Rediscovering the Tradition of Resistance Against the Political Power: The Theoretical Roots of Modern Constitutionalism
The concept of “constitutionalism” originates in England of the 17th century. It spread to Western Europe and North America becoming the major doctrine of the three Revolutions of the Modern Age. Constitutionalism aims to achieve “the goal of limiting the absolute political power” through legal tools (Buratti 1). Rooted in ancient political and philosophic thought, constitutionalism passed through many transformations and resulted in the Constitutions of Modern and Contemporary Age.
Contemporary constitutions were influenced by ancient constitutionalism. The first attempts at limiting political power were already reported in ancient Greece. Starting from Aristotle, there were discussions about the best form of government. In the Roman Age, Cicero introduced “Repubblica,” a mixed and balanced form of government. The age of the Roman Empire is characterized by the rise of natural law. It was grounded on God’s will and existed simultaneously with the law cities written by men.
Another concept of ancient constitutionalism useful for the contemporary one is the doctrine of contractarianism. It includes the idea of a social contract between free citizens which resulted in the development of the State and different political institutions (Buratti 6).
Despite the influence of ancient constitutionalism, the development of doctrines was not similar throughout history. Thus, the doctrine typical to western Europe of the Roman Imperial Age, the Middle Ages, and the beginning of the Modern Age favored the development of the Empire and Monarchies.
The period of the Modern Nation-State is characterized by the rapid spread of the Civil law legal system. The State as an order root back to the 15th century. Still, it was not acknowledged until the Peace of Westphalia in 1648 (Buratti 9). Modern State, unlike the Empire or The Church orders, neutralizes feudal and local privileges and resistances and centralizes the political power.
Constitutionalism in the Age of the Modern Revolutions
The three Revolutions of the Modern Age determined the development of western constitutionalism and influenced the changes in the political structures. Finally, they led to the adoption of written constitutions of states and Declarations of Rights. Despite similar roots, national constitutional processes resulted in different traditions.
English constitutionalism was the earliest to be established. England already had some features which empowered it. These were the economic growth of the young bourgeoisie, the conflict between the Crown and the aristocracy, and the existence of the Parliament. Other important factors here were the Common law legal system and the consolidation. From the 13th to the 16th century the role of Monarchy in England became more limited. The courts also favored this process.
The struggle against absolutism continued throughout the first Modern Age. The ideas of republicanism and liberalism were introduced instead. The thought of republicanism was supported by James Harrington. He considered the Republic to be the best form of government. The doctrine of liberalism was expressed by John Locke. His ideas include the separation of powers. Locke is considered to be the author of a new theory of individual rights and of “a perfect synthesis among contractarianism” (Buratti 18).
The first and the second English Revolutions created grounds for the settlement of the constitutional Monarchy. The first Revolution was the result of resistance of the Parliament and courts against the absolute Monarchy. It brought in the first written Constitution. The second “Glorious Revolution” was caused by the desire of the King to expand his powers. Its product was the Bill of rights of 1689.
American constitutionalism was stimulated by the legal order of conies. However, American society differed from English. There was no bourgeoisie with certain economic interests to stimulate constitutional processes which were limited to several Charters until the 18th century.
The American Revolution was caused by economic and political reasons. It introduced the idea of republicanism supported by Thomas Paine and Thomas Jefferson. Jefferson later created the draft of the American Declaration of Independence of 1776. Its main postulates were the equality of men, the existence of fundamental rights, and the right of the people to rebel against an unjust government (Buratti 24).
During and after the Independence War, there were three major steps which determined the development of the American Constitutionalism. The first step is “the settlement of the constitutional orders of the thirteen states of the Union” (Buratti 25). The second step is connected with the start of the settlement of a legal order of the western frontier. The third one is the crisis of the Articles of Confederation. The meeting in Philadelphia in 1787 introduced the draft of the Constitution by James Madison. Despite many discussions, the Constitution was adopted and approved in September 1787.
American Federal Constitution became the document that determined the political life in the thirteen independent states in the years after the Revolution. It outlined the structure of the parliament. Thus, the American authority of legislative power became Congress. It consisted of two chambers, the House of Representatives and the Senate. The President was elected for four years. Moreover, the last article included the process of amendments to the Constitution.
However, the Constitution was not ratified immediately after adoption. The debate on ratification lasted for about a year. To encourage the approval of the Constitution by the people, essays explaining it were issued. They were known as the Federalist Papers and stimulated the approval. Finally, the Constitution came into force in 1791.
In 1789, the French Revolution started. It was important not only for the development of French political and social life but also for the constitutional processes of the western European countries (Buratti 40). The Revolution in the French Republic expanded revolutionary ideas to such countries as Belgium, Netherlands, Italy, and Spain which had no constitutional experience earlier. The Revolution stimulated the rapid development of the structure of the Modern State. French constitutional history can be divided into three periods. These periods include the Constitutional Monarchy, the Democratic Republic, and the Directorial Republic.
There are two ideas similar to all three constitutional traditions. They are “the doctrine of the separation of powers and the acknowledgment of individual rights that have to be protected by the State” (Buratti 48). In England, these principles were expressed in the Bill of Rights. In America, the major document proclaiming these principles was the Declaration of Independence and the Bill of Rights. In France, these principles are set in the Declaration of Rights of Man and Citizen.
The Different Paths of Western Constitutional Law in the 19th Century
The development of constitutional law continued throughout the 19th century. It is characterized by the differences between Anglo-American and European experiences. The Nation-State grew during the 19th century. Historians focus on the ambiguity and tension which existed between “the political premises of constitutionalism and the legal structure of the Nation-State” (Buratti 51). It was more typical for European countries.
