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2 Constitutionalism(s)

Robert Schütze

Introduction 40
1 Descriptive Constitutionalism: Forms of Government 42
a Constitutional Forms I: The Legacy of Classic Antiquity 42
b Constitutional Forms II: Modern Classifications 45
aa The Rise of Democracy and Representative Government 45
bb The Rise of Liberal Values and Private Property 47
2 Formal Constitutionalism: The Constitution as Supreme Law 48
a American Origins and Constitutional Review 49
b Towards a General and Purely Legal Understanding 50
c Formal Constitutionalism and the Amendment Power 52
3 Material Constitutionalism: ‘Democratic’ and ‘Liberal’ Constitutions 54
a Democratic Constitutionalism: Popular Sovereignty and Representative
Government 54
b Liberal Constitutionalism: Limiting the Powers of Government 56
aa Limited Government I: The Separation of Powers Principle 56
bb Limited Government II: Fundamental Rights 58
4 Excursion: Federal Constitutionalism as a Distinct Standard 60
a Formal Perspective: Two Competing Constitutional Claims 61
b Material Perspective: Dual Democracy and Dual Fundamental Rights 62
Conclusion 64
Further Reading 66

Introduction

Constitutionalism is the set of ideas that defines what a constitution is or

ought to be. For some, there exists an essential core meaning of the term;1

1
C.H. McIlwain, Constitutionalism: Ancient and Modern (Liberty Fund, 2008).

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 Constitutionalism(s) 41

while for others, the concepts of ‘constitution’ and ‘constitutionalism’

have fundamentally changed over time.2
Various conceptions of constitutionalism have indeed developed in
legal history. According to a descriptive constitutionalism, a constitution
is the factual description of the institutions and powers of government.3
By contrast, a normative constitutionalism insists that constitutions do
not merely describe the existing governmental structures, but rather pre-
scribe their composition and powers. From a formal point of view, con-
stitutional laws are thus those norms that, as the highest laws within a
society, stand above the government.4 This formal definition has, in the
last two hundred years, competed with a material understanding of what
a constitution ought to be. This material constitutionalism links the legal
concept of the constitution with a particular political philosophy that is
meant to legitimize the constitution. According to a ‘democratic’ consti-
tutionalism, a genuine constitution thus only exists where it is based on
the idea of a ‘government of the people, by the people, for the people’.5 A
‘liberal’ constitutionalism, on the other hand, believes that a constitution
is only a ‘true’ constitution if it sets limits to the powers of government,
and the two traditional constitutional limits here are the separation of
powers and fundamental rights.6
The various ‘constitutionalisms’, and their relations to each other, can
be seen in Figure 2.1; and the aim of this chapter is to briefly introduce
each of them (Sections 2–​4). The main purpose behind this chapter is thus
to sensitize the reader to the fact that the many constitutional phenomena
discussed in this book are not only geographically variant but that the
very idea of what counts as constitution is historically constructed and

2
Cf. ‘Verfassung’, in: O. Brunner, W. Conze and R. Koselleck, Geschichtliche Grundbegriffe –​
Volume 6 (Klett-​Cotta, 2004), 831–​899.
3
This descriptive sense of ‘constitution’ can be found in Aristotle, Politics (trans: E. Baker,
Oxford University Press, 1998), Book III, §§ 6 and 7.
4
This normative sense of ‘constitution’ can be found in T. Paine, ‘Rights of Man’ in Political
Writings (Cambridge University Press, 1997), 89: ‘A Constitution is a thing antecedent to
a government, and a government is only the creature of a constitution.’
5
This democratic sense of ‘constitution’ can be found in A. Lincoln, ‘Gettysburg Address,
1863’, in H.S. Commager and M. Cantor (eds.), Documents of American History, vol. I
(Prentice Hall, 1988), 429.
6
This liberal sense of ‘constitution’ can be found in the 1789 Declaration of the Rights of
Man and of the Citizen, whose Article 16 states: ‘Toute Société dans laquelle la garantie
des Droits n’est pas assurée, ni la séparation des Pouvoirs déterminée, n’a point de
Constitution.’

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 42 Robert Schütze

Constitutionalism

descriptive normative

formal material

democratic liberal
Figure 2.1  Main Variants of Constitutionalism

will often be influenced by a pre-​commitment to a particular constitu-

tional theory. The most prevailing element of any constitutional theory in
the past three hundred years has thereby been the link between the idea
of a constitution and that of the modern (unitary) state. Yet as Section 4
hopes to show, the state-​centred idea of a constitution cannot explain
federal unions, such as the (early) United States or today’s European
Union, in which there are two levels of government making a constitu-
tional claim over the same people(s).

1  Descriptive Constitutionalism: Forms of Government

a  Constitutional Forms I: The Legacy of Classic Antiquity

The discovery that there exist different types of ‘governments’ and
‘constitutions’ was made in antiquity. The most enduring constitutional
classification here comes from Aristotle, whose description of the various
forms of government continues to shape our modern understanding of
the forms of State.7 For Aristotle, political communities are best classified
by using a quantitative and a qualitative criterion. Quantitatively, he first
identified three main types depending on the number of people ruling
(one, minority, majority); and this basic division is completed by a quali-
tative criterion that asks whether public power is exercised for the benefit

7
H. Kelsen, Allgemeine Staatslehre (Springer, 1925), 320 (my translation): ‘All modern the-
ories of state forms continue to be decisively shaped by antiquity, and here particularly by
the Aristotelian theory.’

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 Constitutionalism(s) 43

Table 2.1  Aristotelian Forms of Government

For the Benefit of All For its own Benefit

Power Exercised by One Monarchy Tyranny

Power Exercised by a Minority Aristocracy Oligarchy
Power Exercised by the Majority Polity Democracy

of all people or only for the benefit of the number of people holding
power. The resulting six constitutional forms can be seen in Table 2.1.
These ‘pure’ forms have been passed on to us (almost) unchanged.8
From the very beginning, however, they were complemented by the idea
of the ‘mixed’ constitution. The latter is a combination of elements taken
from the pure forms; and for Aristotle, as for other classic scholars, it
was heralded as the most stable constitutional arrangement because of
its ‘balance’ between competing structures.9 In an early instance of con-
stitutional borrowing,10 it is the Greek idea of the mixed constitution that
becomes one of the core principles of the Constitution of Rome. Famously
analysed by Polybius,11 the governmental institutions of ancient Rome
are thus seen to reflect three distinct constitutional principles:  the
‘monarchical’ principle is expressed through the Consuls, the ‘aristo-
cratic’ principle finds its manifestation in the Senate, and the ‘demo-
cratic’ principle comes to life in the public assemblies. The mixed nature
of the Roman Constitution therefore inevitably pushed a new word to
the foreground: the idea of a ‘republic’ (res publica) or ‘commonwealth’.12
This new notion henceforth neutrally referred to the ‘political community’
without the Aristotelian connotations in the older concept of ‘polity’.

