Historical development

Ideals of Constitutionalism - Constitution in the New World - Constitutional Government

Ideals of Constitutionalism

Though Constitutionalism, the spirit of Constitution, had already been alive and practised for many years, the Magna Carta, by general consent of history, is now widely accepted as the world's first major constitutional document. Indeed it is interesting to read the constitutions of the USA, both the Federal Constitution and those of individual States, as well as the constitutions of many Commonwealth countries, and to note how many passages from Magna Carta have simply been copied word for word.

Magna Carta provided Britain's reformers with a firm foundation, a cornerstone on which subsequent constitutional documents could be added to form the assemblage which, combined with unwritten custom, is commonly referred to as Britain's "Constitution" today.

Constitution limits absolute power. This it achieves by placing conditions on the use of that power, by requiring the sharing of power with those subject to it through a process of debate, and by establishing boundaries beyond which the Law may not intrude.

In its early days the Constitution may be weak, it may have little of practical value to say. But once the principle has been established that the Central Power, whatever form it may take, is itself subject to some superior framework of rules and procedures which define the use of that power to any extent whatsoever, the nation is on the right path, and it is only a matter of time before the rules defining the use of Centralized Power are strengthened.

No Government, President or Monarch, no institution of Law or Enforcement, should be created or be allowed to exist and to function without a Constitution. No one should have power over others, unless and until that power and the conditions of its use have been strictly defined. In the words of Thomas Paine: "Government without a Constitution is power without right".

Today we understand clearly and accept fully the idea that Constitution limits absolute power. Yet for early reformers of autocratic Monarchies it was a contradiction in terms to talk of limiting absolute power. If the power is absolute, then how can it be limited except through a greater power, and what is the nature of that greater power?

The "greater power" which sets limits on Autocrats and Parliaments is the power of reason and custom.

Relying for support on the strength of public opinion, from the most influential to the broad mass of the people, the spirit of Constitutionalism was originated and developed by theorists and idealists, and based on a universally recognized, instinctive awareness of what is right and wrong in law and social conduct.

"The idea of Constitutionalism is older than the existence of written Constitutions. Constitutionalism places limits upon Government, proscribing the means by which official power may be exercised. Constitutionalism establishes boundaries between the State and the individual, forbidding the State to trespass into certain areas reserved for private action.

"Constitutionalism also has a deeper and older connotation, demanding adherence by Government to recognized customary procedures. The idea of a Constitution in this procedural sense can be traced all the way back to Aristotle, who in his Politics and the Constitution of Athens described all the known political arrangements of ancient Greece."

[Constitutions that have made History Edited by Albert Blaustein and Jay Sigler, Paragon House Publishers, New York, 1988.]

The fundamental desire for disciplined and responsible use of Centralized Power was the catalyst which set in motion, then relentlessly pursued the gradual erosion of absolute power, subjecting it to the ideals of good government expressed in the essence of Constitutionalism, in successive specific constitutional documents, and in the writings of constitutional reformers.

One of the first major writers on the subject of English constitutional law and custom following Magna Carta was Henry Bracton.

Bracton was born, lived and worked in Devon during the early 1200s (his birthdate unknown, he died in Exeter, in 1268). He was both a Cleric and a Justice - as indeed was common at that time, for few but the Clergy could read. From 1245 he was an Itinerant Justice for King Henry III, and from 1247 to 1257 was a Judge of the Coram Rege which later became the King's or Queen's Bench.

His (Latin language) document On the Laws and Customs of England is one of the oldest systematic treatises on English Common Law. It also deals in depth with the obligations of, and disciplines upon Royal power, concentrating on three major themes: that the King should himself be subject to and act within the Law, that he should rule wisely and justly, and that he should rule in consultation with his peers, the "eminent men" of the land.

The King must first of all be subject to, and act within the Law.

In stressing the King's relationship with the law, Bracton identifies two aspects of law and the apparent contradiction between them. One aspect of law consists of orders and regulations, and in this sense the King is the source of law. The other aspect of law is the body of custom we would now call the Constitutional Framework; here the King must himself be subject to law, for the King and the very institution of Monarchy owe their existence to law in this Constitutional sense.

