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For other uses, see Constitution (disambiguation).

A constitution is a set of fundamental principles or established precedents according to which a

state or other organization is governed.[1] These rules together make up, i.e. constitute, what the
entity is. When these principles are written down into a single or set of legal documents, those
documents may be said to comprise a written constitution.

Constitutions concern different levels of organizations, from sovereign states to companies and
unincorporated associations. A treaty which establishes an international organization is also its
constitution in that it would define how that organization is constituted. Within states, whether
sovereign or federated, a constitution defines the principles upon which the state is based, the
procedure in which laws are made and by whom. Some constitutions, especially written
constitutions, also act as limiters of state power by establishing lines which a state's rulers cannot
cross such as fundamental rights.

The Constitution of India is the longest written constitution of any sovereign country in the
world,[2] containing 444 articles,[3] 12 schedules and 94 amendments, with 117,369 words in its
English language version,[4] while the United States Constitution is the shortest written
constitution.[5]

Contents
[hide]

 1 Etymology
 2 General features
 3 History and development
o 3.1 Early constitutions
o 3.2 Later constitutions
o 3.3 Modern constitutions
 3.3.1 Enlightenment constitutions
 4 Principles of constitutional design
 5 Governmental constitutions
o 5.1 Key features
 5.1.1 Codification
 5.1.1.1 Codified constitution
 5.1.1.2 Uncodified constitution
 5.1.1.3 Written versus unwritten / codified versus uncodified
 5.1.2 Entrenchment
 5.1.2.1 Absolutely unmodifiable articles
 5.1.3 Distribution of sovereignty
 5.1.4 Separation of powers
 5.1.5 Lines of accountability
 2

 5.1.6 State of emergency

o 5.2 Façade constitutions
 6 Constitutional courts
 7 See also
 8 References
 9 External links

[edit] Etymology
The term constitution comes through French from the Latin word constitutio, used for
regulations and orders, such as the imperial enactments (constitutiones principis: edicta,
mandata, decreta, rescripta).[6] Later, the term was widely used in canon law for an important
determination, especially a decree issued by the Pope, now referred to as an apostolic
constitution.

[edit] General features

Generally, every modern written constitution confers specific powers to an organization or
institutional entity, established upon the primary condition that it abides by the said constitution's
limitations. According to Scott Gordon, a political organization is constitutional to the extent that
it "contain[s] institutionalized mechanisms of power control for the protection of the interests
and liberties of the citizenry, including those that may be in the minority."[7]

The Latin term ultra vires describes activities of officials within an organization or polity that
fall outside the constitutional or statutory authority of those officials. For example, a students'
union may be prohibited as an organization from engaging in activities not concerning students;
if the union becomes involved in non-student activities these activities are considered ultra vires
of the union's charter, and nobody would be compelled by the charter to follow them. An
example from the constitutional law of sovereign states would be a provincial government in a
federal state trying to legislate in an area exclusively enumerated to the federal government in
the constitution, such as ratifying a treaty. Ultra vires gives a legal justification for the forced
cessation of such action, which might be enforced by the people with the support of a decision of
the judiciary, in a case of judicial review. A violation of rights by an official would be ultra vires
because a (constitutional) right is a restriction on the powers of government, and therefore that
official would be exercising powers he doesn't have.

In most but not all modern states the constitution has supremacy over ordinary statute law (see
Uncodified constitution below); in such states when an official act is unconstitutional, i.e. it is
not a power granted to the government by the constitution, that act is null and void, and the
nullification is ab initio, that is, from inception, not from the date of the finding. It was never
"law", even though, if it had been a statute or statutory provision, it might have been adopted
according to the procedures for adopting legislation. Sometimes the problem is not that a statute
is unconstitutional, but the application of it is, on a particular occasion, and a court may decide
that while there are ways it could be applied that are constitutional, that instance was not allowed
 3

or legitimate. In such a case, only the application may be ruled unconstitutional. Historically, the
remedy for such violations have been petitions for common law writs, such as quo warranto.

[edit] History and development

[edit] Early constitutions

Excavations in modern-day Iraq by Ernest de Sarzec in 1877 found evidence of the earliest
known code of justice, issued by the Sumerian king Urukagina of Lagash ca 2300 BC. Perhaps
the earliest prototype for a law of government, this document itself has not yet been discovered;
however it is known that it allowed some rights to his citizens. For example, it is known that it
relieved tax for widows and orphans, and protected the poor from the usury of the rich.

Detail from Hammurabi's stele shows him receiving the laws of Babylon from the seated sun
deity.

After that, many governments ruled by special codes of written laws. The oldest such document
still known to exist seems to be the Code of Ur-Nammu of Ur (ca 2050 BC). Some of the better-
known ancient law codes include the code of Lipit-Ishtar of Isin, the code of Hammurabi of
Babylonia, the Hittite code, the Assyrian code and Mosaic law.

[edit] Later constitutions

Diagram illustrating the classification of constitutions by Aristotle.

Athens

In 621 BC a scribe named Draco codified the cruel oral laws of the city-state of Athens; this code
prescribed the death penalty for many offences (nowadays very severe rules are often called
"Draconian"). In 594 BC Solon, the ruler of Athens, created the new Solonian Constitution. It
eased the burden of the workers, and determined that membership of the ruling class was to be
based on wealth (plutocracy), rather than by birth (aristocracy). Cleisthenes again reformed the
Athenian constitution and set it on a democratic footing in 508 BC.

Aristotle (ca 350 BC) was one of the first in recorded history to make a formal distinction
between ordinary law and constitutional law, establishing ideas of constitution and
constitutionalism, and attempting to classify different forms of constitutional government. The
most basic definition he used to describe a constitution in general terms was "the arrangement of
the offices in a state". In his works Constitution of Athens, Politics, and Nicomachean Ethics he
explores different constitutions of his day, including those of Athens, Sparta, and Carthage. He
classified both what he regarded as good and bad constitutions, and came to the conclusion that
the best constitution was a mixed system, including monarchic, aristocratic, and democratic
elements. He also distinguished between citizens, who had the right to participate in the state,
and non-citizens and slaves, who did not.

