CONSTITUTIONALISM

LAW 109
• The term ‘Constitution’ has two different meanings.

• Constitution in the first sense refers to the nature of a country with

reference to its political conditions.

• Constitution in the second sense refers to a law that concerns itself

with the establishment and exercise of political rule through various
organs of the State.

• Modern political thought draws a distinction between

‘Constitutionalism’ and ‘Constitution’.
• A country may have the ‘Constitution’ but not necessarily
‘Constitutionalism’.

• A country with a dictatorship, where the dictator’s word is law, can be

said to have a ‘Constitution’ but not ‘Constitutionalism’.

• ‘Constitutionalism’ connotes limited government or a limitation on

government.

• Constitutionalism is the antithesis of arbitrary powers.

• ‘Constitutionalism’ recognises the need for government with powers but

at the same time insists that limitations be placed on those powers.
• The idea of Constitutionalism is not new

• Natural law philosophers have promoted this idea for long especially
John Locke and Jean Rousseau.

• The difference between the two concepts is that a Constitution ought

not merely to confer powers on the various organs of the
government, but also put limitations and restraints those powers.

• Constitutionalism recognizes the need for government but insists

upon limitations being placed upon governmental powers
• Constitutionalism envisages checks and balances and putting the
powers of the legislature and the executive under some restraints and
not making them uncontrolled and arbitrary.

• Power corrupts and absolute power corrupts absolutely.

• If the Constitution confers unrestrained power on either the

legislature or the executive, it might lead to an authoritarian,
oppressive government.

• Unlimited powers jeopardise freedom of the people.

• To preserve the basic freedoms of the individual, and to maintain his
dignity and personality, the Constitution should be permeated with
‘Constitutionalism by including some in-built restrictions on the
powers conferred by it on governmental organs.

• The Magna Carta (1215) strengthened the traditional view that law is
supreme.

• Most of the written constitutions in democracies have well designed

provisions for a system of checks and balance.

• Also, Fundamental rights act as limitation on power of State.

 • A written Constitution,
• independent judiciary with powers of judicial review,
• the doctrine of rule of law and separation of powers,
• free elections to legislature,
• accountable and transparent democratic government,
• Fundamental Rights of the people,
• federalism,
• decentralisation of power

are some of the principles and norms which promote

Constitutionalism in a country.