What the word constitution means

A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed.^[1]

When these principles are written down into a single document or set of legal documents, those documents may be said to embody a written constitution; if they are encompassed in a single comprehensive document, it is said to embody a codified constitution. The Constitution of the United Kingdom is a notable example of an uncodified constitution; it is instead written in numerous fundamental Acts of a legislature, court cases, or treaties.^[2]

Constitutions concern different levels of organizations, from sovereign countries to companies and unincorporated associations. A treaty that establishes an international organization is also its constitution, in that it would define how that organization is constituted. Within states, a constitution defines the principles upon which the state is based, the procedure in which laws are made and by whom. Some constitutions, especially codified constitutions, also act as limiters of state power, by establishing lines which a state’s rulers cannot cross, such as fundamental rights.

The Constitution of India is the longest written constitution of any country in the world,^[3] with 146,385 words^[4] in its English-language version,^[5] while the Constitution of Monaco is the shortest written constitution with 3,814 words.^[6][4] The Constitution of San Marino might be the world’s oldest active written constitution, since some of its core documents have been in operation since 1600, while the Constitution of the United States is the oldest active codified constitution. The historical life expectancy of a constitution since 1789 is approximately 19 years.^[7]

Etymology

The term constitution comes through French from the Latin word constitutio, used for regulations and orders, such as the imperial enactments (constitutiones principis: edicta, mandata, decreta, rescripta).^[8] Later, the term was widely used in canon law for an important determination, especially a decree issued by the Pope, now referred to as an apostolic constitution.

William Blackstone used the term for significant and egregious violations of public trust, of a nature and extent that the transgression would justify a revolutionary response. The term as used by Blackstone was not for a legal text, nor did he intend to include the later American concept of judicial review: «for that were to set the judicial power above that of the legislature, which would be subversive of all government».^[9]

General features

Generally, every modern written constitution confers specific powers on an organization or institutional entity, established upon the primary condition that it abides by the constitution’s limitations. According to Scott Gordon, a political organization is constitutional to the extent that it «contain[s] institutionalized mechanisms of power control for the protection of the interests and liberties of the citizenry, including those that may be in the minority».^[10]

Activities of officials within an organization or polity that fall within the constitutional or statutory authority of those officials are termed «within power» (or, in Latin, intra vires); if they do not, they are termed «beyond power» (or, in Latin, ultra vires). 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 to be 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 sovereign states would be a provincial parliament in a federal state trying to legislate in an area that the constitution allocates exclusively to the federal parliament, such as ratifying a treaty. Action that appears to be beyond power may be judicially reviewed and, if found to be beyond power, must cease. Legislation that is found to be beyond power will be «invalid» and of no force; this applies to primary legislation, requiring constitutional authorization, and secondary legislation, ordinarily requiring statutory authorization. In this context, «within power», intra vires, «authorized» and «valid» have the same meaning; as do «beyond power», ultra vires, «not authorized» and «invalid».

In most but not all modern states the constitution has supremacy over ordinary statutory law (see Uncodified constitution below); in such states 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 that 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 that application may be ruled unconstitutional. Historically, the remedies for such violations have been petitions for common law writs, such as quo warranto.

Scholars debate whether a constitution must necessarily be autochthonous, resulting from the nations «spirit». Hegel said «A constitution…is the work of centuries; it is the idea, the consciousness of rationality so far as that consciousness is developed in a particular nation.»^[11]

History and development

Since 1789, along with the Constitution of the United States of America (U.S. Constitution), which is the oldest and shortest written constitution still in force,^[12] close to 800 constitutions have been adopted and subsequently amended around the world by independent states.^[13]

In the late 18th century, Thomas Jefferson predicted that a period of 20 years would be the optimal time for any constitution to be still in force, since «the earth belongs to the living, and not to the dead».^[14] Indeed, according to recent studies,^[13] the average life of any new written constitution is around 19 years. However, a great number of constitutions do not last more than 10 years, and around 10% do not last more than one year, as was the case of the French Constitution of 1791.^[13] By contrast, some constitutions, notably that of the United States, have remained in force for several centuries, often without major revision for long periods of time.

The most common reasons for these frequent changes are the political desire for an immediate outcome^{[clarification needed]} and the short time devoted to the constitutional drafting process.^[15] A study in 2009 showed that the average time taken to draft a constitution is around 16 months,^[16] however there were also some extreme cases registered. For example, the Myanmar 2008 Constitution was being secretly drafted for more than 17 years,^[16] whereas at the other extreme, during the drafting of Japan’s 1946 Constitution, the bureaucrats drafted everything in no more than a week. Japan has the oldest unamended constitution in the world.^[17] The record for the shortest overall process of drafting, adoption, and ratification of a national constitution belongs to the Romania’s 1938 constitution, which installed a royal dictatorship in less than a month.^[18] Studies showed that typically extreme cases where the constitution-making process either takes too long or is extremely short were non-democracies.^[19] Constitutional rights are not a specific characteristic of democratic countries. Non-democratic countries have constitutions, such as that of North Korea, which officially grants every citizen, among other rights, the freedom of expression.^[20]

Pre-modern constitutions

Ancient

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 c. 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 (c. 2050 BC). Some of the better-known ancient law codes are the code of Lipit-Ishtar of Isin, the code of Hammurabi of Babylonia, the Hittite code, the Assyrian code, and Mosaic law.

In 621 BC, a scribe named Draco codified the oral laws of the city-state of Athens; this code prescribed the death penalty for many offenses (thus creating the modern term «draconian» for very strict rules). In 594 BC, Solon, the ruler of Athens, created the new Solonian Constitution. It eased the burden of the workers, and determined that membership of the ruling class was to be based on wealth (plutocracy), rather than on birth (aristocracy). Cleisthenes again reformed the Athenian constitution and set it on a democratic footing in 508 BC.

Aristotle (c. 350 BC) was the first 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 what he regarded as 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 right to participate in the state, and non-citizens and slaves, who did not.

The Romans initially codified their constitution in 450 BC as the Twelve Tables. They operated under a series of laws that were added from time to time, but Roman law was not reorganised into a single code until the Codex Theodosianus (438 AD); 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 India. For constitutional principles almost lost to antiquity, see the code of Manu.

Early Middle Ages

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 AD). 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 (c. 785). These continental codes were all composed in Latin, while Anglo-Saxon was used for those of England, beginning with the Code of Æthelberht of Kent (602). Around 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 on institutions of government, and remains a notable early attempt at a government constitution.

The Constitution of Medina (Arabic: صحیفة المدینه, Ṣaḥīfat al-Madīna), also known as the Charter of Medina, was drafted by the Islamic prophet Muhammad after his flight (hijra) to Yathrib where he became political leader. It constituted a formal agreement between Muhammad and all of the significant tribes and families of Yathrib (later known as Medina), including Muslims, Jews, and pagans.^[21][22] The document was drawn up with the explicit concern of bringing to an end the bitter intertribal fighting between the clans of the Aws (Aus) and Khazraj within Medina. To this effect it instituted a number of rights and responsibilities for the Muslim, Jewish, and pagan communities of Medina bringing them within the fold of one community – the Ummah.^[23] The precise dating of the Constitution of Medina remains debated, but generally scholars agree it was written shortly after the Hijra (622).^[24]

In Wales, the Cyfraith Hywel (Law of Hywel) was codified by Hywel Dda c. 942–950.

Middle Ages after 1000

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; it became the law for all of Kievan Rus’. It survived only in later editions of the 15th century.

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.

The Nomocanon of Saint Sava (Serbian: Законоправило/Zakonopravilo)^[25][26][27] was the first Serbian constitution from 1219. St. Sava’s Nomocanon was the compilation of civil law, based on Roman Law, and canon law, based on Ecumenical Councils. Its basic purpose was to organize the functioning of the young Serbian kingdom and the Serbian church. Saint Sava began the work on the Serbian Nomocanon in 1208 while he was at Mount Athos, using The Nomocanon in Fourteen Titles, Synopsis of Stefan the Efesian, Nomocanon of John Scholasticus, and Ecumenical Council documents, which he modified with the canonical commentaries of Aristinos and Joannes Zonaras, local church meetings, rules of the Holy Fathers, the law of Moses, the translation of Prohiron, and the Byzantine emperors’ Novellae (most were taken from Justinian’s Novellae). The Nomocanon was a completely new compilation of civil and canonical regulations, taken from Byzantine sources but completed and reformed by St. Sava to function properly in Serbia. Besides decrees that organized the life of church, there are various norms regarding civil life; most of these were taken from Prohiron. Legal transplants of Roman-Byzantine law became the basis of the Serbian medieval law. The essence of Zakonopravilo was based on Corpus Iuris Civilis.

Stefan Dušan, emperor of Serbs and Greeks, enacted Dušan’s Code (Serbian: Душанов Законик/Dušanov Zakonik)^[28] in Serbia, in two state congresses: in 1349 in Skopje and in 1354 in Serres. It regulated all social spheres, so it was the second Serbian constitution, after St. Sava’s Nomocanon (Zakonopravilo). The Code was based on Roman-Byzantine law. The legal transplanting within articles 171 and 172 of Dušan’s Code, which regulated the juridical independence, is notable. They were taken from the Byzantine code Basilika (book VII, 1, 16–17).

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.

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.

In the Principality of Catalonia, the Catalan constitutions were promulgated by the Court from 1283 (or even two centuries before, if Usatges of Barcelona is considered part of the compilation of Constitutions) until 1716, when Philip V of Spain gave the Nueva Planta decrees, finishing with the historical laws of Catalonia. These Constitutions were usually made formally as a royal initiative, but required for its approval or repeal the favorable vote of the Catalan Courts, the medieval antecedent of the modern Parliaments. These laws, like other modern constitutions, had preeminence over other laws, and they could not be contradicted by mere decrees or edicts of the king.

The Kouroukan Founga was a 13th-century charter of the Mali Empire, reconstructed from oral tradition in 1988 by Siriman Kouyaté.^[29]

The Golden Bull of 1356 was a decree issued by a Reichstag in Nuremberg headed by Emperor Charles IV that fixed, for a period of more than four hundred years, an important aspect of the constitutional structure of the Holy Roman Empire.

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 as a constitution for the Ming Dynasty for the next 250 years.

The oldest written document still governing a sovereign nation today is that of San Marino.^[30] 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 and 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 1392 the Carta de Logu was legal code of the Giudicato of Arborea promulgated by the giudicessa Eleanor. It was in force in Sardinia until it was superseded by the code of Charles Felix in April 1827. The Carta was a work of great importance in Sardinian history. It was an organic, coherent, and systematic work of legislation encompassing the civil and penal law.

The Gayanashagowa, the oral constitution of the Haudenosaunee nation also known as the Great Law of Peace, established a system of governance as far back as 1190 AD (though perhaps more recently at 1451) in which the Sachems, or tribal chiefs, of the Iroquois League’s member nations made decisions on the basis of universal consensus of all chiefs following discussions that were initiated by a single nation. The position of Sachem descends through families and are allocated by the senior female clan heads, though, prior to the filling of the position, candidacy is ultimately democratically decided by the community itself.^[31]

Modern constitutions

In 1634 the Kingdom of Sweden adopted the 1634 Instrument of Government, drawn up under the Lord High Chancellor of Sweden Axel Oxenstierna after the death of king Gustavus Adolphus, it can be seen as the first written constitution adopted by a modern state.

In 1639, the Colony of Connecticut adopted the Fundamental Orders, which was 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».

The English Protectorate that was set up by Oliver Cromwell after the English Civil War promulgated the first detailed written constitution adopted by a modern state;^[32] it was called the Instrument of Government. This formed the basis of government for the short-lived republic from 1653 to 1657 by providing a legal rationale for the increasing power of Cromwell after Parliament consistently failed to govern effectively. Most of the concepts and ideas embedded into modern constitutional theory, especially bicameralism, separation of powers, the written constitution, and judicial review, can be traced back to the experiments of that period.^[33]

Drafted by Major-General John Lambert in 1653, the Instrument of Government included elements incorporated from an earlier document «Heads of Proposals»,^[34][35] which had been agreed to by the Army Council in 1647, as a set of propositions intended to be a basis for a constitutional settlement after King Charles I was defeated in the First English Civil War. Charles had rejected the propositions, but before the start of the Second Civil War, the Grandees of the New Model Army had presented the Heads of Proposals as their alternative to the more radical Agreement of the People presented by the Agitators and their civilian supporters at the Putney Debates.

On January 4, 1649, the Rump Parliament declared «that the people are, under God, the original of all just power; that the Commons of England, being chosen by and representing the people, have the supreme power in this nation».^[36]

The Instrument of Government was adopted by Parliament on December 15, 1653, and Oliver Cromwell was installed as Lord Protector on the following day. The constitution set up a state council consisting of 21 members while executive authority was vested in the office of «Lord Protector of the Commonwealth.» This position was designated as a non-hereditary life appointment. The Instrument also required the calling of triennial Parliaments, with each sitting for at least five months.

The Instrument of Government was replaced in May 1657 by England’s second, and last, codified constitution, the Humble Petition and Advice, proposed by Sir Christopher Packe.^[37] The Petition offered hereditary monarchy to Oliver Cromwell, asserted Parliament’s control over issuing new taxation, provided an independent council to advise the king and safeguarded «Triennial» meetings of Parliament. A modified version of the Humble Petition with the clause on kingship removed was ratified on 25 May. This finally met its demise in conjunction with the death of Cromwell and the Restoration of the monarchy.

Other examples of European constitutions of this era 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.

Democratic constitutions

What is sometimes called the «enlightened constitution» model was developed by philosophers of the Age of Enlightenment such as Thomas Hobbes, Jean-Jacques Rousseau, and John Locke. The model proposed that constitutional governments should be stable, adaptable, accountable, open and should represent the people (i.e., support democracy).^[38]

Agreements and Constitutions of Laws and Freedoms of the Zaporizian Host was written in 1710 by Pylyp Orlyk, hetman of the Zaporozhian Host. It 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.

Corsican Constitutions of 1755 and 1794 were inspired by Jean-Jacques Rousseau. The latter introduced universal suffrage for property owners.

