Emerging Trends in The Social and Behavioral Sciences

Constitutionalism

Item

Title

Constitutionalism

Author

Whittington, Keith E.

Research Area

Social Institutions

Topic

Government Systems

Abstract

Constitutionalism is the practice of regulating politics with a constitution. The means by which constitutions attempt to regulate politics are various, ranging from the design of political structures to the judicial enforcement of constitutional law. These constitutional features have given rise to robust literatures approaching the subject from both normative and empirical perspectives. Normative debates have focused on the purpose, content, methods, and authority of constitutionalism. Empirical investigations have taken into account both the development of particular constitutional institutions and practices within particular polities and broader questions of constitutional design

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Identifier

etrds0051

extracted text

Constitutionalism
KEITH E. WHITTINGTON

Abstract
Constitutionalism is the practice of regulating politics with a constitution. The means
by which constitutions attempt to regulate politics are various, ranging from the
design of political structures to the judicial enforcement of constitutional law. These
constitutional features have given rise to robust literatures approaching the subject
from both normative and empirical perspectives. Normative debates have focused on
the purpose, content, methods, and authority of constitutionalism. Empirical investigations have taken into account both the development of particular constitutional
institutions and practices within particular polities and broader questions of constitutional design

INTRODUCTION
Constitutionalism is the practice of regulating politics with a constitution.
The idea of constitutionalism has deep roots, but is generally thought
to have undergone something of a transformation in the Enlightenment
period. A long tradition running from Aristotle through the William Blackstone emphasized the ubiquity of constitutions. Every state was organized
somehow; every community pursued some idea of the political good. In
every state, complaints that political actors are violating the constitution
are understood to indicate that their actions were ill-advised and wrong.
Revolutionary writers like Tom Paine helped shift the logic of constitutionalism from a description of a governmental structure and set of political
precepts to a fundamental law. In modern terms, unconstitutional actions
were invalid actions. Modern constitutionalism defined the boundaries of
political authority (Sartori, 1962).
If constitutionalism is the regulation of politics by means of a constitution,
there remains uncertainty about why and how constitutions might play that
role. Government officials have their own authority to act, and they certainly
have the resources with which to act. Strictly speaking, modern constitutions claim to be the source of authority for government officials, but as a
practical matter political actors can appeal to other sources of support, from
Emerging Trends in the Social and Behavioral Sciences. Edited by Robert Scott and Stephen Kosslyn.
© 2015 John Wiley & Sons, Inc. ISBN 978-1-118-90077-2.

1

2

EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

electoral mandates to public safety. The challenge for constitutionalists is to
successfully cabin such autonomous action and bring government officials
more fully within the constitutional framework, to “bond word and polity”
(Harris, 1993).
FOUNDATIONAL RESEARCH
THE PROBLEM OF CONSTITUTIONAL PURPOSES
Modern conceptions of constitutionalism have tended to emphasize somewhat different purposes for constitutionalism than did older conceptions. In
particular, modern ideas about constitutionalism are closely allied with the
liberal political tradition. Giovanni Sartori (1962, p. 855) insisted that constitutions “restrict arbitrary power and ensure a ‘limited government.’” The
goal of liberal constitutions is to tie the hands of government officials in order
to protect individual rights. Historians have traced the long process by which
the intermingled traditions of constitutionalism and liberalism have developed a robust idea of limited government and individual rights (Friedrich,
1941; Wormuth, 1949).
The specifics of those limits on government have long been debated. Over
the course of the nineteenth century, rights were often framed in terms of
property (Ely, 2007). Even when personal liberty was at stake, the metaphor
of property often framed the discussion of what rights individuals possessed.
Rights were never understood to be absolute, however. Common law distinctions carried over into the understanding of constitutional guarantees.
Liberty was thought to be distinguishable from license, the abuse of liberty.
Actions against the common good could not properly be regarded as liberty, for true liberty was compatible with the public good (Novak, 1996). The
abuse of liberty can be known by the damage that it causes to others, and
thereby appropriately restricted. Actions that caused no damage to others
were to be protected from restraint.
In the twentieth century, rights were reconceptualized. Conflicts over
industrial capitalism led in turn to struggles over how the government could
regulate property and traditionally protected liberties. The old conceptual
framework that emphasized property and the compatibility of rights and the
public good was abandoned. In its place arose efforts to distinguish among
rights, identifying some as more fundamental than others. Property itself
was downgraded to the status of a lesser right that could be readily regulated
as seemed useful. Rights designated as fundamental could be restricted only
in exceptional circumstances. In the United States, the restriction of such
rights has triggered judicial strict scrutiny, in which minimally necessary
restrictions could be justified to advance only compelling governmental

Constitutionalism

3

interests, such as protecting life. In Europe, such restrictions are subject
to proportionality review in which the effectiveness and necessity of the
restriction and the importance of the governmental interest are evaluated
(Alexy, 2002).
With the shift to fundamental rights analysis, the correct identification
of whether a given action can be characterized as a protected right and if
so how elevated such a right might be becomes crucial. Within American
law, this has given rise to a concern over a constitutional double standard
or two-tier system of rights, with some rights securing judicial protection
against governmental infringement and others not (Mason, 1955; Funston,
1975). A more expansive notion of fundamental rights would necessarily
invite more judicial review and restrict the scope of democratic decision
making. For some, this suggested that the set of fundamental rights should
be sharply confined (Hand, 1958). For others, this suggested that fundamental rights should be restricted to process-oriented rights, rights necessary
to the smooth and fair functioning of democracy itself (Ely, 1980). For still
others, precisely because of their moral importance, fundamental rights
should be understood expansively (Dworkin, 1978), perhaps even including
property rights (Barnett, 2003).
The liberal protection of individual rights is not the only possible purpose
of a constitution. Constitutionalism might be understood as centrally concerned with facilitating the workings of democracy. Rather than viewing the
purposes of constitutionalism as at odds with democratic power and decision
making, constitutionalism might be seen as essential to the effective operation of popular government (Holmes, 1995). A constitution might promote
more meaningful and effective democratic deliberation to enhance policymaking (Elkin, 2006; Tulis, 1987). A constitutional framework might be primarily concerned with marshaling the resources and authority needed by
government officials to accomplish policy objectives (Edling, 2003).
THE PROBLEM OF CONSTITUTIONAL AUTHORITY
Constitutionalism purports to restrict the discretion of government officials.
More controversially, constitutions claim to limit the choices of democratic
majorities. To that degree, constitutions appear to be intrinsically antidemocratic, aimed at subordinating democracy to other values—or perhaps simply
subordinating popular majorities to the policy preferences of a smaller set of
elite political actors.
The difficulty is determining by what authority constitutional dictates can
trump democratic decisions (Marmor, 2007). The British constitutional tradition had long recognized the existence of legal rights against government
officials, but accepted that Parliament could choose to alter those rights. The

4

EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

scope of legally enforceable rights was to be determined by current political
majorities. Although Thomas Jefferson (1854, p. 103) would not have gone
so far as to embrace the Westminster system, he did conclude that the “earth
belongs … to the living” and “one generation of men has [no] right to bind
another.” So by what right do constitutional drafters bind current electors
and legislators?
The answers have been various. Perhaps the most classic answer would
deemphasize the significance of constitutional drafters as such. If constitution makers simply interpret and articulate preexisting natural rights, then
the issue is not whether one group of political actors or generation should
be able to bind another but rather whether political actors generally should
respect moral rights. Such an answer may be insufficient to explain why anyone should be faithful to all features of a constitution, however, or why one
interpreter of moral rights (constitutional drafters) should be favored over
others when such rights are uncertain or contested.
Other approaches would take greater account of the agency of constitutional drafters. Constitutional drafters might be imagined to be better positioned to deliberate carefully or well on what constitutional requirements
should be, or they might have greater democratic authorization than normal
legislators (Ackerman, 1991; Elster, 2000). We might simply think that the
circumstances of constitutional founding demand some respect in order to
maintain political stability across time (Weingast, 1997).
THE PROBLEM OF CONSTITUTIONAL ENFORCEMENT
A final problem of constitutionalism is how best to enforce constitutional
commitments. There is ultimately no position outside of politics from which
to enforce constitutional requirements. Constitutions must therefore be
“self-enforcing” to the extent that current political actors have sufficient
incentives to adhere to, rather than deviate from, the terms of the constitutional order (Griffin, 1998; Ordeshook, 1992). Constitutions are not imposed
from above, but sustained from within.
One approach to stabilizing and enforcing constitutional commitments is
through the Madisonian mechanism of checks and balances. James Madison (1904, p. 272) was skeptical of the value of the “parchment barriers”
contained in constitutional texts. More useful, he thought, would be an
arrangement of political offices and incentives that would lead ambition
to counteract ambition and connect the interest of the individual to the
obligations of office (Madison, 1961). The framing of the structures of government and the processes of lawmaking have consequences for advancing
or retarding various constitutional objectives (Lijphart, 1999).

