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A Critique of Contemporary Constitutionalism Author(s): Glenn N. Schram Source: Comparative Politics, Vol. 11, No. 4 (Jul., 1979), pp.

483-487 Published by: Ph.D. Program in Political Science of the City University of New York Stable URL: Accessed: 16/09/2010 07:16
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Comment and Opinion

A Critique of Contemporary Constitutionalism

Glenn N. Schram Marquette University

The circumstances constitutionalism of if have become somewhatstraitened the articleon the subjectby HarveyWheelerin the recentlypublishedHandbookof Political Science1andRaoul Berger'shighly publicizedGovernment Judiciby ary2 can be considered representativeof current thought in the field. This assessment will be supported,and an explanationgiven of why there is cause for concern, in the following analysis of the Wheeler article and the Berger book. As one would expect, Wheeler summarizessome widely known materialon constitutionalism.He also incorporates into his articleconsiderabletheorizing on the historyand psychology of religion and philosophy;and he elaborateson Calvin's Case, decided in 1608 by the English ExchequerChamber, and its significance for subsequentAnglo-Americanconstitutionalhistory. No issue aboutthese matterswill be raisedhere. It shouldbe pointedout that the names of at least four scholars (Benjamin N. Cardozo, FriedrichA. Hayek, Ernst Kantorowicz,and Ferdinand Tonnies) aremisspelled, andthatthe meaningsof Tonnies' concepts of Gemeinschaftand Gesellschaft are reversed (the former renderedas society, the latter as community). The major concern, however, will be with Wheeler's account of the nature of constitutionalism and of constitutionalgovernment. Constitutionalism,Wheeler says, purportsto direct law and government towardthe realizationof the common good "throughthe collective efforts of ordinarypeople, even though as individualsthey might act only from selfish and privatemotives""; it "attemptsto elicit, protect, and magnify the applica0010-4159/79/0715-0006$02. 50/1

? 1979 The City University of New York


ComparativePolitics July 1979 tion of democraticcivic wisdom to the problemsof government."4 But then he suggests' that these notions of democracy and of the balance of interests constitutionalism,leaving open the quesdistinguishmodernfrom premodern tion of whatconstitutionalismis in general. It apparently not the belief in the is rules, for then desirabilityof governmenteffectively limited by preestablished it would resemble constitutionalismas conceived of by CharlesH. McIlwain, and Wheeler seems not to share this conception. According to McIlwain, "in all its successive phases, constitutionalismhas one essential quality: it is a legal limitation on government."" McIlwain understandslaw to include custom, whetherembodied in legislation or not,7 and, if one keeps in mind his broad definition of law, one may say that he conceives of constitutionalgovernmentas the rule of law. But constitutional governmentas the rule of law Wheelerconsidersto be a liberalor a neoliberal notion,8 as if the belief in it were unique to the period from the seventeenth centuryto the present. In fact, the rule of law in McIlwain's sense has been espoused in England since the sealing of Magna Carta, and all ancient and medieval regimes which are usually considered constitutional were characterized by it, even though the term constitution has come to be specifically identified with it only in modern times. Wheeler maintains that "ancient constitutionalism dealt with an allembracing state."9 Certainly it is true that in ancient Athens the individual found fulfillmentin the community,which could place greatdemandson him; but it also is true that governmentalinstitutionswere effectively limited by custom. Perhapsif Wheeler had been clearerabout ancient constitutionalism, and had been less concerned to identify McIlwain's definition of conwith neoliberalism,0o would have adoptedthatdefinition. Not stitutionalism he only has it the advantageof reflecting the common denominatorof regimes usually considered constitutional, it has the added merit of referring to a phenomenonof great value, as will be pointed out below. British constitutionalism,in particular,Wheeler thinks to have been "little more than the institutionalization civil disobedience.""1This statementis of for civil disobedienceinvolves disregardfor the law (to be sure, in an puzzling, effort to affect public policy and not for immediate personal gain), and the of institutionalization it would be not constitutionalgovernment, but a crime wave. The aim of constitutionalism the obedience, not the infraction,of rules is (or so it was thought for a very long time). The fact is that Wheeler is disillusioned about constitutionaldemocracy, to even though, his protestations the contrarynotwithstanding,12 American the well in the Watergate crisis: it was possible to force the systemfunctionedrather culpritsfromoffice withoutrecourseto civil disobedienceor revolution. All he can say for constitutional democracy is "that complex, highly articulated culturesmust elicit the rationaland creativeparticipation coordinationof a and 484

