Takashi Shogimen. New Dictionary of the History of Ideas. Edited: Maryanne Cline Horowitz. Volume 2, Charles Scribner’s Sons, 2005.
Constitutionalism is commonplace in modern political discourse in the West and beyond, yet it remains an elusive concept. Some have considered it impossible (and unnecessary) to give a definition of it. Nonetheless, one can discern several common features of the concept: the rule of law, not of men; limitations of political authority; the protection of civic rights and liberties; and rule based on the free consent of the ruled. Placing limitations on the exercise of political power is central to the notion of constitutionalism, and measures for that end include admonition to the deviant ruler; the assertion of the people’s right to resist, punish, or depose a tyrant; the division of sovereignty via federalism; and the separation of powers, or other checks and balances.
Paradoxical as it may seem, the presence of a constitution is not necessarily a manifestation of constitutionalism. A constitutionalistic constitution forms a political entity, establishes its fundamental structure, and determines the limits within which power can be exercised politically. But some constitutions in the modern world, like those of the former Soviet Union and the People’s Republic of China, do not limit the exercise of political power. A constitution of this sort is designed to constitute and empower the state, but not to control it.
The idea of controlling political power goes back to ancient Athens, where all state officials were accountable to the citizens who sat on the jury court. This jury-court system is the hallmark of the Athenian constitutionalism based on popular participation, yet it was never conceptualized by the leading Greek philosophers, including Plato (c. 428-348 or 347B.C.E.) and Aristotle (384-322 B.C.E.). For Plato, democracy—rule by the ignorant masses—was fundamentally flawed. His vision of the ideal state, therefore, allows no space for an assembly or a court: a counterview to the contemporary practice of Athenian politics. Aristotle’s tripartite conception of the just political structure—monarchy, aristocracy, and politeia—resulted in the idea of the mixed constitution combining the virtues of three. This idea, ill defined by Aristotle, was often confused with the idea of the ideal constitution. The political practice of Republican Rome was described and celebrated by Cicero (106-43 B.C.E.) as the “mixed constitution,” which was, however, a pure aristocracy according to his own description. The nature of Republican Rome’s political institutions remains elusive: in contrast with Cicero, Polybius (c. 200-c. 118 B.C.E.) depicted them as part of a constitutionalist system, with the popular assembly controlling legislation and the election of magistrates.
The medieval model of constitutionalism is often associated with Magna Carta (1215); in it, the constitutionalistic idea that personal liberties should be protected from the authority of the prince by established legal procedures was already present. But the medieval contributions to constitutional theory may be found in the sphere of ecclesiology under the label of conciliarism. Conciliarism was the idea that the pope was not an absolute ruler but a constitutional monarch whose authority was ministerial and delegated to him for the common good of the church. The ultimate authority in the church, then, resides in the whole body of the believers or their representatives—namely, the general council. According to twelfth-century canonists, who grappled with the questions surrounding the possible abuse of power by the pope, the pope was an intrinsic part of a general council and the authority of the pope with a general council was greater than without: an argument parallel to the secular idea of the supremacy of the king-in-parliament. The divine nature of papal authority did not necessarily result in theocratic absolutism because of the idea that the power of jurisdiction came from God through the people; the power of the papal office originates from God, but the choice of a person who assumes the office depends on the consent of human cooperation.
The exaltation of papal sovereignty in thirteenth-century mendicant ecclesiology was countered by secular masters’ “episcopalist” view: Christ conferred supreme authority not to Peter and his successors alone but equally to the twelve apostles and their successors; thereby ecclesiastical sovereignty was divided. All these elements of thought constituted conciliarism in the later Middle Ages, represented by such thinkers as Pierre d’Ailly (1350-1420) and Jean de Gerson (Jean Charlier; 1363-1429). The historian J. N. Figgis describes early modern constitutionalism as “the last effort of medieval constitutionalism,” but the extent to which medieval constitutional thought influenced its modern counterpart remains debatable.
