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Lieberman, J. K. (1999) A Practical Companion to the arbitrary will of the ruler. Through Magna all in order (7) to preserve space in which at A central problem for constitutionalism is the Constitution: How the Supreme Court Has Carta (1215), the Habeas Corpus Act (1614), least some degree of individual autonomy may the enforcement of constitutional norms. In Ruled on Cases from Abortion to Zoning. the Bill of Rights (1689), the Act of Settlement flourish. the USA, there is no effective dissent from the Berkeley: University of California Press. (1701), and other parliamentary enactments, a Promulgation of a constitution does not practice, established in 1803 by Chief Justice Rossiter, C. (Ed.) (1961) The Federalist Papers. British constitution was gradually assembled. guarantee constitutionalism. Sham constitu­ Marshall in Marbury v. Madison, that courts in New York: New American Library. Modern constitutionalism in practice tions, like the Soviet Union's, or illiberal con­ appropriate cases may overturn statutes as Tribe, L. H. (2000) American Constitutional Law. emerged with the American Revolution. For stitutions, like Iran's, often prescribe restraints unconstitutional. But the idea of a constitu­ New York: Foundation Press. the drafters and ratifiers of the world's oldest on government (for example, guarantees of tional court, though gaining ground around continuing written constitution, a constitution freedom of speech, press, and assembly). But the world, is not a necessary component of Constitutionalism was, as Thomas Paine put it, "the act of the ... these are cosmetic dressing on an authori­ constitutionalism. Legislatures and executives people constituting a government;' and, he tarian skin, ignored when their exercise would may feel bound by constitutional norms, even Jethro K. Lieberman might have added, with terms and conditions "harm" the interests of the state or society or though they have the formal power to disre­ attached (Paine 1991: 82). As Walton H. counter the interests of an entrenched ruling gard them. Not since 1707 have British mon­ Constitutionalism is a central and protean Hamilton wryly observed: "Constitutionalism class. Nor do such constitutions provide peo­ archs vetoed legislation enacted by parliament, political concept that for more than two mil­ is the name given to the trust which men ple procedures to enforce their rights. In the though they have the "legal" authority to do so. lennia has never surrendered to a formal, fixed repose in the power of words engrossed on Soviet Union, as in other nations that pretend In the USA, decisions to impeach and convict definition. In its earliest incarnation, constitu­ parchment to keep a government in order" to constitutionalism, the basic charter did not federal officials, such as the president and tionalism was taken merely as descriptive fact. (1937: 255). Constitutionalism is not just restrain the government; rather, the unelected judges, are wholly in the hands of Congress To the ancient Greeks, the constitution meant any government and not just any order. Communist Party, which alone dictated the under the constitution itself, but the impeach­ "the state as it actually is" (Mcilwain 1966: 26). Constitutionalism rejects arbitrary govern­ interests of state and society, emasculated ment power has been used only sparingly and Today the idea of constitutionalism comprises ment; it recognizes and respects people's rights the constitution. Likewise, in many illiberal when, occasionally, it was misused, the Senate a cluster of particular jurisprudential and despite the contrary will of officials or even states, as for example in theocratic Iran, the refused to convict. That said, it is also indisput­ sociological attributes, summed up as "limited popular majorities. constitution may expressly restrain the able that constitutional norms can change so government under a higher law" (Fellman Different commentators have made these government, but in favor not of individual that what was once thought to be perfectly 1973: 485). Manifestly, not every state claiming points in different ways: "Constitutionalism rights-holders but of a clerical class who rule plain and acceptable to one generation becomes independent sovereignty can lay claim to the has one essential quality; it is a legal limitation on theological principles that lie outside con­ unthinkable, as a matter of constitutional constitutional mantle. on government" (Mcilwain 1966: 21). Consti­ stitutional norms and procedures. law, to another. The most spectacular example Beginning in the Roman Republic, and wan­ tutionalism is "a determinate, stable legal Despite the general agreement on the in American history is the Supreme Court's dering in and out of political and legal con­ order which prevents the arbitrary exercise of essential norms and practices of constitution­ change of mind on the question of racial segre­ sciousness for a millennium and a half, the political power and subjects both the governed alism, there is no definitive model and some gation from its 1896 decision in Plessy v. concept mutated: it came to be held that there and the governors to 'one law for all' [people]" basic questions remain unsettled. Students of Ferguson to its decision in 1954 in Brown v. was law antecedent to the state, that it came (Dunner 1964: 120). A "constitution is nece­ the subject point to a host of constitutional Board of Education. from the people, or custom, or God, or the ssary in order to limit government and . . . if variables, no single one of which appears to While far from universal - there remain natural order, and that even private citizens, as there is to be government by consent" (Scruton be crucial to determining whether a people many repressive governments with only far­ members of the public, may seek relief from 1984: 94). And, from the time ofMontesquieu, enjoy constitutionalism: must the constitution cical claims to constitutionalism - the idea of the government's abuse of the citizenry's