A
constitution is a set of rules for government—often codified as a written document—that establishes principles of an autonomous political entity. In the case of countries, this term refers specifically to a national constitution defining the fundamental
politicalPolitics is a process by which groups of people make decisions. The term is generally applied to behavior within civil governments, but politics has been observed in all human group interactions, including corporate, academic and religious institutions...
principles, and establishing the structure, procedures,
powersPower is a measure of an entity's ability to control the environment around itself, including the behavior of other entities. The term authority is often used for power, perceived as legitimate by the social structure. Power can be seen as evil or unjust, but the exercise of power is accepted as...
and
dutiesDuty is a term that conveys a sense of moral commitment to someone or something. The moral commitment is the sort that results in action, and it is not a matter of passive feeling or mere recognition...
, of a
governmentA government is the body within a community, political entity or organization which has the authority to make and enforce rules, laws and regulations.....
. By limiting the government's own reach, most constitutions guarantee certain
rightRights are entitlements or permissions, usually of a legal or moral nature. Rights are of vital importance in the fields of law and ethics, especially theories of justice and deontology.-Theoretical distinctions:...
s to the people. The term
constitution can be applied to any overall
lawLaw is a system of rules, usually enforced through a set of institutions. It shapes politics, economics and society in numerous ways and serves as a primary social mediator of relations between people. Contract law regulates everything from buying a bus ticket to trading on derivatives markets...
that defines the functioning of a government, including several historical constitutions that existed before the development of modern national constitutions.
Constitutions concern different kinds of political organizations. They are found extensively in regional government, at supranational (e.g.,
European UnionThe European Union is an economic and political union of 27 Member States, located primarily in Europe. Committed to regional integration, the EU was established by the Treaty of Maastricht on 1 November 1993 upon the foundations of the pre-existing European Economic Community...
),
federalA federation , also known as a federal state, is a type of sovereign state characterized by a union of partially self-governing states or regions united by a central government...
(e.g., Indian Constitution),
stateState has several meanings in law:# in private international law and conflict of laws, State can refer to a well-defined jurisdiction, with its own set of laws and courts...
or provincial (e.g., the constitution of the Commonwealth of Massachusetts or the constitution of the State of New York), and
sub-national| align="right" style="background:transparent;"| |align="right"| |}Administrative divisions are divisions of a political division. In other words, they are designated portions of a country. They are also called subnational entities. They are each granted a certain degree of autonomy, and...
levels. They are also found in many political groups, such as
political partiesA political party is a political organization that seeks to attain and maintain political power within government, usually by participating in electoral campaigns...
, pressure groups, and
trade unionA trade union is an organization of workers who have banded together to achieve common goals in key areas, such as working conditions. The trade union, through its leadership, bargains with the employer on behalf of union members and negotiates labor contracts with employers...
s.
Non-political entities such as
corporationA corporation is a legal entity separate from the shareholders and employees. In British tradition it is the term designating a body corporate, where it can be either a corporation sole or a corporation aggregate...
s and
voluntary associationA voluntary association or union is a group of individuals who voluntarily enter into an agreement to form a body to accomplish a purpose.Strictly speaking in many jurisdictions no formalities are necessary to start an association...
s, whether incorporated or not, may also have a
constitutionA constitution is the set of regulations which govern the conduct of non-political entities, whether incorporated or not. Such entities include corporations and voluntary associations....
. The constitution of a legally incorporated entity is more usually styled as its
memorandumThe memorandum of association of a company, often simply called the memorandum , is the document that governs the relationship between the company and the outside INDIA...
and
articles of associationThe Continental Association, often known simply as the "Association", was a system created by the First Continental Congress in 1774 for implementing a trade boycott with Great Britain...
(U.S.
incorporationThe Articles of Incorporation are the primary rules governing the management of a corporation in the United States and Canada, and are filed with a state or other regulatory agency...
).
Constitution of IndiaThe Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishing the structure, procedures, powers and duties, of the government and spells out the fundamental rights, directive principles and duties of citizens...
is the longest written constitution of any sovereign country in the world, containing 448 articles, 12 schedules and 94 amendments, thereby totaling 117,369 words in its
English languageEnglish is a West Germanic language that developed in England during the Anglo-Saxon era. As a result of the military, economic, scientific, political, and cultural influence of the British Empire during the 18th, 19th, and early 20th centuries, and of the United States since the mid 20th century,...
version.
Etymology
The term
constitution comes from a Latin term denoting an important law, usually one proclaimed by the Roman emperor (
"constitutiones principis": the edicta, mandata, decrera and rescripta). Later, the term was widely used in
canon lawCanon law is the body of laws and regulations made by or adopted by ecclesiastical authority, for the government of the Christian organization and its members. It is the internal ecclesiastical law governing the Roman Catholic Church, the Eastern Orthodox churches, and the Anglican Communion of...
for an important determination, especially by the
PopeThe pope is the Bishop of Rome and, as such, is leader of the worldwide Catholic Church...
, which are now referred to as
apostolic constitutionAn apostolic constitution is the highest level of decree issued by the Pope of the Catholic Church. The use of the term constitution comes from Latin constitutio, which referred to any important law issued by the Roman emperor, and is retained in church documents because of the inheritance that...
s.
General features
Generally, every constitution confers specific powers to an organization or institutional entity, established upon the primary condition that it abides by the said constitution's limitations.
The Latin term
ultra viresUltra vires is a Latin phrase that literally means "beyond the powers". Its inverse is called intra vires, meaning "within the powers"...
describes activities of officials within an organization or polity that fall outside the constitutional or statutory authority of those officials. For example, a
students' unionA students' union, student government, student senate, students' association, guild of students or government of student body is a student organization present in many colleges, universities and has started to appear in some high schools...
may be prohibited as an organization from engaging in activities not concerning students; if the union becomes involved in non-student activities these activities are considered
ultra vires of the union's charter, and nobody would be compelled by the charter to follow them. An example from the constitutional law of nation-states would be a provincial government in a federal state trying to legislate in an area exclusively enumerated to the federal government in the constitution, such as ratifying a treaty.
Ultra vires gives a legal justification for the forced cessation of such action, which might be enforced by the people with the support of a decision of the
judiciaryThe judiciary is the system of courts which interprets and applies the law in the name of the sovereign or state. The judiciary also provides a mechanism for the resolution of disputes...
, in a case of
judicial reviewJudicial review is the doctrine in democratic theory under which legislative and executive action is subject to invalidation by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority, such as the terms of a...
. A violation of rights by an official would be
ultra vires because a (constitutional) right is a restriction on the powers of government, and therefore that official would be exercising powers he doesn't have.
When an official act is unconstitutional, i.e. it is not a power granted to the government by the Constitution, that act is
null and void, and the nullification is
ab initioThe Latin term ab initio means from the beginning and is used in several contexts:* Marriages annulled under the Catholic Church are considered as ab initio, meaning that the marriage was invalid from the beginning...
, 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
writIn law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this public body is generally a court. Warrants, prerogative writs and subpoenas are types of writs; there are many others.-History:...
s, such as
quo warrantoQuo warranto is one of the prerogative writs, that requires the person to whom it is directed to show what authority he has for exercising some right or power he claims to hold.-History:...
.
Early legal codes
Excavations in modern-day
IraqIraq , officially the Republic of Iraq , also known as Mesopotamia, is a country in Western Asia spanning most of the northwestern end of the Zagros mountain range, the eastern part of the Syrian Desert and the northern part of the Arabian Desert.Iraq shares borders with Jordan to the west, Syria...
by
Ernest de SarzecErnest Choquin de Sarzec was a French archaeologist, to whom is attributed the discovery of the civilization of ancient Sumer. He was in the French diplomatic service; on being transferred to Basra in 1872 as a vice-consul, he became interested in the excavations at Ur, started by the British...
in 1877 found evidence of the earliest known code of justice, issued by the
SumerSumer was a civilization and historical region in southern Iraq . It is the earliest known civilization in the world and is known as the Cradle of Civilization...
ian king
UrukaginaUrukagina , alternately rendered as Uruinimgina or Irikagina, was a ruler of the city-state Lagash in Mesopotamia. He is best known for his reforms to combat corruption, which are sometimes cited as the first example of a legal code in recorded history...
of
LagashLagash is located northwest of the junction of the Euphrates and Tigris rivers and east of Uruk, Lagash was one of the oldest cities of Sumer and later Babylonia...
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
usuryUsury originally meant the charging of interest on loans. This would have included charging a fee for the use of money, such as at a bureau de change. After countries legislated to limit the rate of interest on loans, usury came to mean the interest above the lawful rate...
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-NammuThe Code of Ur-Nammu is the oldest known tablet containing a law code surviving today. It was written in the Sumerian language ca. 2100-2050 BC...
of
UrUr was a city in ancient Sumer, located at the site of modern Tell el-Mukayyar in Iraq's Dhi Qar Governorate....
(
ca 2050 BC). Some of the better-known ancient law codes include the code of
Lipit-IshtarLipit-Ishtar , was the fifth ruler of the first dynasty of Isin, and ruled from around 1934 BCE to 1924 BCE. Some documents and royal inscriptions from his time have survived, but he is mostly known because Sumerian language hymns written in his honor, as well as a legal code written in his name ,...
of
IsinIsin was a city of lower Mesopotamia, which flourished during the 20th century BC. No kings of Isin are known from the Sumerian period, and the "Dynasty of Isin" refers to Amorite states in lower Mesopotamia that attained independence with the decline of the Third dynasty of Ur. The dynasty of...
