Modern Constitutionalism.
An Introduction to a History in the Need of Writing
Horst Dippel, University of Kassel1
(not for quotation without the permission of the author)
1
author.
© copyright Horst Dippel 2002. Preliminary version, please do not quote without permission from the
DIPPEL, Modern Constitutionalism. An Introduction to a History in the Need of Writing
1
Modern Constitutionalism.
An Introduction to a History in the Need of Writing
More than sixty years ago, Charles Howard McIlwain opened his classic treatise
Constitutionalism Ancient and Modern with the sentence: “The time seems to be propitious
for an examination of the general principle of constitutionalism […] and an examination
which should include some consideration of the successive stages in its development.”2
Today, at the onset of the 21st century after more than two hundred years of modern
constitutionalism, we have to admit that our knowledge of the history of modern
constitutionalism is still next to nothing. That modern constitutionalism came into being at the
end of the 18th century seems to be beyond dispute. The American and French revolutions
constituted, according to Maurizio Fioravanti, “a decisive moment in the history of
constitutionalism”, inaugurating “a new concept and a new practice”.3 Two hundred years
later, it is taken for granted that every country in the world, with the exception of the United
Kingdom, New Zealand and Israel, boasts a written constitution on the basis of modern
constitutionalism. But while we acknowledge the global acceptance of a political principle,
singular as it may be, and while scholars such as Bruce Ackerman have already coined the
term “world constitutionalism”,4 we uneasily have to admit that in spite of McIlwain,
Fioravanti, and numerous other scholars, we definitely do not know how all this came about.5
2
Charles Howard McIlwain, Constitutionalism Ancient and Modern, Ithaca, N.Y.: Cornell University
Press, 1940, 3.
3
Maurizio Fioravanti, Costituzione, Bologna: Il Mulino, 1999, 102.
4
Bruce Ackerman, “The Rise of World Constitutionalism”, in: Virginia Law Review, 83 (1997), 771-797;
cf. also Heinz Klug, “Constitutional Transformations: Universal Values and the Politics of Constitutional
Understanding”, in: Beyond the Republic. Meeting the Global Challenges to Constitutionalism, ed. by Charles
Sampford and Tom Round, Leichhardt, NSW: The Federation Press, 2001, 191-204.
5
Obviously, I do not agree with A. E. Dick Howard, “The Essence of Constitutionalism”, in:
Constitutionalism and Human Rights: America, Poland, and France. A Bicentennial Colloquium at the Miller
Center, ed. by Kenneth W. Thompson and Rett R. Ludwikowski, Lanham, MD: University Press of America,
1991, 3-41, who fails to grasp modern constitutionalism as distinctly different from English ideas and concepts
since Magna Carta and tries to establish seven essentials of constitutionalism (consent of the governed, limited
DIPPEL, Modern Constitutionalism. An Introduction to a History in the Need of Writing
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Great numbers of comparative studies have been undertaken in constitutional law6 and in
constitutional history.7 Though they generally have enriched our knowledge, they have told us
little about modern constitutionalism and its history. As they departed from the nation-state,
they tended to lack any overruling perspective and usually restricted themselves to piling up
information state by state. In contrast, the most ferocious opponents of modern
constitutionalism already displayed their full awareness of the concept after the conclusion of
that decisive event, the revolution of 1848. They thoroughly denounced what they called the
“essence and nuisance of modern constitutionalism”, as the title of one book put it, and with it
its history and its principles or essentials.8 Though their arguments cannot claim any validity
today, the phenomenon they described merits even more attention in our time than it
commanded a hundred and fifty years ago.
government, the open society, sanctity of the individual, the rule of law, enforcement of the constitution, and
adaptability), which are more in line with a Diceyan interpretation of the British constitution than with the
particularities of modern constitutionalism in its proper understanding.
6
Cf. pioneering interpretations such as by Jacques Vincent de La Croix, Constitutions des principaux
États de l’Europe et des États-Unis de l’Amérique, 6 vols., Paris: Buisson, 1791-1801; Gabriel Demombynes,
Les Constitutions européennes. Parlements, conseils provinciaux et communaux et organisation judiciaire dans
les divers États de l’Europe, 2 vols., Paris: L. Larose et Forcel, 1881, 2nd ed. 1883 ; and the edition realized by
the Commisison of constitutional history of the Comitato Internazionale di Scienze Storiche under the direction
of Gioacchino Volpe, La Costituzione degli Stati nell’Età Moderna. Saggi storico-giuridici, 2 vols., Milan:
Fratelli Treves, 1933-1938. More restrictive is Agnes Headlam-Morley, The New Democratic Constitutions of
Europe. A Comparative Study of Post-War European Constitutions with Special Reference to Germany,
Czechoslovakia, Poland, Finland, The Kingdom of the Serbs, Croats & Slovenes and the Baltic States, London:
Oxford University Press, 1928. The most recent seems to be Robert L. Maddex, Constitutions of the World,
Washington, D.C.: Congressional Quarterly, 1995, repr. London: Routledge, 1996.
7
Still noteworthy are Charles Frederick Strong, Modern Political Constitutions. An Introduction to the
Comparative Study of Their History and Existing Form, London: Sidgwick & Jackson, 1930, 3rd ed. 1973, and
John A. Hawgood, Modern Constitutions since 1787, London: Macmillan and Co., 1939. Cf also Maurizio
Fioravanti, Stato e costituzione. Materiali per una storia delle doctrine costituzionali, Turin: G. Giappichelli,
1993; R. C. van Caenegem, An Historical Introduction to Western Constitutional Law, Cambridge: Cambridge
University Press, 1995. Also the volume edited by Manuel J. Peláez, European Constitutional Law/Derecho
constitucional Europeo (Estudios interdisciplinares en homenaje a Ferran Valls i Taberner con ocasión del
centenario de su nascimiento, vol. 7), Barcelona: Promociones y Publicaciones Universitarias, 1988.
8
Cf. the prize-winning treatise by [Johann Friedrich Christian Budy,] Wesen und Unwesen des modernen
Constitutionalismus, seine Untauglichkeit für Preussen, nebst Vorschlägen zur Abänderung der Verfassung. Ein
Buch für Fürsten und Volk, 3rd ed., Stettin: In Commission bei F. Schneider & Co. in Berlin, 1852.
