A Note on the Meaning of `Constitution' Author(s): Graham Maddox Source: The American Political Science Review, Vol.

76, No. 4 (Dec., 1982), pp. 805-809 Published by: American Political Science Association Stable URL: http://www.jstor.org/stable/1962972 Accessed: 14/10/2010 00:07
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A Note on the Meaning of 'Constitution'

GRAHAM MADDOX The University of New England Professor Sartori's 1962 article on constitutionalism in the American Political Science Review was influential in the acceptance of a narrow view of the constitution. Sartori argued that constitution meant specifically limitation on government and underplayed the role of the state in establishing a political order. This article argues that there are good historical reasons for keeping a balanced view of a constitutionalism that maintains a tension between strong government, to create a secure and stable order, and limitation on government power. It therefore attempts to reaffirm McIlwain's more traditional view of the constitution as a combination of gubernaculum and jurisdictio, power and its control.

In an important article published in 1962 Giovanni Sartori expounded a very particular view of constitutionalism which exerted a far-reaching influence on subsequent discussions. His first concern was to refute those traditional theorists who had used the term 'constitution' in its widest sense as the total form of the state and its institutions (Wheare 1966, p. 1). His search for precise and clearly defined concepts in comparative politics (cf. his later article, 1970) had led Sartori to a teleological approach to constitutionalism: The telos of a constitution was the guarantee of rights to individual citizens by placing limitations on government power. The argument involved Sartori in making the claim that there was no connection between the original meaning of the Latin constitution from which the modern term is derived, and its contemporary usage; that sometime before the modern era constitution became a vacant term ripe for the acquisition of a new meaning; and that the idea of constitutionalism as limited government never existed before modern times-it was the discovery of this principle that gave constitution its modern teleological definition. Comparative politics demands precise concepts, but it is unacceptable, in Sartori's view, to resort to mere stipulation. "According to this approach the speaker says: I propose to use the term constitution in this sense, and this is my definition of it. The emphasis is laid on the 'my,' for stipulations are an arbitrary choice." The difficulty, of course, is how to conduct a meaningful debate. Anyone can dismiss a proposal for a definition by saying: "This is your stipulation, but I have mine, and that is that" (Sartori 1962, pp. 858-59). The correct procedure, Sartori suggested, is to establish a "truth-value" definition by justifying a

claim as to what constitution ought to mean.' The search for "truth-value" involves a systematic dismissal of unacceptable definitions so that the true definition can be seen to stand on its own merit. Sartori's teleological definition emphasizes the constitutional function of limitation on government. Since this idea achieves considerable prominence with some other writers2 and is offered as a promising candidate for the precise kind of definition required by the rigors of comparative politics, it is pertinent for us to consider in more detail how Sartori arrived at his conclusion. Synthesizing a "truth-value" definition includes for Sartori a sifting of historical evidence about the usage of a term. A word like 'democracy,' for example, is (1965a, p. 221) "a carrier of historical experience whose meaning is stabilized by an endless trial-and-error historical process. . . ." Although this process may be valid for 'democracy,' however, it is apparently not satisfactory for 'constitution.' To build up a clear picture of what 'democracy' means to us today, Sartori began with its origins in history, and an examination of the earliest form of democracy helped to provide material for devising a prescriptive definition of what democracy ought to mean. However, looking at the origins of 'constitution'
'For 'prescriptive' definitions and an elaboration of 'truth-value' definitions see Sartori (1965, pp. 3-5, 207-27). 2See, e.g., Akzin (1967, pp. 5, 16); Friedrich (1951, p. 18); and MacKenzie (1955, p. 69). Although noting the part that constitutions can play in limiting government, these authors do not, however, stress with Sartori that this function is the essential point in defining 'constitution.'

