Constitutionalism My Notes

Constitutionalism has a variety of meanings.
Most generally, it 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"
Constitutionalism
For genuine democracies, constitutions consist of overarching (Covering many angles or issues)
arrangements that determine the political, legal and social structures by which society is to be
governed. Constitutional provisions are therefore considered to be paramount or fundamental law.
Under these circumstances, if constitutional law itself is inadequate, the nature of democracy and
rule of law within a country is affected. The structure of modern nations has been shaped with
government being divided into executive, legislative and judicial bodies, with the commonly accepted
notion that these bodies and their powers must be separated. Of course, the separation of powers
does not mean these bodies function alone, rather they work interdependently, but maintain their
autonomy. Other tenets ( A doctrine that is proclaimed as true without proof ) include the idea of
limited government and the supremacy of law. Together, these can be termed the concept of
constitutionalism. In other words, constitutionalism is the idea that government should be limited in
its powers and that its authority depends on its observation of these limitations. A constitution is the
legal and moral framework setting out these powers and their limitations. This framework must
represent the will of the people, and should therefore have been arrived at through consensus.
Meaning of Constitutionalism
Constitutionalism has a variety of meanings. Most generally, it 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". A political organization is constitutional to the extent that it
"contain[s] institutionalized mechanisms of power control for the protection of the interests and
liberties of the citizenry, including those that may be in the minority”.
Constitutionalism’ means limited government or limitation on government. It is antithesis (Exact
opposite) of arbitrary (Absolute, or individual discretion) powers. Constitutionalism recognizes the
need for government with powers but at the same time insists that limitation be placed on those
powers. The antithesis of constitutionalism is despotism (Dominance through threat of punishment or
violence). A government which goes beyond its limits loses its authority and legitimacy. Therefore, to
preserve the basic freedoms of the individual, and to maintain his dignity and personality, the
Constitution should be permeated (Spread) with ‘Constitutionalism’; it should have some inbuilt
restrictions on the powers conferred by it on governmental organs.
Constitutionalism-In Minimal And In Richer Sense

In some minimal sense of the term, a "constitution" consists of a set of rules or norms creating,
structuring and defining the limits of, government power or authority. Take the extreme case of an
absolute monarchy, Rex, who combines unlimited power in all three domains. If it is widely
acknowledged that Rex has these powers, as well as the authority to exercise them at his pleasure,
then the constitution of this state could be said to contain only one rule, which grants unlimited
power to Rex. Whatever he decrees is constitutionally valid. When scholars talk of constitutionalism,
however, they normally mean something that rules out Rex's case. They mean not only that there
are rules creating legislative, executive and judicial powers, but that these rules impose limits on
those powers.
Constitutionalism in this richer sense of the term is the idea that government can/should be limited in
its powers and that its authority depends on its observing these limitations. In this richer sense of the
term, Rex's society has not embraced constitutionalism because the rules defining his authority
impose no constitutional limits.
Usage of Constitutionalism
Constitutionalism has prescriptive and descriptive uses.
Descriptive use
It’s a use that gives the structuring on how the governance has to be done, i.e., how the government
has to be divided. i.e., Executive, Legislative and Judiciary.
Prescriptive use
The idea … that government can and should be legally limited in its powers, and that its authority
depends on its observing these limitations.
Important Features of Constitutionalism

Entrenchment:
According to most theorists, one of the important features of constitutionalism is that the norms
imposing limits upon government power must be in some way be entrenched (Established firmly and
securely), either by law or by way of constitutional convention. Entrenchment not only facilitates a
degree of stability over time, it is arguably a requirement of the very possibility of constitutionally
limited government.
Written ness:
Some scholars believe that constitutional rules do not exist unless they are in some way enshrined
in a written document. Others argue that constitutions can be unwritten, and cite, as an obvious
example of this possibility, the constitution of the United Kingdom..
Elements of Constitutionalism
Louis Henkin defines constitutionalism as constituting the following elements:
(1) government according to the constitution;
(2) separation of power;
(3) sovereignty of the people and democratic government;
(4) constitutional review;
(5) independent judiciary;
(6) limited government subject to a bill of individual rights;
(7) controlling the police;
(8) civilian control of the military; and
(9) no state power, or very limited and strictly circumscribed state power, to suspend the operation of
some parts of, or the entire, constitution.
Constitutionalism And Democracy

Constitutionalism however, is primarily based on the notion of people's sovereignty, which is to be
exercised--in a limited manner--by a representative government. The only consensual and
representative form of governance in existence today, is democratic government. In this way, there
is a very important and basic link between democracy and constitutionalism. Genuine democracies
rest on the sovereignty of the people, not the rulers. Elected representatives are to exercise authority
on behalf of the people, based on the will of the people. Without genuine democracy, there can be
no constitutionalism.
Constitutionalism And Rule of Law

Rule of law refers to the supremacy of law: that society is governed by law and this law applies
equally to all persons, including government and state officials. Constitutionalism is safeguarded by
the rule of law. Only when the supremacy of the rule of law is established, can supremacy of the
constitution exist. Constitutionalism additionally requires effective laws and their enforcement to
provide structure to its framework.
Constitutionalism In India
India is a democratic country with a written Constitution. Rule of Law is the basis 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 in India.
Case Laws where principle of ‘Constitutionalism’ is legally recognized

by Supreme Court
In Rameshwar Prasad and Ors. Vs. Union of India (UOI) and Anr. “The constitutionalism or
constitutional system of Government abhors absolutism - it is premised on the Rule of Law in which
subjective satisfaction is substituted by objectivity provided by the provisions of the Constitution
itself.” Constitutionalism is about limits and aspirations.
As observed by Chandrachud, CJ, in Minerva Mills Ltd. – “The Constitution is a precious heritage
and, therefore, you cannot destroy its identity'”
Conclusion
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Constitutionalism has a variety of meanings.

Most generally, it is "a

Constitutionalism-In Minimal And In Richer Sense

Important Features of Constitutionalism

Constitutionalism And Democracy

Constitutionalism And Rule of Law

Case Laws where principle of ‘Constitutionalism’ is legally recognized

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