CONSTITUTINALISM

SUBMITTED TO:
Asst. Prof. PriyaR. Mohod
MATS Law School

SUBMITTED BY:
Abeer Mansingh Mahapatra
BA LLB- II Semester

MATS LAW SCHOOL

MATS University
1

MATS Law School

CERTIFICATE OF EXCELLENCE
Is here by granted to
Abeer Mansingh Mahapatra

For his outstanding performance and lasting contribution

on

CONSTITUTIONALISM
Granted: 16 April, 2014

DECLARATION

I hereby declare that the project work entitled CONSTITUTIONALISM submitted to the
MATS University is the original work done by me under the guidance of Mrs.PriyaPromod, Asst.
Professor, MATS Law School, Gullu, Arang, and this project has not performed the basis for the
award of any Degree or diploma and similar project if any.

Abeer Mansingh Mahapatra

ACKNOWLEDGEMENT

I owe a great many thanks to a great many people who helped and supported me during the
completion of this project.
My deepest thanks to Asst. Prof. Priya R. Mohod, the guide of the project for guiding and
correcting various documents with attention and care. She has taken pain to go through the
project and make necessary corrections as and when needed.
I would also like to thank our Institution and other Faculty members without whom this project
would be a distant reality. I would also like to extend my heartfelt thanks to my family and wellwishers.

Thank you

INDEX

Topic

Page no.

Research Methodology

6-7

2
3

Introduction
Definition

8
9-10

Concept of Constitutionalism

11-12

History

13-14

Usage of Constitutionalism

15-16

Seven principles

16-18

8 Constitutionalism in India

18

19

Criticism

10 Conclusion

20

RESEARCH METHODOLOGY:

Research is the process used to collect information and data for the purpose of making business
decisions. The methodology may include publication research, interviews, surveys and other
research techniques, and could include both present and historical information.
Research can be classified in many different ways on the basis of the methodology of research.
The knowledge it creates, the user group, the research problem it investigates etc. The
methodology may include publication research, interviews, surveys and other research
techniques, and could include both present and historical information.
Market research can be either primary or secondary. Primary research is new research, carried
out to answer specific issues or questions. It can involve questionnaires, surveys or interviews
with individuals or small groups.
Secondary research makes use of information previously researched for other purposes and
publicly available. This is also known as 'desk research'. Secondary research includes published
research reports in a library, surveys or the Internet. It can also include scientific reports
produced by medical councils, universities or government
COLLECTING INFORMATION
There are different ways of obtaining and analyzing information:

Questionnaires provide answers to standard questions. These can be carried out by

mail, online or face-to-face and can cover a large number of people.

Interviews are usually one-to-one and focus on a list of questions.

Focus groups enable a number of people to discuss ideas or topics together and
provide a range of views.
Organizations often undertake secondary research first to find out what already is known about
the subject. It is cheaper than setting up primary research.

PRIMARY AND SECONDARY RESEARCH:

Primary research consists of a collection of original primary data. It is often undertaken after
the researcher has gained some insight into the issue by reviewing secondary research or by
analyzing previously collected primary data. It can be accomplished through various methods,
including questionnaires and

telephone

interviews

in market

research,

or

experiments and direct observations in the physical sciences, amongst others.

The term primary research is widely used in academic research, market research and competitive
intelligence.
Secondary research (also known as desk research) involves the summary, collation and/or
synthesis of existing research rather than primary research, where data is collected from, for
example, research subjects or experiments.
The term is widely used in medical research, legal research, and in market research. The
principal methodology in medical secondary research is the systematic review, commonly using
meta-analytic statistical techniques, although other methods of synthesis, like realist reviews and
meta-narrative reviews, have been developed in recent years. Such secondary research uses the
primary research of others typically in the form of research publications and reports.
In a market research context, secondary research is taken to include the re-use by a second
party of any data collected by a first party or parties.

Our research methodology requires gathering relevant data from the specified documents and
compiling databases in order to analyze the material and arrive at a more complete understanding
of racial discrimination in India.
I hope to shed light on what is Constitutionalism.

