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Constitution

From Academic Kids

For the entry on the naval ship U.S.S. Constitution, see: USS Constitution.
For the entry on the specific national constitution, see: List of national constitutions.

A Constitution is a system, often codified in a written document, which establishes the fundamental rules and principles by which an organisation is governed. In the case of nation states, this term refers specifically to a national constitution, which defines its nation's fundamental political principles and establishes the power and duties of each government. Most national constitutions also guarantee certain rights to the people. Historically, before the evolution of modern codified national constitutions, the term constitution could be applied to any important law.

Constitutions are found in many organisations. They are found extensively in government, at supranational (e.g. United Nations Charter), national (e.g. Constitution of France) and sub-national/provincial (e.g. Constitution of Maryland) levels. They are found in many political groups, such as political parties and pressure groups, including trade unions (labor unions). There are many non-political groups and entities that may have constitutions of a sort such as companies and Voluntary organisations.

Contents

Etymology

The term constitution comes from the Latin constitutio, which referred to any important law, usually issued by the emperor, and was widely used in canon law to indicate certain relevant decisions, mainly of the pope.

General features

Generally, all constitutions confer specific powers to an organisation on the condition that it abides by this constitution or charter limitation. In modern constitutions, there is usually a sense of the constitution's legitimacy being derived from wide consensus, whether the constitution in question is a constitution of government or just the constitution of a private club. The Latin term ultra vires describes activities that fall outside an organisation's or legislative body's legal or constitutional authority. For example, a students' union may be prohibited as an organisation 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. 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. For example, in the United States, any attempt by a state legislature to ratify a treaty with a foreign nation would be considered ultra vires of Congress' constitutional authority, being contrary to the constitution. In both cases, "ultra vires" gives a legal justification for the forced cessation of such action, which would be enforced by the judiciary in government.

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 an area from which all the other laws and rules are hierarchically derived; in some areas it is in fact called "Basic Law".

Evolution of governmental constitutions were important milestones in the history of democracy. Countries that adopt codified constitutions usually do so by a process of ratification. Uncodified constitutions evolve over time, responding to political change, so there is no action of ratification. The process by which a country adopts a constitution is closely tied to the historical and political context driving this fundamental change. When one compares the elaborate convention method adopted in the United States with the MacArthur inspired post war constitution foisted on Japan, this becomes evident. Arguably the legitimacy (and often the longevity) of codified constitutions are tied to the process by which they are initially adopted.

Key features

The following are features of democratic constitutions which 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. The classic example of this is the Constitution of the United States. An uncodified constitution is one that is not contained in a single document, consisting of several different sources, which may be written or unwritten. The Constitution of Australia is an example of a constitution in which constitutional law mainly derives from a single written document, the Constitution of the Commonwealth of Australia, but other written documents are also considered part of the constitution. The Constitution of the United Kingdom is an example of an uncodified constitution which consists of both written and unwritten sources and has no single written fundamental document.

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 means that Australia's constitution is not completely contained in a single constitutional document, so it differs in codification from the Constitutution of the United States.

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 written constitution, not that the UK has no constitution of any kind, which would not be correct.

Legal status

The presence or lack of entrenchment is a fundamental feature of constitutions. Entrenchment refers to whether the constitution is legally protected from modification without a procedure of constitutional amendment. 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. A related feature is the legal status of the constitution, with relation to other laws. Some constitutions are considered supreme law, that is the highest form of law in that particular state.

The consequences of entrenchment are reflected in the differences in the procedures for modifying a constitution in an entrenched and in an un-entrenched constitution. Modification of an entrenched constitution will require more than the amendment proposed being passed by the national legislature, it will require wider approval. Sometimes, the reason for this is that the constitution is considered supreme law, such as according to the supremacy clause in the United States constitution. Regardless of whether a constitution has this technical status, all states with an entrenched constitution recongise the difference between constitutional law and ordinary statutory law. The procedure for modifying a constitution is often called amendment. Procedures for ratification of constitutional amendments vary between states. In a federal system of government such as the United States and Australia, the approval of a majority of state/provincial legislatures is required. A national referendum may be required in some states, such as 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. In entrenched constitutions, a constitutional court usually exists to enforce the constitution if a case is brought before it, and some constitutional courts, such as the US Supreme Court can declare laws unenforceable that are in its interpretation "unconstitutional". In countries with un-entrenched constitutions, a constitutional court similar to the US Supreme Court could not exist, since "constitutional law" is of no higher status than other national law.

Distribution of sovereignty

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 recognises the division of sovereignty between the centre and peripheral/provincial regions of the state. A unitary constitution will recognise that sovereignty resides only in the centre of the state. The US has a federal constitution, since different powers are enumerated to the centre (federal government) rather than to its peripheral regions (states). In the UK, the constitutional doctrine of Parliamentary sovereignty dictates than sovereignty is ultimately contained at the centre. In the UK, legally, local government and devolved government (such as the Scottish Parliament) could be abolished by Parliament. The amount of power government institutions below Parliament have totally depends on Parliament. In the United States, it is impossible for the federal government to remove enumerated power from or abolish any or one of the states, and it is impossible for a state to secede from the Union, due to the federal design of the constitution, together with the doctrine of entrenchment. 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 peripharal regions/provinces and only limited power is granted to the centre. A historical example of a confederal constitution is the Articles of Confederation, the constitution of the US between 1777 and 1788. Confederal constitutions produce weak central government, which is why such constitutions are very rare in the modern world. Under the Articles of Confederation for example, there was no executive branch, and Congress was much weaker than it is under the US Constitution.

Other features

Other key features of most constitutions include the extent of separation of powers and the lines of accountability in government.

