constitutionalism

n.

1. Government in which power is distributed and limited by a system of laws that must be obeyed by the rulers.
2. 1. A constitutional system of government.
   2. Advocacy of such a system.

constitutionalist con'sti·tu'tion·al·ist n.

Is a form of political thought and action that seeks to prevent tyranny and to guarantee the liberty and rights of individuals on which free society depends. This definition, drawn mainly from English and American political history, may be compared with a more formalistic view that regards constitutionalism as the conduct of politics in accordance with a constitution. The import of this definition depends on the meaning of constitution, a term that has been variously interpreted in western political thought. During the American Revolution, Americans conceived of a constitution as the permanent, binding, and paramount political law of the polity. Although this theoretical innovation did not end all controversy over the meaning of the concept, it generally caused constitutionalism to be defined thereafter as the forms, principles, and procedures of limited government.

Constitutionalism addresses the perennial problem of how to establish government with sufficient power to realize a community's shared purposes, yet so structured and controlled that oppression will be prevented. In the absence of any means of assuring statesmanship in rulers, two approaches to the problem of government have been employed. One approach proceeds through the ordering of political and governmental institutions. From ancient to modern times the idea of the mixed regime, juxtaposing properly balanced institutions of monarchy, aristocracy, and democracy, and the social orders they represent, illustrates this way of limiting government. A second approach to the problem is through the rule of law. Historical examples of this tradition are the Roman idea that the law of nature provides a standard of justice for evaluating the legitimacy of government enactments and the English practice, beginning with Magna Carta, of subjecting the monarchical power to legal limits and common‐law rules protecting the liberty and property of subjects.

Although analytically distinct, these approaches are historically related in the institutional arrangements and practices that provide the basis for defining constitutionalism. In modern political science a constitution is an authoritative text possessing legal force that prescribes the structure and principles of limited government. The constitutional text is normative, stipulating how government shall be organized, the ends it may pursue, and the means to be employed in pursuit of those ends. In premodern political thought constitution had a descriptive connotation, referring to the ordering of the polity or the way institutions had evolved and assumed their present form. It is important to note that this concept of constitution was also thought to have a normative aspect. The English writer Lord Bolingbroke, for example, defined the English constitution in the early eighteenth century as “that assemblage of laws, institutions, and customs, derived from certain fixed principles of reason, directed to certain fixed objects of public good, that compose the general system, according to which the community hath agreed to be governed.” Bolingbroke said a good government exists when the administration of affairs is wisely pursued “and with a strict conformity to the principles and objects of the constitution.”

In Roman and medieval times the word constitutio, constitutiones, of which the term constitution is a transliteration, referred to enactments, decrees, or regulations of a ruler or sovereign. (In Latin, constituere means “to cause to stand,” or “to fix, set, or make” a thing.) It has been suggested that the enactments of the Roman emperor implied the idea of limited government insofar as they collectively defined the scope of state action. Subsequently constitution was superseded by statute with respect to government enactments providing rules of action for the community.

The word constitution entered political discourse as a term describing the structure of the polity or the arrangement of governmental institutions in the seventeenth century. This usage was analogous to that employed in describing the constitution of the human body. Although in the nineteenth century the term constitution was proposed as a translation of the Greek word politeia, before that time politeia was translated as government, regime, or policy. The tradition of political science deriving from Aristotle did not require use of the word constitution.

A form of American constitutionalism began in the seventeenth century as voluntary associations of settlers founded colonies under royal charters conferring on a person or corporate group governmental powers for specific purposes. As the basis of local government, the colonists wrote and adopted covenants, compacts, combinations, ordinances, fundamental orders, and other instruments of mutual consent. Through these documentary agreements they constituted themselves as a political community, defined their purposes, affirmed the principles of a way of life, specified the rights of citizens, and organized governmental institutions.

