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The constitution and Constitutionalism: A comparative approach

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DOI: 10.13140/RG.2.2.12028.67208

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The constitution and Constitutionalism: A comparative approach
Tamanna Akther Suma1
Abstract: In the establishment of democracy, the constitution and constitutionalism are linked,
with some countries emerging without the ideals of constitutionalism. Constitution is the core law
of any state to administrate and demonstrate the process of the construction of a government,
division of power among different constitutional organs moreover constitutionalism is regarded as
a synonym of limiting governmental power and preventing the way of using power in an arbitrary
form. To construct, we use data from secondary data sources where the constitution and
constitutionalism are related to establishing a democratic society for its people. The impact of
constitutionalism and non-constitutionalism in democracy is revealed by our findings. The Main
purpose of this research paper is to clarify the concept of the Constitution and constitutionalism.
Keywords: Constitution, Historical approach, Classification, Constitutionalism, Global
democracy.
Introduction: A history in the future of humanity was predated by 7762 words of written record,
which was adopted by the United States in the 17th century. It was given the name constitution
because it served as a guideline for the preservation of individual’s rights and contained rules and
regulations to establish a valid governmental framework for running the state.2 Constitutionalism
has given additional authority to limit the power of governmental organs to play the rule as a
protection, while also establishing natural justice and democratic interactions between government
and its people, employing the principle of rule of law. The Constitution is the preceding, ultimate
legislation that establishes superintendence in order to preserve democratic government in a
systematic manner.
Constitution: Every state has a constitution that is best suited to the people's temperament and
brilliance. The term constitution is derived from the Latin word constitutio, which refers to rules
and regulations such as imperial enactments (constitutiones principis: edicta, mandata, decreta,
rescripta). A Constitution is referred to as the state's governing wheel because without it, the
administration of the state would be anarchic. Thomas Paine rightly remarks, “Government
without a Constitution is a power without a right.” As a result, a contemporary state cannot be
imagined without a Constitution, whether written or unwritten. The term “constitution” like many
other concepts in political science, has been defined differently by different scholars based on their
differing views on what a Constitution should be.3
Aristotle defines a constitution as “the way of life the state has chosen for itself.” Though this
description does not provide a clear understanding of what the constitution is, it does convey a
way of life through the use of a few terms. According to C.F. Strong “A constitution nay be said
to be the collection of principles according to which the powers of the government, the rights of
the governed and the relation between the two are adjusted.” Moreover, Strong’s definition is

1
Researcher at Hasty Head, E-mail: akthertamanna18@gmail.com
2
Cornell, S. (2011). The People's Constitution vs. The Lawyer's Constitution: Popular Constitutionalism
and the Original Debate over Originalism. Yale JL & Human., 23, 295.
3
Lee, S. Z. (2018). Our Administered Constitution: Administrative Constitutionalism from the Founding
to the Present. U. Pa. L. Rev., 167, 1699.
defect less one. In a simple way, the term "constitution" refers to the written and unwritten norms
that govern state administration.4
A constitution, according to this definition, is a written instrument that is superior to ordinary
legislation and enshrined in law, justiciable, and constitutive of the legal and political system. It
claims that a constitution like this, rather than participation in democratic politics in general,
provides the foundation for citizens to be considered democratically as deserving of equal attention
and respect.
Classification of constitution: Different types of constitutions have existed in different places of
the world throughout the history of constitutional evolution. As a result, constitutions can be
categorized in a variety of ways: -
Written and unwritten constitution: Constitutions can be written or unwritten in the sense that
they exist in a documentary form or do not. They should be referred to as 'enacted' and 'developed.'
Only three countries have unwritten constitutions: The United Kingdom, Israel, and New Zealand.
All other states or nations, with the exception of these three, have written constitutions.
The fact that the constitution is unwritten does not imply that it cannot be discovered in written
form, same goes for written constitution.
Supreme and Subordinate constitution: There is no external superior force that may overthrow
a Supreme Constitution. A subordinate constitution is one in which an external sovereign authority.
Such as the United Kingdom, drafts and implements the constitution in a country. This
Constitution might theoretically be altered by that external force.5 The majority of South Asian
countries have implemented constitutional supremacy.6
Flexible and Rigid Constitutions: A stiff constitution is one that is difficult to reform, requiring
the use of special procedures before any changes can be made.7 Usually, this is because, as
previously said, the Constitution demands that a unique procedure be followed. Flexible
constitutions, on the other hand, are ones that can be revised or changed in a relatively simple
manner.8 To give an example: In the United States, the Constitution of 1787 stipulates that every
amendment must be passed by a two-thirds majority vote in both Houses of Congress, as well as
a three-quarters majority vote in all state legislatures.9 As a result, amending a written constitution
is extremely difficult: it is rigid rather than flexible in nature. 10 In theory, the UK parliament can