8
The principal difference today, however, is that the negative connotations of democracy
have disappeared; and we now identify ‘polity’ with ‘democracy’ and the negative aspects
of democracy with ‘populism’.
9
On this point, see  A. Lintott, ‘Aristotle and the Mixed Constitution’, in R. Brock and
S. Hodkinson (eds.), Alternatives to Athens:  Varieties of Political Organization and
Community in Ancient Greece (Oxford University Press, 2003), 152.
10
See Chapter 22 in this volume.
11
See only: A. Lintott, The Constitution of the Roman Republic (Oxford University Press,
1999), Chapter III.
12
Cicero, On the Commonwealth and on the Laws (editor: J. Zetzel, Cambridge University
Press, 1999). This new concept comes to generically stand for a ‘political community’ and
is consequently broader than the modern conception of a ‘republic’ that is opposed to a
‘monarchy’.

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 44 Robert Schütze

Leaping over the ‘dark’ Middle Ages,13 many of these classic concepts
experienced a renaissance in the sixteenth and seventeenth century. Bodin’s
‘Six Books on the Commonwealth’ drew once more on the Aristotelian
tradition when they distinguished between three commonwealths: ‘If sov-
ereignty lies in a single prince, we will call it monarchy; if all of the
people have a share, we will say that the state is democratic (populaire);
if it is only the lesser part of the people, we will hold that the state is
aristocratic.’14 Yet determined to position the idea of a single and indi-
visible sovereignty at the centre of each commonwealth, the possibility
of a mixed constitution is now vehemently rejected;15 and, according to
Bodin, any ‘scientific’ analysis of constitutions must equally eschew a
qualitative classification into ‘good’ and ‘bad’ constitutions.16
Instead, a new distinction is introduced –​a distinction that has survived
to the present day: the distinction between ‘forms of state’ and ‘forms of
government’.17 The former comes to refer to who is seen as the ‘sover-
eign’ or ‘head’ of State, while the latter refers to the manner or institu-
tion through which sovereignty is exercised. A State can henceforth easily
be classified as a ‘monarchy’ (because sovereignty is seen to lie in one
person), yet also have an ‘aristocratic’ or ‘democratic’ government because
the monarch exercises his or her power ‘through’ a council or ‘through’ a
parliament. Elaborated in the eighteenth century, and especially through
the work of Montesquieu (and Kant), this ‘trick’ brings the idea of the mixed
constitution partly back via the principle of the separation of powers; while
it equally accommodates the rise of parliaments in societies that formally
adhere to the monarchic principle of hereditary and dynastic power.18

13
See only:  O. von Gierke, Political Theories of the Middle Ages (Cambridge University
Press, 1900); as well as: W. Ullmann, Principles of Government and Politics in the Middle
Ages (Methuen, 1961).
14
Bodin, On Sovereignty (editor: J. Franklin, Cambridge University Press, 1992), 89. He con-
tinues: ‘But it is clear that to have true definitions and resolutions in any subject matter,
one must fix not on accidents, which are innumerable, but on essential differences of
form. Otherwise one could fall into an infinite labyrinth which does not admit of scien-
tific knowledge.’
15
Ibid., 92: ‘[T]‌o combine monarchy with democracy and with aristocracy is impossible and
contradictory, and cannot even be imagined. For sovereignty is indivisible, as we have
shown, how could it be shared by a prince, the nobles, and the people at the same time?’
16
Ibid., 89.
17
Bodin distinguishes three forms of government: despotic, royal and tyrannical; and all
three forms can be found in all three types of state.
18
See only Article 85 (1) Belgian Constitution: ‘The constitutional powers of the King are
hereditary through the direct, natural and legitimate descent.’

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 Constitutionalism(s) 45

Be that as it may, the rise of parliaments and their identification with

(representative) democracy causes the perhaps greatest semantic revolution
to the classic constitutional vocabulary. For after the American and French
revolutions, a new –​modern –​understanding of ‘republicanism’ comes to
re-​define almost all categories of classic constitutionalism; and it is to this
semantic revolution that we must now turn.

b  Constitutional Forms II: Modern Classifications

aa  The Rise of Democracy and Representative Government

With the American and French Revolutions, old words were given a new
meaning, and it is this modern meaning that is still with us today.19 This
modern understanding of what constitutions are or ought to be finds its
clearest expression in The Federalist.20 Deeply influenced by the classic
tradition, James Madison here famously coined the modern vocabulary of
representative democracy by deliberately contrasting a ‘pure Democracy’
with a ‘Republic’ within ‘which the scheme of representation takes place’.21
Claiming that the past had hitherto not clearly produced the republican
form, the latter is now defined as follows:

What then are the distinctive characters of the republican form? (…) If we resort
for a criterion, to the different principles on which different forms of govern-
ment are established, we may define a republic to be, or at least may bestow that
name on, a government which derives all its powers directly or indirectly from
the great body of the people; and is administered by persons holding their offices
during pleasure, for a limited period, or during good behavior. (…) The House of
Representatives, like that of one branch at least of all the State Legislatures, is
elected immediately by the great body of the people. The Senate, like the present
Congress, and the Senate of Maryland, derives its appointment indirectly from
the people. The President is indirectly derived from the choice of the people,
according to the example in most of the States. Even the judges, with all other

19
On the importance of the eighteenth century as a ‘Sattelzeit’, see R. Koselleck, Einleitung,
in:  O. Brunner et  al. (eds.), Geschichtliche Grundbegriffe (n. 2)  –​Volume 1, XV; and
with regard to France in particular, see  F. Schrader, Zur Politischen Semantik der
Revolution: Frankreich (1750–​1850) (VS Verlag, 2010).
20
A. Hamilton, J. Madison and J. Jay, The Federalist (editor: T. Ball, Cambridge University
Press, 2003).
21
Ibid.,  43–​44.

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 46 Robert Schütze

officers of the Union, will, as in the several States, be the choice, though a remote
choice, of the people themselves.22

The ‘republican’ constitution is here intrinsically linked with the

idea of (democratic) representation; and for the American revolution-
aries, such a ‘republic’ is a better form of government than a ‘democ-
racy’ because of its ability to control ‘factions’ or political parties.23
The idea of indirect democracy in which office holders are regularly
elected by the people applies with particular force to the American
Parliament:  the House of Representatives. Indeed, our modern idea of
‘democracy’ has today come to mean ‘parliamentarism’, that is a con-
stitutional arrangement whereby decisions are not taken by the people
themselves but by their representatives. (And using the classic consti-
tutional vocabulary, this is of course a form of ‘aristocracy’ in which a
‘minority’ is elected to take decisions on behalf of the majority.) When
the republican notion of representation applies to the head of state, we
arrive at another constitutional concept:  presidentialism in which an
elected ‘monarch’ reigns in the name of the people for a limited period
of time.
Thanks to the overwhelming rise of the idea of representative democ-
racy in the twentieth century (see Section 3), almost all modern states
today adhere to this new vocabulary. Thus:  depending on whether the
dominant representative institution is composed of one person, few per-
sons or many persons; and subject to whether we think of it in positive
or negative terms, six modern forms of government can be distinguished
(Table  2.2).24 Presidentialism here refers to a governmental system
dominated by an (elected) executive officer – like in the United States,
while its negative manifestation may be captured by the modern idea of
dictatorship.25 Parliamentarism, by contrast, refers to a system in which

22
Ibid., 182–​183.
23
Ibid., 45: ‘Extend the sphere, and you take in a greater variety of parties and interests;
you make it less probable that a majority of the whole will have a common motive to
invade the rights of other citizens; or if such a common motive exists, it will be more
difficult for all who feel it to discover their own strength, and to act in unison with each
other.’
24
These six ‘democratic’ forms of government may of course be mixed –​as is the case in
most modern democracies. France is thus often described as a semi-​presidential system
that combines presidentialism with parliamentarianism. For a discussion of this point, see
Chapters 4 and 14.
25
C. Schmitt, Die Diktatur (Duncker & Humblot, 2006).