Introduction
A constitution is not the act of a government, but of a people constituting a government, and a
government without a constitution is power without right. A constitution is a thing antecedent
to a government; and a government is only the creature of a constitution. It seems probable that
Paine means by constitution nothing less than the written constitutions of America or France.
For, he says, the continual use of the word constitution in the English parliament shows there
is none; and that the whole is merely a form of government without a constitution, and
constituting itself with what power it pleases. The act by which the English parliament
empowered itself to sit for seven years, shows there is no constitution in England. It might, by
the same authority have sated any greater number of years, or for life.1
A constitution is the organic or fundamental law of a state . Every country with an established
government has a constitution; Soviet Russia has, and Nazi Germany had, a constitution no less
than the United States. Even having a written constitution does not confer constitutionalism upon
a nation. Many countries, such as the Soviet Union, that have written constitutions do not possess
constitutionalism. Constitutionalism, or its virtual equivalent, the rule of law, may be defined as a
legal order in which the laws are stable, can be known to all, and cannot be subverted by the
caprice of a ruler or official. For instance, constitutionalism is the trait of a government in which
every person charged with the same crime will be tried in the same fashion and, if convicted, will
receive the same sentence regardless of his economic status, political attitudes, or any other
ground for personal distinction.

1 http://www.asmarino.com/articles/1442-constitutionalism
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Definition of Constitutionalism
Constitutionalism, in its most general meaning, is "a complex of ideas, attitudes, and patterns of
behavior elaborating the principle that the authority of government derives from and is limited by
a body of fundamental law".
As described by political scientist and constitutional scholar David Fellman:
Constitutionalism is descriptive of a complicated concept, deeply imbedded in historical
experience, which subjects the officials who exercise governmental powers to the limitations of a
higher law. Constitutionalism proclaims the desirability of the rule of law as opposed to rule by
the arbitrary judgment or mere fiat of public officials. Throughout the literature dealing with
modern public law and the foundations of statecraft the central element of the concept of
constitutionalism is that in political society government officials are not free to do anything they
please in any manner they choose; they are bound to observe both the limitations on power and
the procedures which are set out in the supreme, constitutional law of the community. It may
therefore be said that the touchstone of constitutionalism is the concept of limited government
under a higher law.2
For Arthur Young, a constitution in this sense of a written constitution is a new term; for
Thomas Paine it seems to be the only kind of constitution worthy of the name. Such puddings,
made by a receipt, were to Edmund Burke apparently as repulsive as to Arthur Young. He says
little or nothing about the new American constitutions, but in his opinion nothing could be worse
than the French one. What in the result is likely to produce evil, is politically false, he says;
and that which is productive of good, politically true.3 Certainly, in his view, nothing but evil
had come or could come from that monstrous thing, which, by the courtesy of France, they call
a constitution.

2 http://en.wikipedia.org/wiki/Constitutionalism
9

These statements express very clearly the contrast between the new conception of the conscious
formulation by a people of its fundamental law, the new definition of constitution; and the
older traditional view in which the word was applied only to the substantive principles to be
deduced from a nations actual institutions and their development. The older view was probably
never better indicated than by Bolingbroke, when he said in 1733.3

3 Supra see note 2.

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Concept of Constitutionalism
The modern concept of constitutionalism involves a political system of checks and balances,
regulated by law and designed to protect the liberty of individuals and enable their participation
in politics. A constitution may take written form, as in the American constitution of 1787, or it
may consist of an assemblage of legal statutes and precedents collected over time, as in the
United Kingdom. The word "constitutionalism" did not exist in early modern Europe, but most
of the ideas behind it were frequently expressed. A constitution generally meant the creation of a
law or statute. However, political institutions and individual liberty were long seen as the
products of custom rather than deliberate lawmaking. Checks and balances were thought to be
embodied in a limited monarchy or mixture of monarchy, aristocracy, and democracy. The idea
of the separation of legislative, executive, and judicial powers did not become clear until the
eighteenth century. The idea of constitutionalism requires limitation on government power and
authority established by constitutional law. But according to most constitutional scholars, there is
more to a constitution than constitutional law. A political organization is constitutional to the
extent that it "contains institutionalized mechanisms of power control for the protection of the
interests and liberties of the citizenry, including those that may be in the minority. It is a form of
political thought and action that seeks to prevent tyranny and to guarantee the liberty and rights
of individuals on which free society depends. This definition, drawn mainly from English and
American political history, may be compared with a more formalistic view that regards
constitutionalism as the conduct of politics in accordance with a constitution. The import of this
definition depends on the meaning of constitution, a term that has been variously interpreted in
western political thought. During the American Revolution, Americans conceived of a
constitution as the permanent, binding, and paramount political law of the polity. Although this
theoretical innovation did not end all controversy over the meaning of the concept, it generally
caused constitutionalism to be defined thereafter as the forms, principles, and procedures of
limited government.
The social orders they represent, illustrates this way of limiting government. A second approach
to the problem is through the rule of law. Historical examples of this tradition are the Roman idea
that the law of nature provides a standard of justice for evaluating the legitimacy of government
enactments and the English practice, beginning with Magna Carta, of subjecting the monarchical
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power to legal limits and commonlaw rules protecting the liberty and property of subjects. 4

