S. S.

JAIN SUBODH LAW

COLLEGE

TOPIC - CONSTITUTIONALISM
SUBJECT - CONSTITUTIONAL LAW

SUBMITTED BY - SUBMITTED TO -
YUVRAJ SAINI Ms ANJALI BHATIA
ASSISTANT PROFESSOR
(FACULTY OF CONSTITUTIONAL LAW)

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 INDEX

Topic Page no.

1. Introduction 6

2. Definition of Constitutionalism 7

3. Concept of Constitutionalism 8

4. History 9

5. Usage of Constitutionalism 11

6. Seven principles 12

7. Constitutionalism in India 14

8. Criticism 15

9. Conclusion 16

10. Bibliography 17

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INTRODUCTION

‘‘A constitution is not the act of a government, but of a people constituting a government,
and a government without a constitution is power without right.’’ ‘‘A constitution is a thing
antecedent to a government; and a government is only the creature of a constitution.’’ It
seems probable that Paine means by ‘‘constitution’’ nothing less than the written
constitutions of America or France. For, he says, ‘‘the continual use of the word
‘constitution’ in the English parliament shows there is none; and that the whole is merely a
form of government without a constitution, and constituting itself with what power it
pleases.’’ ‘‘The act by which the English parliament empowered itself to sit for seven years,
shows there is no constitution in England. It might, by the same authority have sated any
greater number of years, or for life.’’1

A constitution is the organic or fundamental law of a state. Every country with an established
government has a constitution; Soviet Russia has, and Nazi Germany had, a constitution no
less than the United States. Even having a written constitution does not confer
constitutionalism upon a nation. Many countries, such as the Soviet Union, that have written
constitutions do not possess constitutionalism. Constitutionalism, or its virtual equivalent, the
rule of law, may be defined as a legal order in which the laws are stable, can be known to all,
and cannot be subverted by the caprice of a ruler or official. For instance, constitutionalism is
the trait of a government in which every person charged with the same crime will be tried in
the same fashion and, if convicted, will receive the same sentence regardless of his economic
status, political attitudes, or any other ground for personal distinction.

1
Principles of Democracy http://www.asmarino.com/articles/1442-constitutionalism
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DEFINITION OF CONSTITUTIONALISM

Constitutionalism, in its most general meaning, is "a complex of ideas, attitudes, and
patterns of behavior elaborating the principle that the authority of government derives from
and is limited by a body of fundamental law".

As described by political scientist and constitutional scholar David Fellman:

“Constitutionalism is descriptive of a complicated concept, deeply imbedded in historical

experience, which subjects the officials who exercise governmental powers to the limitations
of a higher law. Constitutionalism proclaims the desirability of the rule of law as opposed to
rule by the arbitrary judgment or mere fiat 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 the 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”.2

For Arthur Young, a constitution in this sense of a ‘‘written’’ constitution is ‘‘a new term’’;
for Thomas Paine it seems to be the only kind of constitution worthy of the name. Such
‘‘puddings,’’ ‘‘made by a receipt, ‘were to Edmund Burke apparently as repulsive as to
Arthur Young. He says little or nothing about the new American constitutions, but in his
opinion nothing could be worse than the French one. ‘‘What in the result is likely to produce
evil, is politically false,’’ he says; and ‘‘that which is productive of good, politically true.’’3
Certainly, in his view, nothing but evil had come or could come from ‘‘that monstrous thing,
which, by the courtesy of France, they call a constitution.

These statements express very clearly the contrast between the new conception of the
conscious formulation by a people of its fundamental law, the new definition of
‘‘constitution’’; and the older traditional view in which the word was applied only to the
substantive principles to be deduced from a nation’s actual institutions and their

2
Constitutionalism http://en.wikipedia.org/wiki/Constitutionalism

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development. The older view was probably never better indicated than by Bolingbroke, when
he said in 1733.3
CONCEPT OF CONSTITUTIONALISM