Rome
 4

The Romans first codified their constitution in 449 BC as the Twelve Tables. They operated
under a series of laws that were added from time to time, but Roman law was never reorganised
into a single code until the Codex Theodosianus (AD 438); later, in the Eastern Empire the
Codex repetitæ prælectionis (534) was highly influential throughout Europe. This was followed
in the east by the Ecloga of Leo III the Isaurian (740) and the Basilica of Basil I (878).

India

The Edicts of Ashoka established constitutional principles for the 3rd century BC Maurya king's
rule in Ancient India.

Germania

Many of the Germanic peoples that filled the power vacuum left by the Western Roman Empire
in the Early Middle Ages codified their laws. One of the first of these Germanic law codes to be
written was the Visigothic Code of Euric (471). This was followed by the Lex Burgundionum,
applying separate codes for Germans and for Romans; the Pactus Alamannorum; and the Salic
Law of the Franks, all written soon after 500. In 506, the Breviarum or "Lex Romana" of Alaric
II, king of the Visigoths, adopted and consolidated the Codex Theodosianus together with
assorted earlier Roman laws. Systems that appeared somewhat later include the Edictum Rothari
of the Lombards (643), the Lex Visigothorum (654), the Lex Alamannorum (730) and the Lex
Frisionum (ca 785). These continental codes were all composed in Latin, whilst Anglo-Saxon
was used for those of England, beginning with the Code of Ethelbert of Kent (602). In ca. 893,
Alfred the Great combined this and two other earlier Saxon codes, with various Mosaic and
Christian precepts, to produce the Doom Book code of laws for England.

Japan

Japan's Seventeen-article constitution written in 604, reportedly by Prince Shōtoku, is an early

example of a constitution in Asian political history. Influenced by Buddhist teachings, the
document focuses more on social morality than institutions of government per se and remains a
notable early attempt at a government constitution. Another is the Constitution of Medina,
drafted by the prophet of Islam, Muhammad, in 622. It is said to be one of the earliest
constitutions which guarantees basic rights to religions and adherents as well as reinforcing a
judiciary process regarding the rules of warfare, tax and civil disputes.

Medina

The Constitution of Medina (Arabic: J‫صحیفة المدینه‬, Ṣaḥīfat al-Madīna), also known as the Charter
of Medina, was drafted by the Islamic prophet Muhammad. It constituted a formal agreement
between Muhammad and all of the significant tribes and families of Yathrib (later known as
Medina), including Muslims, Jews, and pagans.[8][9] The document was drawn up with the explicit
concern of bringing to an end the bitter inter tribal fighting between the clans of the Aws (Aus)
and Khazraj within Medina. To this effect it instituted a number of rights and responsibilities for
the Muslim, Jewish, and pagan communities of Medina bringing them within the fold of one
community—the Ummah.[10]
 5

The precise dating of the Constitution of Medina remains debated but generally scholars agree it
was written shortly after the Hijra (622).[11] It effectively established the first Islamic state. The
Constitution established: the security of the community, religious freedoms, the role of Medina
as a haram or sacred place (barring all violence and weapons), the security of women, stable
tribal relations within Medina, a tax system for supporting the community in time of conflict,
parameters for exogenous political alliances, a system for granting protection of individuals, a
judicial system for resolving disputes, and also regulated the paying of Blood money (the
payment between families or tribes for the slaying of an individual in lieu of lex talionis).

Wales

In Wales, the Cyfraith Hywel was codified by Hywel Dda c. 942–950.

Rus

The Pravda Yaroslava, originally combined by Yaroslav the Wise the Grand Prince of Kiev, was
granted to Great Novgorod around 1017, and in 1054 was incorporated into the Russkaya
Pravda, that became the law for all of Kievan Rus. It survived only in later editions of the 15th
century.

Iroquois
Main article: Great Law of Peace

The Gayanashagowa, the oral constitution of the Iroquois nation also known as the Great Law of
Peace, established a system of governance in which sachems (tribal chiefs) of the members of the
Iroquois League made decisions on the basis of universal consensus of all chiefs following
discussions that were initiated by a single tribe. The position of sachem descended through
families, and were allocated by senior female relatives.[12]

Historians including Donald Grindle,[13] Bruce Johansen[14] and others[15] believe that the Iroquois
constitution provided inspiration for the United States Constitution and in 1988 was recognised
by a resolution in Congress.[16] The thesis is not considered credible.[12][17] Stanford University
historian Jack N. Rakove stated that "The voluminous records we have for the constitutional
debates of the late 1780s contain no significant references to the Iroquois" and stated that there
are ample European precedents to the democratic institutions of the United States.[18] Francis
Jennings noted that the statement made by Benjamin Franklin frequently quoted by proponents
of the thesis does not support for this idea as it is advocating for a union against these "ignorant
savages" and called the idea "absurd".[19] Anthropologist Dean Snow stated that though Franklin's
Albany Plan may have drawn some inspiration from the Iroquois League, there is little evidence
that either the Plan or the Constitution drew substantially from this source and argues that
"...such claims muddle and denigrate the subtle and remarkable features of Iroquois government.
The two forms of government are distinctive and individually remarkable in conception."[20]

England
 6

In England, Henry I's proclamation of the Charter of Liberties in 1100 bound the king for the
first time in his treatment of the clergy and the nobility. This idea was extended and refined by
the English barony when they forced King John to sign Magna Carta in 1215. The most
important single article of the Magna Carta, related to "habeas corpus", provided that the king
was not permitted to imprison, outlaw, exile or kill anyone at a whim—there must be due process
of law first. This article, Article 39, of the Magna Carta read:

No free man shall be arrested, or imprisoned, or deprived of his property, or outlawed, or

exiled, or in any way destroyed, nor shall we go against him or send against him, unless by legal
judgement of his peers, or by the law of the land.

This provision became the cornerstone of English liberty after that point. The social contract in
the original case was between the king and the nobility, but was gradually extended to all of the
people. It led to the system of Constitutional Monarchy, with further reforms shifting the balance
of power from the monarchy and nobility to the House of Commons.