4 Supra see note 2

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History of Constitutionalism
The tradition of constitutionalism begins in ancient Athens and has had a long, interrupted, and
irregular history to the present day. It has embraced devices of two kinds. Institutional
arrangements of one sort or another have been advocated on the ground that they protected
substantial interests from governmental encroachment. "Checks and balances" have been the
machinery on which most of these contrivances relied; they have been nothing less than a fetish
with constitution-makers. Furthermore, there has been a persistently recurring idea of the
character of law. Two inferences have been drawn from the proposition that law is a rule of
conduct that it is general, and that it is prospective. To implement this conception, the doctrine
of the separation of the legislative from the executive power was introduced, and it will be
argued below that judicial review relies heavily on the same idea.
Among substantial interests property is prominent, and it is natural that the "auxiliary
precautions" which take the form of institutional arrangements should aim at the protection of
property. In the ancient world, with its republican institutions, the propertied class undertook to
defend itself against the propertyless; in the Middle Ages, when kingship was the chief political
institution, property opposed itself to the royal power. But constitutionalism has been used to
protect other interests as well. In Athens in the fourth century before Christ there were
institutional arrangements intended to prevent the democracy from being overthrown by a tyrant.
From the beginning of modern constitution-making in seventeenth-century England, freedom of
conscience has been an object of primary concern. The American constitutions of the eighteenth
century gave great attention to the protection of persons accused of crime.5
More than sixty years ago, Charles Howard McLain opened his classic treatise
Constitutionalism Ancient and Modern with the sentence: The time seems to be propitious for
an examination of the general principle of constitutionalism [] and an examination which
should include some consideration of the successive stages in its development. Today, at the
onset of the 21st century after more than two hundred years of modern constitutionalism, we
have to admit that our knowledge of the history of modern constitutionalism is still next to
5 Supra see note 2.
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nothing. That modern constitutionalism came into being at the end of the 18th century seems to
be beyond dispute. The American and French revolutions constituted, according to Maurizio
Fioravanti, a decisive moment in the history of constitutionalism, inaugurating a new concept
and a new practice Two hundred years later, it is taken for granted that every country in the
world, with the exception of the United Kingdom, New Zealand and Israel, boasts a written
constitution on the basis of modern constitutionalism. But while we acknowledge the global
acceptance of a political principle, singular as it may be, and while scholars such as Bruce
Ackerman have already coined the term world constitutionalism, we uneasily have to admit
that in spite of McIlwain, Fioravanti, and numerous other scholars, we definitely do not know
how all this came about.
Great numbers of comparative studies have been undertaken in constitutional laws and in
constitutional history. Though they generally have enriched our knowledge, they have told us
little about modern constitutionalism and its history. As they departed from the nation-state, they
tended to lack any overruling perspective and usually restricted themselves to piling up
information state by state. In contrast, the most ferocious opponents of modern constitutionalism
already displayed their full awareness of the concept after the conclusion of that decisive event,
the revolution of 1848. They thoroughly denounced what they called the essence and nuisance
of modern constitutionalism, as the title of one book put it, and with it its history and its
principles or essentials. Though their arguments cannot claim any validity today, the
phenomenon they described merits even more attention in our time than it commanded a hundred
and fifty years ago.6

