University of Chicago Law School

Chicago Unbound
Occasional Papers Law School Publications

1987

Constitutionalism
Gerhard Casper

Follow this and additional works at: http://chicagounbound.uchicago.edu/occasional_papers

Part of the Law Commons

Recommended Citation
Gerhard Casper, "Constitutionalism," University of Chicago Law Occasional Paper, No. 22 (1987).

This Working Paper is brought to you for free and open access by the Law School Publications at Chicago Unbound. It has been accepted for inclusion
in Occasional Papers by an authorized administrator of Chicago Unbound. For more information, please contact unbound@law.uchicago.edu.
Occasional Papers from
The Law School
The University of Chicago

Number 22

Constitutionalism
Gerhard Casper
Copies of Occasional Papers from the Law School
are available from William S. Hein & Company, Inc.,
1285 Main Street, Buffalo, New York 14209, to
whom inquiries should be addressed. Current num-
bers are also available on subscription from William
S. Hein & Company, Inc.

2
Constitutionalism
Gerhard Casper*

Constitutionalism is a term not altogether congenial

to American lawyers. It seems to share the character-
istics of other "isms": it is neither clearly prescrip-
tive nor clearly descriptive; its contours are difficult
to discern; its historical roots are diverse and uncer-
tain. Legal realist Walton H. Hamilton, who wrote
on the subject for the Encyclopedia of the Social Sci-
ences, began his article in an ironic vein: "Constitu-
tionalism is the name given to the trust which men
repose in the power of words engrossed on parchment
to keep a government in order."
Historians, on the other hand, employ the concept
with some confidence in its meaning. American his-
torians tend to use it as a shorthand reference to the
constitutional thought of the founding period. Euro-
pean historians have a somewhat harder time. Given
a largely unwritten constitution and the sovereignty
of Parliament, what does it mean to refer to British
constitutionalism? What is the significance of
Dicey's distinction between the "conventions of the
constitution" and the "law of the constitution"? How
meaningful is the distinction? As Dicey noted:
"Whatever may be the advantages of a so-called un-
written constitution, its existence imposes special
difficulties on teachers bound to expound its provi-
sions." French authors view constitutionalism as an
important element of the French Revolution, but run
into difficulties as they contemplate the fact that,
since the constitution of 1791, France has had fifteen
of them-and by no means all democratic. German
historians tend to restrict the use of the term Kon-
stitutionalismus to the Central European constitu-
tional monarchies of the nineteenth century, though
German-language equivalents for constitutionalism
(Verfassungsstaat, Verfassungsbegriff)are frequently
encountered in the literature. The German constitu-
tionalist trauma is, of course, the ease with which the
Weimar constitution, in its time viewed as one of the
most progressive in the world, could be brought to

*William B. Graham Professor of Law and Dean of the Univer-

sity of Chicago Law School. This essay was first published in The
Encyclopedia of the American Constitution. Leonard W. Levy,
editor-in-chief, and Kenneth L. Karst, associate editor. Volume 2,
pp. 473-80. Copyright9l986 by Macmillan Publishing Company,
a division of Macmillan, Inc. Reproduced by permission of the
publisher.

3
collapse at the hands of determined enemies who
then managed to organize arbitrariness in the form
of law.
Constitutionalism has both descriptive and pre-
scriptive 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. This
struggle extends roughly from the seventeenth centu-
ry to the present day. Its beginnings coincide with the
"enlightenment" of the seventeenth and eighteenth.
centuries. Used prescriptively, especially in the Unit-
ed States, its meaning incorporates those features of
government seen as the essential elements of the
American Constitution. Thus, F. A. Hayek called
constitutionalism the American contribution to the
rule of law.
Constitutionalism obviously presupposes the con-
cept of a constitution. A Swiss authority of some
influence in the American revolution, Emerich de
Vattel, in his famous 1758 treatise, The Law of
Nations or the Principlesof NaturalLaw, provided a
definition: "The fundamental law which determines
the manner in which the public authority is to be ex-
ercised is what forms the constitution of the State. In
it can be seen the organization by means of which the
Nation acts as a political body; how and by whom the
people are to be governed; and what are the rights
and duties of those who govern. This constitution is
nothing else at bottom than the establishment of the
system, according to which a Nation proposed to
work in common to obtain the advantages for which a
political society is formed."
This rather neutral definition has to be read against
the background of Vattel's theory of natural law.
Vattel recognized the right of the majority to reform
its government and, most important, excluded funda-
mental laws from the reach of legislators, "unless
they are expressly empowered by the nation to change
them." Moreover, Vattel believed that the ends of
civil society were "to procure for its citizens the ne-
cessities, the comforts, and the pleasures of life, and
in general their happiness; to secure to each the
peaceful enjoyment of his property and a sure means
of obtaining justice; and finally to defend the whole
body against all external violence."
Later in the eighteenth century strong prescriptive
elements became part of the very definition of a con-
stitution. Two examples are equally famous. On Oc-
tober 21, 1776, the town of Concord, Massachusetts,

