¹ Despite Jellinek's contrary opinion. According to Jellinek, “constitution” derives from the Latin phrase rem publicam constituere. Cf. Allgemeine Staatslehre (Berlin, 1914, 3d ed.), vol. III Google Scholar, ch. iv. However, no historical continuity appears to exist between constituere and “constitution” (see infra notes 21, 25), and this derivation is bound to give us a misleading start.

² Cf., e.g., Wheare, K. C., Modern Constitutions (London, Oxford University Press, 1960), p. 21 Google Scholar.

³ Cf., e.g., W. Bagehot, The English Constitution, ch. ii.

⁴ The Law and the Constitution, 5th ed. (London, University of London Press, 1959), p. 40 Google Scholar.

⁵ Bagehot is no exception when he asserts that “a new House of Commons can despotically … resolve” [my italics]. Op. cit., ch. vii.

⁶ This is to deny that there is a substantial difference between the British and the Continental principle of parliamentary sovereignty. If the term of reference is the American Congress then, of course, there is a good deal of difference.

⁷ Op. cit., p. 2.

⁸ A comparison between Jennings' classic text and Vishinsky's, The Law of the Soviet State (New York, 1951)Google Scholar, would be to the point. According to Vishinsky, Stalin's Constitution draws “ever broader masses of the people into the government of the State,” constantly strengthens “the bonds between the apparatus of authority and the people”; and Soviet constitutions in general “confirm genuinely democratic rights and freedoms,” “establish and emphasize material guarantees,” etc. (pp. 88–89).

⁹ In 1860, the formula for the Italian plebiscites said only: “Do you want to enter the constitutional monarchy of King Victor Emanuel II?” Evidently, the mere adjective “constitutional” was assumed to be understood as implying all the difference.

¹⁰ Of course the query, “What do the guarantees include?” (e.g., a certain technique of allocation of power, a bill of rights, the rule of law, judicial review, etc.) receives different, complex and changing answers. This is all the more reason for adopting a general term, reminding us both of the goal, and particularly of the fact that unless we think that somebody needs protection against somebody else, there is no point in being concerned with constitutionalism.

¹¹ The extent to which political terminology is subject to this kind of abuse can be exemplified by the very term “politics.” In the Middle Ages the expression dominium politicum meant (in contrast to dominium regale) government deriving from, or given consent by, the people (i.e., by the polítes, the inhabitant of the polis). That is to say that politicum, or police (in French), was coined—having reference to the Greek root—as a good word. Nowadays this originally pleasant word denotes the most unpleasant reality of politics: those who are entitled to arrest us. Let us hope that “constitution” may not have a similar destiny.

¹² Pellegrino Rossi (1787–1848) was professor of law in Bologna in 1814, the framer of the 1832 project of reform of the Swiss constitution, and subsequently a celebrated professor of constitutional law at the Collège de France in Paris.

¹³ The wording varies, but this was, in substance, the invariable gist of their argument.

¹⁴ Or, where no such document exists, simply “the rules determining the creation and operation of governmental institutions.” The Law and the Constitution, pp. 33, 36.

¹⁵ Or else to bear no witness. Thus in Hayek's, F. A. The Constitution of Liberty (London, Routledge, 1960)Google Scholar, the 12th chapter bears the title: “The American Contribution: Constitutionalism.” To be sure, Americans have made an outstanding contribution to constitutionalism. But to say more than this is saying too much, even though Hayek's conclusion is hardly surprising if one is not cautioned against the British mood of understatement.

¹⁶ See Robinson, R., Definition (Oxford, 1954), pp. 35–92 Google Scholar. For an application of these criteria, see Cranston, M., Freedom—A New Analysis (London, 1953)Google Scholar.

¹⁷ Op. cit., p. 65.

¹⁸ For my views on the truth-value of definitions, see Sartori, G., Democratic Theory (Detroit, Wayne Univ. Press, 1962)Google Scholar, ch. 10.

¹⁹ The form “ought” is not necessarily related to ethical imperatives.

²⁰ I am no longer referring to the strictly juridical approach mentioned previously, but to the overall issue of constitutionalism as discussed in the history of political thought and in philosophy of law.

