Constitutionalism with Adjectives: Conceptual Innovation in the Comparative Study of Law

Abstract

The latter half of the twentieth century and the early twenty-first century witnessed a global wave of constitution writing. Scholarly examination of these new charters found that most embodied liberalism and democracy. Additional study, however, found that textual convergence among these “higher law constitutions” belied important heterogeneity in constitutionalism—that is, in the principles underlying these charters and associated attitudes and behaviors. Scholars adopted several conceptual strategies to accommodate this variation, including attaching adjectives to constitutionalism (for example, “globalizing constitutionalism” and “abusive constitutionalism”). This article analyzes this conceptual innovation, drawing on an original dataset of all mentions of the word “constitutionalism” paired with a qualifying adjective found in the title/abstract of articles or in the title/first substantive page of books/dissertations, written in English, published between 1945 and 2019 and referenced on the Internet. We identified 1,621 “adjective-constitutionalism combinations,” including 564 unique combinations, suggesting both extraordinary empirical variation and little coordination among scholars with regard to conceptualization. Moreover, scholars’ conceptualizations of constitutionalism rarely reference equality, justice, or state responsibility for pursuing those ideals, despite these values being logical extensions of higher law constitutions’ core precepts; indeed, some conceptualizations even reflected illiberal or rights-limiting principles of governance. These findings raise the specter of a disconnect between constitutions and constitutionalism that we hope future studies will examine.