What Is Constitutionalism? 

Bo LI

Perspectives, Vol. 1, No. 6

In my last essay, I discussed the meaning of rule of law. Starting from this essay, I will describe the institutional arrangements that make rule of law possible. Particularly, in this essay, I will discuss an important concept for the study of rule of law, namely, liberal constitutionalism. In the next essay (to be published in the August issue of "Perspectives"), I will analyze the relationship between constitutionalism and rule of law.

What is liberal constitutionalism? In order to answer this question, we first have to answer a more preliminary question: what is a constitution? A constitution is "[a] charter of government deriving its whole authority from the governed" (Black's Law Dictionary). The constitution sets out the form of the government. It specifies the purpose of the government, the power of each department of the government, the state-society relationship, the relationship between various governmental institutions, and the limits of the government. The classic liberalism posits that the state and society can be viewed as a big social contract. If so, in a liberal democratic country, the constitution is the fundamental part of the social contract; it is a fundamental contract between the state and the civil society.

We can also view the constitution as a job description. In a liberal democratic state, the people as a whole hire some officials to administer the government for public good, and the constitution is the employment contract and job description. To be sure, many other laws are also job descriptions for the government, but the constitution is the highest. The constitution is a guide for legislation and for the interpretation of legislation.

In a liberal constitutional system, there is another important difference between the constitution and ordinary laws. While ordinary laws can be modified or repealed by the national legislature, or be declared illegal or unconstitutional by the judiciary, the national legislature usually has no unilateral power to modify or repeal the constitution, and the judiciary has no power to declare the constitution illegal. For example, in the United States, the Constitution can only be modified after the legislatures of three fourths of the states approve, or after constitutional conventions in three fourths of the states approve. The federal legislature alone cannot amend the American Constitution. In other constitutional systems, national referenda are sometimes required for amending the constitution.

Another way to view the constitution is that it is a commitment device. In a liberal democratic state, the constitution binds not only the government, but also the people. Through the constitution, the people collectively commit to certain institutional procedure for managing public affairs and resolving social conflicts. The constitution not only limits the arbitrary power of the government, it also prevents public administration from being poisoned by people's short-term temper and passions. Through the constitution, the people collectively commit to certain checks against those capricious public sentiments.

There is something special about the democratic process of making the constitution. During a constitution-making process, it is hard to differentiate between a majority and a minority because people act with "a veil of ignorance" (although not completely so) when they make the constitution. When a constitution is being made, every citizen faces the possibility of belonging to certain minority group on some future issue, and at the time of making the constitution, it is impossible to predict when and how someone will become a minority with respect to a host of future issues. As such, the danger of "tyranny of majority" is substantially reduced in the constitution-making process. This is one reason why the democratic constitution-making process presents a special, and higher, form of democracy. (cf. Bruce Ackerman's theory of "higher lawmaking.")

We can now return to the task of defining constitutionalism. Like liberty or democracy, "constitutionalism" is also a fuzzy word, and different people have different ideas about what constitutionalism means. Giovanni Sartori defines liberal constitutionalism as constituting the following elements: (1) there is a higher law, either written or unwritten, called constitution; (2) there is judicial review; (3) there is an independent judiciary comprised of independent judges dedicated to legal reasoning; (4) possibly, there is due process of law; and, most basically, (5) there is a binding procedure establishing the method of law-making which remains an effective brake on the bare-will conception of law (Sartori, 1987, p. 309). Sartori's definition emphasizes the "rule of law" side of liberal constitutionalism.

For our purpose, constitutionalism (as a descriptive concept) means a system of political arrangements in which there is a supreme law (generally called "constitution"), in which all (particularly the entire system of government) is governed by the supreme law, in which only the people's will (as defined through some pre-specified institutional procedure, usually through a super-majority voting mechanism) can supersede and change the supreme law, in which changes can only be made infrequently due to the difficulty of garnering the requisite popular support, and in which there are separation of power, checks and balances and an independent judiciary dedicated to legal reasoning to safeguard the supremacy of the constitution. Some writers, thinking that there are more than one kind of constitutionalism and defining constitutionalism loosely as any political system with a constitution (of any kind), would call our description of constitutionalism as "liberal constitutionalism." In this essay, I will use "constitutionalism" and "liberal constitutionalism" interchangeably, because "[c]onstitutional systems, both past and present, are . . . in fact liberal systems" (Sartori, 1987, p. 309).