²¹ Cicero's, use, in De Republica, I, 45, 69 Google Scholar, was quite casual, and left no trace in the following literature. Actually, this much-quoted Roman precedent cannot claim precedent status. This is so true that the 15th and 16th century commentators rendered Cicero's constitutio with the terms status publicus (Jean de Terre Rouge), status Reipublicae (Bodin), or politicum (Fortescue), police (Seyssell).

²² I say “perhaps” on account of Mcllwain's reservation: “Bolingbroke in fact is only restating views as old as the Politicus of Plato ….” Constitutionalism: Ancient and Modern (Ithaca, Cornell University Press, 1947), p. 3 Google Scholar.

²³ On Paine see esp. C. II. McIlwain, op. cit., pp. 8–10. In Burke “constitution” was used much more loosely as a synonym for “commonwealth” (Thoughts on the Cause of Present Discontents), for “engagement and pact of society” (Reflections), for “frame” and “pattern” (Speech on Reform); all in all, it meant the substantive principles deriving from the British political tradition and to be inferred from the working of the institutions.

²⁴ Cf., e.g., Burke: “In [our] Constitution … I feel both that I am free, and that I am not free dangerously to myself and to others. I know that no power on earth, acting as I ought to do, can touch my life, my liberty, my own property” (Speech on Reform of Representation.) Let it be noted that, according to the letter of the constitution, in 1782 the doctrine of the omnipotence of Parliament was already established. Was Burke wrong, then? Or should we not question, instead, the validity—for a constitution largely based on conventions—of the “literal” approach?

²⁵ In this connection, recall that in the years of the Commonwealth and the Protectorate (1649–1660) the English made several attempts to establish a written constitution. However, they never called these documents “constitution”: they made recourse to terms such as covenant, instrument, agreement, model, paramount or fundamental law.

²⁶ Friedrich, Carl J., The Philosophy of Law in Historical Perspective (University of Chicago Press, 1958), p. 220 Google Scholar.

²⁷ In the famous ch. 6, Book XI of the Esprit des Lois the term constitution appears only in the title.

²⁸ I grant that there are a few passages in Aristotle's Politics in which the term politeía specifically refers to the way in which the polis magistracies are ordained. Cf., e.g., 1278 b. However, this meaning appears in passing, and it cannot be denied, I believe, that (i) the ethico-political all-embracing meaning of politeía is by far the prevalent one, and, on the other hand, (ii) the term never appears in Aristotle in our juridical meaning, that is, in the sense of being an institutionalized way of controlling the dynamics of political freedom. Actually, I find it quite absurd to speak of a Greek “constitutionalism.” Only the Romans indirectly tackled the problem, and only from the “rule of law” angle (as Jhering and Bryce have remarked), that is, very much in the same way in which—according to Dicey—the principles of the English constitution are inductions and generalizations resulting from judicial decisions determining the rights of private persons.

²⁹ Cf. Loewenstein, Karl, Political Power and the Governmental Process (University of Chicago Press, 1957), esp. pp. 147 ff.Google Scholar

³⁰ It is often held that the mere ordering, the mere existence of a definite and stable “form,” is in itself a “limit.” This may well be—but not a garantiste kind of limit. Armies are usually well ordered, but this fact does not necessarily protect subordinates vis-à-vis their superiors.

³¹ Car accidents may serve the purpose of improving our driving. Would this be a reason for creating the category “educational accidents”?

³² Contemporary constitutions are being said to improve on the former ones in that they are no longer “negative” but “positive.” If positive means that they are also an instrument for social and economic policy then let us be happy with this positive development. Under one condition, however: that the follow-up, i.e., the “economic” tail, should not eat the “political” head.

³³ Among other reasons, because a constitution cannot effectively limit the will of the power holders if they can outflank constitutional impediments by making direct appeals to the will of the people.

³⁴ This is not to deny that pluralism is a requisite condition for the proper working of constitutional systems. My own view, however, is that the relationship between societal pluralism and constitutional patterns of behavior is a two-way relationship, at least in the sense that it is very important, for pluralism, to have the constitution on its side.

³⁵ I have in mind, e.g., the approach devised by Heinz Eulau and associates in a related subject. Cf. Wahlke, Eulau, Buchanan, Ferguson, The Legislative System—Explorations in Legislative Behavior (New York, 1962)Google Scholar.