4
Toktogazieva, S. (2019). Constitution without Constitutionalism? Challenges to constitutionalism in the
Kyrgyz Republic. Const. Rev., 5, 275.
5
Maduro, M. P. (2005). The importance of being called a constitution: Constitutional authority and the
authority of constitutionalism. Int'l J. Const. L., 3, 332.
6
Jubaer, Shah. (2020). Comparative Constitutional Law.
7
Jubaer, Shah. (2018). Natural Justice under Administrative Law.
8
Al-Istrabadi, F. A. R. (2008). A Constitution without Constitutionalism: Reflections on Irag's Failed
Constitutional Process. Tex. L. Rev., 87, 1627.
9
Fatton Jr, R. (2000). Constitution without constitutionalism: Haiti and the Vagaries of
democratization. New West Indian Guide/Nieuwe West-Indische Gids, 74(1-2), 5-32.
10
Jubaer, Shah. (2018). Public Interest Litigation in Bangladesh: A general overview.
10.13140/RG.2.2.12023.96166.
change the constitution at any time with a simple majority, but in practice, this can only be done
with the approval of the people.11
Unitary and Federal Constitutions: The federal government is regulated by its own set of laws,
whilst states are governed by their own set of laws.12 They are not subordinates, but rather co-
ordinates, and no one operates as the other's agent. Power is decentralized rather than concentrated
in a single body in a federal state. The Constitution has supreme authority, and any problems
between the federal and state governments will be resolved in accordance with it. India's
Constitution, Australia's Constitution, and the United States' Constitution are all examples of
constitutions. Britain has been a unitary state for millennia. The British Parliament has supreme
legislative authority over all of the United Kingdom's constituent states, including England,
Northern Ireland, Scotland, and Wales.13
Parliamentary and Presidential constitution: The two types of constitutions are the
Parliamentary Constitution and the Presidential Constitution. In a Parliamentary system, the head
of the executive branch government is the Prime, while the President will be both executive branch
of not be a member of the accountable to that of a Presidential system.
Historical Approach of constitution: The United States Constitution is the world's oldest active
codified constitution. In 1782, St. John Crevecoeur vividly described the genesis of the United
States of America, “what then is the America, the new man? He is either a European or the
descendant of a European, hence the strange mixture of blood, which you find in no other
country.... I could point out to a family whose grandfather was an Englishman, whose wife was
Dutch, whose son married a French woman and whose present four sons have now four wives of
different nations. He is an American, who leaving behind him all his ancient prejudices and
manners, receives new ones from the new mode of life he has embraced.” After the establishment
of British government, Conciliation between the British government and the colonies failed under
the reign of George III, as the British government resolved to deal sternly with the colonies.

The fifteen colonies were given two options: acquiescence or revolution, and they chose to revolt
against the British Crown. In 1775, a congress of state delegates was convened in Philadelphia.
With the promise of French assistance, the thirteen declared war on Britain. George Washington
was appointed as Commander in Chief of the colonial army. The Revolutionary War lasted almost
six years and concluded when Cornwallis surrendered on October 19, 1781. The news of the
American victory reached London, and the British House of Commons decided to end the war. To
terminate the conflict, a treaty was signed based on the Declaration of Independence. The thirteen
Colonies that became states were granted independence, freedom, and sovereignty under the treaty.
The "Declaration of Independence" (authored by Thomas Jefferson and published on July 4, 1776)
marks the start of the United States of America's independent history. The Articles of
Confederation were prepared by a committee headed by John Dickenson on July 11, 1776. The