The modern concept of constitutionalism involves a political system of checks and balances,
regulated by law and designed to protect the liberty of individuals and enable their
participation in politics. A constitution may take written form, as in the American
constitution of 1787, or it may consist of an assemblage of legal statutes and precedents
collected over time, as in the United Kingdom. The word "constitutionalism" did not exist in
early modern Europe, but most of the ideas behind it were frequently expressed. A
constitution generally meant the creation of a law or statute. However, political institutions
and individual liberty were long seen as the products of custom rather than deliberate law
making. Checks and balances were thought to be embodied in a limited monarchy or mixture
of monarchy, aristocracy, and democracy. The idea of the separation of legislative, executive,
and judicial powers did not become clear until the eighteenth century. The idea of
constitutionalism requires limitation on government power and authority established by
constitutional law. But according to most constitutional scholars, there is more to a
constitution than constitutional law. A political organization is constitutional to the extent
that it "contains institutionalized mechanisms of power control for the protection of the
interests and liberties of the citizenry, including those that may be in the minority. It is a form
of political thought and action that seeks to prevent tyranny and to guarantee the liberty and
rights of individuals on which free society depends. This definition, drawn mainly from
English and American political history, may be compared with a more formalistic view that
regards constitutionalism as the conduct of politics in accordance with a constitution. The
import of this definition depends on the meaning of constitution, a term that has been
variously interpreted in western political thought. During the American Revolution,
Americans conceived of a constitution as the permanent, binding, and paramount political
law of the polity. Although this theoretical innovation did not end all controversy over the
meaning of the concept, it generally caused constitutionalism to be defined thereafter as the
forms, principles, and procedures of limited government. 

The social orders they represent, illustrates this way of limiting government. A second
approach to the problem is through the rule of law. Historical examples of this tradition are

3
Supra note 2.

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the Roman idea that the law of nature provides a standard of justice for evaluating the
legitimacy of government enactments and the English practice, beginning with Magna Carta,
of subjecting the monarchical power to legal limits and common‐law rules protecting the
liberty and property of subjects.4 

HISTORY OF CONSTITUTIONALISM

The tradition of constitutionalism begins in ancient Athens and has had a long, interrupted,
and irregular history to the present day. It has embraced devices of two kinds. Institutional
arrangements of one sort or another have been advocated on the ground that they protected
substantial interests from governmental encroachment. "Checks and balances" have been the
machinery on which most of these contrivances relied; they have been nothing less than a
fetish with constitution-makers. Furthermore, there has been a persistently recurring idea of
the character of law. Two inferences have been drawn from the proposition that law is a rule
of conduct — that it is general, and that it is prospective. To implement this conception, the
doctrine of the separation of the legislative from the executive power was introduced, and it
will be argued below that judicial review relies heavily on the same idea.

Among substantial interests, property is prominent, and it is natural that the "auxiliary
precautions" which take the form of institutional arrangements should aim at the protection of
property. In the ancient world, with its republican institutions, the propertied class undertook
to defend itself against the property less; in the Middle Ages, when kingship was the chief
political institution, property opposed itself to the royal power. But constitutionalism has
been used to protect other interests as well. In Athens in the fourth century before Christ there
were institutional arrangements intended to prevent the democracy from being overthrown by
a tyrant. From the beginning of modern constitution-making in seventeenth-century England,
freedom of conscience has been an object of primary concern. The American constitutions of
the eighteenth century gave great attention to the protection of persons accused of crime.5

More than sixty years ago, Charles Howard McLain opened his classic treatise
Constitutionalism Ancient and Modern with the sentence: “The time seems to be propitious
for an examination of the general principle of constitutionalism […] and an examination

4
Supra note 2.
5
Supra note 2.

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which should include some consideration of the successive stages in its development.”
Today, at the onset of the 21st century after more than two hundred years of modern
constitutionalism, we have to admit that our knowledge of the history of modern
constitutionalism is still next to nothing. That modern constitutionalism came into being at
the end of the 18th century seems to be beyond dispute. The American and French
revolutions constituted, according to Maurizio Fioravanti, “a decisive moment in the history
of constitutionalism”, inaugurating “a new concept and a new practice” Two hundred years
later, it is taken for granted that every country in the world, with the exception of the United
Kingdom, New Zealand and Israel, boasts a written constitution on the basis of modern
constitutionalism. But while we acknowledge the global acceptance of a political principle,
singular as it may be, and while scholars such as Bruce Ackerman have already coined the
term “world constitutionalism”, we uneasily have to admit that in spite of McIlwain,
Fioravanti, and numerous other scholars, we definitely do not know how all this came about.
Great numbers of comparative studies have been undertaken in constitutional laws and in
constitutional history. Though they generally have enriched our knowledge, they have told us
little about modern constitutionalism and its history. As they departed from the nation-state,
they tended to lack any overruling perspective and usually restricted themselves to piling up
information state by state. In contrast, the most ferocious opponents of modern
constitutionalism already displayed their full awareness of the concept after the conclusion of
that decisive event, the revolution of 1848. They thoroughly denounced what they called the
“essence and nuisance of modern constitutionalism”, as the title of one book put it, and with
it its history and its principles or essentials. Though their arguments cannot claim any validity
today, the phenomenon they described merits even more attention in our time than it
commanded a hundred and fifty years ago.6

