Page 59 - DPOL202_COMPARATIVE_POLITICS_AND_GOVERNMENT_ENGLISH

Comparative Politics and Government

Notes Constitutionalism in France: France could not remain immune from the influence of modern
constitutionalism. The voice of Rousseau’s Social Contract that ‘man is born free, he is everywhere
in chains’ had its clear echo in the Declaration of the Rights of Man and Citizen adopted by the
National Assembly in 1789 that said: “Men are born free and equal in rights... The aim of every
political association is the preservation of the practical and imprescriptible rights of man.” The
Constitution of 1791 based on the ideals enshrined in the Declaration could not last as the legislative
assembly that was created under this instrument of government failed to arrest the state of anarchy
in which the country was caught up.
Moreover, what acted as a great impediment in the way of a well-established constitutional
government was the emergence of Napoleonic dictatorship. The monarchy that was terminated in
1789 had its revival in 1799 that continued till the ‘total’ defeat of the Emperor in 1815. The
country witnessed the rise and fall of several unstable monarchs until the Third Republic was
created in 1875. It had a parliamentary government, a constitutional President and a responsible
ministry. It continued till it was shattered by the Second World War in 1940. The Fourth Republic
came into being in 1946 with the parliamentary system of government, a constitutional President
and a responsible executive. Since the government of France failed to check the rise and growth of
revolutionary conditions in its colony of Algeria, a new Constitution came into force in 1958 that
marked the establishment of the Fifth Republic under Charles de Gaulle. The new arrangement
provides for a strong President and a weak Prime Minister with a weaker Parliament. It may be
termed quasi-presidential or quasi-parliamentary. However, keeping in view the very strong
position of the President, it has also been called a ‘monarchist constitution’. The contribution of
France in this regard should be discovered in the fact that here we find the first example of a
constitution frankly based on the ideals of ‘liberty, equality and fraternity.’
Constitutionalism in America: The spirit of the Social Contract of Rousseau had its echo in the
United States also where the Declaration of Independence of 1776 categorically stated that “all
men are created equal: that they are endowed by their Creator with certain unalienable rights that
to secure these rights, governments are instituted among men, deriving their just powers from the
consent of the governed; that, whenever any form or government becomes destructive of these
ends, it is the right of the people to alter or abolish it, and to institute a new government, laying
its foundations on such principles, and organising its powers in such form, as to them shall seem
most likely to affect their safety and happiness.”
Guided by these ideals, the Founding Fathers of the American republic established a form of
federal government based on the principles of separation of powers as so elaborately presented by
a French thinker (Montesquieu) and supplemented it with the principle of checks and balances as
evolved by them. The result was that America came to have a government with executive, legislative
and judicial powers vested respectively in the President, the Congress and the Supreme Court.
The three organs of American government are separated from each other and, at the same time,
they check each other so that the balance may be maintained. Thus, all appointments and foreign
treaties made by the President must be ratified by the Senate; the Congress may remove the
President by the process of impeachment; and the Courts can invalidate any order or decree
issued by the President in case it goes beyond the constitution or is against the due process of law.
Likewise, the Congress cannot make a law that violates the letter and spirit of the Constitution. A
bill passed by the Congress requires the assent of the President and the Courts may invalidate it
if they find that the impugned law is against the constitution or the due process of law. Finally, the
Courts are checked by the authority of the President and the Congress. The Congress may pass a
law to enhance the jurisdiction of the Courts, or the number of the judges and their emoluments
and may also remove a judge by the process of impeachment. The judges of the Supreme Court
and other federal courts are nominated by the President and the Chief Justice acts under an oath
of office that is administered to him by the President.
In this way, the American constitution has materialised the maxim that ‘power cuts power’ or that
‘power checks power’. The result of all these constitutional arrangements has come to be that
democracy in America “rests upon the expectation that lawful conduct is the standard to which
both governments and men will conform.” The most outstanding feature of the development of

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