A
constitution is a set of rules for
government—often
codified as a
written document—that establishes principles of an autonomous
political entity. In the case of countries, this term refers
specifically to a national constitution defining the fundamental
political principles, and establishing the
structure, procedures,
powers and
duties, of a
government. By limiting the government's own
reach, most constitutions guarantee certain
rights to the people. The term
constitution
can be applied to any overall
law that defines
the functioning of a government, including several historical
constitutions that existed before the development of modern
national constitutions.
Constitutions concern different kinds of
political organizations. They are found
extensively in regional government, at
supranational (e.g.,
European Union),
federal (e.g.,
Indian Constitution),
state or provincial (e.g., the
constitution
of the Commonwealth of Massachusetts or the
constitution of the State
of New York), and
sub-national levels. They are also
found in many political groups, such as
political parties,
pressure groups, and
trade unions.
Non-political entities such as
corporations and
voluntary associations, whether
incorporated or not, may also have a
constitution. The constitution of a
legally incorporated entity is more usually styled as its
memorandum and
articles of association (U.S.
incorporation).
Constitution of India is the
longest written constitution of any sovereign country in the world,
containing 448 articles, 12 schedules and 94 amendments, thereby
totaling 117,369 words in its
English
language version.
Etymology
The term
constitution comes from a
Latin term denoting an important law, usually
one proclaimed by the Roman emperor (
"constitutiones
principis": the edicta, mandata, decrera and rescripta).
Later, the term was widely used in
canon
law for an important determination, especially by the
Pope, which are now referred to as
apostolic constitutions.
General features
Generally, every constitution confers specific powers to an
organization or institutional entity, established upon the primary
condition that it abides by the said constitution's
limitations.
The Latin term
ultra vires
describes activities of officials within an organization or polity
that fall outside the constitutional or statutory authority of
those officials. For example, a
students' union may be prohibited as an
organization from engaging in activities not concerning students;
if the union becomes involved in non-student activities these
activities are considered
ultra vires of the union's
charter, and nobody would be compelled by the charter to follow
them. An example from the constitutional law of nation-states would
be a provincial government in a federal state trying to legislate
in an area exclusively enumerated to the federal government in the
constitution, such as ratifying a treaty.
Ultra vires
gives a legal justification for the forced cessation of such
action, which might be enforced by the people with the support of a
decision of the
judiciary, in a case of
judicial review. A violation of
rights by an official would be
ultra vires because a
(constitutional) right is a restriction on the powers of
government, and therefore that official would be exercising powers
he doesn't have.
When an official act is unconstitutional, i.e. it is not a power
granted to the government by the Constitution, that act is
null
and void, and the nullification is
ab
initio, that is, from inception, not from the date of the
finding. It was never "law", even though, if it had been a statute
or statutory provision, it might have been adopted according to the
procedures for adopting legislation. Sometimes the problem is not
that a statute is unconstitutional, but the application of it is,
on a particular occasion, and a court may decide that while there
are ways it could be applied that are constitutional, that instance
was not allowed or legitimate. In such a case, only the application
may be ruled unconstitutional. Historically, the remedy for such
violations have been petitions for common law
writs, such as
quo
warranto.
History and development
Early legal codes
Excavations in modern-day Iraq
by Ernest de Sarzec in 1877 found evidence of
the earliest known code of justice, issued by the Sumerian king Urukagina of
Lagash
ca 2300 BC. Perhaps the earliest
prototype for a law of government, this document itself has not yet
been discovered; however it is known that it allowed some rights to
his citizens. For example, it is known that it relieved tax for
widows and orphans, and protected the poor from the
usury of the rich.
After that, many governments ruled by special codes of written
laws.
The
oldest such document still known to exist seems to be the Code of Ur-Nammu of Ur
(ca 2050 BC). Some of the
better-known ancient law codes include the code of Lipit-Ishtar of Isin
, the
code of Hammurabi of Babylonia, the Hittite
code, the Assyrian code and
Mosaic law.
Later constitutions
In 621 BC,
a scribe named Draco wrote the laws
of the city-state of Athens
; and being
quite cruel, this code prescribed the death penalty for any offence. In 594
BC,
Solon, the ruler of Athens, created the
new
Solonian
Constitution. It eased the burden of the workers, however
it made the ruling class to be determined by wealth (
plutocracy), rather than by birth (
aristocracy).