Serbia

The Nomocanon of Saint Sava (Serbian: Zakonopravilo)[21][22][23] was the first Serbian and
constitution from 1219. This legal act was well developed. St. Sava's Nomocanon was the
compilation of Civil law, based on Roman Law[24] and Canon law, based on Ecumenical
Councils and its basic purpose was to organize functioning of the young Serbian kingdom and
the Serbian church. Saint Sava began the work on the Serbian Nomocanon in 1208 while being
at Mount Athos, using The Nomocanon in Fourteen Titles, Synopsis of Stefan the Efesian,
Nomocanon of John Scholasticus, Ecumenical Councils' documents, which he modified with the
canonical commentaries of Aristinos and John Zonaras, local church meetings, rules of the Holy
Fathers, the law of Moses, translation of Prohiron and the Byzantine emperors' Novellae (most
were taken from Justinian's Novellae). The Nomocanon was completely new compilation of civil
and canonical regulations, taken from the Byzantine sources, but completed and reformed by St.
Sava to function properly in Serbia. Beside decrees that organized the life of church, there are
various norms regarding civil life, most of them were taken from Prohiron. Legal transplants of
Roman-Byzantine law became the basis of the Serbian medieval law. The essence of
Zakonopravilo was based on Corpus Iuris Civilis.

Hungary

In 1222, Hungarian King Andrew II issued the Golden Bull of 1222.

Saxony

Between 1220 and 1230, a Saxon administrator, Eike von Repgow, composed the
Sachsenspiegel, which became the supreme law used in parts of Germany as late as 1900.

Mali Empire
 7

In 1236, Sundiata Keita presented an oral constitution federating the Mali Empire, called the
Kouroukan Fouga.

Ethiopia

Meanwhile, around 1240, the Coptic Egyptian Christian writer, 'Abul Fada'il Ibn al-'Assal, wrote
the Fetha Negest in Arabic. 'Ibn al-Assal took his laws partly from apostolic writings and Mosaic
law, and partly from the former Byzantine codes. There are a few historical records claiming that
this law code was translated into Ge'ez and entered Ethiopia around 1450 in the reign of Zara
Yaqob. Even so, its first recorded use in the function of a constitution (supreme law of the land)
is with Sarsa Dengel beginning in 1563. The Fetha Negest remained the supreme law in Ethiopia
until 1931, when a modern-style Constitution was first granted by Emperor Haile Selassie I.

Serbia

Stefan Dušan, Emperor of Serbs and Greeks, enacted Dušan's Code (Serbian: Dušanov
Zakonik)[25] in Serbia, in two state congresses: in 1349 in Skopje and in 1354 in Serres. It
regulated all social spheres, so it was the second Serbian constitution, after St. Sava's
Nomocanon (Zakonopravilo). The Code was based on Roman-Byzantine law. The legal
transplanting is notable with the articles 171 and 172 of Dušan's Code, which regulated the
juridical independence. They were taken from the Byzantine code Basilika (book VII, 1, 16-17).

China

In China, the Hongwu Emperor created and refined a document he called Ancestral Injunctions
(first published in 1375, revised twice more before his death in 1398). These rules served in a
very real sense as a constitution for the Ming Dynasty for the next 250 years.

Sardinia

In 1392 the Carta de Logu was legal code of the Giudicato of Arborea promulgated by the
giudicessa Eleanor. It was in force in Sardinia until it was superseded by the code of Charles
Felix in April 1827. The Carta was a work of great importance in Sardinian history. It was an
organic, coherent, and systematic work of legislation encompassing the civil and penal law.

[edit] Modern constitutions

The Bendery Constitution by Hetman Pylyp Orlyk.

The earliest written constitution still governing a sovereign nation today may be that of San
Marino. The Leges Statutae Republicae Sancti Marini was written in Latin and consists of six
books. The first book, with 62 articles, establishes councils, courts, various executive officers
and the powers assigned to them. The remaining books cover criminal and civil law, judicial
procedures and remedies. Written in 1600, the document was based upon the Statuti Comunali
(Town Statute) of 1300, itself influenced by the Codex Justinianus, and it remains in force today.
 8

In 1639, the Colony of Connecticut adopted the Fundamental Orders, which is considered the
first North American constitution, and is the basis for every new Connecticut constitution since,
and is also the reason for Connecticut's nickname, "the Constitution State". England had two
short-lived written Constitutions during Cromwellian rule, known as the Instrument of
Government (1653), and Humble Petition and Advice (1657).

Agreements and Constitutions of Laws and Freedoms of the Zaporizian Host can be
acknowledged as the first European constitution in a modern sense.[26] It was written in 1710 by
Pylyp Orlyk, hetman of the Zaporozhian Host. This "Constitution of Pylyp Orlyk" (as it is widely
known) was written to establish a free Zaporozhian-Ukrainian Republic, with the support of
Charles XII of Sweden. It is notable in that it established a democratic standard for the separation
of powers in government between the legislative, executive, and judiciary branches, well before
the publication of Montesquieu's Spirit of the Laws. This Constitution also limited the executive
authority of the hetman, and established a democratically elected Cossack parliament called the
General Council. However, Orlyk's project for an independent Ukrainian State never
materialized, and his constitution, written in exile, never went into effect.

Other examples of early European constitutions were the Corsican Constitution of 1755 and the
Swedish Constitution of 1772.

All of the British colonies in North America that were to become the 13 original United States,
adopted their own constitutions in 1776 and 1777, during the American Revolution (and before
the later Articles of Confederation and United States Constitution), with the exceptions of
Massachusetts, Connecticut and Rhode Island. The Commonwealth of Massachusetts adopted its
Constitution in 1780, the oldest still-functioning constitution of any U.S. state; while Connecticut
and Rhode Island officially continued to operate under their old colonial charters, until they
adopted their first state constitutions in 1818 and 1843, respectively.