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 Constitutionalism(s) 47

Table 2.2  Modern Forms of Government: Republican Categories

Positive Expression Negative Expression

Power Exercised by One Presidentialism Dictatorship

Power Exercised by a Parliamentarism Party State
Minority
Power Exercised by the (Direct) Democracy Populism
Majority

an (elected) assembly of citizens deliberates on the future of the polity;

whereas a ‘party state’ refers to a situation in which a small group of
career politicians takes most decisions behind closed doors.26 Forms of
direct democracy are also known in some modern States (but even they
contain elements of ‘representation’).27 The negative expression of such
direct democracy is the uninformed power of the masses that is labelled
as ‘populism’. It is a form of government, where not the public ‘interest’
but public ‘opinion’ –​often manipulated by powerful private interests –​
governs society.

bb  The Rise of Liberal Values and Private Property

This republican classification has sometimes come to compete with a cat-

egorization based on liberal values. A liberal classification here arranges
constitutions alongside a spectrum that spans from governments that pro-
tect a maximum sphere of private right to a government that establishes
a total ‘public’ sphere. The two extremes are probably best manifested
in the laissez-​faire libertarian state of nineteenth century-Britain on the
one hand, and the totalitarian Fascist state of the twentieth century on
the other.28 In between lies the authoritarian state in which governmental

26
C. Schmitt, Die geistesgeschichtliche Lage des heutigen Parlamentarismus (Duncker &
Humblot, 2010), 62 (my translation):  ‘The great political and economic decisions that
determine the fate of the people are no longer (if they have ever been) the result of a bal-
ancing of arguments and counter-​arguments in a public parliamentary debate… Smaller
and smaller party committees decide today, behind closed doors, what the representatives
of big industry have previously agreed upon[.]‌’
27
For example: the people voting in a referendum are seen as representatives of the (his-
toric) nation.
28
On the ‘totalitarian’ state, see the classic study by H. Arendt, The Origins of Totalitarianism
(Harcourt, 1973).

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 48 Robert Schütze

Table 2.3  Modern Forms of Government: Liberal Categories

Private Rights Generally Private Property Rights

High Protection Libertarian Regimes Capitalist Regimes

Low Protection Authoritarian Regimes Socialist Regimes
No Protection Totalitarian Regimes Communist Regimes

institutions repress some individual liberties for the (supposed) public

good of the nation at large.29
A special and interesting version of this liberal categorization emerges
when the focus is set on one of the most central fundamental rights within
modern liberal societies: the right to property. The most liberal regime here
is a capitalist regime that allows for all forms of private property, whereas
in communist societies, all private property is theoretically replaced by
public property.30 Socialist regimes occupy a middle ground in that they
typically restrict the private right to property by excluding private owner-
ship in the means of agricultural or industrial production.31 For an over-
view of the possible forms of government according to a liberal standard
see Table 2.3.

2  Formal Constitutionalism: The Constitution as

Supreme Law

Formal constitutionalism defines a ‘constitution’ as the set of those

norms that stand at the apex of the legal hierarchy. Constitutional
norms are the highest norms and as such enjoy absolute  –​legal  –​
supremacy over all other norms. This implies two things. First, con-
stitutional law must be ‘law’ and as such it must be enforceable.

29
On the modern form of the authoritarian constitution, see M. Tushnet, ‘Authoritarian
Constitutionalism’ (2015) 100 Cornell Law Review 391.
30
The question of property arguably constitutes the ‘essential core’ of all communist
constitutions; yet there is of course a bundle of ideas that have equally been identified
with communist constitutional theory. See only: W.B. Simons (ed.), The Constitutions of
the Communist World (Sijthoff, 1980), XIII.
31
See only: ex-Article 11 USSR Constitution: ‘The state owns the basic means of production
in industry, construction, and agriculture; means of transport and communication; the
banks; the property of state-​run trade organisations and public utilities, and other state-​
run undertakings; most urban housing; and other property necessary for state purposes.’

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 Constitutionalism(s) 49

Enforcement could here theoretically mean physical resistance by the

people,32 yet we no longer identify these ‘extra-​ legal’ enforcement
mechanisms as legal enforcements. Legal enforcement requires judicial
enforcement, and such judicial enforcement may be done either centrally
(through a special constitutional court), or decentrally via the ordinary
courts.33 But more importantly still:  as the highest law within a legal
order, constitutional review must, secondly, mean that all governmental
acts  –​including legislative acts  –​should be reviewable as against the
constitution. For if the government (in the wide sense of the term) can
arbitrarily change the law, it is not subject to it; and instead of the ‘law’
it is the ‘parliament’ that is supreme. From this –​normative and formal –​
point of view, neither the British nor the Chinese Constitutions are ‘real’
constitutions.34

a  American Origins and Constitutional Review

The first modern constitution that complies with the formal idea of a
judicially enforceable law that stands above all acts adopted by the gov-
ernment is the 1787 US Constitution. The latter was expressly conceived
as ‘the supreme Law of the Land; and the Judges in every State shall be
bound thereby’;35 and it was quickly argued that the reason for imposing
constitutional limits  –​even on the legislative branch  –​derived from
republican principles:

There is no position which depends on clearer principles, than that every act of
a delegated authority, contrary to the tenor of the commission under which it is
exercised, is void. No legislative act therefore contrary to the constitution can be
valid. To deny this would be to affirm that the deputy is greater than his prin-
cipal; that the servant is above his master; that the representative of the people
are superior to the people themselves … A constitution is in fact, and must be,
regarded by the judges as a fundamental law.36

32
For this excellent point, see J.-​E. Lane, Constitutions and Political Theory (Manchester
University Press, 1996), 27–​29.
33
On this point, see Chapters 10 and 11.
34
On the nature of the British and Chinese Constitutions, see Chapters 3 and 7.
35
1787 US Constitution, Article VI (2).
36
A. Hamilton, J. Madison and J. Jay, The Federalist (n. 20), 379. On the historical back-
ground to this, see E.S. Corwin, ‘The “Higher Law” Background of American Constitutional
Law’ (1928) 42 Harvard Law Review 149.