USAGE OF CONSTITUTIONALISM

Constitutionalism has prescriptive and descriptive uses. Law professor Gerhard

Casper captured this aspect of the term in noting that: "Constitutionalism has both descriptive

6
https://constitution.org/1-Constitution/cmt/mcilw/mcilw.htm

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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 Constitution.

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.7

Descriptive Use:

One example of constitutionalism's descriptive use is law professor Bernard Schwartz's 5

volume compilation of sources seeking to trace the origins of the U.S. Bill of
Rights. Beginning with English antecedents going back to the Magna Carta (1215), Schwartz
explores the presence and development of ideas of individual freedoms and privileges
through colonial charters and legal understandings. Then, in carrying the story forward, he
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 rights and principles
in a constitutional order.

SEVEN PRINCIPLES OF CONSTITUTIONALISM

Checks and balances Each branch of the national government has

7
Supra note 2.

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 certain controls (over) the other two branches.
Limited Government Government’s power is limited by rule of law
which includes the constitution and the laws
which are passed in the pursuance of the
constitution. This means that government is
not at all powerful.
Individual rights Personal freedoms, personal protections, and
equality under the law that guaranteed in the
constitution, the bill of rights, and laws of
U.S.
Popular Sovereignty Ultimate power and final authority rest with
‘we the people’ or all citizens.
Republicanism The people exercise their power by deligating
it to representatives chosen by through the
election process.
Federalism States where federal system of government
where power is divided between the national
government and government of states.
Constitution lists the powers of the national
government as well as certain powers denied
by states.
Separation of powers Power within national government is divided
among three separate branches; Legislative,
Executive, Judiciary

There is indeed a constitutional method distinctive to the modern state, and it is best
understood as possessing a holistic quality. In a nutshell, the holistic method is a method of
constitutional articulation and engagement in which the authority and meaning of the various
parts are understood and treated as dependent on the integrity of the whole. As we shall see,
this holistic feature is no isolated thread, but something that gives texture to the various

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different aspects of state constitutionalism. To appreciate this, however, we must first say
something more about the Constitutional concept itself. In so doing, we are no longer
concerned, as in the previous section, with constitutionalism in the abstract – as a theoretical
concept for making sense of and evaluating the social world, but with constitutionalism in the
concrete – as an ‘object’ already at use ‘in’ the social world, and in the social world of the
state in particular. Considered as such an ‘object’ concept, state constitutionalism can be
viewed both diachronically and synchronically. Diachronically, state constitutionalism in the
modern age describes a particular high point of accumulation of various distinct layers of
situated ‘constitutional’ practice that have operated separately or in different combinations in
the past. These layers are juridical, politico-institutional, popular and societal.
Synchronically, state constitutionalism operates in terms of its own particular formulation of
these layers and of their relationship with one another. Constitutionalism in (state) practice
behaves, in other words, as a “cluster concept”, associated simultaneously with a number of
different but themselves interrelated definitive criteria. It is in each of its four layers – or, if
you like, in different parts of the cluster - that we can observe constitutionalism operating
holistically, offering an encompassing frame for the ‘constitutive’ representation and
regulation of each of the particular dimensions of social ‘reality’ with which it is concerned.
This combination of structural primacy, institution-transcending substantive rules, insulation
of rules of constitutional norm production and maintenance from control by the institutions
affected by these norms, and the openness of the same rules to broader forms of public
influence and discipline, provides the key ingredients of a holistic method of
constitutionalism. The parts are supported by the whole both within and across the various
different frames. Particular sector-specific rules and institutions alike depend for their
meaning and authority on their location within broader regulatory and institutional orders,
which broader orders are informed by a similarly wide-reaching and holistic conception of
the singular public as both the source and the receptive environment of constitutional
authority.8

