Constitutional Fundamentalism

The term “constitutional fundamentalism” had found its way once in the records of the Supreme Court in the landmark case of Aquino v. Enrile[1] particularly in the concurring and dissenting opinion of Justice (later Chief Justice) Enrique Fernando. The said case involved the application for habeas corpus of Benigno S. Aquino, Jr., et al. and revolved around the issue of whether or not the Court may issue the same considering that martial law had been proclaimed by the President and which is ultimately dependent upon the main issue of whether the Court may inquire into the validity of the proclamation of martial law. The pertinent portion of the said opinion mentioning “constitutional fundamentalism” provides:

“4. Equally so, the decisive issue is one of liberty not only because of the nature of the petitions, but also because that is the mandate of the Constitution. That is its philosophy. It is a regime of liberty to which our people are so deeply and firmly committed. 18 The fate of the individual petitioners hangs in the balance. That is of great concern. What is at stake, however, is more than that — much more. There is a paramount public interest involved The momentous question is how far in times of stress fidelity can be manifested to the claims of liberty. So it is ordained by the Constitution, and it is the highest law. It must be obeyed. Nor does it make a crucial difference. to my mind, that martial law exists. It may call for a more cautious approach. The simplicity of constitutional fundamentalism may not suffice for the complex problems of the day. Still the duty remains to assure that the supremacy of the Constitution is upheld. Whether in good times or bad, it must be accorded the utmost respect and deference. That is what constitutionalism connotes. It is its distinctive characteristic. x x x.”[2]
Modern constitutionalism is usually founded upon some organic acts of a fundamental character, whether embodied in a single instrument or set of instruments like the U.S. Constitution or scattered in various sources, such as statutes of a fundamental character, judicial decisions, commentaries of publicists, customs and traditions, and certain common law principles like in what is regarded as the British Constitution.[3]
This means that constitutionalism does not presuppose or require a single document or an integrated set of documents to embody the fundamental law; otherwise there would be no such thing as British Constitutionalism. As Gregory Mahler elucidates:

