Defintion and Meaning of Constitutions
Defining Meaning of Constitution
- "A Constitution is not the act of a Government, but of a people constituting a Government, and a Government without a Constitution is power without right...A Constitution is a thing antecedent to Government; and a Government is only the creature of a Constitution". - Note the emphasis on legitimacy which is a key factor in the durability of Constitutions and the Governments regulated by them.
Defining Meaning of Constitution
- A narrow definition of Constitution would be that it is a single document which contains the core rules that govern a Government such as the American Constitution of 1786. - So the concept of "Constitution" covers a variety of ideas.
Unwritten Constitutions: The UK
- A state with an "unwritten" Constitution is one which does not have a single key document setting out the country's main political and legal institutions. - The UK is commonly said to have an "unwritten" Constitution. - Note that such a classification is not entirely accurate or precise. - Not all the rules of a state with a written constitution are, in fact, written down. - And many rules within a State with an "unwritten" constitution are, in fact, written down. - As regards the UK, we might say that it is "unwritten" because there is no single document which sets out the key rules of the state. - The fundamental elements of the UK Constitution are 'scattered' and found in a variety of sources such as UK statutes, case law and informal political practices and understandings between politicians and officials known as conventions.
Classifying Constitutions - Written Constitution
- A written Constitution is a Constitution which is contained within a single document or series of documents, with or without amendments and defining the basic rules of the State. - In most countries, the Constitution is found in a special document distinct from and superior to the ordinary Law of that country. - It has a status superior to the rest of the Law which can only be altered by special procedure. - The need for a special procedure to alter elements of the Constitution demonstrate the special status and place awarded to it within a society.
Defining the Meaning of Constitution
- CR Munro referred to "Constitution" as meaning "the whole system of Government of a country, the collection of rules which establish and regulate or govern the Government". - Important to note is that Constitutional Law is generally about the Law which regulates the structure of the key organs of Government and their relationship to each other and to the Citizen. - Constitutional Law therefore also deals with the relationship between the State and the Individual. - The Concept of Constitution covers a wide variety of ideas. It can mean a single document or all documents, statutes, precedents, rules, customs and practices required or used in the governing of a country. It can also mean rules governing Government. It provides a framework for regulating the relationship between the individual and the State.
Rigid and Flexible Constitutions
- Classification into this category of rigid or flexible Constitutions, depends on whether a constitution is one which can be easily amended or not. - A rigid Constitution is one that is difficult to change. - A flexible Constitution is one that can be changed easily - Question: why would you wish to have a "rigid" Constitution? - Question: how could you make a Constitution difficult to change?
Constitutional Monarchies and Republics
- Constitutional Monarchies are ones in which the Monarch is head of state but acts within, and complies with, the guidelines of the Constitution of a country whether the constitution is written or unwritten. - Absolute Monarchies are where the monarch is the source of power in the State and is not legally bound by any Constitution and has powers to regulate the Government.
Importance of Constitutions
- Constitutions are therefore of fundamental importance to the well being and order of a country. - They establish and regulate the relationship between States and their Citizens. - Accordingly, they affect the daily lives of all Citizens and represent the values and aspirations of societie.
Importance of Constitutions
- Constitutions form the framework for Society. - Situation of societies without a Constitution? Chaos? - Whilst Constitutional developments generally happen slowly (except revolutions!) there have been a number of important changes relatively recently. Scottish Devolution (ongoing). Reform of the House of Lords. Creation of the Supreme Court. Increasing effect of Human Rights in Scotland. Departure from EU.
Constitutions: Separated or Fused Powers
- Countries vary in the application of the Doctrine of Separation of Powers. - Some countries may adopt a Constitution which clearly separates the powers and personnel of each branch of Government. Others may have a less rigidly defined separation between the executive, legislature and judiciary.
The UK Constitution - Flexibility
- Following the Doctrine of Parliamentary Sovereignty, no Parliament may lay down irreversible rules. - In other words Parliament cannot bind its successors and no law can be 'entrenched'. - However, consider, for example, what would be the political consequences of repeal of the Scotland Act 1998... - If the UK is to have a written constitution it will have to come about by other means such as approval by referendum.