4
resolved "that a Constitution in its Proper Idea in-
tends a System of Principles Established to Secure
the Subject in the Possession and enjoyment of their
Rights and Privileges against any Encroachment of
the Governing Part." Article 16 of the French Decla-
ration of the Rights of Man of 1789 put it even more
bluntly: "A society in which the guarantee of rights is
not assured nor the separation of powers provided
for, has no constitution."
Although it would be impractical to make such
substantive features a necessary part of one's defini-
tion of a written or unwritten constitution, a proper
understanding of constitutionalism as a historical
phenomenon depends on them. Constitutionalism
does not refer simply to having a constitution but to
having a particular kind of constitution, however dif-
ficult it may be to specify its content. This assertion
holds true even in the case of the interplay of old
forces (monarchies and estates) with new forces (the
middle class in particular) which characterized the
emergence of constitutional monarchies in Central
Europe during the nineteenth century. Seen from a
constitutionalist perspective, many of the German
constitutional monarchies were influenced by con-
cepts that had much in common with constitutionalist
thought. The most important of these concepts was
the Rechtsstaat:a state based on "reason" and a strict
regulation of government by law.
The concepts of a constitution and of fundamental
laws have not had a constant meaning over time.
Since the eighteenth century (though not before), it
has become customary to translate Aristotle's word
politeia as "constitution": "A constitution is the ar-
rangement of the offices in a polis, but especially of
the highest office." This definition precedes Aristo-
tle's differentiation among six forms of government-
those for the common good (monarchy, aristocracy,
and "polity") and their perversions, which serve in-
dividual interests (tyranny, oligarchy, and democra-
cy). Aristotle thus introduced substantive, not merely
formal, criteria into his teachings about constitution-
al arrangements.
Cicero is usually credited with first giving the Lat-
in term constitutio something like its modern mean-
ing. About a mixed form of government, he said in
De Re Publica: "This constitution has a great mea-
sure of equability without which men can hardly re-
main free for any length of time." Indeed, Roman
law was characterized by constitutional notions. The
constitution of the Roman republic, putting other

5
substantive arrangements aside, was marked by the
power of the plebs to pass on laws which bound the
entire Roman people. While this republican preroga-
tive of the plebs was later replaced by Senate law-
making and eventually by the emperor's legislative
monopoly, its status is perhaps best illustrated by
Augustus's repeated refusal, on "constitutional"
grounds, to accept extraordinary powers to renew
law and morals. Though this Augustan reticence may
have been a triumph of form over substance, "tri-
umphs" of this kind have frequently illustrated
how constitutional notions have become deeply
entrenched.
In subsequent Roman usage the term constitutio
came to identify imperial legislation that preempted
all other law. The understanding of constitutio as sig-
nifying important legislation was retained during the
Middle Ages in the Holy Roman Empire, in the
church, and throughout Europe. A well-known Eng-
lish example is the Constitution of Clarendon issued
by Henry II in 1164.
In England, the modern use of constitution as re-
ferring to the nature, government, and fundamental
laws of a state dates from the early seventeenth cen-
tury. In the House of Commons, in 1610, James
Whitelock argued that the imposition of taxes by
James I was "against the natural frame and constitu-
tion of the policy of this kingdom, which is ius pub-
licum regni, and so subverteth the fundamental law
of the realm and induceth a new form of State and
government."
In Europe, perceptions that some laws were more
fundamental than others were well established before
the eighteenth century. Magna Carta (1215), the Peti-
tion of Right (1628), and the Habeas Corpus Act
(1679) are the best known English illustrations of this
point. In addition, by their coronation oaths English
kings obliged themselves "to hold and keep the laws
and righteous customs which the community of [the]
realm shall have chosen." Even if the law could not
reach the king, the king was viewed as under the law
(and, of course, under God). The bounds of the
king's discretion were defined by the ancient laws
and customs of England or, put differently, the com-
mon law. By the seventeenth century, Edward Coke
was even prepared to claim that acts of Parliament
were subject to review under the common law (and
natural law).
Though the status of French kings was considera-
bly more mysterious and legal constraints on them

