



Theories about constitutions




Influence of the church



The social contract

The theoretical foundations of modern constitutionalism were laid down in the great works on the social contract, especially those of the English philosophers Thomas Hobbes and John Locke in the 17th century and the French philosopher Jean-Jacques Rousseau in the 18th.

As a result of the Reformation the basis of divinely sanctioned contractual relations was broken up. The Holy Roman Empire was torn apart by the wars of the Reformation. Henry VIII made the Church of England independent of Rome. In these circumstances, it became necessary to search for a new basis of order and stability, loyalty and obedience. In their search, political theorists—and especially the Protestants among them—turned to the old biblical concept of a covenant or contract, such as the one between God and Abraham and the Israelites of the Old Testament.

In a sense, the secular theorists of the social contract almost reversed the process of choice. Instead of God choosing his people, a people through its representatives was now looked upon as choosing its governors, or its mode of governance, under God, by means of a social contract or constitution. According to modern theories of the social contract, the political unit is nevertheless established as in the biblical model by means of a promise or promises.

Thomas Hobbes’s state, or “Leviathan,” comes into being when its individual members renounce their powers to execute the laws of nature, each for himself, and promise to turn these powers over to the sovereign—which is created as a result of this act—and to obey thenceforth the laws made by this sovereign. These laws enjoy authority because individual members of society are in effect their co-authors. According to Locke, individuals promise to agree to accept the judgments of a common judge (the legislature) when they accede to the compact that establishes civil society. After this (in one interpretation of Locke’s Second Treatise on Civil Government), another set of promises is made—between the members of the civil society, on the one hand, and the government, on the other. The government promises to execute its trust faithfully, leaving to the people the right to rebel in case the government breaks the terms of the contract, or, in other words, violates the constitution. Subsequent generations accept the terms of the compact by accepting the inheritance of private property that is created and protected by the compact. Anyone who rejects the constitution must leave the territory of the political unit and go in vacuis locis, or “empty places”—America, in Locke’s time. In his Letters on Toleration, Locke characteristically excluded atheists from religious toleration because they could be expected either not to take the original contractual oath or not to be bound by the divine sanctions invoked for its violation. For Rousseau, too, the willingness to subject oneself to the “general will” to which only the popular sovereign can give expression is the essential ingredient of the social contract. In taking this position, Rousseau may have been influenced by the experience of his native Geneva. The Swiss Confederation is still referred to officially, in German, as an Eidgenossenschaft, a term best translated as “fellowship of the oath.”

Hobbes on sovereignty

Hobbes’s main contribution to constitutionalism lies in his radical rationalism. Individuals, according to Hobbes, come together out of the state of nature, which is a state of disorder and war, because their reason tells them that they can best ensure their self-preservation by giving all power to a sovereign. The sovereign may consist of a single person, an assembly, or the whole body of citizens; but regardless of its form, all the powers of sovereignty have to be combined and concentrated in it. Hobbes held that any division of these powers destroyed the sovereign and thereby returned the members of the commonwealth to the state of nature, in which the condition of man is “. . . solitary, poore, nasty, brutish, and short.” Hobbes therefore preferred the singular sovereign since he was less likely than an assembly or than the whole body of citizens to become internally or functionally divided. The individual should retain only his natural rights, which he cannot surrender into the common pool of sovereign powers. These rights include the right against self-incrimination, the right to purchase a substitute for compulsory military service, and the right to act freely in instances in which the laws are silent.

Locke attempted to provide firm assurance of the individual’s natural rights, partly by assigning separate though coordinated powers to the monarch and Parliament and partly by reserving the right of revolution against a government that had become unconstitutionally oppressive. Locke did not use the word sovereignty. In this as in other respects, he remained within the English constitutional tradition, which had eschewed the concentration of all powers in a single organ of government. The closest that English constitutionalists came to identifying the centre of sovereign power was in the phrase, used frequently from the 16th century onward, the king (or queen) in Parliament.

