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THE Concept OF Constitutionalism- Wheaere
Constitutional law of Ghana and its history (FLAW306)
University of Ghana
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The concept of constitutionalism may also be presented as constitutional rule; constitutional governments etc. constitutional government means something more than government according to the terms of the constitution. It means government according to rules as opposed to arbitrary government; it means government limited by the terms of a constitution, not government limited only by the desires and capacities of those who exercise power. The real justification of constitutions, the original ideas behind them, is that of limiting government and of requiring those who govern to conform to laws and rules.
Certain forces work against constitutional governments. Firstly, is war? In times of war or rumors of war, a government gains full freedom of action, it does not want to be bound by limitations. People are ready to grant this freedom. Other examples include, economic distress or difficulty, famine, pestilence, disaster all in some degree call for discretionary action by the government.
If constitutional government is limited government, one of its enemies is absolutism of any kind. Anybody of opinion or any organized movement aimed at establishing omnipotent government is clearly a force opposed to constitutional government. Absolutism (totalitarian, dictatorship of the proletariat, fascism, or Nazi-ism) is incompatible with constitutional government because it claims to be unlimited and supreme. The concept of constitutional government depends on the extent of absolutism. As it advances, constitutional government recedes.
If democracy means no more than universal suffrage or equality of conditions, it does not follow that it will produce constitutional government. It is only when democracy means liberty as well as equality that can be expected with any confidence to produce constitutional government. In democracy, men love equality more than liberty and if need be they will throw away equality for liberty. If democratic government is to be constitutional government, it must preserve liberty.
There could be constitutional governments which may not be democratic. Examples are the aristocracies and the oligarchy which are constitutional. Governments controlled by a class though in the interest of that class may easily be limited government.
When war or any other emergency comes, constitutional government is restricted or suspended in order that a community may survive as an independent entity free to choose once more to resume constitutional government when the emergency has passed. Such a suspension of constitutional government if is to exist again it must be in abeyance for the present.
It may well be that in certain circumstances the best way to defeat opponents of constitutional government or to restrict their activities is to leave them free to express their opposition. It must always be maintained that the object before the supporters of constitutional government is to defeat its opponents and it may be that their freedom must be surrendered, if constitutional government is to survive. The difficulties which arise when this principle is applied in practice are illustrated by the attempts made in countries under constitutional government to suppress the activities of communists. In theory there is no inconsistency between constitutional government and suppression of communists. Communists do not believe in constitutional government and they do not hide their contempt for it.
PAA JOY
THE Concept OF Constitutionalism- Wheaere
Course: Constitutional law of Ghana and its history (FLAW306)
University: University of Ghana