DIPPEL, Modern Constitutionalism. An Introduction to a History in the Need of Writing
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On 12 June 1776, the General Convention of delegates and representatives from the
several counties and corporations of Virginia adopted what has come to be known as the
Virginia Declaration of Rights.9 It was a revolutionary document, which sometimes, though
incorrectly, is also called the Virginia Bill of Rights, in an unconscious or perhaps deliberate
allusion to the English Bill of Rights of 1689. The reference to the English “Act for declaring
the rights and liberties of the subject and settling the succession of the crown”, as its proper
title runs, is misleading as it was issued by “the said Lords Spirituall and Temporall and
Commons […] for the Vindicating and Asserting their auntient Rights and Liberties”.10 In
strictly political terms it marked the end of the Glorious Revolution and became part of the
Revolution settlement.11 It did not refer to universal principles or any abstract idea; rather,
considering the endeavor of the late King “to subvert and extirpate the Protestant Religion,
and the Lawes and Liberties of this Kingdome”, the Lords and Commons took recourse to
what they understood to be “their undoubted Rights and Liberties”.12
The Virginia delegates of 1776 easily could have made use of a similar kind of language,
as numerous Americans had done during the preceding decade. But they deliberately
introduced new language: “A declaration of rights made by the representatives of the good
people of Virginia, assembled in full and free convention; which rights do pertain to them and
their posterity, as the basis and foundation of government.”13 This was a completely new kind
9
The most detailed account on the Virginia Declaration of Rights and its history is by A. E. Dick
Howard, Commentaries on the Constitution of Virginia, 2 vols., Charlottesville: University Press of Virginia,
1974, I, 27-313. For a historical perspective on the convention work, cf. John E. Selby, The Revolution in
Virginia, 1775-1783, Williamsburg, Va.: The Colonial Williamsburg Foundation, 1988, 100-110.
10
1 & 2 Gul. & Mar. sess. 2 c. 2 (Quoted from The Statutes of the Realm, VI, [s.l.: s.n.,] 1819, 143;
easilier accessible may be E. Neville Williams, The Eighteenth-Century Constitution, 1688-1815. Documents
and Commentary, Cambridge: Cambridge University Press, 1960, 26-33, 28).
11
Cf. Tim Harris, Politics under the Later Stuarts. Party Conflict in a Divided Society, 1660-1715,
London and New York: Longman, 1993, 132-140; Stuart E. Prall, The Bloodless Revolution: England, 1688,
Madison, Wis.: University of Wisconsin Press, 1985, 245-293; J. P. Kenyon, Revolution Principles. The Politics
of Party, 1689-1720, Cambridge: Cambridge University Press, 1977, repr. 1990.
12
1 & 2 Gul. & Mar. sess. 2 c. 2 (Quoted from The Statutes of the Realm, VI, 142; see also Williams,
Eighteenth-Century Constitution, 26, 29).
13
Preamble to the Virginia Declaration of Rights of 1776, in: The Federal and State Constitutions,
Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming
the United States, ed. by Francis Newton Thorpe, 7 vols., Washington: Government Printing Office, 1909, VII,
3812. Cf. Robert P. Sutton, Revolution to Secession. Constitution Making in the Old Dominion, Charlottesville:
DIPPEL, Modern Constitutionalism. An Introduction to a History in the Need of Writing
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of document employing a new, bold language. It was a “declaration of rights”, not a
subjective document declaring rights, and it was set up by “the representatives of the […]
people”, who were “assembled in full and free convention”, not in any random assembly with
an equivocal legitimization.14 Furthermore they had declared rights properly belonging to the
people and their offspring, not to their own assembly or convention in contrast to some other
institution. These rights served, in the most revolutionary phrase of all, “as the basis and
foundation of government”, an assertion completely unheard of and contradictory to any
understanding of the English constitution.
This bold revolutionary language was substantiated in the first two sections of the
document, which uncovered the source of all these rights ascertained: nature. Natural law not
only conferred to the people “certain inherent rights, of which, when they enter into a state of
society, they cannot, by any compact, deprive or divest their posterity”. It also proved “[t]hat
all power is vested in, and consequently derived from, the people”.15 With no word on the
English constitution or subverted ancient rights in need of being restored, the Virginia
Declaration of Rights trumpeted into the world the sovereignty of the people, universal
principles, and inherent human rights, declared in a written constitution as “the basis and
foundation of government”. It was the very birth of what we understand today as modern
constitutionalism.16
University Press of Virginia, 1989, 33-34; Hugh Blair Grigsby, The Virginia Convention of 1776, Richmond: J.
W. Randolph, 1855, repr. New York: Da Capo Press, 1969, 161-165.
14
Cf. Blackstone’s defence of the legitimacy of convention parliaments: William Blackstone,
Commentaries on the Laws of England, 4 vols., Oxford: Clarendon, 1765-69 (repr.. Chicago-London: University
of Chicago Press, 1979), I, 148.
15
Virginia Declaration of Rights, sec. 1 and 2, in: The Federal and State Constitutions, ed. by Thorpe,
VII, 3813.
16
Cf. Brent Tarter, “The Virginia Declaration of Rights”, in: To Secure the Blessings of Liberty: Rights in
American History, ed. by Josephine F. Pacheco, Fairfax, VA: George Mason University Press, 1993, 37-54;
Bernard Schwartz, The Great Rights of Mankind. A History of the American Bill of Rights, New York: Oxford
University Press, 1977, 67-72; also the classic work by Robert Allen Rutland, The Birth of the Bill of Rights,
1776-1791, Chapel Hill: University of North Carolina Press, 1955, esp. 38-39. This interpretation, obviously,
runs counter to Dick Howard, The Birth of American Political Thought, 1763-87, Minneapolis: University of
Minnesota Press, 1989, 104-105, who fails to see the implications the document had for modern
constitutionalism.
DIPPEL, Modern Constitutionalism. An Introduction to a History in the Need of Writing
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To be sure, the Virginia Declaration of Rights was not the first constitutional document of
the American revolution. It was preceded by the New Hampshire constitution of 5 January
1776, and the South Carolina constitution of 26 March, 1776.17 But the language of these two
documents much more resembles that of the English Bill of Rights, the language of ancient
rights and liberties subverted, but rescued in order to be restored. Though there is a passing
reference to natural law in the New Hampshire constitution, and the South Carolina document
for the first time styled itself “constitution”, no appeal occurred in either of them to the
sovereignty of the people, universal principles, inherent human rights, or a written
constitution as “the basis and foundation of government”. As the first written constitutions
their form was new, but their content had not yet shed its traditional connotations.
