The Crafting Of Constitutions: A Historical Overview

The process of writing a constitution is a complex and varied endeavour, with many factors influencing the final product. Most constitutions are written following a dramatic political change, such as a revolution, and the historical and political context of their creation is crucial to their content and legitimacy. The United States Constitution, the oldest and shortest written constitution still in force, has been a significant influence on other constitutions worldwide, with its ideas of unalienable rights and separation of powers. However, since the 1980s, its influence has waned as other countries have created new constitutions or updated older ones. The process of amending a constitution is also important, with the United States Constitution having undergone 27 amendments since its inception in 1787, including the Bill of Rights. The average lifespan of a newly written constitution is approximately 19 years, with some lasting only a year, and others, like the United States Constitution, enduring for centuries.

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Influence of European Enlightenment thinkers

The Enlightenment, which took hold in most European countries, influenced nations across the world, often with a specific local emphasis. The ideas of European Enlightenment thinkers like Montesquieu, John Locke, and others, greatly influenced the unalienable rights, the separation of powers, and the structure of constitutions.

Many of the major political and intellectual figures behind the American Revolution closely associated themselves with the Enlightenment. For example, Benjamin Franklin visited Europe repeatedly, actively contributing to the scientific and political debates there, and brought new ideas back to Philadelphia. Thomas Jefferson closely followed European ideas and later incorporated some of the ideals of the Enlightenment into the Declaration of Independence. He also wrote a letter to the Danbury Baptist Association in Connecticut, calling for a "wall of separation between church and state" at the federal level. James Madison, influenced by Hume, incorporated Enlightenment ideals into the US Constitution during its framing in 1787.

In his work, Locke, one of the most influential Enlightenment thinkers, based his governance philosophy on social contract theory, a subject that permeated Enlightenment political thought. Locke's writings, along with those of Bacon and Newton, were considered by Jefferson to be the greatest works he had ever read. Locke's "Second Treatise on Government", written in 1690, influenced the Founding Fathers a century later as they declared America's independence and framed a government.

The colonial experience of most European states in the 18th century began to expose European society to extremely heterogeneous cultures, leading to the breaking down of barriers between cultural systems, religious divides, gender differences, and geographical areas. The public sphere, which by definition should be open to all, was only public to relative degrees. Enlightenment thinkers frequently contrasted their conception of the "public" with that of the people. Most institutions of the public sphere excluded both women and the lower classes.

The ideas of European Enlightenment thinkers influenced the literature of republicanism in the United States, as demonstrated by the works of John Adams, who often quoted Blackstone and Montesquieu verbatim, and applied them to the creation of state constitutions.

The role of citizens and the state

Additionally, citizens can coordinate responses to government officials in the face of constitutional faults. This collective action acts as a check on governmental power and incentivizes rulers to respect the rights enshrined in the constitution. The process of writing a constitution is often influenced by the historical and political context of a country, and the ideas and values of its citizens. For instance, the United States Constitution was influenced by the literature of republicanism and the works of European Enlightenment thinkers such as Montesquieu and John Locke, who emphasized concepts such as unalienable rights and the separation of powers.

The role of the state, on the other hand, involves the administrative powers enforcing the constitution. The state comprises organizations such as the army, courts, police agencies, and tax collectors, which are responsible for implementing the policies outlined in the constitution. In the United States, the Constitution establishes a system of checks and balances, with the powers of the government divided among the legislative, executive, and judicial branches. Each branch has specific responsibilities and limitations outlined in the Constitution, ensuring that no one branch holds excessive power.

The state also plays a role in the amendment process of the constitution. In the United States, members of the House and Senate propose amendments, which must go through a rigorous process of committee approval, Congressional approval, and ultimately, ratification by the states. This process ensures that any changes to the constitution reflect the will of the people and are in line with the country's founding principles.

In some cases, the state may also initiate the writing of a constitution. For example, the English Protectorate established by Oliver Cromwell after the English Civil War promulgated the first detailed written constitution, known as the Instrument of Government. This constitution, drafted by Major-General John Lambert, provided a legal rationale for Cromwell's increasing power and formed the basis of government for a short-lived republic from 1653 to 1657.

Dramatic political change

The process of writing a constitution is closely tied to the historical and political context of the time. The US Constitution, for instance, was influenced by the desire to create a powerful central government, with checks and balances and separation of powers between branches. This was a significant shift from the previous system, where individual state governments held more power than the central government. The US Constitution also introduced the concept of federalism, or the separation of powers between state and federal governments, which was a novel idea at the time.

