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What is the Right to Vote?

The Right to vote

The Value of the Right to Vote

Fundamental law empowering and limiting government

One of the most salient features of constitutionalism is that it describes and prescribes both the source and the limits of government power. William H. Hamilton has captured this dual aspect by noting that constitutionalism "is the name given to the trust which men repose in the power of words engrossed on parchment to keep a government in order."

Constitutionalism vs. constitutional questions

The study of constitutions is not necessarily synonymous with the study of constitutionalism. Although frequently conflated, there are crucial differences. A discussion of this difference appears in legal historian Christian G. Fritz's American Sovereigns: The People and America's Constitutional Tradition Before the Civil War, a study of the early history of American constitutionalism. Fritz notes that an analyst could approach the study of historic events focusing on issues that entailed "constitutional questions" and that this differs from a focus that involves "questions of constitutionalism." Constitutional questions involve the analyst in examining how the constitution was interpreted and applied to distribute power and authority as the new nation struggled with problems of war and peace, taxation and representation.

However,

“ "[t]hese political and constitutional controversies also posed questions of constitutionalism – how to identify the collective sovereign, what powers the sovereign possessed, and how one recognized when that sovereign acted. Unlike constitutional questions, questions of constitutionalism could not be answered by reference to given constitutional text or even judicial opinions. Rather, they were open-ended questions drawing upon competing views Americans developed after Independence about the sovereignty of the people and the ongoing role of the people to monitor the constitutional order that rested on their sovereign authority." ”

A similar distinction was drawn by British constitutional scholar A.V. Dicey in assessing Britain's unwritten constitution. Dicey noted a difference between the "conventions of the constitution" and the "law of the constitution." The "essential distinction" between the two concepts was that the Law of the Constitution was made up of "rules enforced or recognised by the Courts," making up "a body of 'laws' in the proper sense of that term." In contrast, the Conventions of the Constitution consisted "of customs, practices, maxims, or precepts which are not enforced or recognised by the Courts" yet they "make up a body not of laws, but of constitutional or political ethics."

Constitutionalism and Constitutional Economics

Constitutionalism has been the subject of criticism for its previous ignorance of economic issues but this criticism is now taken into account by the development of constitutional economics. Constitutional economics is a field of economics and constitutionalism which describes and analyses the specific interrelationships between constitutional issues and the structure and functioning of the economy. The term “constitutional economics” was used by American economist – James M. Buchanan – as a name for a new academic sub-discipline. Buchanan received in 1986 the Nobel Prize in Economic Sciences for his “development of the contractual and constitutional bases for the theory of economic and political decision-making.” Buchanan rejects “any organic conception of the state as superior in wisdom, to the individuals who are its members.” This philosophical position is, in fact, the very subject matter of constitutional economics.

A constitutional economics approach allows for a combined economic and constitutional analysis, helping to avoid a one-dimensional understanding. Buchanan believes that a constitution, intended for use by at least several generations of citizens, must be able to adjust itself for pragmatic economic decisions and to balance interests of the state and society against those of individuals and their constitutional rights to personal freedom and private happiness. Constitutional economics draws substantial inspiration from the reformist attitude which is characteristic of Adam Smith’s vision, and that Buchanan’s concept can be considered the modern-day counterpart to what Smith called “the science of legislation.” Concurrently with the rise of academic research in the field of constitutional economics in the U.S. in the 1980s, the Supreme Court of India for almost a decade had been encouraging public interest litigation on behalf of the poor and oppressed by using a very broad interpretation of several articles of the Indian Constitution. This is a vivid example of a de facto practical application of the methodology of constitutional economics.

The Russian school of constitutional economics was created in the early twenty-first century with the idea that constitutional economics allows for a combined economic and constitutional analysis in the legislative (especially budgetary) process, thus helping to overcome arbitrariness in the economic and financial decision-making: for instance, when military expenses (and the like) dwarf the budget spending on education and culture. In the English language, the word “constitution” possesses a whole number of meanings, encompassing not only national constitutions as such, but also charters of public organizations, unwritten rules of various clubs, informal groups, etc. The Russian model of constitutional economics, originally intended for transitional and developing countries, focuses entirely on the concept of state constitution. In 2006, the Russian Academy of Sciences officially recognized constitutional economics as a separate academic sub-discipline. Since many a country with transitional political and economic system continues treating its constitution as an abstract legal document disengaged from the economic policy of the state, the practice of constitutional economics becomes there a decisive prerequisite for democratic development of the state and society.

