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Constitutionalism

Early Modern Conceptions

Widespread administrative abuses and ecclesiastical corruption in late-sixteenth-century France generated a number of polemical pamphlets, which asserted the rights of the people to depose a tyrant. Huguenot political writers including François Hotman (1524–1590; Francogallia), Théodore de Bèze, (Theodorus Beza; 1519–1605; The Rights of Magistrates), and Duplessis-Mornay (Philippe de Mornay, Seigneur du Plessis-Marly; 1549–1623; Vindiciae contra tyrannos; A defense of liberty against tyrants) made important contributions to early modern constitutionalism by defining the right to resist and depose a tyrannical monarch as the ultimate guarantee of a set of particular controls on political authority. Their works rejected resistance by private individuals but asserted the right of resistance by constituted public power, especially of the Estates and lesser magistrates. Huguenot political thinkers upheld the doctrine of the division of sovereignty between the monarch, representative institutions, and lesser magistrates, whilst their contemporary Jean Bodin (1530–1596), a powerful proponent of the indivisibility of sovereignty, saw anarchy as the alternative to monarchy (just as Thomas Hobbes would do in the following century). Jean Bodin's theory of sovereignty circulated widely in seventeenth-century England, and served to bolster the idea of unlimited monarchical sovereignty manifested by James I (ruled 1603–1625) and Charles I (ruled 1625–1649). Sir Robert Filmer (c. 1588–1653) and Thomas Hobbes (1588–1679) conceptualized the doctrine of monarchical authority. But political authority in England had already been pluralistic, and this reality was crystallized in Sir Edward Coke's (1552–1634) idea that the English judiciary was independent from the crown as well as from Parliament. A more direct reaction to the Bodinian doctrine came from Johannes Althusius (Joachim Althaus; 1557–1638), who attributed indivisible sovereignty, unlike Bodin, to the people as a collective entity. The people as individuals are under the ruler, and yet the people as a collectivity is superior to the ruler. Althusius's novelty lies in his vision of federalism: he conceived a political community as a hierarchy of corporations, and took care to specify the way in which smaller communities are associated together in larger political entities, which resulted in a system of checks and balances.

Perhaps one of the most important sources for the authors of the American constitution was the epoch-making L'esprit des lois (1748; The spirit of the laws) written by Charles-Louis de Secondat, baron de Montesquieu (1689–1755). This eminent lawyer was deeply inspired by the English system of government that, in his view, had effectively secured what he called "political liberty." Montesquieu observed that the highest expression of political liberty was to be found in England. English constitutional practice had protected each citizen from each other, from foreign enemies of the state, and from the state itself. The key to this success, according to Montesquieu, was the functional separation of powers: legislative, executive, and judicial. The institutional separation of powers secured effective control of the coercive authority of the state: a significant departure from the "mixed constitution" model.

The late eighteenth century was the age of constitutions; the first modern written constitution was enacted in the United States of America (1787), followed by the French Declaration of the Rights of Man and the Citizen (1789). The Federalist, eighty-five papers written by Alexander Hamilton (1755–1804), James Madison (1751–1836), and John Jay (1745–1829), vindicated the theoretical foundations of the U.S. Constitution that underlined the limits on federal power by means of federalism, separation of powers, and the effective independence of political institutions. These institutional constraints were designed to augment the citizen's exercise of civic virtues to prevent monarchical despotism and to maintain liberty.

What constituted an important intellectual backdrop was republican constitutional ideas. Republicanism, upheld by influential figures such as Montesquieu, Jean-Jacques Rousseau (1712–1778), and Immanuel Kant (1724–1804), distinguished the people as a legislator (constituent power) from the people as a legislative power (constituted power) and envisioned the "good order" of society—that is, the fundamental principles of the working of a political society, or the means by which good laws and good rulers should be made. On the other hand, the U.S. Constitution was initially criticized for the omission of a specific statement concerning basic citizen rights. This was later drawn up as the Bill of Rights, now considered an integral part of the constitution.

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