[edit] Enlightenment constitutions

What is sometimes called the "enlightened constitution" model was developed by philosophers
of the Age of Enlightenment such as Thomas Hobbes, Jean-Jacques Rousseau, and John Locke.
The model proposed that constitutional governments should be stable, adaptable, accountable,
open and should represent the people (i.e. support democracy).[27]

The United States Constitution, ratified June 21, 1788, was influenced by the British
constitutional system and the political system of the United Provinces, plus the writings of
Polybius, Locke, Montesquieu, and others. The document became a benchmark for
republicanism and codified constitutions written thereafter.

Constitution of May 3, 1791 (painting by Jan Matejko, 1891). Polish King Stanisław August
(left, in regal ermine-trimmed cloak), enters St. John's Cathedral, where Sejm deputies will swear
to uphold the new Constitution; in background, Warsaw's Royal Castle, where the Constitution
has just been adopted.
 9

Next were the Polish-Lithuanian Commonwealth Constitution of May 3, 1791, traditionally

regarded as world's second and Europe's first,[28][29][30] and the French Constitution of September
3, 1791.

The Spanish Constitution of 1812 was the fourth modern, democratic and liberal world's national
constitution gone into effect. It served as a model for other liberal constitutions of several South-
European and Latin American nations like Portuguese Constitution of 1822, constitutions of
various Italian states during Carbonari revolts (i.e. in the Kingdom of the Two Sicilies), or
Mexican Constitution of 1824.[31] As a result of the Napoleonic Wars, the absolute monarchy of
Denmark lost its personal possession of Norway to another absolute monarchy, Sweden.
However the Norwegians managed to infuse a radically democratic and liberal constitution in
1814, adopting many facets from the American constitution and the revolutionary French ones;
but maintaining a hereditary monarch limited by the constitution, like the Spanish one. The
Serbian revolution initially led to a proclamation of a proto-constitution in 1811, which was the
first such legal act in Central and Eastern Europe;[citation needed] the full-fledged Constitution of
Serbia followed few decades later, in 1835, by which also the country became the first
constitutional monarchy in that part of Europe.[citation needed]

[edit] Principles of constitutional design

After tribal people first began to live in cities and establish nations, many of these functioned
according to unwritten customs, while some developed autocratic, even tyrannical monarchs,
who ruled by decree, or mere personal whim. Such rule led some thinkers to take the position
that what mattered was not the design of governmental institutions and operations, as much as
the character of the rulers. This view can be seen in Plato, who called for rule by "philosopher-
kings."[32] Later writers, such as Aristotle, Cicero and Plutarch, would examine designs for
government from a legal and historical standpoint.

The Renaissance brought a series of political philosophers who wrote implied criticisms of the
practices of monarchs and sought to identify principles of constitutional design that would be
likely to yield more effective and just governance from their viewpoints. This began with revival
of the Roman law of nations concept[33] and its application to the relations among nations, and
they sought to establish customary "laws of war and peace"[34] to ameliorate wars and make them
less likely. This led to considerations of what authority monarchs or other officials have and
don't have, from where that authority derives, and the remedies for abusing such authority.[35]

A seminal juncture in this line of discourse arose in England from the Civil War, the
Cromwellian Protectorate, the writings of Thomas Hobbes, Samuel Rutherford, the Levellers,
John Milton, and James Harrington, leading to the debate between Robert Filmer, arguing for the
divine right of monarchs, on the one side, and on the other, Henry Neville, James Tyrrell,
Algernon Sidney, and John Locke. What arose from the latter was a concept of government
being erected on the foundations of first, a state of nature governed by natural laws, then a state
of society, established by a social contract or compact, which bring underlying natural or social
laws, before governments are formally established on them as foundations.
 10

Along the way several writers examined how the design of government was important, even if
the government were headed by a monarch. They also classified various historical examples of
governmental designs, typically into democracies, aristocracies, or monarchies, and considered
how just and effective each tended to be and why, and how the advantages of each might be
obtained by combining elements of each into a more complex design that balanced competing
tendencies. Some, such as Montesquieu, also examined how the functions of government, such
as legislative, executive, and judicial, might appropriately be separated into branches. The
prevailing theme among these writers was that the design of constitutions is not completely
arbitrary or a matter of taste. They generally held that there are underlying principles of design
that constrain all constitutions for every polity or organization. Each built on the ideas of those
before concerning what those principles might be.

The later writings of Orestes Brownson[36] would try to explain what constitutional designers
were trying to do. According to Brownson there are, in a sense, three "constitutions" involved:
The first the constitution of nature that includes all of what was called "natural law." The second
is the constitution of society, an unwritten and commonly understood set of rules for the society
formed by a social contract before it establishes a government, by which it establishes the third, a
constitution of government. The second would include such elements as the making of decisions
by public conventions called by public notice and conducted by established rules of procedure.
Each constitution must be consistent with, and derive its authority from, the ones before it, as
well as from a historical act of society formation or constitutional ratification. Brownson argued
that a state is a society with effective dominion over a well-defined territory, that consent to a
well-designed constitution of government arises from presence on that territory, and that it is
possible for provisions of a written constitution of government to be "unconstitutional" if they
are inconsistent with the constitutions of nature or society. Brownson argued that it is not
ratification alone that makes a written constitution of government legitimate, but that it must also
be competently designed and applied.

Other writers[37] have argued that such considerations apply not only to all national constitutions
of government, but also to the constitutions of private organizations, that it is not an accident that
the constitutions that tend to satisfy their members contain certain elements, as a minimum, or
that their provisions tend to become very similar as they are amended after experience with their
use. Provisions that give rise to certain kinds of questions are seen to need additional provisions
for how to resolve those questions, and provisions that offer no course of action may best be
omitted and left to policy decisions. Provisions that conflict with what Brownson and others can
discern are the underlying "constitutions" of nature and society tend to be difficult or impossible
to execute, or to lead to unresolvable disputes.

Constitutional design has been treated as a kind of metagame in which play consists of finding
the best design and provisions for a written constitution that will be the rules for the game of
government, and that will be most likely to optimize a balance of the utilities of justice, liberty,
and security. An example is the metagame Nomic.[38]

[edit] Governmental constitutions

 11

Presidential copy of the Russian Constitution.

