Review of C. H. McIlwain: Constitutionalism, Ancient and Modern

Review of Constitutionalism, Ancient and Modern, by C. H. McIlwain, Social Research, Vol. 9, No. 1 (February 1942).  Reprinted in What is Political Philosophy?


This book surveys those stages in the growth of constitutionalism which are most relevant “to the political problems facing us here and now” (p. vii).  There is a preliminary discussion, in which a sketch of the peculiar character of English constitutionalism is aptly inserted, of “some modern definitions of constitutionalism” (“the new definition of ‘constitution,’ ” as we find it in Paine, and “the older view” as expressed by Bolingbroke and Burke). Then the author describes “the ancient conception of a constitution” (Plato’s Statesman in particular); “the constitutionalism of Rome and its influence” (Roman and English constitutionalism); “constitutionalism in the Middle Ages” (Bracton and Fortescue); “the transition from Medieval to Modern” (the Tudor period); and “modern constitutionalism and its problems” (the constitutional struggle in seventeenth century England and its relevance to the questions of the present time). The final thesis is that “our ancient distinction between jurisdictio and gubernaculum,” between “matter of law” and “matter of state” (see p. 127 ff.), “may still be a valuable help in making [an] analysis of our present-day problems.” For the reconciliation of jurisdictio, which “is essential to liberty,” and gubernaculum, which must not be enfeebled by political “checks and balances” if there is to be efficient government, “remains probably our most serious practical problem, just as it was in seventeenth-century England” (p. 142 ff.).