CONSTITUTIONS

Constitutions Important In Shaping the Structures of Contemporary Governments

Constitutions Important In Shaping the Structures of Contemporary Governments

Introduction

The epidemic of constitution-making in the wake of World War II has no parallel in history. Since 1945 some fifty-odd nations have equipped themselves with new constitutions. In some countries the new constitution symbolizes statehood and independence attained. In others, a previously serviceable document did not survive the authoritarian hurricane and had to be completely recast in the light of past experience. In others again, the changes in the location of political power caused by revolution required a redefinition of the political organization.

In practically all cases the procedure of constitution-making followed the classical democratic pattern: by elections, everywhere pretending to be free and unconstrained, the people, exercising the pouvoir constituant, called into being constituent assemblies or constitutional conventions which, in turn, drafted and adopted the instrument of government. Popular ratification occurred (France and some of the Länder in Western Germany) but was not the rule. In a few instances only the customary procedure was deviated from by injecting into it appointed, instead of popularly elected, constituent bodies. Outwardly at least the entire process seems to reflect the triumph of the ideology of democratic legality. Though it is historically permissible to distinguish "families" of constitutions which, as a rule, embody similar or identical "patterns of government," (Loewenstein 1946, 317) practically all new constitutions are surprisingly alike in structure in that they operate uniformly with the traditional tripartite division of functions into legislative, executive-administrative, and judicial organs of the state. Almost without exception they have a comprehensive and ambitious bill of rights which, in addition to the classical libertarian freedoms from state interference, professes the ideal of social justice to a degree amounting almost to standardization.

Does the seeming universality of the process indicate that at long last, after the dark night of lawless despotism, the bright young day of democratic constitutionalism is dawning? Does the phenomenon of constitutionalism mean that all nations alike attach a paramount importance to a formalized constitutional order, or do they merely follow the laws of diffusion and imitation? And, further, are the constitutions "real" and "living" in the sense that the competitive struggle for political power is actually conducted within the frame offered by the constitution, or is the latter manipulated by the ruling class or classes without permitting the sharing of political power by all socio-political forces of the community?

Such questions are rarely asked, since the interpretation and application of a constitution is usually monopolized by relatively small groups of technicians politicians, lawyers, judges, civil servants -to whom, in a society managed by plural power groups, the constitution serves as the instrument for the attainment and preservation of special interests. "Constitutionalysis" and "constitutionology," to speak with Thomas Reed Powell, overshadow what may be called the ontology of constitutions, that is, the investigation of what a written constitution really means within a specific national environment; in particular, how real it is for the common people, who after all are everywhere, ...