The Swedish constitution of 1772 was enacted under King Gustavus III and was inspired by the separation of powers by Montesquieu. The king also cherished other enlightenment ideas (as an enlighted despot) and repealed torture, liberated agricultural trade, diminished the use of the death penalty and instituted a form of religious freedom. The constitution was commended by Voltaire.^[39][40][41]

The United States Constitution, ratified June 21, 1788, was influenced by the writings of Polybius, Locke, Montesquieu, and others. The document became a benchmark for republicanism and codified constitutions written thereafter.^[42]

The Polish–Lithuanian Commonwealth Constitution was passed on May 3, 1791.^[43][44][45] Its draft was developed by the leading minds of the Enlightenment in Poland such as King Stanislaw August Poniatowski, Stanisław Staszic, Scipione Piattoli, Julian Ursyn Niemcewicz, Ignacy Potocki and Hugo Kołłątaj.^[46] It was adopted by the Great Sejm and is considered the first constitution of its kind in Europe and the world’s second oldest one after the American Constitution.^[47]

Another landmark document was the French Constitution of 1791.

The 1811 Constitution of Venezuela was the first Constitution of Venezuela and Latin America, promulgated and drafted by Cristóbal Mendoza^[48] and Juan Germán Roscio and in Caracas. It established a federal government but was repealed one year later.^[49]

On March 19, the Spanish Constitution of 1812 was ratified by a parliament gathered in Cadiz, the only Spanish continental city which was safe from French occupation. The Spanish Constitution served as a model for other liberal constitutions of several South European and Latin American nations, for example, the Portuguese Constitution of 1822, constitutions of various Italian states during Carbonari revolts (i.e., in the Kingdom of the Two Sicilies), the Norwegian constitution of 1814, or the Mexican Constitution of 1824.^[50]

In Brazil, the Constitution of 1824 expressed the option for the monarchy as political system after Brazilian Independence. The leader of the national emancipation process was the Portuguese prince Pedro I, elder son of the king of Portugal. Pedro was crowned in 1822 as first emperor of Brazil. The country was ruled by Constitutional monarchy until 1889, when it adopted the Republican model.

In Denmark, as a result of the Napoleonic Wars, the absolute monarchy lost its personal possession of Norway to Sweden. Sweden had already enacted its 1809 Instrument of Government, which saw the division of power between the Riksdag, the king and the judiciary.^[51] 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 hereditary monarch limited by the constitution, like the Spanish one.

The first Swiss Federal Constitution was put in force in September 1848 (with official revisions in 1878, 1891, 1949, 1971, 1982 and 1999).

The Serbian revolution initially led to a proclamation of a proto-constitution in 1811; the full-fledged Constitution of Serbia followed few decades later, in 1835. The first Serbian constitution (Sretenjski ustav) was adopted at the national assembly in Kragujevac on February 15, 1835.

The Constitution of Canada came into force on July 1, 1867, as the British North America Act, an act of the British Parliament. Over a century later, the BNA Act was patriated to the Canadian Parliament and augmented with the Canadian Charter of Rights and Freedoms.^[52] Apart from the Constitution Acts, 1867 to 1982, Canada’s constitution also has unwritten elements based in common law and convention.^[53][54]

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».^[55] 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^[56] and its application to the relations among nations, and they sought to establish customary «laws of war and peace»^[57] 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 the abuse of such authority.^[58]

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^[59] 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^[60] 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.^[61]

Political economy theory regards constitutions as coordination devices that help citizens to prevent rulers from abusing power. If the citizenry can coordinate a response to police government officials in the face of a constitutional fault, then the government have the incentives to honor the rights that the constitution guarantees.^[62] An alternative view considers that constitutions are not enforced by the citizens at-large, but rather by the administrative powers of the state. Because rulers cannot themselves implement their policies, they need to rely on a set of organizations (armies, courts, police agencies, tax collectors) to implement it. In this position, they can directly sanction the government by refusing to cooperate, disabling the authority of the rulers. Therefore, constitutions could be characterized by a self-enforcing equilibria between the rulers and powerful administrators.^[63]

Key features

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/administration. 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».

Classification

Classification

Type	Form	Example
Codified	In single act (document)	Most of the world (first: United States)
Uncodified	Fully written (in few documents)	San Marino, Israel, Saudi Arabia
Partially unwritten (see constitutional convention)	Canada, New Zealand, United Kingdom

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; see constitutional convention.

Codified constitution

Most states in the world have codified constitutions.

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 and some scholars have pointed out that high constitutional turnover within a given country may itself be detrimental to separation of powers and the rule of law.

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, exceptional procedures are often required to amend a constitution. These procedures may include: convocation of a special constituent assembly or constitutional convention, requiring a supermajority of legislators’ votes, approval in two terms of parliament, the consent of regional legislatures, a referendum process, and/or other procedures that make amending a constitution 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. In ethnic nation-states such as Estonia, the mission of the state can be defined as preserving a specific nation, language and culture.

Uncodified constitution

As of 2017 only two sovereign states, New Zealand and the United Kingdom, have wholly uncodified constitutions. The Basic Laws of Israel have since 1950 been intended to be the basis for a constitution, but as of 2017 it had not been drafted. The various Laws are considered to have precedence over other laws, and give the procedure by which they can be amended, typically by a simple majority of members of the Knesset (parliament).^[64]

Uncodified constitutions are the product of an «evolution» of laws and conventions over centuries (such as in the Westminster System that developed in Britain). By contrast to codified constitutions, uncodified constitutions include both written sources – e.g. constitutional statutes enacted by the Parliament – and unwritten sources – constitutional conventions, observation of precedents, royal prerogatives, customs and traditions, such as holding general elections on Thursdays; together these constitute British constitutional law.

Mixed constitutions

Some constitutions are largely, but not wholly, 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.^{[citation needed]} It means the Constitution of Australia is uncodified,^{[dubious – discuss]} it also contains constitutional conventions, thus is partially unwritten.

The Constitution of Canada resulted from the passage of several British North America Acts from 1867 to the Canada Act 1982, the act that formally severed British Parliament’s ability to amend the Canadian constitution. The Canadian constitution includes specific legislative acts as mentioned in section 52(2) of the Constitution Act, 1982. However, some documents not explicitly listed in section 52(2) are also considered constitutional documents in Canada, entrenched via reference; such as the Proclamation of 1763. Although Canada’s constitution includes a number of different statutes, amendments, and references, some constitutional rules that exist in Canada is derived from unwritten sources and constitutional conventions.

The terms written constitution and codified constitution are often used interchangeably, as are unwritten constitution and uncodified constitution, although this usage is technically inaccurate. A codified constitution is a single document; states that do not have such a document have uncodified, but not entirely unwritten, constitutions, since much of an uncodified constitution is usually written in laws such as the Basic Laws of Israel and the Parliament Acts of the United Kingdom. Uncodified constitutions largely lack protection against amendment by the government of the time. For example, the U.K. Fixed-term Parliaments Act 2011 legislated by simple majority for strictly fixed-term parliaments; until then the ruling party could call a general election at any convenient time up to the maximum term of five years. This change would require a constitutional amendment in most nations.

Amendments

A constitutional amendment is a modification of the constitution of a polity, organization or other type of entity. Amendments are often interwoven into the relevant sections of an existing constitution, directly altering the text. Conversely, they can be appended to the constitution as supplemental additions (codicils), thus changing the frame of government without altering the existing text of the document.

Most constitutions require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation.

Methods of amending

Procedures for amending national constitutions

Approval by	Majority needed [clarification needed]	Countries
Legislature (unicameral, joint session or lower house only)	>50% + >50% after an election	Iceland, Sweden
>50% + 3/5 after an election	Estonia, Greece
3/5 + >50% after an election	Greece
3/5	France, Senegal, Slovakia
2/3	Afghanistan, Angola, Armenia, Austria, Bahrain, Bangladesh, Bulgaria, Cambodia, Djibouti, Ecuador, Honduras, Laos, Libya, Malawi, North Korea, North Macedonia, Norway, Palestine, Portugal, Qatar, Samoa, São Tomé and Príncipe, Serbia, Singapore, Slovenia, Solomon Islands, Turkmenistan, Tuvalu, United Arab Emirates, Uzbekistan, Vanuatu, Vietnam, Yemen
>50% + 2/3 after an election	Ukraine
2/3 + 2/3 after an election	Belgium
3/4	Bulgaria, Solomon Islands (in some cases)
4/5	Estonia, Portugal (in the five years following the last amendment)
Legislature + referendum	>50% + >50%	Djibouti, Ecuador, Venezuela
>50% before and after an election + >50%	Denmark
3/5 + >50%	Russia, Turkey
2/3 + >50%	Albania, Andorra, Armenia (some amendments), Egypt, Slovenia, Tunisia, Uganda, Yemen (some amendments), Zambia
2/3 + >60%	Seychelles
3/4 + >50%	Romania
3/4 + >50% of eligible voters	Taiwan
2/3 + 2/3	Namibia, Sierra Leone
3/4 + 3/4	Fiji
Legislature + sub-national legislatures	2/3 + >50%	Mexico
2/3 + 2/3	Ethiopia
Lower house + upper house	2/3 + >50%	Poland, Bosnia and Herzegovina
2/3 + 2/3	Bahrain, Germany, India, Italy, Jordan, Namibia, Netherlands, Pakistan, Somalia, Zimbabwe
3/5 + 3/5	Brazil, Czech Republic
3/4 + 3/4	Kazakhstan
Lower house + upper house + joint session	>50% + >50% + 2/3	Gabon
Either house of legislature + joint session	2/3 + 2/3	Haiti
Lower house + upper house + referendum	>50% + >50% + >50%	Algeria, France, Ireland, Italy
>50% + >50% + >50% (electors in majority of states/cantons)+ >50% (electors)	Australia, Switzerland
2/3 + 2/3 + >50%	Japan, Romania, Zimbabwe (some cases)
2/3 + >50% + 2/3	Antigua and Barbuda
2/3 + >50% + >50%	Poland (some cases)[65][66]
3/4 + 3/4 >50%	Madagascar
Lower house + upper house + sub-national legislatures	>50% + >50% + 2/3	Canada
2/3 + 2/3 + >50%	India (in some cases)
2/3 + 2/3 + 3/4	United States
2/3 + 100%	Ethiopia
Referendum	>50%	Estonia, Gabon, Kazakhstan, Malawi, Palau, Philippines, Senegal, Serbia (in some cases), Tajikistan, Turkmenistan, Uzbekistan
Sub-national legislatures	2/3	Russia
3/4	United States
Constitutional convention		Argentina
2/3	Bulgaria (some amendments)

Some countries are listed under more than one method because alternative procedures may be used.

Entrenched clauses

An entrenched clause or entrenchment clause of a basic law or constitution is a provision that makes certain amendments either more difficult or impossible to pass, making such amendments inadmissible. Overriding an entrenched clause may require a supermajority, a referendum, or the consent of the minority party. For example, the U.S. Constitution has an entrenched clause that prohibits abolishing equal suffrage of the States within the Senate without their consent. The term eternity clause is used in a similar manner in the constitutions of the Czech Republic,^[67] Germany, Turkey, Greece,^[68] Italy,^[69] Morocco,^[70] the Islamic Republic of Iran, Brazil and Norway.^[69] India doesn’t contain specific provisions on entrenched clauses but the basic structure doctrine makes it impossible for certain basic features of the Constitution to be altered or destroyed by the Parliament of India through an amendment.^[71] Colombia also doesn’t have explicit entrenched clauses but has similarly put a substantive limit on amending fundamental principles of their constitution through judicial interpretations.^[69]

Constitutional rights and duties

Constitutions include various rights and duties. These include the following:

• Duty to pay taxes^[72]
• Duty to serve in the military^[73]
• Duty to work^[74]
• Right to vote^[75]
• Freedom of assembly^[76]
• Freedom of association^[77]
• Freedom of expression^[78]
• Freedom of movement^[79]
• Freedom of thought^[80]
• Freedom of the press^[80]
• Freedom of religion^[81]
• Right to dignity^[82]
• Right to civil marriage^[83]
• Right to petition^[84]
• Right to academic freedom^[85]
• Right to bear arms^[86]
• Right to conscientious objection^[87]
• Right to a fair trial^[88]
• Right to personal development^[89]
• Right to start a family^[90]
• Right to information^[91]
• Right to marriage^[92]
• Right of revolution^[93]
• Right to privacy^[94]
• Right to protect one’s reputation^[95]
• Right to renounce citizenship^[96]
• Rights of children^[97]
• Rights of debtors^[98]

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.

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, Cabinet Ministers are accountable to Parliament, but it is the prime minister who appoints and dismisses them. In the case of the United Kingdom and other countries with a monarchy, it is the monarch who appoints and dismisses ministers, on the advice of the prime minister. In turn the prime minister will resign if the government loses the confidence of the parliament (or a part of it). Confidence can be lost if the government loses a vote of no confidence or, depending on the country,^[99] loses a particularly important vote in parliament, such as vote on the budget. When a government loses confidence, it stays in office until a new government is formed; something which normally but not necessarily required the holding of a general election.

Other independent institutions

Other independent institutions which some constitutions have set out include a central bank,^[100] an anti-corruption commission,^[101] an electoral commission,^[102] a judicial oversight body,^[103] a human rights commission,^[104] a media commission,^[105] an ombudsman,^[106] and a truth and reconciliation commission.^[107]

Power structure

Constitutions also establish where sovereignty is located in the state. There are three basic types of distribution of sovereignty according to the degree of centralisation of power: unitary, federal, and confederal. The distinction is not absolute.

In a unitary state, sovereignty resides in the state itself, and the constitution determines this. The territory of the state may be divided into regions, but they are not sovereign and are subordinate to the state. In the UK, the constitutional doctrine of Parliamentary sovereignty dictates that sovereignty is ultimately contained at the centre. Some powers have been devolved to Northern Ireland, Scotland, and Wales (but not England). Some unitary states (Spain is an example) devolve more and more power to sub-national governments until the state functions in practice much like a federal state.

