Eleanor Finch
A constitution is a set of fundamental principles that form the legal basis of a political entity, such as a country, and determines how that entity is governed. It may be a legal instrument or a set of fixed norms or principles generally accepted as the fundamental law of the land. Constitutions concern different levels of organisations, from sovereign countries to companies and unincorporated associations. They are often the product of dramatic political change, such as a revolution, and are considered foundational to the rule of law. In many modern nation states, power is divided and vested in three branches of government: the legislature, the executive, and the judiciary. This separation of powers is designed to curb the powers of the government and ensure that no individual or group has too much power.
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What You'll Learn
Constitutional law
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organization, or other type of entity, and commonly determines how that entity is to be governed. When these principles are written down into a single document or set of legal documents, those documents may be said to embody a written constitution. The process by which a country adopts a constitution is closely tied to the historical and political context driving fundamental change.
In many modern nation states, power is divided and vested in three branches of government: the legislature, the executive, and the judiciary, known as the horizontal separation of powers. The first and second branches are harmonized in the traditional Westminster system, while vertical separation of powers is decentralization. Election law is a subfield of constitutional law and includes the rules governing the process of elections. These rules enable the translation of the will of the people into functioning democracies.
Constitutional government is defined by the existence of a constitution, which may be a legal instrument or merely a set of fixed norms or principles generally accepted as the fundamental law of the polity. The essence of constitutionalism is the control of power by its distribution among several state organs or offices in such a way that they are each subjected to reciprocal controls and forced to cooperate in formulating the will of the state.
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Separation of powers
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation, or other types of entities, and commonly determines how that entity is governed. The process by which a country adopts a constitution is closely tied to the historical and political context driving this fundamental change.
The separation of powers is a concept that is closely associated with political systems, in which the legislative, executive, and judicial powers of government are vested in separate bodies. The term is also used in business contexts to refer to structures in which different positions hold distinct responsibilities. The separation of powers is based on the concept of "trias politica", which envisions a tripartite system where the powers are delegated and distributed among three organs, each with its own jurisdiction.
The term "separation of powers" or "trias politica" was popularised by French Enlightenment philosopher Charles de Montesquieu, who articulated this principle in his book "Esprit des Lois" (The Spirit of Laws), published in 1785. Montesquieu discovered that when power is concentrated in the hands of a single person or group, a despotic government emerges. To prevent this, he argued that the three organs of the state—the executive, legislative, and judiciary—should have a clear distribution of power. Montesquieu's model was based on the Constitution of the Roman Republic and the British constitutional system, where he observed a separation of powers among the monarch, Parliament, and the courts of law.
The doctrine of separation of powers has two aspects: negative and positive. Negatively, it implies non-encroachment by one branch into the sphere of another, and positively, it connotes the maintenance of independence and integrity of each branch. The separation of powers is designed to prevent the concentration of unchecked power and to provide checks and balances, ensuring that each branch has the constitutional means to defend its legitimate powers from the encroachments of other branches.
The separation of powers is reflected in the tripartite system of governments like the United States and the United Kingdom, with each branch having distinct responsibilities. For example, in the US, the executive branch nominates judges, the legislative branch confirms the nominations, and the judicial branch adjudicates on the constitutional merit of the laws passed by the legislature.
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Democracy and constitutionalism
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation, or other types of entities, and commonly determines how that entity is to be governed. A constitution may be a legal instrument or merely a set of fixed norms or principles generally accepted as the fundamental law of a polity.
Constitutionalism refers to the control of power by distributing it among several state organs or offices in such a way that they are each subjected to reciprocal controls and forced to cooperate in formulating the will of the state. Constitutional governments are also generally democracies, and in most cases, they are referred to as constitutional democracies or constitutional-democratic systems. Constitutional democracies are typically governed according to two sets of principles: constitutionalism, which prescribes that governments should conduct their business according to rules that limit their freedom of action, and a populist principle, which prescribes that governments should implement the will of the people.
The two major types of constitutional democracy in the modern world are exemplified by the United States and Great Britain. The United States is the leading example of the presidential system of constitutional democracy. A third type of constitutional democracy is the hybrid presidential-parliamentary system, exemplified by the government of France. In such systems, there is both a directly elected president with substantial executive powers and a presidentially appointed prime minister, who must retain majority support in the legislature.
The famous first 52 words of the US Constitution, which was ratified on 21 June 1788, begin with "We the People" and introduce the articles and amendments that follow. The seven articles make up the structural constitution, and there have been 27 amendments to the Constitution, beginning with the Bill of Rights, the first 10 amendments, ratified on 15 December 1791.
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Historical and political context
The concept of a constitution has evolved over centuries, with Aristotle (c. 350 BC) being the first to formally distinguish between ordinary law and constitutional law. He defined a constitution as "the arrangement of the offices in a state" and explored different constitutions of his time, including those of Athens, Sparta, and Carthage. He advocated for a mixed system that included monarchic, aristocratic, and democratic elements.
The process of adopting a constitution is often driven by dramatic political changes, such as revolutions, and is closely tied to the historical and political context of the time. For example, the United States Constitution, which is a written and codified constitution, was established after the American Revolution to divide federal power into three branches: the legislative, executive, and judicial. This system of checks and balances ensures that no individual or group has too much power.
In contrast, the Constitution of the United Kingdom is an example of an uncodified constitution, which is not written in a single document but is instead found in various fundamental acts of legislature, court cases, and treaties. The UK's constitutional government was historically not tied to political democracy, with reforms in the 19th century, such as the Reform Act of 1832, extending suffrage and allowing for mass participation in politics.
Constitutional governments in the contemporary world are often democracies, referred to as constitutional democracies or constitutional-democratic systems. These systems share a basis in the primacy they accord to the will of the majority expressed in free elections, with political parties playing a key role in mobilizing and expressing majority opinion.
The development of constitutional-democratic systems has been accompanied by the institutionalization of parties and the evolution of party competition. The two major types of constitutional democracy are exemplified by the United States (presidential system) and Great Britain (sometimes referred to as a cabinet system). France, meanwhile, demonstrates a hybrid presidential-parliamentary system, with both an elected president and a presidentially appointed prime minister.
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Federalism
The US Constitution outlines specific powers that belong to the federal government, referred to as enumerated powers, with the Tenth Amendment reserving powers to the states unless delegated to the federal government. This is further supported by the Supremacy Clause, which states that the Constitution and laws made under the authority of the United States are the supreme law of the land, superseding state laws in cases of conflict. The US Constitution also establishes the Electoral College for electing the President, balancing direct popular election and congressional selection, with each state's number of votes corresponding to its combined number of senators and representatives.
The COVID-19 pandemic highlighted the relevance of federalism, as it allowed states to implement their own methods of combating the virus. While some policies faced scrutiny, federalism enabled local governments to make decisions based on their specific needs and circumstances.
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Frequently asked questions
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a political entity, and commonly determines how that entity is governed.
A constitution determines how a political entity is governed. In many modern nation states, power is divided and vested into three branches of government: the legislature, the executive, and the judiciary. This is known as the horizontal separation of powers. The constitution of a country determines how these branches of government are structured and interact with each other. For example, the Constitution of the United States divides the federal government into three branches: legislative, executive, and judicial, with each branch having the ability to respond to the actions of the other branches.
A constitution is the highest law of a nation and all other laws must conform to it. If there is any conflict between a legal statute and the constitution, the statute can be declared ultra vires by a court and struck down as unconstitutional. Constitutional law is a major focus of legal studies and research. For example, most law students in the United States are required to take a class in Constitutional Law during their first year.
