Constitutional Complexity: Multiple Charters In Modernity

The world's first written constitution was that of the United States in 1789, and since then, almost 200 countries have adopted constitutions of their own. Constitutions are not exclusive to democratic countries, and autocratic states such as North Korea also have them. Modern constitutions function as a higher law that supersedes any of a nation's other laws, and they establish how the government will be structured and define a set of rights. However, the extent to which governments abide by their own constitutional provisions varies. The number of historical constitutions exceeds the number of countries, with 799 constitutions and 2,999 amendments cataloged by the Comparative Constitutions Project (CCP).

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The historical and political context of constitutions

The term "constitution" comes from the Latin word "constitutio", which was used for regulations and orders. The term was later used in canon law for important determinations, especially decrees issued by the Pope. Constitutions are the fundamental principles that constitute the legal basis of a country, organisation, or other types of entities, and they commonly determine how that entity is governed. They are often written down into a single document or set of legal documents, known as a written constitution.

The process by which a country adopts a constitution is closely tied to its historical and political context. For example, codified constitutions are often the result of dramatic political changes, such as a revolution. The legitimacy and longevity of such constitutions are often tied to the process by which they are initially adopted. High constitutional turnover within a country may be detrimental to the separation of powers and the rule of law.

Constitutions can be traced back to ancient times. For example, in 621 BC, a scribe named Draco codified the oral laws of Athens, and in 594 BC, Solon, the ruler of Athens, created the new Solonian Constitution, which was based on wealth rather than birthright. The Constitution of Medina, drafted by the Islamic prophet Muhammad, was another early constitution that aimed to bring an end to intertribal fighting. The United States Constitution, created in 1787, is the oldest written national framework of government in the world, and it has served as a model for many other countries.

The historical context of constitutions has evolved over time, with the rise and fall of monarchies, democracies, aristocracies, empires, and dictatorships. For instance, France has had 10 separate and distinct constitutional orders, while El Salvador has had 36 constitutions since 1824. The United States, in contrast, has been governed by a single framework for over two centuries.

In modern times, constitutions continue to be relevant, with almost 200 countries having constitutions. They function as a higher law that supersedes any other laws and establishes the structure of the government, such as who can create legislation and how elections are conducted. They also typically define a set of rights and which individuals possess them. While constitutions are not exclusive to democracies, they are an important part of establishing the legal and political tradition of strict adherence to the rule of law.

The content of constitutions

Constitutions are foundational documents of the modern political era. Most states in the world have codified constitutions, which are often the product of dramatic political change, such as a revolution. The content of constitutions varies considerably, but they generally function as a kind of higher law that supersedes any of a nation's other laws. They establish how the government will be structured, how elections will be conducted, and define a set of rights and which individuals will possess them.

The US Constitution, for example, is the oldest and longest-standing written and codified national constitution in force in the world. It superseded the Articles of Confederation, the nation's first constitution, on March 4, 1789. The US Constitution is composed of a preamble, seven articles, and 27 amendments. The first ten amendments are known as the Bill of Rights, which offer specific protections of individual liberty and justice and place restrictions on the powers of the government within US states. The US Constitution also establishes a system of checks and balances, with the federal government divided into three branches: the legislative, consisting of the bicameral Congress (Article I); the executive, consisting of the president and subordinate officers (Article II); and the judicial, consisting of the Supreme Court and other federal courts (Article III).

Constitutions are not exclusive to democratic countries. Autocratic states, such as North Korea, have constitutions that grant citizens certain rights, such as freedom of expression. However, the extent to which governments abide by their own constitutional provisions varies. For instance, in North Korea, the Ten Principles for the Establishment of a Monolithic Ideological System are said to have overshadowed the constitution in importance as a framework of government in practice.

The Comparative Constitutions Project (CCP), launched in 2005, has created a comprehensive chronology of constitutions, along with a repository of the texts and their amendments. The CCP website houses data that is used by constitutional scholars for quantitative analysis, while also allowing non-academic users to view and compare constitutional texts.

The process of adopting a constitution

Proposal and drafting:

Ratification:

Once a proposal has been made, it must be ratified or approved. This process can vary depending on the country and the specific circumstances. In some cases, ratification may require a referendum or a vote by the people. In other cases, ratification may be carried out by a legislative body or a special constitutional convention. For example, in the United States, a proposed amendment must be ratified by three-fourths of the states, either through the consent of state legislatures or state ratifying conventions.

