BACKER.DOC 2/11/2009 9:09:47 AM Articles From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems Larry Catá Backer* Academic and policy engagements with constitutions and constitutionalism have largely been built around unstated frameworks within which legitimated activity can take place. The essay suggests both the disorientation of much of the discussion and proposes an ideological framework that captures the assumptions about which constitutionalist discourse has evolved. Constitutionalism at one time could be said to involve the study of the peculiarities of the unique domestic constitutional framework through which government was constituted and power institutionalized. No longer. This essay examines the current discourse of constitutionalism. That discourse reveals the current dynamic character of the concept. The old consensus of conventional * Professor of Law, The Dickinson School of Law of the Pennsylvania State University, State College, Pennsylvania; Director, Coalition for Peace & Ethics, Washington, D.C. The author can be contacted at
[email protected]. Many thanks to my research assistant, Augusto Molina (Penn State ‘09) for his exceptional work on this project. Special thanks to the staff of the Penn State Law Review, in particular Alison Kilmartin (Penn State ‘09), for their excellent work on and support of this project. 671 BACKER.DOC 2/11/2009 9:09:47 AM 672 PENN STATE LAW REVIEW [Vol. 113:3 constitutionalism, that constitutions are legitimately grounded either in domestic law and the unique will of a territorially defined demos, is now challenged by a view that constitutional legitimacy requires conformity with a system of universal norms grounded in an elaboration of the mores of the community of nations.