In the imperial conflicts of the 1760s and 1770s, Americans gained a new understanding of what the constitution of a free state was and how it functioned to guarantee liberty. They rejected the idea that a constitution described the governmental order of the polity. American critics of English policy argued that a constitution was a deliberately framed agreement among the people that imposed effective limits on government in order to protect community and individual liberty. If Parliament was a component of the English constitution and could change the fundamental law by its enactments, they concluded, then England did not have a real constitution. The important distinction was that although a constitution conferred power, it was not the simple equivalent of a mandate to legislate or govern. The Massachusetts General Court in 1768 pointed the direction of modern American constitutionalism in declaring: “in all free States the Constitution is fixed; & as the supreme Legislative derives its Power & Authority from the Constitution, it cannot overleap the Bounds of it, without destroying its own foundation.”

During the Revolution Americans wrote constitutions of liberty, the distinctive feature of which was their legal superiority to legislative enactments and other sources of ordinary law. This supremacy was more theoretical than actual in the early years of written constitutions, when state legislatures framed the documents and often exercised power despite their provisions. Constitutions took on greater authority when popularly elected conventions wrote them and the people ratified them. The Massachusetts constitution of 1780 and the New Hampshire constitution of 1784 were modeled in this way. In employing the constitutional convention device the framers of the federal Constitution established it as the norm for modern constitutionalism.

Unlike the state constitutions, which expressed the idea of forming political communities out of the state of nature, the original U.S. Constitution contained no bill of rights and only a brief preamble stating the nation's basic principles and ends. In effect the Declaration of Independence is the preamble to the Constitution. Accordingly, the framers wrote a document that was less a social compact for a cohesive, like‐minded community than a contractual specification of the powers, duties, rights, and responsibilities among the diverse people that constituted the American Union. Reacting against state encroachments on liberty and property, the framers emphasized protection of individual rights rather than promotion of virtue and community consensus.

In the political context of the 1780s, the founders' constitutional reforms signified the creation of energetic government to fill the vacuum of power under the Articles of Confederation. In the perspective of western political thought, the Constitution of 1787 marks the emergence of modern constitutionalism as a political theory combining limited government for the protection of individual rights with the principles of the people as constituent power.

Constitutionalism requires that the primary rules for the conduct of government be impartially maintained against the demands of political passion, interest, ideology, and ambition. It is remarkable therefore that the founders provided for enforcement of the Constitution by the political branches of the government as well as by the judiciary. Each of the coordinate departments was responsible for applying and interpreting the provisions of the constitutional document that defined or regulated the performance of its duties and responsibilities.

Asserted by Presidents Andrew Jackson and Abraham Lincoln in the nineteenth century, the departmental theory of constitutional decision making has never been effectively repudiated or expunged from the American political tradition. Yet it has in the twentieth century been obscured by the legalistic approach to constitutional interpretation, institutionalized in judicial review, which confers a monopoly of power on the judiciary with respect to the settlement of constitutional disputes. In Marbury v. Madison (1803), Chief Justice John Marshall asserted the power of judicial review in judiciary cases concerning individual rights, while adhering to the departmental theory in regard to political questions or public policy matters. In later cases dealing with federalism and the Contract Clause, however, Marshall employed a legalistic method of constitutional decision making based on the application of common‐law rules of interpretation to the text of the Constitution. In this approach the Constitution became supreme ordinary law susceptible to judicial adaptation and emendation in a way that blurred the distinction between questions of a judiciary nature and policy matters properly subject to determination by the political branches of government. The Constitution was transformed from fundamental political principles into supreme ordinary law. A consequence was the steady expansion of judicial power into the sphere of public policymaking. By the beginning of the twentieth century, constitutionalism in the United States was considered to be mainly a body of legal doctrines and rules that enabled the courts to play an active role in government and politics.

Constitutionalism in twentieth‐century America continued to be largely juridical and increasingly policy oriented. Limited government constitutionalism, grounded in natural rights principles and protective of entrepreneurial liberty and property, persisted until 1937. Political demands for a more socially responsive rule of law that were first asserted in the Progressive period came to fruition in the New Deal era. The consequence was a general questioning of the nineteenth‐century view of limited government and the expansion of government activism in social and economic regulation.

