Questions: Constitutionalism and Constitutional Design

Question 1

Country X has a detailed, written constitution that enumerates citizen rights and limits on government power. However, the ruling party routinely ignores court rulings and passes laws that violate the constitutional text. Which of the following best describes Country X?

• A. A constitutional democracy, because it has a written constitution
• B. Not a constitutionalist system, because the constitutional text is not operatively constraining government power
• C. A parliamentary system, because the legislature controls the executive
• D. A federal system, because authority is divided between levels

Answer: (B)

Constitutionalism requires that a fundamental law actually limits government authority — not just that one exists on paper. A written constitution is necessary but not sufficient. Authoritarian regimes frequently have detailed constitutions they simply ignore. The operative test is whether constitutional rules constrain what majorities and officials can actually do.

Question 2

In a country governed by parliamentary sovereignty (like the UK), what is the primary mechanism that prevents the government from violating rights?

• A. Constitutional courts that can strike down primary legislation
• B. A rigidly unamendable bill of rights
• C. Electoral accountability, political culture, and conventional limits on Parliament rather than judicial review of primary legislation
• D. Federal divisions that allow states to override national laws

Answer: (C)

Parliamentary sovereignty means Parliament can, in principle, pass any law — courts cannot strike down primary legislation as unconstitutional. Protection of rights comes instead from electoral accountability, strong constitutional conventions, and political culture. The UK, Netherlands, and New Zealand use this model, demonstrating that constitutionalism does not require strong judicial review.

Question 3

A constitution can limit what democratically elected majorities are permitted to do, even when those majorities have clear popular support.

• T. True
• F. False

Answer: True

This is one of constitutionalism's core functions: protecting rights and procedures that ordinary democratic majorities cannot override. A bill of rights operates precisely by removing certain questions from majority decision — even a 99% majority cannot constitutionally violate enumerated rights. This is the tension between constitutionalism and pure majority rule.

Question 4

Judicial review — the power of courts to strike down unconstitutional laws — is a feature of most functioning constitutional democracies.

• T. True
• F. False

Answer: False

Judicial review is one enforcement mechanism for constitutionalism, but not the only one. The UK, Australia (at the federal level for most purposes), New Zealand, and the Netherlands operate without strong judicial review of primary legislation, relying instead on parliamentary sovereignty and other mechanisms. The scope and form of judicial review varies widely across constitutional systems.

Question 5

Why is having a written constitution insufficient to guarantee constitutional governance?

Model answer: A written constitution only produces constitutional governance if the rules it contains actually constrain what governments do — if institutions enforce it, officials comply with it, and violations have real consequences. Without operative enforcement mechanisms (courts with independence and power, a political culture of compliance, or other checks), a constitutional text is merely aspirational. The existence of the document does not automatically create the practice.

This is the distinction between a constitutional text and a constitutional order. The three functions of a constitution — distributing power, limiting power, and legitimating power — must all be operative in practice, not just written down. Many authoritarian states have elaborately written constitutions that serve propaganda functions rather than governance functions.