We can draw several implications from the above definition of constitutionalism. First, constitutionalism is an institutional realization of liberalism. By constraining and regulating the government's power through a supreme constitution, and by preserving the sovereignty of people, constitutionalism ensures that the government is limited. Second, constitutionalism does not recognize the sovereignty of the legislature. Instead, it only recognizes the sovereignty of people. Under liberal constitutionalism, no legislature is supremer than the constitution. The legislature is a creature of the constitution and is governed by the constitution. Third, liberal constitutionalism is based on a particular view of liberalism towards human nature, which is universal self-interest. One basic premise of liberal constitutionalism, as Stephen Holmes puts it, is the fact that "[a]s ordinary men, rulers too need to be ruled" (Holmes, 1995, p. 5). That is, self-interest is universal, and rulers are no exception. Because rulers, like ordinary people, are self-interested, rulers also need to be disciplined and constrained by the rule of law.

In addition, the following quote from Holmes' unconventional book on liberalism is helpful in understanding the concept of liberal constitutionalism:

"Any agency that wields enough power to protect me against the depredations of my neighbor, wields enough power to destroy or enslave me. This paradox lies at the root of modern state-of-nature theory. How can we exit from anarchy without falling into tyranny? How can we assign the rulers enough power to control the ruled, while also preventing this accumulated power from being abused? . . . The liberal-democratic solution to this problem is constitutionalism. Today, there are still a handful of liberal-democratic regimes [such as England] that operate without a written and legally entrenched basic law. But they, too, organize government in a broadly constitutional way, subordinating citizens to the authority of government while simultaneously subordinating government to the authority of citizens. Liberal government is a remarkable innovation for this reason, because it is meant to solve the problem of anarchy and the problem of tyranny within the single and coherent system of rules" (Holmes, 1995, pp. 270-71).

Two caveats are in order. First, a country with a written constitution does not necessarily practice constitutionalism. A constitutional government is a limited government, whereas most socialist constitutions, although written, do not place limits on what the government can do. Second, a country without a written constitution, on the other hand, may actually operate under constitutionalism. The United Kingdom does not have a written document called "The Royal Constitution," but no one doubts that the British government is a constitutional government. Although Britain does not have a single written constitution, it has a number of documents that have constitutional force. These documents include Magna Carta (1215), the Bill of Rights (1689), the Act of Settlement (1701), and certain special acts of the British Parliament. These written documents, together with the British political and legal traditions, form the basis of a constitutional government. In contrast, the United States has a single written document called Constitution. The written American Constitution, together with subsequent judicial interpretations and expansions, form the basis of a constitutional government. The following quote from Gregory Mahler's Comparative Politics is illuminating:

"When we discuss constitutional governments, then, we are really not talking about whether there exists a single, specific document; rather, we are interested in a kind of political behavior, political culture, political tradition, or political history.... The forms may vary, but the behavioral results are the same: Limits are imposed upon what governments may do" (Mahler, 2000, p. 28).

Constitutionalism is about the supremacy of the constitution. How to ensure the supremacy of the constitution? We have seen that the supremacy of the American Constitution is partially sustained by the constitutional mandate that the federal legislature (or any other department of the federal government), as a creature of the federal Constitution, has no unilateral power to amend the Constitution (although the federal legislature can propose amendments). That is, the constitutional constraints on various departments of the government cannot be unilaterally changed by the departments themselves. Otherwise, the constitution cannot be supreme.

