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Advantages Of Written Constitution



From Wikipedia, the free encyclopedia. Authentic Mexican Food constitutions are rare, and there is often Benito Mussolini Fascism Analysis to whether so-called "confederal" states Advantages Of Written Constitution actually federal. Articles of Confederation. I have Advantages Of Written Constitution it for later! I will be coming back Advantages Of Written Constitution your web site for more soon. I truly appreciate people Advantages Of Written Constitution you! Advantages Of Written Constitution later writings Advantages Of Written Constitution Orestes Brownson [59] would try to explain Advantages Of Written Constitution constitutional designers were trying to do. You certainly put a new spin on a subject Advantages Of Written Constitution has celebrities with bad breath discussed for decades.

Opinionated: Should the United Kingdom Codify Their Constitution? - TLDR News

However, their effectiveness is camouflaged by the many instances of undemocratic principles and practices in the same Constitution. On the democratic elements, the original Constitution made provisions for the separation of powers into three branches — executive, legislative, and judicial. Powers to make all laws governing the country, control budgetary allocations, declare war and ratify treaties were vested in the Legislative arm of government, also known as the Congress.

The executive arm, also known as the presidency, was granted the powers to preserve, protect and safeguard the US Constitution; faithfully execute the laws governing the land; implement the instructions made by Congress, veto laws that may be deemed unconstitutional, and implement spending as endorsed by Congress. The judicial arm, also known as the Supreme Court, functioned to establish the jurisdiction of particular cases under the US judicial system; the disposition of convicted prisoners; and the production of evidence and testimonies as the law provides for in the Constitution. The judicial arm is specifically crafted and limited by the legislative arm Dahl However, the above arrangement of the separation of powers has proved dysfunctional, especially between the legislative and executive arms of government.

In practice, the president and the Congress have rather dissimilar constituencies as revealed by the competitive struggle of votes from the electorate in elections Hardin The separation is also dysfunctional by the very fact that neither the executive nor the legislative arm exercise significant control or sway on the appointment of the other to office. Other democratic elements espoused in the original Constitution consist of the freedom from domestic violence, freedom from the extremists of religion, and the right to be protected against invasion Held Article 6 of the unadulterated US constitution made provisions that nobody was to be subjected to a religious test as a prequalification to gain entry into any public office. This provision offered more freedom to US citizens.

Although not seen as entirely democratic, the original Constitution also promoted a representation form of government in which all constituents within the state had an opportunity to be represented in the Senate and House of Representatives. There exists a multiplicity of undemocratic elements in the original US Constitution. First, although the original Constitution guaranteed freedom from domestic violence, it neither prohibited slavery nor sanctioned Congress to do so. In essence, failure by the constitution to abolish slavery not only denied the legislative arm the power to forbid the importation of slaves prior to , but it offered constitutional sanction to repressive laws such as the fugitive slave laws, which dictated that a fugitive slave had to be hunted down and taken back to the slave holder Dahl The slavery perspective reveals a dysfunctional Constitution in the sense that its preamble had sought to establish justice and blessings of liberty Levinson Second, the original Constitution was unsuccessful in assuring the right of suffrage, leaving the interpretations and qualifications of suffrage to individual states Dahl This inherently meant that half of the population, mostly women, African-Americans, and poor Native Americans could not vote in an election.

By then, the Constitution had suppressed the civil liberties of these groups of Americans. However, the same civil liberties, under the auspices of civil rights groups, were instrumental in campaigning for the rights of the women to vote a century and half later. Voting privileges for African-Americans were attained some two centuries later, courtesy of the same civil rights groups led by astute rights activists such as Malcolm X and Martin Luther King Hardin Third, by coming up with a system of electing a president that was to be shielded from both the desires of popular majorities and the overbearing influence of congressional control, the Framers of the original Constitution probably never stopped to ponder the contour that politics would assume in a mature democratic republic.

Consequently, the Framers hatched the Electoral College, a group of presidential electors comprising men of outstanding wisdom, character and value, charged with the responsibility of choosing the president Dahl Through this provision, the US is often led by unpopular and incompetent presidents, who have lost the popular vote but goes ahead to be chosen by the Electoral College. Indeed, the Electoral College was conceived to bring the small states on board in the process of forming a federal government. Federalism, which is defined as a structure of government in which authority and power is distributed between a national government and constituent regional governments, has obvious advantages of guaranteeing government services remain closer to the people, decentralizing resources, enhancing exclusive and innovative techniques for tackling issues bedeviling society at a regional level, and providing safeguards to the domination by the majority.