From 1937 until the 1980s, the Supreme Court generally approved governmental activism as a means of guaranteeing positive liberty or the provision of material support as the basis of individual autonomy and self‐expression. To some extent the idea of liberty against government (negative government) persisted as the Court nationalized the Bill of Rights as limitations on the states. In other respects the Court confirmed the activist government tradition by transforming civil rights into group‐and class‐based claims to public benefits and entitlements.

The expansion of government under the concept of positive liberty raised the question whether the Constitution was the binding political law that limited government, or a rhetorical abstraction or symbol used by government officials, including the Supreme Court, to justify policy decisions. Did the Constitution control the government, or did the government control the Constitution?

From the eighteenth century to the mid‐twentieth century, the essential element in modern constitutionalism was the doctrine of limited government under a written fundamental law. Postmodern constitutionalism in the second half of the twentieth century challenged this outlook by creating activist government to achieve social justice and positive liberty. Tension between these two conceptions of constitutionalism was a prominent feature of American politics as the third century of constitutional government began in the 1990s.

Bibliography

• Gerhard Casper, Changing Concepts of Constitutionalism: 18th to 20th Century, Supreme Court Review (1989): 311–332.
• Donald S. Lutz, The Origins of American Constitutionalism (1988).
• Sylvia Snowiss, From Fundamental Law to Supreme Law of the Land: A Reinterpretation of the Origins of Judicial Review, Studies in American Political Development 2 (1987): 1–67.
• Gerald Stourzh, Constitution: Changing Meanings of the Term from the Early Seventeenth to the Late Eighteenth Century, in Conceptual Change and the Constitution, edited by Terence Ball and J. G. A. Pocock (1988), pp. 35–54

— Herman Belz

Limited government and the rule of law, as embodied in legal documents, institutions, and procedures, are the two essential elements of constitutionalism.

Limited government means that officials cannot act arbitrarily when they make and enforce public decisions. Public officials cannot simply do as they please. Rather, they are guided and limited by laws as they carry out the duties of their government offices. In the United States, the Constitution is the supreme law that guides and limits the exercise of power by government officials. Laws made in conformity with the Constitution also guide and limit the actions of government officials.

The rule of law means that neither government officials nor common citizens are allowed to break the law. Furthermore, people accused of crimes should be treated equally under the law and accorded due process, or fair and proper legal proceedings, in all official actions against them. Law governs the actions of everyone in the system—public officials and the citizenry, from highest to lowest ranks in both government and society. All laws and the actions based on those laws must conform to the highest law of the land, the Constitution.

In the United States, constitutionalism means there is a supreme law by which the people establish and limit the powers of their government. In 1787 representatives of the people of the United States drafted and ratified a Constitution, which stands above all laws made by any legislative body in the United States. Article 6 of the Constitution states this principle: “The Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land.” All laws, passed either by Congress or by state legislatures, must conform to the supreme law—the Constitution. As Alexander Hamilton explained in The Federalist No. 78: “No legislative act contrary to the Constitution, therefore, can be valid.” On the contrary, a legislative or executive action that violates the Constitution can be declared unconstitutional, or unlawful, by the Supreme Court.

In the United States, the ultimate purpose of constitutionalism is stated in the Declaration of Independence: to secure the “unalienable rights” of all people through a government established by “consent of the governed.” According to the Declaration, a good constitution limits the power of a government in order to secure the rights of every person, which belong equally to all human beings. If a government fails to secure these rights of individuals, then it is a bad government and the people have the right to alter and replace it.

A continuing problem of constitutionalism, and of constitution makers, is how to establish a government with sufficient power to rule and maintain order yet with sufficient limitations on its power to prevent tyranny. The rights and liberties of individuals are supposed to be protected by law against abuses of power by government officials. However, if constitutional limits on government are too strict, the government will be too weak to carry out its duties effectively. A government that is too limited by law may not even be able to enforce the laws and maintain public order and security. By contrast, if the government is too strong, or unlimited in its use of power, then the liberties of individuals may be lost and tyranny might prevail. An effective constitutional government is neither too powerful nor too weak.