Written constraints in the constitution, however, are not constraining by themselves. Tyrants will not become benevolent rulers simply because the constitution tells them to. In order to guard against violations against the letter and spirit of the constitution, there needs to be a set of institutional arrangements. Louis Henkin defines constitutionalism as constituting the following elements: (1) government according to the constitution; (2) separation of power; (3) sovereignty of the people and democratic government; (4) constitutional review; (5) independent judiciary; (6) limited government subject to a bill of individual rights; (7) controlling the police; (8) civilian control of the military; and (9) no state power, or very limited and strictly circumscribed state power, to suspend the operation of some parts of, or the entire, constitution. (See, Henkin, 2000.)

Broadly speaking, Henkin's nine elements of constitutionalism can be divided into two groups, which correspond to two basic functions of a liberal constitution: one concerns power construction and power lodging; and the other deals with rights protection. These two groups of institutional arrangements work together to ensure the supremacy of the constitution, the existence of limited yet strong government, and the protection of basic freedom.

The first function of a liberal constitution is power construction and power lodging. Under liberal constitutionalism, the entire system of government is created by the constitution. The constitution defines, allocates and regulates government power. In a constitutional system, there are frequent elections in order to preserve popular sovereignty. There also exist separation of power and checks and balances. Liberal constitutionalism also suggests the norm of rule of law in the exercise of government power. Finally, a liberal constitution puts limits on discretionary and emergency powers of the state.

The second element of constitutionalism is rights protection. Under liberal constitutionalism, there must be constitutional freedom of speech, freedom of person and freedom of property. In addition, there is usually an independent judicial or non-judicial body that regularly conducts constitutional review of legislative and executive acts. Independent constitutional review, often in the form of judicial review, is essential to the protection of individual rights, and it is also an important element for the preservation of constitutionally mandated separation of power and checks and balances.

We can use the American Constitution to illustrate the two components of constitutionalism. The original 1787 American Constitution was mainly concerned with power construction and power lodging. There were two dimensions along which coercive powers of the American government were distributed: one horizontal, and the other vertical. Along the horizontal dimension, governmental power was divided among three branches of the government: legislative, executive and judicial. Along the vertical dimension, governmental power was divided between federal and state governments.

The American Constitution was amended in 1791 to add the Bill of Rights, which strengthened the rights protection function of the constitution. The initial Bill of Rights contained ten clauses: from the First Amendment to the Tenth Amendment. Additional Amendments were added throughout the last two centuries to provide additional protection for individual rights and to improve the power structure of the government.

Using the American Constitution as an example, we now analyze each component of the liberal constitution more carefully. Under power construction and power lodging, the two key concepts are "separation of power" and "checks and balances." There is a misconception among some Chinese authors, who postulate that separation of power means a complete separation of legislative, executive and judicial powers. One Chinese scholar once asked me why the President of the United States has the power to veto legislative acts? Does not the executive veto power violate the basic axiom of separation of power? Another scholar asked why the Senate conducts the American presidential impeachment trial? Does not it encroach upon the judicial power of the Court? These questions arise because of the aforementioned misconception about separation of power. Indeed, the same misconception formed the basis of one major objection to the 1787 American Constitution. "In the structure of the federal government, no regard, [said the enemies of the 1787 Constitution], seems to have been paid to [the] essential precaution in favor of liberty, [that is, the legislative, executive, and judiciary departments ought to be separate and distinct]. [The enemies of the 1787 Constitution argue that the] several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts" (Federalist Papers, No. 47). The critics of the 1787 Constitution seemed to rely heavily on Montesquieu for the misplaced idea that separation of power implies complete separation of legislative, executive and judicial powers.

The Federalists, particularly James Madison, however, had a different understanding on separation of power. To Madison, enemies of the 1787 Constitution misinterpreted Montesquieu's theory of separation of power. The real meaning of Montesquieu's theory is that, "where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted . . . If we look into the constitutions of the several States, we find that . . .there is not a single instance in which the several departments of power have been kept absolutely separate and distinct" (Federalist Papers, No. 47).