11
Zhang, Q. (2010). A constitution without constitutionalism? The paths of constitutional development in
China. International Journal of Constitutional Law, 8(4), 950-976.
1212
Maduro, M. P. (2005). The importance of being called a constitution: Constitutional authority and the
authority of constitutionalism. Int'l J. Const. L., 3, 332.
13
Catá Backer, L. (2008). From constitution to constitutionalism: a global framework for legitimate public
power systems. Penn St. L. Rev., 113, 671.
Articles of Confederation were approved by the Congress of States. However, disagreements
between states arose on a variety of problems. Amendments to the Articles of Confederation were
felt to remedy concerns and disagreements.14 As a result, a convention was convened in
Philadelphia, with delegates from 12 states attending. The new constitution of the United States of
America was unanimously signed by delegates from all of the state’s present on September 17,
1787, after 16 weeks of debate. The constitution was accepted on June 21, 1788 (by nine state
conventions) and became effective on March 7, 1789. The principal author of the United States
Constitution is James Madison.15
This is where the formal written constitution's history began.
The concept of Constitutionalism: According to George Will, “The essence of constitutionalism
in a democracy is not merely to shape and condition the nature of majorities, but also to stipulate
that certain things are impermissible, no matter how large and fervent a majority might want them.”
Constitutionalism is a legal philosophy that describes the nation's people's lives, values, beliefs,
and ideas.16 The liberal concept of constitutionalism rests on two main pillars, i.e., limited
Government and guarantee of individual rights. It is a liberal idea in Western countries that states
that government should be governed according to the law. Other ideas based on this concept
include government accountability, constitutional democracy, separation of powers, rule of law,
and judicial independence, to name a few17.
In short words, Constitutionalism is a complex concept with a long history that binds politicians
exercising their authority to the constraints of a higher law.18
Classification of constitutionalism: Constitutionalism, or the restriction of government power,
can be accomplished in two ways. Political constitutionalism and legal constitutionalism, to be
specific.19 Legal constitutionalism: The concept of constitutional rights is central to legal
constitutionalism. The power of the governing system is limited by legal constitutionalism.20
Governments can abuse their power in accordance with their discretionary powers, and they can
also interfere with people's rights and liberties, namely mistreating opposing political parties or

14
Jubaer, Shah. (2018). A guideline to apply Human Rights.
15
Chakraborty, T. (2017). The Climate of Constitutional Development in India: An Analytical Study on
Constitution and Constitutionalism. Journal of People’s History and Culture Volume, 2(1-2).
16
Jubaer, Shah. (2018). A formalistic necessity of the Rule of Law: Comparative Analogy.
17
Sajó, A., & Uitz, R. (2017). The constitution of freedom: An introduction to legal constitutionalism.
Oxford university press.
18
Maduro, M. P. (2000). Europe and the Constitution: What if this is as Good as it Gets?. Webpapers on
Constitutionalism & Governance beyond the State, (5).
19
Kiwory, G. (2010). Constitution without constitutionalism or constitutionalism in evolution?: a critical
study of the first forty five years of constitutional law and practice in independent Tanzania (1961-200) and
Kenya (1963-2008) (Doctoral dissertation, University of Dar es Salaam).
20
Feng, Y. Y. L. (2008). From Reform Constitution to Constitutionalism Constitution——The Review and
Reflection on the Development of Constitution from the Reform and Opening for 30 years [J]. Journal of
the Postgraduate of Zhongnan University of Economics and Law, 2.
their supporters.21 To prevent such mistreatment, legal constitutionalism is in effect.22 Political
constitutionalism: In this concept, political power of government is limited through political
mechanism.23 This concept established some institutions by which the power will be limited.24 It
includes, decision making process, the electoral system can be chosen, Presidentialism or
Parliamentary democracy options,25 can choose between a unitary or a federal government,
mechanism of separation of power and check and balance, mechanism for ensuring accountability
of executive branch and legislative branch pf government of government through judicial review.26
Constitutionalism have the principles of rule of law to limited the power of government and to
protect the individual’s freedom and as well as right.27
Constitution vs. Constitutionalism:
The terms constitution and constitutionalism are synonymous, but the latter encompasses much
more than merely adherence to and execution of the national constitution. The creation of a
constitution is the result of years of progress and evolution,28 but, in some cases like in Japan the
constitution can be imposed by invading or opposing forces, and may not embody the key values
and principles that characterize a society.29 Building on the differences outlined in the previous
section, we can identify few other aspects that differentiate constitution and constitutionalism. The
key distinction between constitution and constitutionalism is that a constitution is a set of
fundamental principles by which a nation or state is governed, whereas constitutionalism refers to
adherence to a constitutional governance system.30
Constitution mainly refers to legal document which set forth rules to maintain the rights and
obligations for its government and its people, Constitutionalism rendered to ideology to establish
institutions and beliefs to save the people from arbitrary use of power. 31 The basic purpose of a
constitution is to successfully apply the rules, and constitutionalism serves as a checking for the

