A Note on the Meaning of `Constitution'

Author(s): Graham Maddox

Source: The American Political Science Review , Dec., 1982, Vol. 76, No. 4 (Dec., 1982), pp.
805-809
Published by: American Political Science Association

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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
value since, "in the course of time, the word con-
stitution became a 'vacant term'-a term avail-
able for new employment" (1962, p. 853). Yet in
the case of 'democracy' the fact that the concept
did not enjoy historical continuity did not ap-
parently 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 under-
stood 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, con-
struct, arrange, to settle or determine,' and con-
stitutio 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 ex-
ercise 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. Ac-
cording 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 dis-
missal clearly acknowledges) to the total composi-
tion, the shape or form of the state.' It reappearsmaioribus reliquerunt." ("This I am sure, this I believe,
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).
4Cicero, De Republica 1. 69: "haec constitutio pri-
mum habet- aequabilitatem quandam magnam, qua
carere diutius vix possunt liberi, deinde firmitudi-
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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 signifi-
cantly, 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 his-
torians 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
nem. . ." ("This kind of constitution has, first, a high
level of equality, which free people can scarcely do with-
out 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 repub-
lic, 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 adfir-
mo, nullam omnium rerum publicarum aut constitu-
tione aut discriptione aut discipline conferendam esse
cum ea, quam patres nostri nobis acceptam iam inde a
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
bequeathed in turn to us.")
'But cf. Livy 39. 53. 10: "ex nova constitution
senatus," referring to new arrangements the Senate ha
made for the administration of a province.
 1982 A Note on the Meaning of 'Constitution' 807

