Constitution
A constitution, or supreme law, is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organization or other type of entity, and commonly determines how that entity is to be governed.
When these principles are written down into a single document or set of legal documents, those documents may be said to embody a written constitution; if they are encompassed in a single comprehensive document, it is said to embody a codified constitution. The constitution of the United Kingdom is a notable example of an uncodified constitution; it is instead written in numerous fundamental acts of a legislature, court cases, and treaties.
Constitutions concern different levels of organizations, from sovereign countries to companies and unincorporated associations. A treaty that establishes an international organization is also its constitution, in that it would define how that organization is constituted. Within states, a constitution defines the principles upon which the state is based, the procedure in which laws are made, and by whom. Some constitutions, especially codified constitutions, also act as limiters of state power, by establishing lines which a state's rulers cannot cross, such as fundamental rights. Changes to constitutions frequently require consensus or supermajority.
The Constitution of India is the longest written constitution of any country in the world, with 146,385 words in its English-language version, while the Constitution of Monaco is the shortest written constitution with 3,814 words. The Constitution of San Marino might be the world's oldest active written constitution, since some of its core documents have been in operation since 1600, while the Constitution of the United States is the oldest active codified constitution. The historical life expectancy of a written constitution since 1789 is approximately 19 years.
There are also varieties of constitutions, for example liberal constitutions and communist state constitutions.
Etymology
The term constitution comes through French from the Latin word constitutio, used for regulations and orders, such as the imperial enactments. Later, the term was widely used in canon law for an important determination, especially a decree issued by the Pope, now referred to as an apostolic constitution.William Blackstone used the term for significant and egregious violations of public trust, of a nature and extent that the transgression would justify a revolutionary response. The term as used by Blackstone was not for a legal text, nor did he intend to include the later American concept of judicial review: "for that were to set the judicial power above that of the legislature, which would be subversive of all government".
General features
Generally, every modern written constitution confers specific powers on an organization or institutional entity, on the primary condition that it abides by the constitution’s limitations. According to Scott Gordon, a political organization is constitutional to the extent that it "contain institutionalized mechanisms of power control for the protection of the interests and liberties of the citizenry, including those that may be in the minority".Activities of officials within an organization or polity that fall within the constitutional or statutory authority of those officials are termed "within power" ; if they do not, they are termed "beyond power". For example, a students' union may be prohibited as an organization from engaging in activities not concerning students; if the union becomes involved in non-student activities, these activities are considered to be ultra vires of the union's charter, and nobody would be compelled by the charter to follow them. An example from the constitutional law of sovereign states would be a provincial parliament in a federal state trying to legislate in an area that the constitution allocates exclusively to the federal parliament, such as ratifying a treaty. Action that appears to be beyond power may be judicially reviewed and, if found to be beyond power, must cease. Legislation that is found to be beyond power will be "invalid" and of no force; this applies to primary legislation, requiring constitutional authorization, and secondary legislation, ordinarily requiring statutory authorization. In this context, "within power", intra vires, "authorized" and "valid" have the same meaning; as do "beyond power", ultra vires, "not authorized" and "invalid".
In most but not all modern states the constitution has supremacy over ordinary statutory law ; in such states when an official act is unconstitutional, i.e. it is not a power granted to the government by the constitution, that act is null and void, and the nullification is ab initio, that is, from inception, not from the date of the finding. It was never "law", even though, if it had been a statute or statutory provision, it might have been adopted according to the procedures for adopting legislation. Sometimes the problem is not that a statute is unconstitutional, but that the application of it is, on a particular occasion, and a court may decide that while there are ways it could be applied that are constitutional, that instance was not allowed or legitimate. In such a case, only that application may be ruled unconstitutional. Historically, the remedies for such violations have been petitions for common law writs, such as quo warranto.
Scholars debate whether a constitution must necessarily be autochthonous, resulting from the nation's "spirit". Hegel said "A constitution...is the work of centuries; it is the idea, the consciousness of rationality so far as that consciousness is developed in a particular nation."
