(From Grolier Multimedia Encyclopedia)

Constitutional Law

Constitutional Law, the fundamental law of a state that defines the powers of the state, constitutes and delineates the organs of government, and limits governmental powers. In addition to dealing with the organization of state and government, constitutional law also concerns itself with the relationship between government and citizens, more specifically with the rights and privileges of the individual vis-à-vis the state.

Scope and Function

Because of its fundamental character, constitutional law is legally superior to other types of law. Most commonly, constitutional law is laid down in a special, written document or set of documents, a constitution, that is regarded as the supreme law of the land. A constitution almost always contains a special procedure for amendment in order to prevent facile alteration.

Separation of Powers. The idea of separation of powers plays an important role in delineating the powers of the state and the government. Two variants of this theory of politics can be distinguished: one variant concerns the different branches of government; the other relates to a territorial division of state power. The first asserts that liberty can be safeguarded only in a political system in which governmental power is divided into three different functional branches—legislative, executive, and judicial. Each of these branches is assigned different organs that are expected to adhere to their own functions. There is, however, one exception to this rule: under some constitutions the courts (or a special court) are explicitly or implicitly authorized to review statutes in light of the constitution's mandates.

The second variant, called division of powers, refers to the territorial division of state power, which has been established in most contemporary states between a central and a local level. In the constitutional system of the United States (a federal constitutional system), this division of power resulted in a distinction between the organization of power on a national and a state level. In addition to being governed by the Constitution of the United States (the federal constitution), each state adheres to a state constitution in which its official powers are defined. In other constitutional systems, national government can be divided into a central and a decentralized level (such as in France, which has a unitary constitution) or between a decentralized level of states or regions and one central organ with limited powers (such as in Switzerland, which has a confederate system).

Bills of Rights and Other Sources. Nations that have written constitutions usually also have an incorporated bill of rights containing basic individual rights, such as freedom of speech and press, freedom of religion and worship, and freedom of association and assembly, among others. These rights aim to protect the individual from state interference. Many modern constitutions have incorporated other rights as well—such as the right to shelter, to employment, and to health care—requiring the state to undertake positive action for their implementation.

The constitutional law of a country is not strictly limited to the rules of the constitution; it also encompasses statutes concerning the structure and functions of central and local governments and their relations with the citizens. In addition, it incorporates judicial decisions (particularly those concerning the interpretation of individual rights and privileges), constitutional conventions, and political practice. In a number of countries certain provisions of international treaties to which these states are a party are now considered part of constitutional law as well.

Constitutional Law versus Statutory Law. Certain features distinguish constitutional law from ordinary statutory law. First, constitutional law is the fundamental higher law that governs statutory law. It determines basic matters pertaining to the political system, whereas statutory law applies these matters to specific categories. Second, constitutional law, or rather a specific constitution, springs from a distinct source and is enacted or changed by a special procedure (amendment), either in an extraordinary manner by ordinary bodies or by extraordinary bodies such as constitutional conventions. Sometimes the final adoption of a constitution or its amendment requires the approval of the electorate, to whom it is submitted by referendum. The latter procedure has been and continues to be used in some of the states of the United States. Some constitutions expressly forbid specific constitutional provisions from being amended, such as the principle of the liberal-democratic political order that formed a part of the Federal Republic of Germany's constitution or the republican form of government that is stipulated by the French constitution.

Types of Constitutional Law

Two main types of constitutional law are found around the world, the determining factor being whether the constitution is written or unwritten. Although the United Kingdom is usually cited as the classic example of a state without a written constitution, many other countries, including Israel, New Zealand, Oman, and Saudi Arabia, do not have a basic written document. Such countries do, however, have a number of (written) rules pertaining to the organization of government and the rights of citizens. The standard distinction between written and unwritten constitutions is therefore of considerable but nevertheless limited use. Another distinction was introduced by the British legal scholar James Bryce in 1884. He identified flexible constitutions, for which the amending process takes place by simple majority, and rigid constitutions, which involve a special amending procedure. A shortcoming of Bryce's typology is, nevertheless, that it does not take into consideration the fact that constitutions and constitutional law can change not only through formal procedures but also through judicial interpretation and changes in the relationships among political institutions.

