Constitutions

  • constitution- the higher law the outlines the basic principles of the state, structures and processes of the govt, and the fundamental rights of citizens

    • cannot be changed by ordinary legislative acts

  • what are the fundamentals of a constitution?

    • declare + define boundaries of the political community (can be territorial or personal)

    • declare + define the nature and authority of the political community (declares the states fundamental assumptions and says where their sovereignty lies)

    • express the identity and values of a nation/state (national flag, anthem, symbols, proclamations about history and values, etc.)

    • declare + define the rights and duties of citizens (fundamental rights of citizens/civil rights)

    • define the various institutions of government (describe what they can do)

    • divide or share power between different layers of government/sub state committees

    • declare an official religion

    • commit states to certain social/economic/developmental goals

  • legal, social, or political?

    • the constitution is all three!

    • a legal document…

      • upholds rule of law

      • makes the operational power procedurally predictable

      • is the supreme law of the land

    • a social document…

      • expresses the common identity

      • outlines socioeconomic rights

      • outlines cultural + legislative policy

    • a political document…

      • shows how state institutions are established

      • shows what powers state institutions have

      • shows how state institutions can interact with each other

  • constitutional archetypes

    • prescriptive archetype- defines the legal and political structures pf public institutions, sets out the legal limits of govt power, contain few substantive provisions

      • good for when people cant agree over values or identity

    • procedural archetype- emphasizes the foundational function of the constitution as a “basic charter of the state’s identity” which plays a “key role in representing the ultimate goals and shared values that underpin the state”

      • good for when a society wants to reestablish itself under a shared ethical baseline

    • most constitutions are a combo deal of both of these

  • what is in a constitution?

    • preamble- overarching motives and goals

    • preliminaries- a declaration of sovereignty or of basic principles of govt, name and territory of the state, state values, etc.

    • fundamental rights

    • social and economic rights/policy directives

    • parliament/legislature- the structure, composition, terms of office, privileges, procedures, etc.

    • head of state- method of selection, powers, terms of office

    • government (in a parliamentary/semi presidential)- government formation rules, responsibility, powers

    • judiciary- court system, judicial appointments, judicial independence, public prosecutors

    • sub national government- federal or devolved pwoers, local govt

    • provisions for referendums/statehood

    • institutions for the “fourth branch”/integrity branch

    • security sector- commander in chief, restrictions on military power

    • procedures for amendments

  • why do states adopt a new constitution?

    • post war reconstruction

    • desire to move beyond previous regimes document

    • change of govt system

    • a coup detat

    • post revolution reconstruction

  • no constitution

    • some states have on constitution or no single document that encompasses everything

    • UK, Saudi Arabia, Israel, and New Zealand all do not have a constitution

      • Saudi Arabia doesnt have on because they believe anything they would find/need in a constitution can be found in religious texts

      • Israels shit was never codified into one document

      • UK + NZ both have the framework for a constitution but again its not a singular document

  • inclusive bargains and precommitments

    • by principle, constitutionalism makes the state into a common possession of all the citizens, not the possession of one person/party

    • one sided constitutions- people will provide a new constitution to give effect to their vision of a better society, but this makes achieving pluralism difficult since everyone has a different view of how to better society

    • some are wary of the principle of govt by higher rules because they claim these rules embodied in a constitution bind elected reps to bargains made at the time that constitution was created, not to what is actually happening present day

    • that being said, adherence to the precommitments of the constitution is a self defense mechanism for democracy, ensuring the people can not simply vote away democracy