It is difficult to achieve a workable balance between power sufficient to govern effectively and limits on power sufficient to protect the people's liberties and rights. On the eve of the Civil War, Abraham Lincoln asked, “Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?” During the 1780s, James Madison and Alexander Hamilton argued in The Federalist that limited government under the Articles of Confederation (the document that formed the first government of the newly independent states) was too weak to maintain its own existence. The authors of The Federalist argued that limited government and the rule of law—principles of government reflected in the 1787 Constitution—would protect the people from abuses of power by would-be tyrants. They feared equally any unrestrained source of power. The power of an unlimited majority of the people, in their view, was just as dangerous to the rights of individuals as the unlimited power of a king. They argued that the best government is both “energetic” (strong enough to act decisively and effectively in the public interest) and “limited by law” to protect individual rights.

The problem of constitutionalism—how to combine the contrary factors of power and restraint, order and liberty, in one constitution—was stated memorably by James Madison in The Federalist No. 51:

But what is government itself but the greatest of all reflections of human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions [limited government based on the supreme law of a written constitution].

Constitutionalism—limited government and the rule of law—is a means to the elusive end of securing the human rights of all people. This is the ultimate purpose of government under the U.S. Constitution.

See also Constitutional democracy; Constitutional law; Constitution, U.S.; Federalist, The; Judicial review; Liberty under the Constitution

Sources

• Ralph Ketchum, Framed for Posterity: The Enduring Philosophy of the Constitution (Lawrence: University Press of Kansas, 1993).
• Donald S. Lutz, The Origins of American Constitutionalism (Baton Rouge: Louisiana State University Press, 1988).
• David A.J. Richards, Foundations of American Constitutionalism (New York: Oxford University Press, 1989)

The modern concept of constitutionalism involves a political system of checks and balances, regulated by law and designed to protect the liberty of individuals and enable their participation in politics. A constitution may take written form, as in the American constitution of 1787, or it may consist of an assemblage of legal statutes and precedents collected over time, as in the United Kingdom. The word "constitutionalism" did not exist in early modern Europe, but most of the ideas behind it were frequently expressed. A constitution generally meant the creation of a law or statute. However, political institutions and individual liberty were long seen as the products of custom rather than deliberate lawmaking. Checks and balances were thought to be embodied in a limited monarchy or mixture of monarchy, aristocracy, and democracy. The idea of the separation of legislative, executive, and judicial powers did not become clear until the eighteenth century.

France

Claude de Seyssel's La grant monarchie de France (1519; The great monarchy of France) was representative of early French constitutional thought. Seyssel (c. 1450–1520) was a bishop and a jurist high in the counsels of Louis XII (ruled 1498–1515), and his book was intended as a guide for the next king, Francis I (ruled 1515–1547). He insisted that the king must observe what he called la police, meaning the institutional structure of the realm, which included such fundamental laws as the rules of royal succession and the inalienability of the royal domain. The king was restricted by two other "bridles" (freins), religion and justice. The clergy and the high court of the parlement were supposed to advise the king accordingly. In practice the regime of Francis I became increasingly authoritarian, and constitutional ideas were seldom voiced until the monarchy proved unable to cope with the civil and religious conflicts of the second half of the sixteenth century.

An important jurist who did not align himself with those who extolled the rights of the king was Charles Du Moulin (1500–1566). He agreed with Seyssel about the fundamental laws and demanded that the royal administration serve the cause of justice. Looking to remote Carolingian precedents, Du Moulin found supreme authority in early Frankish assemblies of the realm, and while he respected the royal authority, he saw the king's function as primarily administrative. His main interest lay in customary law, which he regarded as the result of consensual and contractual agreements. Property and private laws were distinct from public or enacted law. Du Moulin was at the center of a movement to record and standardize the multiple bodies of private customary law.