Constitutionalism

5

A rather different approach is to rely on mechanisms of constitutional
review to enforce constitutional fidelity. If, as the historian Charles McIlwain
(1947, p. 11) noted, “any exercise of authority beyond [constitutional] limits
by any government is an exercise of ‘power without right,’” then courts
might naturally have a duty to declare such efforts to exercise authority to
be invalid (Hamburger, 2008). Parchment barriers might be strengthened if
they were regarded as judicially enforceable, fundamental law. But courts
do not stand outside of politics. Their interest in and power to effectuate
constitutional guarantees is dependent on a favorable political environment
(Whittington, 2007).
Another possibility is that constitutional commitments are interpreted and
enforced within the political arena itself. Theories of “popular constitutionalism” in the United States and “political constitutionalism” in Great Britain
emphasize the need for continual renewal of constitutional commitments
and the ultimate dependence of constitutionalism on continued political
support (Bellamy, 2007; Kramer, 2004). Rather than being isolated within
courtrooms, constitutional controversies can be found throughout the political arena and are regularly settled through political action (Whittington,
1999). From a somewhat different perspective, Jeremy Waldron (1999) has
argued that the content of constitutional values is inevitably contested
within the political arena, and in such circumstances such disagreements are
most appropriately resolved by democratic majorities. The liberal respect for
the equality of all also entails that each voice be heard and equally respected
in determining what the substantive requirements of liberalism actually are.
RECENT RESEARCH
Recent research has posed a number of questions for future scholarship.
Some of those questions are quite new, but some simply continue old
debates. Normative issues surrounding constitutionalism remain unsettled,
including some that are more heated than they once were. A burgeoning
empirical scholarship has both raised new questions and provided new
approaches for answering those questions.
Most narrowly, the content of constitutional law is a continuing source of
controversy. How judges should exercise the power of judicial review and
what substantive limits on political action ought to be enforced is of ongoing
interest. In the latter half of the twentieth century, scholars influenced by New
Deal battles over judicial review, Progressive ideals of democratic supremacy,
and controversial new judicial decisions argued over how best to justify the
power of the courts and how that power ought to be used. Those controversies have receded somewhat, even if the core points of dispute were never

6

EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

fully resolved. Judicial review as such is less politically contested and constitutional decisions have been somewhat more marginal to major political
debates.
Even as the normative debate over how the courts should exercise the
power of judicial review has been domesticated, a related normative debate
over whether the courts should exercise the power of judicial review at all
has become more intense. The type of challenges to constitutional practice
put forward by Jeremy Waldron (1999), Richard Bellamy (2007), and Larry
Kramer (2004) has put on the agenda basic questions of how constitutions
can be and should be enforced and whether a commitment to limited
government necessarily requires a commitment to legalized constitutional
constraints.
Such arguments for legislative supremacy invite additional discussion of
the authority of constitutions at all. The status of constitutions has come
under question in part on philosophical grounds that push on the justifications that might be available for creating legally entrenched policies that are
insulated from normal political processes. The U.S. Constitution has periodically been the subject of radical critique, and the particularities of specific
constitutional arrangements have driven some recent calls for radical constitutional change (Levinson, 2012). Developments in Europe have driven a
different set of concerns. While the inherited status of American constitutions
has generated doubts about how they well they can be reconciled with ideas
of democratic government, the growth of transnational institutions and politics has challenged received notion of national sovereignty and the kinds of
democratic politics associated with national institutions (Dobner & Loughlin, 2010). The spread of constitutional institutions to newly democratizing
states poses a distinct set of normative problems where institutional arrangements and political practices are not yet stable (Gargarella, 2013; Jacobsohn,
2010). The problems that economic and security crises pose for constitutional
regimes have similarly become newly salient (Griffin, 2013; Matheson, 2009).
The legitimacy and authority of constitutional regimes in a variety of circumstances are potentially fertile areas of exploration, linking constitutional studies to wider arguments in political theory and developing political events
(Colon-Rios, 2012).
The writing of new constitutions and the increased appreciation for the
effects of institutions on political outcomes have encouraged a growing
empirical literature on constitutions and how they operate. Although there
is much work to be done on the development and operation of particular
constitutional arrangements within a given state, there has been a notable
growth in studies focusing on questions of constitutional design. One set of
issues revolve around the process by which constitutional institutions are
put in place and the transition from one constitutional regime to another

Constitutionalism

7

(Erdos, 2010; Hirschl, 2004). Another involves the conditions for the stability
and maintenance of constitutional orders (Elkins, Ginsburg, & Melton, 2009).
Empirical work is also starting to shed light on the political consequences of
different constitutional forms (Choudhry, 2008) and the relationship between
constitutional structures and economic outcomes (Persson & Tabellini, 2003).
REFERENCES
Ackerman, B. A. (1991). We the people, Vol. 1: Foundations. Cambridge, MA: Harvard
University Press.
Alexy, R. (2002). A theory of constitutional rights. New York, NY: Oxford University
Press.
Barnett, R. E. (2003). Restoring the lost constitution: The presumption of liberty. Princeton,
NJ: Princeton University Press.
Bellamy, R. (2007). Political constitutionalism: A republican defense of the constitutionality
of democracy. New York, NY: Cambridge University Press.
Choudhry, S. (2008). Constitutional design for divided societies: Integration or accommodation? New York, NY: Oxford University Press.
Colon-Rios, J. (2012). Weak constitutionalism: Democratic legitimacy and the question of
constituent power. New York, NY: Routledge.
Dobner, P., & Loughlin, M. (2010). The twilight of constitutionalism? New York, NY:
Oxford University Press.
Dworkin, R. M. (1978). Taking rights seriously. Cambridge, MA: Harvard University
Press.
Edling, M. M. (2003). A revolution in favor of government: Origins of the U.S. constitution
and the making of the American state. New York, NY: Oxford University Press.
Elkin, S. L. (2006). Reconstructing the commercial republic: Constitutional design after
Madison. Chicago, IL: University of Chicago Press.
Elkins, Z., Ginsburg, T., & Melton, J. (2009). The endurance of national constitutions.
New York, NY: Cambridge University Press.
Elster, J. (2000). Ulysses unbound: Studies in rationality, precommitment, and constraints.
New York, NY: Cambridge University Press.
Ely, J. W. (2007). The guardian of every other right: A constitutional history of property
rights (3rd ed.). New York, NY: Oxford University Press.
Ely, J. H. (1980). Democracy and distrust: A theory of judicial review. Cambridge, MA:
Harvard University Press.
Erdos, D. O. (2010). Delegating rights protection: The rise of bills of rights in the Westminster world. New York, NY: Cambridge University Press.
Friedrich, C. J. (1941). Constitutional government and democracy: Theory and practice in
Europe and America. Boston, MA: Little, Brown.
Funston, R. (1975). The double standard of constitutional protection in the era of the
welfare state. Political Science Quarterly, 90, 261–287.
Gargarella, R. (2013). Latin American constitutionalism, 1810–2010: The engine room of
the constitution. New York, NY: Oxford University Press.

