Constitution

:For the entry on the naval ship U.S.S. Constitution, see: USS Constitution.

Governmental constitutions

Most commonly, the term constitution refers to a set of rules and principles that define the nature and extent of government. Most constitutions seek to regulate the relationship between institutions of the state, in a basic sense the relationship between the executive, legislature and the judiciary, but also the relationship of institutions within those branches. For example, executive branches can be divided into a head of government, government departments/ministries, executive agencies and a civil service/bureaucracy. Most constitutions also attempt to define the relationship between individuals and the state, and to establish the broad rights of individual citizens. It is thus the most basic law of an area from which all the other laws and rules are hierarchically derived; in some areas it is in fact called "Basic Law".

Related Topics:
Civil service - Basic Law

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Key features

The following are features of democratic constitutions which have been identified by political scientists to exist, in one form or another, in virtually all national constitutions.

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Codification

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

Related Topics:
Constitution of the United States - Constitution of Australia - Constitution of the United Kingdom

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The term written constitution is used to describe a constitution that is entirely written, which by definition includes every codified constitution. However, some constitutions are entirely written but, strictly speaking, not entirely codified. For example, in the Constitution of Australia, most of its fundamental political principles and regulations concerning the relationship between branches of government, and concerning the government and the individual are codified in a single document, the Constitution of the Commonwealth of Australia. However, the presence of statutes with constitutional significance, namely the Statute of Westminster, as adopted by the Commonwealth in the Statute of Westminster Adoption Act 1942, and the Australia Act means that Australia's constitution is not completely contained in a single constitutional document.

Related Topics:
Constitution of Australia - Statute of Westminster - Statute of Westminster Adoption Act 1942 - Australia Act

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The term written constitution is often used interchangeably with codified constitution, and similarly unwritten constitution is used interchangeably with uncodified constitution. As shown above, this usage with respect to written and codified constitutions can be inaccurate. Strictly speaking, unwritten constitution is never an accurate synonym for uncodified constitution, because all modern democratic constitutions consist of some written sources, even if they have no different technical status than ordinary statutes. Another term used is formal (written) constitution, for example in the following context: "The United Kingdom has no formal constitution". This usage is correct, but it should be construed to mean that the United Kingdom does not have a written constitution, not that the UK has no constitution of any kind, which would not be correct.

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Codified constitution

Most states in the world have a codified constitution. Codified constitutions, unlike uncodified constitutions are not the product of an "evolution" of laws and conventions over centuries, they are usually the product of dramatic political change, such as a revolution. For example, the US constitution was written and subsequently ratified less than 25 years after the American Revolution. The process by which a country adopts a constitution is closely tied to the historical and political context driving this fundamental change. When one compares the elaborate convention method adopted in the United States with the MacArthur inspired post war constitution foisted on Japan, this becomes evident. Arguably the legitimacy (and often the longevity) of codified constitutions are tied to the process by which they are initially adopted.

Related Topics:
Revolution - American Revolution

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

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

Related Topics:
Plessy v. Ferguson - 1896 - 1954 - Brown v. Board of Education - Strict constructionists

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States that have codified constitutions normally give them supremacy over ordinary statute law. That is, if there is a 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. Secondly, an extraordinary procedure is required for constitutional amendments that may involve obtaining 2/3 majorities in the national legislature, the consent of regional legislatures, a referendum process or some other procedure that makes obtaining a constitutional amendment more difficult than passing a simple law.

Related Topics:
Statute - Ultra vires - Unconstitutional - Constitutional amendment - Referendum

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Uncodified constitution

By contrast, in the Westminster tradition which originated in England, the uncodified constitution includes written sources but also unwritten constitutional conventions, observation of precedents, royal prerogatives and custom; together these constitute the British constitutional law. In the days of the British Empire, the Judicial Committee of the Privy Council acted as the constitutional court for many of the British colonies such as Canada and Australia which had federal constitutions.