The English conventional Constitution passes the way from the constitutional Monarchy to the parliamentary government. The core transformation was the transfer of influence from the Monarch to the Parliament. The Cabinet gained more power. Gradually, the Parliament and the Cabinet were getting more independence from the King. The House of Commons prevailed the House of Lords already in the 19th century. It was partially due to the growth of public opinion. Finally, the Monarch received only the honorific function which was limited to the appointment of the Premier, dissolution of the House of Commons, and signing the bills and acts of the cabinet.
The adoption of the Constitution and the end of the Independence War stimulated both the social and political development of the American society. The constitutional law in the19th century in America developed from the Early Republic to the Civil War. The Federalist party had much support. However, later it lost its positions to the Republican party. It led to the changes in the American Constitution and the political system in the first half of the19th century.
The country expanded to the west. The balance of power changed as well. The powers of the President became stronger while the powers of the Congress and the Courts decreased. This period is also characterized by the sharpening of the issue of slavery in the southern states. Political and social problems resulted in the Civil War of 1861-1865. After the War, the Reconstruction amendments were approved. They became the most important changes in the Constitution since the Federal Bill of rights. These amendments abolished slavery, banned discriminatory laws, and outlined the right to vote.
Europe of the19th century was characterized by liberal constitutionalism. Then the development of democratic principles resulted in the adoption of Constitutions in some countries. The major focus of liberal constitutionalism was on the protection of individual rights and finding the balance of powers. The powers of the State were supposed to be reduced and the freedom of the society was becoming the primary concern. A typical Constitution of that period is characterized by listing individual rights in Declarations or Bills of rights. It is also based on the principles of liberalism. Also, Parliaments became the major institutions of political power.
Constitutionalism in the Age of Democratization
Constitutionalism and democracy continued their development in the 20th century. In America, the abolishment of slavery did not remove the social problems of discrimination, which led to contradictions with democratic principles.
European constitutionalism stuck to the principles of liberal constitutionalism. Except for England, in European countries, the right to vote was provided on the grounds of wealth. In their turn, the Parliaments were not concerned with primary social issues. The transformation of society at the beginning of the 20th century changed the situation. Western constitutionalism transformed. Democratic values came to change liberal. It resulted in the change of governments and more attention to the protection of individual rights.
Analyzing the Pattern of Constitutional Democracy
Contemporary constitutionalism developed under the impact of the events of the Second World War. The division of Europe and the iron curtain were among the major factors which influenced the political processes. The core focus of the post-war constitutions was the preservation of peace and social stability “through cooperation among Nations” (Buratti 92). It opened European Constitutions to international law.
Also, Constitutions became concentrated on the protection of individual rights and issues of equality. Moreover, many European Constitutions gave attention to the role of social organizations. These Constitutions defined the role of the political parties more precisely. On the whole, post-war Constitutions reflect an awareness of the importance of political stability. This stimulated the rationalization of the government. Finally, the Constitution of that time outlined the state power which was grounded on the principles of representative democracy. At the same time, the so-called liberal-democratic constitutionalism became a significant issue.
This category could be applied to all events that happened after the end of the Cold War. It is used to describe a political organization or pattern which is based on specific legal structures that organize its functioning in a certain way. For instance, there are several peculiarities of liberal democratic constitutionalism like frequent elections, freedom of speech, political pluralism, separation of powers, etc. These also gave rise to specific liberal values that became topical at that period. The Western world appraised freedom and democracy as the warranty that the new approach would be established and help to avoid military conflicts.
The Worldwide Expansion of Western Constitutionalism
Constitutional processes, together with those of decolonization, democratization, and economic growth, expanded from the western to other countries. I western Europe, in the time of the Cold war, Greece, Portugal, and Spain abandoned authoritarian regimes and accepted liberal-democratic. The processes of government formation in these countries followed the patterns of other countries. For example, the Spanish government reflects that of Germany.
Constitutionalism spread over the Atlantic area and started decolonization processes in Africa and Asia. The independence of those states led to the launch of constitutional processes. However, they were restrained by tribal conflicts. In South Africa, constitutionalism appeared in the 19th century. The independent state adopted the Constitution which followed western models. At the same time, South America was also impacted by the increased importance of constitutionalism and a specific set of values introduced by it. For instance, Brazil established a democratic form of government with the President as its head.
Several other countries in the region also engaged in the process and reconsidered its approach to power distribution and its transparency. These processes evidence the great impact the Western Constitutionalism had on the world at that period and the high pace of its spread. It became a unique event in global intercourse and altered modern history.
From the Open Constitutional State to the European Constitutional Space
The Constitution of the 20th century considered the negative impact of nationalism and the importance of international cooperation. Thus, European Constitutions were open to international law. After the establishment of the United Nations Organization, the governments reviewed the meaning of countries participating in such organizations. The European Convention on Human Rights appeared as a consequence of the increase of the role of international law and supranational organizations.
The European Union, founded in 1993, follows democratic principles. The EU has features of a constitutional supranational organization and those of an international law organization, mainly directed on the constitutional integration. Though, the existence of this very organization also demonstrates the introduction of a new system of treaties that preconditioned the appearance of the EU and formed its identity. Organizations like NATO could be considered the first source of the EU law and the background for its formation as it formulated terms of partnership and resulted in the increased importance of this kind of intercourse.
Work Cited
Buratti, Andrea. Western Constitutionalism. An Introduction. G. Giappichelli, 2016.