Routledge Handbook of Constitutional Law

Mark Tushnet, Thomas Fleiner, Cheryl Saunders, Mark Tushnet, Thomas Fleiner, Cheryl Saunders

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781135100186
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho público

The Routledge Handbook of Constitutional Law is an advanced level reference work which surveys the current state of constitutional law. Featuring new, specially commissioned papers by a range of leading scholars from around the world, it offers a comprehensive overview of the field as well as identifying promising avenues for future research. The book presents the key issues in constitutional law thematically allowing for a truly comparative approach to the subject. It also pays particular attention to constitutional design, identifying and evaluating various solutions to the challenges involved in constitutional architecture.

The book is split into four parts for ease of reference:

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• Part One: General issues "sets issues of constitutional law firmly in context including topics such as the making of constitutions, the impact of religion and culture on constitutions, and the relationship between international law and domestic constitutions.

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• Part Two: Structures presents different approaches in regard to institutions or state organization and structural concepts such as emergency powers and electoral systems

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• Part Three: Rights covers the key rights often enshrined in constitutions

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• Part Four: New Challenges - explores issues of importance such as migration and refugees, sovereignty under pressure from globalization, Supranational Organizations and their role in creating post-conflict constitutions, and new technological challenges.

Providing up-to-date and authoritative articles covering all the key aspects of constitutional law, this reference work is essential reading for advanced students, scholars and practitioners in the field.

Part I
General issues

1
Constitutions

Yasuo Hasebe and Cesare Pinelli

1.1 ‘Constitution’: families of meanings

The term ‘constitution’ corresponds etymologically to the Latin constitutio.¹ The noun derives from the verb constituo,² whose root statuo (‘to set up’) is a transitive form of sto (‘to stand’) (Ernout & Meillet, keyword sto).

Accordingly, two families of meanings are likely to stem from constitutio, namely the condition of an erect body, or the bodily predisposition as regards health or strength,³ and the action of building or of constituting something.⁴ These families might be considered as designating, respectively, the substance of which a certain entity is constituted, and the artificial production of a certain entity. A substantial (or organic) notion of constitutio might then be distinguished from a formal (or artificial) one.

But statuo is also at the origins of status. While distinguishing public law as quod ad statum rei romanae spectat (what pertains to the Roman polity) from private law as quod ad singulorum utilitatem (what pertains to the utility of individuals),⁵ the Justinian code employs status as the condition of a certain entity, the Roman polity, that was not a state in the sense of a legal organization acting upon a certain territory. This is rather the modern sense of the notion, firstly emerging from Machiavelli’s assertion that ‘[a]ll states, all powers, that have held and hold rule over men have been and are either republics or princedoms’ (Machiavelli, 1). In turn, Hobbes’s celebrated definition of the ‘commonwealth or state’ as ‘an artificial man’ is centred on ‘art’, namely on how the state is formed (Hobbes, 9).⁶

It is still disputed whether the alternative constitutional theories that prepared, or accompanied, the rise of the modern state maintained some correspondence with the ambivalent meaning of constitutio. With that rise, the old meaning of constitutio as condition or structure of a certain body (constitution in the organic sense) might have been converted into theories of the constitution focused on the state’s organization, or ‘institution’.⁷ Conversely, Hobbes’s vision of the state as an exclusively artificial creation might be viewed as the epistemological premise of the purely procedural notion of constitution formulated by Kelsen.⁸

At any rate, it was a theoretical dichotomy between a substantial (or institutional) and a formal (or procedural) notion of constitution that dominated the European debate throughout the twentieth century. That dichotomy was then discussed in abstract terms, and therefore disconnected from the meaning of constitution as adopted from legally issued authorities and/or from the people.

However, since the Roman Republic, ‘constitution’ has frequently been used in the latter meaning. While noticing that ‘this religious constitution does not differ much from the laws of Numa and our customs’ (see Cicero, De Legibus 2, 10, 23), Cicero refers himself to some accepted meaning of constitution. The same occurs in the Digest, enacted in the late Roman Empire, where it is reported that the legislative acts of the Emperor are designated constitutiones (see Digestus 1, 4), or in Glanvill, who defines legalis ista constitutio as King Henry II’s ordinance, establishing the rules for the assizes (de Glanvill 63). These authors or texts content themselves with describing the legal meaning of constitution as it is accepted in their time, without engaging in theoretical statements.