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 50 Robert Schütze

The American constitutional order here confirmed a distinction

between a higher ‘fundamental’ law and ‘ordinary’ legislation; and it
derived this distinction from the contrast between the people acting dir-
ectly as constituent power (in French: pouvoir constituant) and the people
acting indirectly through their government as the constituted power (in
French: pouvoir constitué).37 The higher status given to the Constitution
is thus rooted in and legitimized by its more direct link with the will of
the people.
For the American Founders, the best way to protect the people’s ori-
ginal will against the government was thereby seen to be ‘through the
medium of the courts of justice’.38 For the judiciary was regarded, in line
with Montesquieu, as not having an independent will of its own; a court
will only ‘declare the sense of the law’.39 This position was confirmed in
1803. In Marbury v. Madison, the US Supreme Court famously held that
‘all those who have framed written Constitutions contemplate them as
forming the fundamental and paramount law of the nation, and con-
sequently the theory of every such government must be that an act of
the Legislature repugnant to the Constitution is void.’40 And in the eyes
of the Court, constitutional review was indeed no exercise of public
power, because ‘[i]‌t is emphatically the province and duty of the Judicial
Department to say what the law is’.41

b  Towards a General and Purely Legal Understanding

But let us take a step back. The American Founding Fathers had derived
the distinction between a higher fundamental law and ordinary legisla-
tion from republican principles; yet from a purely formal perspective,
the democratic origin of a norm with constitutional status is irrelevant.
All that ought to count for a norm to be seen as constitutional is that it
enjoys the status as the highest law of the land. Norms that are given
that constitutional status can be produced in a variety of ways. They may
be established by ‘the people’ (as in the American case) but they could

37
For the French ideas here, see only: E. Sieyès, Political Writings (editor: M. Sonenscher,
Hackett, 2003).
38
A. Hamilton, J. Madison and J. Jay, The Federalist (n. 20), 379.
39
Ibid., 381.
40
Marbury v. Madison, 5 US 137 (1803), 177.
41
Ibid. For an extensive analysis of the case, see W.W. Van Alstyne, ‘A Critical Guide to
Marbury v. Madison’ (1969) 18 Duke Law Journal 1.

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 Constitutionalism(s) 51

equally be seen as given by ‘God’.42 They can be granted by a monarch;43

or they may result from custom. For from a purely formal or legal point
of view all that counts is that constitutional law stands on top of a hier-
archical legal order. It is the last ‘law’; and this ironically means that its
legal validity cannot be derived from other legal norms:

If we ask why the constitution is valid, perhaps we come upon an older constitu-
tion. Ultimately we reach some constitution that is the first historically and that
was laid down by an individual usurper or by some kind of assembly. The validity
of this first constitution is the last presupposition, the final postulate, upon which
the validity of all the norms of our legal order depends … The basic norm is not
created in a legal procedure by a law-​creating organ. It is not –​as a positive legal
norm is –​valid because it is created in a certain way by a legal act, but it is valid
because without this presupposition no human act could be interpreted as a legal,
especially as a norm-​creating act.44

The central point behind a purely formal understanding of a consti-

tution is consequently this: a constitution ‘is’ the highest law but why it
‘ought’ to be the highest law is beyond legal analysis. The ‘why’ question
concerns the material legitimacy of a constitution; and that question
is simply not a legal question because constitutions are never legally
adopted but socially postulated.45 According to this view, every new con-
stitution is always the result of a revolutionary break with the past; and
it therefore cannot draw its legitimacy from the previously existing  –​
legal –​status quo. The normative validity of any constitution thus lies in
its facticity –​that is the fact that people consider it to be the highest law;
and the reason why people consider it as such may significantly vary. The
American revolutionaries, for example, regarded popular sovereignty as
the core of their constitutionalism, whereas nineteenth-​century European
constitutionalism considered the crucial element of why a constitution

42
This was the case in the Middle Ages. See C.H. McIlwain, Constitutionalism: Ancient and
Modern (n. 1), Chapter IV.
43
For an illustration of a monarchic constitutionalism, see the 1820 Vienna Final Act.
According to its Article 57, ‘the entire authority of the state must, according to the basic
concepts provided thereby, remain united within the head of state, and the sovereign can
therefore only in the exercise of particular rights be constitutionally bound to the par-
ticipation of the estates’. On the ‘monarchic’ principle within nineteenth-​century German
constitutionalism, E.R. Huber, Deutsche Verfassungsgeschichte seit 1789  –​Volume I
(Kohlhammer, 1960) 653 et seq.
44
H. Kelsen, General Theory of the State (Transaction Publishers, 2005) 115–​116.
45
Ibid., 118.

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 52 Robert Schütze

should be called a constitution its liberal content. We shall explore both

material constitutional philosophies in Section 3.

c  Formal Constitutionalism and the Amendment Power

The very essence of formal constitutionalism is the distinction between a
(higher) fundamental law adopted by a constituent power and a (lower)
ordinary law adopted by the constituted powers. Would this distinction
imply that only the original constituent power could amend the consti-
tution? Many constitutional orders have not completely adhered to this
logic. On the contrary, they often allow their constituted powers to for-
mally or informally amend constitutional law. For example, Article 79 of
the German Basic Law allows the legislature to amend the Constitution
by a statute; and these ‘constitutional’ statutes enjoy the same legal rank
as the constitution.
The adoption of constitutional statutes adopted by the ordinary legis-
lature has come to significantly blur the distinction between constituent
and constituted power. For even if the legislature is forced to act by
means of a qualified voting procedure, the originally ‘extra-​legal’ power
to change the constitution is here delegated to an organ of the State. To
nevertheless protect some core areas reserved for the constituent power,
an increasing number of constitutional orders has therefore identified
unamendable parts within their constitutions.46 These essential constitu-
tional choices cannot be ‘delegated’ to the government acting through
constitutional statutes. Article 79(3) of the German Basic Law, to use
this example again, consequently outlaws all amendments that affect its
core identity, such as the division of the German Federal Republic into
Länder and the democratic and social character of the German State.
These matters are seen to be eternal; yet they are of course only eternal
in the sense of being removed from amendment under the existing con-
stitutional order. For instead of binding the sovereign,47 they reserve this
power to the original constituent power.

46
For a wonderful analysis of this phenomenon, see Y. Roznai, ‘Unconstitutional Constitutional
Amendments –​The Migration and Success of a Constitutional Idea’ (2013) 61 American
Journal of Comparative Law 657.
47
For the opposite view see T. Ginsburg, ‘Constitutionalism: East Asian Antecedents’ (2012)
88 Chicago-​Kent Law Review 11 at 17 (emphasis in original): ‘Constitutionalist norms are
those of a legal character that constrain the sovereign itself, not merely the agents of the
sovereign.’

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 Constitutionalism(s) 53

Express ‘eternity clauses’ will often be found in constitutions whose

amendment procedures offer a significant level of flexibility. But even in
the absence of such provisions, any formal constitution will always rec-
ognize implicit limits governing its amenability.48 For an amendment to
something must, by definition, remain a non-​essential change that needs
to respect the ‘identity’ of the thing to be amended.49 The amendment
power within a constitution should consequently never allow for ‘funda-
mental’ changes to a State’s fundamental law. A State ought thus not be
able to legally transform itself from a republic to a monarchy;50 nor should
a federal union be allowed to legally transform itself into a unitary state.
The idea of implicit limits to the amendment power has been accepted by
several constitutional courts; and a good illustration is here offered by the
Indian constitutional order and its ‘basic structure’ doctrine:

[I]‌
f by constitutional amendment, Parliament were granted unlimited power
of amendment, it would cease to be an authority under the Constitution, but
would become supreme over it, because it would have power to alter the entire
Constitution including its basic structure and even to put an end to it by totally
changing its identity. It will therefore be seen that the limited amending power
of Parliament is itself an essential feature of the Constitution, a part of its basic
structure, for if the limited power of amendment were enlarged into an unlimited
power, the entire character of the Constitution would be changed.51

This brings us to discuss one final point: formal constitutionalism may,

paradoxically, allow for informal constitutional amendments. The reason
for this lies in the fact that a formal constitution must not necessarily
mean a ‘written’ constitution. A formal constitution can be composed of
written as well as customary norms that have come to enjoy ‘formal’ con-
stitutional status. The meaning of the constitution may thus be ‘amended’
by a judicial interpretation that is seen to have constitutional status. For
example: when the US Supreme Court holds two very different interpret-
ations of the Commerce Clause before and after the New Deal, an informal

48
For the classic treatment here, see  C. Schmitt, Verfassungslehre (Duncker & Humblot,
2010), 101–​112.
49
See for example § 112 of the Norwegian Constitution:  ‘Such amendment must never,
however, contradict the principles embodied in this Constitution, but solely relate to
modifications of particular provisions which do not alter the spirit of the Constitution[.]‌’
50
For the express provision here, see Article 89 of the 1958 French Constitution:  ‘The
Republican form of government is not subject to revision.’
51
Minerva Mills Ltd. and Others v. Union of India and Others, AIR 1980 SC 1789 at 1824.

