Constitutional law

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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 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. These foundational or basic laws of states or organizations are the bases for a cooperative give and take leading to peace when the actions are guided by constitutional frameworks.

Types of constitutions

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 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, 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 authorized 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

Roman Republic Constitution

The Roman Republic had one of the earliest known constitutions. The idea for a constitution was likely copied from those of the early Greek city-states. Before the 17th and 18th centuries, the Roman Republic was one of the very few nations to have had a constitution. Many nations today have modeled their constitutions after that of the Roman Republic. Concepts that originated in the Roman constitution live on in constitutions to this day. Examples include checks and balances, the separation of powers, vetoes, filibusters, quorum requirements, term limits, and regularly scheduled elections. Even some lesser used modern constitutional concepts, such as the block voting found in the electoral college of the United States, originate off of ideas found in the Roman constitution.

United States Constitution

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." The Constitution has a central place in American law and political culture. 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

File:Cuzco signing.jpg

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 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.

The importance of constitutional law

Constitutional law involves some of the most fundamental issues concerning the government and society. It begins with the historical pathway from the drafting of the document through its adoption, the application of the document to governmental and societal issues, and the influences of any amendments to address issues which were not in the original document. Constitutional law looks at the sources in which the triers of fact would turn to guide their constitutional interpretations, and how such judges may weigh the words of the text of the document, the framers' intentions, case precedents, and policy consequences of the interpretation for a legal decision. The benefits that befall a society from constitutional law are that it limits governmental power to protect individual liberties, it clarifies the roles to reduce disputes between governmental parties, and it is committed to the principles of democracy and the dignity of the individual.

References

ISBN links support NWE through referral fees

• 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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