What a Constitution Is, and What It Is For
Chapter Two
Syllabus topic 1, "Constitutionalism, Classification of Constitutions"
Pages 6 to 10 of 676
In one line
A constitution is the law that constitutes: it brings a State's organs into existence, gives each of them its powers, sets limits on those powers, and says how it may itself be changed.
In the wording a student can write in an exam: a constitution is the body of fundamental rules, written or unwritten, which establishes the institutions of government, distributes public power among them, regulates the relationship between the State and the individual, and provides the procedure by which those rules may be altered.
Why a State has one at all
Power exists before a constitution does. A group of people who can compel obedience will do so whether or not there is a document. What a constitution adds is that the compulsion becomes authorised, limited and predictable.
That is the whole purpose, and it explains why constitutions look so different from each other. The framers of each of MU's seven texts were answering a specific problem in front of them:
- The Americans in 1787 were trying to build a central government strong enough to be useful out of thirteen States that had just fought a war against a strong central government. The result is a short document obsessed with limits.
- The Canadians in 1867 were federating in the shadow of a civil war next door that had been fought over States' rights, so they gave the residue and the important powers to the centre.
- The Irish in 1937 were replacing a constitution imposed by treaty, and wrote a document heavy with statements of national identity and social principle.
- The Germans in 1949 were writing against the memory of a constitution that had been used to destroy a democracy, so they put human dignity in article 1 and made parts of the text unamendable.
- The Indians in 1949 were integrating princely States, guaranteeing rights to a plural society with no prior tradition of self-government, and preparing for emergencies. Hence the longest national constitution in the world.
- The Swiss in 1999 were consolidating a text that had accumulated since 1848 while keeping the direct democracy that is the point of the whole system.
- The British were doing none of this, because nobody sat down to write it.
The lesson to carry through the paper: a constitution is a solution to a problem, and you cannot judge the solution without knowing the problem.
The four jobs every constitution does
Whatever its form, a constitution does four things. Every comparison in this book can be organised under one of them.
1. It constitutes the organs. It says that there shall be a Parliament, a President, a Supreme Court, and it says how each is composed. Articles 79 and 124 of the Indian Constitution, Article I section 1 and Article III section 1 of the American, sections 17 and 101 of the Constitution Act 1867, articles 143 and 188 of the Swiss.
What a Constitution Is, and What It Is For
2. It distributes power. Between the organs, which is separation of powers, and between levels, which is federalism. Article 246 and the Seventh Schedule in India; sections 91 and 92 of the Constitution Act 1867; article 3 and articles 42 to 49 in Switzerland; articles 70 to 74 of the Basic Law.
3. It limits power. By guaranteeing rights against the State, by requiring procedures, and by making some things impossible. Part III of the Indian Constitution, the American Bill of Rights, the Canadian Charter, articles 7 to 36 of the Swiss Constitution, articles 1 to 19 of the Basic Law, Articles 40 to 44 of the Irish Constitution.
4. It provides for its own change. Article 368 in India, Article V in the United States, articles 192 to 195 in Switzerland, Part V of the Constitution Act 1982, article 79 of the Basic Law, Articles 46 and 47 in Ireland. In the United Kingdom, an ordinary Act of Parliament does it.
A worked example: three ways of doing the same job
Suppose a government wants to detain people without trial during an emergency. Watch the four jobs at work.
In India the constitution has anticipated it. Article 352 lets the President proclaim an emergency; article 358 suspends article 19 during a war emergency; article 359 lets the President suspend the enforcement of certain rights, but the Forty Fourth Amendment of 1978 removed articles 20 and 21 from what may be suspended. So the answer is in the text, and the text was rewritten after the experience of 1975 to 1977.
In the United States the constitution has almost nothing to say. There is no emergency chapter. Article I section 9 provides only that the privilege of the writ of habeas corpus shall not be suspended unless in cases of rebellion or invasion the public safety may require it. The answer therefore came from a court, and in Korematsu v. United States, 323 U.S. 214 (1944), it came out badly: the Court upheld the exclusion of American citizens of Japanese descent from the West Coast on the ground of military necessity, while stating the rule that all legal restrictions curtailing the civil rights of a single racial group are immediately suspect and must be subjected to the most rigid scrutiny.
In the United Kingdom the answer is a statute, and a court reading it. Regulation 18B of the Defence (General) Regulations 1939 allowed the Home Secretary to detain a person if he had reasonable cause to believe him of hostile associations. In Liversidge v. Anderson, [1942] AC 206, the House of Lords held by a majority that the words meant no more than that the minister thought he had reasonable cause, so the sufficiency of his grounds could not be examined. Lord Atkin dissented, and his dissent is now treated as the correct view.
What a Constitution Is, and What It Is For
Three constitutions, one problem, three completely different places to look for the answer: a text, a court, a statute. That is comparative constitutional law in miniature.
The cases
Facts. Korematsu v. United States, 323 U.S. 214 (1944), arose out of the wartime exclusion of Americans of Japanese descent from the West Coast. Fred Korematsu, an American citizen, was convicted of remaining in a designated military area in California contrary to Civilian Exclusion Order No. 34. No question was raised as to his loyalty.
