The fundamental principles that determine the form of a state are called its constitution. These include the method by which the state is organized, the distribution of its sovereign powers among the various organs of government, the scope and manner of exercise of governmental functions, and the relation of the government to the people over whom its authority is exercised.
Nature of a Constitution:
The constitution does not create the state, but is the outward formulation of state existence. Every state, therefore, has a constitution, in the sense that certain principles underlie its existence and its governmental system. If this were not true, anarchy would result instead of political organization. Sometimes the constitution of a state is definitely formulated in a single document or a series of documents sometimes it is found in an established body of rules, maxims, and traditions in accordance with which its government is organized and its powers are exercised.
Constitutional government is distinguished from personal government in that it is based not on the caprice and whim of those who possess political power but on rules so clearly defined and so generally accepted that they control effectively the actions of public officials. It is a government of laws and not of men. A constitution therefore may be defined as a collection of norms
by which the legal relations between the government and its subjects are determined and in accordance with which the power of the state is exercised, or the body of rules and maxims in accordance with which the powers of sovereignty are habitually manifested.
Kinds Of Constitution:
Constitutions have been classified on the basis of several distinctions:
1. Written and unwritten.
A written constitution is one in which most of the fundamental principles of governmental organization are contained in a formal written instrument or instruments deliberately created. It is usually considered of special sanctity, different in character from other laws, proceeding from a higher source, and alterable by a different and more difficult procedure. An unwritten constitution is one in which most of the fundamental principles of governmental organization have not been reduced to definite written form or embodied in basic documents. It consists rather of a mass of customs, usages, judicial decisions, and statutes enacted at different times. It was not created by a constitution making body, but resulted from the gradual historical growth of the state.
The distinction between written and unwritten constitution:
Is one of degree rather than of kind . All written constitutions that are m existence for a considerable period accumulate a large unwritten element. They are modified by custom and usage and by judicial interpretation. Political practices grow up that are not incorporated into the written document, so that its text does not correspond accurately with the existing form of political organization and powers.
In the United States, for example, the organization and powers of political parties, the method of nominating and electing the president, the procedure of Congress, and the powers of the federal judiciary rest upon political usage, not upon the written constitution. A reading of the constitution of the united States would give a very inadequate and inaccurate description of the actual constitution of the American republic as it works in practice.
On the other hand, the constitution of Great Britain, though not formulated in a single don went, contains a considerable written element,scattered in many documents of different periods. Magna Charta, the Bill of Rights. the important acts of Parliament concerning the powers of the Crown and of the House of Lords, and those that fix the qualifications for voting and the system of representation in the House of Commons form an important mitten element in the British constitution.
2. Flexible and rigid:
The distinction between a flexible constitution and a rigid one rests upon the method by which the constitution may be changed and the relation, therefore, which it bears to ordinary laws. If a constitution may be easily amended by the ordinary lawmaking body and procedure, it may be classed as flexible. In this case constitutional law emanates from the same legal authority as ordinary law and has no superior validity.
If a constitution requires a special organ or a more difficult procedure or amendment than that required or the creation of ordinary law it may be classed as rigid. Its lines are thus hated and emanate from a source different from that of ordinary laws which must keep within the bounds fixed by the constitution.
For the successful working of a rigid constitution it is necessary that some organ of government should have the power to decide whether or not laws made by the ordinary government keep within constitutional limits. A law which the constitution forbids or a law made by a body which has not been given authority by the constitution to act in that held, would be an unconstitutional law, hence not a law at all. The constitution Great Britain is an example of a flexible constitution that of the United States is rigid.
3. Historical and theoretical:
A historical constitution is one that grow through evolutionary experience or that incorporates long established forms and practices of government. A theoretical constitution is one founded on speculative assumptions or abstract ideals. The constitution created in France after the Revolution and the utopian schemes proposed by Plato, More, Bacon, and Harrington, are examples of the latter type.
Requisites of a Constitution.
There are several characteristic that a good constitution should possess. It should be definite in Order to avoid for avoid occasion for dispute there should be no question as to what the constitution is or what it means. In this respect the written parts of a constitution, if carefully worded, are more satisfactory than unwritten customs and practices. The tendency in legal development has been toward definite statement, so that the law may be known and preserved.
A constitution should be comprehensive, that is, it should cover the whole field of government. In a general way, at least, it should make provision for the exercise of all political power and sketch out the fundamental organization of the state. At the same time, a constitution should be brief. In outline alone should the constitution organize the state.