Unwritten and Written Constitutions. Along with its American counterpart, the British constitutional system has been considered the cradle of constitutionalism and an extremely influential model, notably among its former colonies. The sources of British constitutional law are threefold: (1) statutes, such as the Magna Carta (1215), the Bill of Rights (1689), and the Parliament Act (1911); (2) judicial decisions settling aspects of constitutional practice, such as those concerning the interpretation of rights, among them freedom of speech and of assembly; and (3) conventions, practices, or rules that derive from political processes. Thus the principle that a government must resign if defeated on a vote of confidence in the House of Commons is a constitutional custom.

The 19th-century British constitutional scholar A. V. Dicey distinguished two principles that underlie the British system: parliamentary sovereignty and the rule of law. The first principle refers to the rule that Parliament can legislate on any topic and can pass any laws (including fundamental laws) it sees fit. When laws are passed, the courts must enforce them, which is to say that judicial review does not exist in the United Kingdom. A number of restraints have been placed on the British Parliament, however. The second principle of the British constitutional system is the rule of law. This means that every person, including public officials, will be judged according to the ordinary law of the land. A complex body of administrative law has developed in the United Kingdom even though it lacks a regular system of administrative courts, such as that present in France.

The second major type of constitutional law concerns all those states that have adopted a formal written constitution. In this case, too, a further distinction can be made based on the status of the judiciary. In some systems, constitutions explicitly grant the judiciary the power to strike down legislation that is inconsistent with the constitution. In others the judiciary may interpret the constitution in such a way as to invest itself with the power of constitutional review. An example of the first category is the German system; those of the United States and Norway exemplify the second category.

Constitutional Review. In all systems of constitutional law, the importance of the judiciary in delineating the powers of governments and the scope of individual rights and privileges cannot be overestimated. Three principal models of constitutional review can be identified. In the first, the "diffuse" or "decentralized" model, all the judges and courts of a given country are authorized to act as constitutional judges. Thus when a dispute that depends on a particular law is brought before them, the courts are permitted to consider the validity of the law and validate or reject it. The most well-known example of a diffuse system of judicial review is that of the United States. Its provisions were largely copied by the majority of the former states of the British Commonwealth: Canada, India, Australia, and Ireland. It was also adopted in Japan and, formally, at least, in a number of Latin American nations.

The second, the "concentrated" or "centralized" model, is characterized by the presence of only a single organ to act as constitutional judge. This institution can be either a supreme judicial court or a special constitutional court organized outside of the ordinary judicial hierarchy. The model finds its origins in Austria and was adopted in many continental European states, such as Germany, Italy, France, Spain, and Belgium.

A further distinction that should be made when discussing constitutional review concerns the method of review. It is possible to distinguish between abstract (ex ante) and concrete (ex post) review of laws. Concrete review takes place when a lawsuit or some other kind of litigation is brought before the court, as in the case of the U.S. system, in which the Supreme Court hears specific cases. Abstract review, on the other hand, takes place without a specific case or controversy. Such review is the rule in France and occurs to a limited extent in Germany.

Finally, a third type of system distinguishable on the basis of constitutional review is that in which the judiciary is not authorized (more or less explicitly) to review statutes in light of the constitution. Both the Netherlands and Finland have followed this pattern. Since 1953, however, the Dutch courts have been authorized to set aside any constitutional-law provision that may be deemed incompatible with a rule of international law.

History of Constitutional Law

Whether written or unwritten, based primarily on political or territorial divisions, or encompassing a diffuse or concentrated model of constitutional review, constitutional law has played a fundamental role in the development of political systems throughout history.

Ancient History. The roots of modern Western constitutional law stretch back to ancient Greece. Plato originally introduced the notion that government must be guided by law (nomos). At the same time, he insisted that lawmaking power should be concentrated in the hands of philosophers, men wiser than ordinary people and therefore more capable of ruling. Aristotle distinguished between a nation's basic governmental structure (politeia), its laws, and its changeable policies. His notion of a mixed constitution, a balance of power among monarchy, aristocracy, and democracy, foreshadowed the modern doctrine of separation of powers. Somewhat later, during Roman times, the notion of the equality of all human beings came to the fore, despite the widespread practice of slavery under the Roman Empire.