8

EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

Griffin, S. M. (1998). American constitutionalism: From theory to politics. Princeton, NJ:
Princeton University Press.
Griffin, S. M. (2013). Long wars and the constitution. Cambridge, MA: Harvard University Press.
Hamburger, P. (2008). Law and judicial duty. Cambridge, MA: Harvard University
Press.
Hand, L. (1958). The bill of rights. Cambridge, MA: Harvard University Press.
Harris, W. F. (1993). The interpretable constitution. Baltimore, MD: Johns Hopkins University Press.
Hirschl, R. (2004). Towards juristocracy: The origins and consequences of the new constitutionalism. Cambridge, MA: Harvard University Press.
Holmes, S. (1995). Passions and constraint: On the theory of liberal democracy. Chicago,
IL: University of Chicago Press.
Jacobsohn, G. J. (2010). Constitutional identity. Cambridge, MA: Harvard University
Press.
Jefferson, T. (1854). In H. A. Washington (Ed.), The writings of Thomas Jefferson (Vol.
3). New York, NY: John C. Riker.
Kramer, L. (2004). The people themselves: Popular constitutionalism and judicial review.
New York, NY: Oxford University Press.
Levinson, S. (2012). Framed: America’s 51 constitutions and the crisis of governance. New
York, NY: Oxford University Press.
Lijphart, A. (1999). Patterns of democracy: Government forms and performance in thirty-six
countries. New Haven, CT: Yale University Press.
Madison, J. (1904). In H. G (Ed.), The writings of James Madison (Vol. 5). New York,
NY: G.P. Putnam’s Sons.
Madison, J. (1961). No. 51. In C. Rossiter (Ed.), The federalist papers. New York, NY:
Signet.
Marmor, A. (2007). Are constitutions legitimate? Canadian Journal of Law and Jurisprudence, 20, 69–94.
Mason, A. T. (1955). The core of free government, 1938–40: Mr. Justice Stone and
“Preferred Freedoms.” Yale Law Journal, 65, 597–629.
Matheson, S. M. (2009). Presidential constitutionalism in perilous times. Cambridge, MA:
Harvard University Press.
McIlwain, C. H. (1947). Constitutionalism, ancient and modern. Ithaca, NY: Cornell University Press.
Novak, W. J. (1996). The people’s welfare: Law and regulation in nineteenth-century America. Chapel Hill: University of North Carolina Press.
Ordeshook, P. C. (1992). Constitutional stability. Constitutional Political Economy, 3,
137–75.
Persson, T., & Tabellini, G. (2003). The economic effects of constitutions. New York, NY:
Cambridge University Press.
Sartori, G. (1962). Constitutionalism: A preliminary discussion. American Political Science Review, 56, 853–64.
Tulis, J. K. (1987). The rhetorical presidency. Princeton, NJ: Princeton University Press.

Constitutionalism

9

Weingast, B. R. (1997). The political foundations of democracy and the rule of law.
American Political Science Review, 91, 245–63.
Waldron, J. (1999). Law and disagreement. New York, NY: Oxford University Press.
Whittington, K. E. (1999). Constitutional construction: Divided powers and constitutional
meaning. Cambridge, MA: Harvard University Press.
Whittington, K. E. (2007). Political foundations of judicial supremacy: The presidency, the
supreme court, and constitutional leadership in U.S. history. Princeton, NJ: Princeton
University Press.
Wormuth, F. D. (1949). Origins of modern constitutionalism. New York, NY: Harper.

FURTHER READING
Allan, T. R. S. (2013). The sovereignty of law: Freedom, constitution, and common law. New
York, NY: Oxford University Press.
Amar, A. R. (2012). America’s unwritten constitution: The precedents and principles we
live by. New York, NY: Basic Books.
Elkins, Z., Ginsburg, T., & Melton, J. (2009). The endurance of national constitutions.
New York, NY: Cambridge University Press.
Graber, M. A. (2013). A new introduction to American constitutionalism. New York, NY:
Oxford University Press.
Levinson, S. (2012). Framed: America’s constitutions and the crisis of governance. New
York, NY: Oxford University Press.
McIlwain, C. H. (1947). Constitutionalism, ancient and modern. Ithaca, NY: Cornell University Press.
Murphy, W. F. (2007). Constitutional democracy: Creating and maintaining a just political
order. Baltimore, MD: Johns Hopkins University Press.
Waldron, J. (1999). Law and disagreement. New York, NY: Oxford University Press.

KEITH E. WHITTINGTON SHORT BIOGRAPHY
Keith E. Whittington is the William Nelson Cromwell Professor of Politics
at Princeton University. He is the author of Constitutional Construction:
Divided Powers and Constitutional Meaning; Constitutional Interpretation:
Textual Meaning, Original Intent, and Judicial Review; Political Foundations
of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional
Leadership in U.S. History; and (with Howard Gillman and Mark A. Graber)
of the multi-volume American Constitutionalism.
RELATED ESSAYS
Understanding American Political Conservatism (Political Science), Joel D.
Aberbach
Domestic Politics of Trade Policy (Political Science), Michaël Aklin et al.

10

EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

Party Organizations’ Electioneering Arms Race (Political Science), John H.
Aldrich and Jeffrey D. Grynaviski
Economic Models of Voting (Political Science), Ian G. Anson and Timothy
Hellwig
The Underrepresentation of Women in Elective Office (Political Science),
Sarah F. Anzia
Can Public Policy Influence Private Innovation? (Economics), James Bessen
Heuristic Decision Making (Political Science), Edward G. Carmines and
Nicholas J. D’Amico
Political Ideologies (Political Science), Edward G. Carmines and Nicholas J.
D’Amico
Lawmaking (Political Science), Jamie L. Carson and Mark E. Owens
Neoliberalism (Sociology), Miguel Angel Centeno and Joseph N. Cohen
Gender, Religion, and State in the Middle East (Sociology), Mounira M.
Charrad and Amina Zarrugh
Domestic Institutions and International Conflict (Political Science), Giacomo
Chiozza
Elites (Sociology), Johan S. G. Chu and Mark S. Mizruchi
Judicial Independence (Political Science), Tom S. Clark
The State and Development (Sociology), Samuel Cohn
The Evolving View of the Law and Judicial Decision-Making (Political
Science), Justine D’Elia-Kueper and Jeffrey A. Segal
Restoring Racial Justice (Psychology), Fania E. Davis et al.
Expertise (Sociology), Gil Eyal
Government Formation and Cabinets (Political Science), Sona N. Golder
Distributive Politics: Federal Outlays (Political Science), Sanford C. Gordon
and Woo Chang Kang
Presidential Power (Political Science), William G. Howell
Racial Disenfranchisement (Political Science), Vincent L. Hutchings and
Davin L. Phoenix
Women Running for Office (Political Science), Jennifer L. Lawless
Leadership (Anthropology), Adrienne Tecza and Dominic Johnson
Why Do States Sign Alliances? (Political Science), Brett Ashley Leeds
Domestic Political Institutions and Alliance Politics (Political Science),
Michaela Mattes
Participatory Governance (Political Science), Stephanie L. McNulty and Brian
Wampler
Money in Politics (Political Science), Jeffrey Milyo
Politics of Immigration Policy (Political Science), Jeannette Money
Why Do Governments Abuse Human Rights? (Political Science), Will H.
Moore and Ryan M. Welch
Feminists in Power (Sociology), Ann Orloff and Talia Schiff

Constitutionalism

11

Intervention and Regime Change (Political Science), John M. Owen IV and
Roger G. Herbert Jr.
Evolutionary Theory and Political Behavior (Political Science), Michael Bang
Petersen and Lene Aarøe
The Politics of Disaster Relief (Political Science), Alexander J. Oliver and
Andrew Reeves
The Institutional Logics Perspective (Sociology), Patricia H. Thornton et al.
Does the 1 Person 1 Vote Principle Apply? (Political Science), Ian R. Turner
et al.
Postsocialism (Anthropology), Elizabeth Cullen Dunn and Katherine Verdery
Information Politics in Dictatorships (Political Science), Jeremy L. Wallace
Rulemaking Pursuing a Policy Agenda (Political Science), Richard W.
Waterman
Assimilation and its Discontents (Sociology), Min Zhou



Constitutionalism
KEITH E. WHITTINGTON

Abstract
Constitutionalism is the practice of regulating politics with a constitution. The means
by which constitutions attempt to regulate politics are various, ranging from the
design of political structures to the judicial enforcement of constitutional law. These
constitutional features have given rise to robust literatures approaching the subject
from both normative and empirical perspectives. Normative debates have focused on
the purpose, content, methods, and authority of constitutionalism. Empirical investigations have taken into account both the development of particular constitutional
institutions and practices within particular polities and broader questions of constitutional design

INTRODUCTION
Constitutionalism is the practice of regulating politics with a constitution.
The idea of constitutionalism has deep roots, but is generally thought
to have undergone something of a transformation in the Enlightenment
period. A long tradition running from Aristotle through the William Blackstone emphasized the ubiquity of constitutions. Every state was organized
somehow; every community pursued some idea of the political good. In
every state, complaints that political actors are violating the constitution
are understood to indicate that their actions were ill-advised and wrong.
Revolutionary writers like Tom Paine helped shift the logic of constitutionalism from a description of a governmental structure and set of political
precepts to a fundamental law. In modern terms, unconstitutional actions
were invalid actions. Modern constitutionalism defined the boundaries of
political authority (Sartori, 1962).
If constitutionalism is the regulation of politics by means of a constitution,
there remains uncertainty about why and how constitutions might play that
role. Government officials have their own authority to act, and they certainly
have the resources with which to act. Strictly speaking, modern constitutions claim to be the source of authority for government officials, but as a
practical matter political actors can appeal to other sources of support, from
Emerging Trends in the Social and Behavioral Sciences. Edited by Robert Scott and Stephen Kosslyn.
© 2015 John Wiley & Sons, Inc. ISBN 978-1-118-90077-2.

