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Chapter 2 A constitution is a set of rules that seeks to allocate duties, powers and functions among the various institutions of government. It therefore constitutes the rules that govern the government itself. As such, it both defines the extent of government power and limits its exercise. Support for constitutionalism can take two forms. In the first place, the powers of government bodies and politicians can be limited by the introduction of external and, usually, legal constraints. The most important of these is a so-called written constitution , which codifies the major powers and responsibilities of government institutions within a single document. The first such document was the US Constitution, but during the nineteenth and twentieth centuries written constitutions were adopted in all liberal democracies, with the exception of the UK, Israel and New Zealand. In many cases, bills of rights also exist, which entrench individual rights by providing a legal definition of the relationship between the individual and the state.The earliest example was the ‘Declaration of the Rights of Man and the Citizen’, which was passed by France’s National Constituent Assembly in 1789. The principle of basic rights was enshrined in international law by the Universal Declaration of Human Rights. Where neither written constitutions nor entrenched bills of rights exist, as in the UK (the 1998 Human Rights Act being essentially
a statute of rights), liberals have stressed the importance of statute law in checking government power through the principle of the rule of law . Second, constitutionalism can be established by the introduction of internal constraints which disperse political power among a number of institutions and create a network of ‘checks and balances’. As the French political philosopher Montesquieu (1689–1775) put it, ‘power should be a check to power’ (Montesquieu [1748] 1969). All liberal political systems exhibit some measure of internal fragmentation. This can be achieved by applying the doctrine of the separation of powers , proposed by Montesquieu himself. This seeks to prevent any individual or small group from gaining dictatorial power by controlling the legislative, executive and judicial functions of government. A particular emphasis is placed on the judiciary. As the judiciary interprets the meaning of law, both constitutional and statutory, and therefore reviews the powers of government itself, it must enjoy formal independence and political neutrality if it is to protect the individual from the state. Other devices for fragmenting government power include cabinet government (which checks the power of the prime minister), parliamentary government (which checks the power of the executive), bicameralism (which checks the power of each legislative chamber) and territorial divisions such as federalism (see p. 43), devolution and local government (each of which checks the power of central government).
Written constitution: A single authoritative document that defines the duties, powers and functions of government institutions and so constitutes ‘higher’ law. Bill of rights: A constitutional document that specifies the rights and freedoms of the individual and so defines the relationship between the state and its citizens. Rule of law: The principle that all conduct and behaviour, of private citizens and government officials, should conform to a framework of law. Separation of powers: The principle that legislative, executive and judicial power should be separated through the construction of three independent branches of government.
KEY CONCEPT CONSTITUTIONALISM
refers to a set of political values and aspirations that reflect the desire to protect liberty through the establishment of internal and external checks on government power. It is typically expressed in support for constitutional provisions that establish this goal; notably, a codified constitution, a bill of rights, separation of powers, bicameralism and federalism (see p. 43) or decentralization. Constitutionalism is thus a species of political liberalism.
Constitutionalism, in a narrowsense, is the practice of limited government brought about by the existence of a constitution. Constitutionalism in this sense can be said to exist when government institutions and political processes are effectively constrained by constitutional rules. More broadly, constitutionalism
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