From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems
Larry Catá Backer
Pennsylvania State University - Dickinson School of Law
September 22, 2008
Penn State Law Review, Vol. 113, No. 3, 2009
Academic and policy engagements with constitutions and constitutionalism have largely been built around unstated frameworks within which legitimated activity can take place. The essay suggests both the disorientation of much of the discussion and proposes a n ideological framework that captures the assumptions about which constitutionalist discourse has evolved. Constitutionalism at one time could be said to involve the study of the peculiarities of the unique domestic constitutional framework through which government was constituted and power institutionalized. No longer. This essay examines the current discourse of constitutionalism. That discourse reveals the current dynamic character of the concept. The old consensus of conventional constitutionalism, that constitutions are legitimately grounded either in domestic law and the unique will of a territorially defined demos, is now challenged by a view that constitutional legitimacy requires conformity with a system of universal norms grounded in an elaboration of the mores of the community of nations. Traditional nationalist constitutionalism looks inward for its ideology as well as its yardstick for measuring others. Transnational constitutionalism looks to the common constitutional traditions of the community of states buttressed by international norms and organizations. The prize for both constitutional traditionalists and transnationalists is control of the mechanics for classifying constitutions, judging them legitimate and creating systems to enforce common conceptions of valid constitution making through international law. Yet, both rising constitutionalist discourse, and the development of values rich governance systems suggests that an animating ideology also underlies constitutionalism as a whole, a broader and more basic ideology than those that underpin the particular values variants of nationalist, transnational, theocratic and rationalist constitutionalism. The object of this essay is to draw from out of current practice and discourse a working description of the meta ideology that is constitutionalism in general. That definition suggests the characteristics of constitutionalism as originating as a system of taxonomy and legitimation that is grounded in a set of normative assumptions about the meaning and purpose of government. These basic presumptions produce an ideology of substantive and process limitations on state power the content of which is the usual focus of constitutionalist debate. The constitutionalist presumptions are rarely contested but serve to divide groups of states on the basis of the sort of normative presumptions on which the state is organized-nationalist, transnational, natural law, theocratic or Marxist Leninist presumptions. Constitutions without legitimacy are no constitution at all, and legitimacy is a function of values, which in turn serve as the foundation of constitutionalism. It is through the construction of those values frameworks that international law has come to play an increasingly important role.
Number of Pages in PDF File: 78
Keywords: constitutionalism, international law, jurisprudence, theocracy, Marxist Leninist constitutions, U.S. constitutional law
JEL Classification: K10, K33Accepted Paper Series
Date posted: September 24, 2008 ; Last revised: January 25, 2009
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