The study of constitutions is not necessarily synonymous with the study of constitutionalism. Although often mixed, there are crucial differences. A discussion of this difference appears in the book American Sovereigns: The People and America`s Constitutional Tradition Before the Civil War[9] by legal historian Christian G. Fritz, a study of the early history of American constitutionalism. Fritz notes that an analyst might approach the study of historical events by focusing on issues that involve “constitutional questions,” and that this is different from an emphasis that includes “questions of constitutionalism.” [10] Constitutional issues involve the analyst examining how the Constitution was interpreted and applied to distribute power and authority as the new nation grappled with problems of war and peace, taxation, and representation. Constitutions, however, are not only about limiting and limiting power; It is about empowering ordinary people in a democracy and allowing them to control the sources of law and use the machinery of government for their efforts. That is the democratic view of constitutions, but it is not the constitutionalist point of view. Of course, it is always possible to present an alternative to constitutionalism as an alternative form of constitutionalism: scholars speak of “popular constitutionalism” or “democratic constitutionalism.” But I think it is worth presenting a stark version of the antipathy between constitutionalism and democratic or popular self-government, if only because it will help us to measure more clearly the extent to which a new and mature theory of constitutional law adequately addresses the constitutional burden of ensuring that people are not deprived of their rights by the very document that is supposed to be theirs. give their power. [19] The Russian concept of the rule of law has adopted many segments of constitutional economics, which serves as a practical implementation of higher legal theory in economics. Unlike describing what constitutions are, a prescriptive approach deals with what a constitution should be. As Canadian philosopher Wil Valukhov points out, constitutionalism embodies One of the most salient features of constitutionalism is that it describes and prescribes both the source and limits of the government`s power under the Basic Law. William H.
Hamilton captured this dual aspect by noting that constitutionalism is “the name of the confidence which men place in the power of words absorbed in parchment to keep government in order.” [13] Used descriptively, the term constitutionalism can refer primarily to the historical struggle for constitutional recognition of the people`s right to “consent” and certain other rights, freedoms and privileges. [4] On the other hand, the prescriptive approach to constitutionalism deals with what a constitution should be. Two comments could be made on its prescriptive use. The most obvious alternative to monarchy was a republic, a model of government that the founders knew well from their knowledge of ancient history. The founders admired the republics of ancient Greece and Rome. They had also studied more recent examples of republican governments, such as the Italian city-states of the Renaissance and the cantons of Switzerland. In general, this meant that a form of governmental constitutionalism had prescriptive and descriptive uses. Law professor Gerhard Casper summed up this aspect of the term by stating: “Constitutionalism has both descriptive and prescriptive connotations. Used descriptively, it refers mainly 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 includes the characteristics of government, which are considered the essential elements of government. Verfassung”. [4] Valery Zorkin, President of the Russian Constitutional Court, wrote in 2003: “Becoming a legal state has long been our ultimate goal, and we have certainly made serious progress in this direction in recent years.
But no one can say today that we have achieved this goal. Such a rule of law simply cannot exist without a legitimate and just society. Here, as in no other area of our lives, the state reflects the degree of maturity of society. [13] It is very important to understand that a constitution does not mean that a nation has a constitutional government. If a constitution provides for the unlimited exercise of political power — by one, a few or even several — such a constitution would not be the basis of constitutional government. If a constitution provides that the power of government must be limited, but does not provide means to enforce these restrictions, this is not the basis of constitutional government. In constitutional government, the constitution is a superior or fundamental form of law that must be respected by all, including those in power. Article VI states that federal law takes precedence over or more than state and local laws. This means that if a state law conflicts with a federal law, federal law prevails. A constitution is a set of customs, traditions, rules, and laws that determine the fundamental way in which a government is organized and functions. Most constitutions are written, some are partly written and partly unwritten, and some are not written at all.
Note that according to this definition of the word, every nation has a constitution. Good and bad governments can have constitutions. Some of the worst governments have constitutions that contain lists of the fundamental rights of their citizens. The former Soviet Union had one of the longest and most sophisticated constitutions in history, but in reality its citizens enjoyed few of the rights it guaranteed. If you study the constitution of a government, you will be able to answer the following questions about the relationship between government and its citizens: Constitutionalism describes a complex concept, deeply rooted in historical experience, that subjects public servants exercising governmental power to the limits of a higher law. Constitutionalism proclaims the desirability of the rule of law as opposed to rule by arbitrary judgment or simple decree of officials. Throughout the literature dealing with modern public law and the foundations of governance, the central element of the concept of constitutionalism is that the functionaries of political society are not free to do what they want; They are bound to respect both the limits of power and the procedures laid down in the supreme constitutional law of the Community. It can therefore be said that the touchstone of constitutionalism is the concept of limited government by virtue of a higher law.
[3] The rule of a higher law is a statement that no law can be applied by the government unless it conforms to certain universal principles (written or unwritten) of equity, morality and justice. [1] Thus, under a higher law, the rule may serve as a practical legal criterion for qualifying cases of political or economic decision-making when a government, although acting in accordance with clearly defined and properly enacted legislation, still produces results that many observers perceive as unfair or unjust. [2] Legal scholar Jeremy Waldron argues that constitutionalism is often undemocratic: in constitutional governments, powers are generally divided and divided among several branches of government. This distribution and division of power makes it less likely that any branch will be able to abuse or abuse its powers. A group is also less likely to gain so much power that it can ignore the restrictions imposed on it by the Constitution. To prevent our government from abusing its powers, the drafters provided for a division and division of powers between three branches of national government. Each branch has primary responsibility for certain functions, but each branch also shares these functions and authorities with the other directorates.