A federal state has a central structure with at most a small amount of territory mainly containing the institutions of the federal government, and several regions (called states, provinces, etc.) which compose the territory of the whole state. Sovereignty is divided between the centre and the constituent regions. The constitutions of Canada and the United States establish federal states, with power divided between the federal government and the provinces or states. Each of the regions may in turn have its own constitution (of unitary nature).

A confederal state comprises again several regions, but the central structure has only limited coordinating power, and sovereignty is located in the regions. Confederal constitutions are rare, and there is often dispute to whether so-called «confederal» states are actually federal.

To some extent a group of states which do not constitute a federation as such may by treaties and accords give up parts of their sovereignty to a supranational entity. For example, the countries constituting the European Union have agreed to abide by some Union-wide measures which restrict their absolute sovereignty in some ways, e.g., the use of the metric system of measurement instead of national units previously used.

State of emergency

Many constitutions allow the declaration under exceptional circumstances of some form of state of emergency during which some rights and guarantees are suspended. This provision can be and has been abused to allow a government to suppress dissent without regard for human rights – see the article on state of emergency.

Facade constitutions

Italian political theorist Giovanni Sartori noted the existence of national constitutions which are a facade 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 never put into practice. An extreme example was the Constitution of the Soviet Union that on paper supported freedom of assembly and freedom of speech; however, citizens who transgressed unwritten limits were summarily imprisoned. The example demonstrates that the protections and benefits of a constitution are ultimately provided not through its written terms but through deference by government and society to its principles. A constitution may change from being real to a facade and back again as democratic and autocratic governments succeed each other.

Constitutional courts

Constitutions are often, but by no means always, protected by a legal body whose job it is to interpret those constitutions and, where applicable, declare void executive and legislative acts which infringe the constitution. In some countries, such as Germany, this function is carried out by a dedicated constitutional court which performs this (and only this) function. In other countries, such as Ireland, the ordinary courts may perform this function in addition to their other responsibilities. While elsewhere, like in the United Kingdom, the concept of declaring an act to be unconstitutional does 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 public office holder who acts outside the powers granted to that office by a constitution. 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.

Some countries, mainly those with uncodified constitutions, have no such courts at all. For example, the United Kingdom has traditionally operated under the principle of parliamentary sovereignty under which the laws passed by United Kingdom Parliament could not be questioned by the courts.

See also

• Basic law, equivalent in some countries, often for a temporary constitution
• Apostolic constitution (a class of Catholic Church documents)
• Consent of the governed
• Constitution of the Roman Republic
• Constitutional amendment
• Constitutional court
• Constitutional crisis
• Constitutional economics
• Constitutionalism
• Corporate constitutional documents
• International constitutional law
• Judicial activism
• Judicial restraint
• Judicial review
• Philosophy of law
• Rule of law
• Rule according to higher law

Judicial philosophies of constitutional interpretation (note: generally specific to United States constitutional law)

• List of national constitutions
• Originalism
• Strict constructionism
• Textualism
• Proposed European Union constitution
  • Treaty of Lisbon (adopts same changes, but without constitutional name)
• United Nations Charter

Further reading

• Zachary Elkins and Tom Ginsburg. 2021. «What Can We Learn from Written Constitutions?» Annual Review of Political Science.

References

External links

• Constitute, an indexed and searchable database of all constitutions in force
• Amendments Project
• Dictionary of the History of Ideas Constitutionalism
• Constitutional Law, «Constitutions, bibliography, links»
• International Constitutional Law: English translations of various national constitutions
• United Nations Rule of Law: Constitution-making, on the relationship between constitution-making, the rule of law and the United Nations.
• Works related to Portal:Constitution at Wikisource
• constitution | Theories, Features, Practices, & Facts | Britannica
• Constitutionalism | Stanford Encyclopedia of Philosophy
• Constitutions and Constitutionalism | Encyclopedia.com

Last Updated:
11 Apr 2023
— Updated example sentences

What does the word Constitution mean?

1a : the basic principles and laws of a nation, state, or social group that determine the powers and duties of the government and guarantee certain rights to the people in it.

What is the origin of the Constitution?

The Constitution was written during the summer of 1787 in Philadelphia, Pennsylvania, by 55 delegates to a Constitutional Convention that was called ostensibly to amend the Articles of Confederation (1781–89), the country’s first written constitution.

What does Constitutional mean in simple words?

1 : relating to, inherent in, or affecting the constitution of body or mind. 2 : of, relating to, or entering into the fundamental makeup of something : essential. 3 : being in accordance with or authorized by the constitution of a state or society a constitutional government.

What does preamble mean?

1 : an introductory statement especially : the introductory part of a constitution or statute that usually states the reasons for and intent of the law.

What is the main point of preamble?

The preamble sets the stage for the Constitution (Archives.gov). It clearly communicates the intentions of the framers and the purpose of the document. The preamble is an introduction to the highest law of the land; it is not the law. It does not define government powers or individual rights.

What is Preamble in simple words?

A preamble is an introductory and expressionary statement in a document that explains the document’s purpose and underlying philosophy. When applied to the opening paragraphs of a statute, it may recite historical facts pertinent to the subject of the statute.

Why is it called preamble?

Preamble comes from the Latin praeambulus which means “walking before.” And that’s what a preamble does — it “walks” before a speech, often explaining what’s coming. It’s like the White Rabbit introducing the Queen of Hearts in Alice in Wonderland. Since it goes before a speech, think of it as a pre-ramble.

What’s another word for preamble?

SYNONYMS FOR preamble 1 opening, beginning; foreword, prologue, prelude.

What does preamble mean in law?

The Preamble is a brief introductory statement that sets out the guiding purpose and principles of the Constitution. Rights are often entrenched in a special part of a constitution, called a Bill of Rights.

Is preamble a part of constitution?

Amendment of the Preamble. 42nd Amendment Act, 1976: After the judgment of the Kesavanand Bharati case, it was accepted that the preamble is part of the Constitution. As a part of the Constitution, preamble can be amended under Article 368 of the Constitution, but the basic structure of the preamble can not be amended.

What are the types of constitution?

Classification

Type	Form	Example
Codified	In single act (document)	Most of the world (first: United States)
Uncodified	Fully written (in few documents)	San Marino, Israel, Saudi Arabia
Partially unwritten (see constitutional convention)	Canada, New Zealand, United Kingdom

What are the 5 types of constitution?

Different Types of Constitution

• Codified, Uncodified, Flexible and Inflexible Constitutions.
• Monarchical and Republican Constitutions.
• Presidential and Parliamentary Constitutions.
• Federal and Unitary Constitutions.
• Political and Legal Constitutions.
• BIBLIOGRAPHY.
• CASES.
• LEGISLATION AND TREATIES.

What are the six types of constitution?

Types of Constitution

• Written and unwritten constitution.
• Flexible and Rigid Constitution.
• Unitary and Federal Constitution.
• Democratic constitution.
• Republican and Monarchical constitution.
• Presidential and parliamentary constitution.

What are the main features of Constitution?

8 Important Features of Indian Constitution

• World’s Longest Constitution.
• Taken from various sources.
• Federal System with Unitary Features.
• Parliamentary Form of Government.
• Balance between the Sovereignty of Parliament and Judicial Supremacy.
• Independent and Integrated Judicial System.
• Directive Principles of State Policy.

What are the 5 key features of the Constitution?

Features of the Indian Constitution

• The bulkiest constitution of the world.
• Rigidity and flexibility.
• Parliamentary system of government.
• Federal system with a unitary bias.
• Fundamental rights and fundamental duties.
• Directive principles of state policy.
• Secularism.
• Independent judiciary.

What are the five salient features of constitution?

Five salient features of the Indian Constitution are : Directive principles of state policy. Parliament form of government. Unique blend of rigidity and flexibility. The Lengthiest Constitution in the world.

What is importance of Constitution?

Why is a constitution important? A constitution is important because it ensures that those who make decisions on behalf of the public fairly represent public opinion. It also sets out the ways in which those who exercise power may be held accountable to the people they serve.

What are the three importance of Constitution?

The executive, the legislature and the judiciary are the main organs of the government that the constitution establishes. These three are the source of stability of any country, and without them, the only thing that will rise is terror and corruption among the masses.

Why do we need a Constitution give 5 reasons?

Answers and Solutions (1)basic rules- its has the basic rule on which the democracy functions. it guides in funtioning of a democracy. (2)rights- it defines the right of a citizen over state and other persons. (3)duties- it determines the duty of the state and also the duty of the individual vis a vis the country.

What is need and importance of Constitution?

A constitution is an important document laying down the fundamental principles of a country. The country is governed by these principles. Laws are also formulated according to them. Thus, the constitution is also regarded as the fundamental law of a country.

What is the importance of Constitution Class 8?

A Constitution tells us what the fundamental nature of our society is. A Constitution helps serve as a set of rules and principles that all persons in a country can agree upon as the basis of the way in which they want the country to be governed.

What would happen if there was no constitution?

If there is no constitution, then there will be lack of rules and regulations. Justice will be denied to the people and a chaotic situation will prevail in the absence of laws because Constitution is the source of laws.In the absence of a Constitution it will be difficult for a country to sustain in the long run.

What are the basic rules of a constitution?

The basic rules are: (i) The rules should lay down how the rulers are to be chosen in future. (ii) These rules should also determine what the elected governments are empowered to do and what they cannot do. (iii) These rules should decide the rights of the citizens.

What are the 7 parts of the Constitution?

• Article I – The Legislative Branch. The principal mission of the legislative body is to make laws.
• Article II – The Executive Branch.
• Article III – The Judicial Branch.
• Article IV – The States.
• Article V – Amendment.
• Article VI – Debts, Supremacy, Oaths.
• Article VII – Ratification.

What is the most important law in the Constitution?

Article V contains the procedure for amending the Constitution. Article VI addresses debts, establishes the Constitution as the highest law (known as the Supremacy Clause) and mandates that officers of all branches of government, federal and state, take an oath to uphold the Constitution.

What are the 10 constitutional rights?

Bill of Rights – The Really Brief Version

1	Freedom of religion, speech, press, assembly, and petition.
7	Right of trial by jury in civil cases.
8	Freedom from excessive bail, cruel and unusual punishments.
9	Other rights of the people.
10	Powers reserved to the states.

What does 4th Amendment say?

The Constitution, through the Fourth Amendment, protects people from unreasonable searches and seizures by the government. The Fourth Amendment, however, is not a guarantee against all searches and seizures, but only those that are deemed unreasonable under the law.

What are our rights?

First Amendment: Freedom of religion, freedom of speech and the press, the right to assemble, the right to petition government. Second Amendment: The right to form a militia and to keep and bear arms. Sixth Amendment: People have a right to a speedy trial, to legal counsel, and to confront their accusers.

What are our civil rights?

Examples of civil rights include the right to vote, the right to a fair trial, the right to government services, the right to a public education, and the right to use public facilities.

What do we mean by constitution?

The act or process of composing, setting up, or establishing. noun

The composition or structure of something; makeup. noun

The physical makeup of a person. noun

The system of fundamental laws and principles that prescribes the nature, functions, and limits of a government or another institution. noun

The document in which such a system is recorded. noun

The supreme law of the United States, consisting of the document ratified by the original thirteen states (1787–1790) and subsequent amendments. noun

The act of constituting, establishing, or appointing; formation. noun

The state of being constituted, composed, made up, or established; the assemblage and union of the essential elements and characteristic parts of a system or body, especially of the human organism; the composition, make-up, or natural condition of anything: as, the physical constitution of the sun; the constitution of a sanitary system; a weak or irritable constitution. noun

A system of fundamental principles, maxims, laws, or rules embodied in written documents or established by prescriptive usage, for the government of a nation, state, society, corporation, or association: as, the Constitution of the United States; the British Constitution; the Constitution of the State of New York; the constitution of a social club, etc. noun

A particular law, ordinance, or regulation, made by the authority of any superior, civil or ecclesiastical; specifically, in Roman law, what an emperor enacted, either by decree, edict, or letter, and without the interposition of any constitutional assembly: as, the constitutions of Justinian. noun

Any system of fundamental principles of action: as, the New Testament is the moral constitution of modern society. noun

That branch of the law which defines and interprets the scope and meaning of a constitution. noun

The act or process of constituting; the action of enacting, establishing, or appointing; enactment; establishment; formation. noun

The state of being; that form of being, or structure and connection of parts, which constitutes and characterizes a system or body; natural condition; structure; texture; conformation. noun

The aggregate of all one’s inherited physical qualities; the aggregate of the vital powers of an individual, with reference to ability to endure hardship, resist disease, etc.. noun

The aggregate of mental qualities; temperament. noun

The fundamental, organic law or principles of government of men, embodied in written documents, or implied in the institutions and usages of the country or society; also, a written instrument embodying such organic law, and laying down fundamental rules and principles for the conduct of affairs. noun

An authoritative ordinance, regulation or enactment; especially, one made by a Roman emperor, or one affecting ecclesiastical doctrine or discipline. noun

The act, or process of setting something up, or establishing something; the composition or structure of such a thing; its makeup.

The formal or informal system of primary principles and laws that regulates a government or other institutions.

A legal document describing such a formal system.

A person’s physical makeup or temperament, especially in respect of robustness.

The general health of a person.

Once the writen law of the United States, now it’s just spare toilet paper for the White House. Urban Dictionary

Was last seen burning in George Bush’s fireplace Urban Dictionary

The greatest form of writing to ever exist. It is the only true thing that shows how much freedom we’re supposed to be having in the USA. However, dumbasses like George W. Bush have never even looked at it and conservatives think they can change it around to meet their own selfish needs and beliefs. Urban Dictionary

Something made irrelavent by Bush Urban Dictionary

«obey»
1. an antique document. out of date in the u.s.a. Urban Dictionary

A document which proclaims and defines the fundamental right of women to sexual equality with respect to the freedom to go about bare-chested in public with the same legal impunity that is enjoyed by men. Urban Dictionary

Pooping. Having a bowel movement worth taking a long time. Someone who takes a morning constitutional is often said to be a member of the «ten minute club.» Urban Dictionary

A magical document that always agrees with you. Urban Dictionary

Bowel movement, poo, dump, crap— generally in the morning Urban Dictionary

1: A now-irrelevant document which once provided freedom for Americans. Replaced by the Patriot Act, a sugar-coated document that repeals all civil liberties that Americans once enjoyed.
2: The Bush administration’s toilet paper. Urban Dictionary

Constitution: Meaning, Types and Importance of Constitution

Constitution: Meaning, Types and Importance of Constitution!