Rousseau and the general will

Whereas Hobbes created his unitary sovereign through the mechanism of individual and unilateral promises and whereas Locke prevented excessive concentration of power by requiring the cooperation of different organs of government for the accomplishment of different purposes, Rousseau merged all individual citizens into an all-powerful sovereign whose main purpose was the expression of the general will. By definition, the general will can never be wrong; for when something contrary to the general interest is expressed, it is defined as the mere “will of all” and cannot have emanated from the sovereign. In order to guarantee the legitimacy of government and laws, Rousseau would have enforced universal participation in order to “force men to be free,” as he paradoxically phrased it. In common with Hobbes and Locke, Rousseau required the assent of all to the original social contract. He required smaller majorities for the adoption of laws of lesser importance than the constitution itself. His main concern was to provide for legitimacy through universal participation in legislation, whereas Locke and Hobbes were more concerned to provide constitutional stability through consent. As a result, Rousseau’s thought appears to be more democratic than that of his English predecessors. He has even been accused of laying the philosophical foundations of “totalitarian democracy,” for the state he describes in The Social Contract would be subject, at the dictates of its universal and unanimous sovereign, to sudden changes, or even transformations, of its constitution.

In the political thought of Hobbes, Locke, and Rousseau may be found theoretical consideration of the practical issues that were to confront the authors of the American and French constitutions. The influence of theories of the social contract, especially as they relate to the issues of natural rights and the proper functions of government, pervades the constitution making of the revolutionary era that began with the American Revolution and is indeed enshrined in the great political manifestos of the time, the American Declaration of Independence and Bill of Rights, and the French Declaration of the Rights of Man and the Citizen.

The constitutional experience of these two countries, and, of course, of England, had great influence on liberal thought in Europe and other parts of the world during the 19th century and found expression in the constitutions that were demanded of the European monarchies. The extent to which the ideal of constitutional democracy has become entwined with the practice of constitutional government will be apparent from the examination in the following section of the main features of constitutional government.

Features of constitutional government

Virtually all contemporary governments have constitutions, but possession and publication of a constitution does not make a government constitutional. Constitutional government in fact comprises the following elements.

Procedural stability

Certain fundamental procedures must not be subject to frequent or arbitrary change. Citizens must know the basic rules according to which politics are conducted. Stable procedures of government provide citizens with adequate knowledge of the probable consequences of their actions. By contrast, under many nonconstitutional regimes, such as Hitler’s in Germany and Stalin’s in the Soviet Union, individuals, including high government officials, never knew from one day to the next whether the whim of the dictator’s will would not turn today’s hero into tomorrow’s public enemy.


Under constitutional government, those who govern are regularly accountable to at least a portion of the governed. In a constitutional democracy, this accountability is owed to the electorate by all persons in government. Accountability can be enforced through a great variety of regular procedures, including elections, systems of promotion and discipline, fiscal accounting, recall, and referendum. In constitutional democracies, the accountability of government officials to the citizenry makes possible the citizens’ responsibility for the acts of government. The most obvious example of this two-directional flow of responsibility and accountability is the electoral process. A member of the legislature or the head of government is elected by adult citizens and is thereby invested with authority and power in order that he may try to achieve those goals to which he committed himself in his program. At the end of his term of office, the electorate has the opportunity to judge his performance and to reelect him or dismiss him from office. The official has thus rendered his account and has been held accountable.


Those in office must conduct themselves as the representatives of their constituents. To represent means to be present on behalf of someone else who is absent. Elections, of course, are not the only means of securing representation or of ensuring the representativeness of a government. Hereditary medieval kings considered themselves, and were generally considered by their subjects, to be representatives of their societies. Of the social contract theorists only Rousseau denied the feasibility of representation for purposes of legislation. The elected status of officeholders is sometimes considered no guarantee that they will be “existentially representative” of their constituents, unless they share with the latter certain other vital characteristics such as race, religion, sex, or age. The problems of representation are in fact more closely related to democratic than to constitutionalist criteria of government: a regime that would be considered quite unrepresentative by modern standards could still be regarded as constitutional so long as it provided procedural stability and the accountability of officeholders to some but not all of the governed and so long as the governors were representative of the best or the most important elements in the body politic.