Most commonly, the term constitution refers to a set of rules and principles that define the nature
and extent of government. Most constitutions seek to regulate the relationship between
institutions of the state, in a basic sense the relationship between the executive, legislature and
the judiciary, but also the relationship of institutions within those branches. For example,
executive branches can be divided into a head of government, government
departments/ministries, executive agencies and a civil service/bureaucracy. Most constitutions
also attempt to define the relationship between individuals and the state, and to establish the
broad rights of individual citizens. It is thus the most basic law of a territory from which all the
other laws and rules are hierarchically derived; in some territories it is in fact called "Basic Law".

[edit] Key features

The following are features of democratic constitutions that have been identified by political
scientists to exist, in one form or another, in virtually all national constitutions.

[edit] Codification

A fundamental classification is codification or lack of codification. A codified constitution is one

that is contained in a single document, which is the single source of constitutional law in a state.
An uncodified constitution is one that is not contained in a single document, consisting of several
different sources, which may be written or unwritten.

[edit] Codified constitution

Most states in the world have codified constitutions.

Codified constitutions are often the product of some dramatic political change, such as a
revolution. The process by which a country adopts a constitution is closely tied to the historical
and political context driving this fundamental change. The legitimacy (and often the longevity)
of codified constitutions has often been tied to the process by which they are initially adopted.

States that have codified constitutions normally give the constitution supremacy over ordinary
statute law. That is, if there is any conflict between a legal statute and the codified constitution,
all or part of the statute can be declared ultra vires by a court, and struck down as
unconstitutional. In addition, exceptional procedures are often required to amend a constitution.
These procedures may include: convocation of a special constituent assembly or constitutional
convention, requiring a supermajority of legislators' votes, the consent of regional legislatures, a
referendum process, and other procedures that make amending a constitution more difficult than
passing a simple law.

Constitutions may also provide that their most basic principles can never be abolished, even by
amendment. In case a formally valid amendment of a constitution infringes these principles
protected against any amendment, it may constitute a so-called unconstitutional constitutional
law.
 12

Codified constitutions normally consist of a ceremonial preamble, which sets forth the goals of
the state and the motivation for the constitution, and several articles containing the substantive
provisions. The preamble, which is omitted in some constitutions, may contain a reference to
God and/or to fundamental values of the state such as liberty, democracy or human rights.

[edit] Uncodified constitution

Main article: Uncodified constitution

Magna Carta

As of 2010 at least three states have uncodified constitutions: Israel, New Zealand, and the
United Kingdom. Uncodified constitutions (also known as unwritten constitutions) are the
product of an "evolution" of laws and conventions over centuries. By contrast to codified
constitutions, in the Westminster tradition that originated in England, uncodified constitutions
include written sources: e.g. constitutional statutes enacted by the Parliament (House of
Commons Disqualification Act 1975, Northern Ireland Act 1998, Scotland Act 1998,
Government of Wales Act 1998, European Communities Act 1972 and Human Rights Act 1998);
and also unwritten sources: constitutional conventions, observation of precedents, royal
prerogatives, custom and tradition, such as always holding the General Election on Thursdays;
together these constitute the British constitutional law. In the days of the British Empire, the
Judicial Committee of the Privy Council acted as the constitutional court for many of the British
colonies such as Canada and Australia which had federal constitutions.

Elements of constitutional law in states with uncodified constitutions can be entrenched; for
example, sections of the Electoral Act 1993 of New Zealand relating to the maximum term of
parliament and how elections are held require a three-quarter majority in the House of
Representatives or a simple majority in a referendum to be amended or repealed.

[edit] Written versus unwritten / codified versus uncodified

The term written constitution is used to describe a constitution that is entirely written, which by
definition includes every codified constitution; but not all constitutions based entirely on written
documents are codified.

Some constitutions are largely, but not wholly, codified. For example, in the Constitution of
Australia, most of its fundamental political principles and regulations concerning the relationship
between branches of government, and concerning the government and the individual are codified
in a single document, the Constitution of the Commonwealth of Australia. However, the
presence of statutes with constitutional significance, namely the Statute of Westminster, as
adopted by the Commonwealth in the Statute of Westminster Adoption Act 1942, and the
Australia Act 1986 means that Australia's constitution is not contained in a single constitutional
document. The Constitution of Canada, which evolved from the British North America Acts until
severed from nominal British control by the Canada Act 1982 (analogous to the Australia Act
1986), is a similar example. Canada's constitution consists of almost 30 different statutes
 13

The terms written constitution and codified constitution are often used interchangeably, as are
unwritten constitution and uncodified constitution, although this usage is technically inaccurate.
Strictly speaking, unwritten constitution is never an accurate synonym for uncodified
constitution, because all modern democratic constitutions mainly comprise written sources, even
if they have no different legal status than ordinary statutes. Another, correct, term used is formal
(or formal written) constitution, for example in the following context: "The United Kingdom has
no formal [written] constitution" (which does not preclude a constitution based on documents but
not codified).

[edit] Entrenchment

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The U.S. Constitution

The presence or lack of entrenchment is a fundamental feature of constitutions. An entrenched

constitution cannot be altered in any way by a legislature as part of its normal business
concerning ordinary statutory laws, but can only be amended by a different and more onerous
procedure. There may be a requirement for a special body to be set up, or the proportion of
favourable votes of members of existing legislative bodies may be required to be higher to pass a
constitutional amendment than for statutes. The entrenched clauses of a constitution can create
different degrees of entrenchment, ranging from simply excluding constitutional amendment
from the normal business of a legislature, to making certain amendments either more difficult
than normal modifications, or forbidden under any circumstances.

Entrenchment is an inherent feature in most codified constitutions. A codified constitution will

incorporate the rules which must be followed for the constitution itself to be changed.

The US constitution is an example of an entrenched constitution, and the UK constitution is an

example of a constitution that is not entrenched (or codified). In some states the text of the
constitution may be changed; in others the original text is not changed, and amendments are
passed which add to and may override the original text and earlier amendments.