Cleisthenes again reformed the
Athenian constitution and set it on a democratic footing in 508
BC.
Aristotle (
ca 350 BC) was one of
the first in recorded history to make a formal distinction between
ordinary law and constitutional law, establishing ideas of
constitution and
constitutionalism, and attempting to
classify different forms of constitutional government. The most
basic definition he used to describe a constitution in general
terms was "the arrangement of the offices in a state".
In his works
Constitution of
Athens, Politics, and Nicomachean Ethics he explores
different constitutions of his day, including those of Athens,
Sparta, and Carthage
. He
classified both what he regarded as good and bad constitutions, and
came to the conclusion that the best constitution was a mixed
system, including monarchic, aristocratic, and democratic elements.
He also distinguished between citizens, who had the exclusive
opportunity to participate in the state, and non-citizens and
slaves who did not.
The Romans first codified their constitution in 449 BC as the
Twelve Tables. They operated
under a series of laws that were added from time to time, but
Roman law was never reorganised into a
single code until the
Codex
Theodosianus (AD 438); later, in the Eastern Empire the
Codex repetitæ
prælectionis (534) was highly influential throughout
Europe. This was followed in the east by the
Ecloga of
Leo III the Isaurian (740) and
the
Basilica of
Basil I
(878).
The
Edicts of Ashoka
established constitutional principles for the
3rd century BC Maurya king's rule in
Ancient India.
Many of the Germanic peoples that filled the power vacuum left by
the Western Roman Empire in the
Early
Middle Ages codified their laws. One of the first of these
Germanic law codes to be
written was the Visigothic
Code of Euric (471). This was followed by the
Lex Burgundionum, applying
separate codes for Germans and for Romans; the
Pactus Alamannorum; and the
Salic Law of the
Franks, all
written soon after 500. In 506, the
Breviarum or
"Lex Romana"
of
Alaric II, king of the Visigoths,
adopted and consolidated the
Codex Theodosianus together
with assorted earlier Roman laws. Systems that appeared somewhat
later include the
Edictum
Rothari of the
Lombards (643), the
Lex Visigothorum (654),
the
Lex Alamannorum (730) and the
Lex Frisionum (
ca 785). These
continental codes were all composed in Latin, whilst
Anglo-Saxon was used for those of
England, beginning with the Code of
Ethelbert of Kent (602). In ca. 893,
Alfred the Great combined this and
two other earlier Saxon codes, with various Mosaic and Christian
precepts, to produce the
Doom
Book code of laws for England.
Japan
's
Seventeen-article
constitution written in 604, reportedly by Prince Shōtoku, is an early example of a
constitution in Asian political history. Influenced by
Buddhist teachings, the document focuses
more on social morality than institutions of government
per
se and remains a notable early attempt at a government
constitution. Another is the
Constitution of Medina, drafted
by the prophet of
Islam,
Muhammad, in 622. It is said to be one of the
earliest constitutions which guarantees basic rights to religions
and adherents as well as reinforcing a judiciary process regarding
the rules of warfare, tax and civil disputes.
In Wales, the
Cyfraith Hywel was
codified by
Hywel Dda c. 942–950.
The
Pravda Yaroslava, originally combined by Yaroslav the Wise the Grand Prince of Kiev, was granted
to Great
Novgorod
around 1017,
and in 1054 was incorporated into the Russkaya Pravda, that became the law
for all of Kievan Rus. It survived
only in later editions of the 15th century.
The
Gayanashagowa, or 'oral'
constitution of the
Iroquois nation, has
been estimated to date from between 1090 and 1150. It is also
thought to have provided a partial inspiration for the US
Constitution and Bill of Rights, as was recognised by the US
Congress in a resolution passed in October, 1988.