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 54 Robert Schütze

constitutional amendment has taken place.52 A  formal constitution can

thus still be a ‘living constitution’.53 Yet to remain within the parameters
of formal constitutionalism, all constitutional amendments  –​whether
written or unwritten –​must be distinct from the ordinary legislative pro-
cedure; for else the key characteristic of the formal idea of a constitution
as a fundamental law is lost.

3  Material Constitutionalism: ‘Democratic’
and ‘Liberal’ Constitutions

The formal idea of a constitution as the highest law within a political com-
munity competes with the idea that only certain kinds of constitutions are
‘real’ constitutions.54 The material understanding of what a constitution
ought to do (to be styled as such) emerged in the long nineteenth cen-
tury and has since become the dominant understanding. It links the idea
of the constitution with two ‘material’ ideas: (representative) democracy
and limited government. A democratic constitutionalism thus insists on
a ‘government of the people, by the people, for the people’, while a lib-
eral constitutionalism claims that only those constitutions that guarantee
a separation of powers and (human) rights will be ‘real’ constitutions.
Constitutions that lack any of these elements are ‘façade’ constitutions.

a  Democratic Constitutionalism: Popular Sovereignty

and Representative Government
Constitutionalism seen through the democratic lens insists that all power
must, directly or indirectly, be exercised by the people; and where this is
not the case, we cannot speak of a constitution in the first place.
On a foundational level, democratic constitutionalism therefore demands
that it must be the people that create a constitution: ‘The constitution of

52
B. Ackerman, We the People  –​Volume 2:  Transformations (Harvard University Press,
1998), especially Chapter 11: ‘The Missing Amendments’.
53
See especially: B. Ackerman, ‘The Holmes Lectures: The Living Constitution’ (2007) 120
Harvard Law Review 1737 at 1742: ‘It is judicial revolution, not formal amendment, that
serves as one of the great pathways for fundamental change marked out by the living
Constitution.’
54
For the idea of ‘façade’ constitutions, see G. Sartori, ‘Constitutionalism: A Preliminary
Discussion’ (1962) 56 American Political Science Review 853; and for a more recent look,
see D.S. Law and M. Versteeg, ‘Sham Constitutions’ (2013) 101 California Law Review 863.

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 Constitutionalism(s) 55

a country is not the act of its government, but of the people constituting
a government.’55 Popular sovereignty can thereby express itself either dir-
ectly or indirectly. A strict version would require that the people directly
adopt their constitution through a referendum;56 yet a softer version of
democratic constitutionalism allows this task to be delegated to an elected
‘constitutional’ assembly that can adopt the constitution on behalf of the
people.57 This foundational dimension is however only one element of
democratic constitutionalism. For an undemocratically created constitu-
tion might still set up democratic institutions, while a popular referendum
might create an undemocratic regime.58
A governmental system is traditionally regarded as democratic when it
is composed ‘of’ the people. The modern ‘translation’ of this democratic
ideal is, as we saw in Section 1(b), representative democracy. Within a
representative government, democracy means that the legislature, the
executive and even the judiciary, should be elected by the people. Yet
hardly any State constitution has created completely democratized gov-
ernmental structures:  not only is the judicial branch often unelected,
non-​democratic elements may also be found in the legislative branch.59
The democratic credentials of a constitutional regime will therefore
typically depend on the powers possessed by the legislature. But what
about the executive? Here, two models of democratic government have
developed:  the parliamentary model and the presidential model. In the
parliamentary model, the (governing) executive –​the prime minister and
the cabinet  –​will be elected and controlled by parliament; whereas a
presidential system will typically invest the  –​independent  –​executive
with its own direct democratic legitimacy.60
Finally, what about the idea of a government for the people? This third
element of democratic constitutionalism emphasizes that elected officials
must exercise public power not only in the name of the people but also

55
See T. Paine, Rights of Man (n. 4), 89.
56
For example, the (current) French Constitution for the Fifth Republic was adopted by a
referendum.
57
For an illustration of this indirect democratic source, see the 1919 (Weimar) Constitution
of Germany. The 1949 German Constitution was also originally adopted by the state
parliaments.
58
The 1852 Constitution of the Second French Empire was ratified by a plebiscite; and yet
it established an undemocratic government.
59
In the United Kingdom, the second chamber (the House of Lords) is not elected.
60
On these points, see Chapters 13 and 14 in this volume.

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 56 Robert Schütze

for their benefit. This qualitative criterion behind republican constitution-

alism has however lost most of its meaning today. It can perhaps still be
found in moments when a Head of State or a constitutional court vetoes a
legislative act that –​while formally democratic –​is nevertheless not seen
to reflect the ‘public good’; or where a parliament refuses to adhere to a
referendum result because it would significantly hurt future generations
and the prosperity of the political community as such. These forms of
‘guardianship’ on behalf of the people are often seen with suspicion; and
yet, they are theoretically and historically an integral part of democratic
constitutionalism.

b  Liberal Constitutionalism: Limiting the Powers of Government

aa  Limited Government I: The Separation of Powers Principle

The central tenet of liberal constitutionalism is to establish limits to ‘the

[i]‌nconveniences of [a]bsolute power’.61 It aims to protect freedom by
establishing a ‘government of laws, and not of men’.62 For governmental
power, even democratic governmental power is dangerous when used
arbitrarily.63
One of the oldest constitutional devices of limiting absolute power is
to split it, therefore ‘balance[ing] the [p]‌ower of [g]overnment, by pla-
cing several parts of it in different hands’.64 However, the central question
behind the separation of powers doctrine has always been this: which gov-
ernmental parts should be placed into which governmental hands? Liberal
constitutionalism has here built on a tripartite division that was originally
developed by a French aristocrat: Baron Charles de Montesquieu. When
he published The Spirit of Laws in 1748, three powers were famously
identified:

61
J. Locke, Two Treatises of Government (Cambridge University Press, 2005), II § 107 = 338.
62
J. Harrington, as quoted in W.B. Gwyn, The Meaning of the Separation of Powers
(Martinus Nijhoff, 1965) 13.
63
In the famous words of J. Madison in ‘Federalist No 51’ (n. 20), 252: ‘If men were angels,
no government would be necessary. If angels were to govern men, neither external nor
internal controls on government would be necessary. In framing a government which is
to be administered by men over men, the great difficulty lies in this: you must first enable
the government to control the governed; and in the next place oblige it to control itself.
A dependence on the people is, no doubt, the primary control on the government; but
experience has taught mankind the necessity of auxiliary precautions.’
64
J. Locke, Two Treatises of Government (n. 61), II § 107 = 338.