, the
code of HammurabiThe Code of Hammurabi is a well-preserved ancient law code, created ca. 1790 BC in ancient Babylon. It was enacted by the sixth Babylonian king, Hammurabi...
of
BabyloniaBabylonia was a civilization in Lower Mesopotamia , with Babylon as its capital. Babylonia emerged when Hammurabi created an empire out of the territories of the former kingdoms of Sumer and Akkad...
, the
Hittite codeThe Hittite laws have been preserved on a number of Hittite cuneiform tablets found at Hattusa . Copies have been found written in Old Hittite as well as in Middle and Late Hittite, indicating that they had validity throughout the duration of the Hittite Empire The Hittite laws have been preserved...
, the
Assyrian codeAssyrian law was very similar to Sumerian and Babylonian law, however, notably more brutal than its predecessors. The first copy of the code to come to light, dated to the reign of Tiglath-Pileser I, was discovered in the course of excavations by the German Oriental Society . Three Assyrian law...
and Mosaic law.
Later constitutions
In 621 BC, a scribe named Draco wrote the laws of the
city-stateA city-state is an independent republican country whose territory consists of a city which is not administered as part of another local government....
of
AthensAthens , the capital and largest city of Greece, dominates the Attica periphery; as one of the world's oldest cities, its recorded history spans around 3,400 years....
; and being quite cruel, this code prescribed the death penalty for any offence. In 594 BC,
SolonSolon was an Athenian statesman, lawmaker, and elegiac poet. He is remembered particularly for his efforts to legislate against political, economic and moral decline in archaic Athens...
, the ruler of Athens, created the new
Solonian ConstitutionThe Solonian Constitution was created by Solon in the early 6th century BC.Solon wanted to revise or abolish the older laws of Draco, which had not solved any of the problems in Athens despite inflicting harsh penalties for almost every crime. Under Solon's reforms, all debts were abolished and all...
. It eased the burden of the workers, however it made the ruling class to be determined by wealth (
plutocracyPlutocracy is rule by the wealthy, or power provided by wealth. The combination of both plutocracy and oligarchy is called plutarchy.In a plutocracy, the degree of economic inequality is high while the level of social mobility is low...
), rather than by birth (
aristocracyAristocracy is a form of government, in which a few of the most prominent citizens rule. This may be a hereditary elite, or it may be by a system of cooption where a council of prominent citizens add leading soldiers, merchants, land owners, priests, and lawyers to their number...
). Cleisthenes again reformed the Athenian constitution and set it on a democratic footing in 508 BC.
AristotleAristotle was a Greek philosopher, a student of Plato and teacher of Alexander the Great. He wrote on many subjects, including physics, metaphysics, poetry, theater, music, logic, rhetoric, politics, government, ethics, biology, and zoology.Together with Plato and Socrates , Aristotle is one of...
(
ca 350 BC) was one of the first in recorded history to make a formal distinction between ordinary law and constitutional law, establishing ideas of constitution and
constitutionalismConstitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law." These ideas, attitudes and patterns of behavior,...
, 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,
PoliticsAristotle's Politics is a work of political philosophy. The end of the Nicomachean Ethics declared that the inquiry into ethics necessarily follows into politics, and the two works are frequently considered to be parts of a larger treatise, or perhaps connected lectures, dealing with the...
, and
Nicomachean EthicsNicomachean Ethics is the name normally given to the most well-known work by Aristotle on ethics...
he explores different constitutions of his day, including those of Athens,
SpartaLycurgus or Lykurgus may refer to:* People:** Lycurgus of Sparta, creator of constitution of Sparta** Lycurgus of Athens, one of the ten notable orators at Athens, ** Lycurgus , king** Lycurgus , king...
, and
CarthageCarthage refers both to an ancient city in present-day Tunisia, and a modern-day suburb of Tunis. The civilization that developed within the city's sphere of influence is referred to as Punic or Carthaginian...
. He classified both what he regarded as good and bad constitutions, and came to the conclusion that the best constitution was a mixed system, including monarchic, aristocratic, and democratic elements. He also distinguished between citizens, who had the exclusive opportunity to participate in the state, and non-citizens and slaves who did not.
The Romans first codified their constitution in 449 BC as the
Twelve TablesThe Law of the Twelve Tables was the ancient legislation that stood at the foundation of Roman law. The Law of the Twelve Tables formed the centerpiece of the constitution of the Roman Republic and the core of the mos maiorum...
. They operated under a series of laws that were added from time to time, but
Roman lawThe term Roman law denotes the legal system of ancient Rome, and the legal developments which occurred before the seventh century AD — when the Roman–Byzantine state adopted Greek as the official lingua franca. The development of Roman law comprises more than a thousand years of jurisprudence —...
was never reorganised into a single code until the
Codex TheodosianusThe Codex Theodosianus was a compilation of the laws of the Roman Empire under the Christian emperors since 312. A commission was established by Theodosius II in 429 and the compilation was published in the eastern half of the Roman Empire in 438...
(AD 438); later, in the Eastern Empire the
Codex repetitæ prælectionisThe Corpus Juris Civilis is the modern name for a collection of fundamental works in jurisprudence, issued from 529 to 534 by order of Justinian I, Eastern Roman Emperor....
(534) was highly influential throughout Europe. This was followed in the east by the
Ecloga of
Leo III the IsaurianLeo III the Isaurian or the Syrian , was Byzantine emperor from 717 until his death in 741...
(740) and the
Basilica of
Basil IBasil I, called the Macedonian was Byzantine emperor of Armenian origin from 867 to 886. Born a simple peasant in Thrace, he rose in the imperial court, and usurped the imperial throne from Michael III...
(878).
The
Edicts of AshokaThe Edicts of Ashoka are a collection of 33 inscriptions on the Pillars of Ashoka, as well as boulders and cave walls, made by the Emperor Ashoka of the Mauryan dynasty during his reign from 272 to 231 BC. These inscriptions are dispersed throughout the areas of modern-day Pakistan, Nepal and...
established constitutional principles for the
3rd century BCThe 3rd century BC started the first day of 300 BC and ended the last day of 201 BC. It is considered part of the Classical era, epoch, or historical period.-Overview:...
MauryaThe Maurya Empire was a geographically extensive and powerful empire in ancient India, ruled by the Mauryan dynasty from 321 to 185 B.C.E....
king's rule in
Ancient IndiaAncient India may refer to:*The ancient History of India, which generally includes the ancient history of the whole Indian subcontinent **Indus Valley Civilization — during the Bronze Age...
.
Many of the Germanic peoples that filled the power vacuum left by the Western Roman Empire in the
Early Middle AgesThe Early Middle Ages, or Dark Ages, is a period in the history of Europe following the fall of the Western Roman Empire. It lasted from about AD 500 to 1000. The period featured raiding, migration, and conquest by Huns, Germanic peoples, Arabs, Vikings, Hungarians and others. There was frequent...
codified their laws. One of the first of these Germanic law codes to be written was the Visigothic
Code of EuricEuric, also known as Evaric, Erwig, or Eurico in Spanish and Portuguese , was the younger brother of Theodoric II and ruled as king of the Visigoths, with his capital at Toulouse, from 466 until his death in 484....
(471). This was followed by the
Lex BurgundionumThe Lex Burgundionum refers to the law code of the Burgundians, probably issued by king Gundobad....
, applying separate codes for Germans and for Romans; the
Pactus AlamannorumThe terms Lex Alamannorum and Pactus Alamannorum refer to two early medieval law codes of the Alamanni. They were first edited in parts in 1530 by Johannes Sichard in Basel.-Pactus Alamannorum:...
; and the
Salic LawSalic law was an important body of traditional law codified for governing the Salian Franks in the early Middle Ages during the reign of King Clovis I in the 6th century...
of the
FranksThe Franks or Frankish people were a West Germanic tribal confederation first attested in the 3rd century as living north and east of the Lower Rhine River. From the third to fifth centuries some Franks raided Roman territory while other Franks joined the Roman troops in Gaul...
, all written soon after 500. In 506, the
BreviarumThe Breviary of Alaric is a collection of Roman law, compiled by order of Alaric II, King of the Visigoths, with the advice of his bishops and nobles, in the year 506, the twenty-second year of his reign...
or
"Lex Romana" of
Alaric IIAlaric II, also known as Alarik, Alarich, and Alarico in Spanish and Portuguese or Alaricus in Latin succeeded his father Euric in 485 and became eighth king of the Visigoths. He established his capital at Aire-sur-l'Adour...
, king of the Visigoths, adopted and consolidated the
Codex Theodosianus together with assorted earlier Roman laws. Systems that appeared somewhat later include the
Edictum RothariThe Edictum Rothari was the first written compilation of Lombard law, codified and promulgated 22 November 643 by King Rothari. The custom of the Lombards, according to Paul the Deacon, the Lombard historian, had been held in memory before this...
of the
LombardsThe Lombards were a Germanic people originally from Northern Europe who settled in the valley of the Danube and from there invaded Byzantine Italy in 568 under the leadership of Alboin. They established a Kingdom of Italy which lasted until 774, when it was conquered by the Franks...
(643), the
Lex Visigothorum (654), the
Lex Alamannorum (730) and the
Lex FrisionumLex Frisionum, the "Law Code of the Frisians" was recorded in Latin during the reign of Charlemagne, after the year785, when the Frankish conquest of Frisia was completed by the final defeat of the Frisian king Radboud. The law code covered the region of the Frisians...
(
ca 785). These continental codes were all composed in Latin, whilst Anglo-Saxon was used for those of England, beginning with the Code of
Ethelbert of KentÆthelberht was King of Kent from about 580 or 590 until his death. In his Ecclesiastical History of the English People, the monk Bede lists Aethelberht as the third king to hold imperium over other Anglo-Saxon kingdoms...
