Constitutional law was born in England as a response to absolutism, which implied
power without juridical limits, and the monopolization of the law by the sovereign.
Faced with absolutism, constitutionalism claimed the subjection of everyone to the
law. This notion had been part of the political and legal culture of all medieval
Europe. In that conception, the primacy of law was made effective by judges, and
the law was not reduced to norms, but rather viewed as a set of criteria, rules,
customs, and principles of justice.
For this reason, it can be affirmed that constitutional law rests on the same
premises, and henceforth arise the concepts of rule of law, judicial review, and
rights. Thus, the Rule of Law assumes the primacy of law over power, which
implies that the instrument created for that purpose, the constitution, is in a position
of supremacy over power. That is to say, power subordinated to the constitution,
which makes the control of the former in accordance the latter necessary, affecting
the submission of the power to the Rule of Law. Therefore it is common sense that
the control lies in the judges, because its function is to resolve conflicts in applying
the law, and the constitution is law, at least in part.
However, the idea of limiting the power by the law aims at the protection of the
person and her rights. In this sense, constitutionalism is based on the idea that
human beings are endowed with inherent and inalienable rights, which are conceived
as specific liberties and immunities to power, enforceable before a court of
law. In other words, the subjection of power to the law, and its control by judges is
justified by the need to protect people from possible overreaching, and therefore,
from possible violations of their rights.