The essence of constitutionalism is mostly described as submission of political rule to law. This is certainly correct, but it is not sufficient to characterize constitutionalism. Submission of politics to law existed long before constitutions emerged. However, the laws that pursued this goal were not called “constitution”. The word existed, but had a different meaning. It designated the factual condition of a political entity as shaped by its geographic situation, economy, power structure, its laws. In this sense, it was a descriptive, not a prescriptive term. Laws that referred to political power were mostly called leges fundamentales, whereas the term constitutio designated certain laws enacted by the Emperor, like the Constitutio Criminalis Carolina. The leges fundamentales usually had a contractual basis. They were the product of agreements between the ruler and privileged classes of society. As such they presupposed the ruler’s right to rule and were confined to limiting it in certain aspects. They were valid only among the parties to the compact, not generally.
Systematic ideas about legitimate rule and the construction of government were developed in natural law theory. Starting from a fictitious state of nature where all individuals were by definition equal and free, natural law theories usually insisted on popular consent as legitimacy basis of political rule and protection of natural rights as purpose of a political entity. They were of a normative character, but did not have the quality of positive law. They were philosophy and stood in contrast to the existing law. They rather served as yardsticks for determining the legitimacy of existing polities. Political rule was considered legitimate if it could have found the consent of the governed. But with the exception of Emer de Vattel, none of the authors in the natural law tradition had pushed these ideas forward to the postulate of a constitution in the modern sense of the word. […]
Table of contents: I. The Constitution as Novelty – II. The Erosion of Constitutionalism – II.1. From Liberalism to the Welfare State – II.2. From the Nation State to the Member State – III. Compensation for the Loss