(602). In ca. 893,
Alfred the GreatAlfred the Great , was king of the Anglo-Saxon kingdom of Wessex from 871 to 899. Alfred is noted for his defence of the Anglo-Saxon kingdoms of southern England against the Vikings, becoming the only English king to be given the epithet "the Great". Alfred was the first King of the West Saxons to...
combined this and two other earlier Saxon codes, with various Mosaic and Christian precepts, to produce the
Doom BookThe Doom Book, Code of Alfred or Legal Code of Aelfred the Great was the code of laws compiled by Alfred the Great The Doom Book, Code of Alfred or Legal Code of Aelfred the Great was the code of laws ("dooms", laws or judgments) compiled by Alfred the Great The Doom Book, Code of Alfred or Legal...
code of laws for England.
Japanis an island country in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, People's Republic of China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
's
Seventeen-article constitutionThe is, according to Nihon Shoki published in 720, a document authored by Prince Shōtoku in 604. It was adopted in the reign of Empress Suiko. The emphasis of the document is not so much on the basic laws by which the state was to be governed, such as one may expect from a modern constitution, but...
written in 604, reportedly by
Prince Shōtoku, also known as , was a regent and a politician of the Asuka period in Japan. Recent historical studies cast doubt of some of achievement attributed to him.-Cultural and political role:Prince Shōtoku looked to China for political and religious inspiration....
, is an early example of a constitution in Asian political history. Influenced by
BuddhistBuddhism, as traditionally conceived, is a path of salvation attained through insight into the ultimate nature of reality. It encompasses a variety of traditions, beliefs and practices, largely based on teachings attributed to Siddhartha Gautama, commonly known as the Buddha...
teachings, the document focuses more on social morality than institutions of government
per se and remains a notable early attempt at a government constitution. Another is the
Constitution of MedinaThe Constitution of Medina , also known as the Charter of Medina, was drafted by the Islamic prophet Muhammad. It constituted a formal agreement between Muhammad and all of the significant tribes and families of Yathrib , including Muslims, Jews, and pagans...
, drafted by the prophet of
IslamIslam Islam Islam ( al-’islām,
[There are ten pronunciations of Islam in English, differing in whether the first or second syllable has the stress, whether the s is or , and whether the a is pronounced as in father, as in cat, or (when the stress is on the i) as in the a of sofa...]
,
MuhammadMuhammad ibn ‘Abdullāh , is the founder of the religion of Islam [ إِسْلامْ ] and is regarded by Muslims as a messenger and prophet of , the last and the greatest law-bearer in a series of Islamic prophets as taught by the...
, in 622. It is said to be one of the earliest constitutions which guarantees basic rights to religions and adherents as well as reinforcing a judiciary process regarding the rules of warfare, tax and civil disputes.
In Wales, the
Cyfraith HywelWelsh law, the law of Wales, was traditionally first codified by Hywel Dda during the period between 942 and 950 when he was king of most of Wales. In Welsh it is usually called Cyfraith Hywel, the Law of Hywel...
was codified by
Hywel DdaHywel Dda , was a well-thought-of king of Deheubarth in south-west Wales, who, using his cunning, eventually came to rule Wales from Prestatyn to Pembroke. As a descendant of Rhodri Mawr through his father Cadell, Hywel was a member of the Dinefwr branch of the dynasty and is also named Hywel ap...
c. 942–950.
The
Pravda Yaroslava, originally combined by Yaroslav the Wise the
Grand Prince of Kiev, was granted to Great Novgorod around 1017, and in 1054 was incorporated into the
Russkaya PravdaRusskaya Pravda was the legal code of Kievan Rus and the subsequent Rus' principalities during the times of feudal division...
, that became the law for all of Kievan Rus. It survived only in later editions of the 15th century.
The
Gayanashagowa, or 'oral' constitution of the
IroquoisThe Iroquois , also known as the Haudenosaunee or the "People of the Longhouse", are an indigenous people of North America. In the 16th century or earlier, the Iroquois came together in an association known as the Iroquois League, or the "League of Peace and Power"...
nation, has been estimated to date from between 1090 and 1150. It is also thought to have provided a partial inspiration for the US Constitution and Bill of Rights, as was recognised by the US Congress in a resolution passed in October, 1988.
In
EnglandEngland is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west and the North Sea to the east, with the English Channel to the south separating it from continental...
,
Henry I'sHenry I was the fourth son of William I the Conqueror. He succeeded his elder brother William II as King of England in 1100 and defeated his eldest brother, Robert Curthose, to become Duke of Normandy in 1106...
proclamation of the
Charter of LibertiesThe Charter of Liberties, also called the Coronation Charter, was a written proclamation by Henry I of England, issued upon his ascension to the throne in 1100. It sought to bind the King to certain laws regarding the treatment of church officials and nobles...
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 JohnJohn , King of England, reigned from 6 April 1199 until his death. He acceded to the throne as the younger brother of King Richard I, who died without issue...
to sign
Magna CartaMagna Carta, also called Magna Carta Libertatum , is an English legal charter, originally issued in the year 1215. It was written in Latin and is known by its Latin name...
in 1215. The most important single article of the
Magna Carta, related to "
habeas corpusHabeas corpus is a legal action, or writ, through which a person can seek relief from the unlawful detention of him or herself, or of another person. It protects the individual from harming him or herself, or from being harmed by the judicial system...
", provided that the king was not permitted to imprison, outlaw, exile or kill anyone at a whim—there must be
due processDue process alternatively due process of law or the process that is due, is the principle that the government must respect all of the legal rights that are owed to a person according to the law...
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 contractSocial contract describes a broad class of theories that try to explain the ways in which people form states and/or maintain social order. The notion of the social contract implies that the people give up some rights to a government or other authority in order to receive or maintain social order...
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 MonarchyA constitutional monarchy is a form of government in which a monarch acts as head of state within the parameters of a written , unwritten or blended constitution...
, with further reforms shifting the balance of power from the monarchy and nobility to the
House of CommonsThe House of Commons is the lower house of the Parliament of the United Kingdom, which also comprises the Sovereign and the House of Lords . Both Commons and Lords meet in the Palace of Westminster. The Commons is a democratically elected body, consisting of 646 members, who are known as "Members...
.
In 1222, Hungarian King
Andrew IIAndrew II the Jerosolimitan , King of Hungary. He was the younger son of King Béla III of Hungary, who invested him with the government of the Principality of Halych...
issued the
Golden Bull of 1222The Golden Bull of 1222 was a golden bull, or edict, issued by King Andrew II of Hungary. The law established the rights of Hungary's noblemen, including the right to disobey the King when he acted contrary to law . The nobles and the church were freed from all taxes and could not be forced to go...
.
Between 1220 and 1230, a
SaxonThe Free State of Saxony is a federal state of Germany, located in the southeastern part of present-day Germany. It is the tenth-largest German state in area and the sixth largest in population , of Germany's sixteen states.Long in the heart of German-speaking Europe, Saxony became one of the new...
administrator,
Eike von RepgowEike von Repgow from Repgow, now Reppichau in Saxony-Anhalt), was a medieval German administrator who compiled the Sachsenspiegel in the Thirteenth Century.-The Sachsenspiegel:...
, composed the
SachsenspiegelThe Sachsenspiegel is the most important law book and legal code of the German Middle Ages. Written ca...
, which became the supreme law used in parts of Germany as late as 1900.
In 1236,
Sundiata KeitaSundiata Keita or Sundjata Keyita or Mari Djata I or just Sundiata was the founder of the Mali Empire and celebrated as a hero of the Malinke people people of West Africa in the semi-historical Epic of Sundiata....
presented an oral constitution federating the
Mali Empire|native_name = Manden Kurufa|conventional_long_name = Mali Empire|common_name = Mali Empire|continent = Africa|region = North-West Africa|country = [Mali]|status = Empire|government_type g = Constitutional monarchy||year_start = 1230s...
, called the
Kouroukan FougaThe Kouroukan Fouga or Kurukan Fuga was the constitution of the Mali Empire . It formally established the federation of Mandinka clans under one government, outlined how it would operate and established the laws which the people would live by...
.
Meanwhile, around 1240, the
CoptA Copt is a native Egyptian Christian...
ic Egyptian Christian writer, 'Abul Fada'il Ibn al-'Assal, wrote the
Fetha NegestThe Fetha Negest is a legal code compiled around 1240 by the Coptic Egyptian Christian writer, 'Abul Fada'il Ibn al-'Assal, in Arabic that was later translated into Ge'ez in Ethiopia and expanded upon with numerous local laws...
in
ArabicArabic is a Central Semitic language, thus related to and classified alongside other Semitic languages such as Hebrew and the Neo-Aramaic languages. In terms of speakers, the Arabic macrolanguage is the largest member of the Semitic language family. It is spoken by more than 280 million people as...
. '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'ezGe'ez is an ancient South Semitic language that developed in the current region of Eritrea and northern Ethiopia in the Horn of Africa...
and entered Ethiopia around 1450 in the reign of
Zara YaqobZar'a Ya`qob or Zera Yacob was of Ethiopia , and a member of the Solomonic dynasty...
. Even so, its first recorded use in the function of a constitution (supreme law of the land) is with
Sarsa DengelSarsa Dengel was of Ethiopia, and a member of the Solomonic dynasty...
beginning in 1563. The
Fetha Negest remained the supreme law in Ethiopia until 1931, when a modern-style Constitution was first granted by Emperor Haile Selassie I.