Nonetheless, references to a constitution’s accepted meaning may go beyond mere descriptions. In De Re Publica Cicero asserts that a constitutio, in the sense of the foundation of a republic, cannot result from the capacity of a single man, but from that of many men acting through centuries and ages rather than within a single generation (Cicero, De Re Publica, vol. II, 1), adding that such constitution is provided with a great deal of equity, without which men could not preserve their freedom for long (Cicero, De Re Publica, vol. I, 45). While recalling the making of the Roman republic’s constitutio, which resulted in a mixed form of government, Cicero introduces here a normative notion of constitution, whose content consists in virtues (equity and freedom) that were attached to it by various generations of Roman citizens. The author’s account, although far from being neutral, relies on the historical evidence that such notion resulted from an incremental understanding from citizens of the virtues of their own constitution.

A more ambitious enterprise was attempted in the case of Article 16 of the 1789 Declaration of the Rights of Man and the Citizen, according to which ‘[a]ny society in which rights are not guaranteed, nor the separation of powers determined, has no constitution’. Unlike Cicero, the authors of the Declaration aimed at giving once and for all a universal normative definition of constitution, grounded on the basic elements of the emergent constitutionalism, such as the separation of powers and the guarantee of rights.

It has been noticed that ‘separation of powers’, far from consisting in the establishment of independent and specialised authorities, was intended by the Framers of the Declaration in the negative sense suggested by Locke and Montesquieu, namely that concentration of powers engenders despotism, a regime where the power of changing both the content and the procedure of rules rests upon the despot’s arbitrary will (Troper, ch. XVII). However, a positive sense is given to the whole proposition from the connection of ‘separation of powers’ with ‘guarantee of rights’, set forth in the Preamble to the Declaration as ‘the natural, unalienable and sacred rights of man’. While stating that societies in which rights are not guaranteed, nor the separation of powers determined, have no constitution, Article 16 reflects the fundamental precept of the natural law theory according to which unjust laws are not laws. Hence emerges a content-based notion of constitution, irrespective of whether and how citizens apprehend its basic elements, and by what processes it is made.

In spite of its universalistic ambition, this notion reflected an emphasis on the proclamation of rights and a relative lack of attention to the corresponding remedies, as criticised by Dicey with a view to indicate the superiority of the British practice: ‘The Habeas Corpus Acts declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty’ (Dicey, 199).

The question of whether the British practice guarantees rights better than that of continental European states has lost significance in our time. Constitutions adopted in contemporary states—with the exceptions of the United Kingdom, Israel, and New Zealand—consist in a document or a series of documents enacted through a specific procedure, providing both the distribution of power among the state’s authorities and the fundamental rights of citizens. But the worldwide diffusion of written texts with these characters is far from confirming the beliefs lying at the core of the 1789 Declaration. Unlike the age of innocence of constitutionalism, the awareness is now widespread that ‘[c]onstitution-texts can be mere façade legitimation, mere window-dressing on actual state practice. The practice may be of one-party rule, of police torture, of corrupt and intimidated judges, of a military or militia barely if at all under civilian rule, of business practices distorted by the need for systematic bribery of officials, and so on’ (MacCormick, 24; see also Sartori).

The question therefore remains open as to which criteria are needed for distinguishing façade or sham constitutions and which are not. Attention should of course be focused on whether constitutional rules and principles are sufficiently enforced, and, first and foremost, on the meanings that may be attached to the text both on formal grounds and in relation to its content. In particular, a brief account will be given of the sense of the constitution’s amending procedures (see § 2), and of the evolution of the ideas and practices affecting constitutionalism (see § 3).

1.2 Flexible and rigid constitutions

James Bryce first formulated what has become a generally acknowledged distinction affecting the constitution’s procedure. Bryce distinguished between ‘flexible constitutions’ that ‘proceed from the same authorities which make the ordinary laws’ and ‘are promulgated or repealed in the same way as ordinary laws’, and ‘rigid constitutions’ that ‘stand above the other laws of the country which they regulate. The instrument (or instruments) in which such a constitution is embodied proceeds from a source different from that whence spring the other laws, is repealable in a different way, exerts a superior force. It is enacted, not by ordinary legislative authority, but by some higher or specially empowered person or body’ (Bryce, 128 ff).

