Constitution and Constitutionalism

Constitution and

Constitutionalism
Political Science I
Third Trimester
Introduction
• Constitutions are the best thought of as a relatively
recent development.
• Although the evolution of the British constitution is
sometimes traced back to the Bill of Rights of 1689
and the Act of Settlement of 1701, or even to the
Magna Carta (1215), it is more helpful to think of
constitutions as late 18th century creation.
• The ‘age of constitution’ was initiated by the
enactment of the first ‘written’ constitutions: the US
Constitution 1787 and the French Declaration of the
Rights of Man and Citizen in 1789.
Definition and Elaboration
• The constitution of the state may be defined as a body of rules
and regulations, written as well as unwritten, whereby the
government is organised and it functions.
• In order to meet the requirement of a democratic order, a
constitution embodies some more principles specifying
relationship between the individual and their state in the form of
a specific charter of their fundamental rights and obligations.
• Thus a constitution ‘may be said to be a collection of principles
according to which the powers of the government, the rights of
the governed, and the relations between the two are adjusted’.
• It may be described as a frame of political society organized
through by law, in which law has established permanent
institutions with recognized functions and definite rights…’
• A constitution imposes restraints upon the government, and
this restraint is legally enforceable.
• It is through a constitution that powers of government get
legitimized.
• A constitution functions as a national symbol and is the
embodiment of national unity and glory. What else would
public servants be sworn to, to uphold and soldiers to defend?
• The emergence of a newly independent country is heralded by
a constitution. So it is like birth certificate to an individual.
• A must for federal government.
• A constitution reflect s the aspirations and ideals of a country.
• By all means, it is a legal document known by
different names like ‘rules of the state’,
‘instrument of government’, ‘fundamental law of
the land’, ‘basic statute of polity’, ‘cornerstone of
a nation-state’, and the like.
• The rules of a constitution may be in a written
form, whether in detail or in brief, or most of
them may be in the form of maxims, usages,
precedents and customs, it is essential that these
rulers as a whole determine the organisation and
working of the government of a state.
• It may be a deliberate creation on paper in the form of a single
document prepared by some assembly or convention, or it may
be in the form of a bundle of documents having authority of
the state the best example of which may be seen in the case of
the English constitution.
• According to K C Wheare, “ the word ‘constitution’ is commonly
used in at least two senses in an ordinary discussion of political
affairs.
• First of all, it is used to describe the whole system of the
government of a country, the collection of rules which establish
and regulate or govern the government.
• These rules are partly legal, in the sense, that the courts of law
will recognize and apply them, and partly non-legal or extra-
legal , taking the form of usages, understandings, customs, or
conventions which courts do not recognize as
law but which are not less effective in
regulating the government than the rules of
law strictly called.
• In most countries of the world the systems of
government is composed of this mixture of
legal and non-legal rules and it is possible to
speak of this collection of rules as the
constitution’.
Definition and Meaning
• Aristotle defined the term ‘constitution’
(politeia) in two senses. By constitution he
referred to a distinctive political order, namely,
the ‘mixed’ constitutions of the polity, as well
as to political regime in general. Thus defined,
even a tyranny has its constitution!
Definitions
• A constitution is the fundamental law of the state,
containing the principles upon which government is
founded, regulating the division of the sovereign powers,
and directing to what persons each of these powers is to
be confided and the manner in which it is to be exercised.
( Justice Cooley)
• A constitution is a body of juridical rules which determine
the supreme organs of the state, which prescribes their
mode of creation, their mutual relation, their sphere of
action, and, finally, the fundamental place of each of them
in their relation to state. (George Jellinek)
• A constitution is a frame of political society,
through and by law, that is to say, one in which
the sovereign power, or the members thereof,
exercise their authority. (James Bryce)
• The state is a human grouping in which rules a
certain power relationship between its individual
and associated constituents. This power
relationship is embodied in political institutions.
The system of fundamental institutions is the
constitution…a constitution is the autobiography
of a power relationship. (Herman Finer)
• The constitution of state is that body of rules
and laws, written or unwritten, which
determines the organisation of government,
the distribution of powers to the various
organs of government, and the general
principles on which these powers are to be
exercised. (R N Gilchrist)
Kinds
• Written and unwritten
• Flexible and rigid
• Evolved and enacted:
• Evolved constitution –the best example is the
English constitution already mentioned at
different parts of this presentation
• Enacted Constitution-the first example is the US
constitution and numerous other did follow
including India.
Written and Unwritten
• Written constitution has plus and minus. In written
constitution all the powers and duties have been
reduced to writing. A written constitution is rigid
(Difficult to amend),
• it well defines the powers and roles of the government;
• the scope and limit.
• it give stable government.
• Protects Rights and Liberty of people .
• On the other hand unwritten constitution is based on
customs and usages and traditions.
• Unwritten constitutions are flexible and easy to amend.
Codified and un-codified constitution-

