OCTOBER 2004
KOÇ UNIVERSITY
FACULTY OF LAW
LAW 103: CONSTITUTIONAL LAW 1 –
GENERAL PRINCIPLES
Constitutions, types of constitution, constitutionalism,
constitution-making, constitutional amendment
Lectures by Professor A W Bradley
Senior Research Fellow,
Institute of European and Comparative Law, University of Oxford;
formerly Professor of Constitutional Law,
University of Edinburgh.
AWBradley@aol.com
CONTENTS
I.
Constitutions – what are they? and why do we need them? [paras 1-14]
II.
What do constitutions contain? and what do they tell us? [paras 15-31]
III.
Types of constitution – and constitutions as law [paras 32-50]
IV.
Constitutionalism: what is it? and does it matter? [paras 51-54]
V.
Constitution-making, constitutional amendment, and constitutional change
[paras 55-68]
1
I
CONSTITUTIONS – WHAT ARE THEY? AND WHY DO WE
NEED THEM?
Introduction – law and governments
1.
The study of constitutional law is fundamental to study of law, because
constitutional law occupies a fundamental place in a country’s legal system. Law is a
universal concept, but it is expressed in many different forms in different states –
with constitutional law, some aspects of the subject are universal, but the problems
have received many different answers in different countries. The boundaries of a
system of constitutional law are the boundaries of the state. Today constitutional
law is increasingly effected by greater European integration. And today states and
their peoples increasingly interact – through trade, human migration, tourism,
telecommunications, sport etc.
2.
There is an important link between constitutional law and international law.
See Preamble to European Convention on Human Rights (ECHR).
Convention for the Protection of Human Rights
and Fundamental Freedoms
Rome 4.xi.1950
THE GOVERNMENTS SIGNATORY HERETO, being members of the
Council of Europe,
Considering the Universal Declaration of Human rights proclaimed by the
General Assembly of the United Nations on 10 December 1948;
Considering that this Declaration aims at securing the universal and
effective recognition and observance of the rights therein declared;
Considering that the aim of the Council of Europe is the achievement of
greater unity between its members and that one of the methods by which
that aim is to be pursued is the maintenance and further realisation of
human rights and fundamental freedoms;
Reaffirming their profound belief in those fundamental freedoms which
are the foundation of justice and peace in the world and are best
maintained on the one hand by an effective political democracy and on the
other by a common understanding and observance of the human rights on
which they depend;
Being resolved, as the governments of European countries which are likeminded and have a common heritage of political traditions, ideals, freedom
and the rule of law, to take the first steps for the collective enforcement of
certain of the rights stated in the Universal Declaration,
Have agreed as follows:
Article 1
Obligation to respect human rights
The High Contracting Parties shall secure to everyone within their jurisdiction the
rights and freedoms defined in Section 1 of this Convention.
2
.
This treaty has been signed and ratified by governments of over 40 European states,
including Turkey and UK. It creates obligations at international law upon these
states, and aims to protect human rights in each country. How is it possible for
Turkey and UK to do this, with consequences for the people in both countries?
3.
The answer to this question has several parts:
(a) a government exists in each country, and its primary duty is to govern its people;
(b) one task of a government is to conduct relations with other governments, to
pursue foreign policies that benefit the country, and to make agreements (treaties)
when this is in the national interest;
(c) relations between governments are conducted subject to international law;
(d) within a country, the existence and powers of the government are accepted by the
people and recognised by the state’s constitution;
(e) by that constitution, the government has authority to negotiate treaties, but
approval of the legislature may be needed.
4.
To revert to the ECHR – under the 1924 Constitution, the Turkish Grand
National Assembly had power to enter into treaties negotiated by the government.
In March 1954, the National Assembly approved a law ratifying the ECHR. This
position was not altered by the new constitutions for Turkey made in 1961 and in
1982. Under the constitution of Great Britain (United Kingdom = UK), the
government has power to enter and ratify treaties. It ratified the ECHR in 1951 –
the approval of Parliament was not needed, but in 1998 the UK Parliament legislated
to give effect to ECHR in UK law.
Tasks of the state and its government
5.
A government has broad powers to act on behalf of the state and its people.
The Iraq war is an example of the UK Government going to war, with support of
Parliament, but against opposition of many people. A state government’s powers
include:
maintaining security of state from external attack,
control and use of armed forces,
maintaining internal law and order (the police, penal system),
providing system of justice (legal system, courts, judges, regulating legal
profession),
economic and financial powers (e g currency, taxation, customs duties, social
security, regulation of banking),
control of environment, land use and natural resources,
provision of education (schools and universities),
maintaining health of people (hospitals and clinics),
infrastructure for transport, broadcasting etc.
3
To perform these tasks, there are many public sector employees and public officials
– e g civil servants, police, army officers, tax inspectors, engineers, architects, judges
and prosecutors, school teachers. In summary, the tasks of a government are to
maintain the security and well-being of the state and its people, to maintain national
security against external and internal attack, to provide essential public services, and
to promote the well-being and prosperity of the people.
6.
Individuals benefit from acts of government – but a government has great
power compared with the private individual, and some individuals suffer from the
acts of government. “Individual and the state” a sub-title for constitutional law?
This is too simplified, since all individuals belong to groups – social, economic,
ethnic, geographical, religious, cultural, professional etc. So governments have to
take account of needs of many different groups, local communities and levels of the
population. In a democracy, individuals and groups have freedom to take political
action and have access to governmental power. They wish to gain as much benefit
from government policies as possible, but to suffer as little detriment as possible.
(E g what benefits do citizens receive in return for paying their taxes? Equally, what
would be quality of life in state where no government existed?)
The subject-matter of constitutional law
7.
International law is concerned with relations between states. Constitutional
law is the law concerned with structure of government within a state:
(a) existence of national government and various public bodies that form part
of government
(b) the powers and duties of the government and these public bodies
(c) the relations between different levels of government and these public
bodies
(d) the relations between the people and the state – including rights and
duties of the people.
In a state where the existence of government is founded on the national constitution
and on the ‘rule of law’, all organs of the government are authorised by constitutional
law, directly or indirectly. The same applies to their powers, the structure of control,
and the way in which the government and other public bodies are accountable to the
people.
Constitutional law and the legal system
8.
Constitutional law is a branch of law. While some aspects of law are
universal, many aspects are peculiar to a particular country. Each state today has a
legal system - that is, a body of law that applies to the conduct of human affairs in
that country. Many branches of law are classed under heading of private law –
governing relations between private persons: property, succession and inheritance,
family law (including marriage and status of children), contract law, civil wrongs and
injuries, employment law. Other branches of law are classed under heading of
public law – constitutional law, administrative law, criminal law, public finance and
4
taxation. Public law governs structure of government, powers and duties of public
authorities, their relations with private persons, rights and duties of the individual. In
every state, there is provision for making new laws (legislation), the settlement of
disputes about rights and duties (adjudication) and for enforcing the law. Examples
– criminal law, taxation, election law.