In
England
, Henry I's
proclamation of the Charter of
Liberties in 1100 bound the king for the first time in his
treatment of the clergy and the nobility. This idea was
extended and refined by the English barony when they forced
King John to sign
Magna Carta in 1215. The most important
single article of the
Magna Carta, related to
"
habeas corpus", provided
that the king was not permitted to imprison, outlaw, exile or kill
anyone at a whim—there must be
due
process of law first. This article, Article 39, of the
Magna Carta read:
No free man shall be arrested, or imprisoned, or deprived of
his property, or outlawed, or exiled, or in any way destroyed, nor
shall we go against him or send against him, unless by legal
judgement of his peers, or by the law of the land.
This provision became the cornerstone of English liberty after that
point. The
social contract in the
original case was between the king and the nobility, but was
gradually extended to all of the people.
It led to the system
of Constitutional Monarchy,
with further reforms shifting the balance of power from the
monarchy and nobility to the House of Commons
.
In 1222, Hungarian King
Andrew
II issued the
Golden Bull of
1222.
Between
1220 and 1230, a Saxon
administrator, Eike von Repgow,
composed the Sachsenspiegel,
which became the supreme law used in parts of Germany as late as
1900.
In 1236,
Sundiata Keita presented an
oral constitution federating the
Mali
Empire, called the
Kouroukan
Fouga.
Meanwhile, around 1240, the
Coptic Egyptian
Christian writer,
'Abul
Fada'il Ibn al-'Assal, wrote the
Fetha Negest in
Arabic. 'Ibn al-Assal took his laws partly
from apostolic writings and Mosaic law, and partly from the former
Byzantine codes. There are a few historical records claiming that
this law code was translated into
Ge'ez and entered Ethiopia around 1450 in the
reign of
Zara Yaqob. Even so, its first
recorded use in the function of a constitution (supreme law of the
land) is with
Sarsa Dengel beginning in
1563. The
Fetha Negest remained the supreme law in
Ethiopia until 1931, when a modern-style
Constitution was first granted by
Emperor
Haile Selassie I.
Stefan Dušan, Emperor of Serbs and Greeks,
made and enforced Dušan's Code in
Serbia
, in two
state congresses: in 1349 in Skopje
and in 1354
in Serres
.
In
China
, the Hongwu Emperor
created and refined a document he called Ancestral Injunctions (first
published in 1375, revised twice more before his death in
1398). These rules served in a very real sense as a
constitution for the Ming
Dynasty
for the next 250 years.
Modern constitutions
The
earliest written constitution still governing a sovereign nation
today may be that of San
Marino
. The
Leges Statutae Republicae Sancti
Marini was written in Latin and consists of six books. The
first book, with 62 articles, establishes councils, courts, various
executive officers and the powers assigned to them. The remaining
books cover criminal and civil law, judicial procedures and
remedies. Written in 1600, the document was based upon the
Statuti Comunali (Town Statute) of 1300, itself influenced
by the
Codex Justinianus, and it remains in force
today.
In 1639,
the Colony of Connecticut
adopted the Fundamental Orders, which
is considered the first North American
constitution, and is the basis for every new Connecticut
constitution since, and is also the reason for Connecticut
's nickname, "the Constitution State
". England had two short-lived written
Constitutions during Cromwellian rule, known as the
Instrument of Government (1653),
and
Humble Petition and
Advice (1657).
Agreements and
Constitutions of Laws and Freedoms of the Zaporizian Host
can be acknowledged as the first European constitution in a modern
sense. It was written in 1710 by
Pylyp
Orlyk,
hetman of the
Zaporozhian Host. This
"Constitution of Pylyp
Orlyk" (as it is widely known) was written to establish a
free Zaporozhian-Ukrainian Republic, with the support of
Charles XII of Sweden. It is notable
in that it established a democratic standard for the separation of
powers in government between the legislative, executive, and
judiciary branches, well before the publication of Montesquieu's
Spirit of the Laws. This
Constitution also limited the executive authority of the
hetman, and established a democratically elected Cossack
parliament called the General Council.
However, Orlyk's
project for an independent Ukrainian
State never materialized, and his constitution,
written in exile, never went into effect.
Other examples of early European constitutions were the
Corsican Constitution of 1755 and the
Swedish Constitution of
1772. All of the British colonies in North America that were to
become the 13 original United States, adopted their own
constitutions in 1776 and 1777, during the American Revolution (and
before the later
Articles of
Confederation and
United
States Constitution), with the exceptions of Massachusetts,
Connecticut and Rhode Island.
