Malcolm Rivera
A constitution is a set of rules for a society formed by a social contract before it establishes a government. Each constitution must be consistent with and derive its authority from the ones before it. Constitutional amendments are modifications of the constitution of a polity, organization, or other types of entities. Amendments are often interwoven into the relevant sections of an existing constitution, directly altering the text. In most modern states, the constitution has supremacy over ordinary statutory law. In principle, constitutional rights are not a specific characteristic of democratic countries, as even autocratic states have constitutions.
| Characteristics | Values |
|---|---|
| Constitutional supremacy | In most modern states, the constitution has supremacy over ordinary statutory law. |
| Constitutional rights | While not exclusive to democratic countries, constitutional rights are a feature of modern government. |
| Constitutional amendments | Modifications to the constitution are made through a special procedure that is more stringent than that required of ordinary legislation. |
| Constitutional consistency | Each constitution must be consistent with and derive its authority from the ones before it. |
| Constitutional ratification | The process of constitutional ratification is administered by the Archivist of the United States, who submits proposed amendments to the states for their consideration. |
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What You'll Learn
Constitutional amendments
A constitutional amendment is a modification of the constitution of a polity, organisation, or another type of entity. Amendments are often woven into the relevant sections of an existing constitution, directly altering the text. They can also be appended to the constitution as supplemental additions (codicils), thereby changing the frame of government without altering the existing text of the document. Most constitutions require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation. An entrenched clause or entrenchment clause of a basic law or constitution is a provision that makes certain amendments either more difficult or impossible to pass, making such amendments inadmissible.
In most modern states, the constitution has supremacy over ordinary statutory law. When an official act is unconstitutional, that is, it is not a power granted to the government by the constitution, that act is null and void, and the nullification is ab initio, that is, from inception, not from the date of the finding. It was never legally valid, even though, if it had been a statute or statutory provision, it might have been adopted according to the procedures for adopting legislation. Sometimes, a statute may be applied unconstitutionally, and a court may decide that while there are ways it could be applied that are constitutional, a particular instance was not allowed or legitimate. In such a case, only that application may be ruled unconstitutional.
In principle, constitutional rights are not a specific characteristic of democratic countries. Autocratic states have constitutions, such as that of North Korea, which officially grants every citizen, among other things, the freedom of expression. However, the extent to which governments abide by their own constitutional provisions varies. Developing a legal and political tradition of strict adherence to constitutional provisions is considered foundational to the rule of law.
In the United States, the Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two-thirds of the several States, shall call a Convention for proposing Amendments, which, in either case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three-fourths of the several States, or by Conventions in three-fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress.
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Entrenchment clauses
Circumstantial entrenchment clauses prevent constitutional reform during emergencies that threaten the political order, such as war, danger of war, internal conflicts, or natural catastrophes. They can also be used to avoid autocratic rule, sheltering democracy, the rule of law, and pluralism. For instance, the Turkish Constitution includes an entrenched clause declaring the principle of secularism unamendable.
To override an entrenched clause may require a supermajority, a referendum, or the consent of the minority party. The term "eternity clause" refers to an entrenched clause that can never be overridden. For example, the Constitution of Morocco includes eternity clauses that ensure certain provisions, such as the role of Islam and the King, cannot be amended. However, if a constitution provides for a mechanism for its own abolition or replacement, this creates a "back door" for getting rid of an eternity clause as well.
The inclusion of entrenchment clauses in a constitution is a highly debated topic. Some argue that they impact political power struggles and make constitutional courts veto players in constitutional politics, endangering essential principles of democratic constitutionalism. On the other hand, entrenchment clauses can protect core values and shield the arrangements of power, political systems, and state integrity.
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Adherence to constitutional provisions
In most modern states, the constitution takes precedence over ordinary statutory law. Any official act that is deemed unconstitutional is null and void from inception. Courts are expected to enforce the provisions of the Constitution as the supreme law and to refuse to enforce anything in conflict with it. This is known as judicial review, where courts review and veto any passed legislation that violates the spirit of the Constitution before it goes into effect.
Constitutional amendments are a formal process by which provisions can be modified or supplemented. In the United States, for example, the Congress can propose amendments with a two-thirds majority in both houses, or upon the application of two-thirds of state legislatures. Amendments become valid once ratified by three-fourths of state legislatures or conventions. This process ensures that changes to the Constitution are carefully considered and widely accepted.
The United States Constitution also includes provisions that shield certain clauses from amendment, demonstrating the importance of preserving specific constitutional guarantees. For instance, the Constitution prevented Congress from restricting the importation of slaves before 1808, after which Congress approved legislation prohibiting the practice.
In conclusion, adherence to constitutional provisions is critical for maintaining the integrity of a legal system and ensuring that governmental actions are consistent with the foundational principles established by the constitution. Non-compliance with constitutional provisions can render official acts null and void, highlighting the importance of strict adherence to the rule of law.
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Constitutional supremacy
The process of amending a constitution varies, but typically requires a more stringent procedure than that required for ordinary legislation. In the United States, for example, amendments to the Constitution must be proposed by two-thirds of both Houses of Congress, or by two-thirds of state legislatures applying to Congress for a convention for proposing amendments. Amendments must then be ratified by three-fourths of state legislatures, or by conventions in three-fourths of states.
When drafting a new constitution, provisions from prior constitutions may be included, especially if they are seen as important rights or principles that should continue to be upheld. However, the inclusion of prior provisions may depend on their consistency with the new constitution's overall framework and goals. In some cases, new constitutions may include entrenched clauses that protect certain provisions from being amended or changed, ensuring their permanence.
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Constitutional conventions
A constitution is a set of rules for a society formed by a social contract before it establishes a government. Each constitution must be consistent with and derive its authority from the ones before it.
For example, in the United States Constitution, the process for amending the Constitution is outlined in Article V. It states that amendments can be proposed by a two-thirds vote of both houses of Congress or by a convention called for by two-thirds of the state legislatures. The proposed amendments must then be ratified by three-fourths of the state legislatures or conventions. This process, while not explicitly stated in the original Constitution, has become a constitutional convention through repeated use and acceptance.
Another example of a constitutional convention in the United States is the system of checks and balances between the three branches of government: the executive, legislative, and judicial branches. While the Constitution establishes the powers of each branch, the specific mechanisms for how these branches interact and check each other's power have evolved over time through various practices and precedents, forming a set of unwritten constitutional conventions.
In conclusion, constitutional conventions are an essential part of a country's political system, providing flexibility and adaptability to the formal rules laid out in a written constitution. They allow for the evolution of governance practices and procedures over time, ensuring that a country's political system can adapt to changing circumstances while remaining consistent with the fundamental principles established by prior constitutions.
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Frequently asked questions
A constitution is a set of rules for a society formed by a social contract before it establishes a government. It establishes the constitution of the government.
A constitution includes the rules and procedures by which a society is governed. It establishes the powers of the government and the rights of the people.
Yes, a constitution can be modified through a process called a constitutional amendment. Amendments can be interwoven into existing sections of a constitution or appended as supplemental additions. Most constitutions require amendments to pass a special procedure that is more stringent than that of ordinary legislation.
In the United States, the process of amending the Constitution involves a proposal by Congress or by the legislatures of two-thirds of the states, followed by ratification by the legislatures of three-fourths of the states or by conventions in three-fourths of the states. This process is outlined in Article Five of the Constitution.