Another jurist of great distinction who stressed the importance of ancient custom was the Calvinist François Hotman (1524–1590), but, unlike Du Moulin, he placed it in the realm of public law. The radical message of his constitutional history of France, Francogallia (1573), was that French political institutions were derived from the customs of the Franks who had liberated Gaul from the Romans in the fifth century. Frankish assemblies had been the custodians of the fundamental laws and had had supreme authority over kings. The perfect and mixed constitution had long endured, but it had gradually been corrupted and ought, according to Hotman, to be restored. This message was adopted by Huguenot pamphleteers during the Wars of Religion, and it belonged more to polemical resistance theory than to objective constitutionalism.

In the late sixteenth century, concepts of the absolute sovereignty of the king were developed in opposition to doctrines of resistance. Constitutional ideas did not entirely disappear, however. They were expressed by the jurist Étienne Pasquier (1529–1615), who defended the authority of the crown while claiming the right of the so-called sovereign courts to review royal legislation. His Recherches de la France (Researches on France, published serially from 1560; first complete edition, 1621) held the parlement to be the true descendant of the Frankish assemblies and denied the role of the representative Estates-General, thought by Hotman to have inherited supreme power in the state from the Franks. Another jurist, Guy Coquille (1523–1603), presented a particularist kind of constitutionalism. Solicitor general in the duchy of Nevers, he defended and compared local rights and privileges enshrined in provincial codes of customary law. His Coutumes du pays et duché de Nivernais (1605; Customs of the region and duchy of Nivernais) and Questions et réponses sur les articles des coutumes de France (1611; Questions and answers on the articles of the customs of France) were widely respected.

Spain

The existence of representative assemblies (Cortes) and specified liberties (fueros) in the Iberian peninsula suggested a measure of constitutional balance, but an increasingly centralized royal bureaucracy tended to negate these institutions. For the most part constitutional thought in the sixteenth and early seventeenth centuries was general and speculative. Among such theorists were the Dominican Domingo de Soto (1495–1560) and the Jesuits Luis de Molina (1535–1600), Juan de Mariana (1536–1624), and Francisco Suárez (1548–1617). They all followed Scholastic tradition and held chairs of theology at Spanish or Portuguese universities. They were agreed that monarchical authority had originally been created by some kind of irrevocable communal contract, but only Mariana believed that this made the king the delegate of the people. While supporting royal authority, they thought that consent was needed for taxation. However, in his work De Legibus (1612; Concerning the laws) Suárez stated that the king could break the fueros in the interest of the common good. He admitted that in some states the community could reserve certain powers under the original contract and thereby create a mixed monarchy, but this was not the case with the Spanish crown. In contrast, Mariana placed greater restrictions on the king and even endorsed tyrannicide in his De Rege et Regis Institutione (1599; On the king and his education). He illustrated these limitations in his Historiae de Rebus Hispaniae (1592; Histories of the affairs of Spain).

Germany

Complex as were the institutions of Castile and the more contractual arrangements in Aragón, Catalonia, and Valencia, they were simplicity itself when compared with the tortuous organization of the German empire. Tensions between the emperor and the seven electoral princes, together with disputes between the non-electoral princes and the free cities, who formed the other two houses of the representative diet, were complicated by local leagues, administrative circles, and a double system of justice. During the conflicts of the Reformation some arguments were made in terms of constitutional law, but no theorist was able to rationalize the constitution of the empire as a coherent whole. In the seventeenth century various jurists tried to adapt the definition of sovereignty offered by Jean Bodin (1530–1596) to Germany, but this produced more heat than light. The only persuasive solution was advanced by Samuel Pufendorf (1632–1694), who was a professor of law at Heidelberg and later at Lund before becoming court historiographer at Stockholm and then at Berlin. Law and history complemented each other in a mind that adjusted political taxonomy to change over time. His De Jure Naturae et Gentium (1672; Law of nature and of nations) was comparable to the celebrated work of an earlier Dutch jurist and historian, Hugo Grotius (1583–1645), De Jure Belli ac Pacis (1625; On the law of war and peace). Law and history were combined in Pufendorf's De Statu Imperii Germanici (1667; On the constitution of the German empire). There he combined the concept of a federal state, similar to the constitution of the Netherlands, with a distinction between regular and irregular forms of government. The empire "constituted itself from a regular form of monarchy and an irregular form of state, which is no longer a limited monarchy, whatever appearance of such it may have, but nor is it a federation of several states, since it represents something between the two." Pufendorf preferred monarchy and abhorred radical resistance theory, but he approved of the English Revolution of 1688.