Division of power


Openness and disclosure







Constitutional change

Written constitutions are not only likely to give rise to greater problems of interpretation than unwritten ones, but they are also harder to change. Unwritten constitutions tend to change gradually, continually, and often imperceptibly, in response to changing needs. But when a constitution lays down exact procedures for the election of the president, for relations between the executive and legislative branches, or for defining whether a particular governmental function is to be performed by the federal government or a member state, then the only constitutional way to change these procedures is by means of the procedure provided by the constitution itself for its own amendment. Any attempt to effect change by means of judicial review or interpretation is unconstitutional, unless, of course, the constitution provides that a body (such as the U.S. Supreme Court) may change, rather than interpret, the constitution.

Many constitutional documents make no clear distinction between that which is to be regarded as constitutional, fundamental, and organic, on the one hand, and that which is merely legislative, circumstantial, and more or less transitory, on the other. The constitution of the German Weimar Republic could be amended by as little as four-ninths of the membership of the Reichstag, without any requirement for subsequent ratification by the states, by constitutional conventions, or by referendum. Although Hitler never explicitly abrogated the Weimar Constitution, he was able to replace the procedural and institutional stability that it had sought to establish with a condition of almost total procedural and institutional flux.

A similar situation prevailed in the Soviet Union under the rule of Stalin. But Stalin took great trouble and some pride in having a constitution bearing his name adopted in 1936. The Stalin constitution continued, together with the Rules of the Communist Party of the Soviet Union, to serve as the formal framework of government until the ratification of a new, though rather similar, constitution in 1977. The procedures established by these documents, however, were not able to provide Soviet citizens and politicians with reliable knowledge of the rules of the political process from one year to the next or with guidance as to which institutions and practices they were to consider fundamental or virtually sacrosanct and which they could safely criticize. As a result, changes in the personnel and policies of the Soviet Union and of similar Communist regimes were rarely brought about smoothly and frequently required the use of violence.

Constitutional stability

If one distinguishes between stability and stagnation on the one hand and between flexibility and flux on the other, then one can consider those constitutional systems most successful that combine procedural stability with substantive flexibility—that is, that preserve the same general rules of political procedure from one generation to the next while at the same time facilitating adaptation to changing circumstances. By reference to such criteria, those written constitutions have achieved the greatest success that are comparatively short; that confine themselves in the main to matters of procedure (including their own amendment) rather than matters of substance; that, to the extent that they contain substantive provisions at all, keep these rather vague and generalized; and that contain procedures that are congruent with popular political experience and know-how. These general characteristics appear to be more important in making for stability than such particular arrangements as the relations between various organs and levels of government or the powers, functions, and terms of tenure of different officers of state.

There is little evidence to support the thesis that a high level of citizen participation necessarily contributes to the stability of constitutional government. On the contrary, the English political economist Walter Bagehot, who in 1867 wrote a classic analysis of the English constitution (The English Constitution), stressed the “deferential” character of the English people, who were quite happy to leave government in the hands of the governing class.

Much more important than formal citizen behaviour, such as electoral participation, are informal attitudes and practices and the extent to which they are congruent with the formal prescriptions and proscriptions of the constitution itself. Constitutional government cannot survive effectively in situations in which the constitution prescribes a pattern of behaviour or of conducting affairs that is alien to the customs and way of thinking of the people. When, as happened in many developing countries in the decades after World War II, a new and alien kind of constitutional democracy is imposed or adopted, a gap may soon develop between constitutionally prescribed and actual governmental practice. This in turn renders the government susceptible to attack by opposition groups. Such attack is especially easy to mount in situations in which a constitution has a heavy and detailed substantive content, when, for example, it guarantees the right to gainful employment or the right to a university education for all qualified candidates. In the event of the government being unable to fulfill its commitment, the opposition is able to call the constitution a mere scrap of paper and to demand its improvement or even its complete replacement. Such tactics often have succeeded, but they ignore the dual strategic function of the constitution. It is meant not only to arrange the offices of the state, in Aristotle’s sense, but also to state the goals toward which the authors and ratifiers of the constitution want their community to move.

