(Em)Powering the Constitution: Constitutionalism in a New Key
Global Jurist, Vol. 9, No. 2, 2009
Posted: 18 Jun 2009 Last revised: 19 Sep 2010
Date Written: 2009
The idea of limited government is the key to constitutionalism in the traditional understanding of the relationship between the constitution and political power. In contrast to the traditionalist view that the constitution is aimed to constrain political power, this essay aims to explore a new understanding of constitutionalism. By way of analyzing the multiple functions of the constitution and taking up the concept of “total constitution” associated with the growing horizontal effect of constitutional rights, this essay argues that the relationship between the constitution and political power needs to be recast on complementary rather than opposing terms. The aspiration to “total constitution” in the sense of a fulfilled constitutionalism is substantiated by the omnipotent constitutional state. Taking account of constitutional omnipotence, political power is instrumental rather than antagonistic to the normative implementation of constitutionalism. Recasting the constitution as an expression of political power is the key to a new understanding of constitutionalism.
Keywords: constitutionalism, total constitution, shaded constitutionalism, constitutional omnipotence, constitutional state, political modernity, horizontal effect, the protective function of the state, fundamental rights
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