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A Note On The Meaning of Constitution': American Political Science Association December 1982
A Note On The Meaning of Constitution': American Political Science Association December 1982
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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 Gio- claim as to what constitution ought to mean.'
vanni Sartori expounded a very particular view of The search for "truth-value" involves a sys-
constitutionalism which exerted a far-reaching in- tematic dismissal of unacceptable definitions so
fluence on subsequent discussions. His first con- that the true definition can be seen to stand on its
cern was to refute those traditional theorists who own merit. Sartori's teleological definition em-
had used the term 'constitution' in its widest sense phasizes the constitutional function of limitation
as the total form of the state and its institutions on government. Since this idea achieves consider-
(Wheare 1966, p. 1). His search for precise and able prominence with some other writers2 and is
clearly defined concepts in comparative politicsoffered as a promising candidate for the precise
(cf. his later article, 1970) had led Sartori to a kind of definition required by the rigors of com-
teleological approach to constitutionalism: The parative politics, it is pertinent for us to consider
telos of a constitution was the guarantee of rights in more detail how Sartori arrived at his conclu-
to individual citizens by placing limitations on sion.
government power. The argument involved Sar- Synthesizing a "truth-value" definition in-
tori in making the claim that there was no connec- cludes for Sartori a sifting of historical evidence
tion between the original meaning of the Latin about the usage of a term. A word like 'democ-
constitution from which the modern term is de- racy,' for example, is (1965a, p. 221) "a carrier of
rived, and its contemporary usage; that sometime historical experience whose meaning is stabilized
before the modern era constitution became a va- by an endless trial-and-error historical pro-
cant term ripe for the acquisition of a new mean- cess. . . ." Although this process may be valid for
ing; and that the idea of constitutionalism as 'democracy,' however, it is apparently not satis-
limited government never existed before modernfactory for 'constitution.' To build up a clear pic-
times-it was the discovery of this principle thatture of what 'democracy' means to us today, Sar-
gave constitution its modern teleological defini- tori began with its origins in history, and an exam-
tion. ination of the earliest form of democracy helped
Comparative politics demands precise concepts,to provide material for devising a prescriptive
but it is unacceptable, in Sartori's view, to resortdefinition of what democracy ought to mean.
to mere stipulation. "According to this approach However, looking at the origins of 'constitution'
the speaker says: I propose to use the term con-
stitution in this sense, and this is my definition of
'For 'prescriptive' definitions and an elaboration of
it. The emphasis is laid on the 'my,' for stipula-
'truth-value' definitions see Sartori (1965, pp. 3-5,
tions are an arbitrary choice." The difficulty, of 207-27).
course, is how to conduct a meaningful debate.
2See, e.g., Akzin (1967, pp. 5, 16); Friedrich (1951, p.
Anyone can dismiss a proposal for a definition by
18); and MacKenzie (1955, p. 69). Although noting the
saying: "This is your stipulation, but I have mine,
part that constitutions can play in limiting government,
and that is that" (Sartori 1962, pp. 858-59). The these authors do not, however, stress with Sartori that
correct procedure, Sartori suggested, is to estab- this function is the essential point in defining 'constitu-
lish a "truth-value" definition by justifying a tion.'
805
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806 The American Political Science Review Vol. 76
in its earliest Latin usage was, for Sartori, of little in the second book of the Republic in the sense of
value since, "in the course of time, the word con- the gradual establishment of the state through the
stitution became a 'vacant term'-a term avail- evolution of its institutions.' And most signifi-
able for new employment" (1962, p. 853). Yet in cantly, again in a fragment of the second book,
the case of 'democracy' the fact that the concept Cicero speaks of the constitutio of Romulus, the
did not enjoy historical continuity did not ap- legendary founder of Rome, having "remained
parently pose any difficulties. stable for about two hundred and twenty years."6
The argument with regard to constitution rests In another illustrious passage Cicero speaks of the
on the interpretation that the Latin constitutio state itself as being the "constitution of a
"meant the very opposite of what is now under- people."7 In yet another Cicero uses constitutio in
stood by constitution" (1962, p. 853). It would the sense of the 'nature' or 'form' of a republic.8
have been more accurate for Sartori to state that It is not entirely true to say that the sense in
one arbitrarily selected meaning of constitutio was which Cicero used constitutio cannot be traced in
the opposite of the precise modern meaning for subsequent literature. Certainly the Roman his-
which he was arguing. To Sartori, "constitutio torians tended to avoid abstractions,9 but it would
was an enactment"-that is, it was synonymous be absurd to insist that the English 'constitution'
with lex and edictum, the laws "enacted by the could only be said to derive from its syntactical
sovereign." What he failed to do, however, was counterpart; clearly 'constitution' (along with the
to account for how constitutio acquired this
meaning. The word derives originally, of course,
from constituere, 'to set up, establish, erect, con- nem. . ." ("This kind of constitution has, first, a high
struct, arrange, to settle or determine,' and con- level of equality, which free people can scarcely do with-
stitutio is the noun form. A constitutio becomes a out for very long, and secondly, it has stability.")