9.
In principle, the extent of a national legal system is limited by the state’s
boundaries: so, the power to make new laws is exercised by the national legislature
(parliament); and the courts exercise jurisdiction over events and transactions
within state territory. State boundaries are today all-important – but this has not
always been so. For example, some aspects of law have often been linked with
religion – and religious faith extends across national boundaries. Empires from the
past have left their mark on national law today – e g the impact on many European
legal systems of Roman law. Legacy of the British empire was to export the English
language and English law (the ‘common law’) (along with trade) to the ‘New World’
(North America and Caribbean) and then to areas of Africa, Asia, and Australasia.
In 19th century, the age of European imperialism, other colonial powers such as
France, Spain, Portugal did the same. Africa today includes some English-speaking
and some French-speaking countries – and this determines whether they have a legal
system based on English law or on French law.
10.
To understand what the law is today in a particular country, we need to know
(a) the legal ‘family’ to which that legal system belongs; and (b) its recent legal
history – what laws have been made by the legislature, how they have been
interpreted by the courts, how the legal profession is organised etc. Value of
comparative law in helping us to understand our national legal system – and the
legal system in other countries. So too a comparative approach will help us to
understand our own country’s constitutional law. But it may be easier to compare
the law on contracts, or marriage in different countries – than constitutional law.
Why should this be so?
State sovereignty, political authority and legitimacy
11.
Both international law and constitutional law are concerned with existence of
the state, and with state sovereignty. Two important aspects of state sovereignty
are related, but really need to be kept separate:
(1) Sovereignty is the power of an independent state to govern itself and
conduct its national affairs – this exists as a basic principle of international law
(‘external aspect’). By exercise of its sovereignty, a state conducts relations with
other states and with international organisations e g by joining the United Nations –
in international law, state sovereignty creates a fence surrounding the state, which
generally may not be entered by other states.
(2) Sovereignty also is an aspect of a state’s constitutional law (‘internal
aspect’). Constitutions help to answer the question: ‘who within this state exercises
sovereign power’? In the past, the answer was often a person – the Emperor or the
King, literally ‘the sovereign’ – and ‘sovereignty’ might be treated as equivalent to
‘absolute power’. Today, the answer is likely to be more complicated and refer to an
5
institution of the state (the Government, Parliament, the electorate, the people etc).
By the Turkish Constitution of 1982, Article 6:
Sovereignty is vested in the nation without reservation or condition.
The Turkish Nation shall exercise its sovereignty through the authorised
organs as prescribed by the principles laid down in the Constitution.
The right to exercise sovereignty shall not be delegated to any individual,
group or class. No person or agency shall exercise any State authority
which does not emanate from the Constitution.
On this basis, state sovereignty is vested in ‘the nation’ – its exercise must at all times
be carried out in accord with the Constitution.
12.
In fact ‘sovereignty’ is a difficult concept, in its various forms. A different
question is: ‘who exercises political authority within the state?’ Political authority is
the power to govern a state, to command the apparatus of government – to ‘sit in
the driving seat’, directing the way in which the state is developing. Study of a state’s
constitution may help to tell us who exercises political authority and the basis for
that authority. A question about political power is not in essence a question about
law – it seeks knowledge about people and institutions, how they are organised – and
may also seek knowledge about how the economy is structured, or about military
command and control. But if the question is about political authority, this involves
knowing not just who exercises the strongest force (who commands the biggest firepower?) but also knowing whose authority is worthy of respect and ought to be
obeyed. (Contrast differing ways of being a parent, or head teacher of a school, or a
professor, or an employer.) A useful word here is legitimacy.
13.
One reason for existence of a state’s constitution is the need for a
government to have legitimacy. So, a constitution provides the rules that determine
who is to govern - how a state leader comes into power, what the leader’s term of
office may be, how another leader may be chosen (compare the US Constitution –
the Bush-Kerry election in November 2004). Assume a monarchy, where the king
exercises ultimate political authority : in that monarchy, there will be rules that
determine who succeeds when the king dies (for instance, his eldest son). If the king
dies, and his eldest son succeeds to the throne at once, with a ceremony of
coronation, the new king has the legitimacy of succession in accordance with the
rules. But if the king dies, and someone with influence does not want the eldest son
to succeed, the succession may be contested. In a struggle for power, the rules of
succession may be broken if someone else succeeds in gaining power. The new king
cannot claim legitimacy for this succession. But he will probably want a ceremony of
coronation – and in time, he may acquire legitimacy through success as a ruler. (In
some countries, who becomes head of government is known as soon as the results
of an election to parliament are known. In other countries e g Netherlands, once
election has been held, this begins a period of negotiation between political parties to
reach agreement on what grouping of parties (coalition) will form the new
government. Even if constitution provides for election of the leader by the people,
result of election may not be clear – e g USA in 2000, did Bush or Gore win the
presidential election? After much uncertainty, the Supreme Court held that under the
6
rules Bush had won; this settled the question and conferred legitimacy on Bush’s
presidency.
14.
We have seen (a) the connection between constitutions and the legal system
and (b) the connection between constitutions and the political process. Because of
their subject-matter, constitutions have great political significance and also legal
significance. In a democracy, a country’s constitution sets down the principal rules for
the political process - and these rules have the status and force of law.
II
WHAT DO CONSTITUTIONS CONTAIN? AND WHAT DO
THEY TELL US?
The two meanings of ‘constitution’
15.
There are at least two important meanings of the word ‘constitution’ applied
to a state.
A. – ‘constitution’ as a written document
16.
The most obvious meaning today is a single written document that contains the most
important rules about the system of government and political authority within a state. This we
can call a written constitution – it is essentially one document (or sometimes several
linked documents e g the original constitution and later amendments to it).
Examples (a) the Constitution of the USA, 1787, plus the Bill of Rights 1791 and later
amendments – altogether 26 amendments.
(b) the Constitution of the 5th French Republic, adopted in 1958 when it replaced the
Constitution of the 4th French Republic
(c) the Constitution of the Republic of Turkey made in 1924, heralding fundamental
changes in the nature of the Turkish state; this was replaced by the Constitution of
1961, which in turn was replaced by the Constitution of 1982, with later
amendments.
17.