Constitution is the supreme law of each State. It lays down rules regarding the organisation, powers and functions of government. It also defines the basic features of the State and the relation between the citizens and the State.

Constitution: Meaning and Definition:

In simple words, we can say a Constitution is the constitutional law of the state. Constitutional law enjoys the position of being the supreme and fundamental law of the state. It lays down the organisation and functions of the government of state. The Government can use only those powers which the Constitution grants to it.

1. “Constitution is the collection of principles according to which the powers of the government, the rights of the governed and the relations between the two are adjusted. -Woolsey

2. “Constitution is a body of judicial rules which determine the supreme organs of state, prescribes their modes of creation, their mutual relations, their spheres of action and the fundamental place of each of them in relation to state.” -Jellinek

3. ” Constitution of a state is that body of rules or laws, written or unwritten which determine the organisation of government, the distribution of powers to the various organs of government and the general principles on which these powers are to be exercised.” -Gilchrist

On the basis of these definitions it can be said that the Constitution is the sum total of the constitutional laws of the state.

It lies down:

(1) Organisation and powers of the government;

(2) Principles and rules governing the political process;

(3) Relations between the people and their government; and

(4) Rights and duties of the people.

The government of state gets organised and works in accordance with the provisions of the Constitution. People get their rights protected from the constitution. No one, not even the government, can violate the Constitution.

Types of Constitution:

1. Written Constitution:

A written constitution means a constitution written in the form of a book or a series of documents combined in the form of a book. It is a consciously framed and enacted constitution. It is formulated and adopted by a constituent assembly or a council or a legislature.

Garner writes, “A written constitution is a consciously planned constitution, formulated and adopted by deliberate actions of a constituent assembly or a convention.” It provides for a definite design of government institutions, their organisations, powers, functions and inter-relationships.

It embodies the constitutional law of the state. It enjoys the place of supremacy. The government is fully bound by its provisions and works strictly in accordance with its provisions. A written constitution can be amended only in accordance with a settled process of amendment written in the constitution itself. It is a duly passed and enacted Constitution. The Constitutions of India, the USA, Germany, Japan, Canada, France, Switzerland and several other states, are written constitutions.

2. Unwritten Constitution:

An unwritten constitution is one which is neither drafted nor enacted by a Constituent Assembly and nor even written in the form of a book. It is found in several historical charters, laws and conventions. It is a product of slow and gradual evolution. The government is organised and it functions in accordance with several well settled, but not wholly written rules and conventions. The people know their Constitution. They accept and obey it, but do not possess it in a written form. An unwritten constitution cannot be produced in the form of a book.

However, an unwritten constitution is not totally unwritten. Some of its parts are available in written forms but these do not stand codified in the form of a legal document or a code or a book. According to Garner, “an unwritten constitution is one in which most and not all, rules are unwritten and these are not found in any one charter or document.”

The Constitution of the United Kingdom is an unwritten constitution.

Difference between Written and Unwritten Constitutions:

(1) A written constitution is written in the form of a book or document, whereas an unwritten constitution is not written in such a form.

(2) A written constitution is a made and enacted by a constituent assembly of the people. An unwritten constitution is the result of a gradual process of constitutional evolution. It is never written by any assembly.

(3) A written constitution is usually less flexible than an unwritten constitution. An unwritten constitution depends mostly on unwritten rules or conventions which do not require any formal amendment.

(4) A written constitution is definite. Its provisions can be quoted in support or against any power exercised by the government. An unwritten constitution cannot be produced in evidence. It has to be proved by quoting its sources and practices.

However, the difference between written and unwritten constitutions is not organic. A written constitution has written parts in majority. Along with these, it also has some unwritten parts in the form of conventions. In an unwritten constitution, most of the parts are unwritten and are not written in the form of a book. However some of its parts are also found written in some charters and other documents.

3. Flexible Constitution:

A Flexible Constitution is one which can be easily amended. Several political scientists advocate the view that a flexible constitution is one in which the constitutional law can be amended in the same way as an ordinary law. Constitutional amendments are passed in the same manner by which an ordinary law is passed.

British Constitution presents a classic example of a most flexible constitution. The British Parliament is a sovereign parliament which can make or amend any law or constitutional law by a simple majority. Laws aiming to affect changes in a constitutional law or in any ordinary law are passed through the same legislative procedure i.e., by a simple majority of votes in the legislature. Similarly, a Constitution is flexible when the procedure of amending it is simple and the changes can be made easily.

(A) Merits of a Flexible Constitution:

(i) First, a major merit of the flexible constitution is its ability to change easily in accordance with the changes in the social and political environment of the society and state.

(ii) Secondly, it is very helpful in meeting emergencies because it can be easily amended.

(iii) Thirdly, because of its dynamic nature, there are less opportunities for revolt. The constitution has the ability to keep pace with the changing times. The people do not feel the need for revolutionary changes.

(iv) Finally, since the flexible constitution keeps on developing with times, it always continues to be popular and remains up-to-date.

(B) Demerits of a Flexible Constitution:

(i) First, a flexible constitution is often, a source of instability. Flexibility enables the government in power to give it a desired dress and content.

(ii) Secondly, it is not suitable for a federation. In a federation, a flexible constitution can lead to undesirable changes in the constitution by the federal government or by the governments of federating units.

4. Rigid Constitution:

The Rigid Constitution is one which cannot be easily amended. Its method of amendment is difficult. For amending it, the legislature has to pass an amendment bill by a specific, usually big, majority of 2/3rd or 3/4th. For passing or amending an ordinary law, the legislature usually passes the law by a simple majority of its members.

A rigid constitution is considered to be the most fundamental law of the land. It is regarded as the basic will of the sovereign people. That is why it can be amended only by a special procedure requiring the passing of the amendment proposal by a big majority of votes which is often followed by ratification by the people in a referendum.

The Constitution of United States of America is a very rigid constitution.

(A) Merits of a Rigid Constitution:

(i) First, a rigid constitution is a source of stability in administration.

(ii) Secondly, it maintains continuity in administration.

(iii) Thirdly, it cannot become a tool in the hands of the party exercising the power of the state at a particular time.

(iv) Fourthly it prevents autocratic exercise of the powers by the government.

(v) Finally a rigid constitution is ideal for a federation.

(B) Demerits of a Rigid Constitution:

(i) First, the chief demerit of a rigid constitution is that it fails to keep pace with fast changing social environment.

(ii) Secondly, because of its inability to change easily, at times, it hinders the process of social development.

(iii) Thirdly, it can be a source of hindrance during emergencies.

(iv) Fourthly, its inability to easily change can lead to revolts against the government.

(v) Fifthly, a rigid constitution can be a source of conservativeness. It can grow becomes old very soon because it cannot Keep pace with times.

Thus, there are both merits and demerits of Flexible and Rigid Constitutions. The decision whether a state should have a flexible or a rigid constitution, should be taken on the basis of the needs and wishes of society. No hard and fast rule can be laid down as to whether a state should have a flexible or a rigid constitution.

In fact, a constitution must have both a certain degree of rigidity as well as an ability to change for keeping pace with the changing times. An excessive rigidity or excessive flexibility should be avoided. The Constitution of India is partly rigid and partly flexible. In several respects, it is a rigid constitution but in practice it has mostly worked as a flexible constitution.

5. Evolved Constitution:

An evolved constitution is one which is not made at any time by any assembly of persons or an institution. It is the result of slow and gradual process of evolution. Its rules and principles draw binding force from the fact of their being recognised as ancient, historical, time-tested and respected customs and conventions.

Some of these conventions get recognised by law and hence become enforceable while others are followed because these are supported by public opinion, their practical utility and moral commitment in their favour. Evolved Constitutions is the product of historical evolution and of political needs and practical wisdom of the people. The Constitution of Great Britain presents a key example of an evolved constitution.

6. Enacted Constitution:

An Enacted Constitution is a man-made constitution. It is made, enacted and adopted by an assembly or council called a Constituent Assembly or Constitutional Council. It is duly passed after a thorough discussion over its objectives, principles and provisions. It is written in the form of a book or as a series of documents and in a systematic and formal manner. The Constitutions of India the USA, Japan, China and most of other states are enacted constitutions.

Qualities of a Good Constitution:

1. Constitution must be systematically written.

2. It should incorporate the constitutional law of the state and enjoy supremacy.

3. It should have the ability to develop and change in accordance with the changes in the environment and needs of the people.

4. It should be neither unduly rigid nor unduly flexible.

5. It must provide for Fundamental Rights and Freedoms of the people.

6. It should clearly define the organisation, powers, functions inter-relations of the government of the state and its three organs.

7. It must provide for the organisation of a representative, responsible, limited and accountable government.

8. It must provide for:

(i) Rule of Law

(ii) De-centralisation of powers

(iii) Independent and powerful Judiciary

(iv) A system of Local self-government

(v) A Sound Method of Amendment of the Constitution

(vi) Process and Machinery for the conduct of free and elections

9. The Constitution must clearly reflect the sovereignty of the people.

10. The language of the constitution should be simple, clear and unambiguous

The Constitution must empower the judiciary with the power to interpret, protect and defend the Constitution and the fundamental rights and freedoms of the people against the possible legislative and executive excesses. These are the basic features which must be present in every good Constitution.

Importance of Constitution:

Each state has a Constitution which lays down the organisation, powers and functions of the Government of the State. The government always works according to the Constitution, no law or order of the government can violate the Constitution. Constitution is the supreme law and all government institutions and members are bound by it.

Constitution enjoys supreme importance in the state because:

1. It reflects the sovereign will of the people.

2. It lies down of the aims, objectives, values and goals which the people want to secure. .

3. It contains description and guarantee of the fundamental rights of the people.

4. It gives a detailed account of the organisation of the government. The organisation, powers and functions of its three organs of the and their inter­relationship.

5. In a federation, the Constitution lays down the division of powers between the central government and the governments of the federating states/provinces. It is binding upon both the centre and the state governments.

6. It specifies the power and method of amendment of the Constitution.

7. It lays down the election system and political rights of people.

8. It provides for independence of judiciary and rule of law.

9. The constitution governs all and no one can violate its rules.

Every democratic Constitution guarantees to the citizens a protection against arbitrary governmental actions. A democratic state, like India, has a written and supreme constitution which binds all its people and their government.

Britannica Dictionary definition of CONSTITUTION

Today you are going to learn what is a constitution according to various legal schoolers

Further, with vivid examples, you will see why we need a constitution in our countries.

The word constitution is not a strange one in the world today.

In the vast majority of the modern states or political societies there exists an identifiable document, or a group of documents, called a constitution, embodying a selection of the most important rules about the government of the country.

There has also been awareness among people on the need and importance of having a constitution or amendments of the existing constitutions in different countries.

A constitution provides a framework of rules that creates the structure and functions of a human organization.

Any organization might have a constitution, although an organization that depends on close personal bonds such as a family is unlikely to do so.

We are concerned with the organization of a country comprising millions of people with few common purposes capable of giving shape to a constitution[mfn] Alder, J. constitutional and Administrative Law, 5th Edition, Palgrave Macmillan Publishers, New York, 2005. [/mfn].

Let’s get started

Wade and Phillips[mfn]Wade, ECS & Phillips, H. Constitutional Law, London, 1965. [/mfn] define a constitution to be “a document, having special legal sanctity, which sets out the framework and the principle functions of organs of government of a state and declares the principles governing the operations of those organs”

The above definition suggests that a constitution needs to:

1. Be a legal document
2. Set or establish the Pillars of the government
3. Set the functions of those organs
4. Set the powers and limits of those organs

However, this definition has received a lot of challenges from scholars who argue that it is not necessary for a constitution to be found in a document, it is possible for a country to have its constitution in various documents.

The United Kingdom is mostly cited as an example whereby her constitution is made by the Magna Carta of 1215, the petition of right 1628, The Bill of Rights 1688, The Act of Settlement 1701, and the Acts of Union.

Wheare[mfn]Wheare K. C. Modern Constitutions, Oxford University Press, London, 1964[/mfn] defines the constitution into two.

He firstly defines a constitution means “the whole system of government of a country, the collection of rules, which establish and regulate or govern the government.

These rules are partly legal in the sense that courts of law will recognize and apply them and partly non-legal or extra-legal taking the form of usages, understandings, customs, or conventions that courts do not recognize as law but which are not less effective in regulating the government than the rules of law strictly called”

In the above definition, Wheare talks much about what it means by the word constitution by basing on the essence other than the form (document or documents) of the constitution. That is the wider and broader meaning of the term.

In the narrow sense of the constitution, Wheare says in almost every country in the world except for Britain, the constitution means “the whole collections of rules, legal and non-legal but rather a selection of them, which have
usually been embodied in one document or in a few closely related documents”.

Prof. Issa Shivji[mfn] Vol. 11-14 EALR (1978-1981)- Publication of the Faculty of Law[/mfn] defines a constitution to be a piece of basic or fundamental law, which tells how the state and its various apparatus are organized, the interrelationships between them, and the division of power inter-se between and among these apparatuses.

Perhaps, one would agree with Prof. Shivji by saying that Constitution is a law found in one or more documents that constitute State Power and define the relationship between major organs of the State and between the State and the Citizen.

Prof. A. V. Dicey[mfn]Dicey, 1915, p. 22[/mfn] defines a constitution to mean all rules directly or indirectly affect the distribution and exercise of the sovereign power in the state.

Therefore, Dicey focuses on the constitution being a composition of rules that bring about how state power is distributed and exercised.

By this notion, Dicey speaks on a constitution that puts in place state organs, whether all rules are to be found in a single document or in various documents that are not, which is a matter of concern and discussion to Dicey.