It is precisely because the language of constitutionalism, considered as a normative

technology, finds it ever more complex and difficult to address the problems of communal
living it poses in and for a post-state world, that it becomes all the more important to retain
the language of constitutionalism, considered as a symbolic legacy, as an insistent reminder
of what and how much is at stake. The day that constitutionalism’s inability perhaps even an

8
https://legislative.gov.in/sites/default/files/COI-updated.pdf

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expansively conceived multilevel constitutionalism’s inability - to provide stock answers to
its abiding questions becomes a settled reason no longer even to ask these questions is the day
that constitutionalism’s historical paradigm will truly have been exhausted.9

CONSTITUTIONALISM IN INDIA
India is a democratic country with a written constitution with a written constitution. Rule of
law is the basic for governance of the country and all the administrative structures are
expected to follow it in both letter and spirit. It is expected that constitutionalism is a natural
corollary to governance of India. But the experience with the process of governance in India
in the last six decades is a mixed one. On the one hand, we have excellent administrative
structures put in place to oversee even the minutest of details related to welfare maximization
but crucially on the other it has only resulted in excessive bureaucracy and eventual
alienation of the rulers from the ruled.
Since independence, those religions which were backward remained the same, the gap
between the rich and poor has widened, people at bottom level of the pyramid remained at
periphery of developmental process, bureaucracy retained colonial characters and overall
development remained much below the expectation of the people.10

CRITICISM
Constitutionalism has been subject of criticism by numerous anarchist thinkers. For example,
Murray Rothberg, who coined the term “anarcho-capitalism”, attacked constitutionalism,
arguing that constitutionalism is incapable of restraining governments and do not protect the
rights of citizens from their government. Rothberg wrote that is true that, in the united states,

9
Constitutionalism http://plato.stanford.edu/entries/constitutionalism/
10
Indian Constitutionalism https://www.lawyersclubindia.com/articles/Indian-Constitutionalism-5362.asp

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at least, we have a constitution that imposes strict limits on some powers of government. But,
as we have discovered in the past centuries, no constitution can interpret itself; must be
interpreted by men and if ultimate power to interpret a constitution is given to the
government’s own supreme court, than the inevitable tendency is for the court to continue to
place its imprimatur on ever broader powers for its own government. Furthermore, the highly
touted “checks and balances” and “separation of powers”. In the American government are
flimsy indeed, since in the final analysis all of this division are the part of same government
are governed by the same set of rule.

1. Judicial reforms should be implemented with immediate effect as more than 30

million cases are pending in various courts all over the country.
2. Criminalization of politics is a bane for democracy and unless urgent steps are taken
to counter it, might see the eventual failings of it.
3. Political and administrative corruption is a sad reality of Indian administration and
this cancer should be removed from the body of Indian democracy on an emergency
basis.
4. Economic backwardness has resulted in antisocial movement in the form of rise of
naxalism. Unless it is curbed it can turn into serious problem for Indian
administration.
5. Aspiration of people at the local level are increasing at an exponential manner if they
are fulfilled the mounting frustration are extremely dangerous for functioning if
democratic system.11

CONCLUSION

Constitutionalism is a very vast topic. It cannot be put in words. More research has to be done
on this topic of constitutionalism. Moreover, I can say that constitutionalism is the soul of the

11
What are the Important Features of Constitutionalism? www.preservearticles.com/2011092714112/what-
are-the-important-features-of-constitution.html

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constitution. It is most important rule of law. It is a rule of law which may be defined as a
legal order in which the laws of stable, can be known to all and cannot be subverted by the
caprice of a ruler or official. The purpose of constitutionalism is providing local people
autonomy to some extent as it is saying that one’s betterment and country’s development.

BIBLIOGRAPHY

Books referred:
Bare act on Constitution of India

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Constitution by G.P Tripathi

Sites referred:
www.indiankannon.com
www.lawyersclubindia.com
www.oxfordscholarship.com
www.wikipidia.org

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