An elaborate and detailed constitution offers many possibilities for dispute as to meaning. Besides, a detailed constitution indicates distrust of government. Legislatures deteriorate and avoid responsibility if matters of importance are removed from their authority and decided in the constitution.
Finally, a detailed constitution is soon outgrown. New conditions render some of its provisions obsolete, and, whether by frequent amendment or by strained interpretation or by the growth of practices outside the constitution or by nonenforcement . it becomes unstable and unrespected .
Details of governmental organization and policy are not properly constitutional matters, but should be left to the ordinary lawmaking powers of the government. The constitution of the United States contains about four thousand words. The newer constitutions of European states are more elaborate. The constitutions drawn up in recent years by some of the American commonwealths contain upwards of fifty thousand words, including minute regulations that have no proper place in a constitution.
The proper contents of a constitution demand consideration. A consideration intended primarily to set up a framework of government. Its purpose is to outline the nature, method of selection, and powers of the various organs of government, and to prescribe the general manner in which their powers shall be exercised. It indicates the various departments and divisions of government. A constitution should also provide a legal method of amendment, so that it may be changed without revolution.
A constitution should be stable and at the same time flexible. In fixing the method of amendment a compromise is needed which will permit changes to be made and at the same time will insure that changes will not be made until it is certain that they represent the real and not merely the temporary needs and desires of the people.
There is also an advantage in including a Bill of Rights, which sets aside a certain sphere of individual liberty with which the ordinary government is forbidden to interfere. The constitution, therefore, prevents the encroachment of one organ of government on another or on individual liberty.
In a word, it locates sovereignty within the state, since, in outlining the powers of the various governmental organs and in providing a method of legal amendment, it makes arrangement for the total exercise of lawmaking power. The action of any organ outside the scope of its legal competence, or in any manner except that prescribed, is not a legal act of the sovereign state, but a revolutionary usurpation of power.
An “unconstitutional law” is thus a contradiction in terms. If it is unconstitutional it is not law. When a law is declared unconstitutional, it is not considered that a lower law has come into conflict with a higher law, but that the law in question never was law, since it was not properly created.
There is, then, no difference in validity between constitutional law and statute law. Each, if legally created and enforced by the authority of the state, is law, equally binding. From a legal Standpoint all laws are commands of the sovereign, enforced by its authority. Any organ of government, acting legally within the scope of its powers, creates law just as binding as the constitution.
A distinction between constitutional law and statute law may be made as to the method of creation and as to content. Statute law is created by the regular legislative organs of the ordinary government. Constitutional law in many states is created by a peculiar organ of government or by unusual procedure on the part of the ordinary government.
In some states, as in Great Britain, even this distinction does not exist, since constitutional law is created and repealed by the ordinary government. As to its content, constitutional law properly deals with the fundamental organization of the state. The minor details of government and the ordinary relations of man to man are properly left to statute law or to administrative regulation.
A final requisite for a good constitution is that the constitution shall correspond to actual conditions within the state. Sovereignty should be legally distributed in accordance with actual political power that is, the legal sovereign should coincide with the political sovereign, otherwise there is constant danger of revolution.
No constitution can be perfect and permanent, since the best form of government is a relative matter, changing as conditions change. A constitution, therefore, should be flexible enough to permit change when necessary at the same time its modification should not be so easy as to sacrifice stability. The adjustment of these requisites depends largely on the legal method of amendment.
Methods of Establishing Constitutions:
Historical Shows four methods by which modern states have acquired their constitutions:
- by grant
- by deliberate creation
- by revolution
- by gradual evolution.
Most modern states began with autocratic governments in which all political authority was vested in the rulers and was defined only in a general and indefinite manner. Later, either because the ruler believed that the powers power government and the manner of their exercise should be defined in a more formal and legal manner or because of the demands of his subjects and the fear of revolution, the ruler promulgated a formal document in which he agreed to exercise this powers in accordance with certain principles and through certain agencies and procedure.
Such charters, or constitutions, are said to be octroyed, or issued by royal fiat, which such a document could logically be changed by the ruler at his pleasure, it has usually been considered by the subjects as a pledge, or contract, which the ruler was bound to observe, and in some cases the ruler agreed not to change its provisions without the consent of the people.
In practice such agreements have placed limitations upon royal power which have been difficult to remove, and have often marked the beginning of democratic development. Charters of this type were granted by various German princes, by Louis XVIII in France, by Na napoleon to states that came under his dominion, by the emperor of Japan. and by others. In granting the constitutional charter of 1814, Louis XVIII stated “We have voluntarily, and by the free exercise of our royal authority, accorded and do accord, grant and concede to our subjects, as well for us as for our successor forever, the constitutional charter which follows.”