Stefan Dušan, Emperor of Serbs and Greeks, made and enforced
Dušan's CodeDušan's Code is a legal code, one of two the most significant cultural-historical monuments of medieval Serbia, accompanying St. Sava's Nomocanon. It was presented by Tsar Stefan Dušan in two state congresses: in 1349 in Skopje and in 1354 in Serres...
in
SerbiaSerbia , officially the Republic of Serbia , is a country located in both Central and Southeastern Europe. Its territory covers the southern part of the Pannonian Plain and central part of the Balkans...
, in two state congresses: in 1349 in
SkopjeSkopje is the capital and largest city of the Republic of Macedonia, with more than a quarter of the population of the country, as well as its political, cultural, economic, and academic centre. It was known in the Roman period under the name Scupi. The city developed rapidly after World War II,...
and in 1354 in
SerresSerres is a city in Greece, seat of the Serres prefecture.Serres may also refer to:Places:* Serres, Germany, a part of Wiernsheim in Baden-WürttembergIn France:* Serres, Aude in the Aude département...
.
In
ChinaChina is a cultural region, an ancient civilization, and, depending on perspective, a national or multinational entity extending over a large area in East Asia....
, the
Hongwu EmperorThe Hongwu Emperor , known variably by his given name Zhu Yuanzhang and by the temple name Taizu of the Ming was the founder and first emperor of the Ming Dynasty of China...
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 DynastyThe Ming Dynasty , or Empire of the Great Ming , was the ruling dynasty of China from 1368 to 1644, following the collapse of the Mongol-led Yuan Dynasty. The Ming, "one of the greatest eras of orderly government and social stability in human history," was the last dynasty in China ruled by ethnic...
for the next 250 years.
Modern constitutions
The earliest written constitution still governing a sovereign nation today may be that of
San MarinoThe Most Serene Republic of San Marino is a country situated in the Apennine Mountains. It is a landlocked enclave, completely surrounded by Italy. Its size is just over 60 km² with an estimated population of almost 30,000. Its capital is the City of San Marino...
. The
Leges Statutae Republicae Sancti MariniThe Constitution of San Marino is distributed over a number of legislative instruments of which the most significant are the Statutes of 1600 and the Declaration of Citizen Rights of 1974 as amended in 2002...
was written in Latin and consists of six books. The first book, with 62 articles, establishes councils, courts, various executive officers and the powers assigned to them. The remaining books cover criminal and civil law, judicial procedures and remedies. Written in 1600, the document was based upon the
Statuti Comunali (Town Statute) of 1300, itself influenced by the
Codex Justinianus, and it remains in force today.
In 1639, the Colony of Connecticut adopted the
Fundamental OrdersThe Fundamental Orders were adopted by the Connecticut Colony council on January 14, 1638 OS . The orders describe the government set up by the Connecticut River towns, setting its structure and powers....
, which is considered the first
North AmericaNorth America is the northern continent of the Americas, situated in the Earth's northern hemisphere and in the western hemisphere. It is bordered on the north by the Arctic Ocean, on the east by the North Atlantic Ocean, on the southeast by the Caribbean Sea, and on the west by the North Pacific...
n constitution, and is the basis for every new Connecticut constitution since, and is also the reason for
ConnecticutConnecticut is a state in the northeastern United States. It is bordered by Rhode Island to the east, Massachusetts to the north, and New York to the west and south ....
's nickname, "the Constitution State". England had two short-lived written Constitutions during Cromwellian rule, known as the Instrument of Government (1653), and
Humble Petition and AdviceThe Humble Petition and Advice was the second, and last, codified constitution of England after the Instrument of Government. It came about largely as a result of the rise of the New Cromwellians...
(1657).
Agreements and Constitutions of Laws and Freedoms of the Zaporizian HostThe Constitution of Pylyp Orlyk or Pacts and Constitutions of Rights and Freedoms of the Zaporizhian Host was a 1710 constitutional document written by Hetman Pylyp Orlyk...
can be acknowledged as the first European constitution in a modern sense. It was written in 1710 by
Pylyp OrlykPylyp Orlyk was a Zaporozhian Cossack starshyna, Hetman in exile, diplomat, secretary and close associate of Hetman Ivan Mazepa.- Biography :Pylyp Orlyk was born in the village of Kosuta, Ashmyany county, Pylyp Orlyk (born on October 11, 1672 in Kosuta, Ashmyany county, Vileyka district of...
,
hetman of the
Zaporozhian HostThe Zaporozhian Cossacks were Cossacks who lived in Zaporozhia, in Central Ukraine. The Zaporozhian Host grew rapidly in the 15th century by serfs fleeing the Polish Lithuanian Commonwealth....
. This
"Constitution of Pylyp OrlykThe Constitution of Pylyp Orlyk or Pacts and Constitutions of Rights and Freedoms of the Zaporizhian Host was a 1710 constitutional document written by Hetman Pylyp Orlyk...
" (as it is widely known) was written to establish a free Zaporozhian-Ukrainian Republic, with the support of
Charles XII of SwedenCharles XII was the King of Sweden from 1697 to 1718....
. 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
UkrainianUkraine is a country in Eastern Europe. It is bordered by Russia to the east; Belarus to the north; Poland, Slovakia, and Hungary to the west; Romania and Moldova to the southwest; and the Black Sea and Sea of Azov to the south. The city of Kiev is both the capital and the largest city of...
State never materialized, and his constitution, written in exile, never went into effect.
Other examples of early European constitutions were the
Corsican ConstitutionThe first Corsican Constitution was drawn up in 1755 for the short-lived Corsican Republic and remained in force until the annexation of Corsica by France in 1769...
of 1755 and the
Swedish Constitution of 1772Sweden's Constitution of 1772 took effect through a bloodless coup d'état carried out by King Gustav III, establishing a brief absolute monarchy in Sweden. This was a response to perceived harm wrought upon Sweden by a half-century of parliamentarism during the country's "Age of Liberty"...
. 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 ConfederationThe Articles of Confederation and Perpetual Union, commonly referred to as the Articles of Confederation, was the first constitution of the United States of America and legally established the union of the states. The Second Continental Congress appointed a committee to draft the Articles in June...
and
United States ConstitutionThe Constitution of the United States of America is the supreme law of the United States. It is the foundation and source of the legal authority underlying the existence of the United States of America and the federal government of the United States...
), with the exceptions of Massachusetts, Connecticut and Rhode Island. The
Commonwealth of MassachusettsThe Commonwealth of Massachusetts is a state in the New England region of the northeastern United States. It is bordered by Rhode Island and Connecticut to the south, New York to the west, and Vermont and New Hampshire to the north; at its east lies the Atlantic Ocean. Most of its population of...
adopted its Constitution in 1780, the oldest still-functioning constitution of any U.S. state; while Connecticut and Rhode Island officially continued to operate under their old colonial charters, until they adopted their first state constitutions in 1818 and 1843, respectively.
The United States Constitution, ratified June 21, 1788, was influenced by the British constitutional system and the political system of the
United ProvincesThe Republic of the Seven United Netherlands was a European republic between 1581 and 1795, in about the same location as the modern Kingdom of the Netherlands,...
, plus the writings of
PolybiusPolybius was a Greek historian of the Hellenistic Period noted for his book called The Histories covering in detail the period of 220–146 BC...
,
LockeJohn Locke was an English physician and philosopher regarded as one of the most influential of Enlightenment thinkers. Considered the first of the British empiricists, he is equally important to social contract theory. His work had a great impact upon the development of epistemology and political...
,
MontesquieuCharles-Louis de Secondat, baron de La Brède et de Montesquieu , was a French social commentator and political thinker who lived during the Era of the Enlightenment...
, and others. The document became a benchmark for
republicanismRepublicanism is the ideology of governing a nation as a republic, where the head of state is appointed by means other than heredity, often elections. The exact meaning of Republicanism varies depending on the cultural and historical context. The sometimes contrary definitions are all covered in...
and codified constitutions written thereafter. Next were the
Polish-Lithuanian CommonwealthThe Polish–Lithuanian Commonwealth was formed by the union of the Kingdom of Poland and Grand Duchy of Lithuania in 1569. The new Commonwealth was one of the largest and most populous countries of 16th and 17th-century Europe....
Constitution of May 3, 1791The Constitution of May 3, 1791 is generally regarded as Europe's first and the world's second modern codified national constitution, following the 1788 ratification of the United States Constitution. The May 3, 1791, Constitution was adopted as a "Government Act" on that date by the Sejm of...
, traditionally regarded as world's second and Europe's first, and the
French Constitution of September 3, 1791The short-lived French Constitution of 1791 was the first written constitution of France. One of the basic precepts of the revolution was adopting constitutionality and establishing popular sovereignty, following the steps of the United States of America....
. The
Spanish Constitution of 1812The Spanish Constitution of 1812 was promulgated by the Cádiz Cortes, the national legislative assembly of Spain acting while in refuge. The Spaniards baptised the constitution "La Pepa" because it was adopted on Saint Joseph's Day, The Spanish Constitution of 1812 was promulgated by the Cádiz...
was the fourth
modernModern Age is an American conservative academic quarterly journal, founded in 1957 by Russell Kirk in close collaboration with Henry Regnery...
,
democraticDemocracy is a system of government in which either the actual governing is carried out by the people governed , or the power to do so is granted by them...
and
liberalLiberalism is the belief in the importance of individual freedom. This belief is widely accepted today throughout the world, and was recognized as an important value by many philosophers throughout history...
world´s national constitution gone into effect. It served as a model for other liberal constitutions of several South-European and
Latin AmericaLatin America is a region of the Americas where Romance languages – particularly Spanish, Portuguese, and variably French – are primarily spoken. Latin America has an area of approximately 21,069,501 km² , almost 3.9% of the Earth's surface or 14.1% of its land surface area...
n nations like
Portuguese Constitution of 1822The Liberal Revolution of 1820 was a political revolution that erupted in 1820 and lasted until 1826. It was unchained via a military insurrection in the city of Porto, in northern Portugal, that quickly and peacefully spread to the rest of the country. From 1807 to 1811 Napoleonic French forces...