England

The settlement after the Revolution of 1688 was the culmination of political conflict and constitutional speculation. The main issues had been the relationship between the monarch and the other two components of Parliament, the Lords and the Commons, together with a peculiarly English concept of the common law as the controlling element in the constitution. England was usually seen as a mixed or tempered monarchy that allowed the ruler a special prerogative but gave supreme authority to the king in Parliament. On the one hand Parliament's function was regarded as the making of positive law; on the other it was viewed as a high court that found and declared ancient customary law.

In the fifteenth century Sir John Fortescue (c. 1394–c. 1476), chief justice of the common law court, the King's Bench, declared in his De Laudibus Legum Angliae (first printed 1537; Praises of the laws of England) that statutes were made by the will of the king with the assent of the realm represented in Parliament, and that England was governed by a participatory and regal system (dominium politicum et regale), in contrast with the pure monarchy (politicum regale) in France. With the assumption of royal power over the church by the Tudors during the Reformation the idea of legislative sovereignty in a nation-state came near to realization. Sir Thomas Smith (1513–1577), a jurist, diplomat, and secretary of state, declared in De Republica Anglorum (1583; On the commonwealth of the English) that Parliament was "the most high and absolute power in the realm." At the same time Smith was a vigorous defender of the royal extra-parliamentary prerogative.

With the advent of the first two Stuart kings (James I, ruled 1603–1625; Charles I, ruled 1625–1649) the crown adopted the theory of the divine right of kings and asserted royal authority over Parliament. At the same time the common lawyers claimed the supremacy of immemorial customary law. Their leader was Sir Edward Coke (1552–1634), who, after his dismissal as chief justice of the King's Bench in 1616, became a member of the Commons and a defender of parliamentary privilege. As a judge he was even prepared to disallow a statute if, in his view, it contravened common law. After governing without Parliament for eleven years, Charles I gradually yielded ground and agreed to such measures as the attainder and execution of his first minister and the abolition of the conciliar courts established under the Tudors as rivals of the common law courts.

Just before the outbreak of civil war in 1642, Parliament presented the king with nineteen propositions further restricting his rule. In reply moderate advisers of the king made the tactical error of admitting that the constitution was indeed a mixed one, and that the Lords and Commons held coordinate, instead of subordinate, power with the crown. For its part Parliament did not try to depose the king at this point but tried to attract moderate opinion by asserting a difference between the office and person of the king and its right to exercise the former while he remained under the influence of socalled "malignants." After the civil wars Charles I was tried and executed. England became a republic while a series of constitutional experiments were attempted under the aegis of the parliamentary general, Oliver Cromwell (1599–1658). There were even some radical proposals, never implemented, to create manhood suffrage and annual parliaments.

The civil wars were accompanied by a vast polemical literature supporting the royal and parliamentary causes. A more detached commentary on the constitution was written by an obscure Wiltshire clergyman, Philip Hunton (c. 1604–1682). His Treatise of Monarchy (1643) favored Parliament while treating the crown with respect. Established by a fundamental contract, the constitution of England was a mixed monarchy wherein the king controlled the executive while king, Lords, and Commons shared legislative power. In a mixed monarchy the ruler was limited by definition, but a limited monarchy need not be mixed if the contract gave authority to the crown alone but limited it by fundamental laws. Since Charles I had invaded the rights of the two houses, Parliament was acting in defense of the constitution, but there could be no superior tribunal to judge the king, else England would not be a monarchy at all. Despite its moderate tone, A Treatise of Monarchy provoked much royalist criticism and was republished during the political troubles of Charles II (ruled 1660–1685).

