Constitutional theory


Constitutional theory is an area of constitutional law that focuses on the underpinnings of constitutional government. It overlaps with legal theory, constitutionalism, philosophy of law and democratic theory. It is not limited by country or jurisdiction.

United States

Constitutional theory in the United States is an academic discipline that focuses on the meaning of the United States Constitution. Its concerns include the historical, linguistic, sociological, ethical, and political aspects.
Much of constitutional theory is concerned with theories of judicial review. This is in part because Marbury v. Madison, which established this judicial power in the early 19th century, has given the judiciary near-final authority on constitutional meaning.
Aside from judicial review, constitutional theory in general seeks to ask and answer the following questions:
Although constitutional theory as a discipline has its precursors in The Federalist and Justice Story's Commentaries on the Constitution, modern constitutional theory began with the publication of Alexander Bickel's The Least Dangerous Branch. nor the purse. The book's primary contribution was to introduce the idea of the "countermajoritarian difficulty." The idea expressed by the term countermajoritarian difficulty is that there is a tension between democratic government and judicial power. If the judiciary—an unelected branch of government—can overturn popular legislation, then either there is a fundamental contradiction within the democratic system, or there is a tension that must be resolved by curbing judicial power.

Important theorists

The following is a partial list if important American theorists and thinkers:
The Rechtsstaat doctrine was introduced in the latest works of the German philosopher Immanuel Kant after US and French constitutions were adopted in the late 18th century. Kant’s approach is based on the supremacy of a country’s written constitution. This supremacy must create guarantees for implementation of his central idea: a permanent peaceful life as a basic condition for the happiness of its people and their prosperity. Kant was basing his doctrine on none other but constitutionalism and constitutional government.
Kant had thus formulated the main problem of constitutionalism, “The constitution of a state is eventually based on the morals of its citizens, which, in its turns, is based on the goodness of this constitution.” Kant’s idea is the foundation for the constitutional theory of the twenty-first century. The Legal state concept is based on the ideas, discovered by Immanuel Kant, for example, in his Groundwork of the Metaphysic of Morals:
“The task of establishing a universal and permanent peaceful life is not only a part of theory of law within the framework of pure reason, but per se an absolute and ultimate goal. To achieve this goal, a state must become the community of a large number of people, living provided with legislative guarantees of their property rights secured by a common constitution. The supremacy of this constitution… must be derived a priori from the considerations for achievement of the absolute ideal in the most just and fair organization of people’s life under the aegis of public law.”.

Russian legal state

The Russian legal system, borne out of transformations in the 19th Century under the judicial reform of Alexander II, is based primarily upon the German legal tradition. It was from here that Russia borrowed a doctrine of Rechtsstaat, which literally translates as Legal State. The English most close analogue is «rule of law». Rechtsstaat is a concept in continental European legal thinking, originally borrowed from German legal philosophy, which can be translated as “legal state” or "state of law", or "state of rights", "constitutional state" in which the exercise of governmental power is constrained by the law. The Russian Legal state concept adopts the written constitution as a supreme law of the country. The concept of “legal state” is a fundamental, but undefined, principle that appears in the very first dispositive provision of Russia’s post-Communist constitution: “The Russian Federation – Russia – constitutes a democratic federative legal state with a republican form of governance.” Similarly, the very first dispositive provision of the Constitution of Ukraine declares: “Ukraine is a sovereign and independent, democratic, social, legal state.” The effort to give meaning to definition “Legal State” is anything but theoretical.
Valery Zorkin, President of the Constitutional Court of Russia, wrote in 2003:
“Becoming a legal state has long been our ultimate goal, and we have certainly made serious progress in this direction over the past several years.
However, no one can say now that we have reached this destination. Such a Legal state simply cannot exist without a lawful and
just society. Here, as in no other sphere of our life, the state reflects the level of maturity reached by society.".
The Russian concept of legal state adopted many segments of the constitutional economics. One of the founders of constitutional economics James M. Buchanan, the 1986 recipient of the Nobel Memorial Prize in Economic Sciences argues that in the framework of constitutional government any governmental interventions and regulations have been based on three assumptions.