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Constitution

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A Constitution is a law, or a related set of laws, to which all other laws and governance are subject. Many types of organisation use a constitution as the basic set of rules for that organisation1, but in general use "constitutions" are thought of as the superior law of a nation.

Contents

History

Written Constitutions

In modern times, a single codified national constitution is the normal practice for independent sovereign states, and The Constitution Society has links to the text of 103 national constitutions. However, the written constitution is a fairly young concept in the political history of the world, with the United States Constitution (1789) the oldest such law that is still in force.

A very few democratic nations as yet have no single written constitution. The United Kingdom is the prototypical example, in which "constitutional" law is no different in practical terms from "ordinary" law and can be altered at the whim of the Parliament. (For example, the Act of Settlement of 1701 which prescribes the monarchical succession).

Sovereignty and Prerogative

In modern, liberal democratic, times we have come to understand that the state (or the nation) is a political unit which consists of its people, that the people own the state and that governance is something done with the consent of the people and under their delegated authority. This is the essence of democracy, and indeed of the "republic".

However, before the emergence of the sovereignty of the people, nations were monarchical states of one form or another. The monarch was the supreme figure of the nation and the sovereignty of the state was in fact held in the person of the monarch. The sum total of powers of a nation - to be, to act, to own, to deal - are prerogative powers and in an absolute monarchy the monarch may excerise the prerogative at will.

At the point where the monarch permanently delegates any part of the prerogative to a lesser official, the absoluteness of the monarchy is diluted. Democratisation occurs when the monarch's power to make laws by decree is tempered by the establishment of a parliament as a conduit for lawmaking ideas between the people (the ruled) and the monarch (the ruler).

Where the monarchy is abolished - as for example it was in the United States in 1776 - all the powers of the monarch become transferred to other people and organs of government. The prime characteristic of constitutional law is that it involves an allocation, delegation, limitation or directive of the powers and roles of government which are, or were, prerogative powers.

A Contract with the People

In the modern era, it is probably impossible to enact a constitution without the consent of the people of the nation. Many constitutions acknowledge this in the text by referring to the popular authority by which the constitution was approved.

Enactment of a constitution by popular approval also reverses the historical norm of constitutional law. Whereas the distribution of prerogative power through constitutional law might formerly have been achieved by a monarchical act (perhaps with the assistance of parliament), a popular enactment introduces a different form of legitimisation: If the people are the state, rather than the monarch being the state, then the people in a referendum are delegating upwards the prerogatives held by them to their elected officials and the organs of government.

Thus, a government which has its authority described by a constitution that has been enacted by the people's authority is a "government of the people, by the people and for the people." (Lincoln, Gettysburg Address)

Features and Structure

National constitutions, however lengthy or brief and however worded, serve to accomplish all of the following:

  • To give an authority for the making of laws, and regulate the use of that authority
  • To constrain the range of subject matter for laws (usually only in a federation where subsidiary levels of government have parallel or exclusive powers)
  • To give an authority for the execution of lawful government powers
  • To regulate the manner in which disputes, under the law, may be judged
  • To entrench the constitution by special rules for any alteration

Constitutions might also contain other provisions which, although not crucial to the basic functions of government, serve purposes of nationalism, liberalism, humanism or even shallow populism. The reason for including these in a constitution is to protect them from easy change or abolition, and they include:

  • A preamble containing declarations and idealistic phrases by way of an introduction to the nation and/or the constitution
  • Restrictive provisions which prevent undesirable laws from being enacted, for example human rights provisions or directives concerning taxation
  • In a nation formed by a union or federation of pre-existing states, provisions for the transition or sharing of powers, or for the continuing relationship between the component states
  • Provisions for national symbols, languages, cultural heritage and so on

The extent to which any or all of these types of provisions might appear in a constitution is usually dictated by the nature of the nation involved. Older constitutions, such as that of Australia, contain relatively few provisions on the assumption that the parliamentary lawmaking process, the due diligence of the courts, and the strength of tradition and precedent as inherited from pre-existing institutions, would serve to cover the field and allow the nation to develop organically. On the other hand, the tumultuous history of South Africa and the post-apartheid process for a new constitution meant that the constitution established in 1996 is quite long and precisely detailed. The as-yet unenacted European constitution, in dealing with the interests of the many nations forming the union, is enormous.