All this changed with the Virginia Declaration of Rights of June 1776. It not only
enumerated several of these rights. It also proclaimed additional criteria, ever since then
considered constitutive for modern constitutionalism. These are the responsibility and
accountability of government, the right “to reform, alter, or abolish it”, the separation of
powers, the “trial by an impartial jury”, and the inherent idea that constitutional government is
by its very nature a limited government.18 It was a mixture of fundamental principles and
structural elements to be contained in a subsequent constitution, both considered
indispensable preconditions for securing individual liberty and guaranteeing rational
government according to law, instead of government according to pleasure, privilege, or
corruption. None of these criteria were really new. In fact, they all had been extensively
discussed throughout the colonies during the preceding decade. But never before had they
appeared in a public document in such a coherent form, constituting the foundation of a new
political order.
Beyond having enumerated certain human rights, though incompletely, the singular
importance of the Virginia Declaration of Rights of 1776 lies in its establishment of the
complete catalogue of the essentials of modern constitutionalism, whose constitutive character
appears no less valid today than it did over two hundred years ago: sovereignty of the people,
universal principles, human rights, representative government, the constitution as paramount
law, separation of powers, limited government, responsibility and accountability of
17
Cf. The Federal and State Constitutions, ed. by Thorpe, IV, 2451-2453, VI, 3241-3248.
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government, judicial independence and impartiality, and the right of the people to reform their
own government or the amending power of the people. These ten essentials of modern
constitutionalism are expressed in the Virginia Declaration of Rights, and for more than two
hundred years no constitution that claims to adhere to the principles of modern
constitutionalism has openly dared to challenge any one of these principles, as they have
come to symbolize the modern reason-based society which provides for mediating interests
and conflicts on a solid legal foundation.
The history of modern constitutionalism, though, is full of attempts either to evade one or
several of the items in this catalogue, or to reject more or less the whole of it, in other words
to establish a written constitution manifestly denying the principles of modern
constitutionalism. This fundamental opposition to modern constitutionalism was never a
viable political option in any of the evolving American states throughout the period up to the
mid-19th century. Time and experience, however, were required to transform these essentials
into generally accepted principles.
The Maryland constitution of 1776 incorporated the ten essentials of the Virginia
Declaration of Rights, but the next constitution to do so was only that of Massachusetts in
1780. None of the other eight constitutions written between 1776 and 1780 fully conformed.
The constitutions of New Jersey of 1776 and of South Carolina of 1778 diverged the most,
merely adopting the idea of representative government. The greatest resistance arose against a
strict separation of powers and a clear-cut independent judiciary during these years, whereas
the wide-spread lack of a properly constituted amending power seems to have been more the
result of inexperience and ignorance than of thorough opposition. The 1776 constitutions of
Delaware and Pennsylvania and that of Vermont of 1777, embracing all the other Virginia
essentials, failed to comply with just two of these three embattled principles.
Though some of these essentials had not risen above the status of mere paper declarations
in several constitutions and still lacked substance, the principle had at least been
acknowledged and might attain its factual weight in due course. The classic example is the
sovereignty of the people, which from the lofty Virginia declaration ultimately melted down
18
Cf. Virginia Declaration of Rights, sec. 2, 3, 5-8, 13, and 15, in: The Federal and State Constitutions,
ed. by Thorpe, VII, 3813-3814.
DIPPEL, Modern Constitutionalism. An Introduction to a History in the Need of Writing
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to the introductory formula “We, the people” in the preamble of the Federal Constitution of
1787,19 a loophole taken up by a number of state constitutions in subsequent decades. The last
constitution, which refused to accept even this symbolic declaration, was the constitution of
Louisiana of 1812. In many instances it had closely followed the Kentucky constitution of
1799,20 itself a revised version of the Kentucky constitution of 1792, which had been the next
constitution after the Massachusetts constitution of 1780 and its New Hampshire clone of
1784 to reproduce all ten Virginia essentials. Louisiana, however, not only refused to emulate
the democratic character of the Kentucky constitution, but also declined to adopt its
Declaration of Rights with its emphasis on universal principles. Not the result of inattentive
neglect, this was, among other things, a conscious evasion of a stipulation of the Enabling Act
of Congress, which had mandated religious liberty to be included in the constitution.21
The constitution of Louisiana of 1812 is a typical example of deliberate opposition to
essentials of modern constitutionalism in the United States, an opposition assuming different
shapes at different times. In the 1770s and 1780s the strict separation of powers was more
often rejected than accepted,22 whereas between 1818 and 1849, when democracy gained
ground in the United States, about half of the state constitutions failed to include strict
19
Cf. Daniel Lessard Levin, Representing Popular Sovereignty. The Constitution in American Political
Culture, Albany, N.Y.: State University of New York Press, 1999, 18-20; Edmund S. Morgan, Inventing the
People, New York: Norton, 1988, 263-287.
20
Cf. my edition of the Louisiana constitution of 1812 at http://www.modern-constitutions.de.
21
Sect. 3 of the Enabling Act of 1811 ruled, "The constitution to be formed […] shall contain the
fundamental principles of civil and religious liberty [and] shall secure to the citizen the trial by jury in all
criminal cases, and the privilege of the writ of habeas corpus, conformable to the provisions of the constitution
of the United States" (The Federal and State Constitutions, ed. by Thorpe, III, 1377). The mandated religious
liberty was not included into the constitution, which passed unnoticed in Congress. Henry Clay declared in the
House of Representatives on March 19, 1812: "The Convention of Orleans had framed a constitution for the
State in conformity to the law of Congress imposing certain conditions as preliminary" (The Debates and
Proceedings in the Congress of the United States [Annals of the Congress of the United States], Twelfth
Congress, First Session, Washington: Gales and Seaton, 1853, 1225).
22
Cf. e.g. Vermont, where until 1836 the Governor, Lieutenant Governor and Treasurer, in case they
failed to obtain the absolute majority of votes in the popular election, were elected by joint ballot of “the
[Executive] Council and General Assembly”, even if they stood for re-election, cf. Constitutions of Vermont of
1777, ch. II, sect. 17, of 1793, ch. II, sect. 10, in: The Federal and State Constitutions, ed. by Thorpe, VI, 37443745, 3766. I express my thanks to Gregory Sanford from the Vermont State Archives for having called the
lasting and still unsolved problems with joint-ballot elections in Vermont to my attention.