Anthony King[mfn]King, A. Does the United Kingdom Still Have a Constitution? 2001, London: Sweet & Maxwell, 2001.[/mfn] defines a constitution as the set of the most important rules that regulate the relations among the different parts of the government of a given country and also the relations between the different parts of the government and the people of the country.

With definition, Anthony seems to deal much with idea that the constitution is made up of rules that set organs of government and how they relate between themselves and their relationships with individuals.

Anthony joins Dicey on the constitutional form, that the constitution might be a document or document.

Freidrich[mfn]Freidrich, Limited Government: A Comparison, 1974, p. 21. [/mfn] defines a constitution as the ordering and dividing of the exercise of political power by that group in an existent community who is able to secure the consent of the community and who thereby makes manifest the power of the community itself.

Freidrich’s definition suggests that a constitution is to establish state power that is a result of people’s consent.
He stresses the consent of the community. (This seems to be a political approach).

Tully[mfn]4 Tully, J. (2002) ‘The Unfreedom of the Moderns’, Modern Law Review, 65: 204[/mfn] suggests that a constitution has a special status, he defines it as the cluster of ‘supreme’ or ‘essential ‘ principles, rules, and procedures to which other laws, institutions, and governing authorities within the association are subject.

Therefore, according to Tully, once a constitution exists all other laws, organs of the government, and institutions must derive their legality from the constitution. In this perspective constitution is supreme.

NB: It is also time to discourage the argument by some people who define the constitution to be a contract or agreement between the State and citizens or between the ruling class and the ruled one.

Prof. Shivji says this is not correct either historically or legally.

For, there is no evidence that rulers and the ruled sit together and negotiate a contract called the constitution.

If it is to be understood that a constitution is an agreement or contract it is to be shown as to when and where these two parties to a constitutional contract met and set terms of their contract, the thing that in normal circumstances cannot be obtained.

Again, for those constitutions that are not Democratic how can citizens agree to a contract that violates or does not recognize their rights for example?

The modern philosophy of the constitution sees the constitution as a product of consensus among people themselves

In historical reality, various constitutions come about through different historical circumstances and reflect the results of social and political struggles in those societies.

Therefore, the argument that a constitution is a contract is wrong both, legally and historically.

Why do we need a constitution?

It is obvious that one will ask himself, after going through various definitions, why constitution?

There are a number of reasons why there is a need to have a constitution in countries around the world:

A constitution acts as a political manifesto of any government in power.

By being the political manifesto the constitution states the kind of government that is in power and its political ideology.

For example, the constitution of the United Republic of Tanzania states in the preamble that

WHEREAS WE, the people of the United Republic of Tanzania, have firmly and solemnly resolved to build in our country a society founded on the principles of freedom, justice, fraternity and concord:

AND WHEREAS those principles can only be realised in a democratic society in which the Executive is accountable to a Legislature composed of elected members and representative of the people, and also a Judiciary which is independent and dispenses justice without fear or favour, thereby ensuring that all human rights are preserved and protected and that the duties of every person are faithfully discharged:

NOW, THEREFORE, THIS CONSTITUTION IS ENACTED BY THE CONSTITUENT ASSEMBLY OF THE UNITED REPUBLIC OF TANZANIA, on behalf of the People, for the purpose of building such a society and ensuring that Tanzania is governed by a Government that adheres to the principles of democracy and socialism and shall be a secular state.

A constitution is also used to put in place the guiding principles for the ruling class and the ruled one. It puts the guiding principles in definitive words so that the rulers and the ruled may know those guidelines.

A constitution establishes the organs of the government and gives powers and limits to these organs.

In this, the constitution has the last say and acts as a supreme organ.

The above explanation as to why the constitution is summed up by Prof. Shivji who says, depending on how it was made that is whether it was imposed or arrived at by a consensus a constitution serves an important function of giving political power legitimacy, that is, acceptability and respectability.

Another important function of the constitution is to structure state power by establishing and defining the powers and functions of different organs and institutions of the state.

The third function of the constitution is to limit the exercise of power by stipulating certain basic rights of citizens.

The fundamental principles that determine the form of a state are called its constitution. These include the method by which the state is organized, the distribution of its sovereign powers among the various organs of government, the scope and manner of exercise of governmental functions, and the government’s relation to the people over whom its authority is exercised.

The constitution does not create the state but is the outward formulation of state existence. Therefore, every state has a constitution, in the sense that certain principles underlie its existence and its governmental system. If this were not true, anarchy would result instead of a political organization. Sometimes the state’s constitution is definitely formulated in a single document or a series of documents. Sometimes, it is found in an established body of rules, maxims, and traditions following which its government is organized and its powers are exercised.

Constitutional government is distinguished from a personal government. It is based not on the caprice and whim of those who possess political power but on rules so clearly defined and so generally accepted that they effectively control the actions of public officials. It is a government of laws and not of men. A constitution, therefore, may be defined as a collection of norms.

The legal relations between the government and its subjects are determined and following which the state’s power is exercised, or the body of rules and maxims following which the powers of sovereignty are habitually manifested.

Kinds Of Constitution:

Constitutions have been classified based on several distinctions:

1. Written and unwritten.

A written constitution is one in which most of the fundamental principles of governmental organization are contained in a formal written instrument or instruments deliberately created. It is usually considered special sanctity, different in character from other laws, proceeding from a higher source, and alterable by a different and more difficult procedure. An unwritten constitution is one in which most of the governmental organization’s fundamental principles have not been reduced to definite written form or embodied in basic documents. It consists rather of a mass of customs, usages, judicial decisions, and statutes enacted at different times. It was not created by a constitution-making body but resulted from the state’s gradual historical growth.

The distinction between written and unwritten constitution:

Is one of degree rather than of kind. All written constitutions that are m in existence for a considerable period accumulate a large unwritten element. They are modified by custom and usage and by judicial interpretation. Political practices grow up that are not incorporated into the written document so that its text does not correspond accurately with the existing form of political organization and powers.

In the United States, for example, the organization and powers of political parties, the method of nominating and electing the president, Congress’s procedure, and the powers of the federal judiciary rest upon political usage, not upon the written constitution. A reading of the United States constitution would give a very inadequate and inaccurate description of the American republic’s actual constitution as it works in practice.

On the other hand, though not formulated in a single don went, the constitution of Great Britain contains a considerable written element, scattered in many documents of different periods. Magna Charta, the Bill of Rights. Parliament’s important acts concerning the Crown and the House of Lords’ powers, and those that fix the qualifications for voting and the system of representation in the House of Commons form an important mitten element in the British constitution.

2. Flexible and rigid:

The distinction between a flexible constitution and a rigid one rests upon how the constitution may be changed and the relation, therefore, which it bears to ordinary laws. If the ordinary lawmaking body and procedure may easily amend a constitution, it may be classed as flexible. In this case, constitutional law emanates from the same legal authority as ordinary law and has no superior validity.

If a constitution requires a special organ or a more difficult procedure or amendment than required or the creation of ordinary law, it may be classed as rigid. Thus, its lines are hated and emanate from a source different from that of ordinary laws that must keep within the bounds fixed by the constitution.

For the successful working of a rigid constitution, some organ of government must have the power to decide whether or not laws made by the ordinary government keep within constitutional limits. A law which the constitution forbids or a law made by a body that has not been given authority by the constitution to act in that held would be an unconstitutional law, hence not a law at all. The constitution of Great Britain is an example of a flexible constitution that the United States is rigid.

3. Historical and theoretical:

A historical constitution grows through evolutionary experience or that incorporates long-established forms and practices of government. A theoretical constitution is founded on speculative assumptions or abstract ideals. After the Revolution and the utopian schemes proposed by Plato, More, Bacon, and Harrington, the constitution created in France are examples of the latter type.

Requisites of a Constitution.

There are several characteristics that a good constitution should possess. It should be definite to avoid avoiding an occasion for dispute. There should be no question as to what the constitution is or what it means. In this respect, if carefully worded, the written parts of a constitution are more satisfactory than unwritten customs and practices. The tendency in legal development has been toward definite statements so that the law may be known and preserved.

A constitution should be comprehensive; that is, it should cover the whole field of government. In a general way, at least, it should make provision for the exercise of all political power and sketch out the fundamental organization of the state. At the same time, a constitution should be brief. In outline alone, should the constitution organize the state?

An elaborate and detailed constitution offers many possibilities for dispute as to meaning. Besides, a detailed constitution indicates distrust of government. Legislatures deteriorate and avoid responsibility if matters of importance are removed from their authority and decided in the constitution.

Finally, a detailed constitution is soon outgrown. New conditions render some of its provisions obsolete, and, whether by frequent amendment or by strained interpretation or by the growth of practices outside the constitution or by nonenforcement. It becomes unstable and unrespected.

Details of governmental organization and policy are not properly constitutional matters but should be left to the government’s ordinary lawmaking powers. The constitution of the United States contains about four thousand words. The newer constitutions of European states are more elaborate. In recent years, the constitutions drawn up by some of the American commonwealths contain upwards of fifty thousand words, including minute regulations that have no proper place in a constitution.

The proper contents of a constitution demand consideration. A consideration intended primarily to set up a framework of government. Its purpose is to outline the nature, method of selection, and powers of the various government organs and prescribe the general manner in which their powers shall be exercised. It indicates the various departments and divisions of government. A constitution should also provide a legal method of amendment so that it may be changed without revolution.

A constitution should be stable and, at the same time, flexible. In fixing the amendment method, a compromise is needed, which will permit changes to be made and at the same time will ensure that changes will not be made until it is certain that they represent the real and not merely the temporary needs and desires of the people.

There is also an advantage in including a Bill of Rights, which sets aside a certain sphere of individual liberty with which the ordinary government is forbidden to interfere. The constitution, therefore, prevents the encroachment of one organ of government on another or individual liberty.

In a word, it locates sovereignty within the state since, in outlining the powers of the various governmental organs and in providing a method of legal amendment, it arranges the total exercise of the lawmaking power. The action of any organ outside the scope of its legal competence, or in any manner except that prescribed, is not a legal act of the sovereign state but a revolutionary usurpation of power.

An “unconstitutional law” is thus a contradiction in terms. If it is unconstitutional, it is not law. When a law is declared unconstitutional, it is not considered that a lower law has come into conflict with a higher law, but that the law in question never was law since it was not properly created.

There is, then, no difference in validity between constitutional law and statute law. If legally created and enforced by the state’s authority, is the law equally binding? From a legal Standpoint, all laws are commands of the sovereign, enforced by its authority. Any organ of government, acting legally within its powers’ scope, creates law just as binding as the constitution.

A distinction between constitutional law and statute law may be made as to the method of creation and content. Statute law is created by the regular legislative organs of the ordinary government. Constitutional law in many states is created by a peculiar government or by unusual procedure on the part of the ordinary government.

In some states, as in Great Britain, even this distinction does not exist since constitutional law is created and repealed by the ordinary government. As to its content, constitutional law properly deals with the fundamental organization of the state. The minor details of government and man’s ordinary relations to man are properly left to statute law or administrative regulation.

A good constitution’s final requirement is that the constitution shall correspond to the state’s actual conditions. Sovereignty should be legally distributed following actual political power. That is, the legal sovereign should coincide with the political sovereign. Otherwise, there is a constant danger of revolution.

No constitution can be perfect and permanent since the best form of government is a relative matter, changing as conditions change. Therefore, a constitution should be flexible enough to permit change when necessary simultaneously; its modification should not be so easy as to sacrifice stability. The adjustment of these requisites depends largely on the legal method of amendment.

Methods of Establishing Constitutions:

Historical Shows four methods by which modern states have acquired their constitutions:

• by grant
• by deliberate creation
• by revolution
• by gradual evolution.

Most modern states began with autocratic governments in which all political authority was vested in the rulers and was defined only in a general and indefinite manner. Later, either because the ruler believed that the powers power government and the manner of their exercise should be defined more formally and legally or because of the demands of his subjects and the fear of revolution, the ruler promulgated a formal document in which he agreed to exercise this powers following certain principles and through certain agencies and procedure.

Such charters, or constitutions, are said to be destroyed or issued by royal fiat, which the ruler could logically change such a document at his pleasure, the subjects have usually considered it as a pledge, or contract, which the ruler was bound to observe, and in some cases, the ruler agreed not to change its provisions without the consent of the people.

In practice, such agreements have placed limitations upon royal power, which have been difficult to remove and have often marked the beginning of democratic development. Charters of this type were granted by various German princes, by Louis XVIII in France, by Na napoleon to states that came under his dominion, by the emperor of Japan. And by others. In granting the constitutional charter of 1814, Louis XVIII stated, “We have voluntarily, and by the free exercise of our royal authority, accorded and do accord, grant and concede to our subjects, as well for us as for our successor forever, the constitutional charter which follows.”

Some constitutions have been deliberately created after the establishment of a new state. The constitution of the United States is an example of this method. Constitution Was set up in this manner by the Poles, the Czechoslovaks, the Yugoslavs, and others after the First World War when they Were recognized as sovereign states. Constitutions of this type are possible for people who have previously had considerable political experience. A more usual method of establishing a constitutional system is by internal revolution.

This occurs when people become dissatisfied with the existing form of government and cannot change it legally. Revolutions occur when people are Opposed and misgoverned and believe that the government should rest on a different principle. In the case of revolution, a stable government is usually secured only after considerable violence and disorder. Sometimes the provisional authority which guides the revolution assumes the power to create a new constitution, which it may submit for popular approval. Sometimes it provides for the assembly of a special body to create a new constitution or to draw up such a document and submit it to the people for their acceptance.

Constitutions were created by such revolutionary methods in France’s American states after the French Revolution and after the Franco Prussian War in Russia in 1917 and, more recently, in Spain.

Finally, a constitution may come into existence as the result of slowly working evolutionary changes. Beginning with an autocratic government, power may gradually pass, in fact, though not in law, to persons who represent the people. BY long acquiescence and by the growth of political practices, the latter’s authority may finally be recognized as legal. A constitution of this type will be largely unwritten or appear in a series of documents rather than a single, comprehensive statement.

Its essential character can be determined only by its actual workings and not by its legal form. The constitution of Great Britain is the best example of this type.

Written and Unwritten Constitutions.