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in its earliest Latin usage was, for Sartori, of little value since, "in the course of time, the word constitution became a 'vacant term'-a term available for new employment" (1962, p. 853). Yet in the case of 'democracy' the fact that the concept did not enjoy historical continuity did not apparently pose any difficulties. The argument with regard to constitution rests on the interpretation that the Latin constitutio "meant the very opposite of what is now understood by constitution" (1962, p. 853). It would have been more accurate for Sartori to state that one arbitrarily selected meaning of constitutio was the opposite of the precise modern meaning for which he was arguing. To Sartori, "constitutio was an enactment"-that is, it was synonymous with lex and edictum, the laws "enacted by the sovereign." What he failed to do, however, was to account for how constitutio acquired this meaning. The word derives originally, of course, from constituere, 'to set up, establish, erect, construct, arrange, to settle or determine,' and constitutio is the noun form. A constitutio becomes a 'regulation,' 'order,' or 'decree' as a result of some arrangement, or some establishment being made. In imperial times the decrees of the emperor were called constitutiones because they collectively defined the limits of state action. McIlwain long ago argued the most cogent case for Roman imperial constitutionalism under a system of law which protected the rights of citizens (1958, pp. 41-66). The imperial constitution need not, in theory at least, imply the arbitrary exercise of the emperor's naked will as Sartori's statement suggests. More serious, however, is his dismissal of the first recorded use of the term constitutio in its sense of the establishment of the state order. According to Sartori's argument, "Cicero's use, in De Republica, 1.45.69 was quite casual, and left no trace in the following literature" (1962, p. 859 n. 21, emphasis added). It is as well to recollect, however, that Sartori was referring to one of the least casual and most calculatingly deliberate composers of words in the history of literature; surely every mention of the word in English follows in some sense from this original usage.3 Cicero's use of constitutio in the cited passage is anything but casual and refers (as Sartori's dismissal clearly acknowledges) to the total composition, the shape or form of the state.' It reappears

in the second book of the Republic in the sense of the gradual establishment of the state through the evolution of its institutions.' And most significantly, again in a fragment of the second book, Cicero speaks of the constitutio of Romulus, the legendary founder of Rome, having "remained stable for about two hundred and twenty years."6 In another illustrious passage Cicero speaks of the state itself as being the "constitution of a people."7 In yet another Cicero uses constitutio in the sense of the 'nature' or 'form' of a republic.8 It is not entirely true to say that the sense in which Cicero used constitutio cannot be traced in subsequent literature. Certainly the Roman historians tended to avoid abstractions,9 but it would be absurd to insist that the English 'constitution' could only be said to derive from its syntactical counterpart; clearly 'constitution' (along with the

3Sartoriis then forced by his line of argument to claim that by 'constitution' Burke meant something like 'commonwealth' (1962, p. 859, n. 23). 4Cicero, De Republica 1. 69: "haec constitutio primum habet- aequabilitatem quandam magnam, qua carere diutius vix possunt liberi, deinde firmitudi-

nem. . ." ("This kind of constitution has, first, a high level of equality, which free people can scarcely do without for very long, and secondly, it has stability.") Despite Sartori's misgivings, Cicero here associates this first great use of 'constitution' with the idea of 'normal' government constituted on the ideals of justice and equality. I Cicero, Rep 2. 37: "nunc fit illud Catonis certius, nec temporis unius nec hominis esse constitutionem rei publicae." ("Now that famous saying of Cato, that the constitution of the republic is the work neither of one time nor of one person, is shown even more to be valid.") 6Rep. 2. 53: "itaque illa praeclara constitutio Romuli cum ducentos annos et viginti fere firma mansisset. . ." ("And so that glorious constitution of Romulus, having remained stable for about two hundred and twenty years. . . ") 7Rep. 1. 41: "omnis ergo populus, qui est talis coetus multitudinis, qualem exposui, omnis civitas, quae est constitutio populi, omnis res publica, quae, ut dixi, populi res est, consilio quodam regenda est, ut diuturna sit." ("Therefore every people, which is just the sort of multitudinous gathering I have been describing, every state, which is the constitution of a people, every republic, which, as I have said, is the property of a people, must be ruled by some form of council so that it may be enduring.") 8Rep. 1. 70: "sic enim decerno, sic sentio, sic adfirmo, nullam omnium rerum publicarum aut constitutione aut discriptione aut discipline conferendam esse cum ea, quam patres nostri nobis acceptam iam inde a maioribus reliquerunt." ("This I am sure, this I believe, and this I assert, that not one of all the other republics that exist can be compared in its constitution, or in its division of powers, or in its style of government, with that which our fathers received from their ancestors and bequeathed in turn to us.") 'But cf. Livy 39. 53. 10: "ex nova constitution senatus," referring to new arrangements the Senate had made for the administration of a province.