According to the Federalists, the concept of separation of power cannot be understood separately from the concept of checks and balances. Separation of power does not mean a complete separation and absolute demarcation among different branches of the government. A complete separation will make the government chaotic, unworkable and potentially dangerous. This is why separation of power has to be combined with checks and balances. By giving each branch of the government some control over, or as Madison puts it, some "partial agency" in, the other branches, the constitutional system of checks and balances are designed to prevent one branch of the government from becoming too powerful and therefore dangerous. That is, checks and balances work to prevent tyrannical concentration of power. For example, if there is no executive veto power, say the Federalists, then the legislature will eventually get all powers of the government. As Madison puts it, "a mere demarcation on parchment of the constitutional limits of the several departments is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands." To Madison, "unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim (of separation of power) requires, as essential to a free government, can never in practice be duly maintained" (Federalist Papers, No. 48).

In addition to guarding against tyranny, inter-branch checks and balances, examples of which include the executive veto power, the legislature's power to veto certain executive nominations by the President, and the legislature's power to impeach judges, are also designed to make the government as a whole more intelligent and more accountable to the long term interest of the people. For example, the qualified executive veto power subjects legislative acts to double checks of the legislature and the President before they become law, so that the probability that a bad law is to be enacted is reduced. The institution of executive veto power does not rest on the unfounded assumption that the President is smarter than the legislature; instead, it rests on the fact that the legislature is fallible.

To summarize, the "true meaning of [the] maxim [of separation of power]. . . [is] entirely compatible with a partial intermixture of [several] departments for special purposes, preserving them, in the main, distinct and unconnected. This partial intermixture is even, in some cases, not only proper, but necessary to the mutual defense of the several members of the government against each other" (Federalist Papers, No. 66).

Many people probably noticed that the impeachment trial of Bill Clinton was conducted by the Senate of the United States, not by its Supreme Court. Why was it so? How could a legislature have judicial power? Did this arrangement violate the principle of separation of power? For the last question, the answer offered by the Federalists is no. The Federalists offer several reasons why the Senate instead of the Supreme Court properly tries an impeached President. First, the impeachment and removal of a President is essentially a political problem. A political problem should be solved through political processes in a democratically accountable way. Trial by judges, who are not democratically elected, is not democratically accountable. Second, the President is elected by the people, but the judges are not. Facing the extraordinary problem of whether to remove the democratically elected President, the unelected judges lack the fortitude, credit and appearance of authority to make a decision. Third, for an issue of such a magnitude, some public support is very important. In order to garner public support, public opinion needs to be influenced. The Court, with unelected judges, is not equipped to influence the public opinion. Indeed, judges are by design insulated from public sentiment. In contrast, Senators, being representatives of the people of various States, are very good at influencing the public opinion. Fourth, there is a great deal of discretion involved in determining whether to remove the President. For such a grave matter and with so much discretion, it is a good idea to make the decision-making process as safe as possible. It is safer to have more participants in the decision-making process. The Supreme Court, according to Hamilton, has too few members (nine Justices in total). Fifth, impeachment trial by the Senate prevents double jeopardy. In other words, the President will not be tried twice by the Court. If the President is removed, he is still "liable to prosecution and punishment in the ordinary course of law." If the Court is allowed to try both the impeachment charges and the ordinary legal charges, says Hamilton, then "the strong bias of one decision would be apt to overrule the influence of any new lights" that might be brought out after the impeachment trial but before the ordinary charges are tried (Federalist Papers, No. 65 and 66).

There are at least two lessons that we can learn from the institution of presidential impeachment trial in the United States. First, separation of power does not imply complete and absolute separation of various functions of the government. Partial intermixture of powers is sometimes desirable or even necessary in order to serve certain special purposes. Second, there are a number of relevant considerations for a constitutional design of the government, and a constitution also serves a number of different purposes. The actual constitution-making process is one of balancing competing needs of a responsible and efficient government.

An important bulwark of the liberal constitutional structure is the independent constitutional review, often in the form of independent judicial review. What is judicial review? Judicial review is the "power of courts to review decisions of another department or level of government" (Black's Law Dictionary). Specifically, judicial review is the power of courts to review the legislative acts of the legislature and the administrative acts (either general regulations or specific acts) of the executive branch. In a federal system such as that of the United States, judicial review also includes the power of federal courts to review the acts of the state governments (both legislative and administrative) for potential violations of the federal Constitution and other federal laws. Of course, in order to have judicial review, a person or entity has to first bring a suit into a court to challenge certain legislative or administrative act.