6
were far fewer than in England, they too were viewed
as subject to fundamental laws. The French Protes-
tant political theorists of the sixteenth century ex-
pressed far-reaching views on the matter. Frangois
Hotman subtitled the XXVth chapter of the third edi-
tion of his Francogallia(1586): "The king of France
does not have unlimited domain in his kingdom but is
circumscribed by settled and specific law."
Beginning in the seventeenth century, the struggle
over the limits of power, the ends of government, and
the limits of obedience was frequently expressed in
terms of social contract theory. Johannes Althusius,
Hugo Grotius, John Locke, and Jean-Jacques
Rousseau all influenced the civil struggles of their
age. Although the differences among these writers
are profound, all of them stipulate a social compact
as the foundation for the constitutional arrangements
of the state. While such a contract is not necessarily
based on an assumption of popular sovereignty, a so-
cial contract without the assumed or actual consent
of "the people" or their representatives is unthink-
able. Once this notion spread widely, it was difficult
to maintain the divine right of kings, and it became
almost irresistible to relocate sovereignty in the
people-Thomas Hobbes notwithstanding.
One must not confuse the concept of a social con-
tract with that of a constitution. For the "contractar-
ians," constitutions follow from the social contract;
they are not identical with it. Although the social
contract is mostly a logical stipulation, at times the
contract seems real enough, embodying or justifying
specific constitutional arrangements. The Glorious
Revolution in England, the American Revolution,
the French Revolution-all appealed to the social
contract.
The Glorious Revolution, like the English Civil
War before it, was seen in contractarian terms. The
Convention Parliament of 1689 resolved that James II
"having endeavored to subvert the constitution of the
kingdom by breaking the original contract between
king and people ... has abdicated the government
and the throne is hereby vacant." The Declaration of
Rights of 1689 was part of Parliament's contract with
William and Mary and, later that year, was incorpo-
rated into the act of Parliament known as the Bill of
Rights. After reciting Parliament's grievances against
the absolutist tendencies of James II, the Bill of
Rights prohibited the suspension of the laws by regal
authority; provided for the election and privileges of
Parliament (including a prohibition of prerogative

7
taxation); and dealt with the right to petition, exces-
sive bail, and the jury system.
Although this catalogue of constitutional concerns
is modest by contemporary standards, the Bill of
Rights, in conjunction with other British traditions
and the "mixed government" confirmed by the Glori-
ous Revolution, led Montesquieu to celebrate Eng-
land as the one nation in the world "that has for the
direct end of its constitution political liberty."
Montesquieu concluded his chapter on "The Consti-
tution of England" in The Spirit of the Laws with the
wry comment that it was not his task to examine
whether the English actually enjoyed this liberty.
"Sufficient it is for my purpose to observe, that it is
established by their laws; and I inquire no further."
When Montesquieu's book was published in 1748,
some questions about constitutional liberty in Eng-
land might indeed have been examined. For instance,
the right to vote was extremely restricted and even
that small electorate was not consulted when, by the
Septennial Act of 1716, Parliament extended its own
duration by another four years. For the American
colonists who fought more against the British Parlia-
ment than against their monarch, this example of the
"sovereignty of Parliament" marked the limit of Brit-
ish constitutionalism. As James Madison wrote in
The Federalist No. 53, citing the Septennial Act:
"Where no constitution paramount to the govern-
ment, either existed or could be obtained, no consti-
tutional security similar to that established in the
United States, was to be attempted."
American constitutionalism during the colonial
and revolutionary periods included the notions of a
constitution as superior to legislation and the notion
of a written constitution. As concerns the "writing"
of constitutions, Gerald Stourzh has remarked, for
the period after 1776, that Americans clearly differ-
entiated "between the functions of constitution-
making (with an additional differentiation between
drafting and ratifying functions), of amending con-
stitutions, and of legislating within the framework of
the constitution."
One formal element in the American colonies was
bound to have a profound impact on American con-
stitutionalism, especially its choice of written consti-
tutions as the means for anchoring the organization
of their governments and the protection of their rights
and privileges. Colonial charters, fundamental or-
ders, and other written documents were used in the
establishment of the colonies. These contracts be-

