Constitutionalism

Jo Eric Khushal Murkens

Constitutionalism is both a philosophical and legal concept as well as a practical manifestation in different political contexts. In both respects it represents one of the main features in the development of the modern state. Constitutionalism presupposes the existence of a constitution, which is typically, but not necessarily, contained in a constitutional document. The essence of constitutionalism contains three structural and substantive limitations on legislative and executive power. First, constitutions not only constitute but also limit government power, for instance, by separating the organs of state. Second, constitutions expressly protect individual rights against the state. Third, constitutions claim to be higher-order law in the sense that the constitutional norms enshrined in the written document take precedence over ordinary laws in the case of conflict. Alternative contemporary theories (political, republican, social-democratic constitutionalism) exist. In essence, they do not provide for the entrenchment of rights in the constitution due to a lack ...

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