In the United States, one of the key authorities and the ultimate authority that the courts rely on in conducting judicial review is the American Constitution. American courts have the power to invalidate legislative or administrative acts of other departments for violations of the Constitution. American courts also enjoy the exclusive right to interpret the Constitution. These are generally true both at the federal level and at the state level. That is, similar to federal courts, state courts usually have the power to interpret state constitutions and review acts of state legislatures and other branches of the state governments. Because of the power of independent judicial review, American courts, consisting of independent judges dedicated to legal reasoning, become a bulwark against legislative and administrative encroachments on the letter and spirit of the American Constitution. As such, the supremacy of the Constitution is protected.

A question arises naturally. How to constrain the judges? How to prevent judicial encroachments on the letter and spirit of the constitution? Under the American Constitution, there are several constraints on the power of the judges. First, federal judges can be impeached by the Congress and removed by the Senate for abuse of power. Second, judicial restraints and binding precedents are the predominant legal culture and, in the case of following precedents, is the required code of judicial conduct in the common law system of the United States. Third, various rules of legal interpretation place another set of judicial constraints on the power of the judges. Fourth, sharp and timely academic and professional critique of judges' decisions and reasoning, and the widespread press coverage, also work toward disciplining the judges. Finally, there are active professional disciplinary actions conducted by professional organizations of judges and lawyers.

It is probably illuminating to compare the Chinese constitutional system with the American constitutional system. In China, the national legislature (the National People's Congress, or the NPC) has the power to write, amend and modify the Constitution. In other words, the Chinese Constitution is a creature of the NPC, not vice versa. The NPC also has the exclusive power to interpret the Constitution. The NPC, as the supreme state organ, is above the executive department (the State Council) and the judiciary (the People's Court). There is no separation of power or checks and balances because the NPC is above all and is in theory omnipotent. The judiciary is not independent from the will of the NPC, and there is almost no judicial review (except to the extent of the Administrative Litigation Act, which only authorizes the court to review certain specific administrative acts of the executive agencies of the government). Finally, for the existing, and very limited, judicial review in China, the Constitution cannot be cited as an authority. In other words, China does not have constitutional jurisprudence.

Let us now turn to the second component of liberal constitutionalism, which is rights protection. The 1787 American Constitution did not have a Bill of Rights. In fact, the absence of a Bill of Rights was one objection raised by the opponents of the 1787 Constitution. The Federalists, defending the 1787 Constitution, argued in 1787 that there was no need to have a Bill of Rights in the Constitution. One of the reasons that the Federalists gave was that a Bill with enumerated rights actually could provide excuses for a tyrannical government to invade rights that were not included in the plain language of the enumeration. The Federalists won in 1787, but their point of view on the Bill of Rights was abandoned in 1791, when the American Constitution was amended to add a Bill of Rights, initially containing ten clauses.

One key player in the constitutional system of civil and political rights is the judges. Judicial independence and constitutional review are not only important for maintaining the supremacy of the Constitution and the constitutional system of checks and balances, they are also important for the protection of individual rights. The American judges are not under the control of any other department of the government, nor are they constrained by the temporary will of the majority because they are not elected officials and they have lifetime tenure. They can protect people's rights and uphold justice, sometimes even against the popular will, because they do not need to worry about re-elections or salary cuts -- judges' salaries can only rise during their tenure -- and they are not subject to the arbitrary control of other departments of the government. Judicial independence and judicial review are a key part to the system of rights protection in the United States.