State constitutions within the US also underwent significant changes during this period. For example, the Pennsylvania Constitution of 1776 abolished property requirements for voting and holding office, dramatically expanding the concept of who was considered a political person. The Massachusetts Constitution of 1780 also marked a new level of citizen participation in government, with the idea of a convention greatly altering constitutional decision-making.

The influence of the US Constitution extended beyond its borders, as it inspired nationalist leaders such as Jose Rizal of the Philippines and Sun Yat-sen of China to push for political reform and self-governance in their respective countries.

The creation of a constitution is often a response to a perceived need for change, whether it is due to social, political, or economic factors. In the case of the US Constitution, the founding fathers intended the document to be flexible and adaptable to the changing needs and circumstances of the country. This is evident in the relatively small number of amendments that have been passed, with Congress passing only 23 additional amendments since the Bill of Rights was adopted in 1791.

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Average life of a constitution

The average lifespan of a constitution is a complex and multifaceted question that depends on various factors and perspectives. On average, constitutions have lasted only about 17 years since 1789, with some sources estimating a lifespan of around 19 years. This relatively short lifespan is surprising given the fundamental role of constitutions in guiding national principles, establishing rules, and limiting government power.

The lifespan of constitutions varies across regions. Latin America and Africa have shorter average lifespans of 12.4 and 10.2 years, respectively, with 15% perishing in the first year. In contrast, Western Europe and Asia have longer average lifespans of 32 and 19 years, respectively. OECD countries, which include many stable democracies, have constitutions that last an average of 32 years.

Constitutions are most likely to be replaced around 10 years after their creation, and the risk of replacement remains relatively high during the first 50 years. After that, only about 25% of constitutions remain, and they start to crystallize and become more stable. However, even constitutions that survive for decades are not immune to change and can still be amended or replaced.

The longevity of a constitution depends on a combination of design features and environmental factors. Design features such as flexibility, inclusion, and specificity are crucial. Flexible constitutions that can be adapted through amendments and modernization are more likely to endure. Inclusion refers to the extent to which different voices and constituencies were involved in the drafting process, fostering a sense of ownership and investment in the constitution's survival. Specificity relates to the level of detail and scope of the constitutional text. Environmental factors, such as regime change, transitions in leadership, historical legacies, and economic crises, can also influence a constitution's lifespan.

Additionally, the process by which a constitution is adopted can impact its longevity. Codified constitutions, contained in a single document, are often the result of dramatic political changes like revolutions. Uncodified constitutions, on the other hand, evolve over time and consist of both written and unwritten sources, such as constitutional statutes, conventions, and traditions. High constitutional turnover within a country may undermine the separation of powers and the rule of law.

Uncodified vs codified constitutions

A codified constitution is contained in a single document, which is the single source of constitutional law in a state. It includes most of its rules and principles in one large written document. All countries except the UK, Israel, New Zealand, and Canada have a codified constitution. The US Constitution, the oldest and shortest written constitution still in force, is an example of a codified constitution.

An uncodified constitution, on the other hand, is not contained in a single document but consists of several different sources, which may be written or unwritten. Uncodified constitutions are the product of an "evolution" of laws and conventions over centuries. For example, the UK has five main sources that constitute the constitution, including constitutional statutes enacted by Parliament and unwritten sources like constitutional conventions, observation of precedents, royal prerogatives, customs, and traditions. Similarly, Israel's Basic Laws have been intended to serve as the basis for a constitution since 1950, but as of 2017, no formal constitution had been drafted.

The main advantage of a codified constitution is that it provides a single, easily accessible source of constitutional law, making it clear which powers each branch of government has and reducing the likelihood of conflict between different sources of information. However, a potential drawback is that codified constitutions may become outdated and require constant reinterpretation to remain relevant in modern times.

Uncodified constitutions offer the advantages of elasticity, adaptability, and resilience. They allow for the evolution of government principles according to changing political and social forces. However, a significant disadvantage is the potential for controversies and constitutional crises due to different interpretations of the usages and customs that form the fundamental provisions of the constitution. The separation of powers may also be more ambiguous in an uncodified constitution, as the powers of the executive and legislature may not be clearly defined, and the judiciary's independence may be compromised.

Overall, the choice between a codified and an uncodified constitution depends on the specific needs and circumstances of a country, with both options offering unique advantages and disadvantages in terms of flexibility, clarity, and adaptability.

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