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entrenchment of the constitution as paramount law or at least of parts of it in the document.
On a general scale, however, modern constitutionalism as a whole prevailed. The provisional
constitution of Texas of 1835, still under the impact of the Mexican past, contained hardly any
of the essentials of modern constitutionalism. The new constitution of 1836, resulting from
what has been styled the Texas Revolution,23 left out almost none. By the middle of the 19th
century, the constitutions of about half of the American states contained all ten essentials
enumerated in the Virginia Declaration of Rights.
This constitutional decalogue, first introduced in Virginia in 1776, and so far nothing
more than an American peculiarity, soon proved to be thoroughly intertwined with modern
constitutionalism on a global scale. On 26 August 1789, the French Declaration of Rights of
Man and Citizen was proclaimed, the European counterpart to the American declarations of
rights, and here again, as thirteen years before, we encounter the essentials of modern
constitutionalism. The differences are, however, noteworthy. The text begins with references
to the representatives of the people, human rights, universal principles, and to what can be
interpreted as sovereignty of the people, and it culminates in the famous art. 16: “Any society
in which the guarantee of rights is not assured nor the separation of powers determined has no
form of constitution.” Viewed in conjunction with the constitution of 1791, the two
documents representing the quintessential constitutional achievement of the initial phase of
the French Revolution, we have to admit that neither says anything about judicial
independence, accountability, limited government, and the constitution as entrenched
paramount law. But for the first time in a constitutional document the theory was established,
as reflected in art. 16, that we are only allowed to speak of a constitution in the terms of
modern constitutionalism if the text meets certain defined requirements. Therefore, in contrast
to what may have been called “constitution” in preceding times, modern constitutionalism
was now fixed on a number of essentials. What had started in America in 1776 as a new
political language, born in revolutionary upheaval and finally sanctioned through practical
politics and political experience, art. 16 of the French Declaration of Rights of 1789 raised to
the level of an axiom in constitutional theory, thus providing the theoretical foundation of
modern constitutionalism missing to that date. At the same time, true to its universal
principles, it thus transformed modern constitutionalism from a purely American idea into a
transnational phenomenon whose repercussions would be felt globally.
23
Cf. Paul D. Lack, The Texas Revolutionary Experience. A Political and Social History, 1835-1836,
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The ten Virginia essentials, though not completely reproduced by the French Declaration
of Rights of 1789 and the constitution of 1791, only received their credentials as being a
constituent for modern constitutionalism as a global phenomenon because they were taken up
in France in 1789 and because of art. 16 declaring that only the existence of certain essentials
allow us to speak of constitution in its modern meaning. Whatever the importance of art. 16 in
a specific French context may be,24 its overall significance lies in the fact that for the first
time a constitutional document insists that modern constitutionalism involves certain
essentials in the absence of which we are not allowed to speak of modern constitutionalism in
its proper sense.
Judicial independence, accountability, limited government, and the entrenchment of the
constitution were not omitted from the first two French constitutional documents by chance.
For various reasons, it took a long time until they became accepted principles of French
constitutionalism. Most, in fact, were only incorporated in recent decades as the constitution
of the Fifth Republic evolved.25 The history of modern constitutionalism in France is not only
characterized by these particularities, but also by major upheavals and ruptures, which made
French, and with it, European constitutionalism as a whole so different from its American
counterpart. Whereas the constitutions of 1791, 1793 and of the year III (1795) were
thoroughly established on most of the principles of modern constitutionalism, abrupt change
came with the constitution of the year VIII (1799). It contained none of the essentials of
modern constitutionalism, concentrating all power in the hands of the First Consul, and
College Station: Texas A & M University Press, 1992, esp. 87-95.
24
Cf. Michel Troper, “L’Interprétation de la déclaration des droits: L’exemple de l’article 16”, in: Droits.
Revue française de théorie juridique, 8 (1988), 111-122; Pierre Albertini, “Article 16”, in: La Déclaration des
droits de l’homme et du citoyen de 1789. Histoire, analyse et commentaires, ed. by Gérard Conac, Marc Debene
and Gérard Teboul, Paris: Économica, 1993, 331-342.
25
Cf. generally Louis Favoreu and Loïc Philip, Les grandes décisions du Conseil constitutionnel, 10th ed.,
Paris: Dalloz, 1999. Additionally Olivier Beaud, “Les Mutations de la Ve République ou comment se modifie
une constitution écrite”, in: Pouvoirs, 99 (2002), esp. 23-26; Adolf Kimmel, “Nation, Republik, Verfassung in
der französischen politischen Kultur”, in: Verfassung und politische Kultur, ed. by Jürgen Gebhardt, BadenBaden: Nomos, 1999, esp. 134-138; Jürgen Schwarze, “Die europäische Dimension des Verfassungsrechts”, in:
id. (ed.), Verfassungsrecht und Verfassungsgerichtsbarkeit im Zeichen Europas, Baden-Baden: Nomos, 1998,
150-153.
DIPPEL, Modern Constitutionalism. An Introduction to a History in the Need of Writing
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became a model for other authoritarian regimes and for how to disguise the consolidation of
political power in the hands of a dictator behind a constitutional façade.26
Obviously, constitutional fronts for authoritarian rule stand in open contradiction to the
conception of modern constitutionalism. Their only contribution to the history of modern
constitutionalism lies in documenting a fundamental and politically successful opposition to
it. This may tell us something about the extent to which the principles of modern
constitutionalism and of rational governance according to fixed legal rules had taken root in a
country at a specific time, but the constitutional development after the inevitable final
collapse of a political dictatorship usually will be much more revealing.
Three constitutional texts from the time of the breakdown of the Napoleonic Empire merit
particular interest. These are the constitutional projects of the Senate of 6 April 1814, and of
the House of Representatives of 29 June 1815, and the Declaration of the Rights of
Frenchmen of 5 July 1815.27 Different as they are they all document the attempt to
reintroduce modern constitutionalism and its major essentials in France. Sovereignty of the
people, universal principles, human rights, representative government, separation of powers,
and even an independent judiciary were proposed, but none of these ideas materialized in
these years. Instead, Bourbon restoration achieved its legitimization with the Charter of 1814.