The practice of constitutional government

Great Britain

It is accepted constitutional theory that Parliament (the House of Commons and the House of Lords acting with the assent of the monarch) can do anything it wants to, including abolish itself. The interesting aspect of British government is that, despite the absence of restraints such as judicial review, acts that would be considered unconstitutional in the presence of a written constitution are attempted very rarely, certainly less often than in the United States.

The English constitution and the English common law grew up together, very gradually, more as the result of the accretion of custom than through deliberate, rational legislation by some “sovereign” lawgiver. Parliament grew out of the Curia Regis, the King’s Council, in which the monarch originally consulted with the great magnates of the realm and later with commoners who represented the boroughs and the shires. Parliament was, and is, a place in which to debate specific issues of disagreement between, initially, the crown, on the one hand, and the Lords and Commons, on the other. The conflicts were settled in Parliament so that its original main function was that of a court—it was in fact known as “the High Court of Parliament” as late as the 16th century.

The locus of power in the English constitution shifted gradually as a result of changes in the groups whose consent the government required in order to be effective. In feudal times, the consent of the great landowning noblemen was needed. Later, the cooperation of commoners willing to grant revenue to the crown—that is, to pay taxes—was sought. The crown itself, meanwhile, was increasingly institutionalized, and the distinction was drawn ever more clearly between the private and public capacities of the king. During the course of the 18th century, effective government passed more and more into the hands of the king’s first minister and his cabinet, all of them members of one of the two houses of Parliament. Before this development, the king’s ministers depended upon their royal master’s confidence to continue in office. Henceforward they depended upon the confidence of the House of Lords and especially the House of Commons, which had to vote the money without which the king’s government could not be carried on. In this way the parlay that was originally between the monarch and the houses of Parliament was now struck between the ministry and its supporters, on the one hand, and opposing members of Parliament, on the other. Parliamentary factions were slowly consolidated into parliamentary parties, and these parties reached out for support into the population at large by means of the franchise, which was repeatedly enlarged in the course of the 19th century and eventually extended to women and then to 18-year-olds in the 20th.

When a prime minister loses a vote of confidence in the House of Commons, he can either resign to let the leader of the Opposition form a new government or ask the monarch to dissolve Parliament and call for new elections. As a result of the strong party discipline that developed in the 20th century, prime ministers generally do not lose votes of confidence any more, and they call for new elections at the politically most favourable moment. According to an act of Parliament, elections must be held at least every five years—but another act of Parliament can change or suspend this apparently “constitutional” provision, as was done during World War II, when the life of the incumbent House of Commons was extended until the defeat of Germany. Similarly, relations between, and the relative powers of, the House of Lords and the House of Commons have been repeatedly redefined to the disadvantage of the House of Lords by acts of Parliament, to such an extent that the Lords retain only a weak suspensory veto. All such fundamental constitutional changes have occurred either informally and without any kind of legislation at all or as a result of the same legislative procedures employed to pass any other ordinary circumstantial bill.

United States

The U.S. Constitution is not only replete with phrases taken from the British constitutional vocabulary, but in several respects, it also represents a codification of its authors’ understanding of the English constitution, to which they added ingenious federalist inventions and the formal amending procedure itself. Despite the availability of this procedure, however, many if not most of the fundamental changes in American constitutional practice have not been effected by formal amendments. The Constitution still does not mention political parties or the president’s cabinet. Nor was the Constitution changed in order to bring about or to sanction the fundamentally altered relations between the executive and the Congress, between the Senate and the House, and between the judiciary, the legislature, and the executive.

The presence of a constitutional document, however, has made American politics more consciously “constitutionalist,” at least in the sense that politicians in the United States take more frequent recourse than their British counterparts to legalistic argumentation and to actual constitutional litigation. The United States, moreover, is denied the kind of flexibility illustrated by the postponement of British parliamentary elections during World War II since the Constitution explicitly provides the dates for congressional and presidential elections. It is one of the remarkable facts of American constitutional history that the constitutional timetable for elections has always been observed, even during external war and the Civil War of the 19th century.


France, Germany, and Italy, as well as most non-European countries influenced by continental concepts of constitutionalism, have no record of unbroken constitutional fidelity similar to that found in Britain and the U.S. Because of the highly substantive and ideological content of most French constitutions, the best way to change them has been to replace them altogether with a new, ideologically different document. Only the constitution of the Third Republic (established in 1870) was exceptional in this respect, since it consisted of very short, highly procedural organic laws, which served France well for 70 years, until the German invasion of 1940.

