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Bellamy on Constitutionalism

By Lawrence Solum

Richard Bellamy (University College London - Department of Political Science) has posted Constitutionalism (INTERNATIONAL ENCYCLOPEDIA OF POLITICAL SCIENCE, B. Badie, D. Berg-Schlosser and L. Morlino, eds., IPSA/Sage, Forthcoming) on SSRN. Here is the abstract:

Constitutionalism is sometimes regarded as a synonym for limited government. On some accounts, this doctrine is associated in its turn with minimal or less government. But that is only one interpretation and by no means the most prominent historically. A more representative general definition would be that constitutionalism seeks to prevent arbitrary government. At its most generic level, arbitrariness consists in the capacity of rulers to govern wilfully ? that is, with complete discretion - and to serve their own interests rather than those of the ruled.

Constitutionalism attempts to avoid these dangers by designing mechanisms that determine who can rule, how and for what purposes. However, constitutional traditions differ as to what precisely counts as an arbitrary act and which mechanisms offer the best defence against their occurring. The classical, neo-republican tradition of political constitutionalism identifies arbitrariness with domination of the ruled by their rulers, and seeks to avoid it by establishing a condition of political equality characterised by a balance of power between all the relevant groups and parties within a polity, so that no one can rule without consulting the interests of the ruled. The more modern, liberal tradition identifies arbitrariness with interference with individual rights, and seeks to establish protections for them via the separation of powers and a judicially protected constitution. We begin by tracing these two traditions, and then turn to exploring their respective advantages and disadvantages and any tensions and complementarities that exist between them.

Full post as published by Legal Theory Blog on September 15, 2010 (boomark / email).