The Charter of 1814 quickly became the model constitution for restoration Europe in the
early 19th century for two reasons. Firstly, it accepted the revolutionary idea of a constitution,
though without openly naming it so, while being decreed by the monarch. Secondly, it
consciously rejected modern constitutionalism.28 The sovereignty of the people was not
admitted, universal principles or human rights were not declared. The public rights of
26
Cf., most recently, Luca Scuccimarra, La sciabola di Sieyès. Le giornate di brumaio e la genesi del
regime bonapartista, Bologna: Il Mulino, 2002, esp. 167-174.
27
The three documents are published in Léon Duguit et al., Les Constitutions et les principales lois
politiques de la France depuis 1789, 7th ed. by Georges Berlia, Paris: Librairie Générale de Droit et de
Jurisprudence, 1952, 164-167, 181-189.
28
This perspective is generally neglected especially in French interpretations of the Charter of 1814, cf.
Pierre Rosanvallon, La Monarchie impossible. Les Chartes de 1814 et de 1830, Paris: Fayard, 1994, who
characterized it as the “English moment” (p. 8), or Alain Laquièze, Les Origines du Régime parlementaire en
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Frenchmen were no equivalent substitute.29 Representative government was not really
installed, nor was the constitution entrenched. Instead of a separation of powers all power
emanated from the monarch. There were no provisions either for limited government and
accountability or for a revision of the constitution with an amending power of the people.30
The only concession made was that judges, who were appointed by the monarch, held office
during good behavior.31 This model was to become the paradigm for almost all German
constitutions during the subsequent years,32 and it was acclaimed by conservatives throughout
Europe, whereas ultra-royalists considered it still too liberal.
The Charter of 1830 only slightly curtailed the power of the monarch and extended the
rights of the legislature,33 but as far as the essentials of modern constitutionalism are
concerned things remained basically the same.34 Partial change only came with the
constitution of 1848, which once again proclaimed the sovereignty of the people, but was
hesitant to acknowledge universal principles and human rights. It certainly accepted
representative government, separation of powers, judicial independence, and the amending
power, but the constitution was not entrenched, nor were limited government or the
accountability of government officers really secured. Though 1848 signified a crucial
France (1814-1848), Paris: Presses Universitaires de France, 2002, who speaks of a “limited monarchy” (p. 67),
but at the same time maintains that it was “strongly marked by judicial concepts of the time before 1789” (p. 74).
29
Cf. art. 1-12 of the Charter of 1814 (Les Constitutions de la France depuis 1789, ed. by Jacques
Godechot, Paris: Flammarion, 1979, 219).
30
The absence of a respective clause was a particular argument for the liberal opposition against the
incompleteness of the constitution, cf. Albert Fritot, Esprit du droit et ses applications à la politique et à
l’organisation de la monarchie constitutionnelle, 2nd ed., Paris: E. Pochard, 1825, 558-559.
31
Art. 58 (Constitutions de la France, ed. by Godechot, 223).
32
Cf. Jacky Hummel, Le Constitutionnalisme allemand (1815-1918): Le modèle allemand de la
monarchie limitée, Paris: Presses Universitaires de France, 2002, 40-59; Hartwig Brandt, “Von den
Verfassungskämpfen der Stände zum modernen Konstitutionalismus: Das Beispiel Württemberg”, in: Denken
und Umsetzung des Konstitutionalismus in Deutschland und anderen europäischen Ländern in der ersten Hälfte
des 19. Jahrhunderts, ed. by Martin Kirsch and Pierangelo Schiera, Berlin: Duncker & Humblot, 1999, 99-108.
33
On the heavily disputed character of the Charter of 1830, cf. most recently Luigi Lacchè, La Libertà che
guida il Popolo. Le Tre Gloriose Giornate del luglio 1830 e le “Chartes” nel costituzionalismo francese,
Bologna: Il Mulino, 2002, 87-93.
34
As an author who opposed any change in direction of modern constitutionalism, cf. Henri Fonfrède, Du
Gouvernement du roi, et des limites constitutionnelles de la prérogative parlementaire. Dédié à la Chambre des
Députés de France, Paris: H. Delloye, 1839.
DIPPEL, Modern Constitutionalism. An Introduction to a History in the Need of Writing
12
breakthrough for modern constitutionalism, it was – at least in France – at best a temporary
and partial victory.35
Whereas the French Charter of 1814 embodied the strain of anti-modern-constitutionalism
in restoration Europe, the Spanish Cadiz constitution of 1812 stood for a liberal compromise.
Most important of all, it had proclaimed the sovereignty of the people, though it was virtually
silent about universal principles and human rights. It established representative government,
the separation of powers, and the independence of the judiciary. It recognized the constitution
as paramount law and contained provisions concerning the amending power, but it failed to
address the ideas of limited government and government accountability. Despite the
fundamental opposition of Metternich and the Holy Alliance, the constitution was twice
readopted in Spain and additionally introduced in the early 1820s in the Two Sicilies,
Piedmont, and Portugal. What the French Jacobin constitution of 1793 came to represent for
the European democratic Left in the second half of the 19th century, the Cadiz constitution
symbolized for the democratic Liberals in the first half.36
The overall significance of the Cadiz constitution lies in the fact that it constituted the
most important attempt in Europe in the first half of the 19th century to combine the essentials
of modern constitutionalism with the existing monarchical order.37 For this very reason it was
vehemently rejected not only by conservatives throughout Europe,38 but also by moderate
35
Cf. Frédéric Lambert, “La Genèse de la Constitution du 4 novembre 1848. De la confiscation de la
Révolution à la défaite de la République”, in: Executive and Legislative Powers in the Constitutions of 1848-49,
ed. by Horst Dippel, Berlin: Duncker & Humblot, 1999, 205-229.
36
Cf. Boris Mirkine-Guetzevitch, “La Constitution espagnole de 1812 et les débuts du libéralisme
européen (Esquisse d’histoire constitutionnelle comparée)”, in: Introduction à l’étude du droit compare. Recueil
d’Études en honneur d’Édouard Lambert, 5 vols., Paris: Recueil Sirey, 1938, II, 211, 216-219; Juan Ferrando
Badía, “Die spanische Verfassung von 1812 und Europa”, in: Der Staat, 2 (1963), 155-158. Also Antonino de
Francesco, “La Constitución de Cádiz en Nápoles”, in: José María Iñurritegui and José María Portillo (eds.).