The Commonwealth of Massachusetts
adopted its Constitution in 1780, the oldest
still-functioning constitution of any U.S. state; while Connecticut
and Rhode Island officially continued to operate under their old
colonial charters, until they adopted their first state
constitutions in 1818 and 1843, respectively.
The United States Constitution, ratified June 21, 1788, was
influenced by the British constitutional system and the political
system of the
United Provinces, plus
the writings of
Polybius,
Locke,
Montesquieu, and
others. The document became a benchmark for
republicanism and codified constitutions
written thereafter. Next were the
Polish-Lithuanian
Commonwealth Constitution of May 3, 1791,
traditionally regarded as world's second and Europe's first, and
the
French Constitution of
September 3, 1791. The
Spanish Constitution of 1812
was the fourth
modern,
democratic and
liberal
world´s national constitution gone into effect.
It served as a model
for other liberal constitutions of several South-European and Latin American nations like Portuguese Constitution of 1822,
constitutions of various Italian
states during Carbonari
revolts (i.e. in the Kingdom
of the Two Sicilies), or Mexican Constitution of
1824. As a result of the Napoleonic Wars, the absolute monarchy of Denmark
lost its personal possession of Norway
to another
absolute monarchy, Sweden
.
However the Norwegians managed to infuse a radically democratic and
liberal
constitution in 1814,
adopting many facets from the American constitution and the
revolutionary French ones; but maintaining a heredetary
monarch limited by the constitution,
like the Spanish one.
Principles of constitutional design
After tribal people first began to live in cities and establish
nations, many of these functioned according to unwritten customs,
while some developed autocratic, even tyrannical monarchs, who
ruled by decree, or mere personal
whim. Such rule led some thinkers to take the position that what
mattered was not the design of governmental institutions and
operations, as much as the character of the rulers. This view can
be seen in
Plato, who called for rule by
"philosopher-kings."Later writers, such as
Aristotle,
Cicero and
Plutarch, would examine designs for
government from a legal and historical standpoint.
The
Renaissance brought a series of
political philosophers who wrote implied criticisms of the
practices of monarchs and sought to identify principles of
constitutional design that would be likely to yield more effective
and just governance from their viewpoints. This began with revival
of the Roman
law of nations concept
and its application to the relations among nations, and they sought
to establish customary "laws of war and peace" to ameliorate wars
and make them less likely. This led to considerations of what
authority monarchs or other officials have and don't have, from
where that authority derives, and the remedies for abusing such
authority.
A seminal juncture in this line of discourse arose in England from
the
Civil War, the
Cromwellian Protectorate, the writings of
Thomas Hobbes,
Samuel Rutherford, the
Levellers,
John Milton,
and
James Harrington, leading to
the debate between
Robert Filmer,
arguing for the divine right of monarchs, on the one side, and on
the other,
Henry Neville,
James Tyrrell,
Algernon Sidney, and
John Locke. What arose from the latter was a
concept of government being erected on the foundations of first, a
state of nature governed by natural laws, then a state of society,
established by a social contract or compact, which bring underlying
natural or social laws, before governments are formally established
on them as foundations.
Along the way several writers examined how the design of government
was important, even if the government were headed by a monarch.
They also classified various historical examples of governmental
designs, typically into democracies, aristocracies, or monarchies,
and considered how just and effective each tended to be and why,
and how the advantages of each might be obtained by combining
elements of each into a more complex design that balanced competing
tendencies. Some, such as
Montesquieu,
also examined how the functions of government, such as legislative,
executive, and judicial, might appropriately be separated into
branches. The prevailing theme among these writers was that the
design of constitutions is not completely arbitrary or a matter of
taste. They generally held that there are underlying principles of
design that constrain all constitutions for every polity or
organization. Each built on the ideas of those before concerning
what those principles might be.
The later writings of
Orestes
Brownson would try to explain what constitutional designers
were trying to do. According to Brownson there are, in a sense,
three "constitutions" involved: The first the
constitution of
nature that includes all of what was called "natural law." The
second is the
constitution of society, an unwritten and
commonly understood set of rules for the society formed by a social
contract before it establishes a government, by which it
establishes the third, a
constitution of government. The
second would include such elements as the making of decisions by
public
conventions called by
public notice and conducted by
established
rules of
procedure. Each constitution must be consistent with, and
derive its authority from, the ones before it, as well as from a
historical act of society formation or constitutional ratification.
