TOPIC - CONSTITUTIONALISM

SUBJECT - CONSTITUTIONAL LAW

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

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 ACKNOWLEDGEMENT

I express my sincere thanks to my project guide Ms ANJALI BHATIA, Assistant

Professor, Constitutional Law, for guiding me right from the inception till the
successful completion of the project.
I sincerely acknowledge her for extending her valuable support for literate critical
reviews on project and the report and above all the moral she had provided to me
with all stages of this project.

YUVRAJ SAINI
1ST SEMESTER

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 CERTIFICATE

This is to certify that YUVRAJ SAINI, student of B.A. L.L.B., 1st Semester of
S.S. JAIN SUBODH LAW COLLEGE, MANSAROVAR, JAIPUR has
completed the CONSTITUTIONAL LAW project for the semester on “PRE
AND POST CONSTITUTIONAL LAW” under the guidance of Ms ANJALI
BHATIA, Faculty for Constitutional Law in S.S. Jain Subodh Law College.

Ms ANJALI BHATIA
Assistant Professor

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 DECLARATION

I do hereby declare that this research title “CONSTITUTIONALISM” is outcome

of the research conducted by me under the guidance of Ms ANJALI BHATIA
(Assistant professor of Constitutional Law) at S.S. Jain Subodh Law College in
fulfilment for the award of degree of B.A. L.L.B at the University of Rajasthan.
I also declare that this work is original except where assistance from other source
has been taken and necessary acknowledgement for the same has been made at
appropriate places. Further, declares that this work has not been submitted either
in whole or in part for any degree or equivalent in any other institution.

YUVRAJ SAINI

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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.

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

2
http://en.wikipedia.org/wiki/Constitutionalism
3
Supra see note 2.

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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.

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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 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
ofsubjects.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

4
Supra see note 2
5
Supra see note 2.

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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 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

6
http://www.constitution.org/cmt/mcilw/mcilw.htm

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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
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.

7
Supra see note 2.

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SEVEN PRINCIPLES OF CONSTITUTIONALISM

Checks and balances Each branch of the national government has

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

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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 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

8
https://www.texaslre.org/documents/SevenBasicPrin-USConstitution.pdf

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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 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

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

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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,
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 et 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

11
www.preservearticles.com/2011092714112/what-are-the-important-features-of-constitution.html

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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
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.

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BIBLIOGRAPHY

Books referred:
Bare act on Constitution of India
Constitution by G.P Tripathi

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

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