Difference between revisions of "Constitutional law" - New World Encyclopedia
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| + | [[Image:Declaration of Human Rights.jpg|thumb|right|The French [[Declaration of the Rights of the Man and of the Citizen]], whose principles still have constitutional value]] | ||
| + | '''Constitutional law''' is the study of foundational or basic [[law]]s of nation states and other political organizations. [[Constitution]]s are the framework for [[government]] and may limit or define the authority and procedure of political bodies to execute new laws and regulations. | ||
| − | + | ==Types of constitution== | |
| − | + | Not all [[nation state]]s have codified constitutions, though all such states have a ''[[jus commune]]'', or law of the land, that may consist of a variety of imperative and consensual rules. These may include [[customary law]], [[Convention (norm)|conventions]], [[statutory law]], [[judge made law]] or [[international law|international rules and norms]]. A common error is to refer to countries, for instance, the [[United Kingdom]], as having an "unwritten constitution". In fact, the "constitution" is written in a vast body of books, statutes and law reports, instead of being codified into a single document, such as the [[Grundgesetz]] or the [[U.S. Constitution]]. On the other hand, some communities may lack any constitution at all, because of the complete absence of law and order. These are referred to as [[failed state|failed nation states]] or anarchies. | |
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| − | Not all [[nation state]]s have codified constitutions, though all such states have a ''[[jus commune]]'', or law of the land, that may consist of a variety of imperative and consensual rules. These may include [[customary law]], [[conventions]], [[statutory law]], [[judge made law]] or [[international law|international rules and norms]]. A common error is to refer to countries, for instance, the [[United Kingdom]], as having an "unwritten constitution". In fact, the "constitution" is written in a vast body of books, statutes and law reports | ||
==Functions of constitutions== | ==Functions of constitutions== | ||
| − | Constitutional laws may often be considered second order rulemaking or rules about making rules of exercise power. It governs the relationships between the judiciary, the legislature and the executive with the bodies under its authority. One of the key tasks of constitutions within this context is to indicate hierarchies and relationships of power. For example, in a [[unitary state]], the | + | Constitutional laws may often be considered second order rulemaking or rules about making rules of exercise power. It governs the relationships between the judiciary, the legislature and the executive with the bodies under its authority. One of the key tasks of constitutions within this context is to indicate hierarchies and relationships of power. For example, in a [[unitary state]], the constitution will vest ultimate authority in one central administration and [[legislature]], and [[judiciary]], though there is often a delegation of power or authority to local or municipal authorities. When a constitution establishes a [[federal state]], it will identify the several levels of government coexisting with exclusive or shared areas of jurisdiction over lawmaking, application and enforcement. |
===Human rights=== | ===Human rights=== | ||
| − | + | Human rights or [[civil liberties]] form a crucial part of a country's constitution and govern the rights of the individual against the state. Most jurisdictions, like the [[United States of America|United States]] and [[France]], have a single codified constitution, with a [[Bill of Rights]]. A recent example is the [[Charter of Fundamental Rights of the European Union]] which was intended to be included in the [[Treaty establishing a Constitution for Europe]], that failed to be ratified. Perhaps the most important example is the [[Universal Declaration of Human Rights]] under the [[UN Charter]]. These are intended to ensure basic political, social and economic standards that a nation state, or intergovernmental body is obliged to provide its citizens with. | |
| − | Some countries like the United Kingdom, have no entrenched document setting out fundamental rights; in those jurisdictions the constitution is composed of [[statute]], [[case law]] and [[Constitutional conventions|convention]]. A case named ''[[Entick v. Carrington]]''<ref>''[[Entick v. Carrington]]'' (1765) 19 Howell's State Trials 1030</ref> illustrates a constitutional principle deriving from the common law. Mr Entick's house was searched and ransacked by | + | Some countries like the United Kingdom, have no entrenched document setting out fundamental rights; in those jurisdictions the constitution is composed of [[statute]], [[case law]] and [[Constitutional conventions|convention]]. A case named ''[[Entick v. Carrington]]''<ref>''[[Entick v. Carrington]]'' (1765) 19 Howell's State Trials 1030</ref> illustrates a constitutional principle deriving from the common law. Mr Entick's house was searched and ransacked by Sherriff Carrington. Carrington argued that a warrant from a Government minister, the [[George Montague-Dunk, 2nd Earl of Halifax|Earl of Halifax]] was valid authority, even though there was no statutory provision or court order for it. The court, led by [[Charles Pratt, 1st Earl Camden|Lord Camden]] stated that, |
