Simone Lawson
The concept of a constitution has evolved over centuries, with the term itself deriving from the ancient Roman law of nations and its application to international relations. The first written constitution, the Code of Draco, was created in 621 BC in Athens, followed by the Solonian Constitution in 594 BC, which established a plutocracy. The U.S. Constitution, influenced by the Magna Carta and European Enlightenment thinkers like Locke and Montesquieu, is the supreme law of the U.S. and outlines the structure and powers of the three branches of government, with a system of checks and balances. It has been amended 27 times to expand civil rights protections and address federal authority. Constitutions are protected by legal bodies that interpret them and can declare acts that violate constitutional provisions void.
| Characteristics | Values |
|---|---|
| Separation of powers | Legislative, Executive, and Judicial |
| Federalism | Rights and responsibilities of state governments, the states in relation to the federal government, and the shared process of constitutional amendment |
| Checks and balances | Preventing any one of the three branches of government from becoming dominant |
| Amendments | 27 amendments, the first 10 of which are known as the Bill of Rights |
| Interpretation | Interpreted, supplemented, and implemented by a large body of federal constitutional law |
| Protection | Protected by a legal body whose job it is to interpret the constitution and, where applicable, declare void executive and legislative acts which infringe upon it |
| Justiciability | The formula for a federal court to take and decide a case, based on the doctrines of standing, real and substantial interests, adversity, and avoidance of political questions |
| Influence | Influenced by the study of Magna Carta and other federations, both ancient and extant, as well as European Enlightenment thinkers |
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What You'll Learn
Separation of powers
The concept of the separation of powers is a well-known principle derived from the text and structure of the Constitution. The doctrine of the separation of powers embodies the division of the federal government into three branches: the legislative, the executive, and the judiciary.
The legislative branch consists of a bicameral Congress, the executive branch is made up of the President and subordinate officers, and the judiciary consists of the Supreme Court and other federal courts. Each branch has its own distinct powers and responsibilities, with the legislative branch responsible for creating laws, the executive branch for enforcing laws, and the judiciary for interpreting laws and resolving disputes.
The separation of powers aims to protect individual liberty by preventing the concentration of power in a single entity, which could lead to arbitrary and oppressive government actions. Each branch has checks and balances over the others to prevent power aggrandizement and ensure a workable government. For example, the President can veto legislation passed by Congress, but Congress can overrule the veto with a supermajority vote.
The idea of the separation of powers has its roots in the work of European Enlightenment thinkers such as Montesquieu, John Locke, and others. Montesquieu, in his work "The Spirit of Law" (1748), described the distribution of political power among a legislature, an executive, and a judiciary. Locke, in "Two Treatises of Government" (1690), distinguished between legislative, executive, and federative power, arguing that legislative power was supreme as it derives its authority from the people.
The first constitutional document to establish the separation of powers was the "Pacts and Constitutions of Rights and Freedoms of the Zaporizhian Host", written in 1710 by Ukrainian Hetman Pylyp Orlyk.
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Federalism
The Constitution's first three articles embody the doctrine of the separation of powers, dividing the federal government 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).
Article IV, Article V, and Article VI embody the principles of federalism, outlining the rights and responsibilities of state governments and their relationship with the federal government. These articles also outline the process of constitutional amendment, which requires the ratification of three-fourths of the states.
The Tenth Amendment reserves powers to the states, as long as those powers are not delegated to the federal government. This amendment ensures that states retain significant autonomy and can exercise powers not specifically granted to the federal government.
The US Constitution also outlines concurrent powers, which are powers shared by both the federal and state governments. These include the power to tax, build roads, and create lower courts. The Supreme Court has played a crucial role in interpreting and enforcing federalism by determining whether Congress has exceeded its constitutional powers and infringed upon state sovereignty.
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Justiciability
The principle of justifiability is deeply rooted in the separation of powers and checks and balances inherent in constitutional systems. By limiting the jurisdiction of the courts to justiciable matters, it prevents the judiciary from overstepping its mandate and infringing on the domains of the executive or legislative branches. This separation of functions is crucial for maintaining the integrity and independence of the judiciary, as well as preserving the system of checks and balances that prevents the concentration of power in any one branch of government.
A matter may be deemed non-justiciable for several reasons. Firstly, certain issues may be considered political questions, which are more appropriately resolved through political processes rather than judicial intervention. These often involve matters of state policy, foreign relations, or issues that the constitution has committed to the discretion of the executive or legislature. Secondly, a matter may be deemed non-justiciable if it lacks the requisite legal or judicially enforceable rights. This could include disputes that are based on abstract political rights or general grievances without a specific legal basis.
Additionally, justiciability may be affected by considerations of ripeness and standing. A matter may be considered unripe for judicial review if it is premature or speculative, lacking a concrete and immediate legal dispute. Standing, on the other hand, relates to whether the parties involved have a sufficient personal stake or direct interest in the outcome of the case. If a party lacks standing, the court may decline to hear the matter on the grounds that there is no justiciable controversy.
While the specific factors influencing justiciability may vary depending on the constitutional framework and legal traditions of a particular country, the underlying principle remains consistent. Justiciability serves as a critical tool for demarcating the boundaries of judicial power and ensuring that the courts operate within the limits established by the constitution and the rule of law. It is through the application of this concept that the judiciary upholds its role as a guardian of the constitution and a protector of individual rights and liberties.
