Constitutionalism

Prescriptive Features

The modern-day universality of constitutionalism is first and foremost based on its prescriptive nucleus: the notion that any form of government (or governance) has to be legitimized as well as limited in its powers. In such a Lockean sense, constitutionalism serves to define what empowers and limits the legitimate exercise of governmental authority. Among the essential legitimizing features, the sovereignty of the people and as the obvious result thereof, the people's constituent [Page 276]power, rank first. Abbé Sieyès, on the eve of the French Revolution, acclaimed the emancipatory potential of this constituent power in his pamphlet What Is the Third Estate? (1789) and furthermore made the classic division between the constituent and constituted power of the people. However, because plurinational, multi-ethnic, and multi-religious societies comprise heterogeneous citizenship endowed with constituent power, rather than homogeneous people, the sovereignty of the people has to be reframed as the “sovereignty of the citizens,” and constitution building becomes an ongoing, open process of political integration by the citizens. The substantive guarantees of such “procedural constitutionalism” are often based on the notion of human dignity, which encompasses basic human rights ensuring freedom and equality (before the law). The orientation toward the common good has substantive as well as procedural elements. The same is true for another core principle of constitutionalism: the rule of law. Among other elements, it embraces the ideals of material justice, impartiality and fairness, legal certainty and proportionality, and in particular due process guarantees. Constitutionalism finally requires a formal mechanism for the enacting of laws (legality) and institutional safeguards for the three separate branches of government: legislative, executive, and judicial. Regarding the last named, constitutional justice and the idea of judicial review are nowadays universal features of constitutionalism. In general, all the aforementioned criteria work as a blueprint of constitution-building processes in emerging democracies and as structural prerequisites of a secular, reason-based polity.

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