Procedures for constitutional amendment vary between states. In a nation with a federal system
of government the approval of a majority of state or provincial legislatures may be required.
Alternatively, a national referendum may be required. Details are to be found in the articles on
the constitutions of the various nations and federal states in the world.

In constitutions that are not entrenched, no special procedure is required for modification. Lack
of entrenchment is a characteristic of uncodified constitutions; the constitution is not recognised
with any higher legal status than ordinary statutes. In the UK, for example laws which modify
 14

written or unwritten provisions of the constitution are passed on a simple majority in Parliament.
No special "constitutional amendment" procedure is required. The principle of parliamentary
sovereignty holds that no sovereign parliament may be bound by the acts of its predecessors;[39]
and there is no higher authority that can create law which binds Parliament. The sovereign is
nominally the head of state with important powers, such as the power to declare war; the
uncodified and unwritten constitution removes all these powers in practice.

In practice democratic governments do not use the lack of entrenchment of the constitution to
impose the will of the government or abolish all civil rights, as they could in theory do, but the
distinction between constitutional and other law is still somewhat arbitrary, usually following
historical principles embodied in important past legislation. For example, several British Acts of
Parliament such as the Bill of Rights, Human Rights Act and, prior to the creation of Parliament,
Magna Carta are regarded as granting fundamental rights and principles which are treated as
almost constitutional. Several rights that in another state might be guaranteed by constitution
have indeed been abolished or modified by the British parliament in the early 21st century,
including the unconditional right to trial by jury, the right to silence without prejudicial
inference, permissible detention before a charge is made extended from 24 hours to 42 days, and
the right not to be tried twice for the same offence.

Further information: Fundamental Laws of England

[edit] Absolutely unmodifiable articles

The strongest level of entrenchment exists in those constitutions that state that some of their most
fundamental principles are absolute, i.e. certain articles may not be amended under any
circumstances. An amendment of a constitution that is made consistently with that constitution,
except that it violates the absolute non-modifiability, can be called an unconstitutional
constitutional law. Ultimately it is always possible for a constitution to be overthrown by internal
or external force, for example, a revolution (perhaps claiming to be justified by the right to
revolution) or invasion.

An example of absolute unmodifiability is the German Federal Constitution. This states in

Articles 1 and 20 that the state powers, which derive from the people, must protect human
dignity on the basis of human rights, which are directly applicable law binding on all three
branches of government, which is a democratic and social federal republic; that legislation must
be according to the rule of law; and that the people have the right of resistance as a last resort
against any attempt to abolish the constitutional order. Article 79, Section 3 states that these
articles cannot be changed, even according to the methods of amendment defined elsewhere in
the document.

Another example is the Constitution of Honduras, which has an article stating that the article
itself and certain other articles cannot be changed in any circumstances. Article 374 of the
Honduras Constitution asserts this unmodifiability, stating, "It is not possible to reform, in any
case, the preceding article, the present article, the constitutional articles referring to the form of
government, to the national territory, to the presidential period, the prohibition to serve again as
President of the Republic, the citizen who has performed under any title in consequence of which
 15

she/he cannot be President of the Republic in the subsequent period."[40] This unmodifiability
article played an important role in the 2009 Honduran constitutional crisis.

[edit] Distribution of sovereignty

See also: Federalism

Constitutions also establish where sovereignty is located in the state. There are three basic types
of distribution of sovereignty according to the degree of centralisation of power: unitary, federal,
and confederal. The distinction is not absolute.

In a unitary state, sovereignty resides in the state itself, and the constitution determines this. The
territory of the state may be divided into regions, but they are not sovereign and are subordinate
to the state. In the UK, the constitutional doctrine of Parliamentary sovereignty dictates than
sovereignty is ultimately contained at the centre. Some powers have been devolved to Northern
Ireland, Scotland, and Wales (but not England). Some unitary states (Spain is an example)
devolve more and more power to sub-national governments until the state functions in practice
much like a federal state.

A federal state has a central structure with at most a small amount of territory mainly containing
the institutions of the federal government, and several regions (called states, provinces, etc.)
which comprise the territory of the whole state. Sovereignty is divided between the centre and
the constituent regions. The constitutions of Canada and the United States establish federal
states, with power divided between the federal government and the provinces or states. Each of
the regions may in turn have its own constitution (of unitary nature).

A confederal state comprises again several regions, but the central structure has only limited
coordinating power, and sovereignty is located in the regions. Confederal constitutions are rare,
and there is often dispute to whether so-called "confederal" states are actually federal.

To some extent a group of states which do not constitute a federation as such may by treaties and
accords give up parts of their sovereignty to a supranational entity. For example the countries
comprising the European Union have agreed to abide by some Union-wide measures which
restrict their absolute sovereignty in some ways, e.g., the use of the metric system of
measurement instead of national units previously used.

[edit] Separation of powers

Main article: Separation of powers

Constitutions usually explicitly divide power between various branches of government. The
standard model, described by the Baron de Montesquieu, involves three branches of government:
executive, legislative and judicial. Some constitutions include additional branches, such as an
auditory branch. Constitutions vary extensively as to the degree of separation of powers between
these branches.
 16

[edit] Lines of accountability

In presidential and semi-presidential systems of government, department secretaries/ministers are

accountable to the president, who has patronage powers to appoint and dismiss ministers. The
president is accountable to the people in an election.

In parliamentary systems, ministers are accountable to Parliament, but it is the prime minister
who appoints and dismisses them. In turn the prime minister will resign if the government loses
the confidence of the parliament (or a part of it). Confidence can be lost if the government loses
a vote of no confidence or, depending on the country, loses a particularly important vote in
parliament such as vote on the budget. When a government loses confidence it stays in office
until a new government is formed; something which normally but not necessarily required the
holding of a general election.

[edit] State of emergency

Main article: State of emergency

Many constitutions allow the declaration under exceptional circumstances of some form of state
of emergency during which some rights and guarantees are suspended. This deliberate loophole
can be and has been abused to allow a government to suppress dissent without regard for human
rights—see the article on state of emergency.

