What is the essence of a Constitution

[Naseer Ahmed Chandio]

Constitution

Every government has an organizational  structure that defines the specific responsibilities of its public officials. Some officials make the laws, others see to their enforcement. Taxes must be collected and revenues spent. There must be provision for preserving the domestic peace and providing for national defense. The fundamental written documents that state how governments shall operate and define their limitations are their constitutions.

Today the operation of a government according to a constitution does not make that government a constitutional government by popular definition. A constitutional government suggests that the government is a republic or a democracy. Constitutional government is, therefore, by the consent of the governed.

The foundations of modern constitutions were laid in the 17th and 18th centuries by such writers as Charles de Montesquieu, Thomas Hobbes, John Locke, and Jean-Jacques Rousseau. These men represented all who reacted against the traditional rule of kings and princes and religious authority. What these men thought and wrote greatly influenced the authors of the American and French constitutions late in the 18th century. Chief among the important issues involved were how to make governments responsive to the wishes and needs of their people and how to restrain governments from interfering with civil rights and liberties.

Aspects of Constitutional Government

Nearly every nation in the modern world has a constitution. In most cases these are written documents such as the United States Constitution of 1787 or France's constitution of 1958. Great Britain has what is usually called an unwritten constitution. There is no single document that is Britain's fundamental law. There has been, rather, a cumulative development for centuries of legislative enactments, judicial decisions, and statements of rights.

Most 20th-century dictatorships also have constitutions. But if true constitutionalism implies democracy and freedom, it takes more than the possession and publication of a constitution to have a constitutional government. For a true constitutional government to exist, the following conditions should be present:

Sovereignty.

The real power in a state should be in the hands of the people. This means that those who hold public office are accountable to the people. Unfortunately, most modern democracies are so large that accountability is often difficult to achieve. And there are usually many officials—members of bureaucracies and many judges—who are not easily held accountable for their actions.

Division of power.

Absolute monarchies and dictatorships usually concentrate all authority in the hands of one person or, at most, a few individuals. A king, for instance, makes the laws, sees to their enforcement, and interprets them. His subjects have no place to go beyond him with their grievances.

A democratic constitution divides power among different branches of government—the legislative, the executive, and the judiciary—thus imposing limits of authority on each branch. In many countries the legislative branch itself is divided into two separate houses. The approval of both houses is needed before laws can become valid.

Representation.

In a republic officials are considered to be representatives of those who elect them. The officials owe their jobs to their constituencies—the particular voters who chose them—and should, therefore, take the public's desires into consideration when passing laws.

Stability.

Constitutions describe the fundamental procedures by which the government operates. An early chief justice of the United States Supreme Court, John Marshall, said that “A constitution is framed for ages to come,” suggesting that no matter what the historical changes, trials, and upheavals the constitution will remain the law of the land. It will provide for the orderly and peaceful transfer of power from one set of officeholders to the next.

Some constitutions include provisions that allow for their suspension in times of emergency. This occurs when martial law is imposed: the military authorities rule temporarily when the civil rulers are deemed unable to cope with the situation. Such a provision is a very dangerous one for a constitution to contain because it has frequently allowed officeholders to seize control of government on some pretext and to establish a military dictatorship. This has happened in several African nations, Greece, Turkey, Poland, Pakistan, several Latin American nations, and the Philippines. Occasionally free government is restored, but in most cases it is not.

Openness.

Government secrecy is a threat to a free society. The only time secrecy is acceptable is when it protects the security of the nation. Otherwise, what a government does should be available to all so that its citizens may make informed decisions. However, many modern national governments are so large, their proceedings so complex, and their laws so numerous that it is impossible for every citizen to be informed adequately of all that is going on.

Government bureaucracies tend to have so many regulations and procedures that they intimidate any citizen who must deal with them. To help cope with this problem, the Scandinavian countries instituted the office of ombudsman, meaning “attorney” or “legal representative.” The ombudsman is a legal commissioner who investigates citizen complaints against bureaucratic abuse or secrecy. This office has been copied in various forms in New Zealand, Great Britain, West Germany, Israel, and in some states of Australia, the United States, and Canada.

Changing a Constitution

Processes of amending, or changing, a constitution are normally provided for in the document itself. The United States Constitution has only been amended 26 times since it went into effect in 1789, and ten of those amendments consist of the Bill of Rights that was added in 1791. Because the amendment process is time-consuming and cumbersome, the fundamental law of the land is not easily subject to the whims of special-interest groups, factions, or even the majority of the population at any given time.

The shorter and more basic a constitution is, the less likely it is to be changed. The most successful constitutions confine themselves primarily to the procedures of government. By contrast, those constitutions having lengthy sections of what amounts to statute law are subject to frequent amendment. If a constitution embodies, for example, provisions that guarantee full employment, housing, or college education, it may fail if the government is unable to live up to these promises.

It was just this type of situation that led to the one failed experiment in the United States Constitution. The 18th, or Prohibition, Amendment was added in 1919. It was a law prohibiting the manufacture and sale of alcoholic beverages. The statute represented the desires of a substantial faction of the American population at the time. But it proved unenforceable and failed miserably because too many people disliked it and refused to obey it. It was repealed, or withdrawn, by the 21st Amendment in 1933.

British Constitutionalism

Great Britain is the home of modern constitutional government. Its gradually developed constitution has been crafted for several centuries. The country began as a monarchy, but gradually the institution of Parliament grew out of the king's council, and today Britain is called a constitutional monarchy.

In contrast to the United States, which has a federal system of government (a variety of interlocking authorities) and a separation of powers, Britain has a unitary government. This means there is no separation of powers: Parliament is the supreme authority, and the executive is embedded in the legislative branch by what is called a cabinet system (see Cabinet Government). The courts may neither review nor overturn acts of Parliament, but Parliament may review and overturn court decisions.

The British constitution is unwritten only in the sense that there is no single document that serves as fundamental law. But it is written in thousands of acts of Parliament and judicial decisions. Some of these—such as the Magna Carta, the English Bill of Rights, and many reform acts—have played a significant role in limiting the powers of government and in safeguarding citizens' rights and liberties.

European Constitutionalism

In contrast to Great Britain and the United States, the countries of continental Europe have no long, unbroken tradition of constitutional government. Until the French Revolution of 1789, most European governments were monarchies or principalities. The French Revolution introduced the principles of modern constitutionalism, but even in France there were returns to monarchy in the 19th century.

France has had five republics since 1789, and each has had its own constitution. The longest to endure was that of the Third Republic, from 1870 to the German invasion and conquest in 1940. The constitution of the current Fifth Republic went into effect in 1958 (see France, “Government”).

Germany was not unified until 1871. It remained a monarchy until the end of World War I, when it received its first constitution, that of the Weimar Republic, in 1919. The republic was abolished by Adolf Hitler in 1934, and after World War II the country was divided into two parts. West Germany's constitution, called the Basic Law, was adopted by a parliamentary council in 1949. When Germany was reunited in 1990, the Basic Law was extended to apply to the entire country (see Germany).

Most other European nations have become constitutional republics: Finland, Greece, Italy, Austria, and Portugal. Spain became a constitutional monarchy when King Juan Carlos I took the throne in 1975 after the death of Francisco Franco, the country's long-time dictator. Norway, Denmark, Sweden, The Netherlands, and Belgium remain constitutional monarchies.

[Rana Jawad Ali]

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