8
tween rulers and ruled provided for the government
of the colonies, secured property rights, and even ex-
tended the guaranteed liberties and privileges of the
English constitution. The 1629 Charter of Massachu-
setts Bay is an important early example.
Pennsylvania, however, provides the most vivid il-
lustration of the essential features and conundrums of
American constitutionalism. In England, in 1682, a
"frame of government of the province of Pensilva-
nia" was agreed to by the Governor, William Penn,
and "divers freemen" of the province. It was a revi-
sion of an earlier plan drawn up by Penn which he
had called "Fundamental Constitutions of Pennsyl-
vania." The frame of government was replaced by a
new frame as early as 1683. Its place was taken in
1701 by the Pennsylvania Charter of Privileges,
granted by Penn during his second visit to the prov-
ince and formally approved by the General Assem-
bly. Though the focus here is on the Charter of
Privileges, William Penn's preface to the Frame of
Government deserves quotation: "Any government is
free to the people under it (whatever be the frame)
where the laws rule, and the people are a party to
those laws, and more than this is tyranny, oligarchy,
or confusion." Having invoked the notions of govern-
ment of laws and popular consent, Penn went on,
however, to warn against excessive optimism about
the rule of law: "Governments, like clocks, go from
the motion men give them; and as governments are
made and moved by men, so by them they are ruined
too." It is difficult to imagine a better reflection on
the challenges faced by the American constitution
makers of the eighteenth century.
The Pennsylvania Charter of Privileges of 1701 was
a remarkable constitutional document. First of all,
the charter itself was adopted in a constitutional man-
ner, according to the provisions for amending the
Frame of Government. Second, it began, not with the
organization of government, but with an issue of fun-
damental rights: it guaranteed the freedom of con-
science and made all Christians eligible for public
office. Third, the charter provided for a unicameral
representative assembly to be elected annually by the
freemen with the right to initiate legislation and with
all parliamentary powers and privileges "according
to the Rights of the free-born Subjects of England,
and as is usual in any of the King's Plantations in
America. " Fourth, far ahead of its time, it gave to all
"criminals" "the same Privileges of Witness and
Council as their Prosecutors." Fifth, it guaranteed

9
the "ordinary Course of Justice" in all disputes con-
cerning property. Sixth, the proprietor committed
himself and his heirs not to breach the liberties of the
charter; anything done to the contrary should "be
held of no Force or Effect." Seventh, the liberties,
privileges, and benefits granted by the charter were to
be enjoyed, "any Law made and passed by this Gen-
eral Assembly, to the Contrary hereof, notwithstand-
ing." Eighth, the charter could be amended only by a
vote of "Six Parts of Seven" of the Assembly and the
consent of the governor. Ninth, the guarantee of lib-
erty of conscience was placed even beyond the power
of constitutional amendment "because the Happiness
of Mankind depends so much upon the Enjoying of
Liberty of their Consciences."
This colonial charter, granted by a feudal landown-
er, embodies the most significant elements of Ameri-
can constitutionalism as it emerged in the course of
the century-the concept of consent and the concept
of a written constitution sharply differentiated from
ordinary legislation and with provisions for its
amendment and a bill of rights, however rudimen-
tary. Indeed, by placing the liberty of conscience
beyond the amending power it posed the ultimate
conundrum of constitutionalism-the possibility of
unconstitutional constitutional amendments.
The concept of consent had direct consequences
for questioning the powers of Parliament over Ameri-
ca and for the American understanding of repre-
sentation. In terms of constitutionalism, the most
important part of the long list of grievances against
George III with which the Declaration of Indepen-
dence began (following the model of the Declaration
of Rights of 1689) was the passage which stated that
the king had "combined with others to subject us to a
jurisdiction foreign to our constitutions, and unac-
knowledged by our laws; giving his assent to their
acts of pretended legislation." The nation began with
an assertion of the right to consent.
In the decades of constitution-making following in-
dependence the main organizational task of Ameri-
can constitutionalism was to spell out in detail the
implications of popular sovereignty for the structure
of government. What, for instance, should follow
from the famous formulation in the Virginia Declara-
tion of Rights, of June 12, 1776, "that all power is
vested in, and consequently derived from, the peo-
ple; the magistrates are their trustees and servants,
and at all times amenable to them"? Four subjects
were of overriding importance: the franchise; the