A number of constitutions have been deliberately created after the establishment of a new state. The constitution of the United States is an example of this method. Constitution Were set up in this manner by the Poles, the Czechoslovaks, the Yugoslavs, and others after the First World War, when they Were recognized as sovereign states. Constitutions of this type are possible for people who have previously had considerable political experience. A more usual method of establishing a constitutional system is by internal revolution.
This occurs when people become dissatisfied with the existing form of government and are not able to change it in a legal manner. Revolutions occur when people are Oppressed and misgoverned and when they believe that the government should rest on a different principle. In case of revolution stable government is usually secured only after considerable violence and disorder. Sometimes the provisional authority which guides the revolution assumes the power to create a new constitution, which it may submit for popular approval sometimes it provides for the assembly of a special body to create a new constitution, or to draw up such a document and submit it to the people for their acceptance.
Constitutions were created by such revolutionary methods in the American states in France after the French Revolution and after the Franco Prussian War in Russia in 1917 and, more recently, in Spain.
Finally, a constitution may come into existence as the result of slowly working evolutionary changes. Beginning with an autocratic government, power may gradually pass in fact though not in law, to persons who represent the people. BY long acquiescence, and by the growth of political practices, the authority of the latter may finally be recognized as legal. A constitution of this type will be largely unwritten or will appear in a series of documents rather than in a single, comprehensive statement.
Its essential character can be determined only by its actual workings and not by its legal form. The constitution of Great Britain is the best example of this type.
Written and Unwritten Constitutions.
The idea of a constitution as a fundamental set of rules in accordance with which the state is organized was not unknown in the ancient world. Aristotle made a collection of the constitutions of the states of his time, and in his Politics he discussed the best form of constitution and defined a constitution as “the organization of offices in a state” which “determines what is to be the governing body and what is the end of the community.”
The Romans also made a distinction between the power to make constitutional law and the power to make ordinary law. During the Middle Ages the rights of cities and corporations were often defined in written charters, and concessions were sometimes wrung from the kings in written documents which defined certain rights and which were considered as contracts between rulers and subjects.
In the sixteenth century, in the writings of that group who were opposed to absolute power, appeared the idea of a “fundamental law,” superior in authority to ordinary law and the term “constitution” was sometimes used in connection with important documents and statutes. During the controversy between, the Stuart kings and Parliament, in the seventeenth century, the idea of a constitution was discussed by various writers?
Among the immediate precursors of written constitutions may be mentioned the “Mayflower Compact” (1620) the “Fundamental Orders of Connecticut” (1639) the charters granted to the English colonies in America the “Agreement of the People,” drawn up by Cromwell’s soldiers (1647) the “Instrument of Government,” issued by Cromwell (1653) and the “Frame of Government,” prepared by William Penn for the colony of Pennsylvania (1682). By the close of the seventeenth century the term “constitution” was frequently applied to the fundamental laws which related to the organization of government.
The concept was given added authority by the prevalent theory that the Male was created by a social contract, or covenant, by which the people voluntarily agreed to set up a body politic, and that government rested upon a definite contract between rulers and subjects.
The distinction between fundamental law and temporary Statute law was as clearly drawn by Vattel in his Law of Nations (I773). He states that the laws made directly with a view to the public welfare ate political laws and in this class are those that concern the body itself and the being of society, the form of government, the manner in which the public authority is to be exerted, those, in a word, which together form the constitution of the state, are the fundamental laws.
These laws, Vattel argued, should be changed only by the people themselves, and not by the legislature. H is book was widely read in France, England, and America, and exerted considerable influence on the constitution making period which soon followed. Blackstone’s Commentaries on the Laws of England (1765-1769), which formulated clearly the principles of the English government as they were then understood and which appeared at a critical time in the history of constitutional government, also exerted a wide influence, especially in America.
The American doctrine that sovereignty resided in the people and that the government should act as their agent, receiving delegated powers, also contributed to the belief that a written constitution was desirable in order to keep the government within legal bounds.
In America the most direct influence was exerted by the colonial charters, which had been cherished in the colonies and which had served as a basis for colonial self government. Accordingly most of the American colonies, after they declared their independence, adopted written constitutions. Two of them Rhode Island and Connecticut, however, continued their government under colonial charters, which served as written constitutions.
When the American union was formed, it was even more necessary to set forth the principles of the new government in a written constitution (1789) in order that the powers of the central government then established and those of the states, which were continued in existence, should be fixed with a definiteness that would avoid conflict .America was the home of written constitutions, and the constitution of the United States is the oldest written constitution in existence.
