CONSTITUTION
During the age of constitutionalism, the enactment of the Declaration of rights of
the man and citizen, allowed for the recognition of the separation of powers and
the guarantee of rights as the main characteristics of a constitution. In fact in the
Declaration, it is stated that a State that does not guarantee rights or the
separation of powers does not have a Constitution.
The reason why the separation of powers is so important for the guarantee of
rights is that following Locke’s line of thought, a concentration of powers in the
hands of one or a group of a few people, will probably lead to despotism.
Constitutions may be flexible or rigid. Bryce distinguished flexible constitutions
from rigid ones as the former proceed from the same authorities that make the
ordinary laws (As a consequence, they do not require special procedures to be
changed or modified and are promulgated in the same way as ordinary law) while
the latter proceed from a different source from that whence spring the other laws,
is enacted not by ordinary legislation but by higher and especially empowered
person or body and exerts a superior force. Flexible constitutions come from the
common law legal system: these constitutions are the consequence of the
traditions, customs and beliefs of the people that have changed although not
completely altered the main lines of the constitution in the centuries. Rigid
constitutions come from the fear of people not to see their rights protected;
however, in these cases flexibility comes from the minds of Judges. In fact, as
stated in the Declarations, people always have the right to review, reform and alter
their constitution. A generation can not be subject to other generations’ needs and
demands due to different economic, political and social issues.
Constitutionalism is defined as a method through which limits on governmental
powers are established and maintained. This is the reason why constitutionalism
and the rule of law may be considered interrelated as they both have the function
to decrease the risk of the abusive use of political power. The dominant
understanding of the rule of law is that it represents the ideal state of a legal
system in which people can lead their lives with sufficient knowledge on how their
government can exercise it coercive powers and on how they should behave by
respecting general, public, clear and reasonable rules. Whenever rulers overuse
their powers that the populace agreed to entrust them with, these powers may be
reclaimed and even violent resistance may be justified.
Constitutionalism can be used to define the distinction between private sphere, in
which the individual is free to behave as pleased, and the public sphere in which
the idea of “good” is not subjective but given by the law and as to be respected in
order not to crash the already fragile sphere.
Constitutionalism and contradictions:
- a stature can not be unconstitutional because it is enacted by a legilslature
that draws its authority from the constitution and remains valid until
annulled by the body entitled to do so. A statute cant be unconstitutional
because it’d mean that is invalid and an invalid statute is not even a statute.
- it should not be that a text in order to be understood has to interpreted
leaving authorities the discretional and interpretative power. At some stage,
lawyers or judges have to find a common basis through which they can
interpret statutes. Communication and agreement between lawyers is the
prerequisite for constitutionalism to effectively function.
Constitutionalism and democracy:
COUNTER-MAJORITAN DIFFICULTY happens when judges/ directly unelected
authorities override statues or not apply them because in contrast with
constitutional provisions.