Constitución en España: Orígenes y destinos, Madrid: Centro de Estudios politicos y constitucionales, 1998,
273-286.
37
Cf. Joaquín Varela Suanzes-Carpegna, La Teoría del estado en los orígenes del constitucionalismo
hispanico (Las Cortes de Cádiz), Madrid: Centro de Estudios Constitucionales, 1983, esp. 374-377.
38
Cf. Karl Ludwig von Haller, Ueber die Constitution der Spanischen Cortes, s.l. 1820. On Haller, the
inveterate warrior against modern constitutionalism, and his pamphlet, cf. Burchard Graf von Westerholdt,
Patrimonialismus und Konstitutionalismus in der Rechts- und Staatstheorie Karl Ludwig von Hallers.
Begründung, Legitimation and Kritik des modernen Staates, Berlin: Duncker & Humblot, 1999, esp. 61-66.
DIPPEL, Modern Constitutionalism. An Introduction to a History in the Need of Writing
13
liberals who refused to accept greater limitations of the monarchical power than the British
constitution before 1832 provided.39
This British constitution continued to be held in high esteem by all those in Europe who
had accepted the idea of a constitution but rejected modern constitutionalism. Since the 1790s,
an active British foreign policy of constitution making along British lines in order to prevent
revolutions of French provenance had substantially contributed to this climate of opinion.40
Basically, British ideas rested on the assumption that individual liberty could be safeguarded
more efficiently and lastingly by enlightened political compromise than by rigid and
entrenched constitutional stipulations. A telling example is the Constitution of the United
Ionian Islands of 1817, the so-called Maitland Constitution, which did not acknowledge any
of the essentials of modern constitutionalism, but allowed for the internal rule of the local
aristocracy under strict British surveillance.
In view of the unyielding opposition of the Holy Alliance against the Cadiz constitution,
which did not even shrink from military intervention to bring it down, a new constitution rose
to prominence in liberal Europe, seeking to introduce the essentials of modern
constitutionalism while tsarist Russia was engaged in quelling the Polish uprising and British
diplomacy in London was working out a compromise among the five great European powers
on the future status of the country: the Belgian constitution of 1831. It was a masterpiece of
constitutional camouflage.41 Its strongest opponents might reproach it for containing all the
essentials of modern constitutionalism, but its adherents could equally maintain that nowhere
did it express them. It did not speak of the sovereignty of the people, proclaiming instead that
39
Cf. Karl Heinrich Ludwig Pölitz, Die Staatensysteme Europa’s und Amerika’s seit dem Jahre 1783,
geschichtlich-politisch dargestellt, 3 vols., Leipzig: J. C. Hinrichssche Buchhandlung, 1826, III, 253. Also Horst
Dippel, “Die Bedeutung der spanischen Verfassung von 1812 für den deutschen Frühliberalismus und
Frühkonstitutionalismus”, in: Denken und Umsetzung des Konstitutionalismus, ed. by Kirsch and Schiera, 219237.
40
Cf. Günther Heydemann, Konstitution gegen Revolution. Die britische Deutschland- und Italienpolitik
1815-1848, Göttingen: Vandenhoeck & Ruprecht, 1995, though it deals more, for the period stated, with German
and Italian than with British constitutional projects. Also Carlo Ricotti, “Il costituzionalismo britannico nel
Mediterraneo (1794-1818)”, in: Clio, 27 (1991), 365-451.
41
This interpretation, obviously, contradicts A. de Dijn, “A Pragmatic Conservatism. Montesquieu and the
Framing of the Belgian Constitution (1830-1831)”, in: History of European Ideas, 28 (2002), 227-245, who
disregards as much the constitutional controversies of the time as the political constellation in Europe.
DIPPEL, Modern Constitutionalism. An Introduction to a History in the Need of Writing
14
all power was derived from the nation.42 There was no declaration of rights and of universal
principles, but in substance Title II “Of Belgians and their rights” served the very purpose.
Government accountability was not proclaimed, but art. 24 ruled how public officers were to
be made responsible for administrative acts.43 The constitution was entrenched, but no
provision was made to prevent the respective article from being abrogated.44 The political
privileges of the aristocracy were abolished, but in order to be elected senator a high property
qualification was necessary.45 Thus representative government was assured, along with a
separation of powers, limited government, independence of the judiciary, and finally the
amending power.46
Modern constitutionalism had achieved its greatest triumph so far in Europe, even
surpassing Switzerland, where revolutionary enthusiasm had lead to a Declaration of Rights in
Geneva as early as 1793. Besides French influence it had been characterized by unbroken
local traditions at odds with modern constitutionalism. In particular, the Swiss tradition of the
sovereign community acting in forms of direct democracy hardly allowed for adopting such
essentials of modern constitutionalism as representative government, separation of powers,
limited government, independence of a judiciary, or an entrenched paramount law.47 But
whether in small republics or in extended states, the progress of modern constitutionalism
42
Constitution de la Belgique, art. 25, in: Bulletin officiel des décrets du Congrès national de la Belgique,
et des arrêtés du pouvoir exécutif/Staetsblad, n°. 88, Brussels: Imprimerie de Weissenbruch père, 1831, 1008.
43
Cf. Gustave Beltjens, Encyclopédie du droit civil belge II: La Constitution belge revisée, annotée au
point de vue théorique et pratique de 1830 à 1894, Liège: Jacques Godenne, 1894, 333.
44
Constitution de la Belgique, art. 130, in: Bulletin officiel de la Belgique, 1038.
45
Constitution de la Belgique, art. 6 and 56, ibid., 1004, 1016, 1018.
46
Cf. John Gilissen, “La Constitution belge de 1831: ses sources, son influence”, in: Res publica. Revue
de l’Institut Belge de Science Politique, Bruxelles, 10 (1968), 107-141; André Mast, “Une Constitution du temps
de Louis-Philippe”, in: Revue du droit public et de la science politique en France et à l’Étranger, 73 (1957),
987-1030; also the still classic remarks by Émile de Laveleye, Quelques Considérations sur la constitution
belge, bound with: Théodore Juste, Le Congrès national de Belgique 1830-1831. Précédé de Quelques
Considérations sur la constitution belge par Émile de Laveleye, vol. I, Brussels and Leipzig: Librairie
Européenne C. Muquardt, 1880.