“When we discuss constitutional governments, then, we are really not talking about whether there exists a single, specific document; rather, we are interested in a kind of political behavior, political culture, political tradition, or political history…. The forms may vary, but the behavioral results are the same: Limits are imposed upon what governments may do.”[4]
While the British Constitution had been called an “unwritten constitution,” it is however in fact contained in various written instruments. Lord Bolingbroke described the British Constitution in this wise:
“By constitution we mean … that assemblage of laws, institutions and customs, derived from certain fixed principles of reason, directed to certain fixed objects of public good, that compose the general system, according to which the community hath agreed to be governed.”[5]
However, since most of the constitutions in the world today have been patterned after the American model of having a single document of set of documents to embody their fundamental law, this inquiry will be confined to this American concept of constitutionalism.
A distinctive character of this concept of American Constitutionalism is its adherence to principles that have been objectively embodied in positive form and in a single instrument or set of instrument. In a formal sense American Constitutionalism consisted in the stipulation of principles, institutions, and rules of government by the people or their representatives.[6]
Hence, the written document or the Constitution becomes the supreme and fundamental law of the land. It becomes the touchstone of the validity of all governmental acts and some even refer to it as “the God of all man-made laws.” Hence, to fundamentalists, the Constitution has become a sacred scripture and adherence to its text constitution worship. This is the essence of Constitutional Fundamentalism.
Constitutional Fundamentalism regards the documentary text as an instantiation, a sign or symbol, of fundamental law. It expresses in modern form the view of classical philosophy that the “endurance of ‘writings’ provides the possibility of meeting the variability of human things by preserving wisdom in however diluted a form beyond the demise of the wise founder.”[7]
The problem with Constitutional Fundamentalism, however, inherent in its strict allegiance to the Constitutional or organic text, is the difficulty in discovering the original intent, whether the latter could really be discovered and even if discovered whether it should really be adhered to, especially after some radical and fundamental changes in circumstances have taken place since its ratification or adoption.
It also gives rise to the issue of what does original intent consist in. Is it simply the embodiment of the intent of the framers, the actual drafters of the Constitutional text? Are the speeches of the individual members of a constitutional convention to be held as reflective of the general intent of the entire convention? Or, are we to take the intent of the people as the controlling intent, as the latter are the theoretical authors of the Constitutional text following republican representative traditions?
Discovering the intent of the people or their original understanding at the time they ratified the Constitutional text poses a bigger challenge. This is never manifested in written form that is empirically or positively verifiable.
Moreover, the Constitution, as a document of founding or refounding, amounts to a comprehensive picture of a people only at a given time[8] and like any living law, Isagani Cruz holds the thesis that the Constitution must move with the moving society it is supposed to govern and a law that has ceased to grow has ceased to be, and he maintains that this is true especially of the supreme and fundamental law.[9]
Isagani Cruz further observes that “the political or philosophical aphorism of one generation is doubted by the next and entirely discarded by the third.” This being so, he suggests that, the Constitution must be able to adjust to the change, conforming itself to the needs of society that must be dynamic if it is to progress and endure.[10]
What could keep Constitutional Fundamentalism at bay is an active judiciary that regards the Constitution as a living document. This is best explained in the exposition of Justice Jose Vitug in his concurring opinion in the landmark case of Estrada v. Arroyo[11] where the Supreme Court was faced with the issue of the legitimacy of President Arroyo’s assumption of the Presidency:
“More than just an eloquent piece of frozen document, the Constitution should be deemed to be a living testament and memorial of the sovereign will of the people from whom all government authority emanates. Certainly, this fundamental statement is not without meaning. Nourished by time, it grows and copes with the changing milieu. The framers of the Constitution could not have anticipated all conditions that might arise in the aftermath of events. A constitution does not deal in details, but enunciates the general tenets that are intended to apply to all facts that may come about but which can be brought within its directions. Behind its conciseness is its inclusiveness and its aperture overridingly lie, not fragmented bur integrated and encompassing, its spirit and its intent. The Constitution cannot be permitted to deteriorate into just a petrified code of legal maxims and hand-tied to its restrictive letters and wordings, rather than be the pulsating law that it is. Designed to be an enduring instrument, its interpretation is not to be confined to the conditions and outlook which prevail at the time of its adoption; instead, it must be given flexibility to bring it in accord with the vicissitudes of changing and advancing affairs of men.”[12]
However, this in itself must also be tempered by strict parameters lest it be brought to the extreme and the judiciary assumes a role of a continuing constitutional convention.
Constitutional principles should then be divided into “movable” and “non-movable principles”. Movable principles, like the due process clause, may move with the times and may be given a contemporary meaning. Non-movable principles, however, like the structure or form of government cannot change, except by another act of an organic character that amends or revises the same.

[1] G.R. No. L-35546, September 17, 1974
[2] Concurring and Dissenting Opinion of Justice Fernando in Aquino v. Enrile, supra.
[3] Isagani A. Cruz, Constitutional Law, 2003 Ed. (Central Lawbook Publishing), pp. 4-5
[4] Gregory Mahler, Comparative Politics: An Institutional and Cross-National Approach, Upper Saddle River, New Jersey: Prentice Hall, 2000, p. 28
[5] Cited in Constitutionalism: Ancient and Modern, by Charles H. McIlwain, Cambridge, 1958, p. 3 and in Herman Belz, A Living Constitution or Fundamental Law? American Constitutionalism in Historical Perspective, Chapter 1, http://www.constitution.org/cmt/belz/lcfl.htm
[6] Herman Belz, A Living Constitution or Fundamental Law? American Constitutionalism in Historical Perspective, supra
[7] Herman Belz, A Living Constitution or Fundamental Law? American Constitutionalism in Historical Perspective citing Paul Stern, The Rule of Wisdom and the Rule of Law in Plato’s States man, American Political Science Review, Vol. 91 (1997), p. 271
[8] Donald S. Lutz, The Origins of American Constitutionalism, Louisiana State University Press, 1988, p. 3
[9] Isagani A. Cruz, Philippine Political Law, 1991 Ed., Central Lawbook Publishing, p. 342
[10] Ibid.
[11] G.R. No. 146738, March 2, 2001
[12] Justice Jose Vitug, Concurring Opinion in Estrada v. Arroyo, G.R. No. 146738, March 2, 2001

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One thought on “Constitutional Fundamentalism

  1. Data point: Frank Zappa described himself as a constitutional fundamentalist back in the 80s.

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