Examples

Descriptive use

Used descriptively, the concept of constitutionalism can refer chiefly to the historical struggle for constitutional recognition of the people's right to "consent" and certain other rights, freedoms, and privileges.

United States

In U.S. History, constitutionalism—in both its descriptive and prescriptive sense—has traditionally focused on the federal Constitution. Indeed, a routine assumption of many scholars has been that understanding "American constitutionalism" necessarily entails the thought that went into the drafting of the federal Constitution and the American experience with that constitution since its ratification in 1789.

There is a rich tradition of state constitutionalism that offers broader insight into constitutionalism in the United States. While state constitutions and the federal Constitution operate differently as a function of federalism—the coexistence and interplay of governments at both a national and state level—they all rest on a shared assumption that their legitimacy comes from the sovereign authority of the people or Popular sovereignty. This underlying premise—embraced by the American revolutionaries with the Declaration of Independence—unites the American constitutional tradition. Both the experience with state constitutions before—and after—the federal Constitution as well as the emergence and operation of the federal Constitution reflect an on-going struggle over the idea that all governments in America rested on the sovereignty of the people for their legitimacy.

United Kingdom

The United Kingdom is perhaps the best instance of constitutionalism in a country that has an uncodified constitution. A variety of developments in seventeenth-century England, including "the protracted struggle for power between king and Parliament was accompanied by an efflorescence of political ideas in which the concept of countervailing powers was clearly defined," led to a well-developed polity with multiple governmental and private institutions that counter the power of the state.

Polish–Lithuanian Commonwealth

From the mid-sixteenth to the late eighteenth century, the Polish–Lithuanian Commonwealth utilized the liberum veto, a form of unanimity voting rule, in its parliamentary deliberations. The "principle of liberum veto played an important role in [the] emergence of the unique Polish form of constitutionalism." This constraint on the powers of the monarch were significant in making the "[r]ule of law, religious tolerance and limited constitutional government ... the norm in Poland in times when the rest of Europe was being devastated by religious hatred and despotism."

Prescriptive use

The prescriptive approach to constitutionalism addresses what a constitution should be. Two observations might be offered about its prescriptive use.

• There is often confusion in equating the presence of a written constitution with the conclusion that a state or polity is one based upon constitutionalism. As noted by David Fellman constitutionalism "should not be taken to mean that if a state has a constitution, it is necessarily committed to the idea of constitutionalism. In a very real sense… every state may be said to have a constitution, since every state has institutions which are at the very least expected to be permanent, and every state has established ways of doing things." But even with a "formal written document labelled [sic] 'constitution' which includes the provisions customarily found in such a document, it does not follow that it is committed to constitutionalism…."

• Often the word "constitutionalism" is used in a rhetorical sense – as a political argument that equates the views of the speaker or writer with a preferred view of the constitution. For instance, University of Maryland Constitutional History Professor Herman Belz's critical assessment of expansive constitutional construction notes that "constitutionalism . . . ought to be recognized as a distinctive ideology and approach to political life…. Constitutionalism not only establishes the institutional and intellectual framework, but it also supplies much of the rhetorical currency with which political transactions are carried on." Similarly, Georgetown University Law Center Professor Louis Michael Seidman noted as well the confluence of political rhetoric with arguments supposedly rooted in constitutionalism. In assessing the "meaning that critical scholars attributed to constitutional law in the late twentieth century," Professor Seidman notes a "new order ... characterized most prominently by extremely aggressive use of legal argument and rhetoric" and as a result "powerful legal actors are willing to advance arguments previously thought out-of-bounds. They have, in short, used legal reasoning to do exactly what crits claim legal reasoning always does - put the lipstick of disinterested constitutionalism on the pig of raw politics."

United States

Starting with the proposition that "'Constitutionalism' refers to the position or practice that government be limited by a constitution, usually written," analysts take a variety of positions on what the constitution means. For instance, they describe the document as a document that may specify its relation to statutes, treaties, executive and judicial actions, and the constitutions or laws of regional jurisdictions. This prescriptive use of Constitutionalism is also concerned with the principles of constitutional design, which includes the principle that the field of public action be partitioned between delegated powers to the government and the rights of individuals, each of which is a restriction of the other, and that no powers be delegated that are beyond the competence of government.

See also

• Constitution
• Constitutional economics
• Constitutional law
• Social contract
• Libertarianism
• Rule of law
• Separation of powers
• Judiciary
• Rule According to Higher Law

External links

• Wil Waluchow. "Constitutionalism". In Zalta, Edward N. (ed.). Stanford Encyclopedia of Philosophy.