The American ex ample was followed by France in the series of written constitutions drawn up during the French Revolution. From France the idea spread to other European countries, and a demand for written constitutions was an important element in the revolutionary movements of the nineteenth century. More than three hundred constitutions were promulgated in Europe between 1800 and 1880. At the present time, with the exception of Great Britain, every state of importance has a written constitution of some kind.
Both written and unwritten constitutions have elements of strength and weakness. A written constitution is usually prepared with care and deliberation, and is likely to be more clear and definite than one consisting largely of usages and customs Since a written constitution usually provides a special procedure for amendment, it cannot so easily be twisted by the ordinary legislature to meet every popular change of Opinion, and is therefore more stable and permanent.
On the other hand, difficulty of amendment often retards needed reform, and the constitution fails to keep pace with changing conditions. A written constitution may become outgrown and may act as an obstacle to political progress. Provisions put into a written constitution are also often difficult to remove, even though widespread public opinion finds them undesirable. The advantage of stability is thus offset by the disadvantage of rigidity. It is often held that a Bill of Rights in a written constitution safeguards individual liberty, acting as a check on the arbitrary authority of government.
While there is an advantage in a definite formulation of civil rights, and a certain sanctity attached to them when placed in the constitution, their actual guaranty depends upon whether or not the provisions of the constitution may be changed by the ordinary legislative procedure and upon whether or not the courts may impose a legal check on unconstitutional activities on the part of the other organs of government. In practice, individual liberty may he as well protected in a state whose constitution is unwritten as in one where elaborate constitutional provisions are found.
An unwritten constitution has the advantage of being flexible and adaptable to changing conditions. It adaptable a legal means of adjusting the constitution to popular demand and prevents the danger of disregarding a constitution which is difficult to range. This elasticity is especially valuable in times of crisis or of rapid social change, but is workable only by a people who have a conservative spirit and a strong sense of historical tradition. It a constitution is unwritten, it at least avoids the danger of a document framed on purely theoretical considerations which bear little relation to national experience and needs.
Unwritten constitutions have been criticized because they provide for no distinction between constitutional and statute law, and because they give too much power to the judiciary to discover constitutional principles in a long accumulated mass of customs, laws, and decisions. Some writers believe that unwritten constitutions are not suited to democracies, which demand a written and definite statement of fundamental principles and which are suspicious of governmental powers that are indefinite and discretionary.
An unwritten constitution demands a high degree of political intelligence and constant vigilance on the part of the people to resist governmental usurpation. For an ignorant or turbulent people a rigid constitution is probably safer than one subject to every whim of popular emotion.
Expansion and Amendment of Constitutions:
No constitution can be considered perfect or permanent. As stated by Washington in his Farewell Address, time and habit are necessary to fix the true character of governments as of other human institutions. Constitutions grow in various ways. Custom and usage create new principles in the case of unwritten constitutions, and add to or modify the established system where a written constitution exists.
Growth by this process is likely to be greater in an old than in a new constitution, and in an old and settled Civilization, where reverence for tradition and precedent is greater than in a new, or frontier, society. It is also more likely where the constitution is brief and general than where the constitution is elaborate and detailed.
If legislative supremacy exists, that is, if no organ of government can declare unconstitutional a law passed by the national lawmaking body considerable expansion of the constitution may result from ordinary legislation. Laws may be passed which violate or modify the constitution, and the only way to check this tendency is for the electorate to choose representatives that will keep within the legal limits of the written constitution. If public opinion approves the changes made by the legislature, this method of expansion permits easy adjustment of the constitution to new conditions.
The fact that differences of opinion will arise concerning the meaning of the language of the most carefully framed constitution leads to expansion by judicial interpretation. Deficiencies in expression compel the judiciary to state the true meaning of the constitution and to determine the intention of its framers. A written constitution which has been in existence for a considerable period will naturally fail to make provision for needs which did not exist when it was framed.
In this case the judiciary, by “construction,” must fill the gaps in the constitution, either by expanding its provisions to cover the new cases or by assuming the action that would have been taken by its framers in case they had been able to foresee the new conditions. If, as in the United States, the judiciary may set aside legislative enactments which they consider in violation of the constitution, the power of the judiciary to modify and expand the constitution by interpretation is enormous. The constitution of the United States has been changed to a far greater degree by this process than by any other.
From the point of view of political organization and of the distribution of the sovereign powers of the state, the most important method of constitutional change is the formal and legal one of amendment provided for in the constitution itself Some Of the early written constitutions contained no provision for legal amendment.