, constitutions of various
ItalianItaly , officially the Italian Republic , is a country located on the Italian Peninsula in Southern Europe and on the two largest islands in the Mediterranean Sea, Sicily and Sardinia. Italy shares its northern, Alpine boundary with France, Switzerland, Austria and Slovenia...
states during
CarbonariThe Carbonari were groups of secret revolutionary societies founded in early 19th-century Italy. Their goals were patriotic and liberal and they played an important role in the Risorgimento and the early years of Italian nationalism....
revolts (i.e. in the
Kingdom of the Two SiciliesThe Kingdom of the Two Sicilies , commonly known as just the Two Sicilies, was the largest of the Italian states before unification. It lasted until 1861, when it was annexed by the Kingdom of Italy...
), or
Mexican Constitution of 1824 The 1824 Constitution of Mexico was the first full constitution adopted by the Mexican Republic. Enacted on October 4, 1824, following the overthrow of the short-lived Mexican Empire of Iturbide, the constitution stated that the new republic was to be styled the "United Mexican...
. As a result of the
Napoleonic WarsThe Napoleonic Wars were a series of conflicts declared against Napoleon's French Empire and changing sets of European allies by opposing coalitions that ran from 1803 to 1815. As a continuation of the wars sparked by the French Revolution of 1789, they revolutionized European armies and played...
, the
absolute monarchyAbsolute monarchy is a monarchical form of government where the king or queen has absolute power over all aspects of his/her subjects' lives. Although some religious authorities may be able to discourage the monarch from some acts and the sovereign is expected to act according to custom, in an...
of
DenmarkDenmark is a Scandinavian country in Northern Europe and the senior member of the Kingdom of Denmark. It is the southernmost of the Nordic countries; southwest of Sweden and south of Norway, and it is bordered to the south by Germany. Denmark borders both the Baltic and the North Sea...
lost its personal possession of
NorwayNorway , officially the Kingdom of Norway, is a country in Northern Europe occupying the western portion of the Scandinavian Peninsula, as well as Jan Mayen and the Arctic archipelago of Svalbard under the Spitsbergen Treaty...
to another absolute monarchy,
SwedenSweden , officially the Kingdom of Sweden , is a Nordic country on the Scandinavian Peninsula in Northern Europe...
. However the Norwegians managed to infuse a radically democratic and liberal
constitutionThe Constitution of Norway was first adopted on May 16, 1814 by the Norwegian Constituent Assembly at Eidsvoll , then signed and dated May 17...
in 1814, adopting many facets from the American constitution and the revolutionary French ones; but maintaining a heredetary
monarchA constitutional monarchy is a form of government in which a monarch acts as head of state within the parameters of a written , unwritten or blended constitution...
limited by the constitution, like the Spanish one.
Principles of constitutional design
After tribal people first began to live in cities and establish nations, many of these functioned according to unwritten customs, while some developed autocratic, even tyrannical monarchs, who
ruled by decreeRule by decree is a style of governance allowing quick, unchallenged creation of law by a single person or group, and is used primarily by dictators and absolute monarchs, although philosophers such as Giorgio Agamben have argued that it has been generalized since World War I in all modern states,...
, 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
PlatoPlato , was a Classical Greek philosopher, mathematician, writer of philosophical dialogues, and founder of the Academy in Athens, the first institution of higher learning in the Western world...
, who called for rule by "philosopher-kings."
Later writers, such as
AristotleAristotle was a Greek philosopher, a student of Plato and teacher of Alexander the Great. He wrote on many subjects, including physics, metaphysics, poetry, theater, music, logic, rhetoric, politics, government, ethics, biology, and zoology.Together with Plato and Socrates , Aristotle is one of...
,
CiceroMarcus Tullius Cicero was a Roman philosopher, statesman, lawyer, political theorist, and Roman constitutionalist. Cicero is widely considered one of Rome's greatest orators and prose stylists.Cicero is generally perceived to be one of the most versatile minds of ancient Rome...
and
PlutarchPlutarch, born Plutarchos then, on his becoming a Roman citizen, Lucius Mestrius Plutarchus , c. AD 46 – 120, was a Greek historian, biographer, essayist, and Middle Platonist known primarily for his Parallel Lives and Moralia...
, would examine designs for government from a legal and historical standpoint.
The
RenaissanceThe Renaissance was a cultural movement that spanned roughly the 14th to the 17th century, beginning in Florence in the Late Middle Ages and later spreading to the rest of Europe...
brought a series of political philosophers who wrote implied criticisms of the practices of monarchs and sought to identify principles of constitutional design that would be likely to yield more effective and just governance from their viewpoints. This began with revival of the Roman law of nations concept and its application to the relations among nations, and they sought to establish customary "laws of war and peace" to ameliorate wars and make them less likely. This led to considerations of what authority monarchs or other officials have and don't have, from where that authority derives, and the remedies for abusing such authority.
A seminal juncture in this line of discourse arose in England from the
Civil WarThe English Civil War was a series of armed conflicts and political machinations between Parliamentarians and Royalists. The first and second civil wars pitted the supporters of King Charles I against the supporters of the Long Parliament, while the third war saw fighting between supporters of...
, the
CromwellianOliver Cromwell was an English military and political leader best known for his involvement in making England into a republican Commonwealth and for his later role as Lord Protector of England, Scotland, and Ireland.He was one of the commanders of the New Model Army which defeated the royalists in...
ProtectorateThe Commonwealth of England, from 1653-1659 the Commonwealth of England, Scotland and Ireland, was the republican government which ruled first England and Wales, and then Ireland and Scotland from 1649 to 1660. Some would call this government a "crowned" republican government...
, the writings of
Thomas HobbesThomas Hobbes was an English philosopher, remembered today for his work on political philosophy. His 1651 book Leviathan established the foundation for most of Western political philosophy from the perspective of social contract theory.Hobbes also contributed to a diverse array of fields,...
,
Samuel RutherfordSamuel Rutherford was a Scottish Presbyterian theologian and author. He was one of the Scottish Commissioners to the Westminster Assembly....
, the
LevellersThe Levellers were a political movement during the English Civil Wars which emphasised popular sovereignty, extended suffrage, equality before the law, and religious tolerance, all of which were expressed in the manifesto "Agreement of the People". They were one of the largest factions on the...
,
John MiltonJohn Milton was an English poet, author, polemicist and civil servant for the Commonwealth of England. He is best known for his epic poem Paradise Lost and for his treatise condemning censorship, Areopagitica....
, and
James HarringtonJames Harrington was an English political theorist of classical republicanism, best known for his controversial work, The Commonwealth of Oceana .-Early life:...
, leading to the debate between
Robert Filmerthumbnail|150px|right|Robert Filmer Sir Robert Filmer was an English political theorist. His best known work, Patriarcha, published in 1680, was a defense of the divine right of kings to rule...
, arguing for the divine right of monarchs, on the one side, and on the other,
Henry NevilleHenry Neville was an English author and satirist, best remembered for his tale of shipwreck and dystopia, The Isle of Pines published in 1668.-Life:...
,
James TyrrellJames Tyrrell was an English author and political philosopher.His major works include:*Patriarcha non monarcha. The patriarch unmonarch'd: being observations on a late treatise and divers other miscellanies, published under the name of Sir Robert Filmer baronet. In which the falseness of those...
, Algernon Sidney, and
John LockeJohn Locke was an English physician and philosopher regarded as one of the most influential of Enlightenment thinkers. Considered the first of the British empiricists, he is equally important to social contract theory. His work had a great impact upon the development of epistemology and political...
. 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 BrownsonOrestes Augustus Brownson was a New England intellectual and activist, preacher, labor organizer, and noted Catholic convert and writer...
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
conventionsA convention, in the sense of a meeting, is a gathering of individuals who meet at an arranged place and time in order to discuss or engage in some common interest. The most common conventions are based upon industry, profession, and fandom...
called by
public noticePublic notice is a notice given to the public by a government agency or legislative body in a rulemaking or lawmaking proceeding. It is a requirement in most jurisdictions, in order to allow members of the public to make their opinions on proposals known before a rule or law is made.For local...
and conducted by established
rules of procedureParliamentary procedure is the body of rules, ethics, and customs governing meetings and other operations of clubs, organizations, legislative bodies, and other deliberative assemblies...
. 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
stateA sovereign state is a political association with effective internal and external sovereignty over a geographic area and population which is not dependent on, or subject to any other power or state...
is a society with effective dominion over a well-defined territory, that consent to a well-designed constitution of government arises from presence on that territory, and that it is possible for provisions of a written constitution of government to be "unconstitutional" if they are inconsistent with the constitutions of nature or society. Brownson argued that it is not ratification alone that makes a written constitution of government legitimate, but that it must also be competently designed and applied.
Other writers have argued that such considerations apply not only to all national constitutions of government, but also to the constitutions of private organizations, that it is not an accident that the constitutions that tend to satisfy their members contain certain elements, as a minimum, or that their provisions tend to become very similar as they are amended after experience with their use. Provisions that give rise to certain kinds of questions are seen to need additional provisions for how to resolve those questions, and provisions that offer no course of action may best be omitted and left to policy decisions. Provisions that conflict with what Brownson and others can discern are the underlying "constitutions" of nature and society tend to be difficult or impossible to execute, or to lead to unresolvable disputes.
