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