10
separation of powers; the amending process; and the
protection of individual rights.
Political status in the colonies had mostly de-
pended on property ownership, and the Revolution
had not done away with these requirements. The fed-
eral Constitutional Convention of 1787 could not
agree on who should have the right to vote. Sover-
eignty of the people did not mean all the people. But
who should have the right to vote was discussed fre-
quently and with great seriousness. The voters of the
Massachusetts town of Northampton, for instance,
concluded in 1780 that restricting the franchise for
the Massachusetts house freeholders and other men
of property was inconsistent with the concepts and
principles of native equality and freedom, the social
compact, personal equality, and no taxation without
representation. Their objections pertained only to
elections to the house; indeed, they were based on
the notion that in a bicameral legislature one cham-
ber should represent property, the other persons. A
few more decades had to elapse before property and
taxpaying qualifications disappeared. The franchise
was expanded in all Western societies in the course of
the nineteenth century. The earliest and most inclu-
sive expansion, however, came in the United States-
although even here the vote was withheld from
women, American Indians, slaves, and, as a rule,
free blacks.
The colonists widely believed that their govern-
ments were "mixed" in accord with the British mod-
el. A London compendium from 1755 said of the
colonial governments: "By the governor, represent-
ing the King, the colonies are monarchical; by a
Council they are aristocratical; by a house of repre-
sentatives, or delegates from the people, they are de-
mocratical." While this was more an "ideal type"
than an accurate description of the constitutional
facts, the post-Revolution problem for those who had
grown up within the tradition of mixed or balanced
government was how to institute it under radically
changed conditions. The question was not really
whether to have balanced government, though some
advocates of "simple" government existed.
The separation of powers doctrine, as put forward
most influentially by Montesquieu, sought to limit
power by separating factions and, to some extent, as-
sociating them with the executive and legislative
functions of government. To Montesquieu the separa-
tion of powers was a necessary if not a sufficient con-
dition of liberty. By 1776 the American constitutional

11
problem had become not the separation of "powers"
but the distribution of power flowing from a single
source-the people.
Though the Americans continued to view the sepa-
ration of powers as necessary to liberty and therefore
indispensable to constitutionalism, they faced a for-
midable challenge in attempting to implement the
concept. The towns of Essex County, Massachusetts,
wrote "the Essex Result," a veritable dissertation on
the subject in voicing their objections to the proposed
Massachusetts constitution of 1778, which they con-
sidered insufficiently mindful of the separation of
powers. They propounded the principle "that the leg-
islative, judicial, and executive powers are to be
lodged in different hands, that each branch is to be
independent, and further, to be so balanced, and
be able to exert such checks upon the others, as
will preserve it from dependence on, or an union
with them."
Practical problems were inevitable. The different
powers of government do not imply clearly differen-
tiated functions; they will necessarily be closely
intertwined-especially if one adds the notion, urged
in the Essex Result, of checks and balances. In the
major states constitutions enacted in 1776 and imme-
diately after, the legislative branch usually dominat-
ed, but the constitutions distinguished conceptually
between legislative, executive, and judicial func-
tions. They made members of one branch ineligible
to serve in the others, and they gave some measure of
autonomy to the judiciary. However, with respect to
such crucial features as the structure and election of
the executive and the power of appointments, they
differed radically one from the other.
As successful revolutionaries, the Americans
faced a difficult political task. They needed to justify
the power of the people to change their government
and at the same time to assure the stability of the new
order based on popular sovereignty. If, as a practical
matter, consent meant consent by a majority, was that
majority not also at liberty to change the states' new
constitutions? If not, why not? Vattel had struggled
valiantly to develop a satisfactory framework for
thinking about constitutional change, though without
much success. His argument in The Law of Nations
that the legislative power could not amend the consti-
tution is hardly a model of tight reasoning. Con-
cluding his essay, Vattel observed: "However, in
discussing changes in a constitution, we are here
speaking only of the right; the expediency of such

12
changes belongs to the field of politics. We content
ourselves with the general remark that it is a delicate
operation and one full of danger to make great
changes in the State; and since frequent changes are
hurtful in themselves, a Nation ought to be very cir-
cumspect in this matter and never be inclined to make
innovations, except for the most urgent reasons or
from necessity."
In America, Thomas Jefferson was the foremost
theorist of constitutional change. He believed that
each generation has "a right to choose for itself the
form of government it believes most promotive of its
happiness... " The same man who provided us with
this theory of constitutional change wanted to be re-
membered in his epitaph for the Virginia Statute of
Religious Liberty (1786), which ended with a proviso
that sought to secure the statute forever: we "do de-
clare, that the rights hereby asserted are of the natural
rights of mankind, and that if any act shall be here-
after passed to repeal the present or to narrow its
operation, such act will be an infringement of natural
right."
In a way, the matter was simple. Jefferson and
many of his fellow citizens were for change, stability,
and inalienable rights all at the same time. These dis-
parate aims were somewhat reconciled in practice by
having the constitutions provide for their own amend-
ment and for bills of rights. This course had impor-
tant practical implications: it legitimized the concept
of constitutional change and thus dramatically re-
duced the need for revolutions; and it advised the
majority that it had no power to regulate at will the
structure of government or basic rights of individu-
als. Enlightened America was anything but unani-
mous on the status of specific rights. Not every state
constitution had a bill of rights; those that did almost
always included the liberty of conscience, freedom of
press, trial by jury, and protection of property. Some
of the rights, as Penn and Jefferson suggested, were
considered so fundamental that their amendment
would conflict with the very nature of constitutional
government.
The Constitutional Convention of 1787 and the
main features of the federal constitution, after a dec-
ade of state constitutions, further defined American
constitutionalism. The Constitution precariously
provided for a mode of ratification hardly in accord
with the Articles of Confederation. Among the
ironies of history is the fact that the Constitutional
Convention's preference for the convention method