The idea of a constitution as a fundamental set of rules following which the state is organized was unknown in the ancient world. Aristotle made a collection of the constitutions of the states of his time. In his Politics, he discussed the best form of constitution. He defined a constitution as “the organization of offices in a state,” which “determines what is to be the governing body and what is the end of the community.”

The Romans also distinguish between the power to make constitutional law and the power to make ordinary law. During the Middle Ages, cities and corporations rights were often defined in written charters, and concessions were sometimes wrung from the kings in written documents that defined certain rights and which were considered contracts between rulers and subjects.

In the sixteenth century, in the writings of that group who were opposed to absolute power, the idea of a “fundamental law,” superior in authority to ordinary law, and the term “constitution” was sometimes used to connect important documents statutes. During the controversy between the Stuart kings and Parliament in the seventeenth century, the idea of a constitution was discussed by various writers?

Among the immediate precursors of written constitutions may be mentioned the “Mayflower Compact” (1620), the “Fundamental Orders of Connecticut” (1639), the charters granted to the English colonies in America the “Agreement of the People,” drawn up by Cromwell’s soldiers (1647)  the “Instrument of Government,” issued by Cromwell (1653) and the “Frame of Government,” prepared by William Penn for the colony of Pennsylvania (1682). By the close of the seventeenth century, the term “constitution” was frequently applied to the fundamental laws related to a government organization.

The prevalent theory gave the concept added authority that a social contract or covenant created the Male. The people voluntarily agreed to set up a body politic. That government rested upon a definite contract between rulers and subjects.

Vattel clear drew the distinction between fundamental law and temporary Statute law in his Law of Nations (I773). He states that the laws made directly with a view to the public welfare ate political laws and in this class are those that concern the body itself and the being of society, the form of government, how the public authority is to be exerted, those, in a word, which together forms the constitution of the state, are the fundamental laws.

These laws, Vattel argued, should be changed only by the people themselves and not by the legislature. His book was widely read in France, England, and America and exerted considerable influence on the constitution-making period which soon followed. Blackstone’s Commentaries on the Laws of England (1765-1769), which formulated the English government’s principles as they were then understood and appeared at a critical time in the history of constitutional government a wide influence, especially in America.

The American doctrine that sovereignty resided in the people and that the government should act as their agent, receiving delegated powers, also contributed to the belief that a written constitution was desirable to keep the government within legal bounds.

In America, the most direct influence was exerted by the colonial charters, which had been cherished in the colonies and served as a basis for colonial self-government. Accordingly, most of the American colonies, after they declared their independence, adopted written constitutions. However, two of Rhode Island and Connecticut continued their government under colonial charters, which served as written constitutions.

When the American union was formed, it was even more necessary to set forth the principles of the new government in a written constitution (1789) so that the powers of the central government then established and those of the states, which were continued in existence, should be fixed with definiteness that would avoid conflict. America was the home of written constitutions, and the constitution of the United States is the oldest written constitution in existence.

France followed the American example in the series of written constitutions drawn up during the French Revolution. The idea spread to other European countries from France, and demand for written constitutions was an important element in the nineteenth century’s revolutionary movements. More than three hundred constitutions were promulgated in Europe between 1800 and 1880. At present, except Great Britain, every state of importance has a written constitution of some kind.

Both written and unwritten constitutions have elements of strength and weakness. A written constitution is usually prepared with care and deliberation. It is likely to be more clear and definite than one consisting largely of usages and customs. Since a written constitution usually provides a special procedure for amendment, it cannot so easily be twisted by the ordinary legislature to meet every popular change of Opinion and is, therefore, more stable and permanent.

On the other hand, the difficulty of amendment often retards needed reform, and the constitution fails to keep pace with changing conditions. A written constitution may become outgrown and may act as an obstacle to political progress. Provisions put into a written constitution are often difficult to remove, even though widespread public opinion finds them undesirable. The disadvantage of rigidity thus offsets the advantage of stability. It is often held that a Bill of Rights in a written constitution safeguards individual liberty, acting as a check on the arbitrary authority of government.

While there is an advantage in a definite formulation of civil rights, and a certain sanctity attached to them when placed in the constitution, their actual guaranty depends upon whether or not the provisions of the constitution may be changed by the ordinary legislative procedure and upon whether or not the courts may impose a legal check on unconstitutional activities on the part of the other organs of government. In practice, individual liberty may be protected in a state whose constitution is unwritten, as in one where elaborate constitutional provisions are found.

An unwritten constitution has the advantage of being flexible and adaptable to changing conditions. It adaptable a legal means of adjusting the constitution to popular demand and prevents the danger of disregarding a constitution which is difficult to range. This elasticity is especially valuable in times of crisis or of rapid social change. Still, it is workable only by people who have a conservative spirit and a strong sense of historical tradition. If a constitution is unwritten, it at least avoids the danger of a document framed on purely theoretical considerations that bear little relation to national experience and needs.

Unwritten constitutions have been criticized because they provide for no distinction between constitutional and statute law. They give too much power to the judiciary to discover constitutional principles in a long accumulated mass of customs, laws, and decisions. Some writers believe that unwritten constitutions are not suited to democracies, which demand a written and definite statement of fundamental principles and are suspicious of governmental powers that are indefinite and discretionary.

An unwritten constitution demands a high degree of political intelligence and constant vigilance on the people to resist governmental usurpation. For an ignorant or turbulent people, a rigid constitution is probably safer than one subject to every whim of popular emotion.

Expansion and Amendment of Constitutions:

No constitution can be considered perfect or permanent. As stated by Washington in his Farewell Address, time and habit are necessary to fix governments’ true character as of other human institutions. Constitutions grow in various ways. Custom and usage create new principles in unwritten constitutions and add to or modify the established system where a written constitution exists.

Growth by this process is likely to be greater in an old than in a new constitution. In an old and settled Civilization, where reverence for tradition and precedent is greater than in a new, or frontier, society. It is also more likely where the constitution is brief and general than where the constitution is elaborate and detailed.

If legislative supremacy exists, if no organ of government can declare unconstitutional a law passed by the national lawmaking body, considerable expansion of the constitution may result from ordinary legislation. Laws may be passed that violate or modify the constitution. The only way to check this tendency is for the electorate to choose representatives that will keep within the written constitution’s legal limits. If public opinion approves the legislature’s changes, this method of expansion permits easy adjustment of the constitution to new conditions.

The fact that differences of opinion will arise concerning the meaning of the most carefully framed constconstitutioning leads to expansion by judicial interpretation. Deficiencies in expression compel the judiciary to state the true meaning of the constitution and determine its framers’ intention. A written constitution that has been in existence for a considerable period will naturally fail to make provision for needs that did not exist when it was framed.

In this case, by “construction,” the judiciary must fill the gaps in the constitution, either by expanding its provisions to cover the new cases or by assuming the action that would have been taken by its framers in case they had been able to foresee the new conditions. If, as in the United States, the judiciary may set aside legislative enactments that they consider in violation of the constitution, the judiciary’s power to modify and expand the constitution by interpretation is enormous. The constitution of the United States has been changed to a far greater degree by this process than by any other.

From the point of view of political organization and the distribution of the state’s sovereign powers, the most important constitutional change method is the formal and legal one of amendment provided for in the constitution itself. Some Of the early written constitutions contained no provision for legal amendment.

Those granted by monarchs usually assumed that changes would come from the same source. In some of the early popular constitutions, it was assumed that the people had an inalienable right to make and amend constitutions. No legal limits were necessary to restrict this power. The value of providing an orderly and legal amendment method was recognized later, and practically all written constitutions at pres ant contain an amending clause.

The amendment method is important in determining the degree to which the constitution keeps pace with changing conditions. If the constitution may be amended easily by a method that enables the political sovereign to express its will, there will be a little discrepancy between actual conditions and legal organization. The chief danger will be that of instability since the state’s fundamental form may be changed due to temporary waves of popular Opinion.

If the constitution is difficult to amend legally or the amendment follows a process that does not enable the political sovereign to express its will, one of the following change methods is likely. Either as new needs arise, a large number of customs and practices, forming an unwritten part of the constitution and supported by public opinion, will develop or an extra-legal method of amendment, such as that of judicial expansion, will be used in place of the formal, legal process, or there will be danger of revolution that will ignore legal procedure and redistribute sovereign powers in accord with the actual political conditions and needs.

Opinions differ as to the desirability of a frequent and easy constitutional amendment. Conservatives, who reverence the past, view constitutions as sacred and oppose innovations. Radicals ridicule the veneration in which constitutions are held and are eager for new experiments.

A sound political theory lies between these extremes. Modern opinion inclines to the following view:

1. The fundamental principles following which a state is organized, the powers of government are distributed, and the liberty of the individual is protected against governmental encroachment should be outlined in a written constitution which cannot be changed legally by the ordinary lawmaking pm

2. The legal method of amendment, while differing in procedure from ordinary lawmaking, should not be so complicated or difficult as to prevent the state’s organization atom corresponding to existing political conditions. The amending process should be neither so rigid as to prevent change nor so flexible as to encourage needless tampering with basic principles. Like the safety valve of an engine, the amending process should safeguard the governmental machine against too great speed and at the same time serve as an outlet against the danger of explosion.

The actual methods by which modern states legally amend their constitutions may be classified as follows:

1. By the ordinary lawmaking body and by the ordinary legislative procedure, as in Great Britain.

2. By the ordinary lawmaking body, but by special procedure or by the unusual majority, as in France, where the two houses of parliament, meeting in joint assembly, after they have declared by separate resolutions in favor of the amendment, act as the constitution amending organ.

3. By special organs of government created for the purpose such as a constitutional convention.

4. By the electorate in the form of a popular referendum or initiative and referendum. This method is favored by some who argue that it distinguishes between state and government and recognizes that the people and not the government should create constitutional law. There is, however, the danger that detailed constitutional provisions may tie the hands of the government and that material not properly constitutional will be incorporated into the written document.

In some cases, several methods are combined. For example, in the American union states, amendments are sometimes prepared by constitutional conventions or by the legislatures and submitted to a popular vote for ratification. In the United States’ national constitution, amendments may be proposed by two-thirds of both houses of Congress, or, at the request of the legislatures of two-thirds of the states, by a national convention called by Congress for that purpose. The legislatures may ratify them in three-fourths of the states or by conventions in three-fourths of the states, Congress having the right to determine which method of ratification shall be followed.

This makes the constitution of the United States one of the most difficult to amend, and, because of the great inequality of population in the different states of the Union, enables a small minority of about one-fortieth of the people to prevent an amendment desired by the remaining overwhelming majority.

In case a written constitution makes no provision for its amendment, it is usually held that the national lawmaking body, by ordinary procedure, may amend the constitution. In a few cases, constitutions have forbidden the amendment of certain of their provisions. The constitution of the United States forbade any amendment before 1808 intended to interfere with the importation of slaves and provides that no state, without its consent, can be deprived of its equal representation in the Senate.

An amendment to the French constitution forbids the abolition of the republican form of government. Opinion differs as to the legal validity of such provisions. Some hold that they are legally binding and can be changed only by revolution. Others hold that the amending clause supersedes them and that, like any other part of the constitution, they may be changed by the legal method provided for amendment. In any case, such provisions are undesirable since they attempt to six certain principles unalterably.

Jefferson’s statement that each generation has the right to determine the form of government and the law under which it lives is a sounder theory of politics. On the other hand, if a constitution provides an amendment method, that method alone is legal.

Any other, no matter how large a majority, would be a revolution. The state’s will can be expressed only in the form of law. An illegal act is never the act of the state. In case of a successful revolution, new sovereignty is created, and I may then determine the form of the constitution and the method it may thereafter be legally changed.

A constitution is a set of standards or principles by which an organization, such as a government, is to be governed. Such a collection of principles is established in a written document, which may apply to any organization from a corporation or non-profit organization, to a government. A governmental constitution is a social code, which declares the character of the government, and defines the philosophies and values to which society must conform. To explore this concept, consider the following constitution definition.

Definition of Constitution

Noun

1. A document that conveys the system of fundamental principles by which a corporation, state, or nation is governed.

Origin

1350-1400       Middle English

U.S. Constitution

The U.S. Constitution is the supreme law by which the United States is governed. A formal declaration of the beliefs of the people, which are based in a desire for personal freedom, the Constitution of the United States specifically describes the powers held by the federal government, reserves powers to the individual states, and sets forth personal, individual rights held by each citizen.

When the people of the Americas banded together to overthrow the tyrannical rule of the British government, a written document, known as the Articles of Confederation, was developed as a show of unity and strength of the people. The people had drawn together into 13 separate colonies, which had a desire to cooperate on a number of issues, overseen by a centralized government. The people were concerned, however, that a central government might become too powerful, effectively crushing the sovereignty of the individual colonies, leaving them in the same repressive state they had fled.

Because of this fear, the central government was given authority over the common defense of the colonies as a whole, the security of personal liberties, and the general wellbeing of the people. The document, however, did not grant the government the powers necessary to accomplish those goals.

For instance, the central government had no authority to tax the people, which means it did not have the funds necessary to operate the government itself. It also had no authority to enforce any acts passed by the government, and there was no national court system. These are just a few deficiencies in the Articles of Confederation that eventually crippled it, ensuring the need for a more comprehensive plan and document.

Once the colonies had freed themselves from British rule, principles by which the people would be governed were reconsidered, and enumerated and detailed in a new document, the U.S. Constitution.  Originally comprised of seven articles, the U.S. Constitution made clear the separate powers of the state and federal governments, and divided the federal government into three branches, each holding certain checks and balances over the others. Since its ratification and implementation in 1789, the U.S. Constitution has been amended 27 times.

Amendments to the Constitution

Once the Constitution was ratified by all of the states, no changes were to be made to the original text. The states, however, did find there were certain things that needed to be clarified regarding personal rights of the people. To that end, Congress immediately undertook addressing those issues, creating amendments to the Constitution. Congressional representatives introduced 19 proposed amendments, of which 12 were approved and sent to the states for ratification. The first 10 of these amendments, which guarantee certain personal freedoms, including freedom of speech, freedom of religion, and the right to bear arms, among others, are known collectively as the Bill of Rights.