However, it leads to duplication of government services, overlapping policies, inequality between regions and corruption Johnson This not withstanding, the Electoral College in the 21 st century has served to curtail participatory and pluralist democracy, with small states such as Wyoming and North Dakota having equal votes in the college with highly populated states such as California. This reveals the dysfunctional nature of the original constitution.

Forth, the original Constitution failed to curtail the power enjoyed by the judiciary to proclaim as unconstitutional statutes that had been aptly approved by the Congress and duly signed by the sitting president Dahl Again, this reveals a dysfunctional aspect of the original Constitution in the fact that federal judges assumed the responsibility of formulating government laws and policy frameworks, a task that undoubtedly belonged to the Congress. The method used to select senators and the issues of equal representation in the senate are other sticky issues found in the original Constitution. Senators were to be chosen by the state legislatures rather than the constituents, effectively curtailing participatory democracy and a rule by the majority since the selected senators would be minimally receptive to popular majorities and conceivably be more receptive to the requirements of property holders Dahl This is both undemocratic and dysfunctional.

In equal representation, the senate tied American voters to geographical attributes rather than population densities, effectively tilting political power in the direction of the alliances of smaller states. This is undemocratic. All in all, the original Constitution has had its fair share of democratic and undemocratic elements, as well as supporters and detractors. In , Americans were ruled by an unpopular president in the name of George W. What alarms many experts and policy makers is the fact that it is extremely hard to change some offending provisions in the US constitution. The American people never took part in a referendum to ratify the Constitution. In the light of this, concerted efforts need to be initiated to ensure that the US constitution represents the true value of democracy — rule by the majority.

Cunningham, F. Theories of Democracy: A Critical Introduction. London: Routledge. ISBN: Other examples of European constitutions of this era were the Corsican Constitution of and the Swedish Constitution of All of the British colonies in North America that were to become the 13 original United States, adopted their own constitutions in and , 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 , the oldest still-functioning constitution of any U. 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. 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. Corsican Constitutions of and were inspired by Jean-Jacques Rousseau. The latter introduced universal suffrage for property owners. The king also cherished other enlightenment ideas as an enlighted despot and repealed torture, liberated agricultural trade, diminished the use of the death penalty and instituted a form of religious freedom. The constitution was commended by Voltaire. The United States Constitution , ratified June 21, , was influenced by the writings of Polybius , Locke , Montesquieu , and others.

The document became a benchmark for republicanism and codified constitutions written thereafter. Another landmark document was the French Constitution of It established a federal government but was repealed one year later. On March 19, the Spanish Constitution of was ratified by a parliament gathered in Cadiz , the only Spanish continental city which was safe from French occupation. The Spanish Constitution served as a model for other liberal constitutions of several South European and Latin American nations, for example, the Portuguese Constitution of , constitutions of various Italian states during Carbonari revolts i. In Brazil , the Constitution of expressed the option for the monarchy as political system after Brazilian Independence.

The leader of the national emancipation process was the Portuguese prince Pedro I , elder son of the king of Portugal. Pedro was crowned in as first emperor of Brazil. The country was ruled by Constitutional monarchy until , when it adopted the Republican model. In Denmark , as a result of the Napoleonic Wars , the absolute monarchy lost its personal possession of Norway to Sweden. Sweden had already enacted its Instrument of Government , which saw the division of power between the Riksdag , the king and the judiciary. The first Swiss Federal Constitution was put in force in September with official revisions in , , , , and The Serbian revolution initially led to a proclamation of a proto-constitution in ; the full-fledged Constitution of Serbia followed few decades later, in The first Serbian constitution Sretenjski ustav was adopted at the national assembly in Kragujevac on February 15, 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. 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 [56] and its application to the relations among nations, and they sought to establish customary "laws of war and peace" [57] 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 the abuse of such authority. 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.

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 [59] 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 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 [60] 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. Political economy theory regards constitutions as coordination devices that help citizens to prevent rulers from abusing power. If the citizenry can coordinate a response to police government officials in the face of a constitutional fault, then the government have the incentives to honor the rights that the constitution guarantees. Because rulers cannot themselves implement their policies, they need to rely on a set of organizations armies, courts, police agencies, tax collectors to implement it.

In this position, they can directly sanction the government by refusing to cooperate, disabling the authority of the rulers. Therefore, constitutions could be characterized by a self-enforcing equilibria between the rulers and powerful administrators. 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. 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 ". 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; see constitutional convention.

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 and some scholars have pointed out that high constitutional turnover within a given country may itself be detrimental to separation of powers and the rule of law.

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. 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.