13
of ratification (rather than ratification by all state leg-
islatures as required by the Articles) resulted in atta-
ching to the Constitution, in 1791, a Bill of Rights,
which the Framers of Philadelphia had considered
unnecessary.
The most important aspect of the Constitution was
its implementation of the goal "to form a more per-
fect Union." Carl J. Friedrich characterized the
claim that federalism is an American invention a de-
fensible overstatement. The Constitution's effort to
delineate clearly the powers of the federal govern-
ment as against those of the states is remarkable in-
deed. Its main accomplishment was not to get bogged
down by the metaphysics of sovereignty and to enable
the federal government to legislate and tax in a man-
ner binding the people directly, without using the
states as intermediaries. This structure of "dual sov-
ereignty" assured the viability of the federal govern-
ment and, at least well into the twentieth century, the
viability of the states. It underwent one substantial
modification. When the "perpetual" nature of the
Union was challenged over the issue of slavery, con-
stitutional amendments were enacted at the end of the
Civil War for the primary purpose of securing equal
rights to recently emancipated black citizens. These
amendments eventually legitimized a great expan-
sion of federal influence on the law of the states in the
interest of greater equality for blacks and other
minorities.
The constitutional organization of the federal gov-
ernment is delineated by the organization of the con-
stitutional text. The Preamble speaks of the people of
the United States as ordaining and establishing the
Constitution. The first (and presumably most impor-
tant) article deals with the election and legislative
powers of Congress. Article II vests the executive
power in a President. Article III concerns the judicial
power and its jurisdiction. Although this organiza-
tion seems to provide us with a rather pure example
of the separation of powers, the Constitution com-
bines elements of separate and independent powers
(such as an independent judiciary or a President not
dependent on Congress for his term of office) with a
thorough mixing of powers, best summarized by the
concept of checks and balances.
Superficially, the legislative and executive branch-
es seem to be assigned separate functions: lawmak-
ing and law executing. The judicial branch, through
dispute-settling, performs one part of the executive
function under special conditions and special proce-

14
dures. In reality, however, both the executive and the
judiciary engage in lawmaking through interpreta-
tion and rule-making. The executive intrudes into the
legislative function by exercising the veto power.
Congress, on the other hand, performs executive
functions through legislative oversight, appropria-
tions decisions, and confirming appointments. One
might better forgo the Framers' own characterization
of the system as one of separation of powers. Ameri-
can constitutionalism indulged itself in heaping
checks upon checks so that the love of power of offi-
cials occupying the various branches of government
could be harnessed.
On one of the most important of these checks and
the most distinctly American contribution to consti-
tutionalist doctrine, the Constitution of 1787 was si-
lent. Nowhere does the constitutional text grant the
power of judicial review of legislation. On the basis
of the debates in the Constitutional Convention one
can make a strong case that some of the most influen-
tial Framers thought that judicial review was im-
plied, but this is not the same as saying that the
Constitution implies it. How then did the American
judiciary end up as the guardian of the Constitution?
There had been instances of courts exercising the
power of judicial review as well as public debate of
the issue in the new states. The case for judicial re-
view was based on a peculiarly American amalgam
of various strands of constitutionalism. First, there
was the notion of a constitution as fundamental law.
If Lord Coke could claim the common law as a basis
for reviewing acts of Parliament, how much more
plausible the claim that judges were bound to obey a
fundamental charter viewed as supreme law. Second,
if the constitutions derived their authority from the
sovereignty of the people, and if legislators and other
government officials were simply the people's trust-
ees and servants, it was no great leap to reason that
judges had to obey the will of the whole people as ex-
pressed in the constitution. Third, the special proce-
dures for constitutional amendment typically denied
the legislatures the power to amend by ordinary legis-
lation, which suggested that attempts of that kind
should go unenforced. Fourth, those constitutions
containing bills of rights reenforced the notion of a
constitution as superior law with the aim of protect-
ing the rights of individuals against tyrannical ma-
jorities. Fifth, in the case of the federal constitution
there was the added need to assure its status as su-
preme law throughout the Union. The arguments for

