Constitutionalism

Constitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law".

A political organization is constitutional to the extent that it "contain[s] institutionalized mechanisms of power control for the protection of the interests and liberties of the citizenry, including those that may be in the minority" As described by political scientist and constitutional scholar David Fellman:

Constitutionalism is descriptive of a complicated concept, deeply imbedded in historical experience, which subjects the officials who exercise governmental powers to the limitations of a higher law. Constitutionalism proclaims the desirability of the rule of law as opposed to rule by the arbitrary judgment or mere fiat of public officials…. Throughout the literature dealing with modern public law and the foundations of statecraft the central element of the concept of constitutionalism is that in political society government officials are not free to do anything they please in any manner they choose; they are bound to observe both the limitations on power and the procedures which are set out in the supreme, constitutional law of the community. It may therefore be said that the touchstone of constitutionalism is the concept of limited government under a higher law.

 

United States

American constitutionalism has been defined as a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from the people, and is limited by a body of fundamental law. These ideas, attitudes and patterns of behavior, according to one analyst, derive from "a dynamic political and historical process rather than from a static body of thought laid down in the eighteenth century".

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.

The Sense of Justice in John Rawls

One area of Rawls’s work that has received relatively little attention in the literature is his account of moral psychology. The idea of a “sense of justice” is at the heart of this account;according to Rawls it is the primary source of our motivation to act in accordance with principles of justice.

However, Rawls carefully notes that a sense of justice is more than simply being able to follow the rules.

It is the ability to feel or perceive what is fair, and as a result it provides us with “the capacity to understand, to apply, and normally to be moved by an effective desire to act from (and not merely in accordance with) the principles of justice as the fair terms of social cooperation”.

A sense of justice leads one to realize that members of a society need fair terms of cooperation, and it expresses the willingness, if not the desire, to act in relation to others on terms everyone can endorse publicly.

Rawls’s earliest formulation of the idea of a sense of justice is in the 1963 essay, “The Sense of Justice,” which explores Rousseau’s claim that “the sense of justice is a true sentiment of the heart enlightened by reason, the natural outcome of our primitive affections”.

In this essay, Rawls seeks to answer some questions about the capacity for a sense of justice, including what accounts for people doing what justice requires. At bottom, a sense of justice is a feeling or sense of right and wrong, but more specifically it is a sense of fairness. It makes us not want to take advantage of others and it is the source of our feelings of indignation toward those who do. A sense of justice is also the source of our feelings of sympathy for those who are the victims of circumstances that we would call unjust. I will have more to say about these circumstances in a moment, but for now we should note that a sense of justice causes us to perceive, feel, and react in certain ways to certain kinds of situations. This is why Rawls maintains that one’s sense of justice “may be aroused or assuaged, and it is connected not only with such moral feelings as resentment and indignation but also...with natural attitudes such as mutual trust and affection”.

Although a sense of justice leads us to value fairness generally, Rawls’s analysis focuses on circumstances in which individuals are marginalized as a result of circumstances beyond their control, and which dramatically shape their life-prospects. People are born into particular families and thus begin their lives in social positions they have not chosen. These social positions shape one’s hopes and expectations, and the opportunities one has to fulfill those hopes and expectations are determined in part by the political system as well as economic and social circumstances. Rawls is particularly concerned that the basic structure of society can perpetuate these circumstances, when it should help correct them. Rawls observes that “our prospects over life are deeply affected by social, natural, and fortuitous contingencies, and by the way the basic structure, by setting up inequalities, uses those contingencies to meet certain social purposes”.

Rawls has three kinds of contingencies in mind here: (1) one’s social class of origin (the class into which one is born and develops before the age of reason); (2) one’s native endowments (as opposed to one’s realized endowments) and the opportunities one has to develop them due to one’s social class of origin; (3) one’s good or ill fortune, or good or bad luck over the course of life. The latter includes how one is affected by illness and accident, or by periods of involuntary unemployment and regional economic decline.

Rawls notes that these contingencies are the source of especially deep inequalities: “Not only are they pervasive, but they affect men’s initial chances in life; yet they cannot possibly be justified by an appeal to the notions of merit or desert. It is these inequalities, presumably inevitable in the basic structure of any society, to which the principles of social justice must in the first instance apply”.