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Latin abstract noun constitutio which refers to the 'shape,' 'composition,' or 'establishment' of a people in their political association) derives from the verb constituere, to 'establish,' 'compose,' or 'constitute.' Thus, at the beginning of his Annals Tacitus uses constitutam to refer specifically to the type of constitution Augustus established at Rome.' About half a century later Apuleius actually speaks of constitutione civitatum" in exactly the sense of comparing different types of constitution; for he is referring precisely to Plato's use of 7ro)vretix in his discussion of the relative merits of various constitutions." At the beginning of the fifth century St. Augustine, himself an avid student of Cicero, wrote of earthly kingdoms being "constituted" by divine providence and of humans establishing institutions for regulating their political relationships.' And not long after, another Christian father, Boethius, used "constitutio" to refer not only to the establishment of an ordered universe by God but also to the constitutions of individual communities."3 From these few selections it can be seen that Cicero's use of constitutio was by no means casual, nor was the content of the term without impact on succeeding generations. A secondary
1'Tacitus, Ann. 1. 9. 5: "non regno tamen neque dictatura, sed principis nomine constitutam rem publicam." (". . . he constituted the republic not under a monarchy or dictatorship but in the name of the 'first citizen.' " (Cf. Dialogus de oratoribus 40, where Tacitus refers to "well constituted states": "bene constitutis civitatibus." 11Apuleius,De Platone et eius dogmate, 2. 24. 1: "De civitatum vero constitution et de observation regendarum rerumpublicarum, ita censet Plato. . ." ("On the constitution of states and on studying the way republics are governed, Plato thinks thus. . .") "2See,e.g., Civitas Dei 5. 1: "prorsus divina providentia regna constituuntur humana" ("Truly earthly kingdoms are constituted by divine providence."); 19.21: "Non enim iura dicenda sunt vel putanda iniqua nominum constitute. . ." ("For unjust man-made arrangements are not to be spoken or thought of as rights. . .") "Boethius, De fide Catholica, 9: "ex aeterno, id est ante mundi constitutionem" ("From time everlasting, that is, since before the constitution of the universe. . ."); 263-5: "Sed auctoritate tota constringitur, universali tradition maiorum nihilominus tota, privatis vero constitutionibus et propriis informationibus uniquaeque vel pro locorum varietate vel prout cuique bene visum est subsistit et regitur." ("The whole [church] is bound by this authority, and equally by the universal tradition of those that have gone before, while each individual branch lives on and is ruled according to its own peculiar constitution and its own appropriate customs as suited to the needs of the locality or as seems fitting to each community.")

usage which, as Sartori observes, denotes the decrees of emperors, enjoyed much wider circulation through the writings of the Roman jurists, but it is by no means certain that the seemingly authoritarian content of this other meaning is, in strict legal theory, entirely unconnected with the wider meaning of 'establishment.' For the early apologists of the principate, at least, saw the decrees of the emperor as interpretations of the established will of the people."4 Cicero's use of constitutionrefers to the mode in which a state is established and corresponds loosely with the Greek IrQXLetcx. Sartori claimed a mistranslation on the part of those who render lromk7-etb as 'constitution,' since such a meaning could not convey the emphasis of limitation on government. 7rOTtXta, as used by Aristotle, connotes a complete description of forces operating within the polis to produce its public life, and as the Greeks scarcely distinguished between what was public and what was private, the constitution had to be resolved in terms of a description of life in the city itself. "It is a term which comprises all the innumerable characteristics which determine that state's peculiar nature, and these include its whole economic and social texture as well as matters governmental in our narrower modern sense" (McIlwain 1958, p. 24). Such a wide, imprecise notion was certainly the object of Sartori's attack. He rejected out of hand the idea that constitution was "a Janus-faced concept, hovering as it were between the idea of 'political order' on the one hand and of 'limit' on the other" (Sartori 1962, p. 859). As Morris-Jones has argued with some force, however, Aristotle uses IroXte('1 in several different ways, and it is clear that he "firmly connects the idea of constitution to the whole discussion of rule of law in Book III [of the Politicsl" (Morris-Jones 1965, pp. 439-40). So it is with considerable justification that Robinson uses 'constitution' in his translation: "it would seem reasonable to object that this kind of democracy is not a constitution at all, on the ground that where laws do not rule there is no constitution" (Morris-Jones 1965, p. 440). Sartori maintained the view that "to speak of a