[edit] Façade constitutions

See also: Constitutionalism

Italian political theorist Giovanni Sartori noted the existence of national constitutions which are a
façade for authoritarian sources of power. While such documents may express respect for human
rights or establish an independent judiciary, they may be ignored when the government feels
threatened, or never put into practice. An extreme example was the Constitution of the Soviet
Union that on paper supported freedom of assembly and freedom of speech; however, citizens
who transgressed unwritten limits were summarily imprisoned. The example demonstrates that
the protections and benefits of a constitution are ultimately provided not through its written terms
but through deference by government and society to its principles. A constitution may change
from being real to a façade and back again as democratic and autocratic governments succeed
each other.

The constitution of the United States, being the first document of its type, necessarily had many
unforeseen shortcomings which had to be patched through amendments, but has generally been
honored and a powerful structure, and no dictatorship has been able to take hold; the constitution
of Argentina written many years later in 1853 building on many years of experience of the US
constitution was arguably a better document, but did not prevent a succession of dictatorial
governments from ignoring it—a state of emergency was declared 52 times to bypass
constitutional guarantees.[41]
 17

[edit] Constitutional courts

Further information: Constitutional court and Constitutionality

Constitutions are often, but by no means always, protected by a legal body whose job it is to
interpret those constitutions and, where applicable, declare void executive and legislative acts
which infringe the constitution. In some countries, such as Germany, this function is carried out
by a dedicated constitutional court which performs this (and only this) function. In other
countries, such as Ireland, the ordinary courts may perform this function in addition to their other
responsibilities. While elsewhere, like in the United Kingdom, the concept of declaring an act to
be unconstitutional does not exist.

A constitutional violation is an action or legislative act that is judged by a constitutional court to

be contrary to the constitution, that is, unconstitutional. An example of constitutional violation
by the executive could be a public office holder who acts outside the powers granted to that
office by a constitution. An example of constitutional violation by the legislature is an attempt to
pass a law that would contradict the constitution, without first going through the proper
constitutional amendment process.

Some countries, mainly those with uncodified constitutions, have no such courts at all. For
example the United Kingdom has traditionally operated under the principle of parliamentary
sovereignty under which the laws passed by United Kingdom Parliament could not be questioned
by the courts.

[edit] See also

 Apostolic constitution (a class of Roman Catholic Church documents)
 Constitution of the Roman Republic
 Constitutional court
 Constitutional economics
 Constitutionalism
 Corporate constitution
 Judicial activism
 Judicial restraint
 Judicial review
 Rule of law
 Rule According to Higher Law

Judicial philosophies of constitutional interpretation (note: generally specific to United

States constitutional law)

 List of national constitutions

 Originalism
 Strict constructionism
 18

 Textualism
 Proposed European Union constitution
o Treaty of Lisbon (adopts same changes, but without constitutional name)
 United Nations Charter

[edit] References
1. ^ The New Oxford American Dictionary, Second Edn., Erin McKean (editor), 2051
pages, May 2005, Oxford University Press, ISBN 0-19-517077-6.
2. ^ Pylee, M.V. (1997). India's Constitution. S. Chand & Co.. pp. 3. ISBN 812190403X.
3. ^ Sarkar, Siuli. Public Administration In India. PHI Learning Pvt. Ltd.. p. 363.
ISBN 9788120339798. http://books.google.com/books?id=smahlYxg-8YC&pg=PA363.
4. ^ "Constitution of India". Ministry of Law and Justice of India. July, 2008.
http://indiacode.nic.in/coiweb/welcome.html. Retrieved 2008-12-17.
5. ^ "National Constitution Center". Independence Hall Association.
http://www.ushistory.org/tour/tour_ncc.htm. Retrieved 2010-04-22.
6. ^ The historical and institutional context of Roman law, George Mousourakis, 2003, p.
243
7. ^ Gordon, Scott (1999). Controlling the State: Constitutionalism from Ancient Athens to
Today. Harvard University Press. p. 4. ISBN 0674169875.
8. ^ See:
 Reuven Firestone, Jihād: the origin of holy war in Islam (1999) p. 118;
 "Muhammad", Encyclopedia of Islam Online
9. ^ Watt. Muhammad at Medina and R. B. Serjeant "The Constitution of Medina." Islamic
Quarterly 8 (1964) p.4.
10. ^ R. B. Serjeant, The Sunnah Jami'ah, pacts with the Yathrib Jews, and the Tahrim of
Yathrib: Analysis and translation of the documents comprised in the so-called "Constitution of
Medina." Bulletin of the School of Oriental and African Studies, University of London, Vol. 41,
No. 1. 1978), page 4.
11. ^ Watt. Muhammad at Medina. pp. 227-228 Watt argues that the initial agreement was
shortly after the hijra and the document was amended at a later date specifically after the battle of
Badr (AH [anno hijra] 2, = AD 624). Serjeant argues that the constitution is in fact 8 different
treaties which can be dated according to events as they transpired in Medina with the first treaty
being written shortly after Muhammad's arrival. R. B. Serjeant. "The Sunnah Jâmi'ah, Pacts with
the Yathrib Jews, and the Tahrîm of Yathrib: Analysis and Translation of the Documents
Comprised in the so called 'Constitution of Medina'." in The Life of Muhammad: The Formation
of the Classical Islamic World: Volume iv. Ed. Uri Rubin. Brookfield: Ashgate, 1998, p. 151 and
see same article in BSOAS 41 (1978): 18 ff. See also Caetani. Annali dell'Islam, Volume I.
Milano: Hoepli, 1905, p. 393. Julius Wellhausen. Skizzen und Vorabeiten, IV, Berlin: Reimer,
1889, p 82f who argue that the document is a single treaty agreed upon shortly after the hijra.
Wellhausen argues that it belongs to the first year of Muhammad's residence in Medina, before
the battle of Badr in 2/624. Wellhausen bases this judgement on three considerations; first
Muhammad is very diffident about his own position, he accepts the Pagan tribes within the
Umma, and maintains the Jewish clans as clients of the Ansars see Wellhausen, Excursus, p. 158.
Even Moshe Gil a skeptic of Islamic history argues that it was written within 5 months of
Muhammad's arrival in Medina. Moshe Gil. "The Constitution of Medina: A Reconsideration."
Israel Oriental Studies 4 (1974): p. 45.
 19