Constitutional design has been treated as a kind of metagame in which play consists of finding the best design and provisions for a written constitution that will be the rules for the game of government, and that will be most likely to optimize a balance of the utilities of justice, liberty, and security. An example is the metagame
NomicNomic is a game created in 1982 by philosopher Peter Suber in which the rules of the game include mechanisms for the players to change those rules, usually beginning through a system of democratic voting...
.
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 serviceThe term civil service has two distinct meanings:* A branch of governmental service in which individuals are employed on the basis of professional merit as proven by competitive examinations....
/bureaucracy. Most constitutions also attempt to define the relationship between individuals and the state, and to establish the broad rights of individual citizens. It is thus the most basic law of a territory from which all the other laws and rules are hierarchically derived; in some territories it is in fact called "
Basic LawThe term basic law is used in some places as an alternative to "constitution", implying it is a temporary but necessary measure without formal enactment of constitution. A Basic Law is either a codified constitution, or in countries with uncodified constitutions, a law given to have constitution...
."
Key features
The following are features of democratic constitutions that have been identified by political scientists to exist, in one form or another, in virtually all national constitutions.
Codification
A fundamental classification is codification or lack of codification. A codified constitution is one that is contained in a single document, which is the single source of constitutional law in a state. An uncodified constitution is one that is not contained in a single document, consisting of several different sources, which may be written or unwritten.
Codified constitution
Most states in the world have codified constitutions. Only three have uncodified constitutions:
IsraelIsrael officially the State of Israel , is a developed state in Western Asia located on the eastern shore of the Mediterranean Sea. It borders Lebanon in the north, Syria in the northeast, Jordan in the east, and Egypt on the southwest, and contains geographically diverse features within its...
,
New ZealandNew Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses , and numerous smaller islands, most notably Stewart Island/Rakiura and the Chatham Islands. The indigenous Māori named New Zealand Aotearoa, commonly translated as The Land of the Long White Cloud...
, and the
United KingdomThe United Kingdom of Great Britain and Northern Ireland is a sovereign state located off the northwestern coast of continental Europe. It is an island country, spanning an archipelago including Great Britain, the northeastern part of Ireland, and many small islands...
. The most obvious advantages of codified constitutions are that they tend to be more coherent and more easily understood, as well as simpler to read (being single documents). However, although codified constitutions are relatively rigid, they still yield a potentially wide range of interpretations by constitutional courts (see below).
Codified constitutions are often the product of some dramatic political change, such as a
revolutionA revolution is a fundamental change in power or organizational structures that takes place in a relatively short period of time.Aristotle described two types of political revolution:...
. For example, the United States Constitution was written and subsequently ratified less than 15 years after the
American RevolutionThe American Revolution is the political upheaval during the last half of the 18th century in which thirteen of Britain's colonies in North America at first rejected the governance of the Parliament of Great Britain, and later the British monarchy itself, to become the sovereign United States of...
. The process by which a country adopts a constitution is closely tied to the historical and political context driving this fundamental change. This becomes evident when one compares the elaborate convention method adopted in the United States, with the
MacArthurGeneral of the Army Douglas MacArthur was an American general, United Nations general, and Field Marshal of the Philippine Army. He was a Chief of Staff of the United States Army during the 1930s and later played a prominent role in the Pacific theater of World War II...
-inspired post war constitution foisted on Japan (see
Constitution of JapanThe has been the founding legal document of Japan since 1947. The constitution provides for a parliamentary system of government and guarantees certain fundamental rights. Under its terms the Emperor of Japan is "the symbol of the State and of the unity of the people" and exercises a purely...
). The legitimacy (and often the longevity) of codified constitutions has often been tied to the process by which they are initially adopted.
States that have codified constitutions normally give the constitution supremacy over ordinary
statuteA statute is a formal written enactment of a legislative authority that governs a country, state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law and the regulations issued by...
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
unconstitutionalConstitutionality is the condition of acting in accordance with an applicable constitution; the status of a law, a procedure, or an act's accordance with the laws or guidelines set forth in the applicable constitution. When one of these directly violates the constitution it is unconstitutional...
. In addition, an extraordinary procedure is often required to make a
constitutional amendmentA constitutional amendment is a change to the constitution of a nation or a state. In jurisdictions with "rigid" or "entrenched" constitutions, amendments require a special procedure different from that used for enacting ordinary laws.-Referendum:...
. These procedures may involve: obtaining ⅔ majorities in the national legislature, the consent of regional legislatures, a
referendumA referendum , ballot question, or plebiscite is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal...
process, or some other procedure that makes obtaining a constitutional amendment more difficult than passing a simple law.
Constitutions may also provide that their most basic principles can never be abolished, even by amendment. In case a formally valid amendment of a constitution infringes these principles protected against any amendment, it may constitute a so-called
unconstitutional constitutional law.
Uncodified constitution
Uncodified constitutions (also known as unwritten constitutions) are the product of an "evolution" of laws and conventions over centuries. By contrast to codified constitutions, in the
WestminsterThe Westminster system is a democratic parliamentary system of government modelled after the politics of the United Kingdom. This term comes from the Palace of Westminster, the seat of the Parliament of the United Kingdom....
tradition that originated in England, uncodified constitutions include written sources: e.g. constitutional statutes enacted by the Parliament (
House of Commons Disqualification Act 1975The House of Commons Disqualification Act 1975 is an Act of the United Kingdom Parliament that prohibits certain groups of people from becoming members of the House of Commons...
,
Northern Ireland Act 1998The Northern Ireland Act 1998 is an Act of the Parliament of the United Kingdom which established a devolved legislature for Northern Ireland, the Northern Ireland Assembly, after decades of direct rule from Westminster....
,
Scotland Act 1998The Scotland Act 1998 is an Act of the Parliament of the United Kingdom. It is the Act which established the devolved Scottish Parliament....
,
Government of Wales Act 1998This is about the Act that set up the Welsh Assembly. For the newer Government of Wales Act 2006, see that article.The Government of Wales Act, 1998 This is about the Act that set up the Welsh Assembly. For the newer Government of Wales Act 2006, see that article.The Government of Wales Act, 1998...
,
European Communities Act 1972European Communities Act 1972 can refer to:*European Communities Act 1972 * European Communities Act 1972...
and
Human Rights Act 1998The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...
); and also unwritten sources:
constitutional conventionsAlternative meaning: Constitutional convention A constitutional convention is an informal and uncodified procedural agreement that is followed by the institutions of a state...
, observation of
precedentIn common law legal systems, a precedent or authority is a legal case establishing a principle or rule that a court or other judicial body utilizes when deciding subsequent cases with similar issues or facts.-Binding precedent:...
s,
royal prerogativeThe Royal Prerogative is a body of customary authority, privilege, and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy as belonging to the Sovereign alone. It is the means by which some of the executive powers of government, possessed by and...
s,
customA convention is a set of agreed, stipulated or generally accepted standards, norms, social norms or criteria, often taking the form of a custom....
and tradition, such as always holding the General Election on Thursdays; together these constitute the British constitutional law. In the days of the
British EmpireThe British Empire comprised the dominions, colonies, protectorates, mandates, and other territories ruled or administered by the United Kingdom, that had originated with the overseas colonies and trading posts established by England in the late 16th and early 17th centuries. At its height it was...
, the
Judicial Committee of the Privy CouncilThe Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom, established by the Judicial Committee Act 1833. It is also the highest court of appeal for several independent Commonwealth countries, the UK overseas territories, and the British Crown dependencies...
acted as the constitutional court for many of the British colonies such as
CanadaCanada is a country occupying most of northern North America, extending from the Atlantic Ocean in the east to the Pacific Ocean in the west and northward into the Arctic Ocean...
and
AustraliaAustralia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the continental mainland , the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans...
which had federal constitutions.
In states using uncodified constitutions, the difference between constitutional law and
statutoryA statute is a formal written enactment of a legislative authority that governs a country, state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law and the regulations issued by...
law (i.e. law applying to any area of governance) in legal terms is nil. Both can be altered or repealed by a simple majority in Parliament. In practice, democratic governments do not use this opportunity to abolish all civil rights, which in theory they could do, but the distinction between regular and constitutional law is still somewhat arbitrary, usually depending on the traditional devotion of popular opinion to historical principles embodied in important past legislation. For example, several Acts of Parliament such as the Bill of Rights, Human Rights Act and, prior to the creation of Parliament, Magna Carta are regarded as granting fundamental rights and principles which are treated as almost constitutional.
See also:
Fundamental Laws of EnglandIn the 1760s William Blackstone described the Fundamental Laws of England in Commentaries on the Laws of England, Book the First - Chapter the First : Of the Absolute Rights of Individuals as "the absolute rights of every Englishman" and traced their basis and evolution as follows:*Magna Carta...
Written versus unwritten / codified versus uncodified
The term
written constitution is used to describe a constitution that is entirely written, which by definition includes every codified constitution. However, some constitutions are entirely written but, strictly speaking, not entirely codified. For example, in the Constitution of Australia, most of its fundamental political principles and regulations concerning the relationship between branches of government, and concerning the government and the individual are codified in a single document, the Constitution of the Commonwealth of Australia. However, the presence of statutes with constitutional significance, namely the Statute of Westminster, as adopted by the Commonwealth in the
Statute of Westminster Adoption Act 1942The Statute of Westminster Adoption Act 1942 is an Act of the Australian Parliament that formally adopted the Statute of Westminster 1931, an Act of the British Imperial Parliament enabling the legislative independence of the various self-governing Dominions of the British Empire...
