?? Constitution ??

The fundamental principles that determine the form of a state are called its constitution. These include the method by which the state is organized, the distribution of its sovereign powers among the various organs of government, the scope and manner of exercise of governmental functions, and the government’s relation to the people over whom its authority is exercised.

Nature of a Constitution:

The constitution does not create the state but is the outward formulation of state existence. Therefore, every state has a constitution, in the sense that certain principles underlie its existence and its governmental system. If this were not true, anarchy would result instead of a political organization. Sometimes the state’s constitution is definitely formulated in a single document or a series of documents. Sometimes, it is found in an established body of rules, maxims, and traditions following which its government is organized and its powers are exercised.

Constitutional government is distinguished from a personal government. It is based not on the caprice and whim of those who possess political power but on rules so clearly defined and so generally accepted that they effectively control the actions of public officials. It is a government of laws and not of men. A constitution, therefore, may be defined as a collection of norms.

The legal relations between the government and its subjects are determined and following which the state’s power is exercised, or the body of rules and maxims following which the powers of sovereignty are habitually manifested.

Kinds Of Constitution:

Constitutions have been classified based on several distinctions:

1. Written and unwritten.

A written constitution is one in which most of the fundamental principles of governmental organization are contained in a formal written instrument or instruments deliberately created. It is usually considered special sanctity, different in character from other laws, proceeding from a higher source, and alterable by a different and more difficult procedure. An unwritten constitution is one in which most of the governmental organization’s fundamental principles have not been reduced to definite written form or embodied in basic documents. It consists rather of a mass of customs, usages, judicial decisions, and statutes enacted at different times. It was not created by a constitution-making body but resulted from the state’s gradual historical growth.

The distinction between written and unwritten constitution:

Is one of degree rather than of kind. All written constitutions that are m in existence for a considerable period accumulate a large unwritten element. They are modified by custom and usage and by judicial interpretation. Political practices grow up that are not incorporated into the written document so that its text does not correspond accurately with the existing form of political organization and powers.

In the United States, for example, the organization and powers of political parties, the method of nominating and electing the president, Congress’s procedure, and the powers of the federal judiciary rest upon political usage, not upon the written constitution. A reading of the United States constitution would give a very inadequate and inaccurate description of the American republic’s actual constitution as it works in practice.

On the other hand, though not formulated in a single don went, the constitution of Great Britain contains a considerable written element, scattered in many documents of different periods. Magna Charta, the Bill of Rights. Parliament’s important acts concerning the Crown and the House of Lords’ powers, and those that fix the qualifications for voting and the system of representation in the House of Commons form an important mitten element in the British constitution.

2. Flexible and rigid:

The distinction between a flexible constitution and a rigid one rests upon how the constitution may be changed and the relation, therefore, which it bears to ordinary laws. If the ordinary lawmaking body and procedure may easily amend a constitution, it may be classed as flexible. In this case, constitutional law emanates from the same legal authority as ordinary law and has no superior validity.

If a constitution requires a special organ or a more difficult procedure or amendment than required or the creation of ordinary law, it may be classed as rigid. Thus, its lines are hated and emanate from a source different from that of ordinary laws that must keep within the bounds fixed by the constitution.

For the successful working of a rigid constitution, some organ of government must have the power to decide whether or not laws made by the ordinary government keep within constitutional limits. A law which the constitution forbids or a law made by a body that has not been given authority by the constitution to act in that held would be an unconstitutional law, hence not a law at all. The constitution of Great Britain is an example of a flexible constitution that the United States is rigid.

3. Historical and theoretical:

A historical constitution grows through evolutionary experience or that incorporates long-established forms and practices of government. A theoretical constitution is founded on speculative assumptions or abstract ideals. After the Revolution and the utopian schemes proposed by Plato, More, Bacon, and Harrington, the constitution created in France are examples of the latter type.

Requisites of a Constitution.

