Major Constitutions of the World

Major Constitutions of the World

Sparta

  • Location: Spartans lived in Laconia, the fertile valley of the Eurotas River in the southeast Peloponnese.
  • Early Governance: Initially considered the worst-governed people in Greece (Herodotus, 1.65.2).
  • Unrest: Experienced the longest period of unrest in recorded history (Thucydides, 1.18).
  • The Great Rhetra: "Good order" established after adopting the "Great Rhetra" constitution.
  • Combined Elements: Spartan constitution combined monarchical, oligarchic, and democratic elements:
    • Two kings served as the executive body.
    • The Gerousia acted as an upper house.
    • Elected ephorate functioned as a lower house (Tridimas, 2024: 9).
  • Longevity: The Spartans maintained the same constitution for over 400 years (Thucydides, 1.18.1).

Enlightenment: From "Given" to "Crafted"

  • Contrast: Ancient constitutions were thought to be given by a wise man-legislator.
  • Shift in Perspective: Framers of modern constitutions gradually accepted that constitutions can be designed.
  • Thomas Hobbes:
    • Social Contract: The state of nature presents a problem rather than a solution.
    • Ius and Lex:
      • Ius: Liberty.
      • Lex: A curb on liberty.
    • Inalienable Rights: Individuals cannot surrender the right to resist attempts on their life.
    • Rules of Rationality: The sovereign may be subject to rules of rationality but can ignore them.
    • Bindingness of Contract: Contracts and promises are binding in the state of nature.
    • Commonwealth: Once created, a commonwealth cannot be cast off, nor can the sovereign be bound by a covenant.
  • Baruch Spinoza:
    • Refining Inalienable Rights: Citizens surrender rights only to the extent the sovereign can defend them.
    • Refining Bindingness of Contracts: Contracts are valid only as long as they are useful.
    • Rational vs. Irrational Person: A rational person obeys the law because they understand its point, while an irrational person obeys out of fear of punishment.
  • John Locke:
    • Conditionality on Sovereignty: Individuals transfer natural authority to secure life and property.
    • Limits on Power: The power of society or the legislative cannot extend beyond the common good.

Independence of European Colonies

  • Radical Constitutionalism in North America:
    • Self-government discourse was highly attractive during revolutions of independence in the Americas (Gargarella, 2010: 12).
    • 1776 Pennsylvania Constitution & Other Local Constitutions:
      • Unicameral legislatures.
      • Executives elected by the legislature.
      • Executives deprived of veto powers.
      • Elections for most public offices.
      • Rotation for most public offices.
      • Declaration of human rights.
  • Radical Constitutionalism in South America:
    • Self-government discourse was highly attractive during revolutions of independence in the Americas (Gargarella, 2010: 12).
    • 1st Wave of Radicalism (1810-1812):
      • Mariano Moreno's Statement, 1810: Laws enacted out of greed for slaves and settlers cannot govern free men (Chiaramonte, 2010: 462).
      • Venezuela’s Act of Independence, 1811: Proclaimed the inalienable right to destroy pacts that do not fulfill the ends for which governments were instituted (Chiaramonte, 2010: 462).
    • 2nd Wave of Radicalism (After 1848 Revolutions in Europe):
      • The Chileans Francisco Bilbao and Santiago Arcos.
      • The 1857 Constitution of Mexico.

The Lifespan of Constitutions

  • Overall Trends:
    • Most constitutions created between 1789 and 2009 have a short lifespan.
    • The life expectancy of a national constitution is 19 years (Elkins et al., 2009: 1-2).
  • Country Frequencies:
    • D. Republic: 32
    • Ecuador: 26
    • Haiti: 23
    • Venezuela: 22
    • Bolivia: 17
    • France: 14
    • Peru: 13
    • Honduras: 13
    • El Salvador: 12
    • Thailand: 12
    • Spain: 12
    • Greece: 11
    • Serbia: 11
    • Nicaragua: 11
    • China: 10
  • Pre-eminently Political Act:
    • Making a constitution is not a matter of pure engineering design.
    • It is a decision-making process by political actors.
    • Constitutions could not last long if citizens find them dysfunctional.
    • Alexander Hamilton argued in Federalist 10 that majority groups are often motivated by irrationality, interest, and prejudice (Garagrella, 2010: 105).
    • Simon Bolivar discussed that while all men are born with equal rights, they aren't equally gifted (Gargarella, 2010: 105).
  • Radical vs. Conservative Constitutionalism:
    • Radical: Egalitarian, populistic, redistribute-oriented, decentralization-oriented.
    • Conservative: Moral perfectionism, elitism, concentration of powers in a few elites.
  • Human Pettiness: The history of constitution-making is full of human pettiness.
  • Regularities: Despite trial and error, certain regularities with normative consequences have emerged in modern constitution-making (Klein and Sajo, 2012: 420).