Brownson argued that a
state is a
society with effective dominion over a well-defined territory, that
consent to a well-designed constitution of government arises from
presence on that territory, and that it is possible for provisions
of a written constitution of government to be "unconstitutional" if
they are inconsistent with the constitutions of nature or society.
Brownson argued that it is not ratification alone that makes a
written constitution of government legitimate, but that it must
also be competently designed and applied.
Other writers have argued that such considerations apply not only
to all national constitutions of government, but also to the
constitutions of private organizations, that it is not an accident
that the constitutions that tend to satisfy their members contain
certain elements, as a minimum, or that their provisions tend to
become very similar as they are amended after experience with their
use. Provisions that give rise to certain kinds of questions are
seen to need additional provisions for how to resolve those
questions, and provisions that offer no course of action may best
be omitted and left to policy decisions. Provisions that conflict
with what Brownson and others can discern are the underlying
"constitutions" of nature and society tend to be difficult or
impossible to execute, or to lead to unresolvable disputes.
Constitutional design has been treated as a kind of
metagame in which play consists of finding the best
design and provisions for a written constitution that will be the
rules for the game of government, and that will be most likely to
optimize a balance of the utilities of justice, liberty, and
security. An example is the metagame
Nomic.
Governmental constitutions
Most commonly, the term
constitution refers to a set of
rules and principles that define the nature and extent of
government. Most constitutions seek to regulate the relationship
between institutions of the state, in a basic sense the
relationship between the executive, legislature and the judiciary,
but also the relationship of institutions within those branches.
For example, executive branches can be divided into a head of
government, government departments/ministries, executive agencies
and a
civil service/bureaucracy. Most
constitutions also attempt to define the relationship between
individuals and the state, and to establish the broad rights of
individual citizens. It is thus the most basic law of a territory
from which all the other laws and rules are hierarchically derived;
in some territories it is in fact called "
Basic Law."
Key features
The following are features of democratic constitutions that have
been identified by political scientists to exist, in one form or
another, in virtually all national constitutions.
Codification
A fundamental classification is codification or lack of
codification. A codified constitution is one that is contained in a
single document, which is the single source of constitutional law
in a state. An uncodified constitution is one that is not contained
in a single document, consisting of several different sources,
which may be written or unwritten.
Codified constitution
Most states in the world have codified constitutions.
Only three have
uncodified constitutions: Israel
, New Zealand
, and the United Kingdom
.
Codified constitutions are often the product of some dramatic
political change, such as a
revolution.
The process by which a country adopts a constitution is closely
tied to the historical and political context driving this
fundamental change. The legitimacy (and often the longevity) of
codified constitutions has often been tied to the process by which
they are initially adopted.
States that have codified constitutions normally give the
constitution supremacy over ordinary
statute
law. That is, if there is any conflict between a legal statute and
the codified constitution, all or part of the statute can be
declared
ultra vires by a court, and struck down as
unconstitutional. In addition, an
extraordinary procedure is often required to make a
constitutional amendment. These
procedures may involve: obtaining ⅔ majorities in the national
legislature, the consent of regional legislatures, a
referendum process, or some other procedure that
makes obtaining a constitutional amendment more difficult than
passing a simple law.
Constitutions may also provide that their most basic principles can
never be abolished, even by amendment. In case a formally valid
amendment of a constitution infringes these principles protected
against any amendment, it may constitute a so-called
unconstitutional constitutional law.
Codified constitutions normally consist of a ceremonial
preamble, which sets forth the goals of the state
and the motivation for the constitution, and several
articles containing the substantive provisions. The
preamble, which is omitted in some constitutions, may contain a
reference to God
and/or to fundamental values of the state such as liberty,
democracy or human rights.
