Considered concerning the degree of popular participation in the government which they allow, constitutions have been classified by various Writers as “free,” “democratic,” “aristocratic,” etc. Considered as instruments of evidence, they have been classified as cumulative or evolved and second, as conventional or enacted. To the first class belong those who have their origin mainly in custom, consisting of the most of accumulated usages, common law principles, decisions of courts, etc.
They are the product of historical evolution and growth rather than of deliberate and formal enactment. They have no conscious starting point, are not “struck off” at a specific date, and change by slow and gradual accretion rather than formal legal processes. To the second class belong those who have been formulated usually by a constituent assembly or promulgated by a king.
Written and Unwritten Constitutions:
The distinction between evolved and enacted constitutions coincides roughly with the old and commonly observed distinction between unwritten and written constitutions. A so-called unwritten constitution is one in which most, but not all, of the prescriptions have never been reduced to Writing and formally embodied in a document or collection of documents.
It consists largely of a mass of customs, usages, and judicial decisions together with a smaller body of statutory enact merits of a fundamental character, usually bearing different dates. Constitutions of this class are not struck off at once by a constituent assembly or other body. They are good illustrations of Sir James McIntosh’s dictum that constitutions grow instead of being made.
On the contrary, a written constitution is one in which most of the provisions are embodied in a single formal written instrument or instruments. It is a work of conscious art and the result of a deliberate effort to lay down a body of fundamental principles under which government shall be organized and conducted.
The distinction between a written and an unwritten constitution corresponds roughly to that between statute and common law; the fewer scripts and the conscripts of the Romans some writers have, without doing violence to the facts, described the former as “statutory” constitutions and the latter as “talisman law” constitutions.
Generally, a written constitution is, as has been sold, comprised of a single document bearing a single date. Still, there are examples of written constitutions composed of a series of instruments bearing different dates. Such are the Lois constitutionalism of France, three in number together with several amendments which collectively make up the constitution of the French Republic.
Similarly, Austria’s old constitution embraced five fundamental statutes, all, however, bearing the same date. They could as well have all been incorporated in a single document, but for some reason, they were not. Again, Hungary’s constitution consists of a long series of statutes and diplomas extending through a period of more than six and a half centuries (1222-1873). Generally, a written constitution is an instrument of special sanctity, distinct in character from all other laws, proceeding from a different source, having higher legal authority, and alterable by a different procedure.
It rests on the principle of separation between the constituent and lawmaking powers. There are thus two sets of lawmaking authorities and two bodies of law in states having written constitutions, one constitutional and paramount, the other statutory and subordinate. The latter, to be valid or constitutional, must conform in its provisions to the former.
However, the above-mentioned distinction is not always found in states having written constitutions, though it is usual. A few examples of written constitutions have not had their source in constituent assemblies. Still, they have emanated from ordinary legislative bodies and differ, therefore, from more statutes not in any legal sense, but only in the greater importance of the subject matter with which they deal.
Thus, before the present constitution, Austria’s fundamental or constitutional laws were nothing but statutes enacted by the parliament. Similarly, the Italian constitution (the statute), though not a statute of parliament (having been granted by the king), is nevertheless on a legal plane with an ordinary statute and is alterable by legislation’s ordinary processes.
So the constitution of Spain framed by a constituent Cortes contains no provision for its amendment and can probably be changed by the legislature as an ordinary statute. However, as to this, there is some doubt. In fact, it appears never to have been formally altered. In such states, the constituent and legislative functions are not separate, and consequently, a constitutional enactment has no superior legal force over a statute.
Some written constitutions have had their origin, as has been said, in the fiat of kings, often made under the pressure of necessity to prevent threatened revolt. Such a constitution or charter is generally regarded as a compact or pledge that the ruler granting it will govern according to certain principles outlined in its text.
If, therefore, he desires to depart from its provisions, he is under a moral if not a legal obligation to alter the constitution formally so that his acts will conform with its prescriptions. However, it may be doubted whether this view is in accord with legal logic, considering that the constitution emanates from his authority and is a unilateral rather than bilateral act.
Sometimes it was stipulated in such a constitution that it should not be amended without the people’s consent; sometimes, the king reserved to himself the right of alteration.
Examples of charters or constitutions of this type were those granted by various liberal princes of Germany to their subjects after 1815, beginning with Nassau and ending with Prussia in 1849, the latter of which was in force until 1920 the constitutional charter granted to the French by Louis XVIII in 1814 and, as amended by the parliament, re-promulgated by Louis Philippe in 1830, the constitutions granted by the king of Portugal in the early part of the nineteenth century, various constitutions granted by Napoleon to the states which fell under his dominion, the present constitution of Italy, granted by Charles Albert to his Sardinian subjects in 1848, which became the fundamental law of Italy upon the establishment of the Italian kingdom, and later the constitutions of Japan, Russia, Turkey, Persia, and the constitution “destroyed” by the Emperor of China in 1908.
Practically all the other written constitutions of the world have been framed by constituent bodies or legislative assemblies claiming constituent powers. From the point of view of their source or origin, then, we may classify constitutions as follows:
- Sovereigns granted charters to their subjects.