14Augustus himself claimed to have restored the republic, the "people's affair" from anarchy. According to his official autobiography, Res Gestae, he restored the administration of the republic to the jurisdiction of the Senate and People ("rem publicam ex mea potestate in senatus populique Romani arbitrium transtuli"). According to an official inscription "pacato orbe terrarum restituta re publica," quoted by Wirszubski (1968, p. 107). Cf. Velleius Paterculus 2. 89. 3. The term restituta, "restored," may well be seen as the counterpart of constitute and carry the translation "reconstituted. "

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Greek constitutionalism is, to begin with, a falsification of the past, for in doing so we inevitably project a modern frame of reference into a very distant and different world, flying as it were over the head of more than twenty centuries" (Sartori 1965b). Such a warning would be very much in order were Sartori able conclusively to prove that 'constitution' is a modern concept, but the works of writers like McIlwain, Wormuth (1949), and Andrews (1963) have shown convincingly that constitutionalism arose in ancient society. The striking parallels between the Roman republican experience (with the carry-over of the idea of res populi into the empire) and the development of the notion of constitution in England are no mere coincidence (Plucknett 1940; Schulz 1945; McIlwain 1958, pp. 93-122; Rathbone 1967). More than that, however, there is evidence to suggest that even without the modern metaphysical notion of the rule of a superior law, the Greeks developed their own embryonic constitutionalism. In a fascinating study, Ostwald (1969) has shown how the advent of democracy in Athens coincided with the almost complete supersession of e6,u6s as the regular word for 'law.' voigosbore by VOdILoq the connotation of 'custom'-that which the people traditionally does. Henceforth laws would not be handed down by governments but would be the expression of the collective judgment of the people-merely formal settings down of that which the people in its collective wisdom held to be fair and just.'5 This in some ways resembles the res populi of the Romans; translated into modern times as the notion of popular sovereignty, itwould be recognized as the foundation of constitutionalism.16 The dilemma by which we are presently confronted, then, existed in earlier times. The idea of constitution as the total establishment of a state system rested alongside more restricting notions of the limitations on government power by the "power of the people" (cf. Rousseau, Social Con15Ostwald (1969). Cf. Loewenstein (1965, p. 129): "All Greek political institutions reflected their ingrained aversion to concentrated and arbitrary power and their almost frantic devotion to democratic fundamentals." 16 McIlwain (1958, pp. 21-22). Sartori has denied the possibility of identifying 'constitution' with the establishment of a political order in his argument for a 'garantiste' definition of constitutionalism, but it is possible to reconcile the two positions by following McIlwain's argument that constitutionalism derives from popular sovereignty: the people establish the political order, and their very lease of power to a government within that order is limited, providing institutional safeguards for civil rights. See Morris-Jones (1965), and especially Adams (1958, pp. 133-38).