6 http://www.constitution.org/cmt/mcilw/mcilw.htm
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USAGE of Constitutionalism
Constitutionalism has prescriptive and descriptive uses. Law professor Gerhard Casper captured
this aspect of the term in noting that: "Constitutionalism has both descriptive and prescriptive
connotations. Used descriptively, it refers chiefly to the historical struggle for constitutional
recognition of the people's right to 'consent' and certain other rights, freedoms, and privileges.
Used prescriptively its meaning incorporates those features of government seen as the
essential elements of the Constitution.
Prescriptive Use:

In contrast to describing what constitutions are, a prescriptive approach addresses

what a constitution should be. As presented by Canadian philosopher Wil
Waluchow, constitutionalism embodies "the idea that government can and
should be legally limited in its powers, and that its authority depends on its
observing these limitations. This idea brings with it a host of vexing questions of
interest not only to legal scholars, but to anyone keen to explore the legal and
philosophical foundations of the state." One example of this prescriptive approach
was the project of the National Municipal League to develop a model state
constitution.7
Descriptive Use:

One example of constitutionalism's descriptive use is law professor Bernard

Schwartz's 5 volume compilation of sources seeking to trace the origins of the U.S.
7 Supra see note 2.

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Bill of Rights. Beginning with English antecedents going back to the Magna
Carta (1215), Schwartz explores the presence and development of ideas of
individual freedoms and privileges through colonial charters and legal
understandings. Then, in carrying the story forward, he identifies revolutionary
declarations and constitutions, documents and judicial decisions of the
Confederation period and the formation of the federal Constitution. Finally, he
turns to the debates over the federal Constitution's ratification that ultimately
provided mounting pressure for a federal bill of rights. While hardly presenting a
"straight-line," the account illustrates the historical struggle to recognize and
enshrine constitutional rights and principles in a constitutional order.

Seven Principles of Constitutionalism

Checks and balances

Each branch of the national government has

certain controls (over) the other two branches.

Limited Government

Governments power is limited by rule of law

which includes the constitution and the laws
which are passed in the pursuance of the
constitution. This means that government is
not at all powerful.

Individual rights

Personal freedoms, personal protections, and

equality under the law that guaranteed in the
constitution, the bill of rights, and laws of
U.S.
Ultimate power and final authority rest with
we the people or all citizens.

Popular Sovereignty
Republicanism

The people exercise their power by deligating

it to representatives chosen by through the
election process.

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Federalism

States where federal system of government

where power is divided between the national
government and government of states.
Constitution lists the powers of the national
government as well as certain powers denied
by states.

Separation of powers

Power within national government is divided

among three separate branches; Legislative,
Executive, Judiciary

There is indeed a constitutional method distinctive to the modern state, and it is best understood
as possessing a holistic quality. In a nutshell, the holistic method is a method of constitutional
articulation and engagement in which the authority and meaning of the various parts are
understood and treated as dependent on the integrity of the whole. As we shall see, this holistic
feature is no isolated thread, but something that gives texture to the various different aspects of
state constitutionalism. To appreciate this, however, we must first say something more about the
Constitutional concept itself. In so doing, we are no longer concerned, as in the previous section,
with constitutionalism in the abstract as a theoretical concept for making sense of and
evaluating the social world, but with constitutionalism in the concrete as an object already at
use in the social world, and in the social world of the state in particular. Considered as such an
object concept, state constitutionalism can be viewed both diachronically and synchronically.
Diachronically, state constitutionalism in the modern age describes a particular high point of
accumulation of various distinct layers of situated constitutional practice that have operated
separately or in different combinations in the past. These layers are juridical, politicoinstitutional, popular and societal. Synchronically, state constitutionalism operates in terms of its
own particular formulation of these layers and of their relationship with one another.
Constitutionalism in (state) practice behaves, in other words, as a cluster concept, associated
simultaneously with a number of different but themselves interrelated definitive criteria. It is in
each of its four layers or, if you like, in different parts of the cluster - that we can observe
constitutionalism operating holistically, offering an encompassing frame for the constitutive
representation and regulation of each of the particular dimensions of social reality with which it