Classifying Constitutions
- France has had numerous Constitutions. - In recent history the French Constitution of 1946 established the 4th Republic after the Second World War. - The current Constitution dates from 1958 and the established the 5th Republic. - Note again that the values are also stated in the Preamble and Article 1 of the Constitution.
The UK - A Unitary State
- However with the dispersal of power away from the UK Parliament, some observers have argued that we are moving towards a federal state with the establishment of the Scottish Parliament. - Such an argument may be further strengthened as, following Smith Commission, now have the Scotland Act 2016 with additional powers to the Scottish Parliament. - Today more accurate to describe the UK Constitution as 'multi-layered' rather than unitary in recognition of devolution in Scotland, Wales and Nth Ireland. - But devolution is asymmetrical .
Key Concerns of Constitution
- The choosing and removing of Rulers. - The relationship between the different branches of Government. - The dividing up of powers geographically. - The relationship between the State and external bodies. - The accountability of Government. - The rights of the Citizen in relation to Government.
Federal and Unitary Constitutions
- In many States (the US, Canada and Australia etc) there exists a division of powers between central government and the individual states or provinces which make up the federation. - The division of powers will be clearly set down in the Constitutional Document. - Common to all federations is the idea that the written constitution is higher law applying to the Government and legislatures. - Their respective powers are not only defined by the Constitution but are also controlled by the Constitution, which will be interpreted, upheld and enforced by the Supreme Court..
Constitutional Monarchies and Republics
- In the UK, in fact and practice the Queen generally only holds residual powers. - She is limited by the Constitution. - However, these include the invitation to a leader of a political party to become Prime Minister in certain circumstances and the dissolution (break-up) of Parliament.. The Monarch is unelected and unaccountable to the electorate in a democratic sense.
Constitution Summary
- It can mean a single document or all documents, statutes, precedents, rules, customs and practices required or used in the governing of a country. - It can mean rules governing Government. - It also covers a sense of legitimacy. - It provides a framework for regulating the relationship between the individual and the State.
Scotland and the UK Constitution
- It must not be forgotten, however, that whilst there is one UK Constitution, there is not only one UK Legal System. -Scotland, of course, has its own legal system and law. - The position of Scotland constitutionally has relatively recently changed. - Up to Devolution it was the Westminster Parliament that legislated for all jurisdictions in the United Kingdom (note however the EU). -As a result of the Scotland Act 1998, the Scottish Parliament legislates in certain areas.
Federal and Unitary Constitutions
- Note again a key feature of the UK Constitution which marks it out from many other countries is the Doctrine of Parliamentary Sovereignty where Parliament is the highest source of law in the UK. - We do not have exactly a "constitutional court" although with membership of the EU and the Human Rights Act 1998, the UK Supreme Court does make rulings on Acts of Parliament with the power to disapply UK legislation incompatible with EU law but only the right to declare UK Acts 'incompatible' with ECHR law (the Act remains valid and in force).
Classifying Constitutions - Written Constitutions
- Note that the vast majority of countries in the world all have written constitutions (Exceptions UK, NZ, Israel). - Often such Constitutions begin with a preamble setting out the purposes and values underlying the document and sometimes the circumstances under which the Constitution was adopted. -iIt therefore represents a statement of the values which that country upholds and aspires to embed in its institutions and society. - UK Constitution is made up of the rule of law; parliamentary supremacy; separation of powers.
Scotland and the UK Constitution
- Note, that the constitution is a reserved matter - reserved to the Westminster Parliament under Schedule 5 of the Scotland Act 1998. - The argument that the UK is moving in the direction of a federal state as opposed to unitary stems from the idea that while 'legal sovereignty' resides with the UK Parliament, 'political sovereignty' resides with the voters. - Consider the consequences of any proposed abolition of the Scottish Parliament........ - Legal sovereignty versus Political Sovereignty.
Classifying Constitutions - Written Constitutions
- Other examples would be Germany after the Second World War and the drafting of Germany's Constitution in 1949, referred to as the "Basic Law". - Another defining moment for Germany was reunification with the former East Germany which resulted in Germany's Constitution (Basic Law) being updated. - The "Basic Law for the Federal Republic of Germany" sets out the fundamental structure and functioning of the German State as well as the values of the State.