- Constitutions framed by ordinary legislative assemblies
- Constitutions framed by constituent assemblies.
Criticism of the Old Classification:
The classification of constitutions as written and unwritten has been criticized because the distinction between them is really one of degree rather than kind and hence does not mark a contrast between widely differentiated types. In the first place, all written constitutions that have been in operation for any considerable period of time have, in fact, become overlaid with an unwritten element consisting of custom end judicial interpretation.
Written constitutions, so-called, as Bryce remarked, become developed by interpretation, fringed with decisions, and enlarged by custom, so that after a time, the letter of their texts no longer conveys their full effect.
The quantity of this conventional element, in any case, depends largely Upon the age of the constitution and the force of national tradition; examples of written constitutions which have become supplemented and modified by a more or less extensive unwritten element are those of the United States, Hungary, and Italy.
Much of the constitution of the United States, particularly those parts relating to the election, succession, tenure, and powers of the President, the procedure and methods of Congress, and the powers of the federal judiciary, has been modified in important particulars by the force of precedent and expanded by judicial interpretation.
We must take exception to the view of a well-known writer on American Constitutional law, that the United States constitution is peculiar in that it is all written, that it has nothing of tradition, that it is, indeed, in all respects, a statute of vast and solemn import enacted in the name of the people an expression of legislative Will in a written form. However, we cannot go quite to the length of another high authority. The conventional element in the United States constitution is now quite as large as that in the British constitution. It is true, of course, that the larger part of this constitution is written, and-that What is written is contained in a single document, but to hold that there is no conventional element intermixed with the written part is to close our eyes to some of the most obvious historical facts of our constitutional development.
The same is true of Hungary and Italy’s constitutions, and to a less extent of all written constitutions that have become venerable with age. Regarding the constitution of Hungary, in particular, so much custom has grown up around it that some writers do not hesitate to put it in the same class with the British constitution.
Experience has demonstrated the impossibility of embodying all the principles of constitutional law in a written document. Even if it were possible to do so initially, the constitution would soon become modified and extended by growth and custom. The conventional element is, therefore, inevitable, and it is certainly not to be condemned.
The French writer De Maistre asserted that what is most intrinsically constitutional and fundamental never is or could be written Without endangering the state. The weakness and fragility of any constitution, he asserted, are in direct proportion to the amount of the written element.
On the other hand, all so-called unwritten constitutions contain a huge written element. Much of what was formerly custom and usage has been reduced to writing, and this tendency increases with time. A large part of the British constitution, as. Sir Henry Maine pointed out, is already written, particularly those parts which relate to the powers of the crown, the House of Lords, the judicial power, and much of that which refers to the House of Commons and its relation to the electoral body.
Much of what has been written is indeed only declaratory of what was already law by force of custom. The great acts of parliament, such as the Bill of Rights, observed Freeman, were not enactments of anything new but merely outlined in written form what was already unwritten law.
It is also true that the written element in the British constitution is smaller in quantity than the unwritten part and that what is written is scattered through many documents bearing widely different dates. Still, it is nevertheless considerable in quantity and important in quality.
Therefore, the British constitutions differ from those of the written type not merely because it contains many conventions, but rather because its conventions are more abundant and all-pervasive than the parts written.
The classification, therefore, of constitutions as written and Unwritten is not only confusing and unscientific, but it results in placing in the category of written constitutions some which contain a large element of custom and convention and in the category of unwritten constitutions others which to a large extent have been reduced to written form.
Thus, Hungary and Italy’s constitutions are usually classified as written when in reality, they are so overlaid with custom and possess such a high degree of flexibility that they contain more elements of true resemblance to the British constitution than they do to the constitution of the United States.
It has been suggested that a more scientific and useful classification would be that of flexible and rigid constitutions, the test being the relation which the constitution bears to ordinary laws, rather than its source or mode of enactment. Those who possess no higher legal authority than ordinary laws and which may be altered in the same way as other laws, whether they are embodied in a single document or consist largely of conventions, should then be classified as flexible, movable, or elastic constitutions while those which emanate from of a different source, which legally stand over and above ordinary laws, and which may be amended by diligent processes, should be classed as rigid, stationary, or inelastic constitutions.
Though they may be written, the former possess elasticity and may be altered with the same ease and facility as other laws. The latter cannot be thus altered because their lines are hard and fixed. The first class would fall the constitutions of Great Britain, Hungary, Italy, and Spain, though the last three are usually classed as written instruments. In the second class would fall Ii probably all the other so-called written constitutions of the world.
Sir Henry Maine classified constitutions first as historical or evolutionary, those who have developed through the founded, and, second, as a prior or those on speculative assumptions remote from experience. Of course, the constitution of Great Britain is the best example Of the former, While the eighteenth-century constitutions of France were typical illustrations of the latter type.
Resembling somewhat the latter class are those denominated by judge Jameson as ideal constitutions or those framed in the closets according to abstract ideas of moral perfection tor imaginary commonwealths. Such were the constitutions proposed by Plato, Sir Thomas More, John Locke, Lord Bacon, and Thomas Harrington.