17

is concerned. This combination of structural primacy, institution-transcending substantive rules,

insulation of rules of constitutional norm production and maintenance from control by the
institutions affected by these norms, and the openness of the same rules to broader forms of
public influence and discipline, provides the key ingredients of a holistic method of
constitutionalism. The parts are supported by the whole both within and across the various
different frames. Particular sector-specific rules and institutions alike depend for their meaning
and authority on their location within broader regulatory and institutional orders, which broader
orders are informed by a similarly wide-reaching and holistic conception of the singular public as
both the source and the receptive environment of constitutional authority.8
It is precisely because the language of constitutionalism, considered as a normative technology,
finds it ever more complex and difficult to address the problems of communal living it poses in
and for a post-state world, that it becomes all the more important to retain the language of
constitutionalism, considered as a symbolic legacy, as an insistent reminder of what and how
much is at stake. The day that constitutionalisms inability perhaps even an expansively
conceived multilevel constitutionalisms inability - to provide stock answers to its abiding
questions becomes a settled reason no longer even to ask these questions is the day that
constitutionalisms historical paradigm will truly have been exhausted.9

Constitutionalism in India
India is a democratic country with a written constitution with a written constitution. Rule of law
is the basic for governance of the country and all the administrative structures are expected to
follow it in both letter and spirit. It is expected that constitutionalism is a natural corollary to
governance of India. But the experience with the process of governance in India in the last six
decades is a mixed one. On the one hand, we have excellent administrative structures put in place

8 https://www.texaslre.org/documents/SevenBasicPrin-USConstitution.pdf
9 http://plato.stanford.edu/entries/constitutionalism/
18

to oversee even the minutest of details related to welfare maximization but crucially on the other
it has only resulted in excessive bureaucracy and eventual alienation of the rulers from the ruled.
Since independence, those religions which were backward remained the same, the gap between
the rich and poor has widened, people at bottom level of the pyramid remained at periphery of
developmental process, bureaucracy retained colonial characters and overall development
remained much below the expectation of the people.10

Criticism
Constitutionalism has been subject of criticism by numerous anarchist thinkers. For example,
Murray Rothberg, who coined the term anarcho-capitalism, attacked constitutionalism, arguing
that constitutionalism is incapable of restraining governments and do not protect the rights of
citizens from their government. Rothberg wrote that is true that, in the united states, at least, we
have a constitution that imposes strict limits on some powers of government. But, as we have
discovered in the past centuries, no constitution can interpret itself; must be interpreted by men
and if ultimate power to interpret a constitution is given to the governments own supreme court,
than the inevitable tendency is for the court to continue to place its imprimatur on ever broader
powers for its own government. Further more, the highly touted checks and balances and
separation of powers. In the American government are flimsy indeed, since in the final analysis
all of this division are the part of same government are governed by the same et of rule.

1. Judicial reforms should be implemented with immediate effect as more than 30 million
cases are pending in various courts all over the country.
2. Criminalization of politics is a bane for democracy and unless urgent steps are taken to
counter it, might see the eventual failings of it.
10 http://www.lawyersclubindia.com/articles/Indian-Constitutionalism-5362.asp
19

3. Political and administrative corruption is a sad reality of Indian administration and this
cancer should be removed from the body of Indian democracy on an emergency basis.
4. Economic backwardness has resulted in antisocial movement in the form of rise of
naxalism. Unless it is curbed it can turn into serious problem for Indian administration.
5. Aspiration of people at the local level are increasing at an exponential manner if they are
fulfilled the mounting frustration are extremely dangerous for functioning if democratic
system.11

CONCLUSION
Constitutionalism is a very vast topic. It cannot be put in words. More research has to be done on
this topic of constitutionalism. Moreover, I can say that constitutionalism is the soul of the
constitution. It is most important rule of law. It is a rule of law which may be defined as a legal
order in which the laws of stable, can be known to all and cannot be subverted by the caprice of a
ruler or official. The purpose of constitutionalism is providing local people autonomy to some
extent as it is saying that ones betterment and countrys development.

11 www.preservearticles.com/2011092714112/what-are-the-important-features-ofconstitution.html
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Bibliography
Books referred:
Constitution by G.P Tripathi
Bare act on Constitution of India

Sites referred:
www.wikipidia.org
www.indiankannon.com
http://www.lawyersclubindia.com/articles/Indian-Constitutionalism-5362.asp
http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780198071617.001.0001/acpro
f-9780198071617

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