Uncodified constitution
Uncodified constitutions (also known as unwritten constitutions)
are the product of an "evolution" of laws and conventions over
centuries. By contrast to codified constitutions, in the
Westminster tradition that originated in
England, uncodified constitutions include written sources: e.g.
constitutional statutes enacted by the Parliament (
House of Commons
Disqualification Act 1975,
Northern Ireland Act 1998,
Scotland Act 1998,
Government of Wales Act 1998,
European Communities Act
1972 and
Human Rights Act
1998); and also unwritten sources:
constitutional
conventions, observation of
precedents,
royal
prerogatives,
custom and
tradition, such as always holding the General Election on
Thursdays; together these constitute the
British constitutional law.
In the
days of the British Empire, the
Judicial Committee of the Privy
Council
acted as the constitutional court for many of the
British colonies such as Canada
and Australia which had federal
constitutions.
In states using uncodified constitutions, the difference between
constitutional law and
statutory law (i.e.
law applying to any area of governance) in legal terms is nil. Both
can be altered or repealed by a simple majority in Parliament. In
practice, democratic governments do not use this opportunity to
abolish all civil rights, which in theory they could do, but the
distinction between regular and constitutional law is still
somewhat arbitrary, usually depending on the traditional devotion
of popular opinion to historical principles embodied in important
past legislation. For example, several
Acts of Parliament such as the
Bill of Rights, Human Rights Act and,
prior to the creation of Parliament, Magna Carta are regarded as
granting fundamental rights and principles which are treated as
almost constitutional.
See also:
Fundamental Laws of
England
Written versus unwritten / codified versus uncodified
The term
written constitution is used to describe a
constitution that is entirely written, which by definition includes
every codified constitution. However, some constitutions are
entirely written but, strictly speaking, not entirely codified. For
example, in the Constitution of Australia, most of its fundamental
political principles and regulations concerning the relationship
between branches of government, and concerning the government and
the individual are codified in a single document, the Constitution
of the Commonwealth of Australia. However, the presence of statutes
with constitutional significance, namely the
Statute of Westminster, as adopted by
the Commonwealth in the
Statute of Westminster
Adoption Act 1942, and the
Australia Act 1986 means that Australia's
constitution is not contained in a single constitutional document.
The
Constitution of Canada,
which evolved from the
British North America Acts until
severed from nominal British control by the
Canada Act 1982 (analogous to the Australia
Act 1986), is a similar example.
The term
written constitution is often used
interchangeably with
codified constitution, and similarly
unwritten constitution is used interchangeably with
uncodified constitution. As shown above, this usage with
respect to written and codified constitutions can be inaccurate.
Strictly speaking,
unwritten constitution is never an
accurate synonym for
uncodified constitution, because all
modern democratic constitutions consist of some written sources,
even if they have no different technical status than ordinary
statutes. Another term used is
formal (written)
constitution, for example in the following context: "The
United Kingdom has no formal constitution." This usage is correct,
but it should be construed to mean that the United Kingdom does not
have a codified constitution, not that the UK has no constitution
of any kind, which would not be correct.
A constitution can be written but not codified. Codified would
suggest written in one document. This means that a constitution
that has a number of written sources is still written, but not
codified.
Constitutions may provide that, for the purpose of clarity, they
may be amended only by a law expressly amending or supplementing
the Constitutional text itself (otherwise the relevant law would
not enjoy the status of constitutinal law). The German Federal
Constitution does expressly, and the constitutional tradition of
the German federal states do at least in an implied manner, provide
for this.
Entrenchment
The presence or lack of entrenchment is a fundamental feature of
constitutions. Entrenchment in general means that amending a
constitution is a more difficult process than that for modifying
ordinary laws. Some constitutions also contain
entrenched clauses, i.e. articles stating
that certain modifications are either more difficult to make than
normal modifications, or impossible to make at all. Entrenchment is
an inherent feature in most written constitutions. The US
constitution is an example of an entrenched constitution, and the
UK constitution is an example of a constitution that is not
entrenched.
The procedure for modifying a constitution is often called
amending. Sometimes, the reason for this is that the
constitution is considered supreme law, such as according to the
supremacy clause in the US
constitution. Regardless of whether a constitution has this
technical status, all states with an entrenched constitution
recognise the difference between constitutional law and ordinary
statutory law. Procedures for ratification of constitutional
amendments vary between states. In a federal system of government,
the approval of a majority of state/provincial legislatures may be
required. Alternatively, a national referendum may be required in
some states, such as in Australia.