Lawmaking Authority

This is known as the legislative power, and is the power to make or alter a law of the nation. (For an explanation of "law", consult an external site such as The Stanford Encyclopedia of Philosophy)

Under a monarch, the legislative power starts with the monarch. In a republic, the legislative power starts with the people. Clearly it is impractical for all of the people to be involved in the process of making a law, and thus the power of elected officials to act on behalf of the people is the salient feature of representative democracy. Where a group of elected officials exercise the legislative power between the people and a monarch, that is a different situation - the monarch has delegated his lawmaking prerogative to the parliament and the parliament has granted to the people the power to select the members.

The constitution typically dictates the composition of the legislative body and general, not specific, rules for appointment of the members. A number of macro-level rules for the conduct of the legislature is another typical feature. Where the legislature consists of more than one group (or "chamber", in deference to the traditional meeting place), there will be rules for the relationship between those groups.

Since the constitution itself is the superior law of the nation, the legislative power only extends to the making of laws which are derived from and consistent with the constitution.

Executive Authority

For every government power there must be a way for that power to be exercised. The constitution will therefore confer on certain officials or organs an executive power - the power to execute laws.

There is a common misconception that executive power is equal to "head of state" power, and that a President (or equivalent) is the only one to hold executive authority. In fact, any executive authority which is vested in any person is inclusive of the power to delegate, and indeed the power of delegation is essential to the functioning of government. The entire public service or civil service of a nation is based on the delegation of executive power - a police officer is delegated with the power to execute certain laws, as is a tax official or a foreign ambassador or a member of the defence forces.

The constitution establishes the top-level structure of the executive branch of government, but it is laws and the executive decisions made pursuant to laws which define the way in which executive power is used.

Judicial Authority

In any society governed and managed by laws, there must be a method for settling disputes which arise under those laws. Under an elitist government (eg a monarchy), it may be the ruler who fulfills that function personally (cf Solomon). However, in a republican nation where the prerogative powers are assumed to originally lie with the people, the power of judgement must be delegated upwards to a system of courts.

Most constitutions do not go beyond the establishment of one top-level court, and perhaps a distinct Constitutional Court. The top-level court ("Supreme Court" or "High Court") is assumed to have the power to hear and judge upon any dispute in the nation unless the constitution specifies a limitation on its competence; however, it is illogical for any area of legal jurisdiction to be left unallocated.

Lower-level courts, from appeals tribunals right down, are usually established by ordinary laws, but as with any law this must be done in deference to the overriding provisions of the constitution.

Some nations' constitutions exclude a special type of judgement from the courts - the judgement of a dispute over the fitness of a high government official. This type of action, often called "impeachment", is given to the legislature to judge in many nations including the United States of America.

Entrenchment and Alteration

It has been stated that many modern constitutions are enacted (brought into force) on the basis of the approval of the people in a referendum. To guarantee the stability and integrity of the constitution, it is normally necessary to obtain popular approval for any changes. This procedure typically makes it very hard to change a constitution, as for example in Australia where a mere 8 of 44 proposals (some of them repeats) have been carried in the last 100 years. It is to be noted that Australia's constitution requires a special majority for a proposal to pass.

The difficulty of amending a constitution - or the superior authority which the voice of the people represents - means that any provision written into a constitution is considered to be "entrenched". The distinction is made in comparison to the laws made by the legislature, which can in theory be changed again by the legislature at whim. The constitution is set above whim.

Entrenchment is one reason why it may be undesirable to include transient, fashionable or politically disputed provisions into a constitution.

Preamble

A long-standing legal maxim is that a preamble is not a part of the substance of a law. This applies also to a constitutional preamble, which may or may not make declarations or statements that would have far-reaching impact if they were part of the enforceable law of the land. On the other hand, the text of the constitution itself might specifically reference the preamble in some way, in which case that reference would have a legal standing. The possibility of dispute arising from such references is a good reason to not have them.

Restrictives or Directives

The most common type of restrictive/directive provision in modern constitutions is a "Bill of Rights". Varying in extent, a list of rights and protections in a constitution is intended to prevent the enactment of laws which would reduce the liberty and freedom of the people. There are two approaches, one of which is to make an exhaustive list and the other of which is to express the basis of human rights and leave flexibility in the system for lawful and judicial interpretation.