'regulation,' 'order,' or 'decree' as a result of Despite Sartori's misgivings, Cicero here associates this
some arrangement, or some establishment being first great use of 'constitution' with the idea of 'normal'
made. In imperial times the decrees of the government constituted on the ideals of justice and
emperor were called constitutiones because they equality.
collectively defined the limits of state action. I Cicero, Rep 2. 37: "nunc fit illud Catonis certius,
McIlwain long ago argued the most cogent case nec temporis unius nec hominis esse constitutionem rei
for Roman imperial constitutionalism under a publicae." ("Now that famous saying of Cato, that the
constitution of the republic is the work neither of one
system of law which protected the rights of
time nor of one person, is shown even more to be
citizens (1958, pp. 41-66). The imperial constitution
valid.")
need not, in theory at least, imply the arbitrary ex-
6Rep. 2. 53: "itaque illa praeclara constitutio Romuli
ercise of the emperor's naked will as Sartori's
cum ducentos annos et viginti fere firma mansisset. . ."
statement suggests.
("And so that glorious constitution of Romulus, having
More serious, however, is his dismissal of the remained stable for about two hundred and twenty
first recorded use of the term constitutio in its years. . . ")
sense of the establishment of the state order. Ac-
7Rep. 1. 41: "omnis ergo populus, qui est talis coetus
cording to Sartori's argument, "Cicero's use, in multitudinis, qualem exposui, omnis civitas, quae est
De Republica, 1.45.69 was quite casual, and left constitutio populi, omnis res publica, quae, ut dixi,
no trace in the following literature" (1962, p. 859 populi res est, consilio quodam regenda est, ut diuturna
n. 21, emphasis added). It is as well to recollect, sit." ("Therefore every people, which is just the sort of
however, that Sartori was referring to one of the multitudinous gathering I have been describing, every
least casual and most calculatingly deliberate state, which is the constitution of a people, every repub-
lic, which, as I have said, is the property of a people,
composers of words in the history of literature;
must be ruled by some form of council so that it may be
surely every mention of the word in English
enduring.")
follows in some sense from this original usage.3
Cicero's use of constitutio in the cited passage is 8Rep. 1. 70: "sic enim decerno, sic sentio, sic adfir-
mo, nullam omnium rerum publicarum aut constitu-
anything but casual and refers (as Sartori's dis-
tione aut discriptione aut discipline conferendam esse
missal clearly acknowledges) to the total composi-
cum ea, quam patres nostri nobis acceptam iam inde a
tion, the shape or form of the state.' It reappearsmaioribus 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
3Sartori is then forced by his line of argument to claim
that by 'constitution' Burke meant something like 'com- that which our fathers received from their ancestors and
monwealth' (1962, p. 859, n. 23). bequeathed in turn to us.")
4Cicero, De Republica 1. 69: "haec constitutio pri- 'But cf. Livy 39. 53. 10: "ex nova constitution
mum habet- aequabilitatem quandam magnam, qua senatus," referring to new arrangements the Senate ha
carere diutius vix possunt liberi, deinde firmitudi- made for the administration of a province.
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1982 A Note on the Meaning of 'Constitution' 807
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808 The American Political Science Review Vol. 76
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1982 A Note on the Meaning of 'Constitution' 809
Sartori is clearly motivated by the need to see a have the effect of rendering the government they
line drawn between 'constitution' and the general set up both feeble and irresponsible" (McIlwain
notion of 'constitutional government' deriving 1969, pp. 245-46).
from the doctrine of 'constitutionalism.' The lat- It is not necessary to debate McIlwain's con-
ter are certainly concerned with ideas about troversial view here, but merely to suggest a more
'democratic government.' The attempt to make flexible approach to constitutionalism than that
the connection is understandable, but it cannot allowed by Sartori's narrow and somewhat dog-
justify Sartori's falling into the very error he so matic stipulation; the balance between strong
roundly condemns-that of ignoring the accumu- government and the firm control of government
lated experience of the centuries about the term may then remain a more open question.
'constitution.' Is it after all not possible for us to
attach one general meaning to 'constitution' and
another, more specific, meaning to the expression References
'constitutional government'?
Adams, R. G. 1958. Political ideas of the American
There is no doubt considerable frustration in
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