Simone Lawson
The process of adopting a constitution is a critical aspect of any political system, and there are various ways to go about it. The effectiveness and viability of a constitution may be influenced by the method of its adoption, as suggested by Ukrainian politicians and constitutional experts. The discussion revolves around the importance of public trust, inclusiveness, legitimacy, and the potential impact on how the constitution is perceived by political elites and ordinary citizens. The adoption process can vary, from referendums that have gained popularity worldwide since the 1950s to parliamentary adoption, as seen in Ukraine in 1996. The United States Constitution, with its amendments, provides another example, where state legislatures play a crucial role in proposing and ratifying amendments, and the Archivist of the United States administers the ratification process. The way a constitution is adopted is a topic that warrants careful consideration to ensure its effectiveness and acceptance.
| Characteristics | Values |
|---|---|
| Legitimacy | The process and the constitution itself should be legitimate. |
| Inclusiveness | The process should be inclusive, allowing for public trust and understanding. |
| Independence | The three branches of power must be independent with a system of checks and balances in place. |
| Ratification | The process of ratification can vary, but generally requires a majority of states to approve the proposed constitution. |
| Amendments | The constitution should allow for amendments to be made through a specified process. |
| Judicial Review | The constitution should outline the role of the courts in interpreting and upholding the constitution. |
Explore related products
What You'll Learn
Ratification by a representative body
This process involves a representative body, such as a legislature, voting on a proposed constitution. In the case of the US, state legislatures voted on the ratification of the Articles, with Delaware, Pennsylvania, and New Jersey voting unanimously in favour. This method can also be seen in the process of amending the US Constitution, where amendments proposed by Congress are sent to the Archivist of the United States, who administers the ratification process. The Archivist then forwards the amendment to the states, where ratification by three-fourths of the states (38 out of 50) is required for the amendment to become part of the Constitution.
The advantage of this approach is that it allows for a more deliberate and considered process, as representatives can discuss, debate, and amend the proposed constitution before ratification. It can also help ensure that the constitution is legitimate and inclusive, as highlighted by former Ukrainian Prime Minister Volodymyr Groysman and chief advisor at the International Center for Policy Studies, Vasyl Filipchuk. They argue that the process should be inclusive and that the constitution should undergo a "process of digestion" where people can understand, discuss, and provide input on the proposed constitution.
However, as pointed out by CCD Board Member Oleksandr Komarov, the legitimacy of the constitution-making process and the representative body involved is crucial. If the representative body does not enjoy the trust of the people, the constitution may not be accepted or respected by the public. Therefore, while ratification by a representative body can be an effective method of adopting a constitution, it must be coupled with a process that ensures inclusivity, transparency, and trust to be truly successful.
Monarchs' Post-Constitution: Power, Influence, and New Roles
You may want to see also
Referendums
There are different types of referendums, and they can be classified based on whether they are obligatory or optional. Obligatory referendums are mandated by law and are required for specific types of decisions, such as constitutional amendments or international treaty ratifications. For example, in Australia, Ireland, and 49 out of 50 US states, constitutional changes must be approved by a mandatory referendum. On the other hand, optional referendums are triggered when a specified number of voters petition for a popular vote on a law or amendment, allowing citizens to overrule legislative action.
The use of referendums varies across countries. While they are most widespread in the United States and Switzerland, they are also incorporated into the constitutions of several European and Commonwealth countries. For example, the post-World War II constitutions of France and Italy made popular referendums obligatory for constitutional amendments. In Australia, a referendum specifically refers to a vote to change the federal constitution, while a "plebiscite" is a vote that does not affect the federal constitution.
Which Countries Operate Without a Constitution?
You may want to see also
Checks and balances
The importance of checks and balances is often cited in debates about the health of democracy, and their erosion is widely considered a sign of democratic backsliding. However, there can be drawbacks associated with checks and balances when they are particularly strong. Because they make unilateral action more difficult and allow a greater range of actors to participate in governing, strong checks and balances can increase the risk of gridlock. They can also make it easier for vested interests to protect themselves at others’ expense, by creating multiple opportunities to exercise a veto over proposed changes.