Those granted by monarchs usually assumed that changes would come from the same source, and in some of the early popular constitutions it was assumed that the people had an inalienable right to make and amend constitutions and that no legal limits were necessary to restrict this power. The value of providing an orderly and legal method of amendment was recognized later, and practically all written constitutions at pres ant contain an amending clause.
The method of amendment is important in determining the degree to which the constitution keeps pace with changing conditions. If the constitution may be amended easily by a method that enables the political sovereign to express its will, there will be little discrepancy between actual conditions and legal organization. The chief danger will be that of instability, since the fundamental form of the state may be changed as the result of temporary waves of popular Opinion.
If the constitution is difficult to amend legally, or if amendment follows a process that does not enable the political sovereign to express its will, one of the following methods of change is likely. Either as new needs arise, a large number of customs and practices, forming an unwritten part of the constitution and supported by public opinion, will develop or an extra legal method of amendment, such as that of judicial expansion, will be used in place of the formal, legal process or there will be danger of revolution that will ignore legal procedure and redistribute sovereign powers in accord with the actual political conditions and needs.
Opinions differ as to the desirability of frequent and easy constitutional amendment. Conservatives, who reverence the past view constitutions as sacred and oppose innovations. Radicals ridicule the veneration in which constitutions are held and are eager for new experiments.
A sound political theory lies between these extremes. Modern opinion inclines to the following view:
1. The fundamental principles in accordance with which a state is organized, the powers of government are distributed, and the liberty of the individual is protected against governmental encroachment should be outlined in a written constitution which cannot be changed legally by the ordinary lawmaking pm
2. The legal method of amendment, while differing in procedure from ordinary lawmaking, should not be so complicated of difficult as to prevent the organization of the state {tom corresponding to existing political conditions. The amending process should be neither so rigid as to prevent change nor so flexible as to encourage needless tampering with basic principles. Like the safety valve of an engine the amending process should safe guard the governmental machine against too great speed and at the same time serve as an outlet against the danger of explosion.
The actual methods by which modern states legally amend their constitutions may be classified as follows:
1. By the ordinary lawmaking body and by the ordinary legislative procedure, as in Great Britain.
2. By the ordinary lawmaking body, but by special procedure or by unusual majority, as in France, where the two houses of parliament, meeting in joint assembly, after they have declared by separate resolutions in favor of amendment, act as the constitution amending organ.
3. By special organs of government created for the purpose such as a constitutional convention.
4. By the electorate in the form of popular referendum or of initiative and referendum. This method is favored by some who argue that it distinguishes between state and government, and recognizes that the people and not the government should create constitutional law. There is, however, the danger that the hands of the government may be tied by detailed constitutional provisions, and that material not properly constitutional will be incorporated into the written document.
In some cases several methods are combined. In the states of the American union, for example, amendments are sometimes prepared by constitutional conventions or by the legislatures and submitted to popular vote for ratification. In the national constitution of the United States, amendments may be proposed by two thirds of both houses of Congress, or, at the request of the legislatures of two thirds of the states, by a national convention called by Congress for that purpose and may be ratified by the legislatures in three fourths of the states or by conventions in three fourths of the states, Congress having the right to determine which method of ratification shall be followed.
This makes the constitution of the United States one of the most difficult to amend, and, because of the great inequality of population in the different states of the Union, enables a small minority of about one fortieth of the people to prevent an amendment desired by the remaining overwhelming majority.
In case a written constitution makes no provision for its amendment, it is usually held that the national lawmaking body, by ordinary procedure, may amend the constitution. In a few cases constitutions have forbidden the amendment of certain of their provisions. The constitution of the United States forbade any amendment prior to 1808 intended to interfere with the importation of slaves, and provides that no state, without its consent, can be deprived of its equal representation in the Senate.
An amendment to the French constitution forbids the abolition of the republican form of government. Opinion differs as to the legal validity of such provisions. Some hold that they are legally binding and can be changed only by revolution others hold that the amending clause supersedes them and that, like any other part of the constitution, they may be changed by the legal method provided for amendment. In any case such provisions are undesirable, since they attempt to six certain principles unalterably.
Jefferson’s statement that each generation has the right to determine the form of government and the law under which it lives is a sounder theory of politics. On the other hand, if a constitution provides a method of amendment, that method alone is legal.
Any other, no matter by how large a majority would be a revolution. The state’s will can be expressed only in the form of law an illegal act is never the act of the state. In case of successful revolution a new sovereignty is created, and i may then determine the form of the constitution and the method by which it may thereafter be legally changed.