Early Modern Conceptions
Widespread administrative abuses and ecclesiastical corruption in late-sixteenth-century France generated a number of polemical pamphlets, which asserted the rights of the people to depose a tyrant. Huguenot political writers including François Hotman (1524-1590; Francogallia), Théodore de Bèze, (Theodorus Beza; 1519-1605; The Rights of Magistrates), and Duplessis-Mornay (Philippe de Mornay, Seigneur du Plessis-Marly; 1549-1623; Vindiciae contra tyrannos; A defense of liberty against tyrants) made important contributions to early modern constitutionalism by defining the right to resist and depose a tyrannical monarch as the ultimate guarantee of a set of particular controls on political authority. Their works rejected resistance by private individuals but asserted the right of resistance by constituted public power, especially of the Estates and lesser magistrates. Huguenot political thinkers upheld the doctrine of the division of sovereignty between the monarch, representative institutions, and lesser magistrates, whilst their contemporary Jean Bodin (1530-1596), a powerful proponent of the indivisibility of sovereignty, saw anarchy as the alternative to monarchy (just as Thomas Hobbes would do in the following century). Jean Bodin’s theory of sovereignty circulated widely in seventeenth-century England, and served to bolster the idea of unlimited monarchical sovereignty manifested by James I (ruled 1603-1625) and Charles I (ruled 1625-1649). Sir Robert Filmer (c. 1588-1653) and Thomas Hobbes (1588-1679) conceptualized the doctrine of monarchical authority. But political authority in England had already been pluralistic, and this reality was crystallized in Sir Edward Coke’s (1552-1634) idea that the English judiciary was independent from the crown as well as from Parliament. A more direct reaction to the Bodinian doctrine came from Johannes Althusius (Joachim Althaus; 1557-1638), who attributed indivisible sovereignty, unlike Bodin, to the people as a collective entity. The people as individuals are under the ruler, and yet the people as a collectivity is superior to the ruler. Althusius’s novelty lies in his vision of federalism: he conceived a political community as a hierarchy of corporations, and took care to specify the way in which smaller communities are associated together in larger political entities, which resulted in a system of checks and balances.
Perhaps one of the most important sources for the authors of the American constitution was the epoch-making L’esprit des lois (1748; The spirit of the laws) written by Charles-Louis de Secondat, baron de Montesquieu (1689-1755). This eminent lawyer was deeply inspired by the English system of government that, in his view, had effectively secured what he called “political liberty.” Montesquieu observed that the highest expression of political liberty was to be found in England. English constitutional practice had protected each citizen from each other, from foreign enemies of the state, and from the state itself. The key to this success, according to Montesquieu, was the functional separation of powers: legislative, executive, and judicial. The institutional separation of powers secured effective control of the coercive authority of the state: a significant departure from the “mixed constitution” model.
The late eighteenth century was the age of constitutions; the first modern written constitution was enacted in the United States of America (1787), followed by the French Declaration of the Rights of Man and the Citizen (1789). The Federalist, eighty-five papers written by Alexander Hamilton (1755-1804), James Madison (1751-1836), and John Jay (1745-1829), vindicated the theoretical foundations of the U.S. Constitution that underlined the limits on federal power by means of federalism, separation of powers, and the effective independence of political institutions. These institutional constraints were designed to augment the citizen’s exercise of civic virtues to prevent monarchical despotism and to maintain liberty.
What constituted an important intellectual backdrop was republican constitutional ideas. Republicanism, upheld by influential figures such as Montesquieu, Jean-Jacques Rousseau (1712-1778), and Immanuel Kant (1724-1804), distinguished the people as a legislator (constituent power) from the people as a legislative power (constituted power) and envisioned the “good order” of society—that is, the fundamental principles of the working of a political society, or the means by which good laws and good rulers should be made. On the other hand, the U.S. Constitution was initially criticized for the omission of a specific statement concerning basic citizen rights. This was later drawn up as the Bill of Rights, now considered an integral part of the constitution.
The U.S. Constitution generated reaction from British constitutionalists, and at the heart of the debate was the idea of sovereignty. Walter Bagehot (1826-1877), the author of The English Constitution, criticized the ambiguity of the locus of sovereignty in it, whereas Albert Venn Dicey (1826-1877) thought highly of the federal system of government that divided legislative powers between national and state authorities. The nightmare of totalitarianism in the first half of the twentieth century, on the other hand, demanded the vindication of constitutionalism, which was quintessentially crystallized in Charles H. McIlwain’s Constitutionalism, Ancient and Modern.
In the early twenty-first century, issues over constitutionalism became ever more complex. Constitutionalism did not grow out of democratic thought, yet most contemporary states with a constitution are constitutional democracies. This demands that the relationship between constitutionalism and democracy be defined more precisely. The reconciliation between liberal right-based constitutionalism and republican democratic constitutionalism has also been sought. Furthermore, there exists a plurality of constitutions. The British model, for example, manifests parliamentary sovereignty, whereas the American model locates sovereignty in the people. The wide reception of constitutionalism beyond the West has created new varieties of constitutionalism (transformative constitutionalism). The emerging European Union after World War II, followed by the post-1989 developments in Eastern Europe in particular, has brought the debate over constitutionalism to an entirely new phase: constitutionalism beyond the framework of the nation state, and even the possibility of global constitutionalism.
The idea of limited government was not unknown in early Islamic political thought; the Muslim ruler was more limited than Christian princes in the sense that he had no power to legislate. The Holy Law (shari’a) however, was not effective in limiting political power due to the dearth of institutional machinery that imposed the limitations.
