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Unit 3: Constitutions and Constitutionalism

• According to Wheare, constitutional government “means something more than a government Notes
according to the terms of a Constitution. It means government according to rule as opposed
to arbitrary government; it means government limited by the terms of a Constitution, not
government limited only by the desires and capacities of those who exercise power.”
• Dichotomies may be useful in practice, but a general theory of constitutionalism must take
into account the fact that the regimes stretch along a continuum ranging from complete
authoritarianism to full liberalism and that a replica of this continuum is provided by an axis
stretching from ‘full constitutional government’ to ‘pure non-constitutional rule.’
• The history of the development of constitutionalism is thus a history of the growth of political
institutions that had their first important manifestation in the soils of ancient Greece.
• The Greeks occupy the first place in this direction who had ‘political separatism’ as a marked
characteristic of their life.
• The Greek philosophers like Plato and Aristotle, however, studied the case of political
institutions from an ethical point of view with the result that the political constitutionalism
became a handmaid of normative and moral notions.
• A great change occurred after the eclipse of the city-state system and the establishment of a
great empire under the Romans. The intellectual life became more diffuse and driven into
different channels.
• The imperial rulers of Rome evolved their constitution as a determinate instrument of
government—”a mass of precedents, carried in men’s memories or recorded in writing, of
dicta of lawyers or statesmen, of customs, of usages, understandings and beliefs, upon the
methods of government, together with a number of statutes.”
• Despite this, Roman constitutionalism made certain important contributions to the
development of this concept. They codified their law and laid down the principle of
representative government that came to be the most celebrated principles of constitutionalism.
The two-pronged conception of the legal sovereignty of the Emperor—that his pleasure had
the force of law and that his powers were ultimately derived from the people—persisted for
many centuries and influenced throughout the medieval period the views on the relations
between the rulers and the ruled.
• The invasions of the barbarians caused the emergence of a haphazard political and economic
set up in which the old nomadic relationship informed the formation and character of the
society and political institutions.
• From an economic point of view, it “meant a state of society in which all or a great part of
public rights and duties are inextricably interwoven with the tenure of land, in which the
whole governmental system—financial, military, judicial—is part of the law of private
property.”
• The coronation ceremony in the presence of the chiefs and nobles coupled with the swearing
in ceremony of the king became a clear indication of the fact that the monarch was the holder
of temporal powers in the name of the ultimate authority of his people. These events led to
the growth of democratic constitutionalism.
• The unassailable position, of a single Pope was taken over by a number of despotic rulers
that forced the people to take the matter to the revolution for a final settlement.
• The movement for the democratisation of the system continued with the result that the great
Reform Acts were passed in 1832, 1867 and 1884 that, enfranchised more and more people.
• 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.

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