Constitutionalism

Constitutionalism is sometimes regarded as a synonym for limited government. On some accounts, this doctrine is associated in turn with minimal or less government. But that is only one interpretation and by no means the most prominent historically. A more representative general definition would be that constitutionalism seeks to prevent arbitrary government. At its most generic level, arbitrariness consists in the capacity of rulers to govern will-fully—that is, with complete discretion—and to serve their own interests rather than those of the ruled. Constitutionalism attempts to avoid these dangers by designing mechanisms that determine who can rule, how, and for what purposes. However, constitutional traditions differ as to what precisely counts as an arbitrary act and which mechanisms offer the best defense against their occurring. The classical, neo-republican tradition of political constitutionalism identifies arbitrariness with domination of the ruled by their rulers and seeks to avoid it by establishing a condition of political equality characterized by a balance of power between all the relevant groups and parties within a polity, so that no one can rule without consulting the interests of the ruled. The more modern, liberal tradition identifies arbitrariness with interference with individual rights and seeks to establish protections for them via the separation of powers and a judicially protected constitution.

Both traditions are present within most democracies and can be found side by side in many constitutions. The first tradition focuses on the design and functioning of the democratic process, including the selection of electoral systems and the choice between presidential or parliamentary forms of government, of unitary or federal arrangements, and of unicameralism or bicameralism. Although the detailing of these procedural mechanisms and the relations between them usually forms the bulk of most constitutional documents, their constitutional importance has come to be eclipsed—in legal circles particularly—by the second tradition. This view emphasizes the specification and judicial protection of the different competences of the political system and of constitutionally entrenched rights by a constitutional court. Political theorists and scientists disagree, however, on whether these two traditions are complementary, mutually entailed, or incompatible. The second is often seen as necessary to ensure the fairness of the procedures and/or the outcomes of the first. Yet it lays itself open in turn to doubts that courts are, or could ever be, truly bound by constitutions so that law rather than judges rule and if so whether judicial processes are not more arbitrary and prone to error for deciding constitutional outcomes than the democratic procedures and outcomes they are often thought legitimately to limit. In the following sections, this entry traces these two traditions and then turns to exploring their respective advantages and disadvantages and any tensions and complementarities that exist between them.