In constitutions that are not entrenched, no special procedure is
required for modification. In the small number of countries with
un-entrenched constitutions, the lack of entrenchment is because
the constitution is not recognised with any higher legal status
than ordinary
statutes.
In the UK, for
example, passing laws which modify sources of the constitution,
whether they are written or unwritten, are passed on a simple
majority in Parliament
. The concept of "amendment" does not apply,
as the constitution can be altered as easily in terms of procedure
as any national law.
Absolutely unmodifiable articles
The strongest level of
entrenchment exists in those constitutions
that state that some of their most fundamental principles are
absolute, i.e. certain articles may not be amended under any
circumstances, except through the assertion of the
right of revolution. An amendment of a
constitution that is made consistently with that constitution,
except that it violates the absolute non-modifiability, can be
called an
unconstitutional constitutional law.
One example of absolute unmodifiability is the
German Federal
Constitution. This states in Article 20 that the country has to
be a democratic, federal and social republic, and in Article 1 that
the state powers have to: (i) leave dignity of man inviolable; (ii)
where rule of law prevails; and (iii) where sovereignty lies with
the people.
Article 79,
Section 3 states that these articles cannot be changed, even
according to the methods of amendment defined elsewhere in the
document.
Another example is the
Constitution of Honduras, which has
an article stating that the article itself and certain other
articles cannot be changed in any circumstances. Article 374 of the
Honduras Constitution asserts this unmodifiability, stating, "It is
not possible to reform, in any case, the preceding article, the
present article, the constitutional articles referring to the form
of government, to the national territory, to the presidential
period, the prohibition to serve again as President of the
Republic, the citizen who has performed under any title in
consequence of which she/he cannot be President of the Republic in
the subsequent period." This unmodifiability article has played an
important role in the
2009 Honduran constitutional
crisis.
Distribution of sovereignty
- See also: Federalism
Constitutions also establish where sovereignty is located in the
state. There are three basic types of distribution of sovereignty:
federal, unitary and confederal. A
federal
system of government will inevitably have a constitution that
recognizes the division of sovereignty between the centre and
peripheral/provincial regions of the state. The
Canadian Constitution is an example of
this, dividing power between the federal government and the
provinces. A unitary constitution recognises that sovereignty
resides only in the centre of the state. In the UK, the
constitutional doctrine of
Parliamentary sovereignty dictates
than sovereignty is ultimately contained at the centre.
However,
some unitary states (Spain
is an
example) may delegate more and more power to sub-national
governments until the state functions in practice much like a
federal state. Confederal constitutions are rare, and there
is often dispute to whether so-called "confederal" states are
actually federal. In a confederacy, sovereignty is located in
peripheral regions/provinces and only limited power is granted to
the centre. A historical example of a confederal constitution is
the
Swiss Federal
Constitution.
Separation of powers
Constitutions usually explicitly divide power between various
branches of government. The standard model, described by the
Baron de
Montesquieu, involves three branches of government:
executive,
legislative and
judicial. Some constitutions include additional
branches, such as an
auditory branch.
Constitutions vary extensively as to the degree of
separation of powers between these
branches.
Lines of accountability
In
presidential and
semi-presidential systems of government,
department secretaries/ministers are accountable to the
president, who has patronage powers to appoint and
dismiss ministers. The president is accountable to the people in an
election.
In
parliamentary systems, ministers
are accountable to
Parliament, but it is
the
prime minister who appoints and
dismisses them.
In Westminster systems, this power derives
from the monarch (or head of state in Westminster-style republics,
such as India
and the
Republic of
Ireland
), a component of Parliament. There is the
concept of a
vote of no
confidence in many countries with parliamentary systems, which
means that if a majority of the legislature vote for a no
confidence motion, then the government must resign, and a new one
will be formed, or parliament will be dissolved and a general
election called.
Façade constitutions
Italian political theorist
Giovanni
Sartori noted the existence of national constitutions which are
a façade for authoritarian sources of power. While such documents
may express respect for
human rights or
establish an independent judiciary, they may be ignored when the
government feels threatened or entirely dishonoured in practice. An
extreme example was the
Constitution of the Soviet
Union that on paper supported
freedom of assembly or
freedom of speech; however, citizens who
acted accordingly were summarily
imprisoned. The example demonstrates that
the protections and benefits of a constitution are provided less
through its written terms than through deference by government and
society to its principles.