Virtually all states today have such a constitution. So also do many entities
that are not states - a political party, a trade union, a business corporation, a war
veterans association, a university, a sports club and so on. Such a document (or
documents) will set out the name, aims and objects of the association, the rules of
membership, election of officers, keeping accounts, annual general meetings and
special meetings, amending the constitution and so on. At an international level, the
UN Charter is the ‘constitution’ of the United Nations – providing for the General
Assembly, the Security Council, the Secretary-General, etc.
The International
Olympic Committee has a constitution – providing for a structure of committees
including officials and national representatives.
So does the International
Association of Constitutional Law (IACL) (see documents).
7
18.
The English word for this document is often ‘constitution’ – but it may be
called Rules, Statute, Charter, or (for an international body) Treaty or Covenant; for
a commercial enterprise (company), in English law the term is ‘Memorandum and
Articles of Association’. What can we expect to find in such a document? The
document provides the rules that create and govern the entity, and the relations of
the members to each other and to the association. In the case of many entities, the
rules bind the parties because they have entered into a contract with each other. At
the international level, states agree to a treaty creating an international organisation
(e g UN Charter, or European Convention on Human Rights) . The basis of such an
association is the agreement of the members. Members may choose whether or not
to belong. But individual members cannot insist on getting their own way all the
time – otherwise there will be no agreement.
19.
The problem of consent / agreement is particularly difficult with the
constitution of a state - when and how is the agreement of the citizens given to it?
can the agreement of the citizens be withdrawn? if so, when and how? and when and
how can the details of the constitution be changed? These questions are discussed
later.
B. – ‘Constitution’ as a system of government
20.
There is another meaning of constitution that is older than ‘written
constitution’ – this is: “the whole system of government of a country: the collection of rules,
principles and practices which establish and regulate the government of the people”. This meaning
of ‘constitution’ does not refer to a single document, but to the whole collection of
institutions, principles, rules and customs that together make up the system of
government.
21.
Take the example of an anthropologist observing the life of a remote tribe or
an island population. Assuming that the people live in reasonable stability, the
anthropologist can describe how they actually live (this is a matter of observation) –
role of the family, who does the cooking, who goes hunting, who cultivates food,
how marriages take place, how disputes are settled (regarding land, cattle, marriages,
thefts, drunkenness etc), place of the elders, religious observance – very much a
matter of custom and tradition: for example, in New Zealand, the practices of the
Maori people before the arrival of the English in the 1830s – a large meeting house
found where a tribe had settled, so that people could meet for discussion and
feasting on special occasions. In a primitive community, nothing may be written But
settled practices may exist. These may be so definite and regularly observed that we
can say that rules are recognised – but customary rules may change if elements of
life change, whether by a gradual process, or by decision of the people in a tribal
assembly. Hence the concept of customary law, that can include customary rules
for the conduct of community life, for the self-government of the community.
“There is as much a Maori law as there is a Maori language” (Justice Durie, 1996).
8
22.
To transfer this back to the setting of a modern government: an unwritten
constitution, in the sense of a system of government, is the collection of customs,
practices and rules that determine how the people are governed.
23.
Virtually every country in the world has a written constitution. But the
United Kingdom, Israel and New Zealand do not – they only have a constitution in
meaning B - their constitution is ‘unwritten’. Parts of their system of government are
written, but there is no single document bringing all the key rules together. This
allows scope for development and evolution – the constitution is ‘flexible’ and events
can change what happens. For example, the UK is a monarchy – and the sovereign
is Queen Elizabeth II. The government ministers are the Queen’s officials – as are
the judges, army officers, civil servants etc. The Prime Minister (Mr Blair) was
‘appointed by the Queen’. If the Queen is such an autocrat, how can such a
monarchy be a democracy?
In reality, there is a Parliament, containing two Houses. The House of
Commons is elected by the people, and elections to the House must be held at least
every five years. Political parties exist and democratic activity is organised through
the parties. Why did the Queen appoint Mr Blair as PM in May 1997? Because she
had no choice – it was her duty to do so, as Mr Blair had won the general election as
leader of the Labour party with a huge majority – and he continued to be Prime
Minister by winning the general election in 2001. So, an account of the ‘unwritten
constitution’ of the UK must include the system of elections to Parliament: that
system is based on certain laws made by Parliament (the Representation of the
People Acts), and it works because of the system of political parties.
24.
What can we learn from all this (unwritten constitutions) that will apply to
countries like France, Germany, Turkey and USA that each have a written
constitution? In these countries, we must not exaggerate what we can learn from
reading the written constitution. What if the written document does not work? or if
it is not intended to work? Sometimes, a country’s written constitution, or parts of
it, may simply have no practical effect - e g the constitution of Stalin’s Russia, 1936
claimed to ensure the protection of human rights in Russia. A constitution may on
paper look democratic, with provision for regular elections – but what if the country
is not in fact democratic, if only one political party is allowed to exist, if elections are
rigged by the government in power, or if elected Members of Parliament vote for the
politician who pays them most? A written document does not always work in
practice. So a ‘constitutional anthropologist’ is needed to describe what happens,
and this includes assessing the degree of respect that the government, political
leaders, and powerful groups have for the written constitution. Do the words on
paper have a practical effect?
25.
In countries that take their constitution seriously, the written constitution is
the most important component of the whole structure of government, and the
values expressed in the constitution will be found to be a reality. Even then, to
discover how the constitution actually works, we need to observe the practices of the
political leaders, the parties, organs of the state, public opinion and so on. For this
reason, every country in the world that has a written constitution (meaning A) also
has a constitution (meaning B, the actual system of government). A country is
9
fortunate if the written constitution is accepted as the backbone of its system of
government. In countries such as Stalin’s Russia, the actual system of government
was very different from what was contained in the written constitution.
26.
Changes in political practice may lead to changes in the written constitution.
Example – until Franklin Delano Roosevelt became US President in 1932, no
President had served more than two terms in office, but the written Constitution did
not prevent this. Roosevelt challenged this custom: he was nominated and elected
for a third term in 1940, and for a fourth term in 1944! Result: in 1951, Amendment
22 was made to the Constitution:
No person shall be elected to the office of the President more than twice,
and no person who has held the office of President, or acted as President,
for more than two years of a term to which some other person was
elected President shall be elected to the office of the President more than
once. …
27.
We have seen that a constitution is important both as a matter of law and in
terms of the political process. A lawyer who is studying a constitution is likely to
concentrate on legal questions (what does the text say? what does the text mean?
what effect does it have on decisions by the courts?) – a political scientist will be
much concerned with the political impact of the constitution (what part does the
written constitution actually play in the whole system of government? what are the
main political forces in the country? is the government responsive to public opinion?
etc).
What is a national constitution likely to contain?
28.