1

2

EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

electoral mandates to public safety. The challenge for constitutionalists is to
successfully cabin such autonomous action and bring government officials
more fully within the constitutional framework, to “bond word and polity”
(Harris, 1993).
FOUNDATIONAL RESEARCH
THE PROBLEM OF CONSTITUTIONAL PURPOSES
Modern conceptions of constitutionalism have tended to emphasize somewhat different purposes for constitutionalism than did older conceptions. In
particular, modern ideas about constitutionalism are closely allied with the
liberal political tradition. Giovanni Sartori (1962, p. 855) insisted that constitutions “restrict arbitrary power and ensure a ‘limited government.’” The
goal of liberal constitutions is to tie the hands of government officials in order
to protect individual rights. Historians have traced the long process by which
the intermingled traditions of constitutionalism and liberalism have developed a robust idea of limited government and individual rights (Friedrich,
1941; Wormuth, 1949).
The specifics of those limits on government have long been debated. Over
the course of the nineteenth century, rights were often framed in terms of
property (Ely, 2007). Even when personal liberty was at stake, the metaphor
of property often framed the discussion of what rights individuals possessed.
Rights were never understood to be absolute, however. Common law distinctions carried over into the understanding of constitutional guarantees.
Liberty was thought to be distinguishable from license, the abuse of liberty.
Actions against the common good could not properly be regarded as liberty, for true liberty was compatible with the public good (Novak, 1996). The
abuse of liberty can be known by the damage that it causes to others, and
thereby appropriately restricted. Actions that caused no damage to others
were to be protected from restraint.
In the twentieth century, rights were reconceptualized. Conflicts over
industrial capitalism led in turn to struggles over how the government could
regulate property and traditionally protected liberties. The old conceptual
framework that emphasized property and the compatibility of rights and the
public good was abandoned. In its place arose efforts to distinguish among
rights, identifying some as more fundamental than others. Property itself
was downgraded to the status of a lesser right that could be readily regulated
as seemed useful. Rights designated as fundamental could be restricted only
in exceptional circumstances. In the United States, the restriction of such
rights has triggered judicial strict scrutiny, in which minimally necessary
restrictions could be justified to advance only compelling governmental

Constitutionalism

3

interests, such as protecting life. In Europe, such restrictions are subject
to proportionality review in which the effectiveness and necessity of the
restriction and the importance of the governmental interest are evaluated
(Alexy, 2002).
With the shift to fundamental rights analysis, the correct identification
of whether a given action can be characterized as a protected right and if
so how elevated such a right might be becomes crucial. Within American
law, this has given rise to a concern over a constitutional double standard
or two-tier system of rights, with some rights securing judicial protection
against governmental infringement and others not (Mason, 1955; Funston,
1975). A more expansive notion of fundamental rights would necessarily
invite more judicial review and restrict the scope of democratic decision
making. For some, this suggested that the set of fundamental rights should
be sharply confined (Hand, 1958). For others, this suggested that fundamental rights should be restricted to process-oriented rights, rights necessary
to the smooth and fair functioning of democracy itself (Ely, 1980). For still
others, precisely because of their moral importance, fundamental rights
should be understood expansively (Dworkin, 1978), perhaps even including
property rights (Barnett, 2003).
The liberal protection of individual rights is not the only possible purpose
of a constitution. Constitutionalism might be understood as centrally concerned with facilitating the workings of democracy. Rather than viewing the
purposes of constitutionalism as at odds with democratic power and decision
making, constitutionalism might be seen as essential to the effective operation of popular government (Holmes, 1995). A constitution might promote
more meaningful and effective democratic deliberation to enhance policymaking (Elkin, 2006; Tulis, 1987). A constitutional framework might be primarily concerned with marshaling the resources and authority needed by
government officials to accomplish policy objectives (Edling, 2003).
THE PROBLEM OF CONSTITUTIONAL AUTHORITY
Constitutionalism purports to restrict the discretion of government officials.
More controversially, constitutions claim to limit the choices of democratic
majorities. To that degree, constitutions appear to be intrinsically antidemocratic, aimed at subordinating democracy to other values—or perhaps simply
subordinating popular majorities to the policy preferences of a smaller set of
elite political actors.
The difficulty is determining by what authority constitutional dictates can
trump democratic decisions (Marmor, 2007). The British constitutional tradition had long recognized the existence of legal rights against government
officials, but accepted that Parliament could choose to alter those rights. The

4

EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

scope of legally enforceable rights was to be determined by current political
majorities. Although Thomas Jefferson (1854, p. 103) would not have gone
so far as to embrace the Westminster system, he did conclude that the “earth
belongs … to the living” and “one generation of men has [no] right to bind
another.” So by what right do constitutional drafters bind current electors
and legislators?
The answers have been various. Perhaps the most classic answer would
deemphasize the significance of constitutional drafters as such. If constitution makers simply interpret and articulate preexisting natural rights, then
the issue is not whether one group of political actors or generation should
be able to bind another but rather whether political actors generally should
respect moral rights. Such an answer may be insufficient to explain why anyone should be faithful to all features of a constitution, however, or why one
interpreter of moral rights (constitutional drafters) should be favored over
others when such rights are uncertain or contested.
Other approaches would take greater account of the agency of constitutional drafters. Constitutional drafters might be imagined to be better positioned to deliberate carefully or well on what constitutional requirements
should be, or they might have greater democratic authorization than normal
legislators (Ackerman, 1991; Elster, 2000). We might simply think that the
circumstances of constitutional founding demand some respect in order to
maintain political stability across time (Weingast, 1997).
THE PROBLEM OF CONSTITUTIONAL ENFORCEMENT
A final problem of constitutionalism is how best to enforce constitutional
commitments. There is ultimately no position outside of politics from which
to enforce constitutional requirements. Constitutions must therefore be
“self-enforcing” to the extent that current political actors have sufficient
incentives to adhere to, rather than deviate from, the terms of the constitutional order (Griffin, 1998; Ordeshook, 1992). Constitutions are not imposed
from above, but sustained from within.
One approach to stabilizing and enforcing constitutional commitments is
through the Madisonian mechanism of checks and balances. James Madison (1904, p. 272) was skeptical of the value of the “parchment barriers”
contained in constitutional texts. More useful, he thought, would be an
arrangement of political offices and incentives that would lead ambition
to counteract ambition and connect the interest of the individual to the
obligations of office (Madison, 1961). The framing of the structures of government and the processes of lawmaking have consequences for advancing
or retarding various constitutional objectives (Lijphart, 1999).

