Understanding Constitutions: Principles and Purpose

• A constitution is a set of fundamental principles or established precedents according to which a state or other organization is acknowledged to be governed
• These rules together make up what the entity is
• When these principles are written down into a single document or set of legal documents, those may be said to embody a written constitution
• Some constitutions are unwritten, but are written in numerous fundamental Acts of a legislature, court cases, or treaties
• Constitutions concern different levels of organizations, from sovereign countries to companies and unincorporated associations
• A treaty which establishes an international organization is also its constitution

Purposes of a Constitution

• Establishes duties, rights and responsibilities
• Constitutions define the relationship between different bodies of government
• Guarantee certain rights to the people
• In the separation of powers model, a constitution allocates executive, legislative, and judicial powers to different branches of government
• Divides power between a central and local government
• The constitution of a sovereign state defines that state's territory and determines the system of government that operates within that territory
• In organizations, a constitution describes the nature, purpose, and scope of the organization

Constitutional Law

• Constitutional law is the field of law dealing with the interpretation and application of the constitution
• Most states have a supreme court, constitutional court, or judicial review
• Courts generally adjudicate any violations of constitutional law

History

• In ancient Athens, Aristotle collected descriptions of 158 constitutions of Greek city-states
• He distinguished constitutional government – what he called polity – from tyranny, oligarchy, and democracy
• The Romans first began to codify their constitution in 450 BC as the Law of the Twelve Tables
• Acts of the Senate and the People of Rome were written down
• The Codex Theodosianus and Codex Justinianus were compiled in the 5th and 6th centuries AD
• These remained a source of constitutional law throughout the Middle Ages
• The medieval Polish and Lithuanian union, the Union of Lublin in 1569, saw nobles formally codify the privileges they had enjoyed for centuries
• This is seen as the start of constitutionalism in Central and Eastern Europe
• The Corsican Constitution of 1755 was inspired by Enlightenment ideals and was the first constitution of the modern era

Development of Modern Constitutions

• The first national constitution with modern liberal and democratic ideas was that of the Corsican Republic of 1755
• It enshrined popular sovereignty and was influenced by the writings of Genoese political philosopher Jean-Jacques Rousseau
• The 1776 Constitution of Virginia was the first permanent modern codified constitution
• It included a declaration of rights and separation of powers
• Other states followed Virginia's example and drafted their own constitutions
• In 1787, delegates convened in Philadelphia to draft a constitution for the United States of America
• James Madison is hailed as the "father" of the U.S. Constitution
• The United States Constitution is a landmark legal document
• It is the oldest active codified constitution in the world
• It defines the principal organs of government and their jurisdictions and the basic rights of citizens
• The French Revolution led to the Declaration of the Rights of Man and of the Citizen in 1789
• Followed by France's first constitution in 1791
• The Polish–Lithuanian Commonwealth adopted the Constitution of May 3, 1791
• It sought to redress the Commonwealth's political defects
• It had been under foreign influence in the 18th century
• It is Europe's oldest codified national constitution and the world's second-oldest

Constitutionalism

• Constitutionalism is the idea that government should be limited by a constitution
• It is a check on political power
• Constitutionalism began in Europe during the Enlightenment
• Has spread around the world
• Constitutionalism includes doctrines and practices that emphasize the importance of constitutional governance
• This includes rule of law, separation of powers, and protection of rights
• It emphasizes that government authority comes from and is limited by a fundamental law

Forms of Constitutions

• Written constitutions are contained in a single document
• Unwritten constitutions are based on a collection of documents, statutes, court decisions, customs, and conventions
• Codified constitutions are those in a single comprehensive document
• Uncodified constitutions are spread across numerous documents and may include unwritten traditions
• Flexible constitutions can be easily amended
• Rigid constitutions have amendment processes that are more difficult

Core tenets

• A constitution is deemed necessary
• It legitimizes state institutions
• The constitution embodies fundamental values
• The constitution limits power
• Constitutions protect rights
• Constitutions can be judged on several factors:
• Origin
• Form
• Content
• Type
• Amendment procedure
• Ideology

Constitutional Principles

• Popular sovereignty is the principle that the authority of the government is created and sustained by the consent of its people
• Limited government is the principle that government power is restricted by law, usually in a written constitution
• Separation of powers is a doctrine that divides governmental power among different branches
• Checks and balances allow each branch to limit the power of the other branches
• Judicial review is the power of the courts to determine whether laws or actions of the government are constitutional
• Federalism is a system of government in which power is divided between a central government and regional governments

Influences

• Ideals of the Enlightenment have greatly influenced modern constitutions
• Philosophers like John Locke, Montesquieu, and Rousseau advocated for constitutionalism
• Locke wrote about natural rights
• Montesquieu promoted the separation of powers
• Rousseau advocated for popular sovereignty
• These ideas shaped the content and structure of many constitutions
• Historical documents such as the Magna Carta and the English Bill of Rights have also influenced constitutional thought

Amendment

• Constitutions usually provide a process for amendment
• This allows the constitution to be changed
• Amendment processes vary
• Some constitutions are easily amended
• Others are more difficult to change

Interpretation

• Interpreting constitutions is typically the role of a supreme court
• Constitutional courts provide rulings in specific cases
• Judicial review is the process of deciding whether a law conflicts with the constitution
• Constitutional interpretation evolves over time
• Changes are made to reflect changing social values

Challenges to Constitutionalism

• Emergency situations, such as war or terrorism, strain constitutional principles
• Political polarization can make it difficult to achieve consensus on constitutional interpretation
• Globalization and international law can challenge national constitutional norms
• Technology can raise new constitutional questions related to privacy, free speech, and due process