Typical contents of a constitution (RT followed by a number refers to an
Article in the Constitution of the Republic of Turkey 1982)
1/
Preamble – introduction, with source of authority
US Constitution 1787:
We the People of the United States, in Order to form a more perfect
Union, establish Justice, insure domestic Tranquillity, provide for the
common defence, promote the general Welfare, and secure the blessings
of Liberty to ourselves and our Posterity, do ordain and establish this
Constitution for the United States of America
2/
Name and description of territory; type of state (monarchy, republic
etc) (RT 1)
3/
symbols of statehood e g state capital, national languages, national
flag, national anthem (RT 3)
4/
fundamental principles of the state e g democracy, equality of all
people, religious status, respect for international law (RT 2,4,5)
10
5/
outline of essential principles of constitution and organisation of state
(RT 6-10)
6/
legal status of the constitution (RT 11)
7/
fundamental rights and duties of the citizen – what these are, and
how they are protected (RT 12-40)
The original text of the US Constitution did not include a ‘Bill of Rights’ –
this was added in 1791 by ten amendments (additions) to the Constitution.
Examples: Amendment I
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech,
or of the press, or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.
Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.
8/
social and economic rights and duties (or, social and economic
principles that state must observe) (RT 41-65)
9/
political rights and duties of the citizen (RT 66- 74)
10/
main institutions (organs) of the state –
(a) the executive (‘the government’) – composition and basic rules (e g
whether a parliamentary executive or a presidential executive) – how
President and Prime Minister elected or appointed – duties of
President, Prime Minister and other Ministers - functions of
executive - relationship between executive and legislature – legal
status of executive – powers in event of emergency – the civil service
and `administration (RT 101-122)
US Constitution: Article II, section 1
The executive Power shall be vested in a President of the United
States of America. He shall hold his Office during the term of
four Years, and, together with the Vice President, chosen for the
same Term, be elected, as follows ….
(Article II then specifies some of the US President’s powers and
duties – e g he is to be commander in chief of the army and navy,
power with the advice and consent of the Senate to make treaties,
appoint ambassadors, judges etc)
(b) the legislature – composition (one or two chambers in
Parliament?)– the electoral system – the frequency of elections –
11
conduct of elections - the functions of the legislature - the legislative
process – oversight of the executive (calling the executive to account,
motions of confidence) – other aspects (e g status of elected
members) (RT 75-100)
US Constitution: Article I, section 1:
All legislative Powers herein granted shall be vested in a Congress
of the United States, which shall consist of a Senate and House of
Representatives.
(Article I then sets out detailed rules for the composition of the two
Houses of Congress, for the process of legislation by Congress and
for the subjects on which Congress may legislate)
(c) the judiciary and the courts – organisation of civil and criminal
justice - appointment of judges – independence of the courts and the
judiciary – specialised courts (e g Constitutional Court? Council of
State? military or administrative courts?) (RT 138-160)
US Constitution: Article III, section 1:
The Judicial Power of the United States shall be vested in one
Supreme Court, and in such inferior Courts as the Congress may
from time to time ordain and establish. The Judges, both of the
supreme and inferior Courts, shall hold their Offices during Good
Behaviour; and shall, at stated Times, receive for their Services, a
Compensation, which shall not be diminished during their
Continuance in Office.
10/
whether there is a ‘separation of powers’ (this is implied by RT 7-9)
11/
other aspects of public administration and public finance (RT 123137, 161-173)
12/
territorial structure of the state (regions, provinces, counties? a
federal system?)
13/
amendment of the constitution – need for special majority? special
elections? need for approval by referendum? (RT 175-177)
The US Constitution, Article 5:
The Congress, whenever two thirds of both Houses shall deem it
necessary, shall propose Amendments to this Constitution, or, on the
Application of the Legislatures of two thirds of the several States, shall
call a Convention for proposing Amendments, which, in either Case, shall
be valid … as Part of this Constitution, when ratified by the Legislatures
of three fourths of the several States, or by Conventions in three fourths
thereof ….
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29.
No national constitution will contain all the detailed rules that exist on all
these matters – a constitution may require the legislature to make detailed laws on
any subject (e g the conduct of elections, registering political parties, remedies for
breach of fundamental rights) - in some countries, these laws are called ‘organic
laws’ and have a legal status superior to ordinary laws.
What we cannot learn from reading a country’s constitution
30.
Such matters as the following.
>
Is the constitution is respected in practice? Does it enable citizens to
live in harmony? Some beautifully written constitutions do not work!
>
Does the political system allow citizens a free and fair choice of their
representatives? or is it tarnished by corruption and bribery of voters and
members, or by violence or intimidation?
>
What is the influence of big companies on the system of
government?
>
Do the people of the country live together in harmony and without
discrimination between different ethnic groups?
>
What is the role of the courts and the judges? are they seen as being
independent in carrying out their duties?
>
Are fundamental rights and liberties respected? e g What freedom of
expression is enjoyed by the media? Are the police seen as fair and effective
guardians of law and order?
What values are often associated with constitutions?
30.
These include democracy, including the right to participate in elections
accountability of government
‘limited government’
separation of powers
checks and balances
government according to law / the rule of law
certainty, stability and continuity, formality
importance of protecting fundamental rights
equality of all people (no discrimination or harassment)
What questions can be asked about a written constitution?
31.
These include What do the words in the constitution mean?
How can we find out what it means?
Who has authority to interpret the constitution?
How are disputes about the constitution settled?
13
Is the constitution binding on the government or the legislature?
What is the legal status of the constitution?
Who has ultimate authority to enforce the constitution?
Is it easy or difficult to amend?
These are often difficult questions, in particular questions about interpretation and
ultimate authority. In reality, nearly all modern states would find it very difficult to
exist without a written constitution – all states need a framework for the conduct of
government. It is often useful that political and social disputes within a country
should have a constitutional focus – so that the disputes can be settled with
reference to values set out in the constitution.
III
TYPES OF CONSTITUTION
32.
Constitutions today show many differences – they reflect vast differences in
organisation of government and politics in different states (economic, cultural, social,
geographical etc). In history, different kinds of government have included
– rule by hereditary king (monarchy) (whether absolute or ‘constitutional’) contrast a republic
- uncontrolled personal rule (autocracy, dictatorship)
- rule by nobility or hereditary chiefs (aristocracy) (‘government by the best
citizens’)
- rule by select few (oligarchy) (often a self-perpetuating group)
- rule by military leaders
- rule by wealthiest people (plutocracy)
- rule by the people, for the people (democracy) – including both direct and
indirect (through elected representatives) democracy
- rule by religious leaders and priests (theocracy)
- rule by officials and administrators (bureaucracy).
33.