21
Shimada, Y. Development of the Constitution and Constitutionalism in Japan: Traditionalism versus
Modernism.
22
Billias, G. A. (2009). American Constitutionalism Heard Round the World, 1776-1989. New York
University Press.
23
Natalia, S., Nataliia, K., Bohdan, K., Iryna, I., & Tetiana, K. (2020). Constitutionalism as a philosophical
and legal category and a socio-political phenomenon. Journal of Legal, Ethical and Regulatory
Issues, 23(2), 1-9.
24
Grecu, R. (2009). Constatin Stere about Constitution and Constitutionalism: Historical Approach and
Contemporary Aspects. Revista Institutului National Justitiei, 8, 74.
25
Baines, B. (2009). Gender and Constitution: Is Constitutionalism Bad for Intersectional Feminists. Penn
St. Int'l L. Rev., 28, 427.
26
Klug, H. (2000). Model and Anti-Model: The United States Constitution and the Rise of World
Constitutionalism. Wis. L. Rev., 597.
27
Jubaer, Shah. (2019). Governance and Good Governance. 10.13140/RG.2.2.28706.96963.
28
Jubaer, Shah. (2019). The pragmatic observation on principle of Natural Justice: a negative legal
construction.
29
Jubaer, Shah. (2020). "An Effective association between the Constitution and Constitutionalism to set up
a Constitutional Government". 10.13140/RG.2.2.29073.97126.
30
Jubaer, Shah & Hoque, Lipa & Bonik, Dipto & Haque, Redwanul & Sadi, Shariful. (2021). Theory of
Justice and Universally acceptable equality principles. Indian Journal of Scientific Research. 09. 59-76.
10.17605/OSF.IO/M2BRW.
31
Jubaer, Shah. (2019). The pragmatic observation on principle of Natural Justice: a negative legal
construction.
attainment of that goal. Constitution refers to a specific noun, whereas constitutionalism refers to
a wide concept.32 The concept of constitutionalism has arisen around the principle that the
government's authority is drawn from and limited by a system of rules and regulations, which has
altered greatly since the earliest examples seen in ancient Greece.the constitution and
constitutionalism as a document established the orders for establishing a democratic way to choose
a lawful government,33 while constitutionalism limited the discretionary power of government and
established judicial review functions to check on the use of governmental organs' power.34
Conclusion: Constitutionalism acts as a checker of governmental organizations to limit their
authority, whereas constitutionalism works as a checker of governmental organizations to ensure
rights for everyone and freedoms of expression for everyone.35 Because these two concepts, global
democracy has grown more fluid in its construction. A constitution is a document that establishes
rules for a state's population, and constitutionalism is an ideology that establishes institutions to
limit governmental arbitrary authority.36 Constitutionalism's worldview is based on the notion of
the rule of law.37
Democracy is the process of establishing a legitimate government based on the will of the people.
It preserves a democratic mindset and values all people's viewpoints.38 And the entire procedure,
as well as everyone's rights, is described in the constitution's chapters.39 It also ensures that the
rule of law is impacted and that natural justice is maintained for all.40

32
Andreescu, M., & Andreescu, C. (2017). Constitution and Constitutionalism Contemporary Issue. Lex et
Scientia, 24(1), 48.
33
Isiksel, T. (2016). Europe's functional constitution: A theory of constitutionalism beyond the state. Oxford
University Press.
34
Besson, S. (2009). Whose constitution (s)? International law, constitutionalism and democracy. In Ruling
the world? Constitutionalism, international law and global governance (pp. 381-407). Cambridge:
Cambridge University Press.
35
Bodansky, D. (2009). Is there an international environmental constitution?. Indiana Journal of Global
Legal Studies, 16(2), 565-584.
36
Jubaer, Shah & Nayeem, Md.Boktiar. (2021). An introduction to statutory interpretation and the role of
court with common law approach of legal construction. 10.13140/RG.2.2.26073.03681.
37
Gargarella, R. (2013). Latin American constitutionalism, 1810-2010: the engine room of the Constitution.
Oxford University Press.
38
Barros, R. (2002). Constitutionalism and dictatorship: Pinochet, the Junta, and the 1980
constitution (Vol. 4). Cambridge University Press.
39
Ji-guang, Z. H. A. I. (2005). A Comparative Study of the Principle of Taxation Legitimacy——From the
Perspective of Tax Constitutionalism [J]. Journal of Hangzhou Teachers College, 2.
40
Bellamy, R., & Castiglione, D. (1997). Constitutionalism and democracy–political theory and the
American Constitution. British Journal of Political Science, 27(4), 595-618.
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