Constituent Power & The Legitimacy of Constitutions

  • Constituent Power vs. Constituted Power:
    • Constituted Power: The existing States (especially Legislature).
    • Constituent Power: The Constituent Assembly.
  • Who Constitutes the Constituents?
    • The first act consists in the (auto) determination of the entity that will constitute the constituents in constitutional making.
    • Thomas Paine: “Theconstitutionofacountryisnottheactofitsgovernment,butofthepeopleconstitutingthegovernment”“The constitution of a country is not the act of its government, but of the people constituting the government” (Paine, 1791: 53).
    • Jennings: “Anditisalsotruethatpeoplecannotdecideuntilsomebodydecideswhoarethepeople”“And it is also true that people cannot decide until somebody decides who are the people” (Jennings, 1956: 55).
  • The 1946 Proposal (India):
    • A Union of India comprising British India and the States, with jurisdiction over Foreign Affairs, Defence, and Communications.
    • The Union would have an Executive and Legislature constituted of representatives of the Provinces and States.
    • The Provinces would be free to form Groups with executives and legislatures.
    • Referendum in the North-Western Frontier Province (West Punjab) and Sylhet would decide whether they would join India or Pakistan.
  • Discussion: Is more participatory constitution-making always more legitimate?
  • Standard Solution: Representation
    • A specifically designed body, elected by the majority, will exercise the constitution-making power.

Launching Constitutions

  • The Revolutionary Version:
    • The use of constituent assemblies as an instrument of constitutional making became a norm thanks to the authority of the French Revolution.
    • The reliance on constituent assemblies was more or less self-evident in the Latin American liberation/independence context.
    • In October 1945, the French people voted on abolishing the Third Republic and initiating a new constitution, authorized a Constituent Assembly, and had the final say.
  • Nation-State-Building Version:
    • State-Building as an Act of National Sovereignty
      • The making of the US Constitution in 1787 is an example of nation/state building.
      • This was the task of new states created after WWI and those becoming independent after WWII.
    • Constitutional-Making as an International Effort
      • Occupation forces may determine the process of sovereignty restoration after a country loses its sovereignty due to war.
      • The drafting of the Japanese Constitution under General MacArthur is an example.

The Drafting Process

  • First “Intellectual” Draft:
    • A constitutional-drafting plan starts with a first "intellectual" draft.
    • This reflects the desired political and constitutional orientation of the regime to be established.
    • Exemplary Issue: Parliamentary System vs. Presidential System
  • Scholarly Initiatives:
    • Hans Kelsen: Inclusion of a centralized constitutional court into the design of the Austrian constitutional vision.
  • Political Initiatives:
    • General de Gaulle: His speech at Bayeux (1946) presented a complete scheme for a constitution to cure the French disease of multipartyism and allow for a strong executive.

Understanding Preambles

  • "National Expression" Thesis:
    • Most constitutional preambles are framed as the quintessential expression of "national" values.
    • Preambles often:
      • Speak in the name of a specific people, either real or fictional.
      • Recount key historical events.
      • Clearly describe the form of the State accordingly.
  • Examples:
    • The Indian Constitution: WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a [SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC] and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the integrity of the Nation]; [unity IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
  • How Comparable Are They Written?
    • Length: The mean length of a preamble is 175 words, with 75% containing fewer than 300 words (Ginsburg et al., 2014: 111).
    • Enforceability:
      • In , the Indian Supreme Court cited the preamble in finding that certain constitutional amendments violated the “basic structure” of India’s Constitution.
      • In Indian contexts, preambles should describe the structure of the State which cannot be violated by an amendment.
    • Tone:
      • Happier Texts: Refer to positive words like wisdom, happiness, and blessings of liberty. (e.g., US Constitution).
      • Unhappier Texts: Reflect conflict and struggle (e.g., South Vietnam's 1965 Constitution).
    • Typology of Preamble Language
      • National-Particular: Defines the subject and the ends.
      • International-Universal
  • Defining the Subject: e.g., "We the People"
  • Defining the Ends: e.g., Development, security
  • Invocation of God: invocation of God
  • Human rights, peace: Human rights, peace