How are constitutional rights protected by the court? One example should help. The Fifth Amendment of the American Constitution states that "[n]o person shall . . . be deprived of life, liberty, or property, without due process of law." The Fourteenth Amendment states that "[n]o state shall . . . deprive any person of life, liberty, property, without due process of law." What is due process? In short, due process means certain procedural rights, such as the right to notice, right to hearing, right to counsel, right to an impartial judge, etc., that a citizen possesses when his or her life, liberty or property is facing the danger of being deprived by the government pursuant to certain laws. (There is also the concept of "substantive due process" in American constitutional jurisprudence, but that doctrine has largely died out.) Due process might mean different procedural safeguards when the context is different, but its core meaning is the same. The basic idea is that a person is entitled to certain procedural protection when he or she is confronted with the coercive power of the government. The idea is fundamentally liberal. American judges, being independent from other branches of the government and also from the popular will, are empowered to make sure that individuals are entitled to procedural protections before their life, liberty or property are deprived by the government.

Due process is one concept under the larger rubric of procedural justice. As we discussed in the last essay, there are two kinds of justice. One is procedural (or formal) justice, and the other is substantive justice. Procedural justice means just procedures and processes, substantive justice means just outcomes and results. For example, if in truth a person has killed another person, substantive justice requires that the killer be punished according to law. However, if the killer is illegally tortured by the police to confess to his or her crime and, as a result of the confession, the police finds conclusive evidence (such as the weapon, the body of the victim, etc.) for the court to convict the killer (which results in substantive justice), there is no procedural justice because the process of finding guilt has violated the basic rights of the killer, who, before the conviction, is a citizen entitled to the full protection of the Bill of Rights.

The more likely outcome in our killer example, however, is that the jury will not have enough evidence to convict the killer. Under the well established law of criminal procedure in the United States, the killer's confession as well as the items found as a result of the confession will not be admitted into the court as evidence, because they are all direct results of egregious violations of basic individual rights. In other words, the judge would "exclude" the confession as well as the resulting items from evidence in order, first, to ensure a fair and just guilt-finding process; second, to protect constitutional rights of individuals. The judge-made exclusionary rules in the law of evidence is a powerful guardian of individual rights in the United States.

One comment is in order. For the constitutional protection of individual rights to be operative and effective, there needs to be an array of institutional arrangements. For example, constitutional provisions require legislative implementation and judicial interpretation. The law, either legislature-made or judge-found, must specify legal responsibilities for violations of rights as well as remedies and procedures for victims. There are two problems with China's protection of individual rights and achievement of justice in the context of criminal investigation, prosecution and adjudication. First, although there are general declarations of individual rights in the Chinese Constitution, in the written law there are few rules indicating the legal consequences of violations of individual rights (e.g., police abuse in criminal investigation). As a result, in criminal investigation and prosecution police abuse is rampant, established procedures and rules are often twisted or violated, individual rights are not effectively protected, and injustice is frequently the result. Secondly, since there are no specific provisions regarding the credibility of illegally obtained evidence (such as through torture) in criminal prosecution, judges enjoy wide-open discretion. The unconstrained discretion of the Chinese judges contributed to inconsistent and arbitrary decisions and judicial corruption. I will discuss various specific institutional arrangements necessary for effective constitutionalism and protection of individual rights in a future essay.

I have described the meaning of liberal constitutionalism in this essay. In the next essay (to be published in August), I will discuss the relationship between constitutionalism and rule of law. My thesis will be that, first, constitutionalism is a necessary foundation of rule of law; secondly, liberal constitutionalism guarantees the justice of both the content and the form of law; thirdly, liberal constitutionalism strikes a proper balance between rule of law and rule of person; and finally, constitutionalism is safeguarded by the rule of law.

(The author is an attorney with the New York law firm of Davis Polk & Wardwell.)

References:

1. Hamilton, Alexander, James Madison and John Jay. The Federalist Papers. London: Everyman, 1996.

2. Henkin, Louis. "Elements of Constitutionalism." Unpublished Manuscript, 2000.

3. Holmes, Stephen. Passions and Constraint: On the Theory of Liberal Democracy. Chicago: University of Chicago Press, 1995.

4. Mahler, Gregory. Comparative Politics: An Institutional and Cross-National Approach. Upper Saddle River, New Jersey: Prentice Hall, 2000.

5. Sartori, Giovanni. The Theory of Democracy Revisited. Chatham, New Jersey: Chatham House, 1987.