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Unit 3: Constitutions and Constitutionalism

social and economic rights of the people, guarantee of freedom for the channels of mass Notes
communication and the like. We should understand the significance of this motto that the best
way to defend freedom is to have it and to struggle for it.
A new definition of the term constitutionalism should be thus furnished that it “embodies the
simple proposition that the government is a set of activities organised by and operated on behalf
of the people, but subject to a series of restraints which attempt to ensure that the power which is
needed for such governance is not abused by those who are called upon to do the governing.
There is no apparent reason why a greater or lesser amount of such governmental activities
should be incompatible with effective restraints provided the concentration of power in one group
or man is guarded against.”
A very ticklish problem has been created by the philosophy and practice of socialism that has
contributed to the modification of the meaning of constitutionalism. We may agree with the
observations of ‘western’ writers that the ideology of scientific socialism as contained in the works
of Marx, Lenin, Stalin, Mao and others refutes the very essence of constitutionalism, since it
combines an advocacy of force and violence during the revolutionary and post-revolutionary
periods and “a ready acceptance of the dictatorship of the working class with a vague and anarchical
type of democracy after all classes except the labour class have been destroyed.” Opposed to this
is the interpretation of democratic socialism that takes the state as a ‘welfare agency’ whereby it
(state) is treated as a great balancer of different interests and classes of society.
This is the age of nationalism, democracy and socialism. Hence, the concept of constitutionalism
must imbibe the ideals of all the three. If English constitutionalism can accommodate the philosophy
and practice of Fabianism, or if the constitution of China can accommodate the thought of Socialism
with Chinese characteristics, or if the Indian Constitution can be successfully run by those
irrevocably wedded to realise the ideal of a socialist pattern of society or to establish a socialist
cooperative commonwealth, it can be easily suggested that constitutionalism “is combinable with
a considerable variety of economic patterns. Constitutionalism rests upon a balance of classes in
society. But this balance is not a hard and fast one, it is an equipoise of mechanical weights, but
rather a moving equilibrium of a kaleidoscopic combination of interests. The government, through
the parties, operates as a balancer of these combinations.”
The outlook for constitutionalism must recognise the significance of the concept of federalism as
well that desires a new interpretation of the idea of sovereignty in the national and international
spheres. It is the device of federalism that can realise the ideal of ‘unity in diversity’. It is this
device alone that can bring about a happy reconciliation between local and regional, or regional
and national interests in a way so as to strengthen the very framework of the constitutional state.
Examples should be cited of the United States, Switzerland, Canada and South Africa to show
how the problems of a multi-national constitutional state have been solved by adopting the device
of federalism. Even a unitary state adopts the policy of ‘devolution’ of powers to have a well-
ordered constitutional system as we find in the cases of Britain and France. What has happened to
the astonishment of all, in this direction, is that a modern federal state, though based on the
principle of division of powers, has struck a good balance between the principle of the distribution
of powers and their concentration in the hands of the national government. May has, therefore,
observed that a federal system “falls somewhere between a unitary government and a loose
association of sovereign states.”
Not a mere territorial division of powers but a functional division also can make the device of
federalism more meaningful. A federal plan should be devised so that the society, apart from
being a federation of territorial units is also a federation of all kinds of associations in which all
people “do in practice express themselves far more freely than they do through the normal political
organisation. It implies the establishment of semi-sovereign bodies with definite rights within the
sphere of their action corresponding to such rights at present enjoyed by the federating units in
such federations as the United States and the Commonwealth of Australia, the difference being
that they would have no political but economic, religious or social functions. The state would, of
course, remain, as it is bound to remain, to coordinate these new parts and maintain order among
them. But in this case the state becomes an association of interests which every citizen can appreciate.

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