Middle Ages and the Era of Absolutism. Building on the ancient heritage, medieval thinkers developed new theories of governance. The king was considered the supreme source of government in the realm. All matters of government were under his control. Unless it fell beyond the physical boundaries of his jurisdiction, or encroached on religious dogma, no edict or rule could be considered illegitimate. The only means to keep the king in check was through resistance. This situation did not change significantly until the advent of the Renaissance and the Reformation. Whereas the king in feudal society was regarded as primus inter pares (the first among equals) and had, to some extent, to respect the rights and privileges of his vassals, gradually the monarchy freed itself from these restraints. By about 1600 the era of absolute monarchy had dawned, with even more unfettered control being enjoyed by the crown.

The Enlightenment. The next phase in the development of constitutional law occurred in the 17th and 18th centuries, or the Age of Reason (or Enlightenment). During this period important new elements of constitutional law emerged.

First among such new elements were the theories of natural law, which evolved as a reaction to the legal principles of medieval society. The English political philosophers Thomas Hobbes (1588–1679) and John Locke (1632–1704) based their theories on the notion that, before the emergence of state and civil society, human beings lived in a hypothetical state of nature. In this state each human being was a potential threat to others. Locke described the rise of civil society as being the result of a social contract among citizens who agreed to turn over their natural rights to the state in exchange for protection of life, liberty, and property. The notion of natural law became political reality in the constitutions of the British colonies in America. The first of these, the constitution of Virginia of 1776, contained a catalog of natural, inalienable rights. Later, individual rights and privileges became the cornerstone of virtually all constitutions.

This point serves to introduce a second key trend in constitutional law. During and following the Revolutionary period (1776–1799), many political systems, following the model of the United States, began to lay down the basic structure of government in a special document, a constitution, that was assigned a higher status than ordinary law.

The foundation for the doctrine of separation of powers was laid in the 18th century. The French political philosopher Montesquieu (1689–1755) formulated the doctrine by distinguishing three different branches of government—the legislative, executive, and judicial departments—and assigning each to a separate individual or group. This doctrine was institutionalized in the American and French constitutions of the 18th century and, to this day, remains one of the central ideas of constitutional law.

Contemporary Developments. The development of constitutional law, and of individual constitutions, in the 20th century has been characterized by paradoxy. On the one hand, constitutions have by now become universally accepted as a means of laying down the law of the land. On the other hand, constitutions are no longer exclusively linked to constitutionalism, or the idea of limited government in service to high principles. Not only do liberal democracies have written constitutions but so too do authoritarian and one-party systems. In some cases a constitution serves primarily as a means of legitimizing the existing political order, as in the case of some Latin American countries. Furthermore, it is not uncommon for discrepancies to exist between constitutional precepts and their exercise in actual circumstances. The constitution of the Weimar Republic (1919), which technically was a model of liberal-democratic principles, proved unfit to prevent the Nazi regime from taking power. Liberal faith in constitutions ended up severely shaken by this event.

The fall of communism in the 1980s brought a revival of constitutional law, with many countries in Eastern Europe and former states of the Soviet Union adopting liberal-democratic constitutions that limited the power of government and, in some cases, restricted or prohibited the participation of communists. The process of transition did not, however, come easily, to which many armed conflicts in the region attested.

In Africa, as many countries gained independence from their former colonial overlords, constitutional developments were initially characterized by a clear commitment to the idea of constitutionalism and the rule of law. At the same time, however, the notion of limiting the power of the state or its sovereign was rejected, both formally and in practice. Recent developments in Africa have demonstrated a search for adapting European constitutional principles to African political and social circumstances, but the success of such efforts remains unclear.

In the United Kingdom one of the major contemporary questions is whether to adopt a written constitution and enshrine a bill of rights with a system of judicial review. In the United States, discussion has focused on the position of the Supreme Court as a countermajoritarian institution within the constitutional system. The question is whether the judiciary should adhere to a narrow, or strict, interpretation of the Constitution or play a more activist role. This problem is not exclusively American, however. In many European countries the growing importance of the judiciary is a hotly contested issue as well, raising the intriguing question of the politicization of the judiciary or the "judicialization" of politics.

Carla Zoethout
Erasmus Universiteit
Rotterdam, The Netherlands

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