In the United States, the Founding Fathers adopted a tripartite system of checks and balances at the Constitutional Convention, dividing the powers and responsibilities of the federal government among three branches: the legislative branch, the executive branch, and the judicial branch. This built upon the ideas of Polybius, Montesquieu, William Blackstone, John Locke, and other philosophers and political scientists over the centuries. Montesquieu, in particular, argued for a separation of powers, in which different bodies of government exercised legislative, executive, and judicial power, with all these bodies subject to the rule of law.
Examples of checks and balances in the US system include the presidential veto of legislation (which Congress may override by a two-thirds vote) and executive and judicial impeachment by Congress. Congress can also effectively check the decisions of the Supreme Court by passing amendments to the Constitution. In one-party political systems, informal, and perhaps even illegal, checks and balances may operate when organs of an authoritarian or totalitarian regime compete for power.
Citing the Constitution: Works Cited Page
You may want to see also
Explore related products
Independence of branches
The independence of branches is a key principle in the constitution-making process, and it is often referred to as the separation of powers. The separation of powers ensures that governmental powers are divided among structurally independent branches, typically the legislature, judiciary, and administration or executive.
The United States Constitution is a prime example of this principle, dividing the federal government into three distinct branches: legislative, executive, and judicial. This separation of powers ensures that no individual or group has too much power. The legislative branch, or Congress, is responsible for making laws; the executive branch, led by the President, carries out the laws; and the judicial branch, including the Supreme Court and other federal courts, interprets the laws and evaluates their constitutionality.
The system of checks and balances is an important mechanism to maintain the independence of branches and prevent any one branch from aggrandizing its power. Each branch of government can check the actions of the others and change their acts. For example, the President can veto legislation created by Congress, while Congress can override the President's veto with a two-thirds majority vote and can also remove the President from office in exceptional circumstances.
The judiciary is often seen as the most important of the three powers, as it is independent and unchecked. Judicial review gives the courts the power to examine federal legislation, the federal executive, and state branches of government, and to strike them down if found unconstitutional.
The separation of powers and checks and balances are designed to protect individual liberty and prevent arbitrary and oppressive government action. This ensures that each branch of government has its own sphere of influence and can defend its legitimate powers from encroachments by other branches.
Mississippi Constitution: Basic Principles and Values
You may want to see also
Legitimacy and inclusivity
Legitimacy refers to the perception that the constitution-making process and the resulting document are valid and just. It entails ensuring that the process is transparent and accountable, with the participation of diverse stakeholders, including legal experts, political leaders, and civil society representatives. By engaging a broad spectrum of society, the constitution-making process gains credibility and reduces the risk of it being perceived as a mere power grab by a select few.
Inclusivity, on the other hand, ensures that the constitution reflects the diverse interests and aspirations of the people. It involves creating opportunities for public participation and engagement, such as consultations, town hall meetings, and referendums. By encouraging dialogue and debate, the constitution-making process can incorporate a wide range of perspectives, ensuring that the final document is not just the product of elite bargaining but truly represents the social contract between the state and its citizens.
To foster inclusivity, it is essential to utilise multiple channels of communication and engagement. This includes leveraging digital platforms, social media, and traditional media outlets to reach a diverse audience. By providing accessible information and education on the constitution-making process, individuals from all walks of life can participate meaningfully, regardless of their socioeconomic status, geographic location, or level of education.
Additionally, inclusivity requires addressing power imbalances and ensuring that marginalised communities are actively involved in the process. This may involve targeted outreach efforts, such as translating materials into multiple languages, conducting focus groups with underrepresented groups, and providing avenues for anonymous feedback to encourage honest expression without fear of repercussions.
The 1960 Constitution: A Foundation of Independence
You may want to see also
Frequently asked questions
There are several ways to adopt a constitution, and the best method depends on context. One way is for a committee to draft a constitution, which is then ratified by state legislatures. Another way is for a constitutional convention to be called by two-thirds of state legislatures, which propose an amendment. A third way is for a constitution to be approved through a referendum.
Legitimacy and inclusiveness. The process should be inclusive, and the constitution should be adopted by a group that enjoys the public's trust.
An amendment can be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate. The Archivist of the United States then administers the ratification process, which is carried out by the Director of the Federal Register. Once three-fourths of the states have ratified the amendment, it becomes part of the Constitution.