15
and practice of judicial review of state legislation
served to consolidate the understanding of the Amer-
ican Constitution as the supreme law of the land to
which all government actors were subject.
Chief Justice John Marshall in Marbury v.
Madison (1803) to the contrary notwithstanding, the
issue of judicial review was an intricate one. No sim-
ple constitutionalist syllogism could be constructed
that invariably led one to conclude that judges had
the power of judicial review. The amalgam, however,
proved powerful under the conditions prevailing in
the United States. When the Supreme Court went
ahead and in effect appointed itself and the other
judges guardians of the Constitution (in the case of
the Supreme Court, eventually to become the pre-
eminent guardian), the people, by and large,
acquiesced.
The American institution of judicial review has
influenced developments abroad. Various forms of
constitutional review exist in Austria, Germany, In-
dia, Italy, Japan, and, now, even France-to name the
most important. While their historical roots are many
and their institutional characteristics diverse, the
American model was highly visible when they came
into being. One of the most instructive contemporary
instances is that of the Court of Justice of the Europe-
an Community. Starting with the need of assuring the
uniformity of Community law throughout the mem-
ber nations, the Court of Justice has transformed the
treaties underlying the European Community (espe-
cially the Treaty of Rome) into the constitution of the
community. These are radical developments. The
constitutionalization of the Treaty of Rome has led to
the introduction of judicial review, or what one might
more appropriately call Community review, even in-
to countries that have not previously recognized the
power of their courts to pass on the constitutionality
of legislation.
As constitutionalism does not refer to having a con-
stitution but to structural and substantive limitations
on government, it would be a gargantuan task to de-
termine its incidence in a world full of written consti-
tutions, of which many do not mean what they say,
while others do not accomplish what they mean. The
need to distinguish between form and substance
would necessitate impossibly vast empirical assess-
ments. The distinction between form and substance
would also make desirable a detailed examination of
the legal situation in countries, such as Great Britain,
that meet most substantive requirements of consti-

16
tutionalism without a written constitution, an en-
trenched bill of rights, or the power of judicial re-
view.
Constitutionalism matured in the context of the lib-
eral democracies with their emphasis on civil and
political rights and their attempts clearly to define the
public and the private sphere. The rights guaranteed,
with the exception of certain rights to participate in
the exercise of governmental power, were rights of
the citizen against infringement by government of his
own sphere, or "defensive" rights (German constitu-
tional law has coined the term Abwehrrechte for this
category). The eighteenth- and nineteenth-century
constitutions do not contain social rights aimed at
guaranteeing citizens a fair measure of well-being.
A notable aspect of the Weimar constitution was
its effort to formulate rights that would guarantee
everyone a worthwhile existence. As the concept of
citizenship expanded from the formal equality of
sharing legal capacities to the substantive equality of
sharing goods, the contemporary welfare state be-
came clearly committed to some undefined (and
probably undefinable) minimum of such substantive
equality. The predominant means for accomplishing
such goals has been legislation rather than constitu-
tionalization. Certain legislation of this kind has
been viewed by some as in actual conflict with the
constitutionalist scheme. This alleged conflict has, in
turn, led to substantial efforts in the United States
and other countries to reinterpret the liberal constitu-
tions as not only permitting but demanding govern-
ment intervention on behalf of the underprivileged.
In conjunction with these difficulties, but by no
means restricted to them, American constitutional
scholarship engages in periodic debates about meth-
ods of constitutional interpretation. Much of the dis-
cussion reinvents the interpretive wheels of earlier
generations. Its main focus is the degree of fidelity
which may be owed the words of the Constitution and
the intentions of its Framers. Some contemporary
writing argues that the Constitution can incorporate
contemporary value preferences of a highly subjec-
tive kind. The tension is between the need to expound
an essentially unaltered eighteenth-century Constitu-
tion in a manner consistent with "the progress of the
human mind, " on the one hand, and the danger of
dissolving the Constitution in the process. The dis-
pute is further complicated by endless varieties of
highly refined theories concerning the proper scope
ofjudicial review.

17
 Over its two hundred years the American Constitu-
tion has been assigned the role of a national ideology.
It has performed this role for a people that has grown
from a few million to almost 250 million citizens of
very diverse background. While the historical disin-
clination to amend the Constitution by means other
than judicial review may help account for its durabili-
ty, it has also subjected the Constitution to considera-
ble strain. As the secular equivalent of the Bible, as
Walton Hamilton observed, "it became the great
storehouse of verbal conflict, and rival truths were
derived by the same inexorable logic from the same
infallible source." More often than not, Americans
invoke constitutional principles in order to under-
stand and resolve conflicts. This fact attests to the
extraordinary vitality of American constitutionalism.
It may also endanger its viability. Too frequent cross-
ings of the line between "constitution as ideology"
and "ideology as constitution" will blur the line. The
American concept of the legitimacy of government
is closely tied to the Constitution. Its limitless
manipulation may endanger the very legitimacy that
has been the great accomplishment of American
constitutionalism.