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 Constitutionalism(s) 57

In each state there are three sorts of powers: legislative power, executive power
over the things depending on the rights of nations, and executive power over
the things depending on civil right. By the first, the prince or the magistrate
makes laws for a time or for always and corrects or abrogates those that have
been made. By the second, he makes peace or war, sends or receives embassies,
establishes security, and prevents invasions. By the third, he punishes crimes or
judges disputes between individuals. The last will be called the power of judging,
and the former simply the executive power of the state.65

And having acknowledged three governmental ‘powers’ or functions,

Montesquieu then moved on to advocate their distribution between
different institutions:

When legislative power is united with executive power in a single person or in a

single body of the magistracy, there is no liberty, because one can fear that the
same monarch or senate that makes tyrannical laws will execute them tyrannic-
ally. Nor is there liberty if the power of judging is not separate from legislative
power and from executive power. If it were joined to legislative power, the power
over the life and liberty of the citizens would be arbitrary, for the judge would be
the legislator. If it were joined to executive power, the judge could have the force
of an oppressor.66

But did distribution here mean that each separate power would need to
be given to a separate institution? Liberal constitutionalism has given two
distinct answers to this question. According to the functional separation
version, each governmental institution must not be given more than one
governmental power.67 The separation between the making of laws and
their (administrative or judicial) execution is here designed to create a
‘rule of law’ in which the men who made the law would also be subject
to it. This idea was subsequently expanded to define the –​liberal –​con-
stitutional prohibition on the legislature not to pass ‘individual laws’,
that is, laws that are tailored for a single individual or a limited group
of individuals.68 At the same time, the executive is –​theoretically –​not

65
C. de Montesquieu, The Spirit of the Laws (edited by A. Cohler et al., Cambridge University
Press, 1989), 156.
66
Ibid., 157.
67
The theory of a functional separation of powers finds (almost) no matching constitutional
practice.
68
For the US Constitution, see Art I, Section 9: ‘No Bill of Attainder or ex post facto Law
shall be passed.’

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 58 Robert Schütze

allowed to exercise any law-​making power, as this is an exclusive power

of the legislature.
According to the institutional cooperation version, on the other hand,
each governmental function should be distributed over more than one
institution: ‘In order to form a moderate government, one must combine
powers regulate them, temper them, make them act; one must give one
power a ballast, so to speak, to put it in a position to resist another[.]‌’69
The exercise of the legislative function should thus ideally involve more
than one institution: ‘[The] legislative body is composed of two parts, the
one will be chained to the other by their reciprocal faculty of vetoing. The
two will be bound by the executive power, which will itself be bound by
the legislative power.’70 The idea behind this second version is to create a
system of checks and balances; and from that second point of view, the
modern English ‘parliamentary system’ violates the separation of powers
doctrine, since it is based on a ‘fusion’ –​not a separation –​of the legisla-
tive and executive branch.71

bb  Limited Government II: Fundamental Rights

The idea of fundamental rights is an achievement of liberal constitution-

alism. It is based on the discovery of the ‘individual’ –​a discovery that
ultimately led to the protection of an inviolable private sphere.72 This idea
was minted into constitutional form during the American Revolutionary
War. The 1776 Virginia Declaration of Rights stated: ‘That all men are by
nature equally free and independent and have certain inherent rights, of
which, when they enter into a state of society, they cannot, by any com-
pact, deprive or divest their posterity’.73 This idea of inalienable rights
was to eventually inspire the adoption of the US ‘Bill of Rights’; and
it was subsequently expressed in the 1789 (French) Declaration of the

69
C. de Montesquieu, The Spirit of the Laws (n. 65), 63.
70
Ibid., 164.
71
In the words of W. Bagehot, The English Constitution (Oxford University Press, 2001)
11: ‘The efficient secret of the English Constitution may be described as the close union,
the nearly complete fusion, of the executive and legislative powers. According to the
traditional theory, as it exists in all the books, the goodness of our constitution consists
in the entire separation of the legislative and executive authorities, but in truth its merit
consists in their singular approximation. The connecting link is the cabinet. By that new
word we mean a committee of the legislative body selected to be the executive body.’
72
E. Wolgast, Geschichte der Menschen-​und Bürgerrechte (Kohlhammer, 2009), 33.
73
1776 Virginia Declaration of Rights, Art. 1.

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 Constitutionalism(s) 59

Rights of Man and of the Citizen.74 The declaration famously insisted on

‘natural’ rights that even bound the constitution-​makers;75 and it soon
became the symbol and stimulus for the liberal constitutionalism of the
nineteenth century.
In the twentieth century, the protection of fundamental rights has
become a central task of most constitutions.76 Unlike the separation of
powers doctrine that operates as a political safeguard of liberalism, the
protection of human rights is typically conceived of as a judicial safe-
guard of liberalism that is identical with constitutional review of gov-
ernmental action.77 A thin liberal constitutionalism here restricts judicial
review to actions of the executive.78 A thick liberal constitutionalism, on
the other hand, insists that even parliamentary legislation must be judi-
cially reviewed in light of possible violations of fundamental rights.79
But which types of human rights are seen as essential human rights?
The eighteenth and nineteenth century (almost) exclusively thought of
‘liberal’ rights, such as freedom of property. (For Locke, the very purpose
of why people would create a government was ‘the preservation of their
property’.80) Within the twentieth century, these liberal or ‘negative’ rights
were complemented by a set of ‘positive’ or welfare rights. Political com-
munities came to be seen as solidarity communities in which the State
must guarantee all individuals a decent human life. The welfare state or
‘social state’ must actively assist the poor through a redistribution of pri-
vate wealth.81 In capitalist societies, this is generally done via taxation.
In socialist societies, on the other hand, the process of wealth generation

74
For an analysis and historical interpretation of the declaration, see Wolgast, Geschichte
der Menschen-​und Bürgerrechte (n. 72), Chapter 2.
75
These rights were not ‘founded’ but simply ‘declared’ –​hence the title: ‘Declaration’ –​by
the constitutional assembly.
76
On human rights as constitutional rights, see A. Sajó, Limiting Government (Central
European University Press, 1999), Chapter 8.
77
See M. Cappelletti, Judicial Review in the Contemporary World (Bobbs-​Merrill, 1971).
78
Traditionally, this is the case for the United Kingdom. On this, see Chapters 3 and 11 in
this volume.
79
The classic example here is the United States. On this, see Chapter 5 in this volume.
80
J. Locke, Two Treatises of Government (n. 61), II §124 = 351. Contrast this ‘English’ view
with the ‘French’ view as offered by Montesquieu (n. 65), 455: ‘A few alms given to the
naked man in the streets does not fulfil the obligations of the state, which owes all the
citizens an assured sustenance, nourishment, suitable clothing, and a kind of life which
is not contrary to health.’
81
For the German idea of the ‘social state’, see Article 20 Basic Law. See also Article 1 of
the French Constitution as well as Article 1 of the Spanish Constitution.

