Online Encyclopedia
Constitution
The Constitution of a given organisation 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:
- Governmental bodies (transnational, national or regional)
- Voluntary organisations
- Trade unions
- Political parties
- companies
An organisation 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 student union may be prohibited from engaging in activities not concerning students as students, if the student union becomes involved in nonstudent activities these activities are considered ultra vires of the student union's charter, or 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 which may not have authority over banking under the federal constitution, so 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.
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Governmental constitutions
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.
Codified 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 a 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 the people, not the monarch or a parliament, and is bound by an express set of human rights. The constitution is thus considered a statute superior to "ordinary" statutes, which it can overrule, 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 writings of Polybius, Locke, Montesquieu, and others, is often considered the oldest codified constitution, and in any case remains the oldest such document still in effect. Other codified constitutions followed in Europe shortly thereafter, including the May Constitution of the Polish-Lithuanian Commonwealth in 1791 and the French constitution of 1792 (although neither remains in effect).
Uncodified constitution
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 constitution are written down, which would obviously be very difficult to interpret. However it is sometimes used incorrectly when referring to an uncodified constitution, usually in the context of a constitution where, for example, the relationship between the different branches of government and relationship between the government and citizen (the governed) are unwritten or only partially written down and therefore unclear.
Again, to say a country has no constitution is a common mistake made by someone referring to a country that has an uncodified constitution, for the same reason. Every country with a government must have some form of constitution, because there must be conventions or documents which attempt to define to how the country is governed.
Constitutional courts
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.
Such legal bodies are normally the court of last resort, the highest such body without further recourse, where this process of judicial review are integrated into the system of courts of appeals. This is the case, for example, with the Supreme Court of the United States. 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.
See also
- List of national constitutions
- European Union (proposed) constitution
- Classical definition of republic
External links
- Dictionary of the History of Ideas: Constitutionalism
Some national constitutions
- Constitution Society - National Constitutions
- Constitution of India
- Constitution of Iran
- Constitution of Italy - In Italian
- Constitution of Portugal (in Portuguese)
- Constitution of Latvia - In Latvian
- Constitution of Lithuania
- Constitution of Sweden
- Constitution of Finland [PDF]
- U.S. Constitution - Annotated version
- Constitution of Mexico (in Spanish) [PDF]
- Constitution of the People's Republic of China
For the entry on the naval ship U.S.S. Constitution, see: USS Constitution