CONSTITUTIONALISM
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."
1
(David Fellman, "Constitutionalism"), vol 1, p. 485, 491-92 (1973-74) ("Whatever particular form of
government a constitution delineates, however, it serves as the keystone of the arch of
constitutionalism, except in those countries whose written constitutions are mere sham.
Constitutionalism as a theory and in practice stands for the principle that there are—in a properly
governed state—limitations upon those who exercise the powers of government, and that these
limitations are spelled out in a body of higher law which is enforceable in a variety of ways, political
and judicial. This is by no means a modern idea, for the concept of a higher law which spells out the
basic norms of a political society is as old as Western civilization. That there are standards of
rightness which transcend and control public officials, even current popular majorities, represents a
critically significant element of man's endless quest for the good life.")
Philip P. Wiener, ed., "Dictionary of the History of Ideas: Studies of Selected Pivotal Ideas",
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."
Leonard Levy, ed., Encyclopedia of the American Constitution, (Gerhard Casper,
"Constitutionalism"), vol 2, p. 473, 473 (1986) ISBN 9780028648804.
