tutor2u | What is a Constitution?

Study Notes

What is a Constitution?

Level:
AS, A Level
Board:
AQA, Edexcel

Last updated 5 Sept 2017

A constitution is primarily a set of rules and principles specifying how a country should be governed, how power is distributed and controlled, and what rights citizens possess. It is usually written down and contained within a single document; the UK is unusual in having an uncodified constitution with many sources.

Constitutions vary in length, the famous US Constitution of 1787 being rather short, but will typically all contain guidance on matters such as those listed below:

  • Rules and guidelines for conducting elections, including when and how often elections are held, who can stand for elected office, which processes and procedures are to be applied (including details of the electoral system), and provisions for the oversight of elections.
  • The relationship between the key institutions, or branches, of government: the executive, the legislature and the judiciary. It is usual to set out precisely what powers are held by the different branches, and how individuals within them, including the chief executive, can be checked or removed.
  • The location of sovereignty (ultimate political authority) within a political system. In the case of the USA, sovereignty lies with the people (‘We the People…’) and in the UK sovereignty, by convention, rests with Parliament.
  • Ways in which a constitution can be amended: a constitution must contain a clear statement of the processes by which it can be changed. Some ‘originalists’, such as the late Supreme Court Justice Antonin Scalia, believe constitutions should be beyond reproach but most political actors and commentators view them as ‘living’ documents. That is, it should be possible to adapt and change a constitution so that it better matches the values and principles of the time, and so that problems and challenges not envisaged at the time of the constitution’s founding can be addressed within the bounds of the system. An uncodified constitution makes no distinction between ‘higher’ constitutional and other law, therefore amendment is easily attained via a parliamentary majority and no special arrangements are necessary.
  • A statement of the rights of citizens against the state and how redress might be gained. The opening 10 Amendments to the US Constitution are known as the ‘Bill of Rights’ and guarantee freedoms such as the right to a fair trial and ‘due process of law’, free speech, freedom of religion and, notoriously in the case of the 2nd Amendment, ‘the right of the people to keep and bear Arms’, a staple of presidential election campaigns. The situation is more complicated in the UK but recent statute law such as the Human Rights Act (1998) and the Freedom of Information Act (2000) serve a similar purpose, as does common law and convention, albeit these protections are not entrenched and the lack of codification also explains some confusion as to where the rights of citizens lie.
  • The overall type of government. The American constitution specifies that it will be both a democratic and a federal system, with federalism and the separation of powers enshrined in the 10th Amendment: ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’ This provides the moral and legal force behind States’ Rights.
  • What the nation stands for. A constitution begins with a Preamble, a short statement the purpose of which is to neatly summarise and crystallise the values and principles a nation hopes to embody and wishes to project to the rest of the world. They are aspirational and often quite vague statements intended to inspire citizens and shape a positive national identity and political culture. The French constitution promises the Republic will embody ‘the common ideal of liberty, equality and fraternity’; in Brazil, the constitution promotes ‘the exercise of social and individual rights, liberty, security, well-being, development, equality and justice as supreme values of a fraternal, pluralist and unprejudiced society’; Russia swears its allegiance to ‘the universally recognized principles of equality and self-determination of peoples’; India highlights Justice, Liberty, Equality and Fraternity, and Ireland promises to ‘promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations’. A closer look at preambles would reveal no shortage of ‘spin’ and a certain tendency towards the airbrushing of history but in theory a constitution encapsulates a set of values, beliefs and goals the people of a country can collectively support and often, as in the case of the racially very diverse nation of Brazil, such statements are careful constructions aimed at overcoming potential barriers to unity. In this way, a constitution goes to the heart not only of a country’s system of government but also to its image of itself.

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