Other restrictive or directive provisions are typically used in constitutions to ensure (by way of entrenchment, see above) that the organs and officials of government will do or not do certain things. For example, the United States Constitution contains a provision that the President must report annually to Congress, ie the traditional State of the Union address. The ability of an executive officer to make a report, or the ability of the legislature to make a law for compulsory reporting, are powers intrinsic to those roles; however, the entrenchment of the annual state of the union report in the constitution takes away the power of the Congress or the President to make other arrangements that are not in harmony with the entrenched directive.

Federation and Union Provisions

A unitary state - that is, a nation-state with only one level of government - has no need of constitutional provisions for the relationship between the levels of government. As soon as there are states/provinces/cantons or even city governments, the law will reflect in some way the sharing of powers and the allocation of exclusive powers to some levels. The constitution may hold such provisions, again for the benefit of entrenchment and pre-emininent authority above other laws.

Where a nation is newly formed from political units which had or have their own governments, the resultant union will have power sharing/division issues to be resolved. Inasmuch as the constitution is a contract with the people (see above), in this situation it also becomes a contract between the polities which form the union. This can be seen in the provisions for distribution of power, and financial arrangements between the federal and state governments, of the Constitution of Australia or the Constitution of the United States. Also in those cases, the constitution gave only a limited range of lawmaking powers to the central government, preserving the ability of the states to make laws across nearly all domestic subjects.

National Symbols

Not every constitution will contain provisions on the flag, or the language, or the location of the capital. The inclusion of such provisions in a constitution usually arises from a need to entrench these provisions as superior law, or as part of an agreement in a union or federation. They also have the character of restrictive/directive provisions in that they remove a small part of the discretionary power of the legislature.

Micronational Constitutions

Main article - commons:Category:Constitutions

With the large increase in micronations in the internet era, there has been a correspondingly large number of constitutions drafted and enacted for those nations. It is not always necessary, however, for a micronation to have a written constitution. The Republic of Delvenus had no overarching fundamental document or even a base set of rules and regulations for the entirety of its history. The Hutt River Principality is an absolute monarchy with only a Bill of Rights to constrain lawmaking.

Constitutions in Monarchies

If a nation is an absolute monarchy, there is no need for a formal and comprehensive constitution. As described above, a constitution serves to distribute the sovereign powers of a nation amongst the institutions and officers of government; but if the monarch retains these powers to himself, then a constitution will serve no purpose. (This is the case with Hutt River).

An absolute monarchy might still distribute powers and responsibilities amongst ministers, councils, legislatures or courts. A Proclamation or Letters Patent would be sufficient for such a purpose, but it is not unusual for a monarchical nation to enact a constitution to gather these orders into a single law. Unless such a constitution absolutely strips the monarch of his exclusive prerogative, the monarch would still retain the theoretical power to abolish the whole thing.

Case Study: Gotzborg

The Kingdom of Gotzborg is a monarchy with a constitution containing ten chapters (called "Parts") and 85 articles. The essence of the Constitutional Monarchy is contained in Article 17 -

Subject to the limitations laid down in this Constitution Act the King shall have the supreme authority in all the affairs of the Realm, and he shall exercise such supreme authority through the Ministers.

Entrenchment vs King's Authority

It is not clear how the Constitution was enacted. The first three Articles impose the authority of the constitution and purport to separate the legislative, executive and judicial powers between the King and Chamber of Deputies, the King, and the courts respectively. Article 7 provides for a Declaration which must be made by the King (more accurately, by the King Presumptive) prior to his accession to the throne. This Declaration binds the King to adhere to the Constitution Act, a provision which if immutable would seem to forever reduce the sovereign authority of the King accordingly. However, the absence of an enacting provision or authority could cast doubt on the entrenchment of the Constitution.

Article 36 does grant to the King an emergency power to rule by decree, but also states explicitly that "The King may not suspend the Constitution". Articles 84 and 85 provide for the amendment of the Constitution and under both articles the consent of the King is integral to the process; under Article 85 during times of "lack of participation" the King appears to have the power to enact amendments (countersigned by Ministers and subject to later endorsement by the Chamber of Deputies) however the provisions of Article 28 (provisional laws not to be at variance with the Constitution Act) is an obstacle.