The passing of the Bill of Rights is an example of Constitution cooperation. Since its implementation on December 10, 1791, there have been thousands of constitutional amendments proposed by representatives of the states, only 17 of which have been ratified. This is largely because the process of amending the Constitution is not a simple matter. In order to maintain the integrity of the Constitution, which declares the values and principles held dear by the American people, the very Constitution itself specifies that, once an amendment has been approved by Congress, it must be ratified by a minimum of three-fourths of the states. Today, that requires 38 of the 50 states.

The most recently adopted amendment to the Constitution, Amendment XXVII, prevents Congress from granting its members a pay raise during the current congressional session. Rather, any pay raise voted in cannot take effect until the following session begins. While this amendment was proposed originally in 1789, there was not enough interest or support in the states to ratify it until the American people became angered as members of Congress frequently and freely granted themselves raises. The Twenty-Seventh Amendment was ratified on May 7, 1992, more than 200 years after it was first proposed.

Preamble to the Constitution

The Preamble to the Constitution is an introduction to the document that clearly states the purposes the framers of the Constitution had in its creation. Once the content of the Constitution was finalized, the work was handed over to Pennsylvania delegate Gouverneur Morris I to be handwritten. A member of the Constitutional Convention’s Committee on Style and Arrangement, Morris was given broad discretion in the actual punctuation of many clauses. In addition, Morris penned the preamble, which reads:

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Who Wrote the Constitution

The answer to the question who wrote the Constitution is not as straightforward as one might think. This comprehensive document pulls together principles from prior documents, including the Articles of Confederation, and the Declaration of Independence, and it includes additional provisions deemed necessary by the individuals involved in crafting the new government. The titles “Founding Fathers,” and “framers of the Constitution,” are given to these individuals, and many people mistakenly assume they mean the same thing. There is a definite difference.

Founding Fathers

The difference between the “founders” and the “framers” has a lot to do with when, in the process of organizing a new nation, the individuals became involved. The individuals credited with taking the initial actions toward freeing the colonists from British rule are considered to be the Founding Fathers. These men met together secretly before taking bold action in stating that the colonies had the right to be independent states free from oppression, and released from all allegiance to the British Crown. In fact, these brave men committed treason in their endeavors to gain their people’s freedom.

These meetings lead to the creation of a declaration of intent to break free from British rule, with the determination to send the declaration out to the colonies for their individual approval. Virginian activist Richard Henry Lee introduced such a resolution stating the colonies’ intent to claim independence to the Second Continental Congress on June 7, 1776.  Congress adopted this decree, now referred to as the “Lee Resolution,” on July 2, 1776. The following day, John Adams wrote a letter to his Wife Abigail, which can only be described as an example of constitution euphoria, as he said:

“But the Day is past. The Second Day of July 1776, will be the most memorable Epocha, in the History of America. – I am apt to believe that it will be celebrated, by succeeding Generations, as the great anniversary Festival. It ought to be commemorated, as the Day of Deliverance by solemn Acts of Devotion to God Almighty. It ought to be solemnized with Pomp and Parade, with4 Shews, Games, Sports, Guns, Bells, Bonfires and Illuminations from one End of this Continent to the other from this Time forward forever more.”  (Quoted from Adams’ letter by way of the National Archives)

Founding Fathers are those people who also made significant intellectual contributions to the Constitution, and while most of them attended the Constitutional Convention, others were away taking care of important matters elsewhere.

Framers of the Constitution

The framers of the Constitution are those men who attended the Continental Convention, providing input, expressing the desires of the people, and discussing each and every provision before coming up with a final draft. Many of these men were also Founding Fathers, having put their necks on the line taking actions considered to be illegal, and even treasonous, to bring the people to the point of readiness to design a constitution.

Although 55 delegates attended the Constitutional Convention, only 39 of them signed the document upon its completion. The primary men credited with the communal authorship of the Constitution include Thomas Jefferson, James Madison, John Adams, and Thomas Paine. George Washington was responsible for organizing and overseeing the convention, which took place between May 5, 1787, and September 17, 1787.

Constitution Example in Corporations

A corporate constitution is a formal, written document, prepared by officers of the company, or its board of directors. While corporations are not required to have a constitution, many choose to do so as a way to declare the company’s goals, and the standards to which it will hold itself in the pursuit of those goals. Once a corporate constitution is enacted, amendments to the constitution can only be made by authorization of the board of directors.

Example constitutions are available for companies of various sizes, each taking into account the company’s structure. When creating a company constitution, the company has full discretion in what it contains. Recommended provisions include:

• General Terms and Definitions
• General Meetings
• Votes and Proxies
• Directors and Officers
• Director Meetings
• Accounting
• Dissolution of Corporation
• Indemnity of Officers
• Shares and Share Capital

Related Legal Terms and Issues

• Amendment – The modification, correction, addition to, or deletion from, a legal document.
• Colony – A group of people who leave their native country to settle a new land that is subject to the parent nation.
• Ratification – The official method to confirm something, usually by vote, especially the validation of a proposed law.
• Sovereignty – The authority of a state or nation to govern itself.
• Treason – The crime of betraying one’s country.

A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed.^[1] These rules together make up, i.e. constitute, what the entity is. When these principles are written down into a single document or set of legal documents, those documents may be said to embody a written constitution; if they are written down in a single comprehensive document, it is said to embody a codified constitution.

Constitutions concern different levels of organizations, from sovereign states to companies and unincorporated associations. A treaty which establishes an international organization is also its constitution, in that it would define how that organization is constituted. Within states, a constitution defines the principles upon which the state is based, the procedure in which laws are made and by whom. Some constitutions, especially codified constitutions, also act as limiters of state power, by establishing lines which a state’s rulers cannot cross, such as fundamental rights. An example is the constitution of the United States of America.

The Constitution of India is the longest written constitution of any sovereign country in the world,^[2] containing 444 articles in 22 parts,^[3][4] 12 schedules and 118 amendments, with 117,369 words in its English-language translation,^[5] while the United States Constitution is the shortest written constitution, containing seven articles and 27 amendments, and a total of 4,400 words.^[6]You can browse and compare all of the living national constitutions here.

Etymology

The term constitution comes through French from the Latin word constitutio, used for regulations and orders, such as the imperial enactments (constitutiones principis: edicta, mandata, decreta, rescripta).^[7] Later, the term was widely used in canon law for an important determination, especially a decree issued by the Pope, now referred to as an apostolic constitution.

General features

Generally, every modern written constitution confers specific powers to an organization or institutional entity, established upon the primary condition that it abide by the said constitution’s limitations. According to Scott Gordon, author of Controlling the State: Constitutionalism from Ancient Athens to Today a political organization is constitutional to the extent that it «contain[s] institutionalized mechanisms of power control for the protection of the interests and liberties of the citizenry, including those that may be in the minority.»^[8]

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 sovereign 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 they do not have.

In most but not all modern states the constitution has supremacy over ordinary Statutory law (see Uncodified constitution below); in such states 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

Pre-modern constitutions

Ancient

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.

In 621 BC a scribe named Draco codified the cruel oral laws of the city-state of Athens; this code prescribed the death penalty for many offences (nowadays very severe rules are often called «Draconian»). In 594 BC Solon, the ruler of Athens, created the new Solonian Constitution. It eased the burden of the workers, and determined that membership of the ruling class was to be based on 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 the first 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 what he regarded as 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 right to participate in the state, and non-citizens and slaves, who did not.

The Romans first codified their constitution in 450 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. For constitutional principles almost lost to antiquity, see the code of Manu.

Many of the Germanic people 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, while Anglo-Saxon was used for those of England, beginning with the Code of Æthelberht 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.

Dark ages and early Middle ages

Many of the Germanic people 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, while Anglo-Saxon was used for those of England, beginning with the Code of Æthelberht 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.

The Constitution of Yathrib (Arabic: صحیفة المدینه‎‎, Ṣaḥīfat al-Madīna), also known as the Charter of Medina, was drafted by the Islamic prophet Muhammad after his flight (hijra to Yathrib where he became political leader. It constituted a formal agreement between Muhammad and all of the significant tribes and families of Yathrib (later known as Medina), including Muslims, Jews, and pagans.^[9][10] The document was drawn up with the explicit concern of bringing to an end the bitter intertribal fighting between the clans of the Aws (Aus) and Khazraj within Medina. To this effect it instituted a number of rights and responsibilities for the Muslim, Jewish, and pagan communities of Medina bringing them within the fold of one community—the Ummah.^[11] The precise dating of the Constitution of Medina remains debated but generally scholars agree it was written shortly after the Hijra (622).^[12]

In Wales, the Cyfraith Hywel was codified by Hywel Dda c. 942–950.

Middle ages after 1000

The Pravda Yaroslava, originally combined by Yaroslav the Wise the Grand Prince of Kyiv, was granted to Great Novgorod around 1017, and in 1054 was incorporated into the Ruska Pravda, that became the law for all of Kievan Rus. It survived only in later editions of the 15th century.

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.

The Nomocanon of Saint Sava (Serbian: Законоправило/Zakonopravilo)^[13][14][15] was the first Serbian constitution from 1219. This legal act was well developed. St. Sava’s Nomocanon was the compilation of Civil law, based on Roman Law and Canon law, based on Ecumenical Councils and its basic purpose was to organize functioning of the young Serbian kingdom and the Serbian church. Saint Sava began the work on the Serbian Nomocanon in 1208 while being at Mount Athos, using The Nomocanon in Fourteen Titles, Synopsis of Stefan the Efesian, Nomocanon of John Scholasticus, Ecumenical Councils’ documents, which he modified with the canonical commentaries of Aristinos and John Zonaras, local church meetings, rules of the Holy Fathers, the law of Moses, translation of Prohiron and the Byzantine emperors’ Novellae (most were taken from Justinian’s Novellae). The Nomocanon was completely new compilation of civil and canonical regulations, taken from the Byzantine sources, but completed and reformed by St. Sava to function properly in Serbia. Beside decrees that organized the life of church, there are various norms regarding civil life, most of them were taken from Prohiron. Legal transplants of Roman-Byzantine law became the basis of the Serbian medieval law. The essence of Zakonopravilo was based on Corpus Iuris Civilis.

Stefan Dušan, Emperor of Serbs and Greeks, enacted Dušan’s Code (Serbian: Душанов Законик/Dušanov Zakonik)^[16] in Serbia, in two state congresses: in 1349 in Skopje and in 1354 in Serres. It regulated all social spheres, so it was the second Serbian constitution, after St. Sava’s Nomocanon (Zakonopravilo). The Code was based on Roman-Byzantine law. The legal transplanting is notable with the articles 171 and 172 of Dušan’s Code, which regulated the juridical independence. They were taken from the Byzantine code Basilika (book VII, 1, 16–17).

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 1998, S. Kouyaté reconstructed from oral tradition what he claims is a 14th-century charter of the Mali Empire, called the Kouroukan Fouga.^[17]

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.

The Golden Bull of 1356 was a decree issued by a Reichstag in Nuremberg headed by Emperor Charles IV that fixed, for a period of more than four hundred years, an important aspect of the constitutional structure of the Holy Roman Empire.

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.

In Catalonia, the Catalan constitutions were promulgated by the court from 1283 until 1716, when Philip V of Spain gave the Nueva Planta decrees, finishing with the historical laws of Catalonia. These Constitutions were usually made as a royal initiative, but required the favorable vote of the Catalan Courts, the medieval antecedent of the modern Parliaments. These laws had, as the other modern constitutions, preeminence over other laws, and they could not be contradicted by mere decrees or edicts of the king.

The oldest written document still governing a sovereign nation today^[18] is 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 1392 the Carta de Logu was legal code of the Giudicato of Arborea promulgated by the giudicessa Eleanor. It was in force in Sardinia until it was superseded by the code of Charles Felix in April 1827. The Carta was a work of great importance in Sardinian history. It was an organic, coherent, and systematic work of legislation encompassing the civil and penal law.

Iroquois «Great Law of Peace»

The Gayanashagowa, the oral constitution of the Iroquois nation also known as the Great Law of Peace, established a system of governance in which sachems (tribal chiefs) of the members of the Iroquois League made decisions on the basis of universal consensus of all chiefs following discussions that were initiated by a single tribe. The position of sachem descended through families, and were allocated by senior female relatives.^[19]

Historians including Donald Grinde,^[20] Bruce Johansen^[21] and others^[22] believe that the Iroquois constitution provided inspiration for the United States Constitution and in 1988 was recognised by a resolution in Congress.^[23] The thesis is not considered credible by some scholars.^[19][24] Stanford University historian Jack N. Rakove stated that «The voluminous records we have for the constitutional debates of the late 1780s contain no significant references to the Iroquois» and stated that there are ample European precedents to the democratic institutions of the United States.^[25] Francis Jennings noted that the statement made by Benjamin Franklin frequently quoted by proponents of the thesis does not support this idea as it is advocating for a union against these «ignorant savages» and called the idea «absurd».^[26] Bruce Johansen contends Jennings, Tooker etc. have «humorlessly missed the ironic nature of Franklin’s statement»^[27] and persist in «ignoring the relevant sources».^[28] Anthropologist Dean Snow stated that though Franklin’s Albany Plan may have drawn some inspiration from the Iroquois League, there is little evidence that either the Plan or the Constitution drew substantially from this source and argues that «…such claims muddle and denigrate the subtle and remarkable features of Iroquois government. The two forms of government are distinctive and individually remarkable in conception.»^[29]

Modern constitutions

In 1639, the Colony of Connecticut adopted the Fundamental Orders, which was 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».

The English Protectorate that was set up by Oliver Cromwell after the English Civil War promulgated the first detailed written constitution adopted by a modern state;^[30] it was called the Instrument of Government. This formed the basis of government for the short lived republic from 1653 to 1657 by providing a legal rationale for the increasing power of Cromwell, after Parliament consistently failed to govern effectively. Most of the concepts and ideas embedded into modern constitutional theory, especially bicameralism, separation of powers, the written constitution, and judicial review, can be traced back to the experiments of that period. ^[31]

Drafted by Major-General John Lambert in 1653, the Instrument of Government included elements incorporated from an earlier document «Heads of Proposals»,^[32][33] which had been agreed to by the Army Council in 1647, as a set of propositions intended to be a basis for a constitutional settlement after King Charles I was defeated in the First English Civil War. Charles had rejected the propositions, but before the start of the Second Civil War, the Grandees of the New Model Army had presented the Heads of Proposals as their alternative to the more radical Agreement of the People presented by the Agitators and their civilian supporters at the Putney Debates.