So Bracton insists that "the King must be under God and under the Law, because the King's position owes its very existence to the wider framework of law.

"Let him therefore in his Laws, observe the due process of law through which he himself exists. For the King is not fulfilling his legal obligations when he rules by personal will, rather than by due process of law under the ultimate will of God."

Bracton also expects the King to obey his own laws, for the King, though the source of Law, is not outside the Law:

"What the King is bound by virtue of his office to forbid to others, he ought not to do himself. Let him, therefore, temper his power by the due process of law, which is the discipline upon power, that he may live according to the Laws, for the Law of mankind has decreed that the lawgiver should be bound by his own Laws.

"Nothing is more fitting for a Sovereign than to live by and within the laws, nor is there any greater sovereignty than to govern according to the due process of Law, and the Sovereign ought properly to yield to the tradition and process of Law that makes him King."

Bracton strengthens his argument with this forceful reference to Christian example:

"That the King must bow to the process and formality of law is parallelled in the example of Jesus Christ. Though many ways were open to Him to fulfil His destiny in the redemption of the Human race, He chose to destroy the devil's work, not through the arbitrary use of His great powers, but by subjecting Himself to the existing laws of justice. In this way He willed Himself to be under the law that He might redeem all those who must live under it. He chose to use not force, but judgement."

Monarchs of England and Europe have often claimed to rule by Divine Right. The Kings themselves interpreted the concept of Divine Right as placing them above and beyond the reach - or reproach - of the law, and of those they ruled.

Bracton however voices an earlier understanding of Rule by Divine Right, namely that the King is God's Minister, and as such is under obligation to rule wisely and responsibly:

"The King is Vicar and Minister of God on Earth, and from God comes the power of justice. Therefore the King's power is that of justice, not injustice. The power of injustice is from the Devil, not from God.

"The King will be the Minister of him whose work he performs. Therefore as long as he does justice he is the Vicar of the Eternal King, but he is the Devil's Minister when he deviates into injustice or injury.

"The King is called King, not from reigning, but from ruling well, since he is a King as long as he rules well, but a tyrant when he oppresses by violent domination the people entrusted to his care."

Bracton also stresses the requirement of participation in the formulation of laws:

"The King should not propose or enact laws rashly by his own will or whim; the law should be properly decided with the counsel of his peers, the King giving it formal authority only after full joint deliberation and consultation."

Bracton thus set out the three major ideals of Constitutional Monarchy: that the King should himself be subject to and act within the Law, that he should rule wisely and justly, and that he should rule in consultation with his peers.

The battle for consultation was won when Parliament gained supremacy over the Monarch, and Britain became a Constitutional Monarchy.

But now a new constitutional challenge would appear: the challenge of subjecting Parliament to constitutional discipline. Subsequent political development would attempt to ensure that, while Parliament would remain and grow as the institution of legislation and of popular representation, the power of Parliament itself should not become absolute, and Parliament should be subject to the same rules of underlying constitutional precedent which had previously been formulated to discipline Monarchs.

This was the background from which America's Founding Fathers drew both fear and inspiration: fear of re-creating a new autocratic monarchy or presidency, and inspiration for the creation of a new kind of government, a government representing its people not dominating or oppressing them.

Constitution in the New World

Just as two thousand years ago the rulers of the Roman Empire dreamed of a world where all nations should share in citizenship of the Eternal City, and should have in their own lands assemblies and senates which typified Roman methods of government, likewise the British people during the 1700s felt their hard-won liberties and rights to participate in government could be transplanted. As British people over a period of three or four centuries crossed the oceans of the world, establishing new communities in every continent, their form of government has been planted and has blossomed in many lands.

When the thirteen British colonies in North America declared their independence in 1776, they laid down that Governments are instituted among Men, deriving their just powers from the consent of the governed. In so doing they were consciously echoing the words of the Great Charter which King John had sealed 561 years before, and wherein he had undertaken that no tax may be levied in our kingdom without its general consent.

Similarly, the Federal Constitution which the newly independent States drew up in 1787 was to a large extent the formal statement of rights and liberties already won in Britain.