Constitutionalism

5

A rather different approach is to rely on mechanisms of constitutional
review to enforce constitutional fidelity. If, as the historian Charles McIlwain
(1947, p. 11) noted, “any exercise of authority beyond [constitutional] limits
by any government is an exercise of ‘power without right,’” then courts
might naturally have a duty to declare such efforts to exercise authority to
be invalid (Hamburger, 2008). Parchment barriers might be strengthened if
they were regarded as judicially enforceable, fundamental law. But courts
do not stand outside of politics. Their interest in and power to effectuate
constitutional guarantees is dependent on a favorable political environment
(Whittington, 2007).
Another possibility is that constitutional commitments are interpreted and
enforced within the political arena itself. Theories of “popular constitutionalism” in the United States and “political constitutionalism” in Great Britain
emphasize the need for continual renewal of constitutional commitments
and the ultimate dependence of constitutionalism on continued political
support (Bellamy, 2007; Kramer, 2004). Rather than being isolated within
courtrooms, constitutional controversies can be found throughout the political arena and are regularly settled through political action (Whittington,
1999). From a somewhat different perspective, Jeremy Waldron (1999) has
argued that the content of constitutional values is inevitably contested
within the political arena, and in such circumstances such disagreements are
most appropriately resolved by democratic majorities. The liberal respect for
the equality of all also entails that each voice be heard and equally respected
in determining what the substantive requirements of liberalism actually are.
RECENT RESEARCH
Recent research has posed a number of questions for future scholarship.
Some of those questions are quite new, but some simply continue old
debates. Normative issues surrounding constitutionalism remain unsettled,
including some that are more heated than they once were. A burgeoning
empirical scholarship has both raised new questions and provided new
approaches for answering those questions.
Most narrowly, the content of constitutional law is a continuing source of
controversy. How judges should exercise the power of judicial review and
what substantive limits on political action ought to be enforced is of ongoing
interest. In the latter half of the twentieth century, scholars influenced by New
Deal battles over judicial review, Progressive ideals of democratic supremacy,
and controversial new judicial decisions argued over how best to justify the
power of the courts and how that power ought to be used. Those controversies have receded somewhat, even if the core points of dispute were never

6

EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

fully resolved. Judicial review as such is less politically contested and constitutional decisions have been somewhat more marginal to major political
debates.
Even as the normative debate over how the courts should exercise the
power of judicial review has been domesticated, a related normative debate
over whether the courts should exercise the power of judicial review at all
has become more intense. The type of challenges to constitutional practice
put forward by Jeremy Waldron (1999), Richard Bellamy (2007), and Larry
Kramer (2004) has put on the agenda basic questions of how constitutions
can be and should be enforced and whether a commitment to limited
government necessarily requires a commitment to legalized constitutional
constraints.
Such arguments for legislative supremacy invite additional discussion of
the authority of constitutions at all. The status of constitutions has come
under question in part on philosophical grounds that push on the justifications that might be available for creating legally entrenched policies that are
insulated from normal political processes. The U.S. Constitution has periodically been the subject of radical critique, and the particularities of specific
constitutional arrangements have driven some recent calls for radical constitutional change (Levinson, 2012). Developments in Europe have driven a
different set of concerns. While the inherited status of American constitutions
has generated doubts about how they well they can be reconciled with ideas
of democratic government, the growth of transnational institutions and politics has challenged received notion of national sovereignty and the kinds of
democratic politics associated with national institutions (Dobner & Loughlin, 2010). The spread of constitutional institutions to newly democratizing
states poses a distinct set of normative problems where institutional arrangements and political practices are not yet stable (Gargarella, 2013; Jacobsohn,
2010). The problems that economic and security crises pose for constitutional
regimes have similarly become newly salient (Griffin, 2013; Matheson, 2009).
The legitimacy and authority of constitutional regimes in a variety of circumstances are potentially fertile areas of exploration, linking constitutional studies to wider arguments in political theory and developing political events
(Colon-Rios, 2012).
The writing of new constitutions and the increased appreciation for the
effects of institutions on political outcomes have encouraged a growing
empirical literature on constitutions and how they operate. Although there
is much work to be done on the development and operation of particular
constitutional arrangements within a given state, there has been a notable
growth in studies focusing on questions of constitutional design. One set of
issues revolve around the process by which constitutional institutions are
put in place and the transition from one constitutional regime to another

Constitutionalism

7

(Erdos, 2010; Hirschl, 2004). Another involves the conditions for the stability
and maintenance of constitutional orders (Elkins, Ginsburg, & Melton, 2009).
Empirical work is also starting to shed light on the political consequences of
different constitutional forms (Choudhry, 2008) and the relationship between
constitutional structures and economic outcomes (Persson & Tabellini, 2003).
REFERENCES
Ackerman, B. A. (1991). We the people, Vol. 1: Foundations. Cambridge, MA: Harvard
University Press.
Alexy, R. (2002). A theory of constitutional rights. New York, NY: Oxford University
Press.
Barnett, R. E. (2003). Restoring the lost constitution: The presumption of liberty. Princeton,
NJ: Princeton University Press.
Bellamy, R. (2007). Political constitutionalism: A republican defense of the constitutionality
of democracy. New York, NY: Cambridge University Press.
Choudhry, S. (2008). Constitutional design for divided societies: Integration or accommodation? New York, NY: Oxford University Press.
Colon-Rios, J. (2012). Weak constitutionalism: Democratic legitimacy and the question of
constituent power. New York, NY: Routledge.
Dobner, P., & Loughlin, M. (2010). The twilight of constitutionalism? New York, NY:
Oxford University Press.
Dworkin, R. M. (1978). Taking rights seriously. Cambridge, MA: Harvard University
Press.
Edling, M. M. (2003). A revolution in favor of government: Origins of the U.S. constitution
and the making of the American state. New York, NY: Oxford University Press.
Elkin, S. L. (2006). Reconstructing the commercial republic: Constitutional design after
Madison. Chicago, IL: University of Chicago Press.
Elkins, Z., Ginsburg, T., & Melton, J. (2009). The endurance of national constitutions.
New York, NY: Cambridge University Press.
Elster, J. (2000). Ulysses unbound: Studies in rationality, precommitment, and constraints.
New York, NY: Cambridge University Press.
Ely, J. W. (2007). The guardian of every other right: A constitutional history of property
rights (3rd ed.). New York, NY: Oxford University Press.
Ely, J. H. (1980). Democracy and distrust: A theory of judicial review. Cambridge, MA:
Harvard University Press.
Erdos, D. O. (2010). Delegating rights protection: The rise of bills of rights in the Westminster world. New York, NY: Cambridge University Press.
Friedrich, C. J. (1941). Constitutional government and democracy: Theory and practice in
Europe and America. Boston, MA: Little, Brown.
Funston, R. (1975). The double standard of constitutional protection in the era of the
welfare state. Political Science Quarterly, 90, 261–287.
Gargarella, R. (2013). Latin American constitutionalism, 1810–2010: The engine room of
the constitution. New York, NY: Oxford University Press.

8

EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

Griffin, S. M. (1998). American constitutionalism: From theory to politics. Princeton, NJ:
Princeton University Press.
Griffin, S. M. (2013). Long wars and the constitution. Cambridge, MA: Harvard University Press.
Hamburger, P. (2008). Law and judicial duty. Cambridge, MA: Harvard University
Press.
Hand, L. (1958). The bill of rights. Cambridge, MA: Harvard University Press.
Harris, W. F. (1993). The interpretable constitution. Baltimore, MD: Johns Hopkins University Press.
Hirschl, R. (2004). Towards juristocracy: The origins and consequences of the new constitutionalism. Cambridge, MA: Harvard University Press.
Holmes, S. (1995). Passions and constraint: On the theory of liberal democracy. Chicago,
IL: University of Chicago Press.
Jacobsohn, G. J. (2010). Constitutional identity. Cambridge, MA: Harvard University
Press.
Jefferson, T. (1854). In H. A. Washington (Ed.), The writings of Thomas Jefferson (Vol.
3). New York, NY: John C. Riker.
Kramer, L. (2004). The people themselves: Popular constitutionalism and judicial review.
New York, NY: Oxford University Press.
Levinson, S. (2012). Framed: America’s 51 constitutions and the crisis of governance. New
York, NY: Oxford University Press.
Lijphart, A. (1999). Patterns of democracy: Government forms and performance in thirty-six
countries. New Haven, CT: Yale University Press.
Madison, J. (1904). In H. G (Ed.), The writings of James Madison (Vol. 5). New York,
NY: G.P. Putnam’s Sons.
Madison, J. (1961). No. 51. In C. Rossiter (Ed.), The federalist papers. New York, NY:
Signet.
Marmor, A. (2007). Are constitutions legitimate? Canadian Journal of Law and Jurisprudence, 20, 69–94.
Mason, A. T. (1955). The core of free government, 1938–40: Mr. Justice Stone and
“Preferred Freedoms.” Yale Law Journal, 65, 597–629.
Matheson, S. M. (2009). Presidential constitutionalism in perilous times. Cambridge, MA:
Harvard University Press.
McIlwain, C. H. (1947). Constitutionalism, ancient and modern. Ithaca, NY: Cornell University Press.
Novak, W. J. (1996). The people’s welfare: Law and regulation in nineteenth-century America. Chapel Hill: University of North Carolina Press.
Ordeshook, P. C. (1992). Constitutional stability. Constitutional Political Economy, 3,
137–75.
Persson, T., & Tabellini, G. (2003). The economic effects of constitutions. New York, NY:
Cambridge University Press.
Sartori, G. (1962). Constitutionalism: A preliminary discussion. American Political Science Review, 56, 853–64.
Tulis, J. K. (1987). The rhetorical presidency. Princeton, NJ: Princeton University Press.

