Omar Bennett
A country's constitution is a set of rules that dictate how a government can exercise its power. It establishes which institutions should exercise power and how they should do so. Constitutions can be either codified, i.e., contained in a single document, or uncodified, i.e., consisting of several different sources, both written and unwritten. Most constitutions regulate the relationship between the institutions of the state and define the relationship between individuals and the state. They also establish the broad rights of individual citizens. The constitution of a country is the most basic law from which all other laws and rules are hierarchically derived.
| Characteristics | Values |
|---|---|
| Type | A constitution can be codified (contained in a single document) or uncodified (consisting of several different sources, which may be written or unwritten). Most countries have codified constitutions. |
| Preamble | Sets forth the goals of the state and the motivation for the constitution. May contain a reference to God and/or fundamental values of the state such as liberty, democracy, or human rights. |
| Separation of Powers | The constitution may separate the powers of government into branches, such as legislative, executive, and judicial. |
| Amendments | The process of amending a constitution varies and may require a supermajority, a referendum, or the consent of a minority party. Some constitutions have entrenched clauses that make certain amendments more difficult or impossible to pass. |
| Rights and Liberties | A constitution may guarantee specific rights and liberties to citizens, such as the right to keep and bear arms, the right to a jury trial, and protection from excessive bail and "cruel and unusual punishments". |
| Powers of the Federal Government | The federal government's power may be limited to what is explicitly written in the constitution ("enumerated powers"), with any powers not specifically granted being left to the states. |
| Voting Rights | The constitution may outline voting rights, such as the right to vote in congressional elections and the requirement for equal representation in congressional districts. |
| Structure of Congress | The constitution may require Congress to be bicameral, consisting of two houses: the Senate and the House of Representatives. |
| State-Specific Provisions | The constitution may contain provisions specific to individual states, such as the protection of a specific nation, language, and culture in ethnic nation-states. |
| Historical Context | The content and adoption of a constitution are influenced by the historical and political context of the country. Dramatic political changes, such as revolutions, can drive the creation of a new constitution. |
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What You'll Learn
Rights and laws
A country's constitution is a set of laws and principles that outlines the powers and structure of its government, as well as the rights and liberties of its citizens. Constitutions typically contain provisions that establish the rules and procedures for governance, define the rights and freedoms of individuals, and outline the relationships between different entities within the state.
The rights enshrined in a constitution are intended to protect individuals from government overreach and abuse of power. They establish the limits of governmental authority and ensure that citizens are treated fairly and justly. In some cases, constitutions may also include provisions that guarantee economic, social, and cultural rights, such as the right to education, healthcare, or housing.
Constitutions also outline the powers and responsibilities of the different branches of government, including the executive, legislative, and judicial branches. This separation of powers is designed to prevent the concentration of power in a single person or group, thus safeguarding against tyranny and promoting checks and balances within the government. For instance, the framers of the US Constitution separated the powers of government into three branches: legislative (Congress), executive (President), and judicial (courts).
Amendments are another important aspect of constitutions. They allow for changes and updates to be made to the document over time. In some countries, such as the United States, the process of amending the constitution is deliberately made difficult to ensure stability and prevent hasty changes. This can be seen in the US Constitution's entrenched clause, which makes certain amendments more difficult or impossible to pass.
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Relationship between institutions
The relationship between institutions is a key aspect of a country's constitution, outlining the powers and limitations of various organisations and entities. Constitutions typically confer specific powers on institutions, provided they abide by the constitution's limitations. This concept is known as "within power" or "intra vires" in Latin. Any actions beyond these powers are considered "beyond power" or "ultra vires".
The separation of powers is a fundamental principle in many constitutions, dividing the government's powers among different branches. For example, the US Constitution separates powers into legislative, executive, and judicial branches, each acting as a check on the others. The legislative branch, such as Congress, holds the power to pass laws. The executive branch, led by the president, administers the laws. Meanwhile, the judicial branch, comprised of the courts, is tasked with interpreting and enforcing the laws.
The specific powers granted to each branch can vary. For instance, the US Constitution grants unique powers to Congress, including the power to pass laws, while limiting the federal government's power to only what is explicitly stated in the Constitution, known as "enumerated powers". Any powers not specified are left to the states. Similarly, the English Bill of Rights and the American Bill of Rights, inspired by it, guarantee certain rights such as the right to jury trials and protection from excessive bail.
Constitutions may also outline the structure of institutions. For example, Article I, Section 6 of the US Constitution requires Congress to be bicameral, divided into the Senate and the House of Representatives. The number of seats in the House of Representatives is based on population, giving larger states more representation.
Amendments play a crucial role in the evolution of institutional relationships. Most constitutions outline procedures for proposing and ratifying amendments. For instance, in the US, an amendment can be proposed by a two-thirds vote in both houses of Congress or by a national constitutional convention called by two-thirds of the states. Ratification requires approval from three-fourths of the state legislatures or state conventions.
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Amendments
A country's constitution is a document that outlines the fundamental principles and laws that govern that country. It establishes the powers and responsibilities of the government and often includes provisions for the protection of the rights and liberties of citizens. Constitutions can be either codified, meaning they are contained in a single document, or uncodified, consisting of several different sources, both written and unwritten.
In other countries, like Australia and Ireland, amendments are drafted as Acts of Parliament but must be approved by a referendum to become law. Estonia and Venezuela also follow a similar process, with amendments originating as bills and becoming law through acts of parliament. In contrast, the former constitution of the US state of Alabama was amended 977 times between 1901 and 2022, demonstrating a high level of constitutional turnover.