"From the unwritten British Constitution came many ideas and principles". Such notions are common currency in American thinking; these words appear in The United States of America, a booklet published by the US Information Service.

However, while England had for centuries been intent on limiting the power of the Absolute Monarchy, American constitution-writers now focused on limiting the power and potential danger of the new "absolute ruler" - Congress, and the power of Federal Government institutions generally. This they sought to achieve not only through constitutional provisions and the Bill of Rights, but also through the celebrated "checks and balances" whereby two Houses, and the President as Executive, exercised discipline and restraint over one another. The Judiciary was also placed to act as a restrictive force; indeed the US Supreme Court has traditionally seen itself as the ultimate discipline upon Government power, and champion of the citizen against Government excesses.

The supremacy of the Constitution over any and all branches of Government was seen by America's Founders as the essential assurance of orderly and disciplined Government, a view clearly described by Mr Hugo LaFayette Black, Associate Justice of the US Supreme Court, 1937-1971:

"The form of government which was ordained and established in 1789 contains certain unique features which reflected the Framers' fear of arbitrary government and which clearly indicate an intention absolutely to limit what Congress could do.

"The first of these features is that our Constitution is written in a single document. Such constitutions are familiar today and it is not always remembered that our country was the first to have one. Certainly one purpose of a written constitution is to define and therefore more specifically limit government powers. An all-powerful government that can act as it pleases wants no such constitution - unless to fool the people. England had no written constitution and this once proved a source of tyranny, as our ancestors well knew. Jefferson said about this departure from the English type of Government: Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction.

"A second unique feature of our Government is a Constitution supreme over the Legislature. In England, statutes, Magna Carta, and later declarations of rights had for centuries limited the power of the King, but they did not limit the power of Parliament. Although commonly referred to as a Constitution, they were never the supreme law of the land in the way in which our Constitution is, much to the regret of statesmen like Pitt the elder. Parliament could change this English constitution; Congress cannot change ours. Ours can only be changed by amendments ratified by threefourths of the States.

"A third feature of our Government, expressly designed to limit its powers, was the division of authority into three co-ordinate branches, none of which was to have supremacy over the others. This separation of powers with the checks and balances which each branch was given over the others was designed to prevent any branch, including the Legislative, from infringing individual liberties safeguarded by the Constitution.

"All of the unique features of our Constitution show an underlying purpose to create a new kind of limited government."

[Completion of the Constitution was followed shortly after by James Madison's proposed ten additions or Amendments, these first ten Amendments becoming collectively known as the Bill of Rights. Mr Justice Black continues:]

"Central to all of the Framers of the Bill of Rights was the idea that since government, particularly the National Government newly created, is a powerful institution, its officials - all of them - must be compelled to exercise their powers within strictly defined boundaries. As Madison told Congress, the Bill of Rights' limitations point sometimes against the abuse of the Executive power, sometimes against the Legislative, and in some cases against the community itself; or, in other words, against the majority in favor of the minority.

"Madison also explained that his proposed amendments were intended to limit and qualify the powers of government, by excepting out of the grant of power those cases in which the government ought not to act, or to act only in a particular mode.

"Mr. Madison made a clear explanation to Congress that it was the purpose of the First Amendment to grant greater protection than England afforded its citizens. He said: In the Declaration of Rights which [England] has established, the truth is, they have gone no farther than to raise a barrier against the power of the Crown; the power of the Legislature is left altogether indefinite. Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, came in question in that body, invasion of them is resisted by able advocates, yet their Magna Carta does not contain any one provision for the security of those Rights, respecting which the people of America are most alarmed. The freedom of the press and rights of conscience, those choicest privileges of the people, are unguarded in the British Constitution.

"It was the desire to give the people of America greater protection against the powerful Federal Government than the English had had against their Government that caused the Framers to put these freedoms of expression, again in the words of Madison, beyond the reach of this Government."

["One Man's Stand For Freedom" - Mr. Justice Black and the Bill of Rights - Hugo LaFayette Black: A collection of his Supreme Court opinions - Published 1963 by Alfred A. Knopf, Inc.]