<blockquote>"The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. By the laws of England, every invasion of private property, be it ever so minute, is a trespass... If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment."</blockquote> | <blockquote>"The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. By the laws of England, every invasion of private property, be it ever so minute, is a trespass... If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment."</blockquote> | ||
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Another main function of constitutions may be to describe the procedure by which parliaments may legislate. For instance, special majorities may be required to alter the constitution. In bi-cameral legislatures, there may be a process laid out for second or third readings of bills before a new law can enter into force. Alternatively, there may further be requirements for maximum terms that a government can keep power before holding an [[election]]. | Another main function of constitutions may be to describe the procedure by which parliaments may legislate. For instance, special majorities may be required to alter the constitution. In bi-cameral legislatures, there may be a process laid out for second or third readings of bills before a new law can enter into force. Alternatively, there may further be requirements for maximum terms that a government can keep power before holding an [[election]]. | ||
| − | ==Constitutions by region== | + | ==Examples of Constitutions by region== |
| + | ===United States Constitution=== | ||
| − | === | + | {{Infobox document |
| − | + | |document_name = United States Constitution | |
| − | + | |image = Constitution Pg1of4 AC.jpg | |
| + | |image_width = 220px | ||
| + | |image_caption = Page one of the original copy of the Constitution | ||
| + | |date_created = [[September 17]] [[1787]] | ||
| + | |date_ratified = [[June 21]] [[1788]] | ||
| + | |location_of_document = [[National Archives and Records Administration|National Archives]] | ||
| + | |writer = Delegates of the [[Philadelphia Convention]] | ||
| + | |signers = 39 of the 55 Philadelphia Convention delegates | ||
| + | |purpose = National [[constitution]] to replace the [[Articles of Confederation]] | ||
| + | }} | ||
| + | {{Infobox US Constitution}} | ||
| + | The '''United States Constitution''' is the supreme [[law]] of the [[United States|United States of America]]. It was adopted in its original form on [[September 17]] [[1787]] by the [[Philadelphia Convention|Constitutional Convention]] in [[Philadelphia, Pennsylvania|Philadelphia]], [[Pennsylvania]], and later [[ratification|ratified]] by conventions in each [[U.S. state|state]] in the name of "the People."<ref>http://www.constitution.org/cons/constitu.htm</ref><ref>http://www.loc.gov/rr/program/bib/ourdocs/Constitution.html</ref> The Constitution has a central place in [[Law of the United States|American law]] and [[Politics of the United States|political culture]].<ref> Casey (1974)</ref> The U.S. Constitution is argued by many to be the oldest written national constitution, except possibly for [[San Marino]]'s [[Constitution of San Marino#The Statutes of 1600|Statutes of 1600]], whose status as a true constitution is disputed by scholars. The handwritten, or "engrossed", [[Jacob Shallus|original document]] is on display at the [[National Archives and Records Administration|National Archives]] in [[Washington, D.C.]] | ||
| − | === | + | ===Constitution for Europe=== |
| − | + | The '''Treaty establishing a Constitution for Europe''' (TCE), commonly referred to as the '''European Constitution''', was an unimplemented international [[treaty]] intended to create a [[constitution]] for the [[European Union]]. It was signed in 2004 by representatives of the member states of the Union but was subject to [[ratification]] by all member states, two of which subsequently rejected it in [[referendum]]s. Its main aims were to replace the overlapping set of existing treaties (see [[Treaties of the European Union]]) that compose the Union's current informal Constitution, to codify human rights throughout the EU and to streamline decision-making in what is now a 27-member organization. | |
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| + | ===Constitution for South America=== | ||
| + | [[Image:Cuzco_signing.jpg|thumb|South American leaders sign the Cuzco Declaration]] | ||
| − | + | The '''Cusco Declaration''', formally titled, '''Preamble to the Foundation Act of the South American Union''', is a two-page declaration of intent signed by 16 [[South America]]n countries during the [[South American Summit|Third South American Summit]], on [[December 8]], [[2004]], in [[Cusco]], [[Peru]], announcing the foundation of the [[South American Community of Nations]]. It called for a regional parliament, a common market and a common currency. | |