tract 2.12 and Lowenstein 1965, p. 124). All of which renders useless Sartori's attempt to proffer 'constitution' as a vacant term to be appropriated for the modern idea of constitutionalism. There is ample evidence for the existence of the idea of constitutionalism, by other names, in the ancient world, and for the continued employment of constitutio as the normal word for the establishment, and the equipment, of a polity. In the end Sartori was reduced to making his own stipulative definition: "a system of protected freedom for the individual." This definition derives from what Sartori regarded as the telos of constitution as accepted on both sides of the Channel. The telos of the English constitution, whether written or not, was throughout its history to provide "a fundamental set of principles, and a correlative institutional arrangement, which would restrict arbitrary power and ensure a 'limited government.' " Moreover, "it is undeniable that the whole of the American tradition has understood 'constitution' as a means for 'limited government' " (Sartori 1962, p. 854). These propositions are at least arguable. In every case it might well be suggested with equal cogency that the telos of a constitution is to get government business done, or to see that affairs of state are handled in an orderly manner. As McIlwain has shown, the problem of gubernaculum was as central to the development of the English constitution as its counterpart, jurisdictio (McIlwain 1958, pp. 93-122). In other words, establishing a civil order is as much a constitutional problem as is providing for individual liberty and controlling the government.'7 Sartori's choice of definition becomes clear when he claims that "it was Paine, not Burke and the English writers in general, who gave the first explicit, complete account of the modern concept" (Sartori 1962, p. 859). In making this choice, Sartori must write off Cicero's use of constitutio as "quite casual"; many outstanding Greek scholars blundered badly every time they as 'constitution'; the Italian translated IrOT~EL'xo and German jurists of the 1930s who "were somehow compelled to adopt a merely formal, 'organizational,' definition of constitution," fell into error (Sartori 1962, p. 856). Bryce, Bagehot, Dicey, Jennings, Amery, and Wheare were all mistaken, and any semiliterate man in the street who in his confusion believes that constitution has something to do with the governmental structure of his country, is out of touch with reality. outlinedin the Pre17 See, for example,the objectives amble of The Constitution of the United States of America.

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Sartori is clearly motivated by the need to see a line drawn between 'constitution' and the general notion of 'constitutional government' deriving from the doctrine of 'constitutionalism.' The latter are certainly concerned with ideas about 'democratic government.' The attempt to make the connection is understandable, but it cannot justify Sartori's falling into the very error he so roundly condemns-that of ignoring the accumulated experience of the centuries about the term 'constitution.' Is it after all not possible for us to attach one general meaning to 'constitution' and another, more specific, meaning to the expression 'constitutional government'? There is no doubt considerable frustration in being confronted with so wide a term, especially when we are engaged in the search for precise instruments of comparison. However it is no answer to narrow down a widely used and broadly applied term to suit our own purposes; we cannot do so without committing the error of stipulation which Sartori is so anxious for us to avoid. It is understandable that Sartori should have clung to a Whig version of constitutionalism which has established such a strong tradition in both America and the continent. There are implicit dangers, however, in emphasizing one limitation of aspect of constitutionalism-the government-to the detriment of other aspects. Those who have pressed so strongly for a constitutionalism which knows only limitation of government in the interests of individual liberties have sometimes lost sight of the fact that too often the most dangerous threats to individual liberties come from nongovernment sources, whether they be in the form of criminal bodies or of legitimate, yet inordinately powerful, economic organizations such as multinational corporations or monolithic trade unions. As we have seen, in his studies of medieval constitutionalism McIlwain stressed the equal importance of a strong gubernaculum, government power, to control inordinate private interests to the benefit of a peaceful civil order, along with the essential jurisdictio which implied a civil control on government power. McIlwain also expressed concern about the direction modern constitutionalism sometimes took, when limitation of government was overstressed to the point of rendering governments weak and ineffectual. In writing of the framers of the American constitution, McIlwain suggested that, having provided for sensible limitations on government, "they added a dissipation of authority in the form of positive checks imposed by one organ of government upon another, and carried to what I must regard as a dangerous extreme, a separation of powers which could only

have the effect of rendering the government they set up both feeble and irresponsible" (McIlwain 1969, pp. 245-46). It is not necessary to debate McIlwain's controversial view here, but merely to suggest a more flexible approach to constitutionalism than that allowed by Sartori's narrow and somewhat dogmatic stipulation; the balance between strong government and the firm control of government may then remain a more open question.

References
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