS Mains Exams
Topic: Philosophical and Constitutional framework of government: Constitutionalism
As described by political scientist and constitutional scholar David Fellman:
“Constitution is descriptive of a complicated concept, deeply embedded in historical experience, which subjects the officials who exercise governmental power to the limitations of a higher law. Constitutionalism proclaims the desirability of the rule of law as opposed to rule by the arbitrary judgement or mere that of PUblic officials. Throughout the literature dealing with modern Public Law and the foundations of statecraft the central element of the concept of constitutionalism is that in political society government officials are not free to do anything they please in any manner they choose, they are bound to observe both the limitations on power and their procedures which are set out in the supreme, constitutional law of the community. It may therefore be said that the touchstone of constitutionalism is the concept of limited government under a higher law”.
Meaning
Constitutionalism has prescriptive and descriptive uses. Law professor Gerhard Casper captured this aspect of the term in nothing that: “Constitutionalism has both descriptive and prescriptive connotations. Used descriptively, it refers chiefly to the historical struggle for constitutional recognition of the people’s right to ‘consent’ and certain other rights, freedoms, and privileges….Used prescriptively….. its meaning incorporates those features of government seen as the essential elements of the …. Constitutions.”
(a) Descriptive Use: One example of constitutionalism’s descriptive use in law professor Bernard Schwartz’s 5 volume compilation of source seeking to trace the origins of the Federal Bill of rights. Beginning with English antecedents going back to Magna Carta (1215), the author explores the presence and development of ideas of individual freedoms and privileges through colonial charters and legal understandings. Then, in carrying the story forward, the author identifies revolutionary declarations and constitutions, documents and judicial decisions of the Confederation period and the formation of the federal Constitution. Finally, he turns to the debates over the federal Constitution’s ratification that ultimately provided mounting pressure for a Federal Bill of Rights. While hardly presenting a “straight-line, the account illustrates the historical struggle to recognize and enshrine constitutional values and principle in a constitutional order.
Example of Descriptive Use
Used descriptive, the concept of constitutional can refer chiefly to the historical struggle for constitutional recognition of the people’s right to “consent” and certain other rights, freedoms, and privileges.
(b) Prescriptive Use: In contrast to describing what constitutions are, a prescriptive approach addresses what a constitution should be. As presented by Canadian philosopher Wil Waluchow, constitutionalism embodies “the idea … 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.” One example of this prescriptive approach was the project of the National Municipal League to develop a “Model State Constitution.”
Example of Prescriptive Use