In history, some ‘mixed’ constitutions (or ‘balanced’ constitutions) have been
successful – e g Great Britain, in 18th and 19th centuries, was governed by king or
queen (who appointed Ministers), with two Houses of Parliament (1) House of
Lords (the nobility and bishops) and (2) House of Commons (elected by the
common people). Contrast US Constitution – President (directly elected every 4
years), House of Representatives (elected every 2 years on population basis) and
Senate (elected every 6 years, 2 senators for each state) – Supreme Court (judges
appointed for life) - ‘checks and balances’ and separation of powers.
34.
Another distinction in government is between a unitary state and federalism. In
unitary state, there is a centralised structure of government at national level - all
important powers are vested in national executive and legislature – levels of local and
regional government may exist, but only as a result of national decisions taken from
time to time – and powers and boundaries of local and regional government may be
changed.
In a federal state, two levels of government are recognised in the constitution
– ‘constitutional sovereignty’ is divided between the two levels. Examples include
14
Australia, Canada, Germany, India, Malaysia, USA.
In every federal system,
legislature and executive exist at both levels, so there are two levels of elections.
Powers have to be divided between the two levels, and this can be done in many
different ways. Usually, some matters reserved to federal level (armed forces,
defence, international relations, currency, postage, citizenship and immigration, interstate trade). Other matters of domestic government are performed at level of state,
region or province (agriculture, education and social services, environment, housing,
roads and transport etc). There may be one or two levels of courts, reflecting the
importance of the distinction between federal law and law of regions/provinces.
35.
Some federal systems are created from a grouping of separate states (who
want more integration, without losing their identity). (Is the European Union
becoming a federal system?) Other federal systems are created when a large and
diverse state is facing demands for regional autonomy. Are federal constitutions
likely to be unstable? Critics of federalism say there will inevitably be pressures
either for greater power at centre, or for greater power for regions / provinces?
Allocation of functions between the two levels is governed by the federal
constitution – animosity is surely possible between the two governments, but in
practice co-operation and partnership (‘co-operative federalism’) may make the
constitution work. In a confederation, there is less integration than in federalism –
states retain their identity at international law, but come together for some functions.
(If the European Union is not a federal system, it is surely a confederation.)
36.
An older form of government is that of an empire – where one state exercises
sovereignty over many other territories: the imperial power directs the empire’s
international relations and has ultimate authority over all the dependent territories.
Empires are vulnerable over time to pressures for self-government and autonomy. In
the former British Empire, (a) some overseas territories took their independence by a
successful revolution (e g USA 1776), (b) some evolved peacefully into independent
states over many years (e g Australia, Canada, New Zealand), and (c) many territories
were granted their independence (e g India in 1950, and very many other states since
then). It was never the practice in the British Empire to permit overseas territories
to be represented in imperial Parliament. Contrast position of Gibraltar today, in
respect of elections to the European Union Parliament.
37.
From a governmental viewpoint, one important distinction in constitutions is
between a presidential executive and a parliamentary executive. The distinction comes from
the different relationships possible between the Executive and the Legislature. In
the USA, there is a presidential executive: The US President is elected by the people; he
(and his staff, including the Secretaries of State) cannot be members of Congress. In
practice, the President may be a Republican, and one or both Houses of Congress
may be Democrat. In this system, the President is not directly accountable to the
two Houses of Congress – except that (a) Congress have legislative powers, including
powers over the national budget; (b) by the Constitution, there is a procedure for
removing the President from office by means of impeachment.
15
US Constitution, article II, section 4
The President, Vice President and all civil Officers of the United States,
shall be removed from Office on Impeachment for, and Conviction of,
Treason, Bribery, or other high Crimes and Misdemeanours.
US Constitution, article I,. section 3
The Senate shall have the sole Power to try all Impeachments. … When
the President of the United States is tried, the Chief Justice shall preside.
and no person shall be convicted without the Concurrence of two thirds
of Members present.
Judgment in Cases of Impeachment shall not extend further than to
removal from Office, and disqualification to hold and enjoy any Office of
honor, Trust or Profit under the United States; but the Party convicted
shall nevertheless be liable and subject to Indictment, Trial, Judgement
and Punishment, according to Law.
So, except if a US President is charged with having committed ‘treason, bribery or
other high crimes and misdemeanours’, he cannot be removed from office by
Congress.
38.
Where there is a parliamentary executive, the head of government usually owes
that position to being the leader of the party that has the majority in the elected
house of the legislature. For instance, in the United Kingdom, after a general
election the leader of the winning party becomes Prime Minister. The PM and all
Ministers are chosen by the Prime Minister from members of the two Houses of
Parliament. Under the doctrine of ministerial responsibility, the government owes both
collective and individual responsibility to the House of Commons for its policies and
decisions. If the government loses the support of the House of Commons (for
instance, if the House votes for a motion of ‘no confidence’ in the government), the
Prime Minister must either resign or advise the Queen to call a general election.
Procedure in Parliament depends on the fact that the Ministers who form the
Government sit in Parliament: in the House of Commons, the Government
Ministers sit on the ‘front bench’ on one side, with their supporters behind them; on
the opposite front bench, sit the leaders of the Opposition, with their supporters
behind them.
39.
This system of a parliamentary executive means that the government is
responsible (accountable) to the elected house, and must be sensitive between
general elections to the changing views of the elected members. Members of
Parliament can ask questions of Ministers. And the Government may be voted out
of office by the elected House of Parliament. This power to remove the
Government has sometimes been abused by Parliaments, leading to too much
instability. See the German Constitution, Article 67, by which the Bundestag (which
elects the Federal Chancellor on the proposal of the Federal President) can express
its lack of confidence in the Federal Chancellor only by electing a successor with the
majority of its members, and by requesting the Federal President to dismiss the
Federal Chancellor.
16
40.
The system of a parliamentary executive is often found in countries which
retain their king or queen as Head of State, but only with symbolic and dignified
functions, but also have a Head of Government who is an elected politician. So too,
in Germany, the Federal President is Head of State, and the Federal Chancellor is
Head of Government.
41.
In practice, some constitutions provide important variations on these two
models of presidential executive and parliamentary executive. In France, under the
Constitution of the Fifth Republic, the President has many important executive
functions, especially in regard to foreign relations and defence – he also appoints the
Prime Minister, and this appointment who must reflect the majority in the elected
chamber. So it is possible for there to be a President of one party, and the Prime
Minister of an opposing party – and executive functions are divided between them.
42.