Latin abstract noun constitutio which usagerefers

which, asto the observes, denotes the
Sartori
'shape,' 'composition,' or 'establishment' of a decrees of emperors, enjoyed much wider circula-
people in their political association) derives from tion through the writings of the Roman jurists,
the verb constituere, to 'establish,' 'compose,' or but it is by no means certain that the seemingly
'constitute.' Thus, at the beginning of his Annals authoritarian content of this other meaning is, in
Tacitus uses constitutam to refer specifically to strict legal theory, entirely unconnected with the
the type of constitution Augustus established at wider meaning of 'establishment.' For the early
Rome.' About half a century later Apuleius ac- apologists of the principate, at least, saw the
tually speaks of constitutione civitatum" in decrees of the emperor as interpretations of the
exactly the sense of comparing different types of established will of the people."4
constitution; for he is referring precisely to Cicero's use of constitution refers to the mode in
Plato's use of 7ro)vretix in his discussion of the which a state is established and corresponds loose-
relative merits of various constitutions." ly with the Greek IrQXLetcx. Sartori claimed a
At the beginning of the fifth century St. Augus- mistranslation on the part of those who render
tine, himself an avid student of Cicero, wrote of lromk7-etb as 'constitution,' since such a meaning
earthly kingdoms being "constituted" by divine could not convey the emphasis of limitation on
providence and of humans establishing institu- government. 7rOTtXt a, as used by Aristotle, con-
tions for regulating their political relationships.' notes a complete description of forces operating
And not long after, another Christian father, within the polis to produce its public life, and as
Boethius, used "constitutio" to refer not only to the Greeks scarcely distinguished between what
the establishment of an ordered universe by God was public and what was private, the constitution
but also to the constitutions of individual com- had to be resolved in terms of a description of life
munities."3 in the city itself. "It is a term which comprises all
From these few selections it can be seen that the innumerable characteristics which determine
Cicero's use of constitutio was by no means that state's peculiar nature, and these include its
casual, nor was the content of the term without whole economic and social texture as well as mat-
impact on succeeding generations. A secondary ters governmental in our narrower modern sense"
(McIlwain 1958, p. 24).
1'Tacitus, Ann. 1. 9. 5: "non regno tamen neque dic-
Such a wide, imprecise notion was certainly the
tatura, sed principis nomine constitutam rem pub- object of Sartori's attack. He rejected out of hand
licam." (". . . he constituted the republic not under a the idea that constitution was "a Janus-faced con-
monarchy or dictatorship but in the name of the 'first cept, hovering as it were between the idea of
citizen.' " (Cf. Dialogus de oratoribus 40, where 'political order' on the one hand and of 'limit' on
Tacitus refers to "well constituted states": "bene con- the other" (Sartori 1962, p. 859). As Morris-Jones
stitutis civitatibus." has argued with some force, however, Aristotle
11Apuleius, De Platone et eius dogmate, 2. 24. 1: "De uses IroXte('1 in several different ways, and it is
civitatum vero constitution et de observation regen- clear that he "firmly connects the idea of con-
darum rerumpublicarum, ita censet Plato. . ." ("On the stitution to the whole discussion of rule of law in
constitution of states and on studying the way republics
Book III [of the Politicsl" (Morris-Jones 1965,
are governed, Plato thinks thus. . .")
pp. 439-40). So it is with considerable justification
"2See, e.g., Civitas Dei 5. 1: "prorsus divina provi- that Robinson uses 'constitution' in his transla-
dentia regna constituuntur humana" ("Truly earthly
tion: "it would seem reasonable to object that this
kingdoms are constituted by divine providence.");
kind of democracy is not a constitution at all, on
19.21: "Non enim iura dicenda sunt vel putanda iniqua
nominum constitute. . ." ("For unjust man-made
the ground that where laws do not rule there is no
arrangements are not to be spoken or thought of as constitution" (Morris-Jones 1965, p. 440).
rights. . .") Sartori maintained the view that "to speak of a
"Boethius, De fide Catholica, 9: "ex aeterno, id est
ante mundi constitutionem" ("From time everlasting,
that is, since before the constitution of the uni- 14Augustus himself claimed to have restored the
verse. . ."); 263-5: "Sed auctoritate tota constringitur, republic, the "people's affair" from anarchy. Accord-
universali tradition maiorum nihilominus tota, privatis ing to his official autobiography, Res Gestae, he re-
vero constitutionibus et propriis informationibus uni- stored the administration of the republic to the jurisdic-
quaeque vel pro locorum varietate vel prout cuique bene tion of the Senate and People ("rem publicam ex mea
visum est subsistit et regitur." ("The whole [church] is
potestate in senatus populique Romani arbitrium
bound by this authority, and equally by the universal transtuli"). According to an official inscription "pacato
tradition of those that have gone before, while each in- orbe terrarum restituta re publica," quoted by Wirszub-
dividual branch lives on and is ruled according to its ski (1968, p. 107). Cf. Velleius Paterculus 2. 89. 3. The
own peculiar constitution and its own appropriate cus- term restituta, "restored," may well be seen as the
toms as suited to the needs of the locality or as seems fit- counterpart of constitute and carry the translation
ting to each community.") "reconstituted. "

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808 The American Political Science Review Vol. 76

