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Constitutionalism

In the present post, we will briefly understand the definitions relating to constitution, constitutional law, constitutionalism and metaconstitution.

 

  1. Constitution means the codified bare text of the constitution and Constitutional law means the constitution as interpreted and construed by the courts.This interpretation or the construction which the courts do to the constitution is called constitutional law. Constitutional law becomes more important in some cases than the written text of the constitution. No student of law can understand a constitution unless he knows the constitutional law.
  2. Every constitution or every written constitution has unwritten parts and every unwritten constitution has written parts.These unwritten parts ipso facto become a part of the written constitution and such parts are called as Meta Constitution.
  1. Constitutionalism– This term can be interpreted in two ways:

Normative Interpretation– It means a government limited by the constitution. The basic purpose of a written constitution is to limit the powers of the government. In American Constitution, the President is elected by the people for a period of four years and during that period, he is not responsible to anybody. But this does not mean that he is above the constitution. His powers are subject to the limits that have been laid down by the constitution. It is said that the American System of Government is free government but under law.

  1. Non-Normative Interpretation– In this sense, constitutionalism means the study of the deepest layers of the constitution. This includes questions like what are the fundamental pillars on which the constitution is based is to be studied.The purpose of such a study is to find out the commonality between various democratic constitutions so that we can find out certain fundamental layers that are common in all the constitutions. If at any time, we are moving towards World Government and World Constitution, then it must be known that what such a constitution would contain.

 

In the popular sense, constitutionalism means the limitations on the power of the government as laid down by the constitution.

Constitutionalism has been seen as having various essential aspects as its core premises which are:
1) Sovereignty – It puts forward democratic values where the source of power is seen vested with the people and popular will and not in the hands of a few elites / politicians or corporates.

2) Writteness of the Constitution: A properly codified constitution builds constitutionalism as a feeling among everyone as it directs the people in power as well as administrators in a specified and proper way so that no arbitrariness is practiced anywhere.

3) Separation of Powers between the three organs of government which are legislature,executive and judiciary.

4) Consensus of agreeableness: The Constitution provides for the State to be guided by the popular will and good always and also to respect and agree to the institutional legal structures so that social conformity is achieved as prescribed by the Constitution.

5) Entrenchment: Total reject of arbitrariness practiced by public officials and leaders beyond their powers and rules prescribed. And secularism is practiced to maintain unity in diversity.

 

More topics to be discussed in class

Concept of State

Formalism and Constionalism in India

Challenges of Constitutionalism in the era of NPM

Public Administration by G.Rajput

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