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 60 Robert Schütze

is itself controlled; as the means of production were here held to be ‘state

property’ or ‘people property’.82
The balance between liberal rights and social rights has always
been one of the most pressing questions for liberal constitutionalism.
The danger of overemphasizing liberal rights lies in creating a liber-
tarian society in which formal equality masquerades over a society
of dramatic material inequalities,83 and in which democracy will no
longer work for everyone because re-​distributive questions have been
removed from the democratic process.84 The danger of overemphasizing
equality lies in ignoring differences of private ability and enterprise,
with a totalitarian public sphere repressing all individual differences.
Most modern liberal democracies have therefore tried to stir a middle
path between individualism and communitarianism. With regard to
organizing their economies, many nation states thus combine a pri-
vate market economy with public elements to create a ‘mixed’ eco-
nomic constitution.85

4  Excursion: Federal Constitutionalism as a
Distinct Standard

The notions of ‘constitution’ and ‘constitutionalism’ have, in the past

three hundred years, been mainly identified with the (unitary) state. The
classic definition here holds: ‘The fundamental [law] that determines the
manner in which the public authority is to be exercised, is what forms
the constitution of the State. In this is seen the form in which the nation
acts in quality of a body politic[.]‌’86
This view correlates the concept of the constitution with that of the
State;87 and this state-​centred definition has meant that other phenomena,
82
See n. 31.
83
This is perhaps best expressed in the bonmot by Anatole France according to which ‘the
majestic equality of the laws prohibits the rich and the poor alike to sleep under the
bridges, beg in the streets and to steel bread’.
84
For the idea that a degree of ‘social’ equality is necessary for democracy to work, see A. de
Tocqueville, Democracy in America, Volume I, (trans. H. Reeve, P. Bradley (ed.)) (Vintage
1954), Volume 1 –​Chapters 3 and 4.
85
For the masterful Italian study here, see S. Cassese, La Nouva Constituzione Economica
(Laterza, 2012).
86
E. de Vattel, The Law of Nations (trans. J. Chitty) (Johnson & Co., 1883), Book I, §27.
87
For this outdated conceptual ‘nationalism’, see the work of D. Grimm, ‘Does Europe Need
a Constitution?’ (1995) 1 European Law Journal 282.

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 Constitutionalism(s) 61

such as Unions of States, have traditionally not easily fitted into the con-
stitutional categories discussed above. But when the United States (in the
plural when founded) adopted their ‘constitution’, they did not conceive
of the Union as a nation state; and since each of the States within the
Union had its ‘constitution’,88 there now existed two parallel constitu-
tional orders for each American citizen, each of whom was represented
in two parallel parliaments and each of whom was potentially protected
by two parallel bills of rights. In what sense, then, does a federal order
therefore require its own –​federal –​constitutionalism?
Let us explore this question in this final section.

a  Formal Perspective: Two Competing Constitutional Claims

We saw above that formal constitutionalism defines a constitution as
the highest law within a legal order; and it should therefore follow that
there can only be one supreme  –​constitutional  –​law within a polit-
ical community. This ‘unitary’ theory has however never lived up to the
constitutional practice of federal orders, where both the Union and its
Member States are seen to have constitutional claims. In addition to fed-
eral constitutional law there has always existed state constitutional law;89
and the co-​existence of two constitutional levels here derives from the
co-​existence of two political bodies in a compound structure.
But more importantly still: unlike unitary States, where the supremacy
issue is settled, federal unions are often characterized by a situation in
which the locus of sovereignty remains suspended. When ‘fundamental’
questions here arise –​say, the abolition of slavery in nineteenth-​century
America –​significant constitutional conflicts may emerge that cannot be
solved by legal means and that will often be decided by the force of fact
or the facticity of force.90
This fundamental insight into the constitutional plurality of Unions of
States has today become marginalized in some of the older federal unions,

88
For the perhaps most famous one here, see the 1776 Virginia Constitution.
89
For the German federal order, see for example the discussion on the constitutional law of
Saxony by C. Degenhart, Staats-​und Verwaltungsrecht Freistaat Sachsen (Müller, 2013).
90
On the existence of constitutional conflicts in the United States before and after the Civil
War, see R. Schütze, ‘Federalism as Constitutional Pluralism: Letter from America’, in M.
Avbelj and J. Komárek (eds.), Constitutional Pluralism in the European Union and Beyond
(Hart Publishing, 2012), 185.

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 62 Robert Schütze

such as the United States and Germany. However, the pluralist constitu-
tionalism within federal orders has been ‘re-​discovered’ in the context of
the European Union. Here, two supremacy claims  –​one from the Union
and one from its Member States –​still openly compete. In Costa v. ENEL,91
the European Court of Justice thus insisted on the supremacy of all EU law
over all Member State law; yet this EU perspective is –​unsurprisingly –​not
shared by the Member States. For while accepting that the EU constitutes
a ‘new legal order’ distinct from classic international law, many Member
States continue to insist that the validity of European law must ultimately
be measured against their national constitutions. This dual perspective on
the supremacy question within Europe has been taken up by an academic
movement called ‘constitutional pluralism’,92 but the better view has always
been to simply see it as a manifestation of constitutional federalism or fed-
eral constitutionalism.

b  Material Perspective: Dual Democracy and Dual

Fundamental Rights
Who embodies the ‘constituent power’ within a federal union? Believing
that the 1787 US Constitution had ‘split the atom of sovereignty’,93 early
American constitutionalism conceived of the constituent power as a plur-
ality of peoples. The 1787 Constitution had thus been ratified ‘by the
people, not as individuals composing one entire nation, but as composing
the distinct and independent States to which they respectively belong’.
‘Each State, in ratifying the Constitution, [was] considered as a sovereign
body, independent of all others, and only to be bound by its own volun-
tary act.’94 The famous phrase ‘We, the People’ in the US Constitution must

91
Case 6/​64 Costa v. ENEL [1964] ECR 585.
92
The movement gained momentum in the aftermath of the Maastricht judgement by the
German Federal Constitutional Court. See J. Baquero-​Cruz, ‘The Legacy of the Maastricht-​
Urteil and the Pluralist Movement’ (2008) 14 European Law Journal 389.
93
US Term Limits, Inc v. Thornton, 514 US 779 (1995), 838 (Justice Kennedy).
94
J. Madison in A.  Hamilton et  al., The Federalist (n. 20), 184–185. To bring the point
home, Madison continues (ibid., 185): ‘Were the people regarded in this transaction as
forming one nation, the will of the majority of the whole people of the United States
would bind the minority, in the same manner as the majority in each State must bind
the minority; and the will of the majority must be determined either by a comparison of
the individual votes, or by considering the will of the majority of the States as evidence
of the will of a majority of the people of the United States. Neither of these rules have
been adopted.’