Constitutionalism

9

Weingast, B. R. (1997). The political foundations of democracy and the rule of law.
American Political Science Review, 91, 245–63.
Waldron, J. (1999). Law and disagreement. New York, NY: Oxford University Press.
Whittington, K. E. (1999). Constitutional construction: Divided powers and constitutional
meaning. Cambridge, MA: Harvard University Press.
Whittington, K. E. (2007). Political foundations of judicial supremacy: The presidency, the
supreme court, and constitutional leadership in U.S. history. Princeton, NJ: Princeton
University Press.
Wormuth, F. D. (1949). Origins of modern constitutionalism. New York, NY: Harper.

FURTHER READING
Allan, T. R. S. (2013). The sovereignty of law: Freedom, constitution, and common law. New
York, NY: Oxford University Press.
Amar, A. R. (2012). America’s unwritten constitution: The precedents and principles we
live by. New York, NY: Basic Books.
Elkins, Z., Ginsburg, T., & Melton, J. (2009). The endurance of national constitutions.
New York, NY: Cambridge University Press.
Graber, M. A. (2013). A new introduction to American constitutionalism. New York, NY:
Oxford University Press.
Levinson, S. (2012). Framed: America’s constitutions and the crisis of governance. New
York, NY: Oxford University Press.
McIlwain, C. H. (1947). Constitutionalism, ancient and modern. Ithaca, NY: Cornell University Press.
Murphy, W. F. (2007). Constitutional democracy: Creating and maintaining a just political
order. Baltimore, MD: Johns Hopkins University Press.
Waldron, J. (1999). Law and disagreement. New York, NY: Oxford University Press.

KEITH E. WHITTINGTON SHORT BIOGRAPHY
Keith E. Whittington is the William Nelson Cromwell Professor of Politics
at Princeton University. He is the author of Constitutional Construction:
Divided Powers and Constitutional Meaning; Constitutional Interpretation:
Textual Meaning, Original Intent, and Judicial Review; Political Foundations
of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional
Leadership in U.S. History; and (with Howard Gillman and Mark A. Graber)
of the multi-volume American Constitutionalism.
RELATED ESSAYS
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Aberbach
Domestic Politics of Trade Policy (Political Science), Michaël Aklin et al.

10

EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

Party Organizations’ Electioneering Arms Race (Political Science), John H.
Aldrich and Jeffrey D. Grynaviski
Economic Models of Voting (Political Science), Ian G. Anson and Timothy
Hellwig
The Underrepresentation of Women in Elective Office (Political Science),
Sarah F. Anzia
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Heuristic Decision Making (Political Science), Edward G. Carmines and
Nicholas J. D’Amico
Political Ideologies (Political Science), Edward G. Carmines and Nicholas J.
D’Amico
Lawmaking (Political Science), Jamie L. Carson and Mark E. Owens
Neoliberalism (Sociology), Miguel Angel Centeno and Joseph N. Cohen
Gender, Religion, and State in the Middle East (Sociology), Mounira M.
Charrad and Amina Zarrugh
Domestic Institutions and International Conflict (Political Science), Giacomo
Chiozza
Elites (Sociology), Johan S. G. Chu and Mark S. Mizruchi
Judicial Independence (Political Science), Tom S. Clark
The State and Development (Sociology), Samuel Cohn
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Science), Justine D’Elia-Kueper and Jeffrey A. Segal
Restoring Racial Justice (Psychology), Fania E. Davis et al.
Expertise (Sociology), Gil Eyal
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and Woo Chang Kang
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Davin L. Phoenix
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Leadership (Anthropology), Adrienne Tecza and Dominic Johnson
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Domestic Political Institutions and Alliance Politics (Political Science),
Michaela Mattes
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Wampler
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Moore and Ryan M. Welch
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Constitutionalism

11

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Roger G. Herbert Jr.
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Petersen and Lene Aarøe
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Andrew Reeves
The Institutional Logics Perspective (Sociology), Patricia H. Thornton et al.
Does the 1 Person 1 Vote Principle Apply? (Political Science), Ian R. Turner
et al.
Postsocialism (Anthropology), Elizabeth Cullen Dunn and Katherine Verdery
Information Politics in Dictatorships (Political Science), Jeremy L. Wallace
Rulemaking Pursuing a Policy Agenda (Political Science), Richard W.
Waterman
Assimilation and its Discontents (Sociology), Min Zhou


Constitutionalism
KEITH E. WHITTINGTON

Abstract
Constitutionalism is the practice of regulating politics with a constitution. The means
by which constitutions attempt to regulate politics are various, ranging from the
design of political structures to the judicial enforcement of constitutional law. These
constitutional features have given rise to robust literatures approaching the subject
from both normative and empirical perspectives. Normative debates have focused on
the purpose, content, methods, and authority of constitutionalism. Empirical investigations have taken into account both the development of particular constitutional
institutions and practices within particular polities and broader questions of constitutional design

INTRODUCTION
Constitutionalism is the practice of regulating politics with a constitution.
The idea of constitutionalism has deep roots, but is generally thought
to have undergone something of a transformation in the Enlightenment
period. A long tradition running from Aristotle through the William Blackstone emphasized the ubiquity of constitutions. Every state was organized
somehow; every community pursued some idea of the political good. In
every state, complaints that political actors are violating the constitution
are understood to indicate that their actions were ill-advised and wrong.
Revolutionary writers like Tom Paine helped shift the logic of constitutionalism from a description of a governmental structure and set of political
precepts to a fundamental law. In modern terms, unconstitutional actions
were invalid actions. Modern constitutionalism defined the boundaries of
political authority (Sartori, 1962).
If constitutionalism is the regulation of politics by means of a constitution,
there remains uncertainty about why and how constitutions might play that
role. Government officials have their own authority to act, and they certainly
have the resources with which to act. Strictly speaking, modern constitutions claim to be the source of authority for government officials, but as a
practical matter political actors can appeal to other sources of support, from
Emerging Trends in the Social and Behavioral Sciences. Edited by Robert Scott and Stephen Kosslyn.
© 2015 John Wiley & Sons, Inc. ISBN 978-1-118-90077-2.

1

2

EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

electoral mandates to public safety. The challenge for constitutionalists is to
successfully cabin such autonomous action and bring government officials
more fully within the constitutional framework, to “bond word and polity”
(Harris, 1993).
FOUNDATIONAL RESEARCH
THE PROBLEM OF CONSTITUTIONAL PURPOSES
Modern conceptions of constitutionalism have tended to emphasize somewhat different purposes for constitutionalism than did older conceptions. In
particular, modern ideas about constitutionalism are closely allied with the
liberal political tradition. Giovanni Sartori (1962, p. 855) insisted that constitutions “restrict arbitrary power and ensure a ‘limited government.’” The
goal of liberal constitutions is to tie the hands of government officials in order
to protect individual rights. Historians have traced the long process by which
the intermingled traditions of constitutionalism and liberalism have developed a robust idea of limited government and individual rights (Friedrich,
1941; Wormuth, 1949).
The specifics of those limits on government have long been debated. Over
the course of the nineteenth century, rights were often framed in terms of
property (Ely, 2007). Even when personal liberty was at stake, the metaphor
of property often framed the discussion of what rights individuals possessed.
Rights were never understood to be absolute, however. Common law distinctions carried over into the understanding of constitutional guarantees.
Liberty was thought to be distinguishable from license, the abuse of liberty.
Actions against the common good could not properly be regarded as liberty, for true liberty was compatible with the public good (Novak, 1996). The
abuse of liberty can be known by the damage that it causes to others, and
thereby appropriately restricted. Actions that caused no damage to others
were to be protected from restraint.
In the twentieth century, rights were reconceptualized. Conflicts over
industrial capitalism led in turn to struggles over how the government could
regulate property and traditionally protected liberties. The old conceptual
framework that emphasized property and the compatibility of rights and the
public good was abandoned. In its place arose efforts to distinguish among
rights, identifying some as more fundamental than others. Property itself
was downgraded to the status of a lesser right that could be readily regulated
as seemed useful. Rights designated as fundamental could be restricted only
in exceptional circumstances. In the United States, the restriction of such
rights has triggered judicial strict scrutiny, in which minimally necessary
restrictions could be justified to advance only compelling governmental

