- For the entry on the naval ship U.S.S. Constitution, see: USS Constitution.
An organization's constitution defines its form, structure, activities, character, and fundamental rules. To view particular constitutions, refer to the list of national constitutions.
The term comes from Latin constitutio, which referred to any important law, usually issued by the emperor, and was widely used in canon law to indicate certain relevant decisions, mainly of the pope.
Particular kinds of organisations that often use the concept of Constitution include:
An organization may be given specific powers on the condition that it abides by this constitution or charter limitation. The Latin term ultra vires describes activities that fall outside an organisation's or parliamentary body's constitutional activities. For example, a students' union may be prohibited from engaging in activities not concerning students as students; if the union becomes involved in nonstudent activities these activities are considered ultra vires of the union's charter. A second example is a bank that tries to act as a real estate agent. An example from the constitutional law of nation-states would be a provincial government in a federal state that may not have authority over banking under the federal constitution. Any laws the provincial parliaments pass regarding banking will be considered void or ultra vires of that parliament's constitutional authority.
Countries that adopt constitutions usually do so by a process of ratification.The process by which a country adopts a constitution is closely tied to the historical and political context driving this fundamental change. When one compares the elaborate convention method adopted in the United States with the MacArthur inspired post war constitution foisted on Japan, this becomes evident. Arguably the legitimacy (and often the longevity) of constitutions are tied to the process by which they are initially adopted.
History and predecessors
Historically, the idea of a written document of government that would bind even the monarch originated with King Henry I of England's proclamation of the Charter of Liberties in 1100, which bound the King for the first time in his treatment of the clergy and the nobility. This idea was extended and refined by the English barony when they forced John I of England to sign the Magna Carta in 1215. The most important single article of the Magna Carta, related to "habeas corpus", provided that the king was not permitted to imprison, outlaw, exile or kill anyone at a whim -- there must be due process of law first. The "Due Process" clause of the U.S. Fifth Amendment is directly descended from Article 39 of Magna Carta, which read:
- No free man shall be arrested, or imprisoned, or deprived of his property, or outlawed, or exiled, or in any way destroyed, nor shall we go against him or send against him, unless by legal judgement of his peers, or by the law of the land.
This provision (or conflict about it) formed the core of the English Monarchy after that point. Though the social contract in this case was between the king and the nobility, it was gradually extended to all of the people, and led to the development of the Constitutional Monarchy. The United States, as they broke away from this monarchy in 1787, codified their own constitution, rejecting the monarchy and the hereditary nobility, but keeping, in large part, the parliamentary system developed in England. England's constitutional law meanwhile developed gradually by constant modification of the original Magna Carta, with the balance of power always shifting away from the monarchy and the nobility, toward the people, and eventually reaching a very similar form.
Most commonly, the term constitution is used to refer to the set of rules that govern political bodies. These rules may or may not be summarized in a single document. A constitution contained in a single document is called a codified constitution. A constitution not contained in a single document, that has several sources is called an uncodified constitution.
Possibly the most common usage of 'constitution' is to describe a single, written, fundamental law that defines how a nation or a subdivision is governed, legislation is passed, power and authority are distributed, and how they are limited. It is thus the most basic law of an area from which all the other laws and rules are hierarchically derived; in some areas it is in fact called "Basic Law".
Having a codified constitution gives the advantage of a coherent and easily understood body of rules. In democratic systems, the constitution is considered a fundamental social contract among citizens (following Rousseau's writings), where government receives its powers from rule, and is usually protected against constitutional amendments and by special courts (see below). The United States Constitution of 1787 (ratified 1789), heavily influenced by the (by then considerably modified) Magna Carta, plus the writings of Polybius, Locke, Montesquieu, and others, is often considered the oldest codified constitution in the modern sense, and in any case remains the oldest such document still in effect. Other similar codified constitutions followed in Europe shortly thereafter, including the May Constitution of the Polish-Lithuanian Commonwealth in 1791 and the French Constitution of 1791 (although neither remained in effect for more than a year).
By contrast, in the Westminster tradition which originated in England, the uncodified constitution contains both written sources but also unwritten constitutional conventions, precedents, royal prerogatives and custom collectively constituted the British constitutional law. In the days of the British Empire the Judicial Committee of the Privy Council acted as the constitutional court for many of the British colonies such as Canada and Australia which had federal constitutions.
In these systems, the difference between a constitution and a statute is somewhat arbitrary, usually depending on the traditional devotion of popular opinion to historical principles embodied in important past legislation. For example, several Acts of Parliament such as the Bill of Rights, Human Rights Act and, prior to the creation of Parliament, the Magna Carta are regarded as granting fundamental rights and principles which are treated as almost constitutional. However, these are in law no different to any other Act of Parliament and can be changed just as easily.
Semantics of the word constitution: unwritten constitution, no constitution?
Strictly, the term unwritten constitution refers to a constitution where none of the sources of the constitution are written down. Such a constitution would obviously be very difficult to interpret. However, the term is sometimes used incorrectly when referring to an uncodified constitution. For example, the relationship between the different branches of government and the relationship between the government and citizen (the governed) may be unwritten or only partially written down and therefore unclear.
To say a country has no constitution is a common mistake sometimes made when referring to a country that has an uncodified constitution. Every country with a government must have some form of constitution; there must be conventions or documents that attempt to define how the country is governed.
The constitution, of whatever form, is often protected by a certain legal body in each country with various names, such as supreme, constitutional or high court. This court judges the validity of legislation, its interpretation, and the manner in which such legislation is implemented by the executive branch of the state.
A constitutional court is normally the court of last resort, the highest such body without further recourse. The process of judicial review is then integrated into the system of courts of appeal. This is the case, for example, with the Supreme Court of the United States. Cases must normally be heard in lower courts before being brought before the Supreme Court, except cases for which the Supreme Court has original jurisdiction. Other countries dedicate a special court solely to the protection of the constitution, as with the German Constitutional Court.
Finally, some countries have no such courts at all – for example, as the United Kingdom traditionally functions under the principle of parliamentary supremacy: the legislature has the power to enact any law it wishes. However, through its membership in the European Union, the UK is now subject to the jurisdiction of European Community law and the European Court of Justice; similarly, by acceding to the Council of Europe's European Convention on Human Rights, it is subject to the European Court of Human Rights. In effect, these bodies are constitutional courts that can invalidate or interpret British legislation.
Some national constitutions
Last updated: 10-24-2005 02:08:08