Separation of power refers to the constitutional separation of the executive, legislative and judiciary branches of government. The extent of separation varies significantly between constitutions. The United States constitution has a full separation of powers, with each branch having particular enumerated powers. For instance, Congress, the US legislature, has the power of impeachment, which cannot be exercised by another branch. By contrast, the United Kingdom constitution has a practical fusion of powers between the executive and legislature. This is inherent in parliamentary systems of government, since the executive is drawn from the legislature. In the UK, the executive is often said to dominate Parliament, the UK legislature.

Lines of accountability are a common feature in all democratic constitutions. In presidential systems of government such as the United States, and semi-presidential systems such as France, 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 such as the United Kingdom and Australia, ministers are accountable to Parliament, but it is the Prime Minister who appoints and dismisses them (in Westminster systems he derives this power from the monarch, 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.

Codified constitution

Most states in the world have a codified constitution. Codified constitutions, unlike uncodified constitutions are the not the product of an "evolution" of laws and conventions over centuries, they are usually the product of dramatic political change, such as a revolution. The US constitution, the most famous codified constitution, was written and subsequently ratified less than 25 years after the American Revolution.

The most obvious advantage of a codified constitution is the coherent and easily understood body of rules. A codified constitution at the least is simple to read, being a single document. The US constitution, for example, is only about 7,000 words long, and can be bought in most bookshops in the United States, whereas an uncodified constitution such as that of the UK is often ambiguous and difficult to interpret even for politicians.

Although (entrenched) codified constitutions are rigid in comparison to (un-entrenched) uncodified constitutions, codified constitutions still yield a potentially wide range of interpretations by constitutional courts. For example, the US Supreme Court declared racial segregation to be constitutional in Plessy v. Ferguson (1896), declaring an interpretation of "separate but equal". However, in the 1954 Brown v. Board of Education of Topeka case, the Supreme Court declared that "separate educational facilities are inherently unequal", starting a period of federal government action that removed all de-jure racial segregation and discrimination. Sometimes, the nature of the wide range of interpretations that seem possible from constitutional courts are controversial. In the US, those who support judicial decisions being made solely on the original text of the constitution, without considering "implied" principles, are called "strict constructionists".

Uncodified constitution

By contrast, in the Westminster tradition which originated in England, the uncodified constitution includes written sources but also unwritten constitutional conventions, observation of precedents, royal prerogatives and custom; Together these constituted 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.

The inaccurate phrase no constitution is sometimes used when referring to a country that has an uncodified constitution. Although rules defining the structure, power and role of government are not to be found in a clear, coherent document, such as Article One of the United States Constitution, in an uncodified constitution, that does not mean they do not exist. Instead they are to be found in a variety of different documents and conventions, which together form an uncodified constitution, such as that of the United Kingdom. Every country with a government must have some form of constitution; there must be conventions or documents that attempt to define how the country is governed.

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 contary 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. 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.

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 Community 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 are constitutional courts that can invalidate or interpret UK legislation, first established as a principle by the Factortame case.

Constitutional government

Constitutionalism is a system of government which exercises its powers with respect to the limitations of constitutional principles. Constitutional government is a political science term which refers to a government acting within constitutional law and the constitution. The constitutional government is typically clear in countries with a codified constitution, such as the United States. In such countries, constitutional limitation of government power, and principles of individual freedom mean that government must act in a manner that (within reason) respects these principles, which are often deeply embedded into the political culture. In countries with an uncodified constitution, there is less of a concept and adherence to constitutional government, since there is no distinction between constitutional and statutory law, and constitutional reform can be passed simply by a majority in Parliament.

History and development

Aristotle was the first figure in recorded history to formally make the distinction between law and constitutional law. He was the first to establish the ideas of constitution, the idea of constitutionalism and attempt to classify different forms of constitution/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 work Constitution of Athens, Politics, Nicomachean Ethics explored different forms of constitutions. 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, which had the exclusive opportunity to participate in the state, and non-citizens and slaves which did not.

The Covenant of Medina or Constitution of Medina is the first example of a written, codified constitution, originating with the Muslim Prophet, Muhammad.

The idea spread to the west with King Henry I of England's proclamation of the Charter of Liberties in 1100, which 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 John I of England to sign the 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. The "Due Process" clause in the Fifth Amendment of the U.S. Bill of Rights is directly descended from Article 39 of the Magna Carta, which 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 (or conflict about it) formed the core of the English Monarchy after that point. Though the social contract in this case was between the king and the nobility, it was gradually extended to all of the people, and led to the development of the Constitutional Monarchy. The United States, as they broke away from this monarchy in 1787, codified their own constitution, rejecting the monarchy and the hereditary nobility, but keeping, in large part, the parliamentary system developed in England. England's constitutional law meanwhile developed gradually by constant modification of the original Magna Carta, with the balance of power always shifting away from the monarchy and the nobility, toward the people, and eventually reaching a very similar form. The United States Constitution of 1787 (ratified 1789) which was heavily influenced by the (considerably modified) Magna Carta, plus the writings of Polybius, Locke, Montesquieu, and others, is often considered the oldest codified national constitution in the modern sense, and in any case remains the oldest such document still in effect. The oldest codified constitution may be the Corsican Constitution of 1755 created by Pasquale Paoli. Other similar codified constitutions followed in Europe shortly thereafter, including the May Constitution of the Polish-Lithuanian Commonwealth in 1791 and the French Constitution of 1791 (although neither remained in effect for more than a year).

In democratic systems, the constitution is considered a fundamental social contract among citizens (following Rousseau's writings), where government receives its powers from rule, and is usually protected against constitutional amendments and by special courts (see below). The oldest functioning written constitution of government is the Constitution of the Commonwealth of Massachusetts, written in 1780.

See also

Judicial philosophises of constitutional interpretation

Other

External links

Some national constitutions

Other constitutions

References

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