The Constitution of the Republic of Turkey provides for the President of the
Republic to be elected for seven years by the Turkish Grand National Assembly
(voting by secret ballot with a two-thirds majority). The President is the Head of
State, whose duties are in Article 104 of the Constitution. The President appoints
the Prime Minister from among the members of the Assembly (article 109); the
Prime Minister nominates (from the Assembly or from those eligible for election as
deputies) the Ministers who with him are to form the Council of Ministers (article
109); a vote of confidence must be taken when a new Council of Ministers is formed
(article 110); and votes of confidence may occur while the Government is in office
(article 111). If the Government does not receive the vote of confidence, this must
lead either to a new Council of Ministers being appointed or to new elections.
(Article 116).
Law and the constitution
43.
We have seen that constitutions have both a legal and a political significance.
The subject-matter of constitutions is political,. but the constitution provides the
legal framework within which political parties and politicians conduct their struggle
for power. When a constitution is working well, there will be much consensus about
the rules that apply to government. In most sporting activities (football, tennis or
chess), games may be played vigorously, but the players do not waste time arguing
about what the rules should be. A referee or umpire may be needed to apply the
rules, and may have to decide disputes between the players (was there a foul? was the
player off-side when he scored the goal? should a penalty be awarded? who won the
race?) but it is not the referee’s job to decide what the rules should be. In the case of
a national constitution, the role of ‘referee’ or ‘umpire’ is often played by a court
with jurisdiction over the constitution. This may be one of the ordinary civil or
criminal courts, but in many countries there is a Constitutional Court with
jurisdiction to decide constitutional cases. In such cases, the court has to decide
what the relevant constitutional rules are, how they should be interpreted, and how
they should be applied to the dispute that has reached the court. But what force in
law does a rule in the constitution have?
17
44.
A written constitution generally has at least the force of a law that has been
enacted by the legislature. But it often has more force than this. Many constituions
have the status of ‘higher law’, ‘fundamental law’, or ‘basic law’. See part I of the
Turkish Constitution, especially Article 11 :
The provisions of the Constitution are fundamental legal rules binding
upon legislative, executive and judicial organs, and administrative
authorities and other agencies and individuals.
Laws shall not be in conflict with the Constitution.
45.
This gives the Constitution a higher force of law than ordinary legislation.
Why is this possible? In legal theory, because the Constitution was made before the
legislature was formed – so the Constitution created the legislature, and the powers
of the legislature derive from the Constitution. The same status as ‘higher law’
applies to the US Constitution, which created the USA out of the 13 former British
colonies. Thomas Paine, an Englishman who actively supported both the US and the
French revolutions in the late 18th century, wrote:
A constitution is a thing antecedent to a government, and a government
is only the creature of a constitution. The constitution of a country is
not the act of its government, but of the people constituting a
government. It is the body of elements, to which you can refer, and
quote article by article; and which contains the principles on which the
government shall be established, the manner in which it shall be
organized, the powers it shall have, the mode of elections, the duration of
parliaments …; the powers which the executive part of the government
shall have; and, in fine, everything that relates to the complete
organisation of a civil government, and the principles on which it shall
act, and by which it shall be bound. … A constitution is not the act of a
government, but of a people constituting a government; and government
without a constitution, is power without a right.
(from The Rights of Man, 1792, written as a defence of the French Revolution
in 1789).
46.
This point can be expressed as a matter of legal logic, relating to the
hierarchy of laws: the Constitution is the fundamental rule on which the
government of a state is based, because it is the source of the powers of the
legislature, the executive and the judiciary. Therefore, the constitution both creates
the organs of the state – and it also limits their powers.
This does not mean that every constitution was created before the
government came into existence. Nonetheless, Paine refers to the two functions of a
constitution: (1) ‘as creating a government and giving it powers’; and (2) ‘as
regulating and restraining the powers so given’ (p 214). So the legislature may not
make laws contrary to the constitution, nor may the executive use its powers in a
manner contrary to the constitution, nor may the judiciary decide cases against the
constitution.
47.
This seems fine in principle – but who decides whether the powers granted
by the Constitution have been exceeded? Where there is a dispute between private
persons over a matter of private law (e g which driver caused the road accident? did
18
the builder of a house build it in accordance with the architect’s plans? was a worker
properly dismissed for stealing money from his employer?), we accept without
question that the dispute must be settled by the courts.
Disputes about
constitutional law are more difficult to deal with than private law disputes. The
reasons why they are difficult include –
(a) the dispute will often have a political content
(b) one party to the dispute is likely to be the state, or at least a government
Minister or a government department; and such bodies are powerful (and
they may be more powerful than the courts)
(c) the dispute may turn on what the Constitution means
(d) the courts themselves are created by the Constitution
(e) the dispute may be about legislation passed by the national legislature.
48.
These issues all arose in the famous decision of the US Supreme Court in
Marbury v Madison (1803), given for the Court by Chief Justice John Marshall. The
Court decided that an Act passed by the US Congress was in conflict with a rule in
the US Constitution. This led to the really difficult question in the case – was the
Supreme Court required to give effect to the Act of Congress, or to the
Constitution? The Court held that it must give effect to the Constitution, and that it
could treat the Act of Congress as void (a nullity).
The question of whether an act, repugnant to the constitution, can
become the law of the land, is a question deeply interesting to the United
States …
That the people have an original right to establish, for their future
government, such principles as, in their opinion, shall most conduce to
their own happiness is the basis on which the whole American fabric has
been erected. The exercise of this original right is a very great exertion;
nor can it, nor ought it, to be frequently repeated. The principles,
therefore, so established are deemed fundamental. And as the authority
from which they proceed is supreme, and can seldom act, they are
designed to be permanent. …
The powers of the legislature are defined and limited; and [so] that those
limits may not be mistaken, or forgotten, the constitution is written. To
what purpose are powers limited, and to what purpose is that limitation
committed to writing, if those limits may, at any time, be passed by those
intended to be restrained? ….
The constitution is either a superior paramount law, unchangeable by
ordinary means, or it is on a level with ordinary legislative acts, and, like
other acts, is alterable when the legislature shall please to alter it. …
Certainly all those who have framed written constitutions contemplate
them as forming the fundamental and paramount law of the nation, and,
consequently, the theory of every such government must be, that an act
of the legislature, repugnant to the constitution, is void. …
If an act of the legislature, repugnant to the constitution, is void, does it,
notwithstanding its invalidity, bind the courts and oblige them to give it
effect? Or, in other words, though it be not law, does it constitute a rule
as operative as if it was a law? …
19
It is emphatically the province and duty of the judicial department to say
what the law is. … If two laws conflict with each other, the courts must
decide on the operation of each.
So if a law be in opposition to the constitution, … the court must
determine which of these conflicting rules governs the case. …
If then, the courts are to regard the constitution, and the constitution is
superior to any ordinary act of the legislature, the constitution, and not
such ordinary act, must govern the case to which they both apply.