The UK - A Unitary State
- Power is given to the Scottish Parliament to fulfil certain functions by the Scotland Act 199. - However that power is given to it by the Westminster Parliament - not an over-arching Constitution. - The Scotland Act 1998 governs the Scottish Parliament. - In law, in accordance with the doctrine of UK Parliamentary Sovereignty, the Scotland Act 1998 can be revoked.
Scotland and the UK Constitution
- Scotland is a constituent part of the United Kingdom. - The United Kingdom comprises England, Wales and Scotland (which comprise Great Britain) and Northern Ireland. - The Channel Islands and the Isle of Mann are not part of the United Kingdom. It is correct to speak of "the United Kingdom Constitution" . - Not the Scottish Constitution although the Scotland Act 1998 represents in many ways a Constitution for Scotland.
Federal and Unitary Constitutions
- The Constitutional difference between the UK and Canada can boil down to the power of the Parliaments. Canada's is limited as against Alberta's, but the UK's is not as against Scotland's. - Scottish Parliament is not a Sovereign Parliament in the way that the UK Parliament is. - But note - effect of EU Law and impact on the UK.
Defining the Meaning of Constitution
- The UK Constitution is concerned with the organisation, powers and responsibilities of Government. - Or alternatively, the British Constitution is the collection of legal rules and non-legal rules which establish and regulate or govern the Government in Britain. - Constitutional Law "governs the system of public administration of the United Kingdom, and relationships between the individual and the State".
The UK Constitution - Flexibility
- The United Kingdom Constitution in comparison with other Constitutions represents the height of flexibility. - Under the Doctrine of Parliamentary Sovereignty, Parliament is the supreme law making body and can pass an Act on any subject whatsoever. - Including the Constitution, eg the Scotland Act 1998. - Traditionally constitutional theory holds that no Acts of Parliament, whether of constitutional significance, are deemed as 'special' requiring special procedure to repeal - All Statutes can be repealed in the ordinary way
The UK - A Unitary State
- The United Kingdom Constitution is traditionally described as being a 'unitary' one. - There is no defining, written Constitution which controls the powers of Government or of the Legislature. - There exists a Sovereign Legislative Body which represents the ultimate law making power in the State (ie the UK Parliament). - All legal authority flows down from the UK Parliament to other persons, bodies and institutions (Scottish Parliament; local councils etc).
Spanish Constitution and Preamble
- The current Constitution of Spain dates from 1978 following Parliamentary approval and approval by referendum of the Spanish people on 6 December 1978. - The origins of the current Constitution lie with the death of Francisco Franco in 1975 and the need to start afresh with the establishment of a new democracy for Spain.
Constitutions: Separated or Fused Powers
- The essence of the Doctrine of the Separation of powers is that the main branches and powers of the state (legislative, executive and judicial) should be separate. - Power should not be concentrated in the hands of any one branch. - One object of the separation of powers is to provide checks on the exercise of power by each branch and to prevent potential for tyranny which otherwise might exist.
Classifying Constitutions - Written Constitution
- The feature which characterises most states with a written Constitution is that there has been a clear historical break with a previously pertaining Constitutional arrangement. - Often the historical break has come about because of war or revolution representing a defining moment in the history of a people. - Nelson Mandela in South Africa. - For example the American War of Independence and independence being granted to Canada. - The defining historical moment is a catalyst for change and a moment for a people to think again about their country's values and its direction.
Classifying Constitutions - Written Constitution
- The origins and examples of written constitutions lie with the American War of Independence and the French Revolution. - More recent written Constitutions can derive from the grant or devolution of legislative power from previously imperial powers to former colonies and dominions. - For example, Canada. In 1982 Canada "repatriated" its Constitution with the Constitution Act 1982 and the UK Canada Act 1982.
Constitutions: Separated or Fused Powers
- There is found a degree of Separation of Powers in the written US constitution, see Articles 1-3 - In the United Kingdom the Separation of Powers is not so clear cut. - There is undeniably a distinct legislative body, executive and judiciary each exercising different functions - however there are many exceptions to it.
Defining the Meaning of Constitution
- Various definitions have been put forward to describe the meaning of "Constitution". - Any organisation can have a Constitution. - A Constitution lays down the fundamental principles that create the structure and purpose of an organisation. Arguably two key aims of a Constitution are: (1) to ensure that the Organisation is run efficiently; and (2) to prevent those in charge from abusing their powers.
