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From a formal point of view, constitutional law is a normative fountain from which all other secondary norms are derived. In a pure theory of law, a constitution is the fundamental norm of the state. It represents simply the basic authorizing norm of a legal system, being at the top of a coherent and hierarchical order, as described by legal philosopher and international jurist Hans Kelsen in his various works during the 1960s. Constitutional rules are often collected in a written chart, especially in countries with Roman legal tradition, characterized by a clear distinction between constitutional law and other branches of law. Yet, the presence of a code is not an essential element: As Italian political scientist Giovanni Sartori observed in 1962, although most countries have a constitutional text, only a few of them have a form of constitutionalism.

To understand such a key point—and paradox—the formal interpretation of constitutional law is not enough. Turning to a functional perspective, only the idea of restriction of powers connotes the specific function of constitutional law. First, modern constitutions interpret the liberal aspiration to protect citizens against the arbitrariness of political powers: They limit political power by defining rules of its exercise, and according to Samuel E. Finer in Five Constitutions, regulate “the allocation of functions, power, and duties among the various agencies and offices of government, and define the relationships between these and the public” (15). Starting from the eighteenth century, the presence of a garantiste component characterizes constitutional law on the basis of its telos: the constitution “guarantees” itself to the citizens by providing a frame of government and the institutional devices that would structure its observance. Modern constitutionalism is new in the sense that in any state in which the will of the government has no check upon it from the constitution, there is in reality no constitution, and that state is in fact a despotism, as explained by Charles H. McIlwain in his 1940 book Constitutionalism: Ancient and Modern.

Procedural conception of constitutional law has emphasized, especially in the new world, the definition of a system of separate institutions competing for powers. According to the U.S. Founders, any bill of rights represents a question to be inserted in a moral treatise more than a constitutional concern—the most important part of a constitution has to be found in its organization of powers. The Framers tried to contrast centrifugal tendencies in American political structure by embracing ideas of separation of powers, picked from Scottish philosopher David Hume and French Enlightenment thinker Montesquieu, and connected with a new conception of federalism adapted for a wide-ranging republic. In their view, a constitution had to pursue two objectives: the first one was to draw up a structure of government that could serve to protect people from government—from the danger of a tyranny of the majority in legislature; the second one was to protect people from themselves.

Only after the eruption of masses in politics, the twentieth-century constitutions acquired more focus on democratic rights. As charters superior in rank to ordinary law, they have come to represent a framework of citizen rights and duties, asking what democratic states ought to be doing and how they should design political institutions to make legitimate choices. Such second-generation democratic constitutions seem to move away from a solely pragmatic constitutional vision by including more ample declaratory preambles stating a true political manifesto for democratic states. However, the marriage between constitutionalism and democracy has been considered one of the most delicate arrangements in the modern world. As Walter F. Murphy noted in a 2001 article, a union between constitutionalism and democracy constantly endures tension because it brings together the notion that the people should rule through their freely chosen representatives, with the prescription that if the people govern, they should not govern too much. Even according to some scholars, such as Jürgen Habermas and William Rehg, constitutional democracy denotes a paradoxical union of contradictory principles, as in the idea that a “rule of law” comes on the scene alongside and together with popular sovereignty.

Constitutionalism, then, is always a difficult balance between allocation of sovereignty and limits in absolute discretion— a delicate equilibrium since constitutions are not fixed and immutable. As historical products, they adapt to their environment and reflect shifts in political forces of the states to which they refer. Any constitutional charter contains emendatory rules that permit modification of its contents. Furthermore, in addition to standard emendatory procedures, constitutional law is modified in another and probably more relevant way. Many scholars, such as Italian constitutional law scholar Costantino Mortati in 1940, have referred to the concept of living constitution or material constitution to describe how sociopolitical actors may partly drift away from static constitutional norms with no formal changes. If a constitution limits and regulates powers, political forces continuously redefine rules by interacting with each other and interpreting their own times. So, another paradox joins the concept of constitutional law: If it serves to provide regularized, and predictable, restraints upon those who exercise political power, it may also be shaped by concrete dynamics of power.

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