Constitutionalism:

Introduction to Constitutionalism

  • Definition: Constitutionalism refers to the principle that governments must operate within a framework established by a constitution, which serves as a foundational legal agreement outlining governmental powers and limitations.
  • Context: This discussion builds upon previous knowledge from the video on legislation, outlining advantages and disadvantages of constitutionalism.

Three Limitations in the Discussion of Constitutionalism

  1. Perspective as a Social Agreement
    • Focus on constitutions as social contracts rather than divine or immutable laws.
  2. Comparison with Legislation
    • Analyze the effectiveness of legislation with constitutionalism versus without.
  3. Focus on Modern Constitutions
    • Consider modern constitutions rather than ancient ones, which were often seen as unchangeable laws.

Nature and Function of a Constitution

  • Purpose: Constitutions specify which persons or bodies have governmental powers and establish limits on those powers.
  • Authorization of Legislative Power: Examples include:
    • Parliament in England
    • Congress in the United States
    • State legislators (e.g., Arizona)
  • Limits on Lawmaking: These limits can be both practical and procedural,
    • Written vs. Unwritten Constitutions:
    • The United States has a written constitution.
    • The United Kingdom has an unwritten constitution.

Advantages of Constitutionalism

  • Key Function: Prevents the legislature from enacting detrimental laws.

  1. Types of Limitations:

    • Substantive Limitations: Prohibits the passing of certain types of laws.

      • Examples:
      • Congress cannot make laws abridging freedom of speech.
      • Restrictions against laws requiring individuals to house soldiers.
      • Categories of Limitations:
      1. Limitations on Goals: U.S. government can't pass laws promoting a single religion.
      2. Limitations on Means: Government cannot restrict public speech under the guise of promoting certain perspectives.
      3. Limitations on Forms:
        • Ex post facto laws (retroactively making actions illegal) are not permissible.
        • Laws must generally have uniform applicability without exempting certain groups (e.g., Congress cannot exempt itself).

    • Structural Limitations: Admission procedures impact law feasibility.

      • Example: Laws favoring a specific region (like New England) may not pass through the Senate.
      • Formal Requirements:
      • Federal tax laws must originate in the House of Representatives.
      • Certain legislative actions require a two-thirds majority.

Benefits of These Limitations

  • Protection of Rights: Safeguarding essential rights such as free speech and assembly.
  • Prevention of Shortsighted Decisions: Protecting against immediate whims that could undermine society in the long term.

Disadvantages of Constitutionalism

  • Primary Disadvantage: Constitutionalism may obstruct the legislature from enacting beneficial laws, making it challenging to adapt to evolving circumstances.
  • Entrenchment of Injustice: Existing unjust laws may persist due to the rigidity of constitutional provisions.

Walden's Argument Against Constitutionalism

  • Analogy: Constitutionalism likened to binding oneself to the mast in the context of decision-making, which prevents impulsive actions.
  • Odyssey Example: Odysseus binds himself while his crew is instructed to ignore his future commands, preventing him from succumbing to the sirens' call.
  • Application: Individuals can make decisions in advance to prevent future harmful impulses (notably analogous to gambling).

Key Differences Between Constitutions and Typical Binding Cases

  1. Multiple Stakeholders: Unlike individual contracts, constitutions impose agreements upon future generations, including those who did not consent.
  2. Ambiguous Harms: Recognizing that potential harms of constitutional restraints can be less clear compared to direct harms, like financial ruin from gambling.
  3. Lack of Clear Obstacles: Presence of general human fallibility rather than identifiable factors affecting decision-making capacity.

Conclusion and Further Consideration

  • Self-Enforcement Issues: Constitutions do not enforce themselves; enforcement requires willing agents with authority, as discussed in relation to judicial review.