Constitutional courts
The constitution is often protected by a certain legal body in each
country with various names, such as
supreme,
constitutional or
high court. This court judges
the compatibility of legislation with the provisions and principles
of the constitution, which is termed "constitutionality."
Especially important is the court's responsibility to protect
constitutionally established rights and freedoms. In constitutions
without the concept of supreme law, such as the United Kingdom
constitution, the concept of "constitutionality" has little
meaning, and constitutional courts do not exist.A "constitutional
violation" is an action or legislative act that is judged by a
constitutional court to be contrary to the constitution, that is,
"unconstitutional." An example of constitutional violation by the
executive could be a
politician who
abuses the powers of his constitutionally-established office. An
example of constitutional violation by the legislature is an
attempt to pass a law that would contradict the constitution,
without first going through the proper constitutional amendment
process.
A constitutional court is normally the
court of last resort, the highest
judicial body in the government. The process of judicial review is
then integrated into the system of
courts of appeal.
This is the case, for
example, with the Supreme Court of the United
States
or Supreme Court of India
. Cases must normally be heard in lower
courts before being brought before the Supreme Court, except cases
for which the Supreme Court has
original jurisdiction.
Some other countries
dedicate a special court solely to the protection of the
constitution, as with the German
Constitutional Court
. Most constitutional courts are powerful
instruments of judicial review, with the power to declare laws
"unconstitutional," that is, incompatible with the constitution.
The effect of this ruling varies between governments, but it is
common for the courts' action to rule a law unenforceable, as is
the case in the United States. However, many courts have the
problem of relying on the legislative and executive branches'
co-operation to properly enforce their decisions. For example, in
the United States, the Supreme Court's ruling overturning the
"
separate but equal" doctrine in
the 1950s depended on individual states co-operation to enforce.
Some failed to do so, prompting the federal government to
intervene. Other countries, such as France, have a
Constitutional Council
which may only judge the constitutionality of laws before the
ratification process.
Some countries, mainly those with uncodified constitutions, have no
such courts at all – for example, as the United Kingdom
traditionally functions under the principle of
parliamentary sovereignty: the
legislature has the power to enact any law it wishes.
However, through its
membership in the European Union, the UK is now subject to the
jurisdiction of European Union
law and the European Court
of Justice; similarly, by acceding to the Council of Europe's European Convention on Human
Rights, it is subject to the European
Court of Human Rights
. In effect, these bodies can invalidate or
interpret UK legislation for compliance with international treaty
obligations, first established as a principle by the
Factortame case.
See also
Judicial philosophies of constitutional
interpretation (note: generally specific to United States constitutional
law)
References
- The historical and institutional context of Roman
law, George Mousourakis, 2003, p. 243
- Pylyp Orlyk Constitution, European
commission for democracy through law (Venice Commission) The
Constitutional Heritage of Europe. Montpellier, 22–23 November
1996.
- Isaac Kramnick, Introduction,
- John Markoff describes the advent
of modern codified national constitutions as one of the milestones
of democracy, and states that "The first European country to follow
the U.S. example was Poland in 1791." John Markoff, Waves of
Democracy, 1996, ISBN 0-8039-9019-7, p.121.
- Aristotle, by Francesco Hayez
- Relectiones, Franciscus de Victoria (lect. 1532,
first pub. 1557).
- The Law of War and
Peace[1], Hugo Grotius (1625)
- Vindiciae Contra Tyrannos (Defense of Liberty Against
Tyrants), "Junius Brutus" (Orig. Fr. 1581, Eng. tr. 1622,
1689)
- The American Republic: its Constitution, Tendencies,
and Destiny, O. A. Brownson (1866)
- Principles of Constitutional Design, Donald S. Lutz
(2006) ISBN 0-521-86168-3
- The Paradox of Self-Amendment, byPeter Suber (1990)
ISBN 0-8204-1212-0
- Article 79 section 1 of the Basic Law for the
Federal Republic of Germany.
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