DIPPEL, Modern Constitutionalism. An Introduction to a History in the Need of Writing
15
continued to be more implicit than explicit. Sovereignty of the nation could also mean a
conscious rejection of the idea of sovereignty of the people, as demonstrated anew by the
deliberations in the Paulskirche in 1848-49.48 Even today, of the monarchies in the European
Union only the Swedish constitution of 1974 and the Spanish constitution of 1978 openly
proclaim the sovereignty of the people.49
On the whole, the European revolutions of 1848 constituted the most decisive moment for
modern constitutionalism and its future history since the end of the 18th century. No other
single event in the sixty-year interim had given a comparable thrust to its basic principles and
in the long run it proved any attempt to turn the tide to be futile. Its immediate results, though,
were ambiguous. As a general rule the constitutions of 1848-49 can be divided into two
groups, one comprising those who were set up and decreed in order to avert a revolution and
the other containing those that were more truly the offspring of a revolution. Not surprisingly,
modern constitutionalism and its essentials were rejected with only minor exceptions in the
former, whereas they were crucial to the latter. The German state constitutions of 1848-49 are
particularly well suited for illustrating the wide range of possibilities. The ruling elite of the
Hanseatic town of Lübeck proved to be basically as resistant to the ideas of modern
constitutionalism as that of Hamburg, where no constitution at all was achieved in these years.
The Lübeck April constitution of 1848 actually sanctioned the traditional order of estates,
whereas the only concession to the revolution the December constitution of 1848 made was
the introduction of representative government.50
47
Cf. Constitution genevoise, sanctionnée par le souverain le 5 Fév. 1794, l’an troisième de l’Égalité;
précédée de la Déclaration des droits et des devoirs de l’homme social, consacrée par la nation genevoise le 9
Juin 1793. Imprimé & distribué par ordre du Gouvernement, Geneva : Imprimerie de Bonnant, [1794].
48
Cf. Horst Dippel, “Das Paulskirchenparlament 1848/49: Verfassungskonvent oder Konstituierende
Nationalversammlung?”, in: Jahrbuch des öffentlichen Rechts der Gegenwart, N.S. 48 (2000), 17-18.
49
Ch. I, art. 1: “En Suède, tous les pouvoirs émanent du peuple. La souveraineté du peuple suédois […]”,
and art. 1,2: “La souveraineté nationale réside dans le peuple espagnol; tous les pouvoirs de l’État émanent de
lui” (Les Constitutions des États de l’union européenne, ed. by Constance Grewe and Henri Oberdorff, Paris: La
documentation française, 1999, 450, 180).
50
Revised Constitution of Lübeck, 12 December 1848, published in: Lübeckische Verordnungen, 1848,
186-213.
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16
Even before the official human rights declaration of the Paulskirche, the states which
adopted a new constitution generally inserted an extensive human rights catalogue in it,
however, true to what had been extensively discussed in the Paulskirche and consistently
without acknowledging universal principles as its legitimization. As a rule they adopted
representative government, separation of powers, accountability, and the independence of the
judiciary. Some also provided rules for amending the constitution. Two constitutions, those of
Lauenburg and Waldeck-Pyrmont, made the constitution the paramount law with the latter
ruling that “Legal provisions being inconsistent with this constitution are annulled.”51 The
constitution of Anhalt-Dessau of 1848 was unique in additionally adopting the principle that
“All power is derived from the people.”52 Though universal principles and limited
government were nowhere expressly declared, modern constitutionalism had reached its 19thcentury zenith in Germany, a culmination which would remain unsurpassed for the next
seventy years.
The German situation, generally speaking, was not unique in Western Europe. The Danish
constitution of 1849, though liberal in its tenor and documenting its adherence to the
principles of limited government and separation of powers right from the start,53 secured
representative government, independence of the judiciary, human rights, and the amending
power, but failed to acknowledge the sovereignty of the people and universal principles, and
was less expressive about accountability and an entrenched paramount law. With the
essentials adopted it more or less resembled the Dutch constitution of 1848,54 whereas the
constitution of Luxemburg of 1848 was largely an adaptation of the Belgian constitution of
1831, however with the telling exception of its art. 25 which stated that all power emanated
from the nation.55
51
Staatsgrundgesetz für die Fürstentümer Waldeck und Pyrmont [23 May 1849], § 141, as published in:
Fürstlich Waldeckisches Regierungs-Blatt, Nr. 13, 29.5.1849, 50.
52
Verfassungsurkunde für das Herzogtum Anhalt-Dessau [29 October 1848], § 5, separately published
[s.l.: s.n., s.a.], 4.
53
Danmarks Riges Grundlov, I, §§ 1 and 2, published in: Departementstidenden, Nr. 37, 5.6.1849, 489.
54
Cf. Grondwet voor het Koningrijk der Nederlanden. Officiële uitgave, The Hague: Ter allgemeene
Lands-drukkerij, 1848.
55
Cf. Verordnungs- und Verwaltungsblatt des Großherzogthums Luxemburg/Mémorial législatif et
administratif du Grand-Duché de Luxembourg, 1848, 389-414. The constitution was signed by the same King
William II who three months later signed the Dutch constitution, which also did not proclaim the sovereignty of
DIPPEL, Modern Constitutionalism. An Introduction to a History in the Need of Writing
17
What was missing in the Luxemburg constitution of 1848 and partially disguised in the
Belgian constitution of 1831 was openly declared in the constitution of the Roman Republic
of 1849, the most democratic constitution and the one most closely conforming to the
essentials of modern constitutionalism of all European constitutions of the revolution of 184849.56 It opens by proclaiming: “Sovereignty is the eternal right of the people”, and later
confirms: “All power emanates from the people.”57 All other nine essentials were properly
declared, with the sole exception of limited government, which failed to be expressly stated.