Constitutionalism

3

interests, such as protecting life. In Europe, such restrictions are subject
to proportionality review in which the effectiveness and necessity of the
restriction and the importance of the governmental interest are evaluated
(Alexy, 2002).
With the shift to fundamental rights analysis, the correct identification
of whether a given action can be characterized as a protected right and if
so how elevated such a right might be becomes crucial. Within American
law, this has given rise to a concern over a constitutional double standard
or two-tier system of rights, with some rights securing judicial protection
against governmental infringement and others not (Mason, 1955; Funston,
1975). A more expansive notion of fundamental rights would necessarily
invite more judicial review and restrict the scope of democratic decision
making. For some, this suggested that the set of fundamental rights should
be sharply confined (Hand, 1958). For others, this suggested that fundamental rights should be restricted to process-oriented rights, rights necessary
to the smooth and fair functioning of democracy itself (Ely, 1980). For still
others, precisely because of their moral importance, fundamental rights
should be understood expansively (Dworkin, 1978), perhaps even including
property rights (Barnett, 2003).
The liberal protection of individual rights is not the only possible purpose
of a constitution. Constitutionalism might be understood as centrally concerned with facilitating the workings of democracy. Rather than viewing the
purposes of constitutionalism as at odds with democratic power and decision
making, constitutionalism might be seen as essential to the effective operation of popular government (Holmes, 1995). A constitution might promote
more meaningful and effective democratic deliberation to enhance policymaking (Elkin, 2006; Tulis, 1987). A constitutional framework might be primarily concerned with marshaling the resources and authority needed by
government officials to accomplish policy objectives (Edling, 2003).
THE PROBLEM OF CONSTITUTIONAL AUTHORITY
Constitutionalism purports to restrict the discretion of government officials.
More controversially, constitutions claim to limit the choices of democratic
majorities. To that degree, constitutions appear to be intrinsically antidemocratic, aimed at subordinating democracy to other values—or perhaps simply
subordinating popular majorities to the policy preferences of a smaller set of
elite political actors.
The difficulty is determining by what authority constitutional dictates can
trump democratic decisions (Marmor, 2007). The British constitutional tradition had long recognized the existence of legal rights against government
officials, but accepted that Parliament could choose to alter those rights. The

4

EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

scope of legally enforceable rights was to be determined by current political
majorities. Although Thomas Jefferson (1854, p. 103) would not have gone
so far as to embrace the Westminster system, he did conclude that the “earth
belongs … to the living” and “one generation of men has [no] right to bind
another.” So by what right do constitutional drafters bind current electors
and legislators?
The answers have been various. Perhaps the most classic answer would
deemphasize the significance of constitutional drafters as such. If constitution makers simply interpret and articulate preexisting natural rights, then
the issue is not whether one group of political actors or generation should
be able to bind another but rather whether political actors generally should
respect moral rights. Such an answer may be insufficient to explain why anyone should be faithful to all features of a constitution, however, or why one
interpreter of moral rights (constitutional drafters) should be favored over
others when such rights are uncertain or contested.
Other approaches would take greater account of the agency of constitutional drafters. Constitutional drafters might be imagined to be better positioned to deliberate carefully or well on what constitutional requirements
should be, or they might have greater democratic authorization than normal
legislators (Ackerman, 1991; Elster, 2000). We might simply think that the
circumstances of constitutional founding demand some respect in order to
maintain political stability across time (Weingast, 1997).
THE PROBLEM OF CONSTITUTIONAL ENFORCEMENT
A final problem of constitutionalism is how best to enforce constitutional
commitments. There is ultimately no position outside of politics from which
to enforce constitutional requirements. Constitutions must therefore be
“self-enforcing” to the extent that current political actors have sufficient
incentives to adhere to, rather than deviate from, the terms of the constitutional order (Griffin, 1998; Ordeshook, 1992). Constitutions are not imposed
from above, but sustained from within.
One approach to stabilizing and enforcing constitutional commitments is
through the Madisonian mechanism of checks and balances. James Madison (1904, p. 272) was skeptical of the value of the “parchment barriers”
contained in constitutional texts. More useful, he thought, would be an
arrangement of political offices and incentives that would lead ambition
to counteract ambition and connect the interest of the individual to the
obligations of office (Madison, 1961). The framing of the structures of government and the processes of lawmaking have consequences for advancing
or retarding various constitutional objectives (Lijphart, 1999).

Constitutionalism

5

A rather different approach is to rely on mechanisms of constitutional
review to enforce constitutional fidelity. If, as the historian Charles McIlwain
(1947, p. 11) noted, “any exercise of authority beyond [constitutional] limits
by any government is an exercise of ‘power without right,’” then courts
might naturally have a duty to declare such efforts to exercise authority to
be invalid (Hamburger, 2008). Parchment barriers might be strengthened if
they were regarded as judicially enforceable, fundamental law. But courts
do not stand outside of politics. Their interest in and power to effectuate
constitutional guarantees is dependent on a favorable political environment
(Whittington, 2007).
Another possibility is that constitutional commitments are interpreted and
enforced within the political arena itself. Theories of “popular constitutionalism” in the United States and “political constitutionalism” in Great Britain
emphasize the need for continual renewal of constitutional commitments
and the ultimate dependence of constitutionalism on continued political
support (Bellamy, 2007; Kramer, 2004). Rather than being isolated within
courtrooms, constitutional controversies can be found throughout the political arena and are regularly settled through political action (Whittington,
1999). From a somewhat different perspective, Jeremy Waldron (1999) has
argued that the content of constitutional values is inevitably contested
within the political arena, and in such circumstances such disagreements are
most appropriately resolved by democratic majorities. The liberal respect for
the equality of all also entails that each voice be heard and equally respected
in determining what the substantive requirements of liberalism actually are.
RECENT RESEARCH
Recent research has posed a number of questions for future scholarship.
Some of those questions are quite new, but some simply continue old
debates. Normative issues surrounding constitutionalism remain unsettled,
including some that are more heated than they once were. A burgeoning
empirical scholarship has both raised new questions and provided new
approaches for answering those questions.
Most narrowly, the content of constitutional law is a continuing source of
controversy. How judges should exercise the power of judicial review and
what substantive limits on political action ought to be enforced is of ongoing
interest. In the latter half of the twentieth century, scholars influenced by New
Deal battles over judicial review, Progressive ideals of democratic supremacy,
and controversial new judicial decisions argued over how best to justify the
power of the courts and how that power ought to be used. Those controversies have receded somewhat, even if the core points of dispute were never

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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

fully resolved. Judicial review as such is less politically contested and constitutional decisions have been somewhat more marginal to major political
debates.
Even as the normative debate over how the courts should exercise the
power of judicial review has been domesticated, a related normative debate
over whether the courts should exercise the power of judicial review at all
has become more intense. The type of challenges to constitutional practice
put forward by Jeremy Waldron (1999), Richard Bellamy (2007), and Larry
Kramer (2004) has put on the agenda basic questions of how constitutions
can be and should be enforced and whether a commitment to limited
government necessarily requires a commitment to legalized constitutional
constraints.
Such arguments for legislative supremacy invite additional discussion of
the authority of constitutions at all. The status of constitutions has come
under question in part on philosophical grounds that push on the justifications that might be available for creating legally entrenched policies that are
insulated from normal political processes. The U.S. Constitution has periodically been the subject of radical critique, and the particularities of specific
constitutional arrangements have driven some recent calls for radical constitutional change (Levinson, 2012). Developments in Europe have driven a
different set of concerns. While the inherited status of American constitutions
has generated doubts about how they well they can be reconciled with ideas
of democratic government, the growth of transnational institutions and politics has challenged received notion of national sovereignty and the kinds of
democratic politics associated with national institutions (Dobner & Loughlin, 2010). The spread of constitutional institutions to newly democratizing
states poses a distinct set of normative problems where institutional arrangements and political practices are not yet stable (Gargarella, 2013; Jacobsohn,
2010). The problems that economic and security crises pose for constitutional
regimes have similarly become newly salient (Griffin, 2013; Matheson, 2009).
The legitimacy and authority of constitutional regimes in a variety of circumstances are potentially fertile areas of exploration, linking constitutional studies to wider arguments in political theory and developing political events
(Colon-Rios, 2012).
The writing of new constitutions and the increased appreciation for the
effects of institutions on political outcomes have encouraged a growing
empirical literature on constitutions and how they operate. Although there
is much work to be done on the development and operation of particular
constitutional arrangements within a given state, there has been a notable
growth in studies focusing on questions of constitutional design. One set of
issues revolve around the process by which constitutional institutions are
put in place and the transition from one constitutional regime to another