Held, by Black J for the Court. The conviction stood, on the ground of military necessity. The same opinion nevertheless laid down that all legal restrictions curtailing the civil rights of a single racial group are immediately suspect and must be subjected to the most rigid scrutiny, and that pressing public necessity may sometimes justify such restrictions but racial antagonism never can. Murphy J dissented, saying the exclusion went over the very brink of constitutional power and fell into the ugly abyss of racism.
Why it matters here. A constitution with no emergency chapter leaves the whole question to a court, and this is the standing example of a court failing under that weight. The formula it laid down while failing is the one that now governs American affirmative action, which is why the case reappears in [Strict Scrutiny and Compelling Interest].
Facts. Liversidge v. Anderson, [1942] AC 206, arose under regulation 18B of the Defence (General) Regulations 1939, which provided that if the Secretary of State had reasonable cause to believe a person to be of hostile origin or associations, and that it was necessary to exercise control over him, he might order his detention. Robert Liversidge, detained, sought particulars of the grounds.
Held, by the majority. The words meant no more than that the Secretary of State thought he had reasonable cause, so the objective sufficiency of the grounds was not open to review. Lord Atkin dissented, and his dissent is now treated as the correct view.
Why it matters here. An uncodified constitution answers an emergency question by construing a statute, with no higher law to appeal to. The Indian parallel is Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207, worked in [Emergency, Derogation and Suspension].
Distinctions
| Constitution | Ordinary law | |
|---|---|---|
| What it does | Creates and limits the law-making power itself | Is made in exercise of that power |
| How it is changed | By a special procedure, in six of MU's seven systems | By the ordinary legislative process |
| Position in a conflict | Prevails, in six of the seven | Yields |
| Who may set it aside | Nobody, in most systems | A court, if it conflicts with the constitution |
What a Constitution Is, and What It Is For
In the United Kingdom the first, second and third rows do not hold, and that is exactly what makes it worth studying.
What it does NOT mean
A constitution is not a code of everything the State does. It is a framework. India's is unusually detailed and still leaves nine tenths of the working of government to ordinary law.
A constitution is not a guarantee. A State can have an admirable constitution and no constitutionalism at all. [A Constitution Without Constitutionalism] is that chapter.
A constitution is not necessarily one document. Two of MU's seven, the United Kingdom and Canada, are not. Canada is at least a defined set of instruments; the United Kingdom is not even that.
Limits and criticism
The four-jobs account is useful and incomplete. Three objections are worth knowing.
It says nothing about legitimacy. A constitution imposed by an occupying power does the four jobs and may still be rejected by the people it governs. The Basic Law's own article 146 acknowledges this by contemplating a constitution adopted by a free decision of the German people.
It treats the text as the constitution. The working constitution of any State includes a great deal that no text mentions: conventions, party discipline, the practice of the civil service. Module I topic 2 is entirely about that gap.
It assumes the constitution is being obeyed. The four jobs are descriptions of what a constitution says. Whether it is followed is a separate question and, for the citizen, the only one that matters.
Quick revision
- A constitution constitutes the organs, distributes power, limits power and provides for its own change.
- Each of MU's seven answered a specific historical problem, and the design follows the problem.
- India anticipates emergency in the text; the United States leaves it to the courts; the United Kingdom to a statute and its construction.
- Korematsu v. United States, 323 U.S. 214 (1944): exclusion upheld, but the immediately-suspect and rigid-scrutiny formula was laid down in the same opinion.
- Liversidge v. Anderson, [1942] AC 206: majority declined objective review; Lord Atkin's dissent is now the accepted view.
- Constitution against ordinary law: creates the power, changed specially, prevails in conflict. All three fail in the United Kingdom.
Test yourself
1. State the four functions of a constitution and give one provision for each from a different country. Constituting the organs: Article III section 1, United States Constitution, vesting the judicial power. Distributing power: section 91, Constitution Act 1867, listing federal powers. Limiting power: article 1 of the German Basic Law, human dignity. Providing for change: articles 192 to 195 of the Swiss Constitution, total and partial revision.
What a Constitution Is, and What It Is For
2. Why does the American Constitution have no chapter on emergency, and what follows? Its framers were building limits against a central government and did not provide a general emergency power; the only relevant clause is the suspension of habeas corpus in Article I section 9. What follows is that emergency questions reach the courts as ordinary constitutional litigation, which is how Korematsu arose and why the American answer is judicial rather than textual.
3. How does the Indian Constitution's treatment of emergency differ, and what changed it? Part XVIII provides expressly for three kinds of emergency and for the suspension of the enforcement of rights under article 359. The Forty Fourth Amendment of 1978, enacted after the Emergency of 1975 to 1977, removed articles 20 and 21 from the reach of that suspension, so the right to life and the protections against retrospective punishment can no longer be suspended.
4. "A constitution is a solution to a problem." Illustrate from two of MU's seven. The German Basic Law of 1949 answered the destruction of the Weimar democracy by putting human dignity first, entrenching the federal order and the principles of articles 1 and 20 against amendment in article 79(3), and requiring a constructive vote of no confidence. The Canadian Constitution Act 1867 answered the American civil war by giving the residue and the important heads of power to the centre rather than to the provinces.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.