The other Italian constitutions of the revolutionary years resembled the wide range of the
German constitutions in their proximity to or distance from the essentials of modern
constitutionalism. The Statuto Albertino, the longest living of all European constitutions from
this biennium, marks the sole exception. Though decreed by a monarch, it recognized at least
four essentials: human rights, representative government, separation of powers, and
independence of the judiciary – more than most other constitutions of comparable provenance
did, inside and outside Italy.58
Modern constitutionalism definitely had made a big step forward in Europe with the
revolutions of 1848, and the most resounding example in Central Europe were presumably the
two drafts of fundamental rights and of a constitution by the Imperial Diet at Kremsier,59
which like the later Constitution of the Roman Republic only failed of all the essentials
the nation. Though the Luxembourg constitution was published bilingually with the German language in first
place, the language in which it was originally drafted was obviously French as indicated by the identical wording
of the overwhelming part of the constitution with the French text of the Belgian constitution.
56
Cf. Giuseppe Galasso, “La Costituzione romana del 1849”, in: Executive and Legislative Powers in the
Constitutions of 1848-49, ed. by Dippel, 231-269.
57
Costituzione della Repubblica Romana, Principii fondamentali, art. 1, and Title II, art. 15, facsimile
reprint in I Progetti e la Costituzione della Repubblica Romana del 1849. Testi e index locorum, ed. by Paola
Mariani Biagini, Florence: Istituto per la documentazione giuridica del Consiglio Nazionale delle Ricerche,
1999, [53], [56]; also in: Le Costituzioni italiane, ed. by Alberto Aquarone et al., Milan: Edizioni di comunità,
1958, 614, 616.
58
Cf. Hartmut Ullrich, “The Statuto Albertino”, in: Executive and Legislative Powers in the Constitutions
of 1848-49, ed. by Dippel, esp. 129-144.
59
Though Gerald Stourzh, “Frankfurt – Wien – Kremsier 1848/49: Der Schutz der nationalen und
sprachlichen Minderheit als Grundrecht”, in: id., Wege zur Grundrechtsdemokratie. Studien zur Begriffs- und
Institutionengeschichte des liberalen Verfassungsstaates, Vienna and Cologne: Böhlau, 1989, 197, stressed the
analogies between the human rights declarations of the Paulskirche and the diet of Kremsier, the main difference
is that in Kremsier the sovereignty of the people was unequivocally declared.
DIPPEL, Modern Constitutionalism. An Introduction to a History in the Need of Writing
18
expressly to mention limited government.60 Though the political situation prevented further
advances in other parts of Europe to this date, modern constitutionalism despite its many
opponents and the severe setbacks resulting from the reaction of the 1850s had firmly taken
root in Europe, even if its further history in this part of the world would prove to be full of
contradictions. A major step to put government on a more rational foundation for the benefit
of the people had been achieved.
Easy victory was procured in these days in a completely different place, where future
contradictions were to be no less evident: Liberia. Its constitution of 26 July 1847, American
as its provenance was, transplanted all ten Virginia essentials to the west coast of Africa.61 In
Latin America, however, a formal structure of government according to the example set by
the United States was filled with contents originating from the Spanish, Portuguese or French
colonial past, the social discrepancies of a ruling elite facing the indigenous masses deprived
of their rights, and some recent European influences. This particular setting caused and
continues to cause a manifestly different understanding of constitution resulting in a gulf
between the formal constitution and the material constitution, which only seems to have been
narrowing in recent years.62 The constitutions of the first half of the 19th century willingly
acknowledged representative government and separation of powers. Some elevated the
constitution to paramount law and contained elaborate provisions for an amending process.
Limited government, accountability, and an independent judiciary, however, were generally
not favorite topics nor did they assume real meaning. Quite often human rights were declared,
though many constitutions had reserved them only for the “ciudadinos”, which appears to be
just another word for the ruling elite, whereas the “duties”, which hardly any constitution
forgot to list, seem to have primarily applied to the rest of the population. This may also
explain why universal principles were so rare in these constitutions and most of them
preferred to refer to the sovereignty of the nation, instead of the more radical sovereignty of
60
Cf. the texts as reproduced in: Texte zur österreichischen Verfassungsentwicklung 1848-1955, ed. by
Ilse Reiter, Vienna: WUV-Universitätsverlag, 1997, 12-30.
61
Cf. Constitution of the Republic of Liberia With the Laws of the Republic. Enacted by the Senate and
House of Representatives At their First Session, held in Monrovia, January and February, 1848. Printed at the
Herald Office. By Authority, [Monrovia,] March 1848, 1-11.
62
Cf. Roberto J. Vernengo, “Verfassungsstaat in Europa und Lateinamerika”, in: Politische
Herrschaftsstrukturen und Neuer Konstitutionalismus – Iberoamerika und Europa in theorievergleichender
Perspektive, ed. by Werner Krawietz et al. (Rechtshistorie, Beiheft 13), Berlin: Duncker & Humblot, 2000, 325332.
DIPPEL, Modern Constitutionalism. An Introduction to a History in the Need of Writing
19
the people. In spite of these sweeping impressions, substantial differences between the
constitutions of e.g. Ecuador and Guatemala existed and different political situations or social
contexts may have resulted in opening the countries more for the essentials of modern
constitutionalism. Therefore, a much more detailed analysis of the hundreds of Latin
American constitutions from Mexico to Argentina, their political origins, and the intellectual
discourse in which they were embedded will be needed, for which I lack space and, even
more so, competence.
The history of modern constitutionalism is a history still in need of writing.63 The
preceding remarks only sketched out the rough outlines with the intention of inciting a new
thinking on constitutional history generally and on its impact in the several countries in
particular. It should have demonstrated that a fresh perspective is called for, which will shed
new light on the constitutional history of all countries involved. Instead of asking when and
where American or French ideas and institutions were copied, as has been done before, the
constitutional development of both countries itself appears in a new light, demanding new
answers. The history of modern constitutionalism thus deliberately strays from the welltrodden paths of national constitutional history and starts from a global perspective. The
documents for such a new approach are all there. All they need is a new reading, promising to
open a huge range of new vistas.
63
This will also give perspective to Tadakazu Fukase and Yôïchi Higuchi, Le Constitutionalisme et ses
problèmes au Japon: Une approche comparative, Paris: Presses Universitaires de France, 1984, who without any
theoretical underpinnings started from art. 16 of the French Declaration of Rights of Man and enumerated
sovereignty of the people, separation of powers, human rights, and universal principles as characteristics of
modern constitutionalism to conclude that after decades of constitutional debate and political fighting the
country with the constitution of 1946 finally “adheres without reserve to the principles of modern
constitutionalism” (p. 22).