Under the Restoration the constitution resumed the forms it had taken before the civil wars, including some of the concessions made by Charles I. The struggle to exclude from the succession the king's Roman Catholic brother, the future James II (ruled 1685–1688), stimulated the composition of two works that were later assumed to justify the socalled Glorious Revolution of 1688: Discourses concerning Government (first published 1698) by the republican statesman Algernon Sidney (1622–1683) and Two Treatises of Government (1690) by the physician and philosopher John Locke (1632–1704). Sidney, who was well-read in the resistance literature of the French Wars of Religion, popularized the so-called "Gothic" theory of ancient European institutions, based on Hotman's idea in Fran-cogallia that the Germanic tribes invading the Roman empire had brought with them admirable constitutions. Locke based his political theory on the protection of indefeasible individual rights of life, liberty, and property enjoyed in a sociable but inconvenient state of nature. By an original contract individuals had set up a community in which the majority were empowered to set up a form of government. The outcome was rather similar to Hunton's constitutionalism, since power was divided between an executive and a shared legislature. Locke added a third element, the "federative," by which he meant power to protect the state against external enemies. The community had no right to resist the established powers, but if the government collapsed through its own divisions, society had a constituent right to set up a new regime.

The final element in early modern constitutionalism was the separation of powers doctrine, hinted at but not developed by Hunton, Locke, and others. It was defined by Charles-Louis de Secondat, baron de Montesquieu (1689–1755) in the eleventh book of his De l'esprit des lois (1748; Spirit of the laws). To complete the system of checks and balances Montesquieu added the judicial element to the legislative and executive, thus incorporating the shade of the English common law myth. He also repeated the legend of the Gothic constitution, declaring that the origin of the most satisfactory kind of government was to be found in the forests of Germany. Although seen by some as conservative and aristocratic, Montesquieu's theory was to influence the written constitutions of the American and French Revolutions.

Bibliography

Primary Sources

Elton, G. R., ed. The Tudor Constitution: Documents and Commentary. 2nd ed. Cambridge, U.K., 1982.

Hotman, François. Francogallia. Edited by Ralph E. Giesey. Translated by J. H. M. Salmon. Cambridge, U.K., 1972. With commentary by the editors.

Kenyon, J. P., ed. The Stuart Constitution: Documents and Commentary. 2nd ed. Cambridge, U.K., and New York, 1986.

Locke, John. Two Treatises of Government. Edited by Peter Laslett. Cambridge, U.K., and New York, 1988. With commentary by the editor.

Montesquieu, Charles-Louis de Secondat, baron de. The Spirit of the Laws. Translated by Thomas Nugent. New York, 1949.

Seyssel, Claude de. The Monarchy of France. Translated by J. H. Hexter. Edited by Donald R. Kelley. New Haven, 1981.

Secondary Sources

Church, William Farr. Constitutional Thought in Sixteenth-Century France: A Study in the Evolution of Ideas. New York, 1941.

Dufour, Alfred. "Pufendorf." In The Cambridge History of Political Thought, 1450–1700. Edited by J. H. Burns. Cambridge, U.K., 1991.

Friedrich, Carl J. Constitutional Government and Democracy: Theory and Practice in Europe and America. Boston, 1941.

Lloyd, Howell A. "Constitutionalism." In The Cambridge History of Political Thought, 1450–1700. Edited by J. H. Burns. Cambridge, U.K., 1991.

Mc Ilwain, Charles Howard. Constitutionalism: Ancient and Modern. Rev. ed. Ithaca, N.Y., 1958.

Pocock, J. G. A. The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century. 2nd ed. Cambridge, U.K., and New York, 1987.

Scott, Jonathan. England's Troubles: Seventeenth-Century English Political Instability in European Context. Cambridge, U.K., and New York, 2000.

Shklar, Judith N. Montesquieu. Oxford, 1987.

—J. H. M. SALMON

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