Those, then, who controvert the principle that the constitution is to be
considered … as a paramount law, are reduced to the necessity of
maintaining that courts must close their eyes on the constitution, and
see only the law.
This doctrine would subvert the very foundation of all written
constitutions….
(extracts from the judgment in Marbury v Madison 1 Cranch 137 (1803))
49.
This landmark case decided that even acts of the US Congress are subject to
judicial review, in the US Supreme Court. This reliance on judicial review has been
followed in many other constitutions (e g India, Germany, Italy and Spain). Many
countries have Constitutional Courts with power to decide whether acts of the
executive and of the legislature are in conformity with the national constitution.
Under the Turkish Constitution, the Constitutional Court has power to decide on the
constitutionality of laws and other executive measures (Articles 148-153).
50.
This approach to judicial review emphasises the importance to be attached to
the Constitution as fundamental law. In fact, judicial review in this form does not
exist everywhere. In France, the legislative, executive and judicial powers are
considered to have co-ordinate status, and laws passed by the National Assembly
have in general not been subject to judicial review. But today, under the 1958
Constitution, a limited power to review new laws is exercised by a special court called
the Constitutional Council. In the United Kingdom, there is no written constitution
and in principle Acts of Parliament are not subject to judicial review (and from this it
appears that there are no legal limitations upon the power of Parliament to legislate).
IV
CONSTITUTIONALISM – WHAT IS IT? AND DOES IT
MATTER?
51.
We have seen that constitutions of many different kinds exist in different
countries. The word constitutionalism is applied to a group of principles that is based
on the common factors that are found (sometimes in varying forms) in many
democratic constitutions. Those who use the term believe that the objectives of
national constitutions are all broadly the same, even if the machinery for achieving
them varies from country to country. A French lawyer (Denis Baranger) has said:
“the ambition of constitutionalism is, in short, the reconciliation of state power with
democratic legitimacy”. A Norwegian political scientist has said:
20
Constitutionalism is the political doctrine that claims that political
authority should be bound by institutions that restrict the exercise of
power. Such institutions offer rules that bind both the persons in
authority as well as the organs or bodies that exercise political authority.
Human rights are one central component of constitutionalism; another
essential element is the separation of powers in government. Thirdly,
there are the restrictions that derive from international law and its
obligations on the state.
(from Jan-Erik Lane, Constitutions and political theory, p 19)
A Hungarian lawyer has written: “Constitutionalism is the set of principles,
manners and institutional arrangements that have been used traditionally to limit
government … the restriction of state power in the preservation of public peace.”
(Andras Sajo, Limiting government, an introduction to Constitutionalism).
In 1998, an American lawyer wrote:
As the 20th century comes to a close, the triumph of constitutionalism
appears almost complete. Just about every state in the world has a
written constitution. The great majority of these declare the constitution
to be law controlling the organs of the state. And in at least many states,
that constitution is in fact successfully invoked by courts holding acts of
the state invalid because inconsistent with the constitution. …The
central idea, ….. of public power controlled by enforcement of a superior
law is present everywhere constitutional government is proclaimed.
(Richard Kay, “American Constitutionalism” in L Alexander (ed),
Constitutionalism – Philosophical Foundations (1998), chap 1)
52.
There is no need to worry about which of these descriptions of
constitutionalism is best. What does emerge from them is that if you support this
general notion, you believe that
(a) written constitutions help to legitimise the use of state power,
(b) they do so by granting powers to state organs that are not absolute but
are limited in various ways;
(c) reliance on constitutions promotes certain desirable values – for example,
democratic process, liberty, respect for human rights and human dignity, the
rule of law etc.
Certainly the concept is not closely defined, and there is room for a wide range of
opinions about it. One very ironic view was expressed in the Encyclopedia of Social
Sciences in 1930:
Constitutionalism is the name given to the trust which men repose in the
power of words engrossed on parchment to keep a government in order.
53.
In reality, we must not place all our faith in written documents such as a
constitution. The experience in some countries is of ‘constitutions without
constitutionalism’ - meaning that those in power manipulate the constitution to
achieve their own ends, avoid any effective limitation on their powers, and pay only
lip-service to democratic values. By contrast, in a few countries, the converse may
exist: ‘constitutionalism without a constitution’. Possibly the United Kingdom and
New Zealand are in this position.
21
54.
In general, however, if we wish to ensure that certain values influence the
conduct of government by organs of the state, we will hope that our country’s
constitution can contribute to achieving this. Our country’s institutions, and the way
in which they conduct their affairs, also matter – for example, the role played by the
elected legislature. What we wish to see is that those who exercise the power and
authority of the state, have respect for the values that most constitutions promote.
And today international organisations such as the Council of Europe and the
European Union are committed to encouraging the protection of constitutional
values in the states which belong to them.
V
CONSTITUTION-MAKING, CONSTITUTIONAL AMENDMENT
AND CONSTITUTIONAL CHANGE
Constitution-making
55.
We have already seen that from the viewpoint of legal theory, a constitution
is prior to the organs of the state (such as the executive and the legislature) – a point
stressed in the quotation from Thomas Paine. We also have seen that it is useful to
identify ‘the constitution’ as the source of the powers of the legislature, the
executive, and the courts. But how in fact does a new constitution come into being?
And what is the source of the authority lying behind the constitution?
56.
There are many situations in which a country may need or wish to make a
fresh start – when the previous system of government has collapsed, as a result of a
war, an uprising or revolution by the people against the former regime, a military
coup, an invasion (as in the case of Iraq today), the conferring of independence on a
former colony, or a fundamental change in the political basis of a state. Examples
include –
the creation of the USA after the British colonies seized independence in
1776
the French revolution in 1789 leading to the Declaration of the Rights of
Man and the first new constitution
the formation of the republic of Turkey 80 years ago
the ending of World War II and the need for a new start in the government
of Germany and Japan
the granting of independence to numerous territories of the British
Commonwealth between 1945 and today
the collapse of the Communist era following the end of the Berlin Wall in
1989
the end of apartheid in South Africa.
New constitutions are needed when a state splits up into two or more countries
(example, Yugoslavia or Czechoslovakia) and when two separate states decide to
22
form a new single state (example, the union of England and Scotland in 1707, based
on a Treaty negotiated between the two Parliaments before the countries merged).
57.
