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Unit 3: Constitutions and Constitutionalism

The unitary and federal constitutions have their merits and demerits. A unitary constitution makes Notes
the central government strong so that it may meet any critical situation, but it does not work well
in a big country or where there is marked diversity in respect of religions, cultures, languages and
ways of life of the people. The federal constitution makes the central government weak by dividing
the powers between he centre and the units, but it suits big countries like USA, Russian Federation
and Canada and it is invariably required in countries marked by religions, social and cultural
diversities like Switzerland; India and South Africa. The element of centralism has made its place
in every federal system of the world as a result of which the inherent weakness of a federal
constitution has been done away with. A peculiar arrangement has been devised in India where
the constitution operates as a federal mechanism in normal times and becomes unitary during
times of emergency.

3.3 Necessity of a Good Constitution
We have read about the meaning, development and kinds of constitutions convinces us with this
important axiom of political theory that every state must have a constitution of its own. It is
indispensable even for the states in which a regime of the most primitive type or a despotism of
the worst sort prevails. Jellinek is right in holding that a state without a constitution would not be
a state but a regime of anarchy. In all times, whether ancient, medieval, or modern, constitutions
have existed in some form irrespective of the fact that the rulers acted in the most autocratic
manner. Evidence shows that in the days of ancient Greece, Aristotle could have a study of about
158 constitutions. Even during middle ages constitutions existed, though in a very crude form, if
we compare them with present standards. A remarkable change has taken place in modern times
when the constitution of state is given utmost sanctity. It is lauded as the ‘cornerstone’ of a
democratic nation-state; even the non-democratic states have their own set of rules which they call
‘a charter’ or ‘a manifesto’ of the ideology of their state apparatus.
It is also essential that the constitution of a state should neither be a strong defence of the status quo
permitting hardly any change in response to the changing conditions of the people, nor should it
be so flexible or dynamic that it may be a plaything in the hands of the legislators, or administrators,
or adjudicators of the country. It must have an element; of permanence permitting room for
necessary changes without inviting the conditions of a violent upheaval. It should be well in
consonance with the political culture, education and training of the people. Merriam’s observation
is worth quoting: “The letter of the constitution must neither be idolised as a sacred instrument
with that mistaken conservatism which clings to its own worn-out garment until the body is ready
to perish from cold, nor it ought to be made a plaything of politicians, to be tampered with and
degraded to the level of an ordinary statute.”

3.4 Meaning and Development of Constitutionalism

Constitutionalism is a modern concept that desires a political order governed by laws and
regulations. It stands for the supremacy of law and not of the individuals; it imbibes the principles
of nationalism, democracy and limited government. It may be identified with the system of ‘divided
power.’ As Friedrich says: “Constitutionalism by dividing power provides a system of effective
restraints upon governmental action. In studying it, one has to explore the methods and techniques
by which such restraints are established and maintained. It is a body of rules ensuring fairplay,
thus rendering the government ‘responsible.’ Constitutionalism, thus, stands for the existence of
a constitution in a state, since it is the instrument of government, or the fundamental law of the
land, whose objects “are to limit the arbitrary action of the government, to guarantee the rights of
the governed, and to define the operation of the sovereign power.”
In order to have a proper understanding of the term ‘constitutionalism,’ we must first understand
the meaning of terms like ‘constitution’ and ‘constitutional government’. A constitution “may be
said to be a collection of principles according to which the powers of the government, the rights
of the governed, and the relations between the two are adjusted.” In other words, it may be

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