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Constitutionalisation

Constitutionalisation involves subjecting all governmental action within a designated field to the structures, processes, principles, and values of a constitution. While this phenomenon is impacting governance across levels, its prominence today is mainly due to international arrangements not being easily controlled by national constitutions. Constitutionalisation refers to subjecting all public power exercises, through any medium, to constitutional procedures and norms. This chapter aims to specify the character of constitutionalisation, offer an account of its dynamic, and raise questions about the processes it generates. It argues constitutionalisation is best understood by reference to the related concepts of constitution and constitutionalism, beginning with the 18th century movements giving rise to modern constitutional ideas and theories of constitutionalism. Situating

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Kamya Chandok
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67 views3 pages

Constitutionalisation

Constitutionalisation involves subjecting all governmental action within a designated field to the structures, processes, principles, and values of a constitution. While this phenomenon is impacting governance across levels, its prominence today is mainly due to international arrangements not being easily controlled by national constitutions. Constitutionalisation refers to subjecting all public power exercises, through any medium, to constitutional procedures and norms. This chapter aims to specify the character of constitutionalisation, offer an account of its dynamic, and raise questions about the processes it generates. It argues constitutionalisation is best understood by reference to the related concepts of constitution and constitutionalism, beginning with the 18th century movements giving rise to modern constitutional ideas and theories of constitutionalism. Situating

Uploaded by

Kamya Chandok
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© © All Rights Reserved
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Constitutionalisation involves the attempt to subject all governmental action within a

designated field to the structures, processes, principles, and values of a ‘constitution’. Although
this phenomenon is having an impact across government, its prominence today is mainly
attributable to the realisation that the activity of governing is increasingly being exercised
through transnational or international arrangements that are not easily susceptible to the controls
of national constitutions. Constitutionalisation is the term used for the attempt to subject the
exercise of all types of public power, whatever the medium of its exercise, to the discipline of
constitutional procedures and norms. This chapter aims to specify the character of this
phenomenon, offer an account of its dynamic, and raise some questions about the processes it
engenders. It argues that constitutionalisation is best understood by reference to the related
concepts of constitution and constitutionalism. It begin by considering the 18th-century
movements that gave rise to the modern idea of a constitution and its associated political theory,
that of constitutionalism. By situating constitutionalisation in this context, the chapter offers a
perspective that will help us to reach a judgment on the question of whether this emerging
phenomenon of constitutionalisation signals the global triumph of constitutionalism, its demise,
or its transmutation.

Constitutionality is the condition of acting in accordance with an applicable constitution;


[1] the status of a law, a procedure, or an act's accordance with the laws or set forth in the
applicable constitution. When one of these (laws, procedures, or acts) directly violates the
constitution, it is unconstitutional. All the rest are considered constitutional until challenged and
declared otherwise, typically by courts through judicial review.
An act (or statute) enacted as law either by a national legislature or by the legislature of a
subordinate level of government (such as a state or province) may be declared unconstitutional.
However, governments do not just create laws. Governments also enforce the laws set forth in
the document defining the government—in the Constitution. In the United States, the failure to
seat duly elected representatives of the people following a proper election, or the failure to
provide for such elections would be unconstitutional even in the absence of any legislated laws
whatsoever.
When the proper court determines that a legislative act (a law) conflicts with the constitution, it
finds that law unconstitutional and declares it void in whole or in part. This is called judicial
review. The portion of the law declared void is considered struck down, or the entire statute is
considered struck from the statute books.[disputed – discuss]
Depending on the type of legal system, a statute may be declared unconstitutional by any court,
or only by special Constitutional courts with authority to rule on the validity of a statute. In some
countries, the legislature may create any law for any purpose, and there is no provision for courts
to declare a law unconstitutional. This can occur either because the country has no codified
constitution that laws must conform to (e.g., the United Kingdom and New Zealand) or because
the constitution is codified but no court has the authority to strike down laws on the basis of it
(e.g., the Netherlands and Switzerland).
In many jurisdictions, the supreme court or constitutional court is the final legal arbiter that
renders an opinion on whether a law or an action of a government official is constitutional. Most
constitutions define the powers of government. Thus, national constitutions typically apply only

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to government actions. In these cases, only governments can violate the nation's constitution, but
there are exceptions.
A constitutional violation is thus somewhat different from the breaking of a normal law, both in
terms of seriousness and punishment. Declaring a law unconstitutional does not result in the
punishment of those who passed it do.

The Rule of Law USA


The America of 1787 inherited from medieval England the concept of rule of law, sometimes
expressed as “a government of laws, not of men.” One may trace the rise of this principle in
English history all the way back to the signing of Magna Charta in the year 1215, when King
John found it necessary to guarantee his obedience to English laws. For that matter, medieval
English writers on law derived their understanding of the rule of law from ancient Roman
jurisprudence. “The king himself ought not to be under man but under God, and under the Law,
because the Law makes the king. Therefore let the king render back to the Law what the Law
gives him, namely, dominion and power; for there is no king where will, and not Law, wields
dominion.

The Federal Constitution of 1787 drastically changed the concept of constitutional government
by introducing the principle of constitutional supremacy. Article VI declared that “This
Constitution … Shall be the supreme law of the land.” Laws passed by Congress, though
supreme in relation to State constitutions and State laws, were ranked below the Constitution.
Indeed, Article VI explicitly stated that such laws must conform to, and be made in pursuance of,
the Constitution. Noting the significance of the Supremacy Clause, Chief Justice John Marshall
held in the famous case of Marbury v. Madison (1803) that an Act of Congress contrary to the
Constitution was not law.

It may thus be seen that the American Constitution and the power of judicial review are an
extension of rule of law. The Constitution is law, the highest law, and the President, Congress,
and the Federal Judiciary are bound by its terms. A government of laws and not of men is, then,
the underlying principle of the American political and legal system. This means that no person,
however powerful or talented, can be allowed to act as if he were superior to the law of the land.
Public decisions must be made upon the basis of law, and the laws must be general rules that
everybody obeys, including those who make and enforce the law. A law that violates the
Constitution is not a law and is not, therefore, enforced. This was the principle that Marshall
followed in Marbury v. Madison. Likewise, rule of law means equality before the law. A law that
singles out certain people for discriminatory treatment, or is so vague and uncertain that one
cannot know what it requires, will not be treated as a law.

Thus in the final analysis the nation looks to the President as the person ultimately responsible
for upholding the rule of law and the supremacy of the Constitution. By making him
Commander-in-Chief of the armed forces and by giving him the power to supervise the heads of

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the various departments of the executive branch, the Constitution also confers upon the President
the means by which he may fulfill his law enforcement responsibilities.

By and large, America has enjoyed rule of law, not of men. No President of the United States has
ever tried to make himself dictator or to extend his term of office unlawfully. Martial law—that
is, a suspension of the law and the administration of justice by military authorities in times of
war, rebellion, and disorder—has never been declared nationwide. No party or faction has ever
seized control of the Federal government by force or violence. The Constitution of the United
States has never been suspended or successfully defied on a large scale. Thus the rule of law has
usually governed the country since 1787—a record true of very few other countries of the world.

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