The Prototypes of Preambles: The US Constitution

  • (1) Background
    • Subject: We the People of the United States
    • Verb: do ordain and establish
    • Purpose: in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty
    • Missing Reference to God
  • Why did the author(s) of the preamble write such a manner?
    • because The very placement of its purpose gives readers a sense of suspense. What will they do to achieve those purposes?
  • (2) Preamble: Source of Law?
    • Chisholm v. Georgia (1793)
      • The Supreme Court ruled that federal courts have the authority to hear cases against states.
    • (By starting the preamble by stating that ‘We the People,’ we can see the people acting as sovereigns of the whole country, and in the language of sovereignty, establishing a Constitution by which it was their will that the State governments should be bound, and to which the State Constitutions should be made to conform.
    • Jacobson v. Massachusetts (1905)
      • The focal of the case was on the question whether the Federal Government could enforce policy initiatives (e.g., vaccination) even if the preamble of the US Constitution referred to the Blessings of Liberty.
      • The United States does not derive any of its substantive powers from the Preamble of the Constitution.
  • (3) Debates
    • (a) “Unbinding” Thesis
      • Levinson: “Noprofessorteachesstudentsthatcitingthepreambleasaprinciplesupportforone’sargumentwouldbeasmartmove.”“No professor teaches students that citing the preamble as a principle support for one’s argument would be a smart move.”
      • Story: “Thetrueofficeofthepreambleistoexpound(notcreate)thenatureandextentandapplicationofthepowersactuallyconferredbytheConstitution.”“The true office of the preamble is to expound (not create) the nature and extent and application of the powers actually conferred by the Constitution.”
    • (b) “Binding” Thesis
      • Marcin argued that the preamble provides an answer to the question of the status of foetuses or unborn children.

The Prototypes of Preambles: The French Constitution

  • (1) Background:
    • In the first sentence, the preamble refers to three documents which consist of Fundamental Rights. The documents are:
      • The Declaration of the Rights of Man and of the Citizen of 1789
      • The Constitution of the Forth Republic (1946)
      • The Charter for Environment (2004)
  • (2) Case Law
    • The Freedom of Association Case (1971)
      • There are grounds to include the principle of freedom of association amongst the fundamental principles recognised under the laws of the Republic and solemnly reaffirmed in the preamble to the Constitution.
      • The validity of the establishment of associations may not be subject to prior action by the administrative authorities, or even by the judicial authorities, even if they would appear to be invalid or would have an unlawful object.

Preambles from Other States: Canada

  • (1) Reference re Renumeration of Judges of the Provincial Court (1997)
    • The statement that the provinces desire “to be federally united into One Dominion” implies the principle of the separation of powers.
    • From the statement that the Canadian Constitution is similar in principle to that of the United Kingdom, the Court admitted a number of other fundamental principles.
      • (a) The rule of law
      • (b) The legislative privilege for Parliament
      • (c) The interdependence between democratic governance and the freedom of speech

Preambles from Other States: South Africa

  • South Africa:
    • Soobramoney v. Minister of Health, KwaZulu-Natal (1997)
      • The Supreme Court of South Africa quoted from the preamble and ruled negatively.

The Content of Preambles

  • (1) Three Elements of Preambles
    • Preambles share some characteristics divided into three categories:
      • (a) The Structure of Constitutions
      • (b) Fundamental Rights
      • (c) National Characteristics
  • (2) The Structure of Constitutions
    • (a) Constituent Power (“Author”)
      • Practically all preambles refer to the author of the constitutions.
    • (b) National Sovereignty
      • Except for Ireland, all constitutions created after World War II refer to sovereignty.
        • (i) Sovereign Nation
        • (ii) Self Determination
    • (c) Rule of Law
      • Since the 1960s, an increasing number of preambles refer to the ideal of the rule of law.
      • Law should bind public authority.
    • (d) Democracy
      • Starting the Indonesian Constitutions (1945), most preambles refer to democracy.
  • (3) Fundamental Rights
    • (a) Human Dignity
      • Including an explicit reference to human dignity in constitutional preambles is a rather less common phenomenon.
    • (b) Human Rights
      • Fundamental rights encompass human rights and citizen rights.
    • (b) Equality
      • More than half of all preambles around the world explicitly refer to the ideal of equality.
  • (4) National Characteristics
    • (a) History
      • Some preambles refer to events that have happened long ago, whilst other preambles refer to recent events.
    • (b) Ideology
      • Three preambles explicitly stand out for their very ideological content: China, North Korea, and Cuba.
    • (c) Religion
      • A reference to God or religion was the highest in 1945, when it was 63%. The years between 1990 and 1995 show a significant decrease.