The main political problem attributed to the constitution of the Third Republic was the instability of cabinets. The negative majorities that voted “no confidence” in a cabinet usually could not stay together for the positive purpose of confirming a new cabinet. The constitution of the Fourth Republic (1946–58) made the overthrow of governments by the National Assembly more difficult. In fact, however, the life of the average cabinet in the Fourth Republic was even shorter than in the Third, and French government became virtually paralyzed when it had to deal with the problems raised by the Algerian independence movement. To avert a military takeover, General de Gaulle was given wide discretion in 1958 in the formulation of a new constitution, which was overwhelmingly accepted in a referendum. The constitution of the Fifth French Republic gives the president of the Republic the power to dissolve Parliament and the means of circumventing a hostile National Assembly through the referendum. Since 1958, French cabinets have been very stable indeed, and the constitution proved resilient during the “revolution of 1968.”

Germany, which was unified as a national state only in 1871, established its first democratic constitution in 1919, after its defeat in World War I. Although some of the greatest German jurists and social scientists of the time participated in writing the Weimar Constitution, it has been adjudged a failure. Political parties became highly fragmented, a phenomenon that was explained partly by an extremely democratic electoral law (not a part of the constitution) providing for proportional representation. Some of the parties of the right, such as Hitler’s Nazis, and of the left, such as the Communists, were opposed to the constitutional order and used violence in their efforts to overthrow the Republic. To deal with these threats, the President used his constitutional emergency powers under which he could suspend civil rights in member states of the federal system. Several chancellors (the German equivalent of a prime minister) stayed in office after the President had dissolved a Parliament in which the chancellor lacked a supporting majority. They continued to govern with the help of presidential emergency powers and by legislating on the basis of powers previously delegated to them by Parliament.

When a new constitution was drafted for the Western zones of occupation after World War II, every effort was made to correct those constitutional errors to which the failure of the Weimar Republic was attributed. Under the Basic Law of the Federal Republic of Germany, Parliament cannot delegate its legislative function to the chancellor, and civil rights cannot be suspended without continuous parliamentary surveillance. The president has been turned into a figurehead on the model of the French presidents of the Third and Fourth Republics, and Parliament cannot overthrow a chancellor and his cabinet unless it first elects a successor with the vote of a majority of its members. Negative majorities cannot paralyze government unless they can agree on alternative policies and personnel. The extreme form of proportional representation used before Hitler came to power was replaced by a mixed electoral system under which half the members of the Bundestag (the lower house of the legislature) are elected from party lists by proportional representation, while the other half are elected in single member constituencies. In order to benefit from proportional representation, a party must obtain at least 5 percent of the votes cast. As a result, the number of parties steadily contracted during the first two decades of the Federal Republic and extremist parties were kept out of Parliament. Cabinets have been very stable, and the provision for the “constructive vote of no confidence” was invoked for the first time only in 1982.

Latin America, Africa, and Asia

The experience of constitutional government in continental Europe exerted great influence on the newly independent former colonies of Europe in the Middle East, Asia, and Africa. In the early years of their independence from Spain, most Latin-American countries adopted constitutions similar to that of the United States. But since they lacked the background that produced the American Constitution, including English common law, most of their efforts at constitutional engineering were unsuccessful.

In Asia and Africa and in the Caribbean, many former colonies of Great Britain, such as India, Nigeria, Zambia, and Jamaica, have been comparatively more successful in the operation of constitutional government than former colonies of the continental European countries (e.g., Indonesia, Congo, and Haiti). The British usually left a modified and simplified version of their own constitution upon granting independence to their former subjects, some of whom they had previously trained in the complicated operating procedures of the British constitution. British parliamentary procedure proved sufficiently adaptable to remain in use for some time after the departure of the British themselves. France’s former colonies in Africa, because they achieved independence after the founding of the Fifth Republic, modeled their new constitutions upon General de Gaulle’s, partly because this enhanced the power of the leaders under whom independence had been achieved.