In Persia (Iran) in the 1850s, the government reformed the legal system to limit the power of the ‘ulama (scholar-teachers), and introduced the Western notion of constitutionalism. The promoters of constitutionalism, such as Malkom Khan (1833-1908) and Mirza Yusef Khan Mostashar od-Dowle (d. 1895), endeavored to demonstrate that the new idea was anchored in Islamic law and tradition. Mirza Yusef Khan’s treatise, Yek Kalameh (n.d.; One word), contrasted Western prosperity with Persian stagnation and saw the solution of this problem in yek kalameh, a political structure based on law. He highlighted the virtues of the French constitution and demonstrated its compatibility with Islamic ideas. Such endeavors contributed to incorporating the Shiite religious group successfully into the constitutionalist movement, thereby paving the way to the Constitutional Revolution (1905-1911). Similarly, the young Ottomans, including Namik Kemal (1840-1888), who admired the constitution of the French Third Republic, reinterpreted passages in the Koran as arguments for constitutional democracy. Khayr al-Din al-Tunisi (1822/23-1890), who dreamed of the independence of the Islamic world community, was, like the Ottoman and Persian reformers, receptive to the Western constitutional idea that personal liberty and justice should be achieved by the rule of law. But his constitutionalism also echoed the Islamic intellectual tradition, especially the political ideas of Ibn Khaldūn (1332-1406).
The term that signifies “constitutional law” is of ancient origin in the Chinese language, and yet it denoted none of the Western ideas associated with modern Western constitutionalism. For the Chinese, constitutionalism was a Western import, dating back to the early nineteenth century. But the idea was not seriously assimilated until Japan established the first constitutional law in East Asia in 1889.
K’ang Yu-wei (1858-1927) was the leader of the Hundred Days of Reform, the movement for constitutional reform. He embraced the evolutionist view that constitutional change from monarchy to democracy was a historical necessity. His 1898 reform program, which included the creation of a parliament and the adoption of a constitution, was welcomed by the Emperor Kuang-hsü, (ruled 1875-1908), but its translation into practice was aborted by the coup d’état under the initiative of the Empress Dowager Tz’u-hsi (1835-1908).
Japan’s victory in the war against the Russian Empire in 1905 demonstrated, in the eyes of the Chinese constitutional reformists, the victory of constitutionalism; this gave added momentum to the reception of the idea in China. The Ch’ing government drew up an “Outline of Constitution” modeled on the Japanese constitution, which never took effect, however, due to the 1911 revolution led by Sun Yat-sen (1866-1925) and the downfall of the Ch’ing dynasty. The Republic of China, established in 1912, promulgated a Provisional Constitution, the first modern constitution, modeled on the U.S. Constitution. Sun Yat-sen’s Sanminzhuyi (1924; The three principles of the people)—the Principle of Nationalism, the Principle of Democracy, and the Principle of People’s Livelihood—was inspired by Abraham Lincoln’s (1809-1865) Gettysburg Address (1863), and his guiding principle of constitution-making known as the separation of five powers—the powers of administration, legislation, judiciary, examination, and impeachment, the last two being uniquely Chinese—was built upon Montesquieu’s notion of the separation of powers.
The Japanese reception of Western constitutionalism, following the collapse of the Tokugawa Shogunal regime (1603-1867), was motivated by the diplomatic and military needs of national independence. The strengthening of the military needed to be augmented by “the concord of the People’s mind (jinwa or jinmin kyôwa),” which could be achieved through the introduction of Western constitutional government. One of the pressing tasks in domestic politics was to settle the conflict between powers by entrusting supreme authority to parliament. Hence, in his Tonarigusa (1861; Grass next door), the first treatise on constitutionalism in Japan, Katō Hiroyuki (1836-1916) proclaimed the establishment of parliamentary politics. The perception of a constitution as the symbol of a modern Western-style state was widely shared by the political leaders of the new Meiji government, which led to the speedy creation of the Meiji Constitution, the first constitutional law in East Asia. Yet, the adoption of a “Westernized” constitution, officially an imperial gift to the Japanese subjects, was not accompanied by wide acceptance of the idea of controlling the power of the state. The prevalent Confucian language that equated the private with the evil and the public (namely, the state, not the civil society) with justice undercut the constitutional idea of the protection of individual liberties.
After Japan’s defeat in World War II, constitutionalism, which had experienced a serious setback during the war, was rehabilitated under the new Constitution of Japan. This Constitution, however, was created not by popular demand, but by the initiative of the occupation authority. Ever since, Article 9, which proscribes the use of military means in diplomatic conflict, has been the focal point of post-war constitutional debate.