There are several characteristics that a good constitution should possess. It should be definite to avoid avoiding an occasion for dispute. There should be no question as to what the constitution is or what it means. In this respect, if carefully worded, the written parts of a constitution are more satisfactory than unwritten customs and practices. The tendency in legal development has been toward definite statements so that the law may be known and preserved.

A constitution should be comprehensive; that is, it should cover the whole field of government. In a general way, at least, it should make provision for the exercise of all political power and sketch out the fundamental organization of the state. At the same time, a constitution should be brief. In outline alone, should the constitution organize the state?

An elaborate and detailed constitution offers many possibilities for dispute as to meaning. Besides, a detailed constitution indicates distrust of government. Legislatures deteriorate and avoid responsibility if matters of importance are removed from their authority and decided in the constitution.

Finally, a detailed constitution is soon outgrown. New conditions render some of its provisions obsolete, and, whether by frequent amendment or by strained interpretation or by the growth of practices outside the constitution or by nonenforcement. It becomes unstable and unrespected.

Details of governmental organization and policy are not properly constitutional matters but should be left to the government’s ordinary lawmaking powers. The constitution of the United States contains about four thousand words. The newer constitutions of European states are more elaborate. In recent years, the constitutions drawn up by some of the American commonwealths contain upwards of fifty thousand words, including minute regulations that have no proper place in a constitution.

The proper contents of a constitution demand consideration. A consideration intended primarily to set up a framework of government. Its purpose is to outline the nature, method of selection, and powers of the various government organs and prescribe the general manner in which their powers shall be exercised. It indicates the various departments and divisions of government. A constitution should also provide a legal method of amendment so that it may be changed without revolution.

A constitution should be stable and, at the same time, flexible. In fixing the amendment method, a compromise is needed, which will permit changes to be made and at the same time will ensure that changes will not be made until it is certain that they represent the real and not merely the temporary needs and desires of the people.

There is also an advantage in including a Bill of Rights, which sets aside a certain sphere of individual liberty with which the ordinary government is forbidden to interfere. The constitution, therefore, prevents the encroachment of one organ of government on another or individual liberty.

In a word, it locates sovereignty within the state since, in outlining the powers of the various governmental organs and in providing a method of legal amendment, it arranges the total exercise of the lawmaking power. The action of any organ outside the scope of its legal competence, or in any manner except that prescribed, is not a legal act of the sovereign state but a revolutionary usurpation of power.

An “unconstitutional law” is thus a contradiction in terms. If it is unconstitutional, it is not law. When a law is declared unconstitutional, it is not considered that a lower law has come into conflict with a higher law, but that the law in question never was law since it was not properly created.

There is, then, no difference in validity between constitutional law and statute law. If legally created and enforced by the state’s authority, is the law equally binding? From a legal Standpoint, all laws are commands of the sovereign, enforced by its authority. Any organ of government, acting legally within its powers’ scope, creates law just as binding as the constitution.

A distinction between constitutional law and statute law may be made as to the method of creation and content. Statute law is created by the regular legislative organs of the ordinary government. Constitutional law in many states is created by a peculiar government or by unusual procedure on the part of the ordinary government.

In some states, as in Great Britain, even this distinction does not exist since constitutional law is created and repealed by the ordinary government. As to its content, constitutional law properly deals with the fundamental organization of the state. The minor details of government and man’s ordinary relations to man are properly left to statute law or administrative regulation.

A good constitution’s final requirement is that the constitution shall correspond to the state’s actual conditions. Sovereignty should be legally distributed following actual political power. That is, the legal sovereign should coincide with the political sovereign. Otherwise, there is a constant danger of revolution.

No constitution can be perfect and permanent since the best form of government is a relative matter, changing as conditions change. Therefore, a constitution should be flexible enough to permit change when necessary simultaneously; its modification should not be so easy as to sacrifice stability. The adjustment of these requisites depends largely on the legal method of amendment.

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