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| − | == | + | ==See also== |
| + | *[[Basic Law]]s | ||
| + | *[[University of Pennsylvania Journal of Constitutional Law]] | ||
| + | *[[Constitution of the Roman Republic]] | ||
| + | {{law}} | ||
| − | + | ==References== | |
| − | + | {{reflist}} | |
| − | + | ==Notes== | |
| − | + | {{Reflist}} | |
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| − | === | + | ==Examples of constitutional law decisions== |
| − | * | + | ===United States Supreme Court cases=== |
| − | * | + | * Lee v. Weisman, 505 U.S. 577 (1992) - school prayer; prayer at graduation |
| − | * | + | * Bowers v. Hardwick, 478 U.S. 186 (1986) - consensual sexual conduct |
| − | + | * Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919 (1983) separation of powers; judicial review | |
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==References== | ==References== | ||
Revision as of 17:55, 25 September 2007
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Constitutional law is the study of foundational or basic laws of nation states and other political organizations. Constitutions are the framework for government and may limit or define the authority and procedure of political bodies to execute new laws and regulations.
Types of constitution
Not all nation states have codified constitutions, though all such states have a jus commune, or law of the land, that may consist of a variety of imperative and consensual rules. These may include customary law, conventions, statutory law, judge made law or international rules and norms. A common error is to refer to countries, for instance, the United Kingdom, as having an "unwritten constitution". In fact, the "constitution" is written in a vast body of books, statutes and law reports, instead of being codified into a single document, such as the Grundgesetz or the U.S. Constitution. On the other hand, some communities may lack any constitution at all, because of the complete absence of law and order. These are referred to as failed nation states or anarchies.
Functions of constitutions
Constitutional laws may often be considered second order rulemaking or rules about making rules of exercise power. It governs the relationships between the judiciary, the legislature and the executive with the bodies under its authority. One of the key tasks of constitutions within this context is to indicate hierarchies and relationships of power. For example, in a unitary state, the constitution will vest ultimate authority in one central administration and legislature, and judiciary, though there is often a delegation of power or authority to local or municipal authorities. When a constitution establishes a federal state, it will identify the several levels of government coexisting with exclusive or shared areas of jurisdiction over lawmaking, application and enforcement.
Human rights
Human rights or civil liberties form a crucial part of a country's constitution and govern the rights of the individual against the state. Most jurisdictions, like the United States and France, have a single codified constitution, with a Bill of Rights. A recent example is the Charter of Fundamental Rights of the European Union which was intended to be included in the Treaty establishing a Constitution for Europe, that failed to be ratified. Perhaps the most important example is the Universal Declaration of Human Rights under the UN Charter. These are intended to ensure basic political, social and economic standards that a nation state, or intergovernmental body is obliged to provide its citizens with.
Some countries like the United Kingdom, have no entrenched document setting out fundamental rights; in those jurisdictions the constitution is composed of statute, case law and convention. A case named Entick v. Carrington[1] illustrates a constitutional principle deriving from the common law. Mr Entick's house was searched and ransacked by Sherriff Carrington. Carrington argued that a warrant from a Government minister, the Earl of Halifax was valid authority, even though there was no statutory provision or court order for it. The court, led by Lord Camden stated that,
"The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. By the laws of England, every invasion of private property, be it ever so minute, is a trespass... If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment."
Inspired by John Locke,[2] the fundamental constitutional principle is that the individual can do anything but that which is forbidden by law, while the state may do nothing but that which is authorised by law.
Legislative procedure
Another main function of constitutions may be to describe the procedure by which parliaments may legislate. For instance, special majorities may be required to alter the constitution. In bi-cameral legislatures, there may be a process laid out for second or third readings of bills before a new law can enter into force. Alternatively, there may further be requirements for maximum terms that a government can keep power before holding an election.