Most of the original founder-States of the USA produced Constitutions, and as Territories were granted Statehood, they too felt the need to set forth the essential procedures, obligations and limitations controlling the function and laws of their governments. Right from her very birth, America would espouse and never abandon the principles of Constitutional Supremacy and popular participation for which England had fought so hard and so long.

Constitutional tradition as it developed in Britain and spread later to America and much of the Commonwealth was indeed a slow and occasionally violent process. It is a thousand-year-old story, which may be said to begin in the year 1215 when the Great Charter sought to limit the powers of an Absolute Monarch. Yet despite the persistence of reformers and the progress made at the birth of the United States, the development of true constitutional security from autocratic rule is by no means complete today.

Indeed, when one compares the modern Government, with its unlimited rights of taxation, its total lack of financial discipline, and the tenuous relationship between elected Members and their voters, one may reasonably wonder how far real and effective constitutional discipline over those wielding political power has progressed since the Great Charter of 1215.

In 1215 Britain had an autocratic, costly and largely ineffectual Monarchy. Today throughout the developed world we have autocratic, costly and largely ineffectual Government.

The need for constitutional discipline over Government today is every bit as great as was the need for constitutional discipline over the Monarchy in 1215. It is therefore worth exploring the theory of Constitutional Government in more detail.

Constitutional Government

The Constitution in its basic form is a framework of rules telling Government in all its departments and all its functions what it must do, what it must not do, and how it should do it.

The detail of Constitutional provisions falls into three categories: the obligations which citizens may expect Government to fulfil; the limitations on the scope of Law; and the rules of procedure within which Government is required to operate.

We turn first to those provisions which define the obligations of Government to meet certain reasonable needs of its citizens.

One fundamental obligation of Government, that of "keeping the peace", is defined in many constitutions, as for example in the original 18th century manuscript of the Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts:

- "Government is instituted for the Common good, for the protection, safety, prosperity and happiness of the people...."

- "Each individual of the society has a right to be protected by it in the enjoyment of his life, Liberty and prosperity according to standing Laws..."

- "Every subject of the Commonwealth ought to find a certain remedy by having recourse to the Laws, for all injuries or wrongs which he may receive in his person, property, or character."

As with much of American constitution writing, this concept has its origins in English legal and constitutional tradition.

Clause 12 of the Coronation Charter which King Henry signed in 1101 states: A firm peace in my whole Kingdom I establish and require to be kept from henceforth.

"Clause 12 formally called into being the King's Peace, a conception that had been steadily growing during the Anglo-Saxon period. A disturbance of the peace was not only an offence against the personas aggrieved thereby but an affront to the King himself, and the Royal power would be deployed against the wrongdoer. The Crown was responsible for the maintenance of a peaceful environment within which men could go about their business undisturbed by violence. This conception remains to this day the basis of law and order within the Realm."

[Henry Marsh: Documents of Liberty, David & Charles, 1971].

If the obligations of Government are set out clearly in the Constitution the citizen may have recourse to the Constitution in any cases where these obligations are not fulfilled.

But to tell Government what it should do for us is not enough. We must also, perhaps more importantly, tell Government what it may not do by setting clearly defined limitations on the scope of Law.

Popular and regularly recurring examples of Constitutional restrictions which protect citizens' liberties from encroachment by Government are provisions which protect freedom of religion, assembly and speech. Examples may be found in Article 2 of the Constitution of the State of Montana, as revised June 6, 1972.

- "Section 5. Freedom of Religion. The State shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.

- "Section 6. Freedom of Assembly. The People shall have the right peaceably to assemble, petition for redress or peaceably protest governmental action.

- "Section 7. Freedom of Speech, Expression, and Press. No law shall be passed impairing the freedom of speech or expression."

These are rights which Government may not take away, areas which are effectively "off limits". If the Government over-steps the line, citizens may again seek remedy in the Constitution.

We turn now to those provisions of the Constitution which define the procedures of Legislative debate: facilities for participation and representation, the method of selecting incumbents for various offices, and their length of tenure. Through such established procedures details may be decided, representatives and officers can come and go, all in an orderly manner following agreed and accepted rules. Rules guiding the conduct of Enforcement Agents in their dealings with citizens may also be laid down in the Constitution.

Other rules of procedure may apply to the conduct of Government Administration, as for example in its finances.

