Jonah Patel
A constitution is the aggregate of fundamental principles that constitute the legal basis of a polity, organization, or other types of entities, and commonly determines how that entity is governed. Constitutions concern different levels of organizations, from sovereign countries to companies and unincorporated associations. There are two types of constitutions: written (like the American Constitution) and unwritten (like the British Constitution). The British Constitution, for example, is a collection of documents, statutes, and traditional practices that are generally accepted as governing political matters. The United States Constitution, on the other hand, is a specific written document.
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What You'll Learn
Written vs unwritten constitutions
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organization, or other types of entities, and it commonly determines how that entity is to be governed. Constitutions concern different levels of organizations, from sovereign countries to companies and unincorporated associations.
When these principles are written down into a single document or set of legal documents, they are said to embody a written constitution. If they are encompassed in a single comprehensive document, it is said to embody a codified constitution. The Constitution of the United States of America is an example of a written constitution. It was ratified on June 21, 1788, and is a benchmark for republicanism and codified constitutions written thereafter. The Constitution has three main functions. Firstly, it creates a national government consisting of a legislative, an executive, and a judicial branch, with a system of checks and balances among the three branches. Secondly, it divides power between the federal government and the states. And thirdly, it protects various individual liberties of American citizens.
In contrast, an unwritten constitution is when these principles are not written down in a single document but are instead a collection of documents, statutes, and traditional practices that are generally accepted as governing political matters. The Constitution of the United Kingdom is an example of an unwritten, or uncodified, constitution. It is written in numerous fundamental acts of a legislature, court cases, and treaties.
Written constitutions are more difficult to alter than unwritten ones. For example, the framers of the American Constitution made it especially challenging to amend. An amendment must first pass both houses of Congress by a two-thirds majority and must then be ratified by the legislatures of three-quarters of the states. This makes the Constitution an anti-majoritarian document, preventing a majority from granting tyrannical powers to the government in a time of crisis.
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Separation of powers
The separation of powers is a near-universal feature of constitutions, with the United States Constitution being a key example. The US Constitution's structure reflects the Framers' intent to create a strong national government with three separate branches: the legislative, executive, and judicial. This structure is designed to prevent tyranny from a single branch, promote effective governance, and preserve individual liberty and natural rights.
The legislative power of the federal government is vested in Congress, which consists of a Senate and a House of Representatives. The House of Representatives is composed of members chosen every second year by the people of the states, with each state having electors with the requisite qualifications. Each House is responsible for judging the elections, returns, and qualifications of its members, determining its rules of proceeding, and keeping a journal of its proceedings. Additionally, each House may punish its members for disorderly behaviour and expel a member with a two-thirds concurrence.
The executive power is vested in the President, who has the authority to issue executive orders and make appointments. However, the President's power is checked by Congress, which cannot encroach upon the President's authority to remove executive officers. Similarly, the President cannot usurp the lawmaking powers of Congress by issuing executive orders.
The judicial power is vested in the Supreme Court and any lower courts created by Congress. The Supreme Court has expressed concerns about the judiciary encroaching on the legislative or executive spheres and has upheld the separation of powers principle in various cases. For example, in Ziglar v. Abbasi, the Court emphasised that separation-of-powers principles should be central when a litigant seeks to assert an implied cause of action under the Constitution or a federal statute.
The separation of powers doctrine allows each branch of government to perform its tasks efficiently and effectively while also providing a system of checks and balances. This structure protects citizens' rights and has been adopted by many countries that modelled their constitutions after the US Constitution.
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Checks and balances
The United States Constitution, for example, divides power between three branches of government: the executive, legislative, and judicial. The legislative power is vested in Congress, which consists of the House of Representatives and the Senate. Congress has the power to pass laws, but the President, as head of the executive branch, can veto them. This is an example of how the system of checks and balances requires the participation of multiple branches of government for important actions.
The President's power is further checked by Congress, which can pass laws over the President's veto. The President's appointments are also subject to confirmation by the Senate, and the President can be impeached by the House and convicted by a two-thirds majority in the Senate.
The United States Constitution also divides power between the federal government and the states. This distribution of power ensures that the federal government does not hold all the power, and that the states have a say in how the country is governed.
Amending the constitution is made intentionally difficult to further protect the system of checks and balances. In the United States, an amendment must pass both houses of Congress by a two-thirds majority and then be ratified by the legislatures of three-fourths of the states. This process helps to maintain the stability of the constitution and prevent it from becoming obsolete or too flexible.
The system of checks and balances in a constitution is a powerful tool for preventing tyranny and protecting the rights of citizens. By distributing power across different branches and levels of government, and by making the amendment process difficult, constitutions can provide a stable and flexible framework for governance.
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Process of amendment
The process of amending a constitution can be a complex and challenging endeavour, often requiring more than a simple majority to pass. This complexity is intentional, designed to prevent a simple majority from granting excessive powers to the government or infringing on the rights of minorities. The United States Constitution, for example, requires amendments to first pass both houses of Congress with a two-thirds majority and then be ratified by the legislatures of at least three-fourths of the states.
In some cases, exceptional procedures may be required to amend a constitution. These procedures might include convening a special constituent assembly or constitutional convention, obtaining the approval of multiple terms of parliament, or even holding a referendum. Some constitutions may also stipulate that certain fundamental principles cannot be abolished or amended. For instance, the United States Constitution divides power between the federal government and the states, and this framework cannot be easily altered.
The difficulty in amending a constitution can, however, present challenges over time. A constitution that is too detailed or rigid may become obsolete if it cannot adapt to changing circumstances. On the other hand, a constitution that is too flexible may allow for interpretations that were not originally intended.
While most constitutions are written documents, some, like the United Kingdom's, are uncodified, consisting of various fundamental acts, court cases, and treaties. Amending an uncodified constitution can be more complex, as changes may need to be made across multiple documents and traditions.
Overall, the process of amending a constitution is deliberately challenging to protect the rights and principles enshrined within it. While this complexity can create difficulties, it also ensures stability and helps prevent abuses of power.
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Individual liberties
The concept of a constitution and constitutionalism can be traced back to Aristotle and the ancient Greeks. Constitutions are the fundamental principles that determine how an entity, from a country to a company, is governed. They are often difficult to alter, with special procedures required to amend them, such as a supermajority of legislators' votes or a referendum. This makes them an anti-majoritarian document, preventing a simple majority from taking away the rights of minorities.
The United States Constitution, ratified on June 21, 1788, is a notable example of a written constitution. One of its key functions is to protect the individual liberties of American citizens. These liberties include the right to elect members of the House of Representatives, freedom of speech and the press, the right to keep and bear arms, and the right to due process of law. The Constitution also establishes a system of checks and balances between the legislative, executive, and judicial branches of government, ensuring that no single branch holds too much power.
The specific liberties and rights enshrined in a constitution vary depending on the country and its values. For example, the Swedish Constitution of 1772, inspired by Montesquieu, enshrined religious freedom and abolished torture and the death penalty. On the other hand, the Corsican Constitutions of 1755 and 1794 introduced universal suffrage for property owners.
While the content of individual liberties in constitutions may differ, the presence of such liberties is a near-universal feature, reflecting the importance placed on protecting the rights of citizens within a governed entity.
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