Constitutionalism & Constitutional Dynamism.

By: Anupam Gurung

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[COSTITUTION & DYNAMISM] The document provides an analysis on the definition, relationship and variance of constitutional dynamics incorporating contemporary political States.

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Constitutionalism &

Constitutional Dynamism

Constitutionalism: in the modern sense may be defined as a complex

of ideas, attitudes, and patterns of behavior elaborating the principle that the

authority of government derives from the people, and is limited by a body of

fundamental law. A political organization is constitutional to the extent that it

"contains institutionalized mechanisms of power control for the protection of

the interests and liberties of the citizenry, including those that may be in the

minority. Constitutionalism according to Dicey is; “the absolute supremacy

of predominance of regular law as opposed to the influence of arbitrary

power. It means again, equality before the law”.

Constitutionalism is thus the cornerstone if liberal democracy. For the

survival of the political system, there is a need for wide consensus of the

people regarding the role of law and the basis of government.

Constitutionalism is thus to have a constitutional pattern of life in which the

powers of the authorities are kept in check, the fundamental rights of citizens

are maintained and peoples changing aspirations are met. The modern

concept of constitutionalism thus emphasizes on a limited government with

civil and political rights of the citizens. Constitutionalism is thus a value

loaded concept. According to Fredrick; “power separation is the foundation

of cultural rule and the actual meaning of constitutionalism”. In the views of

Carter and Hertz; “fundamental rights and liberal judiciary are general and

essential characteristics of every constitutionalism”.

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Constitutional Dynamism:

The term dynamism bears a collection of “periphery meaning” including,

active, flexible, amendable, evolutionary etc with regards to the usability of

the term. Constitutional Dynamism in its literary meaning refers to a

constitutional structure or arrangement in which the constitutional laws are

made so that they could cope up with the changing and evolving relationship

between the citizen and the state. Thus a particular constitution may be

dynamic if it embodies the following features in its laws:

A) Its Laws are amendable so as to comfort the demands of new, arising

cultural viability, demanding economy, changing political culture and

societal pattern.

B) That its laws do not hinder the mono or stereo-religio-ethnic sentiments

of its citizens.

C) That it protects the fundamental rights of its citizenry which is also its

primary priority.

D) That its laws are “dynamic-as in its literary meaning” so as to respect,

recognize and encourage political relations in the International

scenario.

E) That its laws are egalitarian towards all sections of society including

the minority.

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The Relation:

The academic study of constitutionalism started in recent past especially for

four reasons:

1) The Authoritarian states of Europe and Latin America was the thrust

for making constitutional form of government in 1980’s and 90’s which

opened the way to study of academic constitutionalism in political

science.

2) Due to study and emergence of new type of constitution in the end of

20th century in consolidated democracies like Belgium, Canada,

Sweden. The study of constitutionalism started in these countries.

3) In most of the Western countries the judicial interference or with judges

active role in politics led the study of constitutionalism in political

field.

4) Lastly, with the legislation of international politics and with their

effects on domestic politics especially in case of European Union

which explored the academic study of constitutionalism.

Thus the study of constitutionalism is a dynamic concept since its subject

criteria embodies every aspect of relationship between the State and the

citizen in domestic and in foreign arena facilitating culture and values to

flourish on the modern changing role of the different political system. It not

only reflects the objectives of giving good life to the citizens of a country but

it also arranges for them the means to achieve these objectives of a “Welfare

State” in a modern sense. The relation between Constitutionalism and

Dynamism is eminent, since globalization has brought forward a rapid

change in every aspect of human life and constitution not being a exception,

therefore if a state declares itself to be a welfare state then it has to have a

dynamic constitution.

The American constitution is a dynamic one as of having The Bill of rights

for its citizens (1791), recently the Obama administration has passed a bill

legitimizing transsexual marriage in the states by amending its constitution.

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The Indian constitution embodies constitutional safeguards for its citizens

along with the fundamental rights to its citizen with its protector as an

independent Supreme Court. The Indian constitution has been amended

(Article-15-20th Jan 2006) to enable provisions for reservations of OBC’s in

government as well as private educational institutions. On 10th Sept, 2010,

the ruling party of Turkey “Justice and Development Party” (AKP) held a

Referendum on the question of if/if not to promote Turkey’s decentralization.

These are some of the latest examples of countries incorporating dynamism

in their constitutional setup. Thus the relationship between constitutionalisms

is not only deep but it is greatly needed especially in the contemporary

political era.