The conclusion is that amendment of the Constitution is only valid when the Chamber of Deputies and the electorate approves (Article 84), hence the Constitution and its limitation of the power of the King appear to be entrenched. Therefore, although Gotzborg is a monarchy by name and style, the sovereignty has been effectively given over to the populace - only the majority support of the electorate can, whilst the Kingdom continues to be active, make any fundamental change to the governance set down by the Constitution.

'Bad Constitutions'

Bad Constitutions are Constitutions which are poorly constructed or, due to unintended consequences, cause a nation to deviate from its presumed character.

This article is not concerned with the Articles of Confederation of the United States, which proved to be too weak for the effective federalisation of the thirteen colonies; nor with the Weimar Constitution of Germany between the wars, which was successfully manipulated by Adolf Hitler to "legally" bring about a dictatorship. The focus of this article is case studies of poorly-written micronational constitutions, and the consequences thereof.

Bolsvandia

The Constitutional Code of the Foundation of the Democratic-Republic Brotherhood of Bolsvandia is a document published for the first time in 2006 by the micronation of Bolsvandia. It contains six Chapters and 62 Articles and includes provisions extending to all aspects of basic and superior law for that nation.

Analysis

It is clear that the Constitution of Bolsvandia, as published, is a document of little effect or consequence. Whilst it purports to establish a state structure for legislative, executive and judicial power, as well as many other provisions for the powers of the state and the rights of its citizens, the actual effect is summed up in two Articles:

Article 7, entitled "Organizational Principles", in section (1) purports to entrench the separation of powers and incapacity of individuals to hold multiple related offices. However, section (4) of the same Article states -

The President holds authority over all executive, legislative and adjudicative powers.

That provision would appear to unambiguously entrench a Presidential autocracy in spite of any other executive, legislative or adjucative provision of the Constitution or law. It is reinforced by Article 62 "Constitutional Acts" which states -

All powers of this Constitution are bound to the President’s Will and Authority.

These provisions are fundamentally incompatible not only with the imputed separation of powers of Article 7 section (1), or the claimed form of the State as provided by Article 2 section (1) ("democratic-republic"), but also incompatible with the allocation of powers to the legislative and judicial organs established by the Constitution. Regardless of the lengthy and convoluted provisions for the National Parliament, the Ombudsman or the courts, all of these bodies and officers are fundamentally impotent under the President's supreme authority.

Conclusion

The Constitution of Bolsvandia is a useful study in immature micronational lawmaking. On its own it is certainly injurious to the reputation of Bolsvandia, which claims a status as a macronation in the absence of any proper evidence. However, students of micronational law and history should find it interesting.

Hurmu

The original constitution of Hurmu was a one-sentence reference to the constitution of Iceland. (Words to the effect of "Same as Iceland, except replace the instances of 'Iceland' to 'Hurmu'.") However, this had fit in with Hurmu's "weirdness" theme at the time; the foreign ministry page on its website was a redirect to Baracao's foreign ministry.

In April and May 2004, a stand-alone constitution was developed which provided for a legislature ("the Parlerment") consisting of all the citizens. This legislature was empowered to make laws not inconsistent with the United Kingdom of Arminy, of which Hurmu was a subsidiary state. This constitution was notable for its unusual tone of language and spelling which, even if this was consistent with the culture of Hurmu, made interpretation tricky.

Additional Reading

It is not always helpful to read actual constitutions to understand the construction and effect of constitutions. In many cases, especially in the English-speaking world, the available constitutional texts are old and may not convey meaning easily to modern readers not schooled in the law.

The Constitution Society provides an extensive range of discussions and references, however it is overwhelmingly an American perspective. The Centre for Constitutional Studies of the University of Alberta may provide a wider perspective. Even on Usenet, the active groups are American.

In the micronational world, most constitutions can only be accessed through the websites of those nations. There are correspondingly few works of constitutional analysis, with Koen Nevens' essay on the Constitutional characteristics of the Republic of Anthelia a rare exception. An analysis of Bad Constitutions (see above) is also available.