Implementation:

Once a constitution has been ratified, it becomes the supreme law of the land. This means that all other laws and government actions must conform to the constitution. In most modern states, the constitution has supremacy over ordinary statutory law. If there is a conflict between a legal statute and the constitution, the statute can be declared ultra vires and struck down as unconstitutional.

Amendments and revisions:

Constitutions are living documents that can be amended and revised over time. The process of amending a constitution varies but typically involves a similar process of proposal, ratification, and implementation. In some cases, constitutions may include provisions for their own amendment, outlining the specific steps that must be taken to make changes. For example, the United States Constitution has a procedure for amending outlined in Article V, which includes two methods of proposal and ratification.

It is worth noting that the process of adopting a constitution can be highly political and subject to various influences. The legitimacy and longevity of a constitution are often tied to the process by which it is adopted, and high constitutional turnover within a country may be detrimental to the separation of powers and the rule of law. Additionally, the influence and interpretation of a constitution can be shaped by court decisions, particularly those of the supreme court, which sets precedents for future constitutional interpretation.

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The influence of a constitution on a country's laws

Constitutions are the foundation of a country's laws and play a crucial role in shaping its legal and political landscape. A constitution is a set of fundamental principles that outline the structure and function of a country's government, and it serves as the framework for creating and implementing laws. Most states in the world have codified constitutions, which are often the product of significant political changes, such as revolutions.

The process of adopting a constitution is deeply rooted in a country's historical and political context. The legitimacy and longevity of a constitution is closely tied to the process by which it is adopted, and high constitutional turnover within a country can be detrimental to the stability of its legal system. A constitution typically establishes the distribution of power across different branches of government, outlining which entities have the authority to create legislation and conduct elections.

Constitutions also play a pivotal role in defining the rights and freedoms of citizens. They outline the basic rights and liberties that the state recognizes and protects, such as freedom of expression, the right to bear arms, and birthright citizenship. These rights are enshrined in the constitution and are meant to be upheld and guaranteed by the government. In some cases, constitutions may also include social and economic rights, such as the right to health, which is increasingly being recognized in modern constitutions.

The United States Constitution, with its emphasis on popular consent and rule by the people's representatives, has historically had a significant influence on the constitutions of other countries. Many nations, especially in Latin America, have drawn inspiration from the US Constitution in their pursuit of democratic ideals and the establishment of federalist frameworks. However, in recent years, the influence of the US Constitution appears to be waning, with other countries creating new constitutions or updating older ones, and a 2012 study by David Law suggests that it guarantees relatively few rights compared to other constitutions.

The role of constitutions in democracy and autocracy

Constitutions are an essential part of both democratic and autocratic governments. Constitutions are foundational documents that outline the principles and framework of governance. They are the ultimate legal authority, guiding the actions of the government and protecting the rights of citizens. In this way, they play a critical role in shaping governance, safeguarding rights, and fostering unity among citizens.

In a democracy, the people are sovereign and are the ultimate source of the government's authority. A constitution in a democratic society provides a mechanism for citizens to challenge governmental actions that infringe upon their liberties. It establishes independent judicial systems, with courts interpreting the constitution and ensuring that any legislation or governmental action complies with constitutional principles. This judicial review process acts as a check on governmental authority, providing citizens with a means to seek justice and redress in case of violations of their rights.

The fundamental values of constitutional democracy reflect a concern for human dignity and the worth and value of each individual. Basic rights, such as life, liberty, and property, are protected, and may be extended to include economic and social rights such as employment, healthcare, and education. Freedom of conscience and expression are also highly valued, with constitutional democracies aiming to protect these freedoms for the healthy functioning and preservation of their system of governance.

In an autocracy, the constitution may still officially grant citizens certain rights and freedoms. For example, the North Korean constitution grants every citizen the freedom of expression. However, the extent to which autocratic governments abide by their own constitutional provisions varies. In North Korea, for instance, it is said that the Ten Principles for the Establishment of a Monolithic Ideological System have taken precedence over the constitution in importance.

While constitutions are not exclusively the product of democracies, they are foundational to the rule of law. They establish how the government will be structured, define a set of rights, and determine who possesses these rights. They can be categorized into two main types: written and unwritten. Written constitutions, such as that of the United States, are formal legal documents that explicitly state the rights and responsibilities of all parties involved in governance. Unwritten constitutions consist of legal precedents, traditions, and customs that have evolved over time. Regardless of their form, the primary function of a constitution remains the same: to serve as a blueprint for governance.

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