One of the most basic rules of Constitutional principle is that Government should not be permitted to conduct its affairs in any way which would be unacceptable in the private citizen or business. That the Law-makers, either Monarch or Government, should be subject to their own laws is one of the fundamental principles of Constitutionalism. And yet if we apply this principle in the area of finance we can at once see the glaring disparity between the legally permitted conduct of private sector business and that of Government.

Government can go into debt on its current account, then simply continue to go ever deeper into debt without any hindrance whatsoever. Conduct which the Law would never tolerate in private citizens or business is, apparently, quite acceptable in government. This is a sure sign of a lack of Constitutional discipline.

Many of the world's governments today are deeply in debt, with an increasingly burdensome proportion of the National Budget now required simply to service the interest on that debt. Few show any signs of bringing their debts down. Many observers, and to their credit many legislators, openly express regret that their constitutions do not prohibit prolonged government deficits.

Though the Fderal Constitution of the United States has no such provision, some individual States of the USA do preclude deficit financing in their State Constitutions.

Section 9, Article VIII of Montana's State Constitution, for example, is very explicit: "Balanced budget. Appropriations by the Legislature shall not exceed anticipated revenue."

Many economists argue that government deficits should be allowed during economic downturns in order to encourage recovery; the same result can be achieved through the policy adopted by the State of Oklahoma, where the Constitution requires that expenditure be limited to only 95% of revenue, the balance being set aside as a credit against times of economic downturn.

The Constitutional approach to government operational and financial discipline is essential; the motivation to improve government efficiency and standards of business conduct is unlikely to come from inside government itself, and even if it does, the disciplines thus created are likely to be more cosmetic than real. Governments frequently pay lip-service to improving productivity and financial discipline, but seldom make any real changes. Self discipline is a noble ideal, but discipline is always more effective when it is imposed from outside, or more importantly, from above.

This leads to a consideration of the status of Constitution in the totality of Government, Law and Enforcement.

Since it sets the rules for government, the Constitution must by its nature and definition stand above Government as the supreme authority in the land. This position of supremacy can be assured in a Constitutional system by placing the Constitution at the apex of the legislative process.

The Constitution, as embodied in a Supreme Court or a Constitutional Executive, thus becomes the Executive, the element at the head of the governmental process which gives effect to each and every newly proposed law.

Laws are thus proposed, debated and formulated by the Legislature, then put forward to the Executive where they are verified to ensure that they comply with the provisions of the Constitution. If successful, only then are laws formally enacted.

This represents an idealized, theoretical concept of Constitutional Government; in few if any cases today do Constitutions play such a key role.

In Britain the Constitution (unwritten, but largely based on Common Law and precedent) exercises little practical control over the process and content of Law formulated in Parliament, and is quoted more often in academic debate than in the practical operation of government.

Many of the institutions of government, from tax collection to the armed forces, as well as government itself, are preceded by the familiar initials "HM" for "His" or "Her Majesty" as Constitutional Head. But effective control remains in the hands of government under the Prime Minister.

In the USA Congress makes the Laws which the President as Executive signs more or less automatically into formal legislation. He may send them back on the grounds of disagreement, but Constitutional Verification as such is not a part of the process.

Nor does the US Supreme Court verify Laws prior to execution; it only does so when requested by individuals or Lower Courts. In this sense, the US Supreme Court acts as a Court of Appeal (or last resort) at the apex of the Judicial process, rather than a Constitutional Executive at the apex of the Legislative process.

There is no form of Government yet devised, or yet devisable, which can be trusted to function successfully and honestly without the discipline of clear Constitutional rules laying down the essential principles to which government can be held accountable.

In the florid prose of the Constitution of the State of Vermont, adopted July 9, 1793:

"That frequent recurrence to fundamental principles, and a firm adherence to justice, moderation, temperance, industry and frugality, are absolutely necessary to preserve the blessings of liberty, and keep government free; the people ought, therefore, to pay particular attention to these points, in the choice of Officers and Representatives, and have a right, in a legal way, to exact due and constant regard to them, from their Legislators and Magistrates, in making and executing such Laws as are necessary for the good State."

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