12. ^ a b Tooker E (1990). "The United States Constitution and the Iroquois League". In
Clifton JA. The Invented Indian: cultural fictions and government policies. New Brunswick, N.J.,
U.S.A: Transaction Publishers. pp. 107–128. ISBN 1-56000-745-1.
13. ^ Grindle, D (1992). "Iroquois political theory and the roots of American democracy". In
Lyons O. Exiled in the land of the free: democracy, Indian nations, and the U. S. Constitution.
Santa Fe, N.M: Clear Light Publishers. ISBN 0-940666-15-4.
14. ^ Johansen, Bruce E.; Grinde, Donald A. (1991). Exemplar of liberty: native America
and the evolution of democracy. [Los Angeles]: American Indian Studies Center, University of
California, Los Angeles. ISBN 0-935626-35-2.
15. ^ Armstrong, VI (1971). I Have Spoken: American History Through the Voices of the
Indians. Swallow Press. p. 14. ISBN 0804005303.
16. ^ "H. Con. Res. 331, October 21, 1988". United States Senate.
http://www.senate.gov/reference/resources/pdf/hconres331.pdf. Retrieved 2008-11-23.
17. ^ Shannon, TJ (2000). Indians and Colonists at the Crossroads of Empire: The Albany
Congress of 1754. Ithaca: Cornell University Press. pp. 6–8. ISBN 0801488184.
18. ^ Rakove, J (2005-11-07). "Did the Founding Fathers Really Get Many of Their Ideas of
Liberty from the Iroquois?". George Mason University. http://hnn.us/articles/12974.html.
Retrieved 2011-01-05.
19. ^ Jennings F (1988). Empire of fortune: crown, colonies, and tribes in the Seven Years
War in America. New York: Norton. pp. 259n15. ISBN 0-393-30640-2.
20. ^ Snow DR (1996). The Iroquois (The Peoples of America Series). Cambridge, MA:
Blackwell Publishers. pp. 154. ISBN 1-55786-938-3.
21. ^ http://books.google.se/books?id=QDFVUDmAIqIC&pg=PA118
22. ^ http://www.search.com/reference/Nomocanon
23. ^ http://www.alanwatson.org/sr/petarzoric.pdf
24. ^ http://www.constitution.org/sps/sps.htm
25. ^ http://www.dusanov-zakonik.com/indexe.html
26. ^ Pylyp Orlyk Constitution, European commission for democracy through law (Venice
Commission) The Constitutional Heritage of Europe. Montpellier, 22–23 November 1996.
27. ^ http://www.britannica.com/EBchecked/topic/134169/constitution
28. ^ Blaustein, Albert (January 1993). Constitutions of the World. Fred B. Rothman &
Company. ISBN 9780837703626. http://books.google.com/?
id=2xCMVAFyGi8C&pg=PA15&lpg=PA15&dq=May+second+constitution+1791.
29. ^ Isaac Kramnick, Introduction, Madison, James (November 1987). The Federalist
Papers. Penguin Classics. ISBN 0-14-044495-5. http://books.google.com/?
id=WSzKOORzyQ4C&pg=PA13&lpg=PA13&dq=May+second+oldest+constitution.
30. ^ John Markoff describes the advent of modern codified national constitutions as one of
the milestones of democracy, and states that "The first European country to follow the U.S.
example was Poland in 1791." John Markoff, Waves of Democracy, 1996, ISBN 0-8039-9019-7,
p.121.
31. ^ Payne, Stanley G. (1973). A History of Spain and Portugal: Eighteenth Century to
Franco. 2. Madison: University of Wisconsin Press. pp. 432–433. ISBN 9780299062705.
http://libro.uca.edu/payne2/spainport2.htm. "The Spanish pattern of conspiracy and revolt by
liberal army officers ... was emulated in both Portugal and Italy. In the wake of Riego's successful
rebellion, the first and only pronunciamiento in Italian history was carried out by liberal officers
in the kingdom of the Two Sicilies. The Spanish-style military conspiracy also helped to inspire
the beginning of the Russian revolutionary movement with the revolt of the Decembrist army
officers in 1825. Italian liberalism in 1820-1821 relied on junior officers and the provincial
middle classes, essentially the same social base as in Spain. It even used a Hispanized political
 20

vocabulary, for it was led by giunte (juntas), appointed local capi politici (jefes políticos), used
the terms of liberali and servili (emulating the Spanish word serviles applied to supporters of
absolutism), and in the end talked of resisting by means of a guerrilla. For both Portuguese and
Italian liberals of these years, the Spanish constitution of 1812 remained the standard document
of reference."
32. ^ Aristotle, by Francesco Hayez
33. ^ Relectiones, Franciscus de Victoria (lect. 1532, first pub. 1557).
34. ^ The Law of War and Peace[1], Hugo Grotius (1625)
35. ^ Vindiciae Contra Tyrannos (Defense of Liberty Against Tyrants), "Junius Brutus"
(Orig. Fr. 1581, Eng. tr. 1622, 1688)
36. ^ The American Republic: its Constitution, Tendencies, and Destiny, O. A. Brownson
(1866)
37. ^ Principles of Constitutional Design, Donald S. Lutz (2006) ISBN 0-521-86168-3
38. ^ The Paradox of Self-Amendment, byPeter Suber (1990) ISBN 0-8204-1212-0
39. ^ UK principle: no Parliament is bound by the acts of its predecessors
40. ^ Honduran Constitution "Republic of Honduras: Political Constitution of 1982 through
2005 reforms; Article 374" (in Spanish). Political Database of the Americas (Georgetown
University). http://pdba.georgetown.edu/Constitutions/Honduras/hond05.html Honduran
Constitution
41. ^ State of emergency in Argentina and other Spanish-speaking countries (in Spanish)