Although grounding the distinction on a formal criterion, Bryce was interested in the historical roots of those types with a view to examine their respective stability. Flexible or common law constitutions such as the Roman and the English, he argued, consist in a mass of precedents, of dicta of lawyers or statesmen, of customs and beliefs, together with a certain number of statutes, whose changes or transgressions, albeit formally easy, did not alter for centuries the main lines of the frame of government (id 141). This ‘apparent paradox’ was due to the balance of social and economic forces standing behind and supporting the constitution, whose ‘natural affinity for an aristocratic structure of government’ brought Bryce to challenge implicitly Montesquieu’s famous dictum: ‘The very fact that the legal right to make extensive changes has long existed, and has not been abused, disposes an assembly to be cautious and moderate in the use of that right. Those who have always enjoyed power are least likely to abuse it’ (see id 142, emphasis added).

A rigid or ‘documentary’ constitution, which Bryce suggested usually arises when the mass of the people are anxious to secure their rights against the invasion of power (id 200), is affected by two opposing tendencies, namely ‘the growth of the respect for the Constitution which increasing age brings’, and the fact that time, ‘in changing the social and material condition of a people, makes the old political arrangements as they descend from one generation to another a less adequate expression of their political needs’ (id 191). Since the majority requested for constitutional amendments might then be higher than that which can be secured, it remains the expedient of ‘Extensive Interpretation’, which in the United States is afforded by the Judiciary: ‘Human affairs being what they are, there must be a loophole for expansion or extension in some part of every scheme of government: and if the Constitution is Rigid, Flexibility must be supplied from the minds of Judges’ (id 197).

However, Bryce was not sufficiently aware of the enduring debate on the constitution’s relation with time, which took place among theorists and at the Constituent Assemblies since the eighteenth century’s Revolutions.

It is worth mentioning Article 28 of the Declaration of the Rights of Man and the Citizen, attached to the Constitution of 1793, according to which ‘[a] people has always the right to review, to reform, and to alter its constitution. One generation cannot subject to its law the future generations’. Similarly, Jefferson and Payne were convinced that ‘the present generation has an unlimited and illimitable right to new-model the institutions under which it lives. The only consent that legitimates any form of government is “the consent of the living”’ (Holmes 202). Madison replied that, rather than enslaving future generations, precommitments enable the possibility of democracy by stipulating restraints upon one generation from preventing the future ones from experimenting with democracy (id 200 ff).

The issue of the Constitution’s amendment procedure was connected with the Jefferson– Madison debate, as well as that, contextually arising in France, between Sieyès and Barnave (see Chabot).⁹ While constitutions allowing the ordinary legislator to amend constitutional provisions, or flexible constitutions in Bryce’s terms, corresponded to the Jeffersonian perspective, the rigid type reflected that of Madison. But, rather than Bryce’s distinction between a venerable, aristocratic common law constitution and a modern, popular one, the French alternative concerned the pouvoir constituant’s legitimacy in binding future generations, an issue inherent in the rise of modern constitutionalism.

1.3 The emergence of constitutionalism

Broadly defined, ‘constitutionalism’ is the practice and method whereby limits on governmental powers are established and maintained. Constitutionalism promotes the rule of law over the rule of men. It is in this sense of the term that we discuss the idea of ‘ancient constitutionalism’ in Plato’s Statesman, or the ‘medieval constitutionalism’ of Bracton (McIlwain, chs. II, IV).¹⁰

Defined strictly, ‘constitutionalism’ refers to the idea of limiting governmental powers in modern states. This idea, also called ‘modern constitutionalism’, presupposes the distinction between the public and private spheres, which ancient or medieval constitutionalism did not recognise (Beaud 134).¹¹ In the modern state, ancient or medieval constitutionalism would not work because, first, any customary limit on governmental powers is subject to change by the sovereign legislative power; and second, the Reformation brought the loss of a unified worldview that maintained moral limits on governmental powers.

Under medieval constitutionalism, it was said that ‘the King shall not be subject to men, but to God and the law: since law makes the King’ (Bracton 33), but no mechanism existed either to effectuate this legal constraint or to make the government accountable before the people, other than violent revolt (McIlwain 80–83). As Parliament emerged as the supreme legislature, some recognised that it had the power to do what it ought not to do. While Sir Edw...

Table of contents

• Cover Page
• Half Title page
• Title Page
• Copyright Page
• Contents
• Contributors
• Introduction
• Part I General issues
• Part II Structures
• Part III Rights
• Part IV New challenges
• Index