Dr. Almon Leroy Way, Jr.

University President & Professor of Political Science






What is a constitution? What are its functions? How does an "unwritten" constitution differ from a written constitution? What are the characteristics and content of the British Constitution? What is a constitutional system? What is constitutionalism? What is its central purpose? What are the different ways in which a constitution may limit political authority? How can a government be constitutional without being democratic?

1. Constitution--Nature and Functions:

Constitution--A Definition. A constitution is the body of law that is the basic, or fundamental, law of a politically organized society. The Constitution is the supreme law of the political society; it is higher than and takes precedence over all other laws of the society. All the other laws, to be valid and enforceable, must be in accord with the higher and superior law of the Constitution. An official decision of any governmental institution or office must be in harmony with the Constitution, the supreme law of the political community. The legislature, the executive, and the courts must follow the Constitution.

In the U.S.A., every law enacted by a legislature and every decision or action of an executive office or agency must be in accord with the Constitution of the United States, the supreme law of the land. The constitutionality of any legislative statute or executive decision or action can be challenged in the courts of law. If the governmental decision or action in question is found by the courts to be contrary to the Constitution, they will uphold the Constitution and set aside the unconstitutional decision or action of the legislature or of the executive.

2. The Functions of a Constitution. In a society with a genuinely constitutional political regime, the Constitution (1) provides the legal foundation and basic structure, or framework, of the society's government, (2) prescribes the form and procedures of the government, (3) grants certain powers to the government, (4) designates the major organs, or institutions, of government and the method by which the personnel--or top personnel--in each are to be selected, (5) assigns to each major governmental institution its particular area of authority and responsibility, (6) defines the relationship between the government and the individual citizen as well as the relationships among the principal organs of government, and (7) establishes the metes and bounds of political authority--i.e., imposes limits on governmental power.

2. Constitutions--Written and Unwritten:

A constitution can be written or unwritten.

Written Constitutions. A written constitution is codified. That is, a single constitutional document, titled "the Constitution," serves as the basic law of the political society and as the legal foundation of its government. The entire body of fundamental law for the society is contained in a single document, as amended.

With one significant exception, every constitutional political regime in the world today operates on the basis of a written constitution. Contemporary examples of written constitutions include the Constitution of the United States of America, the Constitution of the Fifth French Republic, the Basic Law of the Federal Republic of Germany, the Constitution of the Swiss Confederation, and the constitutions of the 50 semiautonomous (partly self-governing) states comprising the American federal union (e.g., the Constitution of the State of South Carolina).

In the U.S.A., the Federal Constitution--the Constitution of the United States of America --is the basic law of American society, governs the operation of the national government, and establishes the formal power relationships between the national government and the 50 semiautonomous states as well as the formal power relationships among the principal organs, or institutions, of the national government. The U.S. Constitution is a single document consisting of the seven original articles drafted by the Federal Constitutional Convention of 1787 and subsequently ratified by the 13 original states, plus the 27 amendments that have been added to the document during the 211 years that have elapsed since ratification and adoption of the Constitution.

An Unwritten Constitution. The governmental system in present-day Great Britain is the only contemporary constitutional regime that does not operate on the basis of a written constitution. The British Constitution is an "unwritten" constitution in the sense that it is uncodified. There is no single document called "the British Constitution" or "the Constitution of the United Kingdom of Great Britain and Northern Ireland." There is no single constitutional document that contains the entire body of fundamental law governing the operation of the British government. The constitutional rules which shape and determine the formal-legal nature and functioning of government in the United Kingdom are contained in a centuries-old collection of historic documents, acts of Parliament, Common Law, constitutional customs and traditions, and long-standing political usages, or practices. Some parts of the British Constitution are written, but many more are not.

Written elements of Great Britain's Constitution include several important constitutional documents which were adopted at different points in the history and development of English/British constitutionalism and which are major milestones in that long period of legal and political evolution--Magna Carta (1215), the Petition of Right (1628), and the Bill of Rights (1689). The written elements also include parliamentary statutes that have attained constitutional status--e.g., the Habeas Corpus Act of 1679, the Act of Settlement of 1701, the Reform Acts of 1832, 1867, 1884, 1918 and 1928, and the Parliament Acts of 1911 and 1949.

In addition to the foregoing, the British Constitution contains important decisions of the courts of law, expecially as regards the Common Law--the vast body of judge-made law that, beginning in the twelfth century, evolved from custom and judicial precedent. Constitutionally significant aspects of the Common Law include, among other things, the judicial precedents establishing the legal principles and rules governing protection of the individual British subject's basic rights and liberties. The constitutional principles and rules established by decisions handed down in the Common-Law courts are contained in neither neither historic constitutional documents nor constitutionally significant statutes and are therefore considered to be among the unwritten parts of the Constitution. However, the original statements of these principles and rules can be found in the written court records.