Constitutionalism

7

(Erdos, 2010; Hirschl, 2004). Another involves the conditions for the stability
and maintenance of constitutional orders (Elkins, Ginsburg, & Melton, 2009).
Empirical work is also starting to shed light on the political consequences of
different constitutional forms (Choudhry, 2008) and the relationship between
constitutional structures and economic outcomes (Persson & Tabellini, 2003).
REFERENCES
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Alexy, R. (2002). A theory of constitutional rights. New York, NY: Oxford University
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Barnett, R. E. (2003). Restoring the lost constitution: The presumption of liberty. Princeton,
NJ: Princeton University Press.
Bellamy, R. (2007). Political constitutionalism: A republican defense of the constitutionality
of democracy. New York, NY: Cambridge University Press.
Choudhry, S. (2008). Constitutional design for divided societies: Integration or accommodation? New York, NY: Oxford University Press.
Colon-Rios, J. (2012). Weak constitutionalism: Democratic legitimacy and the question of
constituent power. New York, NY: Routledge.
Dobner, P., & Loughlin, M. (2010). The twilight of constitutionalism? New York, NY:
Oxford University Press.
Dworkin, R. M. (1978). Taking rights seriously. Cambridge, MA: Harvard University
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Edling, M. M. (2003). A revolution in favor of government: Origins of the U.S. constitution
and the making of the American state. New York, NY: Oxford University Press.
Elkin, S. L. (2006). Reconstructing the commercial republic: Constitutional design after
Madison. Chicago, IL: University of Chicago Press.
Elkins, Z., Ginsburg, T., & Melton, J. (2009). The endurance of national constitutions.
New York, NY: Cambridge University Press.
Elster, J. (2000). Ulysses unbound: Studies in rationality, precommitment, and constraints.
New York, NY: Cambridge University Press.
Ely, J. W. (2007). The guardian of every other right: A constitutional history of property
rights (3rd ed.). New York, NY: Oxford University Press.
Ely, J. H. (1980). Democracy and distrust: A theory of judicial review. Cambridge, MA:
Harvard University Press.
Erdos, D. O. (2010). Delegating rights protection: The rise of bills of rights in the Westminster world. New York, NY: Cambridge University Press.
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Europe and America. Boston, MA: Little, Brown.
Funston, R. (1975). The double standard of constitutional protection in the era of the
welfare state. Political Science Quarterly, 90, 261–287.
Gargarella, R. (2013). Latin American constitutionalism, 1810–2010: The engine room of
the constitution. New York, NY: Oxford University Press.

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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES

Griffin, S. M. (1998). American constitutionalism: From theory to politics. Princeton, NJ:
Princeton University Press.
Griffin, S. M. (2013). Long wars and the constitution. Cambridge, MA: Harvard University Press.
Hamburger, P. (2008). Law and judicial duty. Cambridge, MA: Harvard University
Press.
Hand, L. (1958). The bill of rights. Cambridge, MA: Harvard University Press.
Harris, W. F. (1993). The interpretable constitution. Baltimore, MD: Johns Hopkins University Press.
Hirschl, R. (2004). Towards juristocracy: The origins and consequences of the new constitutionalism. Cambridge, MA: Harvard University Press.
Holmes, S. (1995). Passions and constraint: On the theory of liberal democracy. Chicago,
IL: University of Chicago Press.
Jacobsohn, G. J. (2010). Constitutional identity. Cambridge, MA: Harvard University
Press.
Jefferson, T. (1854). In H. A. Washington (Ed.), The writings of Thomas Jefferson (Vol.
3). New York, NY: John C. Riker.
Kramer, L. (2004). The people themselves: Popular constitutionalism and judicial review.
New York, NY: Oxford University Press.
Levinson, S. (2012). Framed: America’s 51 constitutions and the crisis of governance. New
York, NY: Oxford University Press.
Lijphart, A. (1999). Patterns of democracy: Government forms and performance in thirty-six
countries. New Haven, CT: Yale University Press.
Madison, J. (1904). In H. G (Ed.), The writings of James Madison (Vol. 5). New York,
NY: G.P. Putnam’s Sons.
Madison, J. (1961). No. 51. In C. Rossiter (Ed.), The federalist papers. New York, NY:
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Marmor, A. (2007). Are constitutions legitimate? Canadian Journal of Law and Jurisprudence, 20, 69–94.
Mason, A. T. (1955). The core of free government, 1938–40: Mr. Justice Stone and
“Preferred Freedoms.” Yale Law Journal, 65, 597–629.
Matheson, S. M. (2009). Presidential constitutionalism in perilous times. Cambridge, MA:
Harvard University Press.
McIlwain, C. H. (1947). Constitutionalism, ancient and modern. Ithaca, NY: Cornell University Press.
Novak, W. J. (1996). The people’s welfare: Law and regulation in nineteenth-century America. Chapel Hill: University of North Carolina Press.
Ordeshook, P. C. (1992). Constitutional stability. Constitutional Political Economy, 3,
137–75.
Persson, T., & Tabellini, G. (2003). The economic effects of constitutions. New York, NY:
Cambridge University Press.
Sartori, G. (1962). Constitutionalism: A preliminary discussion. American Political Science Review, 56, 853–64.
Tulis, J. K. (1987). The rhetorical presidency. Princeton, NJ: Princeton University Press.

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Weingast, B. R. (1997). The political foundations of democracy and the rule of law.
American Political Science Review, 91, 245–63.
Waldron, J. (1999). Law and disagreement. New York, NY: Oxford University Press.
Whittington, K. E. (1999). Constitutional construction: Divided powers and constitutional
meaning. Cambridge, MA: Harvard University Press.
Whittington, K. E. (2007). Political foundations of judicial supremacy: The presidency, the
supreme court, and constitutional leadership in U.S. history. Princeton, NJ: Princeton
University Press.
Wormuth, F. D. (1949). Origins of modern constitutionalism. New York, NY: Harper.

FURTHER READING
Allan, T. R. S. (2013). The sovereignty of law: Freedom, constitution, and common law. New
York, NY: Oxford University Press.
Amar, A. R. (2012). America’s unwritten constitution: The precedents and principles we
live by. New York, NY: Basic Books.
Elkins, Z., Ginsburg, T., & Melton, J. (2009). The endurance of national constitutions.
New York, NY: Cambridge University Press.
Graber, M. A. (2013). A new introduction to American constitutionalism. New York, NY:
Oxford University Press.
Levinson, S. (2012). Framed: America’s constitutions and the crisis of governance. New
York, NY: Oxford University Press.
McIlwain, C. H. (1947). Constitutionalism, ancient and modern. Ithaca, NY: Cornell University Press.
Murphy, W. F. (2007). Constitutional democracy: Creating and maintaining a just political
order. Baltimore, MD: Johns Hopkins University Press.
Waldron, J. (1999). Law and disagreement. New York, NY: Oxford University Press.

KEITH E. WHITTINGTON SHORT BIOGRAPHY
Keith E. Whittington is the William Nelson Cromwell Professor of Politics
at Princeton University. He is the author of Constitutional Construction:
Divided Powers and Constitutional Meaning; Constitutional Interpretation:
Textual Meaning, Original Intent, and Judicial Review; Political Foundations
of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional
Leadership in U.S. History; and (with Howard Gillman and Mark A. Graber)
of the multi-volume American Constitutionalism.
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