, and the
Australia Act 1986The Australia Act 1986 is the name given to a pair of two separate but related pieces of legislation: one an Act of the Parliament of Australia , the other an Act of the Parliament of the United Kingdom . These Acts eliminated the remaining associations between the laws and judiciary of Australia...
means that Australia's constitution is not contained in a single constitutional document. The
Constitution of CanadaThe Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions...
, which evolved from the
British North America ActsThe British North America Acts 1867–1975 are the original names of a series of Acts at the core of the constitution of Canada. They were enacted by the Parliament of the United Kingdom and the Parliament of Canada. In Canada, some of the Acts were amended or repealed by the Constitution Act,...
until severed from nominal British control by the
Canada Act 1982The Canada Act 1982 is an Act of Parliament passed by the British Parliament that ended all remaining dependence of Canada on the United Kingdom, by a process known as "patriation"...
(analogous to the Australia Act 1986), is a similar example.
The term
written constitution is often used interchangeably with
codified constitution, and similarly
unwritten constitution is used interchangeably with
uncodified constitution. As shown above, this usage with respect to written and codified constitutions can be inaccurate. Strictly speaking,
unwritten constitution is never an accurate synonym for
uncodified constitution, because all modern democratic constitutions consist of some written sources, even if they have no different technical status than ordinary statutes. Another term used is
formal (written) constitution, for example in the following context: "The United Kingdom has no formal constitution." This usage is correct, but it should be construed to mean that the United Kingdom does not have a codified constitution, not that the UK has no constitution of any kind, which would not be correct.
A constitution can be written but not codified. Codified would suggest written in one document. This means that a constitution that has a number of written sources is still written, but not codified.
Constitutions may provide that, for the purpose of clarity, they may be amended only by a law expressly amending or supplementing the Constitutional text itself (otherwise the relevant law would not enjoy the status of constitutinal law). The German Federal Constitution does expressly, and the constitutional tradition of the German federal states do at least in an implied manner, provide for this.
Entrenchment
The presence or lack of entrenchment is a fundamental feature of constitutions. Entrenchment in general means that amending a constitution is a more difficult process than that for modifying ordinary laws. Some constitutions also contain entrenched clauses, i.e. articles stating that certain modifications are either more difficult to make than normal modifications, or impossible to make at all. Entrenchment is an inherent feature in most written constitutions. The US constitution is an example of an entrenched constitution, and the UK constitution is an example of a constitution that is not entrenched.
The procedure for modifying a constitution is often called
amending. Sometimes, the reason for this is that the constitution is considered supreme law, such as according to the
supremacy clauseThe Supremacy Clause is a clause in the United States Constitution, article VI, paragraph 2. The clause establishes the Constitution, Federal Statutes, and U.S. treaties as "the supreme law of the land"...
in the US constitution. Regardless of whether a constitution has this technical status, all states with an entrenched constitution recognise the difference between constitutional law and ordinary statutory law. Procedures for ratification of constitutional amendments vary between states. In a federal system of government, the approval of a majority of state/provincial legislatures may be required. Alternatively, a national referendum may be required in some states, such as in Australia.
In constitutions that are not entrenched, no special procedure is required for modification. In the small number of countries with un-entrenched constitutions, the lack of entrenchment is because the constitution is not recognised with any higher legal status than ordinary statutes. In the UK, for example, passing laws which modify sources of the constitution, whether they are written or unwritten, are passed on a simple majority in
ParliamentThe Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom and British overseas territories. It alone has parliamentary sovereignty, conferring upon it ultimate power over all other political bodies in the UK and its territories...
. The concept of "amendment" does not apply, as the constitution can be altered as easily in terms of procedure as any national law.
Absolutely unmodifiable articles
The strongest level of entrenchment exists in those constitutions that state that some of their most fundamental principles are absolute, i.e. certain articles may not be amended under any circumstances, except through the assertion of the
right of revolutionIn political philosophy, the right of revolution is a right or duty, variously stated throughout history, possessed by subjects of a state that justifies their action to overthrow the government to whom the subjects otherwise would owe allegiance.-China:The right of revolution was perhaps first...
. An amendment of a constitution that is made consistently with that constitution, except that it violates the absolute non-modifiability, can be called an
unconstitutional constitutional law.
One example of absolute unmodifiability is the
German Federal ConstitutionThe Basic Law for the Federal Republic of Germany is the constitution of Germany. It was formally approved on 8 May 1949, and, with the signature of the Allies, came into effect on 23 May 1949, as the constitution of West Germany....
. This states in Article 20 that the country has to be a democratic, federal and social republic, and in Article 1 that the state powers have to: (i) leave dignity of man inviolable; (ii) where rule of law prevails; and (iii) where sovereignty lies with the people. Article 79, Section 3 states that these articles cannot be changed, even according to the methods of amendment defined elsewhere in the document.
Another example is the
Constitution of HondurasThe Constitution of Honduras was approved on 11 January 1982, published on 20 January 1982, amended by the National Congress of Honduras 26 times from 1984 to 2005, and 10 interpretations by Congress were made from 1982 to 2005. It is Honduras' twelfth constitution since independence in 1838...
, which has an article stating that the article itself and certain other articles cannot be changed in any circumstances. Article 374 of the Honduras Constitution asserts this unmodifiability, stating, "It is not possible to reform, in any case, the preceding article, the present article, the constitutional articles referring to the form of government, to the national territory, to the presidential period, the prohibition to serve again as President of the Republic, the citizen who has performed under any title in consequence of which she/he cannot be President of the Republic in the subsequent period." This unmodifiability article has played an important role in the
2009 Honduran constitutional crisisThe Honduran constitutional crisis centers around the 28 June 2009 removal from office and exile of President Manuel Zelaya by the Honduran military following the issuing of a detention order by the Honduran Supreme Court...
.
Distribution of sovereignty
- See also: Federalism
Federalism is political philosophy in which a group of members are bound together with a governing representative head. The term federalism is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and constituent...
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 governmentFederalism is political philosophy in which a group of members are bound together with a governing representative head. The term federalism is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and constituent...
will inevitably have a constitution that recognizes the division of sovereignty between the centre and peripheral/provincial regions of the state. The Canadian Constitution is an example of this, dividing power between the federal government and the provinces. A unitary constitution recognises that sovereignty resides only in the centre of the state. In the UK, the constitutional doctrine of
Parliamentary sovereigntyParliamentary sovereignty, Sovereignty of Parliament, parliamentary supremacy, or legislative supremacy is a concept in constitutional law that applies to some parliamentary democracies...
dictates than sovereignty is ultimately contained at the centre. However, some unitary states (
SpainSpain , officially the Kingdom of Spain , is a country located in southwestern Europe on the Iberian Peninsula.
[The Spanish constitution does not establish any official denomination of the country, even though España , Estado español and Nación española are used interchangeably...]
is an example) may delegate more and more power to sub-national governments until the state functions in practice much like a federal state. Confederal constitutions are rare, and there is often dispute to whether so-called "confederal" states are actually federal. In a confederacy, sovereignty is located in peripheral regions/provinces and only limited power is granted to the centre. A historical example of a confederal constitution is the
Swiss Federal ConstitutionThe Federal Constitution of 18 April 1999 is the third and current federal constitution of Switzerland. It establishes the Swiss Confederation as a federal republic of 26 cantons , contains a catalogue of individual and popular rights , delineates the responsibilities of...
.
Separation of powers
Constitutions usually explicitly divide power between various branches of government. The standard model, described by the
Baron de MontesquieuCharles-Louis de Secondat, baron de La Brède et de Montesquieu , was a French social commentator and political thinker who lived during the Era of the Enlightenment...
, involves three branches of government: executive,
legislativeA legislature is a type of deliberative assembly with the power to pass, amend and repeal laws. The law created by a legislature is called legislation or statutory law...
and
judicialThe judiciary is the system of courts which interprets and applies the law in the name of the sovereign or state. The judiciary also provides a mechanism for the resolution of disputes...
. Some constitutions include additional branches, such as an
auditory branchThe general definition of an audit is an evaluation of a person, organization, system, process, enterprise, project or product. Audits are performed to ascertain the validity and reliability of information; also to provide an assessment of a system's internal control...
. Constitutions vary extensively as to the degree of
separation of powersThe separation of powers, also known as trias politica, is a model for the governance of democratic states. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the uncodified Constitution of the Roman Republic...
between these branches.
Lines of accountability
In presidential and semi-presidential systems of government, department secretaries/ministers are accountable to the
presidentPresident is a title held by many leaders of organizations, companies, trade unions, universities, and countries. Etymologically, a "president" is one who presides, who sits in leadership...
, who has patronage powers to appoint and dismiss ministers. The president is accountable to the people in an election.
In parliamentary systems, ministers are accountable to
ParliamentA parliament is a legislature, especially in those countries whose system of government is based on the Westminster system modeled after that of the United Kingdom. The name is derived from the French parlement, the action of parler : a parlement is a discussion. The term came to mean a meeting at...
, but it is the
prime ministerA prime minister is the most senior minister of cabinet in the executive branch of government in a parliamentary system. The position is usually held by, but need not always be held by, a politician. In many systems, the prime minister selects and can dismiss other members of the cabinet, and...
who appoints and dismisses them. In Westminster systems, this power derives from the monarch (or head of state in Westminster-style republics, such as
IndiaIndia, officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country, and the most populous democracy in the world. Bounded by the Indian Ocean on the south, the Arabian Sea on the west, and the Bay of Bengal...
and the
Republic of IrelandIreland is a country in north-western Europe. The modern sovereign state occupies about five-sixths of the island of Ireland, which was partitioned on 3 May 1921. It is a parliamentary democracy and a republic...
