Constitution

The Concept and Principles of Constitution Explained

In modern democratic states, constitutions basically describe principles of the state, the structures and processes of government and the fundamental rights of citizens in a higher law that cannot be unilaterally changed by an ordinary legislative act. This higher law is usually referred to as a constitution. If followed, the constitution prevents laws from being passed arbitrarily.

The content and nature of a particular constitution, as well as how it relates to the rest of the legal, social and political order, varies considerably between countries—hence, it is difficult to have a universal and uncontested definition of a constitution.

Nevertheless, any broadly accepted working definition of a constitution is oriented towards the following characteristics:

    A Constitution is a set of fundamental legal-political rules that:

  1. are binding on everyone in the state, including ordinary lawmaking institutions;
  2. concern the structure and operation of the institutions of government, political principles and the rights of citizens;
  3. are based on widespread public legitimacy;
  4. are harder to change than ordinary laws (e.g. a two-thirds majority vote or a referendum Opens in new window is needed);
  5. as a minimum, meet the internationally recognized criteria for a democratic system in terms of representation and human rights.
  6. Source: The International Institute for Democracy and Electoral Assistance (International IDEA)

As legal-political statutes, constitutions include a list of positions of governmental authority, the specific powers of these positions, and other rules for making new rules (i.e., the process for creating laws or passing constitutional amendments). In other words, Constitutions lay down the range of potential powers of government.

A Constitution acts as the official “rules of the game” for a particular political system. Michael Moran aptly described this,

Formally, a Constitution prescribes the rules of the game in a system of government: it describes the rules by which decisions in government can be made, and defines the broad boundaries of the content of those decisions. Michael Moran, Politics and Governance in the UK

An essential feature of modern democratic government is that the state is subject to explicit constraints. It cannot act arbitrarily, but has to observe some rules of the game.

An Analogy: The Constitution as Rules of the Game
Imagine two teams playing a game of football. If the team in possession of the ball could change the rules of the game and appoint its own referee, then the game would hardly be fair. One team would always win, and the other would lose—or simply stop playing. This is like political life without a democratic constitutional order. The party, faction or group in power makes up the rules, and those in opposition are excluded from a game that is rigged against them. A democratic constitutional order acts like the rules of the game, and its guardians—for example, a constitutional court—are like the referee. They make sure that everyone can play the ‘political game’ fairly.

By laying out the official powers of the various governmental institutions, a constitution places restraints on government officials. In the U.S. Constitution, for example, certain powers are given only to the legislative branch. The president has no authority to exercise these particular powers. A president who tried would be subject to impeachment and removal from office.

Many formal rules and limits on governmental power are ignored by leaders, particularly in authoritarian and totalitarian systems. Yet, without doubt, a constitution is much more effective if it is followed. If its rules are adhered to, a constitution adds legitimacy to the system, conferring what Max Weber called rational authority.

Citizens may not like a specific law, but they nonetheless accept it as legitimate because they believe that the process through which laws were made is itself legitimate. Following the consistent process for passing laws is also an important part of the condition known as the rule of law.

What Does a Constitution Typically Contain?

Divisions

Most constitutions are divided and sub-divided into parts that may variously be known as titles, chapters, articles, sections, paragraphs or clauses.

Arrangement

Constitutions vary in the arrangement of their provisions, although it is now usual for principles and rights provisions to be placed in a separate section near the beginning of the text, for the main institutional provisions to be grouped in the middle of the text, and for independent institutions, miscellaneous provisions and amendments to be placed near the end of the text.

The layout of a typical constitution might resemble the following:
  1. Preamble: a statement of the overarching motives and goals of the constitution-making exercise, sometimes referring to important historical events, national identity or values.
  2. Preliminaries: a declaration of sovereignty or of basic principles of government; the name and territory of the state; citizenship and franchise; state ideology, values or objectives.
  3. Fundamental rights: a list of rights, including their applicability, enforcement, limitations, suspension or restriction during a state of emergency.
  4. Social and economic rights or policy directives.
  5. Parliament or legislature: its structure, composition, terms of office, privileges, procedures, etc.
  6. Head of state: the method of selection, powers, terms of office.
  7. Government (in a parliamentary or semi-presidential system): government formation rules, responsibility, powers.
  8. Judiciary: Court system, judicial appointments, judicial independence, public prosecutors.
  1. Sub-national government: federal or devolved powers, local government.
  2. Provisions for referendums.
  3. Institutions of the so-called integrity branch (electoral commission, ombudsman, audit institution, etc).
  4. Security sector: commander-in-chief, any restrictions on military power.
  5. Other miscellaneous provisions: special provisions for particular groups, language laws, particular institution, etc.
  6. Amendment procedures, implementation timetable and transitionary provisions.
related literatures:
  1. Michael Moran, Politics and Governance in the UK (p. 33) Political Cultures and the Constitution
  2. Paul, Ellen Frankel, Miller, Fred D. Jr. and Paul, Jeffrey (eds.), What Should Constitutions Do? (Cambridge: Cambridge University Press, 2011)
  3. Lowell Barrington, Comparative Politics: Structures and Choices, (p. 209-10) The Constitution: A Regime’s Rules for Making Rules
  4. International IDEA, A Practical Guide to Constitution Building (Stockholm: International IDEA, 2011)
  5. Vidal, Gore, Inventing a Nation: Washington, Adams, Jefferson (New Haven, CT: Yale University Press, 2004)
  6. Ackerman, Bruce, We the People, Volume 1: Foundations (Cambridge, MA: Harvard University Press, 1993)