The article discusses the distinction between unconstitutional actions and those that oppose constitutionalism. Unconstitutional acts break the Constitution as interpreted by courts, such as bans on same-sex marriage and Trump’s birthright citizenship order. Constitutionalism, however, represents governance under law and is inherently characterized by limited governmental authority. The historian Henry Steele Commager and philosopher John Locke contribute to this concept, emphasizing that sovereignty belongs to the law and not to the ruling authority, differentiating it from absolute power systems.
‘The project of constitutionalism... is the project of government under law, by law, through law, in conformity with law.’ This principle counters absolute authority, highlighting limited government.
The distinction between sovereignty and government is crucial: sovereignty is supreme authority, while government serves as its instrument—a key feature of constitutionalism.
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