If the granting of independence to a colony took place peacefully and by
agreement, as in many but not all cases in the British Commonwealth, before
independence an elected assembly would already exist, enabling political parties to be
represented, and their leaders to start operating in a democratic manner. Then a
constitutional conference would be held so that all the political leaders could discuss what
kind of constitution they wanted – e g how big a parliament, what system of election,
protection for racial or religious minorities, the national language or languages. If
there was sufficient agreement, the British Government would draft a constitution –
the British Parliament would use its continuing powers to enact the constitution, and
legislate for it to come into force on ‘independence day’. Some of these
constitutions proved very successful e g Botswana. But many of the new countries
ran into constitutional difficulties – and not many of their ‘independence
constitutions’ survived.
58.
The process of constitution-making is more difficult when the transition is
not peaceful. If there has been a political revolution, constitutional continuity has
been interrupted – and a fresh start will have to be made. The leaders of the
revolution may wish to continue governing – but at some point they may call a
constituent assembly, possibly holding elections to the assembly, with the sole task of
reaching agreement on a constitution. Agreement will also be needed on transitional
provisions – e g when the new constitution is to start, when elections will be held
under the constitution, who will be the first holders of positions under the new
constitution. Sometimes the revolutionary leaders will simply proclaim the new
constitution and will impose it on the people without their consent.
59.
One method of getting the people to approve the new constitution is by
means of a referendum – so that they can vote for or against it. Maybe a special
majority is required (e g 60% or 65 % of those voting must be in favour). A large
vote in favour of the constitution will give it democratic legitimacy.
60.
The formation of the US Constitution in 1787 took place because the 13
former colonies wished to form a closer union, while retaining their existence.
Representatives from the former colonies met together behind closed doors in
Philadelphia, until on 17 September 1787 they finalised the text of the constitution.
They then issued a resolution calling for it to be approved by a Convention of
Delegates in each state, and declaring that when it had been ratified by the
Conventions of nine states, a day should be fixed for the Constitution to come into
effect and for the first elections to be held. The Constitution was not submitted to a
referendum of all the people in the United States. At that time, no women could
vote. Nor could the many black people that were slaves.
61.
Despite the difficulties that surround the making of constitutions, a
constitution that survives its early years, and comes to be respected by several
generations of politicians, will acquire legitimacy and authority by reason of its
23
success. It will not be important to ask – ‘by what authority did the framers of the
constitution act as they did?’
Constitutional amendment
62.
However skilful are the framers of a constitution, they cannot be expected to
foresee all future problems. A good written constitution should be intended to last,
but every constitution should include an amendment procedure – and no
constitution should be unalterable.
63.
Where a constitution has the force of ‘higher law’ or ‘fundamental law’, its
effect is greater than that of ordinary legislation by the legislature. So the legislature
should not have power to amend the constitution by the ordinary process of
legislation, as it will then be too easy to change it – and this may downgrade the
constitution to the level of ordinary legislation. Many different amendment
procedures exist. These include
– a special majority in the legislature (e g 60% of those voting)
- a special procedure involving a delay so that the legislation must be
considered twice by the legislature
- a requirement for the joint meeting of both houses of the legislature to
approve the amendment (where two houses exist)
- the holding of a parliamentary election before the amendment can come
into effect
- submission of the constitutional amendments approved by the legislature to
a referendum of all the people (sometimes with a requirement of a special
majority).
64.
A constitution that is very easily amended is called a flexible constitution. A
constitution that it is difficult to amend is called a rigid constitution. A good
constitution is neither too flexible, nor too rigid! But, as with so many other features
of a constitution, what looks on paper to be a difficult amendment procedure may in
reality be very easy for the majority party to use successfully (for example, a rule
requiring 66% majority in the legislature for a constitutional amendment, when the
ruling party has 80% or more of the seats). Conversely, what looks like a simple
amendment procedure may in reality be very difficult to use.
65.
Some constitutions provide that the amendment procedure shall not apply to
specified provisions of the constitution. For example, the German Constitution
(article 79) provides that it can be amended by laws which expressly amend or
supplement the text, and such laws require the positive vote of 2/3 of the Bundestag
and 2/3 of the Bundesrat. But no amendments may be made to the division of
Germany into regions (Laender), the participation of the Laender in legislation, nor to
the basic principles in article 1 ( protection of human dignity) or article 20 (basic
principles of the Constitution, including the democratic and social federal basis of
the state; the principle that all state authority emanates from the people; and the
protection of the constitutional order). In India, the Supreme Court of India has
24
imposed limits upon the scope of some constitutional amendments that have
affected fundamental aspects of the Constitution.
Constitutional change
66.
Finally, constitutions may change in other ways than by formal amendment
of the text. For example, customs and practices can develop around aspects of the
written constitution that make a big difference to the way the constitution works in
practice - e g regarding the use of motions of confidence, the effect of the system of
political parties on the formation of governments or on the working of the
legislature. Similarly, the way in which politicians respect the decisions of the judges
may have a huge impact on the independence of the judiciary. We must remember
that the word ‘constitution’ (meaning B) refers to the whole system of state
government and this is much more than the written text of a document.
67.
In some countries, it has been found very difficult to amend the text of the
constitution (for example, Australia or the USA). To compensate for this, it is
possible that without any amendment of the text, the interpretation of the constitution
may change. It will change if the Constitutional Court or Supreme Court decides
that an earlier interpretation is no longer acceptable. In the USA, the best-known
example of a really important change of interpretation was provided in 1954 by the
decision of the Supreme Court in Brown v Board of Education of Topeka 347 US 483
(1954). The case concerned the segregation of education between the white and
black races. Was the racial segregation of public services and amenities contrary to
the right of all Americans to ‘the equal protection of the laws’ (granted by the 14th
Amendment to the Constitution, made in 1868)? In the 19th century, the Supreme
Court had held that it was not a breach of the 14th Amendment if the facilities
provided to different races were ‘separate but equal’. In Brown v Board of Education of
Topeka, the Supreme Court gave a different interpretation to the 14th Amendment,
holding that ‘separate but equal’ facilities for education were inherently in breach of
the duty of states to provide to all persons the ‘equal protection of the laws’.
68.
This aspect of constitutional interpretation can raise very complex questions
of principle. How much emphasis should we give to what the persons who framed
the constitution intended to achieve? And, in contrast, how much weight should we
give to the meaning that a document would have if it were written today? Different
constitutional courts have given different answers to these questions. In the case of
the European Convention on Human Rights, which was prepared in 1950, the
European Court of Human Rights has for many years insisted that the Convention is
a “living instrument” – meaning that it must be interpreted in a way that meets the
challenges to human rights that exist today, and not just as in 1950. The Court in
this way has extended the application of the Convention beyond what was intended
by those who wrote the Convention. In this way, the Convention has a more
flexible application and is less likely to become out of date. The same thing applies
to many national constitutions. This is to be welcomed - it makes the constitution
more responsive to changing conditions, and reduces the need for frequent changes
to the written text of the constitution.
25