), a component of Parliament. There is the concept of a vote of no confidence in many countries with parliamentary systems, which means that if a majority of the legislature vote for a no confidence motion, then the government must resign, and a new one will be formed, or parliament will be dissolved and a general election called.
Façade constitutions
Italian political theorist
Giovanni SartoriGiovanni Sartori is an Italian political scientist specializing in the study of comparative politics.-Biography:Born in Florence, in 1946 he was awarded a Laurea from the University of Florence, Italy. He began his career as a lecturer in the History of Continental Philosophy...
noted the existence of national constitutions which are a façade for authoritarian sources of power. While such documents may express respect for
human rightsHuman rights refer to the "basic rights and freedoms to which all humans are entitled." Examples of rights and freedoms which have come to be commonly thought of as human rights include civil and political rights, such as the right to life and liberty, freedom of expression, and equality before the...
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 UnionThe Soviet Union was governed by three versions of its Constitution, modelled after the 1918 Constitution established by the Russian Federation, the immediate predecessor of the Union of Soviet Socialist Republics.-Chronology of Soviet constitutions:...
that on paper supported
freedom of assemblyFreedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue and defend common interests...
or
freedom of speechFreedom of speech is the freedom to speak without censorship or limitation. The synonymous term freedom of expression is sometimes used to indicate not only freedom of verbal speech but any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
; however, citizens who acted accordingly were summarily
imprisonedA political prisoner is someone held in prison or otherwise detained, perhaps under house arrest, for his or her involvement in political activity.-"Political" prisoner:...
. The example demonstrates that the protections and benefits of a constitution are provided less through its written terms than through deference by government and society to its principles.
Constitutional courts
The constitution is often protected by a certain legal body in each country with various names, such as
supreme,
constitutional or
high court. This court judges the compatibility of legislation with the provisions and principles of the constitution, which is termed "constitutionality." Especially important is the court's responsibility to protect constitutionally established rights and freedoms. In constitutions without the concept of supreme law, such as the United Kingdom constitution, the concept of "constitutionality" has little meaning, and constitutional courts do not exist.
A "constitutional violation" is an action or legislative act that is judged by a constitutional court to be contrary to the constitution, that is, "unconstitutional." An example of constitutional violation by the executive could be a
politicianA politician or political leader is an individual who is involved in influencing public decision making. This includes people who hold decision-making positions in government, and people who seek those positions, whether by means of election, coup d'état, appointment, electoral fraud, conquest,...
who abuses the powers of his constitutionally-established office. An example of constitutional violation by the legislature is an attempt to pass a law that would contradict the constitution, without first going through the proper constitutional amendment process.
A constitutional court is normally the court of last resort, the highest judicial body in the government. The process of judicial review is then integrated into the system of
courts of appealCourt of Appeals may refer to:An appellate court generally.In Israel:*Military Court of Appeals In the Philippines:*Philippine Court of AppealsIn Turkey:*High Court of Appeals of TurkeyIn the United States of America:...
. This is the case, for example, with the
Supreme Court of the United StatesThe Supreme Court of the United States is the highest judicial body in the United States, and leads the federal judiciary. It consists of the Chief Justice of the United States and eight Associate Justices, who are nominated by the President and confirmed with the "advice and consent" of the Senate...
or
Supreme Court of IndiaThe Supreme Court of India is the highest court of the land as established by Part V, Chapter IV of the Constitution of India. According to the Constitution of India, the role of the Supreme Court is that of a federal court, guardian of the Constitution and the highest court of appeal.Articles 124...
. Cases must normally be heard in lower courts before being brought before the Supreme Court, except cases for which the Supreme Court has
original jurisdictionThe original jurisdiction of a court is the right to hear a case for the first time as opposed to appellate jurisdiction when a court has the right to review a lower court's decision...
. Some other countries dedicate a special court solely to the protection of the constitution, as with the
German Constitutional CourtThe Federal Constitutional Court is a special court established by the Grundgesetz, the German basic law...
. Most constitutional courts are powerful instruments of judicial review, with the power to declare laws "unconstitutional," that is, incompatible with the constitution. The effect of this ruling varies between governments, but it is common for the courts' action to rule a law unenforceable, as is the case in the United States. However, many courts have the problem of relying on the legislative and executive branches' co-operation to properly enforce their decisions. For example, in the United States, the Supreme Court's ruling overturning the "
separate but equalSeparate but equal is a set phrase that was commonly used in the United States to describe systems of segregation giving different "colored only" facilities or services for blacks, with the declaration that the quality of each group's public facilities were to remain equal...
" doctrine in the 1950s depended on individual states co-operation to enforce. Some failed to do so, prompting the federal government to intervene. Other countries, such as France, have a
Constitutional CouncilThe Constitutional Council is the highest constitutional authority in France. It was established by the Constitution of the Fifth Republic on 4 October 1958, and its duty is to ensure that the principles and rules of the constitution are upheld.Its main activity is to rule on whether proposed...
which may only judge the constitutionality of laws before the ratification process.
Some countries, mainly those with uncodified constitutions, have no such courts at all – for example, as the United Kingdom traditionally functions under the principle of
parliamentary sovereigntyParliamentary sovereignty, Sovereignty of Parliament, parliamentary supremacy, or legislative supremacy is a concept in constitutional law that applies to some parliamentary democracies...
: the legislature has the power to enact any law it wishes. However, through its membership in the European Union, the UK is now subject to the jurisdiction of
European Union lawThe Law of the European Union is the unique legal system which operates alongside the laws of Member States of the European Union . EU law has direct effect within the legal systems of its Member States, and overrides national law in many areas, especially in areas covered by the Single Market...
and the
European Court of JusticeThe European Court of Justice , is the highest court in the European Union in matters of European Union law. It is tasked with interpreting EU law and ensuring its equal application across all EU member states. The Court was established in 1952 and is based in Luxembourg...
; similarly, by acceding to the
Council of EuropeThe Council of Europe is the oldest international organisation working towards European integration, having been founded in 1949. It has a particular emphasis on legal standards, human rights, democratic development, the rule of law and cultural co-operation...
's
European Convention on Human RightsThe Convention for the Protection of Human Rights and Fundamental Freedoms , was adopted under the auspices of the Council of Europe in 1950 to protect human rights and fundamental freedoms in Europe...
, it is subject to the
European Court of Human RightsThe European Court of Human Rights in Strasbourg is an international judicial body established under the European Convention on Human Rights of 1950 to monitor respect of human rights by states...
. In effect, these bodies are constitutional courts that can invalidate or interpret UK legislation for compliance with international treaty obligations, first established as a principle by the
Factortame caseThe Factortame litigation led to a series of landmark decisions in United Kingdom and European Union law. The case confirmed the supremacy of European Union law over national law in the areas where the EU has competence...
.
See also
- Apostolic constitution
An apostolic constitution is the highest level of decree issued by the Pope of the Catholic Church. The use of the term constitution comes from Latin constitutio, which referred to any important law issued by the Roman emperor, and is retained in church documents because of the inheritance that...
(a class of Roman Catholic ChurchThe Catholic Church, also known as the Roman Catholic Church, is the world's largest Christian church. With more than a billion members, over half of all Christians and more than one-sixth of the world's population, the Catholic Church is a communion of the Western, or Latin Rite Church, and...
documents)
- Constitution of the Roman Republic
The Constitution of the Roman Republic or also known as mos maiorum was an unwritten set of guidelines and principles passed down mainly through precedent. The constitution was largely unwritten, uncodified, and constantly evolving...
- Constitutional court
- Constitutionalism
Constitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law." These ideas, attitudes and patterns of behavior,...
- Corporate constitution
- Judicial activism
Judicial activism is a critical term used to describe judicial rulings that impose a personal biased interpretation by a given court of what a law means as opposed to what a neutral, unbiased observer would naturally interpret a law to mean....
- Judicial restraint
Judicial restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional...
- Judicial review
Judicial review is the doctrine in democratic theory under which legislative and executive action is subject to invalidation by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority, such as the terms of a...
Judicial philosophies of constitutional interpretation (note: generally specific to United States constitutional lawUnited States Constitutional law is the body of law governing the interpretation and implementation of the United States Constitution.- Introduction :United States constitutional law defines the scope and application of the terms of the Constitution...
)
- List of national constitutions
- Originalism
In the context of United States constitutional interpretation, originalism is a family of theories central to all of which is the proposition that the Constitution has a fixed and knowable meaning, which was established at the time of its drafting. A neologism, "originalism" is a formalist theory...
- Strict constructionism
Strict constructionism refers to a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation. In the United States the phrase is also commonly used more loosely as a generic term for conservatism among the judiciary.- Strict sense of the term :Strict...
- Textualism
Textualism is a formalist theory of statutory interpretation, holding that a statute's ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as the intention of the legislature in passing the law, the problem it was intended to remedy, or...
- Proposed European Union constitution
The Treaty establishing a Constitution for Europe , commonly referred to as the European Constitution, was an international treaty intended to create a constitution for the European Union...
- Treaty of Lisbon
The Treaty of Lisbon of 1668 was a peace treaty between Portugal and Spain, concluded at Lisbon on 13 February 1668, through the mediation of England, in which Spain recognized Portuguese independence.-The principals:...
(adopts same changes, but without constitutional name)
- United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and the achieving of world peace...
CharterThe United Nations Charter is the treaty that forms and establishes the international organization called the United Nations. It was signed at the Herbst Theatre of the San Francisco War Memorial and Performing Arts Center in San Francisco, United States, on June 26, 1945, by 50 of the 51 original...
External links
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