On the Failure of Constitutionalism Through the Ages: Norms, Emergencies, and the Administrative State

 Constitutionalism is the idea that governments should operate according to established rules that both rulers and the ruled must follow. However, questions arise about what happens when those in power exempt themselves from these rules. This text examines the failures of constitutional limits throughout history by analyzing three case studies: Republican Rome, medieval Florence, and 20th-century England.

1. Constitutionalism Defined: Constitutionalism aims to bind rulers with laws to protect individual liberties and limit government power. Despite this, skepticism exists regarding its effectiveness, as constitutions are often reinterpreted or ignored by those in power.

2. Republican Rome:

• The Roman Republic lacked a written constitution, relying instead on customary norms known as mos maiorum.

• Initially, these norms constrained elites and upheld governance accountability.

• Over time, as military pressures diminished and elite competition intensified, the norms eroded. This led to corruption, disregard for established laws, and a transition from a republic to an empire. Ultimately, the constitutional framework became a means for expanding power rather than restraining it.

3. Medieval Florence:

• Florence boasted a complex republican system designed to prevent tyranny, featuring multiple councils and rotating offices.

• Despite its structure, informal power dynamics emerged, particularly from elite families like the Medici.

• Emergency powers granted during crises undermined formal governance, allowing oligarchic rule to thrive within a façade of democracy. The constitution remained, but real power shifted outside its constraints.

4. 20th-century England:

• England traditionally utilized common law and parliamentary supremacy to limit government authority, perceived as a model of constitutional liberty.

• However, the 20th century saw a gradual shift towards statism, transferring legislative power from elected representatives to unelected bureaucrats. This change occurred through regular legislative actions rather than revolutionary shifts.

• The resultant governance became administrative rather than democratic, where citizens' freedoms dwindled despite the appearance of legal order.

5. Common Patterns:

• Across the three historical cases, a consistent trend is evident: constitutional limits erode from within, facilitated by changing political incentives and practices rather than an outright rejection of governance structures.

• Emergency powers often become normalized, informal authority replaces formal governance, and bureaucratic systems transform coercive power into administrative control.

The examination of constitutionalism in Republican Rome, medieval Florence, and 20th-century England reveals that constitutions fail not due to outright violation but through internal erosion and reinterpretation. The historical record suggests that the integrity of constitutional governance is vulnerable and that relying solely on written rules may not provide true limitations on power. Instead, real liberty requires vigilance against the internal factors that may subvert constitutional principles, as highlighted by critics like Rothbard and Raico, who argue that mere legal documents cannot guarantee freedom.

https://mises.org/mises-wire/failure-constitutionalism-through-ages-norms-emergencies-and-administrative-state