Bibliography
Adams, Willi Paul 1980 The FirstAmerican Consti-
tutions. Chapel Hill: University of North Carolina
Press.
Bailyn, Bernard 1967 The Ideological Origins of the
American Revolution. Cambridge, Mass.: Belknap
Press.
Cooke, Jacob E., ed. 1961 The Federalist. Middle-
town, Conn.: Wesleyan University Press.
Dicey, A.V. (1885) 1959 Introductionto the Study of
the Law ofthe Constitution. London: Macmillan.
Franklin, Julian H., ed. 1969 Constitutionalismand
Resistance in the Sixteenth Century. Indianapolis:
Bobbs-Merrill.
Friedrich, Carl J. 1941 Constitutional Government
andDemocracy.Boston: Little, Brown.
Friedrich, Carl J. 1967 The Impact ofAmerican Con-
stitutionalism Abroad. Boston: Boston University
Press.
Hamilton, Walton H. 1931 Constitutionalism. Pages
255-258 in Edwin R. A. Seligman et al. (eds.),
Encyclopedia of the Social Sciences. New York:
Macmillan.
18
Maitland, F. W. 1926 The ConstitutionalHistory of
England. Cambridge: Cambridge University
Press.
McIlwain, Charles Howard (1940) 1947 Constitu-
tionalism: Ancient and Modern. Ithaca, N.Y.:
Cornell University Press.
Pennock, J. Ronald and Chapman, John W., eds.
1979 Constitutionalism. New York: New York
University Press.
Perry, Richard L., ed. 1972 Sources of OurLiberties.
New York: New York University Press.
Stourzh, Gerald 1977 The American Revolution,
Modern Constitutionalism, and the Protection of
Human Rights. Pages 162-176 , in Kenneth
Thompson et al. (eds.), Truth and Tragedy: A Trib-
ute to Hans J. Morgenthau. Washington D.C.: New
Republic Book Co.
Wood, Gordon S. 1969 The Creationof the American
Republic 1776-1787 New York: Norton.
Wormuth, Francis D. 1949 The Origins of Modern
Constitutionalism.New York: Harper.

Occasional Papers
from
The Law School
The University of Chicago
1111 East 60th Street
Chicago, Illinois 60637
No. 1. "A Comment on Separation of Power"
Philip B. Kurland, November 1, 1971.

No. 2. "The Shortage of Natural Gas"

Edmund W. Kitch, February 1, 1972.

No. 3. "The Prosaic Sources of Prison Violence"

Hans W. Mattick, March 15, 1972.

No. 4. "Conflicts of Interest in Corporate Law Practice"

Stanley A. Kaplan, January 10, 1973.

No. 5. "Six Man Juries, Majority Verdicts-What Difference

Do They Make?"
Hans Zeisel, March 15, 1973.

No. 6. "On Emergency Powers of the President: Every Inch

a King?"
Gerhard Casper, May 31, 1973.

19
No. 7. "The Anatomy of Justice in Taxation"
Walter J. Blum and Harry Kalven, Jr., October 1, 1973.

No. 8. "An Approach to Law"

Edward H. Levi, October 15, 1974.

No. 9. "The New Consumerism and the Law School"

Walter J. Blum, February 15, 1975.

No. 10. "Congress and the Courts"

Carl McGown, April 17, 1975.

No. 11. "The Uneasy Case for Progressive Taxation in 1976"

Walter J. Blum, November 19, 1976.

No. 12. "Making the Punishment Fit the Crime: A Consumers'

Guide to Sentencing Reform"
Franklin E. Zimring, January 24, 1977.

No. 13. "Talk to Entering Students"

James B. White, August 15, 1977.

No. 14. "The Death Penalty and the Insanity Defense"

Hans Zeisel, April 15, 1978.

No. 15. "Group Defamation"

Geoffrey R. Stone, August 10, 1978.

No. 16. "The University Law School and Practical Education"

Carl McGowan, December 20, 1978.

No. 17. "The Sovereignty of the Courts"

Edward H. Levi, July 15, 1981.

No. 18. "The Brothel Boy"

Norval Morris, March 15, 1982.

No. 19. "The Economists and the Problem of Monopoly"

George J. Stigler, July 1, 1983.

No. 20. "The Future of Gold"

Kenneth W. Dam, July 15, 1984.

No. 21. "The Limits of Antitrust"

Frank H. Easterbrook, April 15, 1985.

No. 22. "Constitutionalism"

Gerhard Casper, April 6, 1987.

20