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Constitutional violation
The concept of a constitution has a long history, dating back to ancient times. The term itself stems from the ancient Greek "constitution" or "constitutiones", referring to the arrangement of state offices. The first written constitution was created in the city-state of Athens by Draco in 621 BC, followed by Solon, the ruler of Athens, in 594 BC, and further reformed by Cleisthenes in 508 BC. The Chinese Ming dynasty was governed by a constitution called the "Ancestral Injunctions", written in 1375, and the oldest written constitution still in use is that of San Marino, written in 1600. The US Constitution, which came into force in 1789, was influenced by the Magna Carta, other ancient and modern federations, and the European Enlightenment thinkers, such as Montesquieu and John Locke. It is the supreme law of the United States, delineating the framework of the federal government and the separation of powers.
A constitutional violation occurs when an action or legislative act is judged to be contrary to the constitution by a constitutional court. This can happen when a public office holder acts outside the powers granted to their office by the constitution. For example, in the US, the Fourth Amendment protects citizens from unreasonable seizure, and if the police use excessive force during an arrest, causing physical injury, this could be a violation of an individual's constitutional rights. Similarly, the First Amendment protects freedom of speech, and if members of the Ku Klux Klan were prevented from marching, they could bring a suit for damages against the city, as their right to freedom of speech had been violated.
While constitutions are often protected by legal bodies that interpret them and declare executive and legislative acts unconstitutional, the UK, for instance, does not have the concept of declaring an act unconstitutional. In the US, citizens can take legal action if they feel their constitutional rights have been violated. They may sue the responsible public official or governmental body for money damages. However, there are challenges to recovering damages from certain defendants, such as state governments or individuals with immunity, like judges, legislators, and prosecutors.
The doctrine of sovereign immunity protects states from paying damages in most cases, and government officials usually receive some form of immunity as well. While judges, legislators, and prosecutors are entirely immune from damages, other officials may be held liable for violating someone's constitutional rights if the right was "clearly established" by the courts beforehand. In the case of police officers using excessive force, individual officers could be sued for violating the Fourth Amendment right against unreasonable seizure if this right had been previously established by the courts.
In conclusion, a constitutional violation occurs when actions or legislative acts contradict the constitution of a state. These violations can be committed by public office holders or government officials and may result in legal consequences, such as lawsuits or the declaration of acts as unconstitutional. The protection and enforcement of constitutional rights vary across different countries, and immunity for certain defendants can pose challenges to recovering damages.
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Influence of ancient texts
The US Constitution, which came into effect in 1789, was influenced by various ancient texts and political philosophies. One of the key influences was the European Enlightenment, with thinkers such as Montesquieu and John Locke contributing the ideas of unalienable rights, the separation of powers, and the structure of the Constitution. Benjamin Franklin, in a speech at the Constitutional Convention, acknowledged the influence of ancient history and models of government, but also noted that the American situation was unique and that European constitutions were not suitable for their circumstances. Thomas Jefferson also believed that European governments were autocratic monarchies, incompatible with the egalitarian nature of the American people.
The US Constitution was also influenced by the study of the Magna Carta and other ancient federations. The concept of the separation of powers, for example, can be traced back to Aristotle, who, in 350 BC, made a formal distinction between ordinary law and constitutional law, establishing ideas of constitution and constitutionalism. Aristotle defined a constitution in general terms as "the arrangement of the offices in a state". The ancient Greeks also contributed to the development of democratic principles, with Cleisthenes reforming the Athenian constitution and setting it on a democratic footing in 508 BC.
The influence of ancient texts and philosophies can also be seen in the US Constitution's establishment of the three branches of government: the legislative, executive, and judicial. This idea of checks and balances can be traced back to the Roman law of nations, which sought to establish customary "laws of war and peace" and to define the authority of monarchs and officials. The writings of Thomas Hobbes, Samuel Rutherford, John Milton, and James Harrington also contributed to this discourse, debating the divine right of monarchs.
In addition to European influences, the US Constitution was also shaped by ancient texts from other parts of the world. For example, the oldest written document still governing a sovereign nation is that of San Marino, written in Latin and consisting of six books. The first book establishes councils, courts, executive officers, and their powers, while the remaining books cover civil and criminal law and judicial procedures. The US Constitution's focus on federalism and the rights and responsibilities of state governments may also have been influenced by this and other ancient texts, such as the Chinese Ancestral Injunctions, which served as a constitution for the Ming dynasty for 250 years.
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Frequently asked questions
A constitution is a document that outlines the structure and powers of a government. It establishes the rules and principles that the government must follow and often includes information on the rights and responsibilities of citizens.
The concept of a written constitution has a long history, dating back to ancient times. One of the earliest examples is the code of laws established by Draco in Athens in 621 BC, followed by the Solonian Constitution in 594 BC, which was based on wealth rather than birthright. The idea of a constitution as we know it today, with a separation of powers and protections for individual liberties, was influenced by European Enlightenment thinkers like Montesquieu and John Locke.
The purpose of a constitution is to establish a system of government that protects the rights and liberties of its citizens. It provides a framework for how the government should function and ensures that no one branch of government becomes too powerful.
A constitution outlines the specific powers and limitations of the government, ensuring that it does not overstep its authority. It often includes a bill of rights that guarantees certain freedoms and protections for individuals. In some countries, independent courts interpret the constitution and can strike down laws that violate it.
The process for amending a constitution varies depending on the country. In the United States, for example, an amendment requires a two-thirds majority vote in both the Senate and the House of Representatives, followed by ratification by three-fourths of the state legislatures or state conventions. Amendments typically make it more difficult to change the constitution than regular laws.
