The Ideals of Constitutionalism


The idea – the ideal – of Constitutionalism is that the ruler should be ruled, government should be governed, by higher principles, or alternatively, by qualifications setting out obligations, limitations and procedures.

When power, that is the ability to physically influence the behavior of others, is centralized, the rule of law is thus imposed. Instead of individuals arguing and settling their differences in a continuing series of battles based on personal power, the authority to establish decisions on social conduct together with the power necessary to enforce them is vested in a centralized institution – a monarch, dictator, or elected parliament.

Society can benefit from the stability afforded by centralized rule of law. And if government can formulate and enforce fair, just and universal rules of social conduct, citizens will be able to live at peace with one another in positive and productive collaboration.

However – and this is a major qualification – when the people hand the power of decision over their lives and livelihoods to a centralized institution, they would be well advised before doing so, to qualify that power with strict rules of procedure, and so ensure that the power thus delegated can never be misused.

The Romans expressed this ideal through the concept of “Natural Law”, which Cicero elaborates in The Republic: “There is in fact a true Law – namely, right reason – which is in accordance with nature, applies to all men, and is unchangeable and eternal. By its commands it summons men to the performance of their duties; by its prohibitions it restrains them from doing wrong.”

None of the great Roman jurists doubted that there is a higher law than the enactments of any particular State. Like Cicero they conceived of the law as ultimately rational, universal, unchangeable, and divine, at least in respect to the main principles of right and justice. The Roman Law, like the English Common Law, was only in small part a product of legislation. Hence the presumption was never made that law expresses nothing but the will of a competent legislative body, which is an idea of quite recent origin. It was assumed that 'nature' sets certain norms which government's law must live up to as best it can and that, as Cicero had believed, an 'unlawful' statute simply is not law.

The essence of Natural Law is that the Ruler, the State or the Legislator is always subject to the Law of God, or the Moral or Natural Law, the Higher Rule of Right which transcends Human interests and Human institutions. Thus the Ruler or Legislator becomes an interpreter of a Higher Law, rather than an instigator or originator of law reflecting perhaps the interests and profit of himself or the group he represents.

Though this ideal was to become universally known throughout Western Europe down to the Nineteenth Century, it was paralleled by a more formal set of rules creating a new concept of Constitutionalism as the kings of England from the 10th century on became increasingly subject to the disciplines and limitations of Common Law, Custom, and various agreements forced on them by popular pressure. The king was bound by his Coronation Oath to defend the church, to punish crime and violence, and to rule with clemency and mercy. He was also bound by customary rules of law, and to some extent his power was restricted by his council. He was viewed as a religious and moral leader, a protector of the people in war and in peace.

Bringing all these threads together in one single document, England's Magna Carta, the Great Charter of 1215, is now widely accepted by general consent of history as the world's first major constitution. Indeed it is interesting to read the constitutions of the USA, both the federal constitution and those of individual states, as well as the constitutions of many Commonwealth countries, and to note how many passages from Magna Carta have simply been copied word for word.

Magna Carta provided Britain's reformers with a firm foundation, a cornerstone on which subsequent constitutional documents could be added to form the assemblage which, combined with unwritten custom, is commonly referred to as Britain's "constitution" today.

Constitution limits absolute power. This it achieves by placing conditions on the use of that power, by requiring the sharing of power with those subject to it through a process of debate, and by establishing boundaries beyond which the law may not intrude.

Despite their growing commitment to "rule by the people" – or more accurately, the majority of the people – the Framers of the United States Constitution were under no delusions that Democracy of itself could be relied upon to guarantee good laws.

In an attempt to preserve discipline and integrity in government the Framers provided a clear and concise Constitution creating a system in which several branches of Government share power, yet limit that power through a series of checks and balances.

But even this was not enough. Many of the Framers felt that Liberty should be more specifically defined and protected. Among them was Richard Henry Lee of Virginia, who argued that the Constitution as it stood directly after its adoption would "put Civil Liberty and happiness of the people at the mercy of Rulers who may possess the great unguarded powers given.";

He demanded such amendments "as will give security to the just rights of Human nature, and better secure from injury the discordant interests of the different parts of this Union."; The result was the first ten Amendments, collectively known as the Bill of Rights which set specific bounds on the range and extent of Law.

The significance of the Bill of Rights, as with similar Constitutional limitations on Government activity, lies in the recognition of a Higher Law endowing mankind with certain fundamental rights and liberties to which even elected Parliaments must defer.

Acceptance of a higher, Natural Law requires that "...the Legislator who formulates laws is a Priest of Justice, the practitioner of a true philosophy, not a pretender to an imitation. Natural Law meant interpretation in the light of such conceptions as equality before the Law, faithfulness to engagements, fair dealing or equity."

No government, president or monarch, no institution of law or enforcement, should be created or be allowed to exist and to function without a constitution. No one should have power over others, unless and until that power and the conditions of its use have been strictly defined. When Thomas Paine declared: “government without a constitution is power without right” he echoes Cicero's assertion that laws which fail to reflect the Natural Law of Right and Reason are simply not valid.

Michael Sartorius 2013

Governing Government

arton internet publications
       internet arton publications