Related Topics:
Westminster - England - Constitutional convention - Precedent - Royal prerogative - Custom - British constitutional law - British Empire - Judicial Committee of the Privy Council - Canada - Australia

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In states using uncodified constitutions, the difference between constitutional law and statutory law (i.e. law applying to any area of governance) in legal terms is nil. Both can be altered or repealed by a simple majority in Parliament. In practice, democratic governments do not use this opportunity to abolish all civil rights, which in theory they could do, but the distinction between regular and constitutional law is still somewhat arbitrary, usually depending on the traditional devotion of popular opinion to historical principles embodied in important past legislation. For example, several Acts of Parliament such as the Bill of Rights, Human Rights Act and, prior to the creation of Parliament, Magna Carta are regarded as granting fundamental rights and principles which are treated as almost constitutional.

Related Topics:
Statutory - Acts of Parliament - Bill of Rights - Human Rights Act - Magna Carta

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Entrenchment

The presence or lack of entrenchment is a fundamental feature of constitutions. Entrenchment refers to whether the constitution is legally protected from modification without a procedure of constitutional amendment. Entrenchment is an inherent feature in most written constitutions. The US constitution is an example of an entrenched constitution, and the UK constitution is an example of a constitution that is not entrenched.

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Modification of an entrenched constitution will require more than the amendment proposed being passed by the national legislature, it will require wider approval. Sometimes, the reason for this is that the constitution is considered supreme law, such as according to the supremacy clause in the United States constitution. Regardless of whether a constitution has this technical status, all states with an entrenched constitution recongise the difference between constitutional law and ordinary statutory law. The procedure for modifying a constitution is often called amending. Procedures for ratification of constitutional amendments vary between states. In a federal system of government such as the United States and Australia, the approval of a majority of state/provincial legislatures is required. A national referendum may be required in some states, such as Australia.

Related Topics:
Supremacy clause - Amending

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In constitutions that are not entrenched, no special procedure is required for modification. In the small number of countries with un-entrenched constitutions, the lack of entrenchment is because the constitution is not recognised with any higher legal status than ordinary statutes. In the UK for example, passing laws which modify sources of the constitution, whether they are written or unwritten, are passed on a simple majority in Parliament. The concept of "amendment" does not apply, as the constitution can be altered as easily in terms of procedure as any national law.

Related Topics:
Statutes - Parliament

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Distribution of sovereignty

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

Related Topics:
Federal system of government - Federal government - States - Parliamentary sovereignty - Local government - Scottish Parliament - Articles of Confederation - 1777 - 1788

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Separation of powers

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

Related Topics:
Separation of powers - Parliamentary system - Dominate

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Lines of accountability

Lines of accountability are a common feature in all democratic constitutions. In presidential systems of government such as the United States, and semi-presidential systems such as France, department secretaries/ministers are accountable to the President, who has patronage powers to appoint and dismiss ministers. The president is accountable to the people in an election. In Parliamentary systems such as the United Kingdom and Australia, ministers are accountable to Parliament, but it is the Prime Minister who appoints and dismisses them (in Westminster systems he derives this power from the monarch, a component of Parliament). There is the concept of a vote of no confidence in many countries with parliamentary systems, which means that if a majority of the legislature vote for a no confidence motion, then the government must resign, and a new one will be formed, or parliament will be dissolved and a general election called.

Related Topics:
President - Vote of no confidence

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Façade Constitutions

Italian political theorist Giovanni Sartori noted the existence of national constitutions which are a façade for authoritarian sources of power. While such documents may express respect for human rights or establish an independent judiciary, they may be ignored when the government feels threatened or entirely dishonoured in practice. An extreme example was the Constitution of the Soviet Union that on paper supported freedom of assembly or freedom of speech, however citizens who acted accordingly were summarily imprisoned. The example demonstrates that the protections and benefits of a constitution are provided less through its written terms, but more through deference by government and society to its principles.

Related Topics:
Giovanni Sartori - Human rights - Constitution of the Soviet Union - Freedom of assembly - Freedom of speech - Imprisoned

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