Examples of Constitutions by region
United States Constitution
| United States Constitution | |
 Page one of the original copy of the Constitution
| |
| Created | September 17 1787 |
| Ratified | June 21 1788 |
| Location | National Archives |
| Authors | Delegates of the Philadelphia Convention |
| Signers | 39 of the 55 Philadelphia Convention delegates |
| Purpose | National constitution to replace the Articles of Confederation |
| United States of America |
 This article is part of the series: |
| Original text of the Constitution |
|---|
| Preamble Articles of the Constitution |
| Amendments to the Constitution |
| Bill of Rights I ∙ II ∙ III ∙ IV ∙ V ∙ VI ∙ VII ∙ VIII ∙ IX ∙ X Subsequent Amendments |
|
Other countries · Law Portal |
The United States Constitution is the supreme law of the United States of America. It was adopted in its original form on September 17 1787 by the Constitutional Convention in Philadelphia, Pennsylvania, and later ratified by conventions in each state in the name of "the People."[3][4] The Constitution has a central place in American law and political culture.[5] The U.S. Constitution is argued by many to be the oldest written national constitution, except possibly for San Marino's Statutes of 1600, whose status as a true constitution is disputed by scholars. The handwritten, or "engrossed", original document is on display at the National Archives in Washington, D.C.
Constitution for Europe
The Treaty establishing a Constitution for Europe (TCE), commonly referred to as the European Constitution, was an unimplemented international treaty intended to create a constitution for the European Union. It was signed in 2004 by representatives of the member states of the Union but was subject to ratification by all member states, two of which subsequently rejected it in referendums. Its main aims were to replace the overlapping set of existing treaties (see Treaties of the European Union) that compose the Union's current informal Constitution, to codify human rights throughout the EU and to streamline decision-making in what is now a 27-member organization.
Constitution for South America
The Cusco Declaration, formally titled, Preamble to the Foundation Act of the South American Union, is a two-page declaration of intent signed by 16 South American countries during the Third South American Summit, on December 8, 2004, in Cusco, Peru, announcing the foundation of the South American Community of Nations. It called for a regional parliament, a common market and a common currency.
See also
- Basic Laws
- University of Pennsylvania Journal of Constitutional Law
- Constitution of the Roman Republic
|
|
| Law Articles |
|---|
| Jurisprudence |
| Law and legal systems |
| Legal profession |
| Types of Law |
| Administrative law |
| Antitrust law |
| Aviation law |
| Blue law |
| Business law |
| Civil law |
| Common law |
| Comparative law |
| Conflict of laws |
| Constitutional law |
| Contract law |
| Criminal law |
| Environmental law |
| Family law |
| Intellectual property law |
| International criminal law |
| International law |
| Labor law |
| Maritime law |
| Military law |
| Obscenity law |
| Procedural law |
| Property law |
| Tax law |
| Tort law |
| Trust law |
ReferencesISBN links support NWE through referral fees
- ↑ Entick v. Carrington (1765) 19 Howell's State Trials 1030
- ↑ Chapter 9, Line 124, John Locke, Second Treatise on Government (1690)
- ↑ http://www.constitution.org/cons/constitu.htm
- ↑ http://www.loc.gov/rr/program/bib/ourdocs/Constitution.html
- ↑ Casey (1974)
Notes
Examples of constitutional law decisions
United States Supreme Court cases
- Lee v. Weisman, 505 U.S. 577 (1992) - school prayer; prayer at graduation
- Bowers v. Hardwick, 478 U.S. 186 (1986) - consensual sexual conduct
- Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919 (1983) separation of powers; judicial review
References
- Anastaplo, George, Reflections on consitutional law, Lexington, KY: University Press of Kentucky, 2006. ISBN 0-813-12396-8
- Killian, Johnny H; Costello, George, The Constitution of the United States of America: analysis and interpretation: annotations of cases decided by the Supreme Court of the United States to June 29, 1992, Washington: USGPO, Supt of Docs, USGPO, 1996. ISBN 0-160-63268-4
- Tushnet, Mark V., A court divided: the Rehnquist court and the future of constitutional law, NY: W.W. Norton Co., 2005. ISBN 0-393-05868-9
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