Constitutionalism as Limitation and License

Abstract

In the Anglo-American tradition, but certainly also beyond, constitutionalism is often associated with safeguarding a broad sphere of individual liberty against encroachment by public power. In his seventeenth-century manifesto against tyranny, John Locke famously depicted the sovereign as a fearsome lion, far more powerful than the petty varmints it was meant to control, and therefore ever-ready to devour them. Liberals continue to prize resilient institutional structures that conquer the authoritarian odds. Being constantly on guard against “the encroaching spirit of power,” they rejoice whenever sovereign power is “effectually restrained from passing the limits assigned to it.” In this sense, the purest function of a liberal constitution is thought to be bridling the sovereign’s prerogatives, firmly delineating the sphere of individual liberty in respect of which the state and its organs “shall make no law.”