CONSTITUTIONAL
LAW NOTES 2022
,Week 1: Principles of Constitutional Law
Source: Stanford Encyclopedia of Philosophy
Constitutionalism
- Constitutionalism is the idea that government can and should be legally limited in its powers, and that
authority of legitimacy depends on its observing these limitations.
- In minimal sense, constitution consists of a set of norms (rules, principles or values) creating, structuring,
and possible defining the limits of government or authority.
- Anything recognizable as a state must have some acknowledged means of constituting and specifying the
limits placed upon the three basic forms of government power:
o Legislative power (making new laws)
o Executive power (implementing laws)
o Judicial power (adjusting disputes under laws)
- When scholars talk of constitutionalism, they mean not only that there are norms creating legislative,
executive and judicial powers, but these norms impose significant limits on those powers.
- Often these limitations are in the form of civil rights against government, rights to things like free
expression, association, equality and the due process of law.
- But constitutional limits come in a variety of forms, such as:
o Scope of authority (e.g. in a federal system, provincial or state governments may have authority
over health care and education while the federal government’s jurisdiction extends to national
defence and transportation);
o Mechanisms used in exercising the relevant power (e.g. procedural requirements governing the
form and manner of legislation); and
o Civil rights (e.g. in a Charter or Bill of Rights)
Sovereign vs Government
- Sovereignty can be defined as “the possession of supreme (and possibly unlimited) normative power and
authority over some domain, and government as those persons or institutions through whom that
sovereignty is exercised.”
- “Limited government coupled with unlimited sovereignty.”
- Constitutional democracies are where the people’s sovereign authority is thought to have ultimate and
unlimited but the government bodies – e.g. legislatures and courts – through whom that sovereignty is
exercised on the people’s behalf is constitutionally limited and subordinate.
- In other words, unlimited sovereignty remains with the people who have the normative power to void the
authority of their government (or some part thereof) is it exceeds its constitutional limitations.
Entrenchment
- The norms imposing limits upon government power must be in some way be entrenched, either by law or
by way of constitutional convention. So that those whose powers are constitutionally limited (i.e. the
institutions of government) must not be legally entitled to change or expunge those limits at their
pleasure.
- Most written constitutions contain amending formulae which can be triggered by, and require the
participation of, the government bodies whose powers they limit.
Writtenness
- Historically, the constitution of the UK has largely taken unwritten form, suggesting strongly that
writtenness is not a defining feature of constitutionalism.
- One may think that unwritten rules and conventions are sometimes less precise and there more open to
interpretation, gradual change, and ultimately avoidance, than written ones.
- A counter argument to this would be, long standing social rules and conventions are often clear and
precise, as well as more rigid and entrenched than written ones, besides, their elimination, alternation or
re-interpretation typically requires widespread changes in traditional attitudes, beliefs and behaviours.
And these can be very difficult to bring about.
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, Constitutional Law vs Constitutional Convention
- The idea of constitutionalism requires limitation on government power and authority is established by
constitutional law.
- There is more to a constitution than constitutional law:
o The British constitutional system contains a number of constitutional conventions which
effectively limit government in the absence of legal limitation;
In UK, a law can only be enacted after receiving the consent from the Queen. However,
the Queen may not refuse Royal Assent to any bill passed by both Houses of the UK
Parliament. Otherwise, the Queen would only be acting lawfully, but not constitutionally.
In the US, individuals chosen to represent the State of Florida in the American Electoral
College (the body which chooses the American President by majority vote) must vote for
the Presidential candidate for whom a plurality of Floridians voted on election night
- Constitutional conventions are indeed political conventions, they are unenforceable in courts of law,
constitutional conventions are therefore said to be distinguishable from constitutional laws, which can be
legally enforced.
- We must recognize the possibility that a government, though legally within its power to embark upon a
particular course of action, might nevertheless be constitutionally prohibited from doing so. E.g.:
o X might enjoy unlimited legislative, executive and judicial powers which ae nonetheless limited by
constitutional conventions specifying how those powers are to be exercised. Should X violate one
of these conventions, he would be acting legally but unconstitutionally, and his subjects might
well feel warranted in condemning his actions, perhaps even removing him from office.
Constitutional Interpretation
- As mentioned above:
o There is often more to a constitution than constitutional law.
o Constitutional norms need not always be written rules.
- Despite the above, two facts must be acknowledged:
1. The vast majority of constitutional cases hinge on questions of constitutional law; and
2. Modern constitutions consist primarily of written documents.
- Constitutional cases often raise theoretical issues concerning the proper approach to the interpretation of
written instruments, by the special role constitutions play in defining and limiting the authority and powers
of government.
- Theory of constitutional interpretation come in a variety of forms, but they all seem, in one way or another
to ascribe importance to a number of key factors:
o Textual or semantic meaning;
o Political, social and legal history;
o Intention;
o Original understanding; and
o Moral and political theory
Originalism
- Attempt to transform questions about the moral and political soundness of these commitments into
historical question concerning beliefs about their soundness.
o Instead of asking: What do we now think values like equality and freedom of expression? They
rather ask: What did the authors of constitution or those on whose authority they created the
constitution think about those values? What was their understanding of them?
- Of fixed views, then, constitutions can be seen as analogous to the ground rules of a debating society,
which would otherwise could not function if its ground rules were constantly open to debate.
- They focus on authors’ intentions or on original understandings of the meaning and import of the words
chosen to express agreed limits on government power and authority.
- They believe, only if interpreters restrict themselves to such factors, and do not attempt to inset their own
contentious view under the guise of ‘interpretation’, can the role of a constitution be secured (otherwise
there would be constant debate over the ‘ground rules’).
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