The unwritten elements of Britain's Constitution include constitutional customs and traditions, e.g., those relating to special privileges enjoyed by Parliament and its individual members. More importantly, the unwritten elements include what are called the "conventions of the Constitution"--a series of long-established and highly significant political usages which have the same force as the provisions of a written constitution. These conventions are fundamental rules of political practice and make up a wholly unwritten but crucial part of the Constitution. Among the more important of the conventions--the unwritten basic rules of political practice--are those which dictate that (1) Parliament shall convene at least once every year, (2) the Monarch shall appoint as Prime Minister the member of Parliament who enjoys the confidence and support of a majority in the elective chamber of Parliament, the House of Commons, (3) the Crown shall appoint to the other posts, or offices, in the Cabinet the persons recommended by the Prime Minister, (4) the Monarch shall follow the advice of the Prime Minister, (5) only the Prime Minister shall have access to the Monarch and their discussions shall be kept secret, (6) the Monarch shall not attend meetings of the Cabinet, (7) the Prime Minister and other Cabinet members shall be collectively responsible (i.e., jointly accountable) to the House of Commons on matters of public policy, (8) upon losing the confidence and support of the majority in the Commons, either the Prime Minister and other Cabinet members shall resign their positions in the Cabinet or the Prime Minister shall advise the Crown to dissolve Parliament and call a national election, (9) the Monarch shall automatically assent to parliamentary legislation--i.e., the Crown shall not veto a legislative bill passed by Parliament, and (10) Parliament shall not enact any statute that would have the effect of destroying or seriously weakening the basic constitutional and democratic features of the British political regime--e.g., Parliament shall not repeal the Bill of Rights or pass an act restricting the electoral franchise to a small minority of the adult population. Violation of the conventions of the Constitution is a most infrequent (in fact, virtually nonexistent) practice in Britain.

In short, the British Constitution is a body of fundamental law that has evolved over a very long period of time--a period of many centuries. Rather than consisting of a single document, Britain's Constitution contains numerous written and unwritten elements--all of which, in combination, perform essentially the same functions as does a body of written basic law contained in one document, as amended. There are five particular sources of the basic law of the United Kingdom--historic constitutional documents, parliamentary statutes that have attained constitutional status, jucicial decisions of constitutional significance, constitutional customs and traditions, and the conventions of the Constitution. If a person seeks to discover the basic rule or rules determining constitutionally permissible governmental action on a given point or issue, he may have to consult all five sources of British fundamental law.

In every other country with a constitutional system of government, the present-day Constitution is a single document which was drawn up and adopted at a particular time, went into effect on a specific date, and subsequently has been amended from time to time.

3. Constitutional System--Definition and Example.

If a society's system of government is truly constitutional in character--i.e., if the government operates under and in accord with a constitution effectively limiting and controlling the power of that government--the society has a constitutional system. Simply and briefly defined, a society's constitutional system consists of the power relationships existing among the principal organs of government and resulting from the constitutional division and distribution of political authority among them. The constitutional system includes the formal role or roles in the governing process played by each of the principal governmental institutions under the Constitution.

In American society, for example, the United States Constitution (1) divides and distributes the legitimate authority of government between the central government over the whole nation and the governments of the member-states of the federal union, (2) reserves certain governmental powers to the states, while denying them certain other powers, (3) delegates certain powers to the national government and expressly prohibits it from exercising certain other powers, (4) allocates the powers delegated to the national government among the principal organs of that government (the U.S. House of Representatives, the U.S. Senate, the President of the U.S.A., and the U.S. Courts), granting each governmental organ a separate set of powers and giving it a strong incentive as well as the legal right to oppose, block, check, and restrain the other organs, and (5) imposes certain limitations on both the central government and the states by guaranteeing civil liberties, i.e., the basic rights and liberties of the individual citizen. The manner in which the U.S. Constitution grants, distributes, and limits political authority results in an established set of power relations between the national government and the states and among the major offices and institutions of the national government. These power relationships among the various levels and organs of American government result in established patterns of authoritative decisionmaking and action on public policy and an established role or set of roles for each level or organ of government in the legitimate processes of authoritative decisionmaking and action. The power relations, the processes of authoritative decisionmaking and action, and the formal roles of the major participants in these processes--all of which are characteristic of the American governmental system and stem from the manner in which the U.S. Constitution grants, allocates, and restricts governmental authority--make up the American constitutional system.

4. Constitutionalism--Nature and Central Purpose:

Constitutionalism--A Definition. Constitutionalism is government conducted in accordance with and within the limits set by the fundamental law of the Constitution. The Constitution, as a body of written or unwritten basic law, is superior to and takes precedence over all ordinary acts of the legislature and over all decisions and actions of the executive branch of the government. Under the Constitution, restrictions on the discretionary authority of public officers and institutions are clearly recognized and regularly enforced. In short, the Constitution effectively limits the power of government.

Thus, constitutionalism is limited government--limited government under a constitution. A constitutional government is one whose powers are effectively limited by law--limited by the fundamental law of the Constitution.

To be genuinely constitutional in character, a government must comply with two fundamental legal requirements: (1) The government must operate in accord with the provisions of the Constitution. (2) The government must not exceed the authority granted to it by the Constitution. The essential features of constitutionalism are the government's compliance with these two basic legal requirements.

The Central Purpose of Constitutionalism. The central purpose of constitutionalism is to limit governmental power, to check and restrain the persons who hold public office and exercise political authority.


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