Essentials of a Written Constitution

Essentials of a written constitution : A written constitution is a supreme and fundamental law. It is supreme in the sense that it is harder to change than ordinary law and prevails over ordinary law in case of incompatibility. It occupies a place at the apex of the hierarchy of legal norms, as the lex superior from which other laws derive their authority. It defines the state, proclaims its basic principles, protects the rights of citizens, establishes governing institutions, and regulates the relationship between them.

Contents of a Typical Constitution :-

A typical written constitution contains three sets of provisions first, a series of prescriptions setting forth the fundamental civil and political rights of the Citizens, and imposing certain limitations on the power of the government, as a means of securing the enjoyment of those rights, second, a series of provisions outlining the organization of the government, enumerating its powers, laying down certain rules relative to its administration, and defining the electorate and, third, a provision or provisions pointing out the mode of procedure in accordance with which formal changes in the constitution may be brought about.

The first group of provisions collectively has been called by one writer the constitution, of liberty, the second, the constitution of government, and the third, the constitution of sovereignty. The first group is commonly styled in republican states a “bill of rights” or “declaration of rights.” The people of the United States have always attached great importance to these declarations and have considered them a necessary part of their constitutions.

Since 1780 every constitution adepted in the United States, with four exceptions, has given a prominent place to such declarations. The American declarations of rights, said Bryce, are historically the most interesting part of the constitutions, being, as they are, the legitimate child and representative of Magna Charta and the English Bill of Rights.

In France, likewise, for a time after the Revolution, declarations of principles were considered a most essential part of their instruments of government. The constitutions of 1791, 1793, 1795, and to a less extent that of 1848, contained not only elaborate declarations of the rights of the individual, but also numerous philosophical enunciations of the political doctrines and theories of the time.

It is somewhat curious that French constitutional laws of 1875 are unaccompanied by a Declaration of Rights. Some French jurists, however, maintain that the fundamental principles of the Declaration of 17 89 are nevertheless an established part of the public law of France to-day and as such are binding upon the parliament.

Thus, Duguit affirms that they are not , merely “dogmatic formulas” but are veritable constitutional laws which bind the legislature and that any act of parliament contrary to their prescriptions would be unconstitutional. He and other French jurists maintain that the principles of 17 89 were not expressly reaffirmed by the national assembly of 1871-1875 and formally incorporated in the constitution because they had become so firmly established that it was not deemed necessary to do so.

But whatever may be the opinion of the jurists as to their binding effect upon the legislature, the French courts refuse to declare null and void acts of parliament which are inconsistent with them.  For this reason proposals have been made from time to time in the French parliament for the incorporation of a declaration of rights in, the constitution and even for the establishment of a supreme court with power to annul legislative acts in violation of their provisions.

In this respect the constitution of France differs also from, those which have recently been adopted in other European states, all of which now contain elaborate declarations of rights. The German imperial constitution of 1871 and of course the Prussian constitution of 1850 which was “octroyed” by the king were almost entirely lacking in provisions relative to the liberty of the individual, but the new constitutions which have superseded them contain declarations of fundamental rights of the citizens which surpass even the early declarations of the French and the American constitutions.

Provisions Relating to the Organization of Government :-

The second group of provisions, as has been said, relate to, the organization of the government in its widest sense, including the distribution of powers, among the several departments, the organization of the particular agencies through which the state manifests itself, the extent and duration of their authority, the modes of appointment or election of public functionaries, and the constitutions of the electorate.

In some constitutions the provisions of this character are few in number and very general in character. The “constitutional” laws of France, for example, contain no provisions regarding the composition, mode of election, tenure, organization or powers of the Chamber of Deputies, except the solitary provision that the chamber shall be chosen by an electorate constituted on the basis of universal suffrage.

They contain nothing whatever in regard to the judiciary, and since the amendment of 1884, which “deconstitutionalized” the articles relating to the Senate, nothing in regard to the second chamber of parliament. It has been said of the French constitution that it is distinguished rather more for what it emits than for what it contains. For these reasons some French writers have asserted that France really has no constitution.

The Constitution of the United States :-

The constitution of the United States is in respect to its content and character the model of written constitutions. Its provisions in regard to the organization of the government are general in character, yet sufficiently detailed to, embrace most of those matters Which may be considered as essential and fundamental.

It provides for the distribution of the powers of government among the legislative, executive, and judicial departments, and for the organization in a general way of each of the departments it contains a brief and logical statement of their jurisdiction and powers , and a list of prohibitions upon both the national and the state governments.

It contains remarkably few miscellaneous provisions. There is nothing, or very little, relating to trade, industry, banks, and other corporations, railroads, schools, or the army or the navy. All together it is a model of brevity, of logical and scientific arrangement, and of conciseness of statement and, it is worth noting that the language in which it is cast is remarkably free from redundant and ambiguous phrases.

Lord Bryce said of it that it ranks above every Other written constitution for the intrinsic excellence of its Scheme, its adaptation to the circumstances of the people, the simplicity, brevity, and precision of its language, and its judicious mixture of definiteness in principle with elasticity in details.

Most of the new European constitutions, however, have not fol lowed the American model in this respect. They greatly exceed the constitution of the United States in their length, in the detail of their prescriptions, and in the degree to which they deal with matters of ordinary law including, as they do, regulations relating to matters of administrative, criminal and parliamentary law.

It must be admitted, however, that the line of demarcation between matters which may be appropriately regulated by the constitution, or which should be so regulated, and those which may or should be left to statutory regulation, must necessarily vary as the complexity of the political, economic, and social life of the country increases.

Affairs which in 1789 could be safely left to be dealt with by ordinary law, require, under the conditions which exist to-day, to be regulated by the constitution.

It is hardly necessary to add that the developments of the present age have brought into existence a great variety of new problems which are appropriate or necessary subjects of constitutional law, which were non-existent and even undreamed-of when the constitution of the United States was adopted.

These conditions, coupled with the changing popular attitude in respect to the function of a constitution, account for the increasing tendency of constitutions to grow in length and to embody details which under early conditions and conceptions found no place in their texts.

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