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 Constitutionalism(s) 63

therefore be read with two qualifications in mind. First, it did not refer to
a popular referendum; and, secondly, it also did not refer to the ‘American
people’ but instead the peoples of the several states.95
The best theoretical generalization of a ‘federal’ constituent power has
come from the pen of Carl Schmitt.96 Accordingly, the normative foun-
dation of every Union of States is a ‘federal treaty’. This ‘federal treaty’
is an international treaty of a constitutional nature.97 ‘Its conclusion
is an act of the pouvoir constituant. Its content establishes the federal
constitution and forms, at the same time, a part of the constitution of
every Member State.’98 Each Union of States is here seen as a creature
of international and national law.99 Unlike unitary constitutionalism, the
constitution-​making power therefore lies not in the unitary body of ‘the’
people, because the idea of a single sovereign subject is replaced with that
of a pluralist constituent power. From the perspective of democratic con-
stitutionalism, the constituent power behind a Union of States will always
be the state peoples instead of a single ‘demos’.
This duplication of the democratic base can also be found vis-​à-​vis
the constituent powers. For unlike unitary States, where parliamentary
democracy demands that all legislative power should be placed in one
parliament, in a Union of States, there will always be two democratic con-
stituencies: each State will have its own ‘demos’, while the Union will also
have a ‘demos’ that is constructed out of the various State populations.
Each of these democratic constituencies offers an independent source of
democratic legitimacy; and a federal constitutionalism must take account
of this dual democracy. Thus:  the division of legislative powers within
a federal Union means that depending on the area, either the federal

95
The original 1787 draft preamble indeed read:  ‘We, the people of the States of New
Hampshire, Massachusetts, Rhode-​Island and Providence Plantations, Connecticut, New-​
York, New-​Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-​Carolina, South-​
Carolina, and Georgia, do ordain, declare and establish the following Constitution for
the government of ourselves and our posterity.’ However, due to the uncertainty about
which of the thirteen States would succeed in the ratification (according to Art. VII of
the Constitution-​to-​be, only nine states were required for the document to enter into
force), the enumeration of the individual States was dropped by the ‘Committee of Style’
(M. Farrand, The Framing of the Constitution of the United States (Yale University Press,
1913), 190–​191).
96
C. Schmitt, Verfassungslehre (n. 48), esp. Part IV.
97
Ibid., 367 and 368 (all my translations).
98
Ibid.
99
Ibid., 379.

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 64 Robert Schütze

parliament or the state parliaments will be competent; and even with

regard to the composition of the federal legislator we often find it made
up of two chambers. In this bicameralism, every union law is dually
legitimized by reference to two democratic sources:  the consent of the
Union ‘people’ and the consent of the State peoples.
The same duplication can be found in relation to other material elem-
ents within modern constitutionalism. For example, we saw above that a
liberal constitutionalism demands that for there to be a constitution, there
needs to be a separation of powers and the protection of fundamental
rights. And each of these elements will typically be found both within
the federal as well as the state constitutions. With regard to fundamental
rights in the United States (or the European Union) for example, we will
thus encounter two levels of fundamental rights protection. Federal rights
will apply against the federal government, while state fundamental rights
apply against a State government.100 Table 2.4 summarizes the differences
between the unitary and the federal standard across our three variants of
constitutionalism.

Conclusion

This chapter has explored the question what a constitution is or ought

to be. Various conceptions of such ‘constitutionalism(s)’ have emerged in
legal history; and the predominant way of thinking about constitutions
today is offered by ‘liberal democratic’ constitutional thought. The latter
identifies a constitution by means of three elements. First, a constitution
is formally seen as the highest law that applies within a State (or Union).
According to the democratic element, this higher law must –​secondly –​
be adopted by the people(s). Finally, the liberal element insists that all
public power must be limited and principled.
Historically, the third element is thereby often seen as the most
important one:  ‘in all its successive phases, constitutionalism has one
essential quality: it is a legal limitation on government.’101 Yet this liberal

100
In the past, many federal orders have nevertheless insisted that federal fundamental
rights might, in certain situations, be ‘incorporated’ into the state constitutional orders.
For a comparative overview of the US and EU approaches here, see R. Schütze, ‘European
Fundamental Rights and the Member States: From “Selective” to “Total” Incorporation?’
(2011–​2012) 14 Cambridge Yearbook of European Legal Studies 337.
101
C.H. McIlwain, Constitutionalism: Ancient and Modern (n. 1), 21.

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 Constitutionalism(s) 65

Table 2.4  Unitary and Federal Constitutionalism: An Overview

Unitary Standard Federal Standard

Formal There is one constitution There are two

Constitutionalism in one polity, where the constitutional levels in a
supremacy issue has compound polity, where
one solution. the supremacy issue has
no solution.
Democratic The constitution is The constitution is founded
Constitutionalism founded by one people on the basis of a treaty
Foundational Origin (‘We, the People’). between multiple peoples
Parliamentary The legislator is (ideally) (‘We, the Peoples’).
Structure composed of one The legislator is composed
Parliament and of two chambers,
represents one people. whereby the first
represents the federal
people and the second
the state peoples.
Liberal There is one horizontal There is a horizontal and
Constitutionalism separation of powers. a vertical separation of
Separation of Powers There is (typically) one powers.
Human Rights Bill of Rights. There is (typically) a
federal and a State Bill
of Rights.

identification of constitutionalism with ‘limited government’ is deeply

reductionist. It reduces the task of a constitution to a negative or guaran-
teeing function and thereby discards its positive and ‘constructivist’ pur-
pose.102 Constitutions may indeed not only abolish ancient institutions or
social orders;103 they can positively create new ones. This creative dimen-
sion has led some scholars to identify constitutions with the very process
of political integration;104 and the classic eighteenth-​century example of

102
This positive function has also been called ‘revolutionary constitutionalism’. See  S.
Gardbaum, ‘Revolutionary Constitutionalism’ (2017) 15 International Journal of
Constitutional Law 173.
103
For this positive aspect, see especially the 1791 French Constitution:  ‘The National
Assembly, wishing to establish the French Constitution upon the principles it has just
recognized and declared, abolishes irrevocably the institutions which were injurious to
liberty and equality of rights.’
104
R. Smend, Staatsrechtliche Abhandlungen und andere Aufsätze (Duncker & Humblot,
1994), especially: ‘Verfassung und Verfassungsrecht’ (1928).

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 66 Robert Schütze

creating and integrating a ‘new order’ has been the United States. With
the failure of the socialist constitutions in the twentieth century, the best
contemporary illustration of such a constructivist constitution may well
be the EU Constitution. For this ‘new legal order’ represents the most
dynamic transnational constitutional order in the world today.105

Further Reading

R. Albert, Constitutional Amendments: Making, Breaking, and Changing

Constitutions (Oxford University Press, 2019).
G. Casper, Constitutionalism (1987) University of Chicago Law Occasional Papers
No. 22.
T. Cottier and M. Hertig, ‘The Prospects of 21st Century Constitutionalism’ (2003)
7 Max Planck Yearbook of United Nations Law 261–​328.
S. Gordon, Controlling the State: Constitutionalism from Ancient Athens to Today
(Harvard University Press, 1999).
J.-​E. Lane, Constitutionalism and Political Theory (Manchester University
Press, 1996).
M. Loughlin, The Idea of Public Law (Oxford University Press, 2003).
C.H. McIlwain, Constitutionalism: Ancient and Modern (Liberty Fund, 2008).
J.E.K. Murkens, ‘The Quest for Constitutionalism in UK Public Law Discourse’
(2009) 29 Oxford Journal of Legal Studies 427–​455.
G. Sartori, ‘Constitutionalism:  A Preliminary Discussion’ (1962) 56 American
Political Science Review 853–​864.
R. Schütze, ‘Constitutionalism and the European Union’, in  C. Barnard and S.
Peers (eds.), European Union Law (Oxford University Press, 2017), 71–​96.

R. Schütze, European Constitutional Law (Cambridge University Press, 2015).

105

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