Rigid and Flexible Constitutions
- Writers of Written Constitutions often seek to protect the Constitution from appeal or amendment. - When measures are put in place to prevent a Constitution from being too easily changed, we can say that it is "entrenched". - In other words difficult to amend.
UK Constitution : Summary
According to all these criteria, the UK Constitution can be described as: - Largely unwritten. - Uncodified. - Flexible in nature. - Unitary in structure (but note devolution). - Exhibiting, generally, a separation of powers. - Monarchical. - Independence of the judiciary strictly observed.
French Constitution
Article 1. - France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs. It shall be organised on a decentralised basis. Statutes shall promote equal access by women and men to elective offices and posts as well as to position of professional and social responsibility.
Constitutional Monarchies and Republics
Constitutional Monarchies - A Monarchy is a Government where supreme power is vested in one person, through a familial system of the transfer of that power. The United Kingdom is a Constitutional Monarchy. - The UK Head of State is Queen Elizabeth II. - Note that reference is made to a Constitutional Monarchy rather than Absolute Monarchy.
Classifying Constitutions
Constitutions can be classed or categorised according the essential features which they have. For example, they may be classified as: - Written or Unwritten. - Rigid or Flexible. - Federal or Unitary. - With separated powers or fused powers. - Republican or Monarchical.
American Constitution
Opening lines of the American Constitution: - We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Preamble of the German Constitution
Preamble of German Basic Law, 1949 (amended by Unification Treaty and Law of 1990: - Conscious of their responsibility before God and man, Inspired by the determination to promote world peace as an equal partner in a united Europe, the German people, in the exercise of their constituent power, have adopted this Basic Law. Germans in the Länder of Baden-Württemberg, Bavaria, Berlin, Brandenburg, Bremen, Hamburg, Hesse, Lower Saxony, Mecklenburg-Western Pomerania, North Rhine-Westphalia,Rhineland-Palatinate, Saarland, Saxony, Saxony-Anhalt, Schleswig-Holstein and Thuringia have achieved the unity and freedom of Germany in free self-determination. This Basic Law thus applies to the entire German people.
Preamble to French Constitution of 1958
Preamble to the French Constitution of 1958 - The French people solemnly proclaim their attachment to the Rights of Man and the principles of national sovereignty as defined by the Declaration of 1789, confirmed and complemented by the Preamble to the Constitution of 1946, and to the rights and duties as defined in the Charter for the Environment of 2004. By virtue of these principles and that of the self-determination of peoples, the Republic offers to the overseas territories which have expressed the will to adhere to them new institutions founded on the common ideal of liberty, equality and fraternity and conceived for the purpose of their democratic development.
Classifying Constitutions: Spain
Preamble to the Spanish Constitution: - The Spanish Nation, desiring to establish justice, liberty and security, and to promote the well-being of all its members, in the exercise of its sovereignty, proclaims its will to: Guarantee democratic co-existence under the Constitution and the law, in accordance with a fair social and economic order; Consolidate a State of Law which ensures the rule of law as an expression of the popular will; Protect all Spaniards and peoples of Spain in the exercise of human rights, of their cultures and traditions, and of their languages and institutions; Promote the progress of culture and of the economy in order to ensure a dignified quality of life for all; Establish an advanced democratic society; and Cooperate in the strengthening of peaceful relations and effective cooperation amongst all the peoples of the world. Therefore, the Cortes pass and the Spanish people ratify the following CONSTITUTION
Constitutional Monarchies and Republics
Republics - A Republic is a State which has as its head a (usually) democratically elected President answerable to the electorate and the Constitution. - Presidential office is both a symbol of statehood and the repository of many powers. - The most famous and long-standing republics are France and the United States.
United States Constitution
The US Constitution is relatively 'rigid'. - Constitutional amendments may be proposed either by a two-thirds majority of both Houses of Congress or, following a request by the legislatures of two-thirds of the States, by convention summoned by Congress. - To be accepted the proposed amendments must then by approved by the legislatures of three-quarters of the states or by conventions in three-quarters of the states.