On 4 January 1649 the Rump Parliament declared «that the people are, under God, the original of all just power; that the Commons of England, being chosen by and representing the people, have the supreme power in this nation».^[34]

The Instrument of Government was adopted by Parliament on 15 December 1653 and Oliver Cromwell was installed as Lord Protector on the following day. The constitution set up a state council consisting of 21 members while executive authority was vested in the office of «Lord Protector of the Commonwealth»; this position was designated as a non-hereditary life appointment. It also required the calling of triennial Parliaments, with each sitting for at least five months.

The Instrument of Government was replaced in May 1657 by England’s second, and last, codified constitution, the Humble Petition and Advice, proposed by Sir Christopher Packe.^[35] The Petition offered hereditary monarchy to Oliver Cromwell, asserted Parliament’s control over issuing new taxation, provided an independent council to advise the king and safeguarded ‘Triennial’ meetings of Parliament. A modified version of the Humble Petition with the clause on kingship removed was ratified on 25 May. This finally met its demise in conjunction with the death of Cromwell and the Restoration of the monarchy.

Agreements and Constitutions of Laws and Freedoms of the Zaporizian Host was written in 1710 by Pylyp Orlyk, hetman of the Zaporozhian Host. It 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 European constitutions of this era 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.

Democratic constitutions

What is sometimes called the «enlightened constitution» model was developed by philosophers of the Age of Enlightenment such as Thomas Hobbes, Jean-Jacques Rousseau, and John Locke. The model proposed that constitutional governments should be stable, adaptable, accountable, open and should represent the people (i.e., support democracy).^[36]

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.

The Polish–Lithuanian Commonwealth Constitution was passed on May 3 of 1791.^[37][38][39] Another landmark document was the French Constitution, ratified on September 3, 1791.

On March 19, the Spanish Constitution of 1812 was ratified by a parliament gathered in Cadiz, the only Spanish continental city which was safe from French occupation. The Spanish Constitution served as a model for other liberal constitutions of several South-European and Latin American nations like, for example, Portuguese Constitution of 1822, constitutions of various Italian states during Carbonari revolts (i.e., in the Kingdom of the Two Sicilies), the Norwegian constitution of 1814, or the Mexican Constitution of 1824.^[40]

In Brazil, the Constitution of 1824 expressed the option for the monarchy as political system after Brazilian Independence. The leader of the national emancipation process was the Portuguese prince Pedro I, elder son of the king of Portugal. Pedro was crowned in 1822 as first emperor of Brazil. The country was ruled by Constitutional monarchy until 1889, when finally adopted the Republican model.

In Denmark, as a result of the Napoleonic Wars, the absolute monarchy 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 hereditary monarch limited by the constitution, like the Spanish one.

The first Swiss Federal Constitution was put in force in September 1848 (with official revisions in 1878, 1891, (1949. 1971, 1982) and 1999).

The Serbian revolution initially led to a proclamation of a proto-constitution in 1811; the full-fledged Constitution of Serbia followed few decades later, in 1835. The first Serbian constitution (Sretenjski ustav) was adopted at the national assembly in Kragujevac on February 15 in 1835.

The Constitution of Canada came into force on July 1, 1867 as the British North America Act, an act of the British Parliament. Over a century later, the BNA Act was patriated to the Canadian Parliament and augmented with the Canadian Charter of Rights and Freedoms.^[41] Apart from the Constitution Acts, 1867 to 1982, Canada’s constitution also has unwritten elements based in common law and convention.^[42][43]

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.»^[44] 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^[45] and its application to the relations among nations, and they sought to establish customary «laws of war and peace»^[46] 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 the abuse of such authority.^[47]

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^[48] 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^[49] 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.^[50]

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/administration. 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.

Classification

Type	Form	Example
Codified	in single act (document)	Most of the world constitutions.
Uncodified	fully written (in few documents)	San Marino, Saudi Arabia
Uncodified	partially unwritten (see constitutional convention)	Canada, Israel, NZ, UK

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; see constitutional convention.

Codified constitution

Most states in the world have codified constitutions.

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 and some scholars have pointed out that high constitutional turnover within a given country may itself be detrimental to separation of powers and the rule of law.

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, exceptional procedures are often required to amend a constitution. These procedures may include: convocation of a special constituent assembly or constitutional convention, requiring a supermajority of legislators’ votes, the consent of regional legislatures, a referendum process, and/or other procedures that make amending a constitution 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. In ethnic nation-states such as Estonia, the mission of the state can be defined as preserving a specific nation, language and culture.

Uncodified constitution

As of 2013, only two sovereign states have uncodified constitutions, namely New Zealand and the United Kingdom. The Basic Laws of Israel are arguably its equivalent to a constitution.

Uncodified constitutions are the product of an «evolution» of laws and conventions over centuries. By contrast to codified constitutions (in the Westminster System that originated in England), uncodified constitutions include written sources: e.g. constitutional statutes enacted by the Parliament 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.

Written versus unwritten; codified versus uncodified

Some constitutions are largely, but not wholly, 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. It means the Constitution of Australia is uncodified, it also contain constitutional conventions, thus is partially unwritten.

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. Canada’s constitution consists of almost 30 different statutes.

The terms written constitution and codified constitution are often used interchangeably, as are unwritten constitution and uncodified constitution, although this usage is technically inaccurate. A codified constitution is a written constitution contained in a single document, states that do not have such a document have uncodified constitutions but not entirely unwritten constitutions since much of an uncodified constitution is usually written in laws, such as the Basic Laws of Israel or the Parliament Acts of the United Kingdom.

Entrenchment

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The presence or lack of entrenchment is a fundamental feature of constitutions. An entrenched constitution cannot be altered in any way by a legislature as part of its normal business concerning ordinary statutory laws, but can only be amended by a different and more onerous procedure. There may be a requirement for a special body to be set up, or the proportion of favourable votes of members of existing legislative bodies may be required to be higher to pass a constitutional amendment than for statutes. The entrenched clauses of a constitution can create different degrees of entrenchment, ranging from simply excluding constitutional amendment from the normal business of a legislature, to making certain amendments either more difficult than normal modifications, or forbidden under any circumstances.

Entrenchment is an inherent feature in most codified constitutions. A codified constitution will incorporate the rules which must be followed for the constitution itself to be changed.

The US constitution is an example of an entrenched constitution, and the UK constitution is an example of a constitution that is not entrenched (or codified). In some states the text of the constitution may be changed; in others the original text is not changed, and amendments are passed which add to and may override the original text and earlier amendments.

Procedures for constitutional amendment vary between states. In a nation with a federal system of government the approval of a majority of state or provincial legislatures may be required. Alternatively, a national referendum may be required. Details are to be found in the articles on the constitutions of the various nations and federal states in the world.

In constitutions that are not entrenched, no special procedure is required for modification. Lack of entrenchment is a characteristic of uncodified constitutions; the constitution is not recognised with any higher legal status than ordinary statutes. In the UK, for example laws which modify written or unwritten provisions of the constitution are passed on a simple majority in Parliament. No special «constitutional amendment» procedure is required. The principle of parliamentary sovereignty holds that no sovereign parliament may be bound by the acts of its predecessors;^[51] and there is no higher authority that can create law which binds Parliament. The sovereign is nominally the head of state with important powers, such as the power to declare war; the uncodified and unwritten constitution removes all these powers in practice.

In practice democratic governments do not use the lack of entrenchment of the constitution to impose the will of the government or abolish all civil rights, as they could in theory do, but the distinction between constitutional and other law is still somewhat arbitrary, usually following historical principles embodied in important past legislation. For example, several British 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. Several rights that in another state might be guaranteed by constitution have indeed been abolished or modified by the British parliament in the early 21st century, including the unconditional right to trial by jury, the right to silence without prejudicial inference, permissible detention before a charge is made extended from 24 hours to 42 days, and the right not to be tried twice for the same offence.

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. 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. Ultimately it is always possible for a constitution to be overthrown by internal or external force, for example, a revolution (perhaps claiming to be justified by the right to revolution) or invasion. In the Constitution of India, the Supreme Court has created the Doctrine of Basic Structure in Kesavananda Bharti’s case (1973) stating that the essential features of the Basic structure cannot be amended by the Parliament. The Court has identified judicial review, independence of Judiciary, free and fair election, core of Fundamental Rights as a few of the essential features which are unamendable. However, the Supreme Court did not identify specific provisions which are in the category of absolute entrenchment. A critical analysis of the Doctrine of Basic Structure appears in Professor M.K. Bhandari’s book Basic Structure of Indian Constitution — A Critical Reconsideration.

An example of absolute unmodifiability is found in the German constitution. Articles 1 and 20 protect human dignity, human rights, democracy, rule of law, federal and social state principles, and the people’s right of resistance as a last resort against an attempt to abolish the constitutional order. Article 79, Section 3 states that these principles cannot be changed, even according to the methods of amendment defined elsewhere in the document, until a new constitution comes into effect.

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.»^[52] This unmodifiability article played an important role in the 2009 Honduran constitutional crisis.

Distribution of sovereignty

Constitutions also establish where sovereignty is located in the state. There are three basic types of distribution of sovereignty according to the degree of centralisation of power: unitary, federal, and confederal. The distinction is not absolute.

In a unitary state, sovereignty resides in the state itself, and the constitution determines this. The territory of the state may be divided into regions, but they are not sovereign and are subordinate to the state. In the UK, the constitutional doctrine of Parliamentary sovereignty dictates than sovereignty is ultimately contained at the centre. Some powers have been devolved to Northern Ireland, Scotland, and Wales (but not England). Some unitary states (Spain is an example) devolve more and more power to sub-national governments until the state functions in practice much like a federal state.

A federal state has a central structure with at most a small amount of territory mainly containing the institutions of the federal government, and several regions (called states, provinces, etc.) which compose the territory of the whole state. Sovereignty is divided between the centre and the constituent regions. The constitutions of Canada and the United States establish federal states, with power divided between the federal government and the provinces or states. Each of the regions may in turn have its own constitution (of unitary nature).

A confederal state comprises again several regions, but the central structure has only limited coordinating power, and sovereignty is located in the regions. Confederal constitutions are rare, and there is often dispute to whether so-called «confederal» states are actually federal.

To some extent a group of states which do not constitute a federation as such may by treaties and accords give up parts of their sovereignty to a supranational entity. For example, the countries constituting the European Union have agreed to abide by some Union-wide measures which restrict their absolute sovereignty in some ways, e.g., the use of the metric system of measurement instead of national units previously used.

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, Cabinet Ministers are accountable to Parliament, but it is the prime minister who appoints and dismisses them. In the case of the United Kingdom and other countries with a Monarchy, it is the Monarch who appoints and dismisses ministers, on the advice of the Prime Minister. In turn the prime minister will resign if the government loses the confidence of the parliament (or a part of it). Confidence can be lost if the government loses a vote of no confidence or, depending on the country, loses a particularly important vote in parliament such as vote on the budget. When a government loses confidence it stays in office until a new government is formed; something which normally but not necessarily required the holding of a general election.

State of emergency

Many constitutions allow the declaration under exceptional circumstances of some form of state of emergency during which some rights and guarantees are suspended. This deliberate Manifestation can be and has been abused to allow a government to suppress dissent without regard for human rights—see the article on state of emergency.

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 never put into practice. An extreme example was the Constitution of the Soviet Union that on paper supported freedom of assembly and freedom of speech; however, citizens who transgressed unwritten limits were summarily imprisoned. The example demonstrates that the protections and benefits of a constitution are ultimately provided not through its written terms but through deference by government and society to its principles. A constitution may change from being real to a façade and back again as democratic and autocratic governments succeed each other.

Constitutional courts

Constitutions are often, but by no means always, protected by a legal body whose job it is to interpret those constitutions and, where applicable, declare void executive and legislative acts which infringe the constitution. In some countries, such as Germany, this function is carried out by a dedicated constitutional court which performs this (and only this) function. In other countries, such as Ireland, the ordinary courts may perform this function in addition to their other responsibilities. While elsewhere, like in the United Kingdom, the concept of declaring an act to be unconstitutional does 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 public office holder who acts outside the powers granted to that office by a constitution. 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.

Some countries, mainly those with uncodified constitutions, have no such courts at all. For example, the United Kingdom has traditionally operated under the principle of parliamentary sovereignty under which the laws passed by United Kingdom Parliament could not be questioned by the courts.

See also

• Basic law, equivalent in some countries, often for a temporary constitution
• Apostolic constitution (a class of Roman Catholic Church documents)
• Constitution of the Roman Republic
• Constitutional court
• Constitutional economics
• Constitutionalism
• Corporate constitutional documents
• Judicial activism
• Judicial restraint
• Judicial review
• Philosophy of law
• Rule of law
• Rule according to higher law

Judicial philosophies of constitutional interpretation (note: generally specific to United States constitutional law)

• List of national constitutions
• Originalism
• Strict constructionism
• Textualism
• Proposed European Union constitution
  • Treaty of Lisbon (adopts same changes, but without constitutional name)
• United Nations Charter

References

External links

• Constitute, an indexed and searchable database of all constitutions in force
• Dictionary of the History of Ideas Constitutionalism
• Constitutional Law, «Constitutions, bibliography, links»
• International Constitutional Law: English translations of various national constitutions
• constitutions of countries of the European Union
• United Nations Rule of Law: Constitution-making, on the relationship between constitution-making, the rule of law and the United Nations.
• Democracy in Ancient India by Steve Muhlberger of Nipissing University
• Report on the British constitution and proposed European constitution by Professor John McEldowney, University of Warwick Submitted as written evidence to House of Lords Select Committee on Constitution, published to the public on 15 October 2003.