Three Types of Monarchies: Parliamentary Monarchy

  • Under the parliamentary monarchy, the monarch reigns but doesn't rule.
    • ruling power stays with a cabinet, formed by a political party which secures most seats in a popularly elected parliament.
    • Glorious Revolution
    • Bill of Rights
  • Examples:
    • The United Kingdom, Canada, Australia, New Zealand
    • Belgium, The Netherland, Denmark, Sweden, Japan
  • (3) Key Features
    • (a) The source of legitimacy lies in the people.
    • (b) The monarch is the symbol of national unity and integration.

Three Types of Monarchies: Oligarchical Monarchy

  • Under the oligarchical monarchy, the monarch reigns but doesn't rule.
    • Ruling power is concentrated in the hands of a few people, who are upper-class, bureaucratic-military elites.
  • The Constitutional of the Imperial Japan
    • The Japanese Empire is reigned by the emperor, whose ancestry goes back to the country’s first emperor Jinmu (660BCE - ?).
    • Ministers shall support the emperor and be accountable to him.
  • (3) Key Features
    • (a) Popular sovereignty is not accepted in principle and also in practice.
    • (b) As such, elites rule in the name of the king or queen.

Three Types of Monarchies: Ruling Monarchy

  • A ruling monarchy is not necessarily an absolute monarchy.
    • Contemporary ruling monarchies range from:
      • (a) Absolute monarchies (e.g., Ethiopia, Saudi Arabia)
      • (b) Semi-constitutional monarchies (e.g., Morocco).

Constitutional Democracy: Presidentialism VS Parliamentalism

  • Nearly all new democracies in the 1970s, 1980s, and 1990s have had elected presidents with varying degree of political authority.
    • major dilemma in democratic regimes concerns a divergence between what representative assemblies do best and what executives must do if democracy itself is to function well.
    • Typical democratic assemblies are elected for the purpose of giving voice to the interests of localities or to the diversity of ideological or other partisan divisions in the polity and society.
    • After a series of civil wars in England (e.g., Glorious Revolution), what was originally the Crown’s ministry became a ministry subject to the confidence of a majority of the assembly.
    • Vote of Confidence
      • (i) A vote on a major piece of legislation
      • (ii) A formal vote of confidence

Functional Justifications of the Indian Bicameral Structure

  • (1) Criticism
    Several members criticised the proposal for a second chamber because it would “clog in the wheel of progress, delaying legislative action and preventing speedy transformative decisions.”
  • The Objective of Bicameralism
    • (1) The demos-constraining principle Principle behind bicameralism is that the decisions of the majority or the demos represented in the lower house ought to be tempered by the particular preferences of sub-national units represented in the upper house.
      • (a) The Indian Upper House
        Articles 108 and 109 of the Indian Constitution describe that theIndian upper house is competent to vote on and reject all bills originating in the lower house except money bills.
  • **The erosion of the capacity of the upper house of the Indian **
    Parliament to fulfil the demos-constraining and demos-enabling functions is owed to a distortion of the executive-legislative relation.

The Gaps between Theory and Practice

  • Constrained Parliamentarism: Norm
    • Hierarchical Relations
      Under the hierarchy thesis, executive authority is subordinated to legislative authority because the former’s existence is conditioned on the latter’s approval in the parliament.
    • (3) The Structure of Bicameral Government
      • Judicial Review
        The Supreme Court of India shall review if the certification of a bill by the Speaker is constitutional or not.

The Judiciary: Four Norms

  • The Judiciary: Separation of Powers
    • The judiciary is commonly understood as a separate branch of power. (1) Judicial Review (2) Judicial Independence
    • Objection to the Separation of Power
      In the People’s Republic of China, courts and other legal institutions are directly and indirectly under the leadership of the party.
      The party plays a central role in selecting and promoting judges and court officials, many of whom are party members.
  • Normative grounds
    • Doctrinal principles
    • Separation of powers | Judicial independence
    • Rule of law
    • Checks and balances-limited dependence on the other branches in order to provide a guarantee against deadlocks

Democratic Theories

  • Democratic Theories - How do they stand for?
    • (1) Free and Fair Elections
      • - Mandate Theories
    • (2) Policy-Making
      • - Delegate vs. Trustee
    • (3) Accountability Munck (2016: 4)
  • The Malaise of Democracy - What problems do we have?
    • - Decline of party identification
      • extensive evidence (based on public-opinion surveys) suggests that many, not all, western citizens are becoming more sceptical about their democracies, more detached from parties, less trustful of political leaders, and less supportive of their system of government and political institutions” (Newton, 2012: 4).
      • “By what ideals and principles, then, are citizens who share equally in ultimate political power to exercise that power so that each can reasonably justify his or her political decisions to everyone” (Rawls, 1997: 770)?