• More than written or unwritten constitution codification

and non codification of the constitution matters.
• A codified constitution is one in which key constitutional
provisions are collected together within a single legal
document, popularly known as ‘written constitution’ or
‘the constitution’.
1. It is authoritative in the sense that it constitutes ‘higher
law’ ,indeed, the highest law of the land.
• The constitution binds all political institutions , including
those that enact ordinary law.
• The existence of a codified constitution , thus establishes a
hierarchy of laws.
• In unitary states, a two-tier legal system exists, in which
constitution stands above statute law made by the
national legislature.
• In federal states, there is a third tier in the form of
‘lower’ state or provincial laws.
2. the status of the codified document is ensured by the
fact that at least certain of its provisions are entrenched,
in the sense that is difficult to amend or abolish them.
• The procedure for establishing the constitution and for
subsequently revising it must therefore be in some way
more complex and difficult than the procedure for
enacting ordinary statute laws.
• Finally, the logic of codification dictates that, as
the constitution sets out the duties, powers and
functions of government institutions in terms of
‘higher’ law, it must be justiciable, meaning that
all political bodies must be subject to the
authority of the courts; and in particular a
supreme or constitutional court.
• This substantially enhances the importance of
judges, or at least senior judges, who becomes,
in effect the final arbiters of the constitution, and
thereby acquire the power of judicial review.
• Un-codified constitutions have different
characteristics.
• The British constitution is thought to be uncodified
constitution but it is partly written, draws on
variety of sources like statute law, which is made
by the Parliament, Common Law, conventions, and
various works of authority that clarify and explain
the constitution’s unwritten elements.
• The absence of a codified document implies most
importantly, that the legislature enjoys sovereign
or unchallengeable authority.
• It has the right to make or unmake any law
whatsoever, no body having the right to
override or set aside its laws .
• By virtue of its legislative supremacy, bodies
such as the British Parliament and the Knesset
in Israel are able to function as the ultimate
arbiters of the constitution: the constitution
means what they say it means.
Merits of Codified Constitution
• Major principles and key constitutional provisions are
entrenched;
• The power of the legislature is constrained, cutting its
sovereignty down to size;
• Nonpolitical judges are able to police the constitution to
ensure that its provisions are upheld by other public bodies;
• Individual liberty is more securely protected, and
authoritarianism is kept at bay;
• The codified document has an educational value, in that it
highlights the central values and overall goals of the political
system.
Demerits
• A codified constitution is more rigid, and may therefore
be less responsive and adaptable than an uncodified one;
• Government power may be more effectively constrained
by regular elections than by the constitutional document;
• With a codified constitution, constitutional supremacy
resides with nonelected judges rather than with publicly
accountable politicians;
• Constitutional provisions enshrined in custom and
convention may be more widely respected because they
have been endorsed by history and not ‘invented’.
• Constitutional documents are inevitably
biased, because they endorse one set of
values or principles in preference to others,
means that they may precipitate more
conflicts than they resolve.
Constitutionalism
• Constitutionalism, in a narrow sense, is the practice
of limited government ensured by the existence of
a constitution.
• Thus constitutionalism can in this sense, be said to
exist when government institutions and political
processes are effectively constrained by
constitutional rules. More broadly,
constitutionalism is a set of political values and
aspirations that reflect the desire to protect liberty
through the establishment of internal and external
checks on government power.
• In this sense, constitutionalism is a species of
political liberalism. It is typically expressed in
the form of support for constitutional
provisions that achieve this goal: for example
a codified constitution; a bill of rights a
separation of powers; bicameralism; and
federalism or decentralization.

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Constitution and

• More than written or unwritten constitution codification

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