Greek constitutionalism is, to begin tract

with, 2.12
a and Lowenstein 1965, p. 124).
falsifi-
cation of the past, for in doing so we inevitably All of which renders useless Sartori's attempt to
project a modern frame of reference into a very proffer 'constitution' as a vacant term to be ap-
distant and different world, flying as it were over propriated for the modern idea of constitu-
the head of more than twenty centuries" (Sartori tionalism. There is ample evidence for the exis-
1965b). Such a warning would be very much in tence of the idea of constitutionalism, by other
order were Sartori able conclusively to prove that names, in the ancient world, and for the con-
'constitution' is a modern concept, but the works tinued employment of constitutio as the normal
of writers like McIlwain, Wormuth (1949), word for the establishment, and the equipment,
and Andrews (1963) have shown convincingly that of a polity.
constitutionalism arose in ancient society. The In the end Sartori was reduced to making his
striking parallels between the Roman republican own stipulative definition: "a system of protected
experience (with the carry-over of the idea of res freedom for the individual." This definition
populi into the empire) and the development of derives from what Sartori regarded as the telos of
the notion of constitution in England are no mere constitution as accepted on both sides of the
coincidence (Plucknett 1940; Schulz 1945; McIl- Channel. The telos of the English constitution,
wain 1958, pp. 93-122; Rathbone 1967). whether written or not, was throughout its history
More than that, however, there is evidence to to provide "a fundamental set of principles, and a
suggest that even without the modern metaphysi- correlative institutional arrangement, which
cal notion of the rule of a superior law, the Greeks would restrict arbitrary power and ensure a
developed their own embryonic constitutionalism. 'limited government.' " Moreover, "it is un-
In a fascinating study, Ostwald (1969) has shown deniable that the whole of the American tradition
how the advent of democracy in Athens coincided has understood 'constitution' as a means for
with the almost complete supersession of e6,u6s 'limited government' " (Sartori 1962, p. 854).
by VOdILoq as the regular word for 'law.' voigos bore These propositions are at least arguable. In
the connotation of 'custom'-that which the peo- every case it might well be suggested with equal
ple traditionally does. Henceforth laws would not cogency that the telos of a constitution is to get
be handed down by governments but would be the government business done, or to see that affairs
expression of the collective judgment of the of state are handled in an orderly manner. As
people-merely formal settings down of that McIlwain has shown, the problem of guber-
which the people in its collective wisdom held to naculum was as central to the development of the
be fair and just.'5 This in some ways resembles theEnglish constitution as its counterpart, jurisdictio
res populi of the Romans; translated into modern (McIlwain 1958, pp. 93-122). In other words,
times as the notion of popular sovereignty, it- establishing a civil order is as much a constitu-
would be recognized as the foundation of con- tional problem as is providing for individual liber-
stitutionalism.16 ty and controlling the government.'7
The dilemma by which we are presently con- Sartori's choice of definition becomes clear
fronted, then, existed in earlier times. The idea of when he claims that "it was Paine, not Burke and
constitution as the total establishment of a state the English writers in general, who gave the first
system rested alongside more restricting notions explicit, complete account of the modern con-
of the limitations on government power by the cept" (Sartori 1962, p. 859). In making this
"power of the people" (cf. Rousseau, Social Con- choice, Sartori must write off Cicero's use of con-
stitutio as "quite casual"; many outstanding
Greek scholars blundered badly every time they
15Ostwald (1969). Cf. Loewenstein (1965, p. 129): translated IrOT~EL'xo as 'constitution'; the Italian
"All Greek political institutions reflected their in-
and German jurists of the 1930s who "were
grained aversion to concentrated and arbitrary power
somehow compelled to adopt a merely formal,
and their almost frantic devotion to democratic funda-
mentals." 'organizational,' definition of constitution," fell
into error (Sartori 1962, p. 856). Bryce, Bagehot,
16 McIlwain (1958, pp. 21-22). Sartori has denied the
Dicey, Jennings, Amery, and Wheare were all
possibility of identifying 'constitution' with the estab-
lishment of a political order in his argument for a
mistaken, and any semiliterate man in the street
'garantiste' definition of constitutionalism, but it is who in his confusion believes that constitution has
possible to reconcile the two positions by following something to do with the governmental structure
McIlwain's argument that constitutionalism derives of his country, is out of touch with reality.
from popular sovereignty: the people establish the
political order, and their very lease of power to a
17 See, for example, the objectives outlined in the Pre-
government within that order is limited, providing in-
amble of The Constitution of the United States of
stitutional safeguards for civil rights. See Morris-Jones
(1965), and especially Adams (1958, pp. 133-38). America.

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1982 A Note on the Meaning of 'Constitution' 809
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 lat-
ter 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 accumu-
lated 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 in-
struments of comparison. However it is no answer
to narrow down a widely used and broadly ap-
plied 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 im-
plicit dangers, however, in emphasizing one
aspect of constitutionalism-the limitation of
government-to the detriment of other aspects.
Those who have pressed so strongly for a constitu-
tionalism which knows only limitation of govern-
ment 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 organiza-
tions such as multinational corporations or mono-
lithic 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 over-
stressed 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 ex-
treme, a separation of powers which could only
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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 con-
troversial view here, but merely to suggest a more
flexible approach to constitutionalism than that
allowed by Sartori's narrow and somewhat dog-
matic stipulation; the balance between strong
government and the firm control of government
may then remain a more open question.
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