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. In ethnic nation-states such as Estonia , the mission of the state can be defined as preserving a specific nation, language and culture. As of [update] only two sovereign states, New Zealand and the United Kingdom , have wholly uncodified constitutions. The Basic Laws of Israel have since been intended to be the basis for a constitution, but as of it had not been drafted.

The various Laws are considered to have precedence over other laws, and give the procedure by which they can be amended, typically by a simple majority of members of the Knesset parliament. Uncodified constitutions are the product of an "evolution" of laws and conventions over centuries such as in the Westminster System that developed in Britain. By contrast to codified constitutions, uncodified constitutions include both written sources — e. 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 , and the Australia Act means that Australia's constitution is not contained in a single constitutional document. The Constitution of Canada resulted from the passage of several British North America Acts from to the Canada Act , the act that formally severed British Parliament's ability to amend the Canadian constitution.

The Canadian constitution includes specific legislative acts as mentioned in section 52 2 of the Constitution Act, However, some documents not explicitly listed in section 52 2 are also considered constitutional documents in Canada, entrenched via reference; such as the Proclamation of Although Canada's constitution includes a number of different statutes, amendments, and references , some constitutional rules that exist in Canada is derived from unwritten sources and constitutional conventions.

The terms written constitution and codified constitution are often used interchangeably, as are unwritten constitution and uncodified constitution , although this usage is technically inaccurate. A codified constitution is a single document; states that do not have such a document have uncodified, but not entirely unwritten, constitutions, since much of an uncodified constitution is usually written in laws such as the Basic Laws of Israel and the Parliament Acts of the United Kingdom.

Uncodified constitutions largely lack protection against amendment by the government of the time. For example, the U. Fixed-term Parliaments Act legislated by simple majority for strictly fixed-term parliaments ; until then the ruling party could call a general election at any convenient time up to the maximum term of five years. This change would require a constitutional amendment in most nations. A constitutional amendment is a modification of the constitution of a polity , organization or other type of entity. Amendments are often interwoven into the relevant sections of an existing constitution, directly altering the text. Conversely, they can be appended to the constitution as supplemental additions codicils , thus changing the frame of government without altering the existing text of the document.

Most constitutions require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation. Some countries are listed under more than one method because alternative procedures may be used. An entrenched clause or entrenchment clause of a basic law or constitution is a provision that makes certain amendments either more difficult or impossible to pass, making such amendments inadmissible. Overriding an entrenched clause may require a supermajority , a referendum , or the consent of the minority party. 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. The president is accountable to the people in an election. In parliamentary systems, Cabinet Ministers are accountable to Parliament , but it is the prime minister who appoints and dismisses them. In the case of the United Kingdom and other countries with a monarchy, it is the monarch who appoints and dismisses ministers, on the advice of the prime minister.

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, [96] 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.

Other independent institutions which some constitutions have set out include a central bank , [97] an anti-corruption commission , [98] an electoral commission , [99] a judicial oversight body, [] a human rights commission , [] a media commission, [] an ombudsman , [] and a truth and reconciliation commission. 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 that sovereignty is ultimately contained at the centre. 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. 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 constituting the European Union have agreed to abide by some Union-wide measures which restrict their absolute sovereignty in some ways, e. Many constitutions allow the declaration under exceptional circumstances of some form of state of emergency during which some rights and guarantees are suspended.

This provision 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. Italian political theorist Giovanni Sartori noted the existence of national constitutions which are a facade 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 facade and back again as democratic and autocratic governments succeed each other. 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. Judicial philosophies of constitutional interpretation note: generally specific to United States constitutional law. From Wikipedia, the free encyclopedia.

Fundamental principles that govern a state. For other uses, see Constitution disambiguation. For the national constitutions of individual countries, see List of national constitutions. This article has multiple issues. Please help to improve it or discuss these issues on the talk page. Learn how and when to remove these template messages. This section possibly contains original research.

Please improve it by verifying the claims made and adding inline citations. Statements consisting only of original research should be removed. September Learn how and when to remove this template message. This section needs additional citations for verification. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed. Main article: Uncodified constitution. Main article: Constitutional amendment. Main article: Constitutional right. Main article: Separation of powers. Main article: State of emergency. See also: Constitutionalism. Further information: Constitutional court and Constitutionality. India's Constitution. ISBN Comparative Constitutions Project.

Retrieved June 5, Ministry of Law and Justice of India. July Archived from the original on February 23, Retrieved December 17, Oxford University Press. Harvard University Press. The U. Constitution and Fascinating Facts About It 8th ed. The Endurance of National Constitutions. New York: Cambridge University Press. Popular Basis of Political Authority. September 6, Archived from the original on October 14, Retrieved July 29, Archived from the original on July 17, University of Chicago Law School.

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