Some constitutions contain entrenched clauses or entrenchment clauses, which make certain amendments more difficult or impossible to pass. These clauses may require a supermajority, a referendum, or the consent of a minority party to be overridden. For example, the US Constitution has an entrenched clause that prohibits abolishing equal suffrage of the states within the Senate without their consent. Similarly, the Constitution of Ethiopia can only be modified by a two-thirds majority of the country's regions, and a two-thirds majority in a joint session of the Federal Parliamentary Assembly.
The manner in which amendments are recorded also varies. In most jurisdictions, amendments take the form of revisions to the previous text, with portions of the original text being deleted or new articles inserted. In other cases, amendments are appended to the end of the main text as special articles of amendment, leaving the original text unchanged. This method is famously used in the United States Constitution and is also employed in Venezuela.
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Entrenchment clauses
An entrenched clause, or entrenchment clause, is a provision in a constitution that makes certain amendments more difficult or even impossible to pass. Most modern constitutions are entrenched, meaning they are harder to amend than ordinary laws. Entrenchment clauses further raise the bar for amending certain parts of a constitution, or they may declare that certain provisions are unamendable.
The purpose of entrenchment clauses is to protect the essentials of modern constitutionalism, such as democracy, human rights, and the rule of law. They are designed to prevent the abolition of democracy by democratic means and can, therefore, be understood as measures of militant democracy. For example, the Tunisian Constitution of 2014 includes an entrenchment clause prohibiting amendments to the constitution that would change the duration of a presidential term or the maximum number of terms an individual can serve. Similarly, Article 226 of the Constitution of Egypt ends with an entrenched clause stating that "In all cases, texts pertaining to the re-election of the president of the republic or the principles of freedom and equality stipulated in this Constitution may not be amended, unless the amendment brings more guarantees."
However, there are examples of entrenchment clauses failing to achieve their objectives. For instance, Article 226 of the Egyptian Constitution, mentioned above, failed to block amendments in 2019 that replaced the two-term limit for presidents with a consecutive one and extended the term duration from four to six years. In another example, the South Africa Act, the initial constitution of the Union of South Africa, contained entrenchment clauses protecting voting rights that required a two-thirds majority in parliament to be repealed. However, the government was able to restructure the Senate and pack it with sympathizers to achieve the required supermajority, thus undermining the protection of voting rights.
Overriding an entrenched clause typically requires a supermajority, a referendum, or the consent of the minority party. For instance, the US Constitution has an entrenched clause that requires the consent of the states to pass any amendment that would affect their equal suffrage within the Senate. In some cases, a constitution may provide a mechanism for its own abolition or replacement, which would also override any entrenchment clauses.
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Judicial power
A country's constitution is a document that outlines the fundamental principles and laws that govern that country. It establishes the rights and responsibilities of the government and its citizens, and it outlines the structure and powers of the different branches of government, including the judicial branch.
The judicial power of a country's constitution refers to the authority of the courts to interpret and apply the law, resolve disputes, and carry out justice. This power is typically vested in a country's highest court, such as the Supreme Court in the United States, as well as in lower or inferior courts.
Article III of the United States Constitution, for example, establishes the federal judiciary and outlines its powers. Section 1 of Article III states that the "judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." This means that the US Constitution recognises the Supreme Court as the highest court in the land, with the power to hear and decide cases on appeal from lower courts. It also gives Congress the authority to establish lower courts as needed.
The specific powers and responsibilities of the judiciary can vary between countries, but some common elements include:
- The power to interpret and apply the constitution and laws: This includes the authority to hear cases and render judgments, as well as to interpret the meaning of laws and how they should be applied in practice.
- The power to review and strike down unconstitutional laws: Also known as judicial review, this power allows the judiciary to declare a law or executive act invalid if it violates the constitution. This helps ensure that all branches of government respect the limits of their power and protect the rights and liberties of citizens.
- The power to decide cases and resolve disputes: This includes cases involving the interpretation of laws, disputes between citizens or states, and controversies arising under the constitution, treaties, or federal laws.
- The power to protect the rights and liberties of citizens: The judiciary plays a crucial role in safeguarding the rights and freedoms guaranteed by the constitution, such as freedom of speech, religion, and due process.
- The power to determine jurisdiction: This involves deciding which courts have the authority to hear and decide specific types of cases, such as those involving ambassadors or public ministers.
In some countries, the constitution may also include provisions that protect the independence and impartiality of the judiciary, ensuring that judges can make decisions free from undue influence or interference from other branches of government.
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Frequently asked questions
A constitution is a set of rules that determine how a government can exercise public power. It identifies who or which institutions should exercise power and how they should do it.
Most constitutions seek to regulate the relationship between institutions of the state, such as the relationship between the executive, legislature, and judiciary. They also attempt to define the relationship between individuals and the state, and establish the broad rights of individual citizens.
A codified constitution is a constitution that is contained in a single document, which is the single source of constitutional law in a state.
An uncodified constitution is one that is not contained in a single document but consists of several different sources, which may be written or unwritten.
Yes, a constitution can be amended. However, some constitutions contain entrenched clauses that make certain amendments more difficult or impossible to pass. For example, overriding an entrenched clause in the US Constitution requires a supermajority, a referendum, or the consent of the minority party.