Glenn N. Schram large numberof people in orderto functionwell," andthat "the most efficient modem device for achieving this has been some form of constitutionalism." '13 Wheelerdoes not explain, however, what it is for a society to functionwell, what the relationis between popularparticipation coordination,on the one and hand, and the well-functioning of society, on the other, or how, precisely, constitutional regimes (by which he means constitutionaldemocracies) enhance this participationand coordination, particularlywhen there are other alternatives besides "the dictatorial application of police terror" and "the maintenanceof aggressive militarism."14 One thinks also of old-fashioned authoritarianism a modicumof popularpolitical involvementat the grasswith roots level, and one wonderswhy, in Wheeler'sjudgment, the United States is preferableto Yugoslavia. In fact, constitutionalgovernment, in the sense of governmenteffectively limited by preestablished rules, whetherthe governmentbe democraticor not, is something of immense value, and was so interpreted long before the emerof "complex, highly articulated cultures." Thatthe governmentshould gence not proceed againsta person except in accord with preestablished(and generally known) rules is one of the oldest principlesof Anglo-Americanpolitics, and it expresses a perfectlylegitimate humanwish: to know where one stands vis-a-vis the government,to be able to planone's activities in the knowledgeof what will, and of what will not, cause difficulties with the authorities. If, moreover, governmentalofficials are bound by preexistentrules not of their making, as they tend to be, if by preexistentrules they are bound at all, then their being so limited has the furtheradvantageof reducingthe likelihood that personalor narrowlypartisanconsiderationswill affect theiractivities;thus the cause of justice is served. These argumentsfor constitutionalgovernmentare hardly new, and it is unfortunatethat they have to be recalled now, because Wheeler, though insistent on the need to maintain the "myth" of constitutionalism,15 chooses not to include them in the version of it which he advances, and thereby contributes to the very decline in constitutionalism which he deplores. Nor is the cause of constitutionalism helpedby Berger, who comes very close to chargingthe United StatesSupremeCourtwith usurpation16 not adhering for to what, in the light of exhaustiveresearch,he considersto have been the intent of the majorityof authorsof the Fourteenth Amendment.It is quitepossible that he thus detractsfrom the legitimacy of the Court and, consequently, from its ability to curb undoubted usurpationsby other governmental agencies. He himself asks, "How long can public respectfor the Court, on which its power ultimatelydepends, survive if the people become awarethatthe tribunalwhich condemns the acts of others as unconstitutional itself acting unconstitutionis

At issue again is the natureof constitutionalgovernment,and it is plain that 485

ComparativePolitics July 1979 Berger's notion of it would requirea courtalways to respectthe originalintent, if it is known, behind whatever provision of a constitutionaldocument it is applying,even if a wordor phrasesubsequentlyhas acquireda widely accepted meaningdifferentfrom the framers'. For it is precisely undercircumstancesof this kindthatthe SupremeCourttime andagainhas ignoredthe apparent wishes of the authors of the FourteenthAmendment, evoking Berger's charge of unconstitutionalbehavior.18 Berger fails to explain why, undersuch circumstances,the meaning of the authorsought to prevail, other than to cite a traditionalcanon of legislative which states, in blanketterms, thatthe framers'intentshould be interpretation when it is known; he manifestly does not believe the authorsof the respected FourteenthAmendmentto have been men of superiorwisdom. Nor does he consider the possibility that constitutionalitymay include the adherenceby variousgovernmentalagencies, includingcourts boundat least to some extent of by stare decisis, to principlesinherentin judicial interpretations a constitutionaldocument.If he consideredthis possibility, his judgmentof the Supreme Court would be less severe. In the opinionof the presentwriter,judges lay themselvesopen to chargesof arbitrariness, incompetence,and sinful pridewhen, as they recentlyhave done in America, they begin to set percentagesandquotas,"9 to concede this point but is not necessarily to insist that Americanjudges be bound to the intent of the authorsof the Constitutionwhenever it is known. We requireneither a new theory of constitutionalism,as Wheeler asserts,20 nor a new fundamentalism with respect to the Constitution, as Berger thinks; and we should permit and disappointment anxiety neitherto obscurewhat is worthmaintainingin our traditionnor to motivate constitutionalhermeneuticsill-designed to preserve that tradition.

1. Harvey Wheeler, "Constitutionalism," in Fred I. Greensteinand Nelson W. Polsby, eds. HandbookofPolitical Science, vol. V:Governmental Institutions Processes (Reading[Mass.], and 1975). 2. Raoul Berger, Governmentby Judiciary (Cambridge[Mass.], 1977). 3. Wheeler, p. 1. 4. Ibid., p. 5. 5. Ibid., pp. 5-6, 75. 6. CharlesH. McIlwain, Constitutionalism: Ancientand Modern (rev. ed.) (Ithaca, 1947), p. 21. 7. Ibid. 8. Wheeler, pp. 25, 31, 33. 9. Ibid., p. 3. 10. See, in particular,ibid., p. 33. 11. Ibid., p. 6; see also pp. 7 and 47-48.


Glenn N. Schram
12. Ibid., pp. 6, 37. 13. Ibid., p. 85. 14. Ibid. 15. Ibid., pp. 86-87. 16. Berger, p. 408. 17. Ibid., p. 410. 18. Bergerfails to pointout how, in a seriesof decisions beginningwithMissouriex rel. Gaines v Canada (1938), the SupremeCourt so departedfrom the apparentoriginal intent behind the equal-protectionclause as to lead almost ineluctably to its decision against segregated public schools in Brown v. Board of Education (1954), which he criticizes for ignoring the will of the framers.Though he addresseshimself to the ambiguityacquiredover the years by the due-process clause, he says thatit was the Court'sown doing (ibid., pp. 167-68, 258), but why this fact should be consideredgermaneby judges faced with the dilemmaof interpreting clause today is unclear the in the absence of a theory of exegesis. 19. Cf., ibid., p. 413. 20. Wheeler, pp. 77-78.