public constitutionalism absorbed the maxim, in be written or unwritten, detailed or general, constitutionalism has spread throughout the rights. The idea was fitful and equivocal. Some James Madison's words, that the "accumulation long or short, judicially enforceable or not, world during the second half of the twentieth kings acknowledged they were subject to the of all powers . . . in the same hands . . . may republican or monarchical, parliamentary or century and is continuing still. Human rights law; others, at different times and in different justly be pronounced the very definition of tyr­ presidential, federal or unitary? So, for example, principles adopted at Nuremberg during the places, clung to a divine right to command at anny" (Madison 1961: 301). though constitutionalism is often said to trial of Nazi war criminals, in the International will. In England, from the twelfth century, the Modern constitutionalism, then, seems to require a written constitution, some practices Declaration of Human Rights, and in many judges held that the king was obligated to consist of these ingredients: (1) a fixed and are observed as constitutional norms despite other international treaties and instruments, follow the law, meaning, for example, that he public constitution, (2) ratified by the people, the lack of text. Until Franklin D. Roosevelt and the establishment of such bodies as the could not imprison someone who had not been (3) equally applicable to all, that restrains arbi­ violated it in 1940, an unwritten tradition International Criminal Court in The Hague, tried in court. By the sixteenth century, "a trary decrees by (4) separating government dating back to Washington in 1796 kept US all point to an emerging consensus on the man's home is his castle" that not even the king powers and (5) mandating impartial and fair presidents from serving more than two terms; value and necessity of constitutional regimes could invade was an adage that expressed the procedures, and (6) that permits the people Roosevelt's disregard of it led to the 22nd that promote individual and human rights. deeply entrenched notion of rights superior to through regular elections to select their leaders, Amendment, mandating the limit. Whether countries that have survived political 732 CONSTRUCTIVISM revolutions and the many new nations that Hoffer, P. C. (1990) The Laws Conscience: Equitable wrested sovereignty from their colonial gover­ Constitutionalism in America. Chapel Hill: nors can construct a constitutional order University of North Carolina Press. depends more on their ability to develop and Kramer, L. D. (2004) The People Themselves: Popular Constitutionalism and Judicial Review. sustain adequate political cultures than on New York: Oxford University Press. the promises and claims made in their new Pennock,]. R. and Chapman,]. W. (Eds.) (1979) constitutions. Unless they commit to demo­ Constitutionalism. New York: New York cratic principles and shun one-party and University Press. theological rule, no country can depend on Rosenfeld, M. (Ed.) (1994) Constitutionalism, bold or noble pronouncements in a paper Identity, Difference, and Legitimacy. Durham, charter to establish an enduring constitution­ NC: Duke University Press. alism for its people. Teitel, R. (2002) Transitional Justice. New York: Oxford University Press. SEE ALSO: Constitutional Democracy; Vile, J. M. C. (1998) Constitutionalism and the Constitutional Law, United States; Human Rights; Separation of Powers, 2nd ed. Indianapolis: Liberal Democracy; Rule of Law; Separation of Liberty Fund. Powers

References Constructivism Dunner, J. ( 1964) Dictionary ofPolitical Science. Adam Cureton New York: Philosophical Library. Fellman, D. (1973) "Constitutionalism:' In The term "constructivism" names a family of P. P. Wiener (Ed.), Dictionary of the History of political, moral and metaethical views that, in Ideas: Studies of Selected Pivotal Ideas, vol. 1. general terms, regard some or all normative New York: Charles Scribner's Sons. claims as valid in virtue ofbeing outcomes of a Hamilton, W. H. (1937) "Constitutionalism:' In "procedure of construction" in which actual or E. R. A. Seligman (Ed.), Encyclopaedia of the Social Sciences, vol. 2. New York: Macmillan. hypothetical agents react to, choose, or other­ Madison,]. (1961) "No. 47:' In A. Hamilton, wise settle on principles of justice, moral rules, ]. Madison, and J. Jay, The Federalist Papers. values, etc. Traditionally, moral validity or jus­ New York: New American Library. tifiability was thought to depend on God, the Mcilwain, C. H. (1966) Constitutionalism: Ancient Forms, or some other independent moral and Modern. Ithaca, NY: Cornell University order. Various procedures of a different, episte­ Press. mological, sort were then proposed to help us Paine, T. (1991) The Rights of Man. New York: gain access to the moral facts, which were Carol Publishing. thought to exist independently of us (e.g., we Scruton, R. (1984) A Dictionary ofPolitical might need to undergo physical and mental Thought. New York: Hill & Wang. training of the sort described in Plato's Republic or learn how to reflect in a "calm, cool hour"). Further Reading Constructivists, by contrast, think that there Dorsen, N., Rosenfeld, M., Sajo, A., and Baer, are certain procedures that are not designed to S. (2003) Comparative Constitutionalism. discover which normative claims are already St. Paul, MN: Thomson West. valid. For them, the validity of some or all rea­ Friedrich, C.]. (1968) "Constitutions and sons, principles, values or other normative Constitutionalism:' In D. L. Sills (Ed.), International Encyclopedia of the Social Sciences. claims consist in being the result of a procedure New York: Macmillan and Free Press. of construction. For example, Rousseau (1997) Griffin, S.M. (1996) American Constitutionalism: held that states are legitimate just in case and From Theory to Politics. Princeton, NJ: Princeton because they would be agreed to by reasonable University Press. people who were concerned to advance their