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Constitutionalism

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Significance: To restrain political authority and ensure the rights and freedom of the sovereign people, the Framers of the U.S. Constitution constructed an impartial text that delegated specific powers to various governmental institutions.


At the center of the idea of constitutionalism is the fear that if given the chance, government officials will somehow abuse or oppress the people. Therefore, constitutionalism requires that governmental rules and conduct be objective or impartial and that the human tendency to be guided by passion, ambition, and self-interest rather than reason be curtailed by formal, institutional means. In practice, constitutionalism addresses the question of how to balance the will of the community with the need to control and prevent tyranny. In political regimes that are organized around the principle of majority rule, including that of the United States, the majority should get its way more often than not in the policy-making process. However, minorities in these regimes require some protection from the oppressive tendencies of majorities. Constitutionalism mandates that certain principles, mechanisms, and procedures are instituted so as to ensure that the majority prevails in all public decisions except those that interfere with the rights and freedoms of those in the minority.


Origins of Constitutionalism

Constitutionalism began in America in the seventeenth century when the colonists formed voluntary associations and compacts through which they formed a community and ordered the political institutions in a very precise way. These compacts were based on the principle of consent. Citizens agreed to give up some of their natural freedom in exchange for the security and protection of the entire community. They consented to follow the rules laid down by the community, even if those rules impinged on their individual freedoms, so that they could enjoy the enhanced protection of the collective group. In giving the majority the power to make political decisions for the entire community, the colonists were understandably wary of the potential for abuse. They took seriously the need for a limited government that also reflected the general will of the people. Their attitudes were shared by the writers of the Declaration of Independence, the Articles of Confederation, and the Constitution, who chose to express both the ideal of government by consent and the principle of limited power in these fundamental documents. To guarantee the principle of limited government, the U.S. Constitution distributes power between the states and the federal government and between the specific institutions within each level of government. The Constitution further sets up a system of checks and balances in which each branch becomes both a check on the other branches and an institution that is partially responsible for the overall success of the government itself. However, what has become the most powerful symbol of constitutionalism in the modern era is the existence of a list of rights and liberties that identifies certain freedoms retained by the people. In particular, those guarantees found in the Bill of Rights and the Fourteenth Amendment of the U.S. Constitution have been used since the founding of the nation by individuals and groups to limit the power of the majority and to forestall the possibility of tyranny.


The Supreme Court's Role

Since its creation, the Supreme Court has been devoted to preserving and protecting the idea of constitutionalism. The unique position of the members of the Court isolated from the political process through their lifetime tenure and fixed salaries enables them to review the decisions of the community while also protecting minorities from the abuses of the majority. In fact, judicial review has become one of the most powerful weapons in the fight against the tyranny of the majority. The Court, in an opinion written by Chief Justice John Marshall, established the power of judicial review in Marbury v. Madison (1803). The power of judicial review permits the judiciary to refuse to enforce any governmental action that contradicts the Constitution. In the twentieth century the Court continued to preserve the principle of constitutionalism by using its power of judicial review. After the mid-1920's, the Court engaged in a number of cases involving consideration of some very important civil rights and liberties. The Court's willingness to protect minority interests is demonstrated in cases such as Brown v. Board of Education (1954), in which the Court ruled that segregation of public schools violated the Fourteenth Amendment, and Brandenburg v. Ohio (1969), in which the Court used the First Amendment to protect speech meant to incite violence. Later, the Court concluded that legislation preventing the desecration of the flag (Texas v. Johnson, 1989) and policies permitting prayer at public school ceremonies (Lee v. Weisman, 1992) cannot withstand judicial scrutiny because they interfere with some vital freedoms. In these and similar cases, the Court has adhered faithfully to the principle of constitutionalism by limiting the will of the majority and preserving the delicate balance between progress and freedom.



Further Reading

  • Gordon, Scott. Controlling the State: Constitutionalism from Ancient Athens to Today. Cambridge, Mass.: Harvard University Press, 1999.
  • Thompson, Kenneth W., ed. The Political Theory of the Constitution. Lanham, Md.: University Press of America, 1990.
  • Thurow, Sarah Baumgartner, ed. Constitutionalism in America. Lanham, Md.: University Press of America, 1988.