Constitutionalism: Negative and Positive

Constitutionalism is a term that is often found in the title of books and articles, but is rarely considered in their texts. By and large, it is assumed that we know what constitutionalism entails, and that there is no need to examine it further. Constitutionalism is treated as a synonym for the legal enforcement of constitutional rules, or – perhaps – a subset of those rules; it is regarded as a desirable, maybe even a necessary, feature of a constitutional order. Attention swiftly turns to the practical difficulties involved in ensuring the effectiveness of these legal constraints. This paper challenges this simple understanding of constitutionalism, arguing those who see constitutionalism entirely in terms of constraints on state power miss an important aspect of the doctrine. Constitutionalism also requires the creation of an effective and competent set of state institutions; it has a positive dimension