Reply to "A Critique": Constitutionalism: The Theory of InstitutionalizationAuthor(s): Harvey WheelerSource: Comparative Politics, Vol. 11, No. 4 (Jul., 1979), pp. 493-495Published by: Ph.D. Program in Political Science of the City University of New YorkStable URL: http://www.jstor.org/stable/421874 .

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Reply to "A Critique"

Constitutionalism: The Theory of Institutionalization

Harvey Wheeler Journal of Social and Biological Structures

Most of Professor Schram's criticisms stem from a misreading of my chapter. This in turn appears to derive from a misunderstanding of modern con- stitutionalism that traces to Charles H. McIlwain. Schram accepts McIlwain's thesis that constitutionalism, in the modern sense, was present also in the ancient and medieval worlds. I maintain that this is wrong on several counts, but I shall mention only two of them now. One is theoretical and the other historical.

In the first place, constitutionalism denotes an integrated group of electoral, governmental, and juridical institutions constituting an overall political order, with characteristic systemic properties which are not intuitively apparent from an analysis of the individual component parts of the system. Scholarly treat- ments of constitutionalism that focus solely upon two or three component parts, to the exclusion of a systemic analysis, ultimately must fail to explain con- stitutionalism regardless of how excellent the exposition may be. McIlwain's treatment of constitutionalism consists of a masterful investigation of the ancient and medieval manifestations of two crucial components of modern constitutionalism, but it fails to explain constitutionalism as a system. He may have suspected this deficiency himself. At the end of Constitutionalism, An- cient and Modern, he confessed that he had been unable to define con- stitutionalism.

Secondly, constitutionalism denotes a distinctive cluster of political ideas about the limitation of the power of the modern sovereign state. These are factually embodied in and practically realized through a characteristic assort- ment of institutions for assuring that limitation. Francis D. Wormuth made this

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Comparative Politics July 1979

point in the Origins of Modern Constitutionalism. He seconded Otto Gierke's proposition that the idea of the state was absent between the fall of Rome and the time of Hobbes. Wormuth analyzed the emergence of the sovereign state in England beginning with the civil wars of the seventeenth century. The leading features of modern constitutionalism came into existence at that time as the legal and institutional arrangements designed to limit the sovereign state. Constitutionalism cannot be explained except in the context of the modem sovereign state from which it developed.

Two of the elements of the theory of modern constitutionalism are: (1) a proposition about how to keep law constitutional-usually called the rule of law; and (2) a proposition about how to keep authority constitutional-how to insure the validity of governmental actions by subordinating them to purposes established through popular electoral institutions. There are other ingredients of modem constitutionalism, but these two are crucial, and they are the ones that were seized upon by McIlwain. In doing so, however, he ignored the signifi- cance of the context of the modem sovereign state within which they had arisen. McIlwain projected these two institutional results back across the seventeenth century divide and into medieval English political history. There he ran into the documentary remains of what Otto Gierke called "double majesty": princeps and populus-the two autonomous principles of medieval government. McIl- wain analogized these to the modem components and called them con- stitutionalism. Aquinas had claimed that princeps and populus were bound together by apactum. McIlwain hoped that someday it could be proved that the king's coronation oath stood for some such pactum, but he also lodged a surrogatepactum in custom, stating that this expressed the rule of law and was superior to enacted laws and decrees. Wormuth, and after him Donald W. Hanson in From Kingdom to Commonwealth, showed that this was false. Medieval England was replete with bills of attainder and ex post facto laws. Custom was no surrogate for popular sovereignty; there was no sovereign state to constitutionalize; constitutionalism did not exist in medieval England.

Another factor that vitiated McIlwain's treatment derived from his abhorr- ence of the structuralist tradition that grew out of the English Civil Wars and the American Revolution. Republicanism posed special problems for the theory of constitutionalism that were not otherwise readily apparent. However, McIl- wain attempted to explain constitutionalism without reference, except disparag- ingly, to the classical liberal political theorists such as Locke and Montesquieu; he told his story by relying upon historical materials scarcely more recent than 1630.

Despite all this, McIlwain's research is neither useless nor irrelevant. It still remains to be demonstrated how certain precursive English practices, after the emergence of the modem state, were transmuted into the institutional and structural ingredients of modem constitutionalism. The fact that this was the

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Harvey Wheeler

very opposite of McIlwain's own purpose does not prevent us from benefiting from much of his research to show how those transmutations actually occurred: how modem constitutionalism was created. This was one of the aims of my chapter.

One particularly intriguing aspect of that transmutation was the way medieval oath renunciation (diffidation) and civil disobedience were trans- formed into the institutional foundations for the subordination of governmental authority to popular political processes. I called this the "institutionalization of civil disobedience." Schram finds this puzzling and considers that it implies, by extension, a crime wave. This concept, which is a paraphrase of a dictum by McIlwain, is explained in pages 46 through 49 of my chapter. A much fuller historical and theoretical treatment occurs in my "Foundations of Con- stitutionalism" (Loyola of Los Angeles Law Review, VIII, no. 3 [September 1975], 539-55).

In England the institutionalization of civil disobedience proceeded from violent baronial insurrection to the forceful deposition of ministers under the fiction of their wrongful counsel to a king who could do no wrong, to the impeachment of corrupt ministers for violating a hypostatized and allegedly immemorial common law, to the impeachment of ministers who were merely displeasing. Then, across the constitutional divide into the modem state, an off spurt of impeachment, minus criminality, was transmuted into mere deposi- tion. The "loyal" opposition appeared whose sole political purpose was to impeach the government of the day. The distinctive conventions of the British constitutional monarchy derived from the institutionalization of civil disobedi- ence.

In America the delayed emergence of the sovereign state coincided with the need to republicanize the royal, and as yet unconstitutionalized, imperial crown. This resulted in special structural innovations. James Wilson's disobe- diential theory of the "loyal" rebellion was the prescient imperial analogue of the loyal opposition. McIlwain wrote The American Revolution: A Constitu- tional Interpretation to prove that the revolution was constitutional, meaning that it exhibited a certain Lancastrian quality (see my "Calvin's Case (1608) and the McIlwain-Schuyler Debate," American Historical Review, LXI, 578- 97). When the new republic institutionalized its own disobediential ethos, the results were characteristically different: checks and balances, ante bellum interpositional federalism, and, later, the party system.

Recently, in both countries, these analogous though divergent traditions of institutionalized civil disobedience have become eroded. The functional im- peratives of the theory of constitutionalism point toward a new postmodem transformational episode.

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