History and development
Since 1789, along with the Constitution of the United States of America, which is the oldest and shortest written constitution still in force, close to 800 constitutions have been adopted and subsequently amended around the world by independent states.In the late 18th century, Thomas Jefferson predicted that a period of 20 years would be the optimal time for any constitution to be still in force, since "the earth belongs to the living, and not to the dead". Indeed, according to recent studies, the average life of any newly written constitution is around 19 years. However, a great number of constitutions do not last more than 10 years, and around 10% do not last more than one year, as was the case of the French Constitution of 1791. By contrast, some constitutions, notably that of the United States, have remained in force for several centuries, often without major revision for long periods.
The most common reasons for these frequent changes are the political desire for an immediate outcome and the short time devoted to the constitutional drafting process. A study in 2009 showed that the average time taken to draft a constitution is around 16 months, however there were also some extreme cases registered. For example, the Myanmar 2008 Constitution was being secretly drafted for more than 17 years, whereas at the other extreme, during the drafting of Japan's 1946 Constitution, the bureaucrats drafted everything in no more than a week. Japan has the oldest unamended constitution in the world. The record for the shortest overall process of drafting, adoption, and ratification of a national constitution belongs to Romania's 1938 constitution, which installed a royal dictatorship in less than a month. Studies showed that typically extreme cases where the constitution-making process either takes too long or is extremely short were non-democracies.
In principle, constitutional rights are not a specific characteristic of democratic countries. Autocratic states have constitutions, such as that of North Korea, which officially grants every citizen, among other things, the freedom of expression. However, the extent to which governments abide by their own constitutional provisions varies. In North Korea, for example, the Ten Principles for the Establishment of a Monolithic Ideological System are said to have eclipsed the constitution in importance as a frame of government in practice. Developing a legal and political tradition of strict adherence to constitutional provisions is considered foundational to the rule of law.
Pre-modern constitutions
Ancient
Excavations in modern-day Iraq by Ernest de Sarzec in 1877 found evidence of the earliest known code of justice, issued by the Sumerian king Urukagina of Lagash. Perhaps the earliest prototype for a law of government, this document itself has not yet been discovered; however, it is known that it allowed some rights to his citizens. For example, it is known that it relieved tax for widows and orphans, and protected the poor from the usury of the rich.After that, many governments ruled by special codes of written laws. The oldest such document still known to exist seems to be the Code of Ur-Nammu of Ur. Some of the better-known ancient law codes are the code of Lipit-Ishtar of Isin, the code of Hammurabi of Babylonia, the Hittite code, the Assyrian code, and Mosaic law.
In 621 BC, a scribe named Draco codified the oral laws of the city-state of Athens; this code prescribed the death penalty for many offenses. In 594 BC, Solon, the ruler of Athens, created the new Solonian Constitution. It eased the burden of the workers and determined that membership of the ruling class was to be based on wealth, rather than on birth. Cleisthenes again reformed the Athenian constitution and set it on a democratic footing in 508 BC.
Aristotle was the first to make a formal distinction between ordinary law and constitutional law, establishing ideas of constitution and constitutionalism, and attempting to classify different forms of constitutional government. The most basic definition he used to describe a constitution in general terms was "the arrangement of the offices in a state". In his works Constitution of Athens, Politics, and Nicomachean Ethics, he explores different constitutions of his day, including those of Athens, Sparta, and Carthage. He classified both what he regarded as good and what he regarded as bad constitutions, and came to the conclusion that the best constitution was a mixed system including monarchic, aristocratic, and democratic elements. He also distinguished between citizens, who had the right to participate in the state, and non-citizens and slaves, who did not.
The Romans initially codified their constitution in 450 BC as the Twelve Tables. They operated under a series of laws that were added from time to time, but Roman law was not reorganized into a single code until the Codex Theodosianus ; later, in the Eastern Empire, the Codex repetitæ prælectionis was highly influential throughout Europe. This was followed in the east by the Ecloga of Leo III the Isaurian and the Basilica of Basil I.
The Edicts of Ashoka established constitutional principles for the 3rd century BC Maurya king's rule in India. For constitutional principles almost lost to antiquity, see the code of Manu.