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The Concept and History of Constitution

The idea of a constitution was first elaborated by Aristotle in his classification of governments as monarchies, tyrannies, aristocracies, oligarchies, democracies, and so on. For Aristotle, the best form of government - the best constitution - was that which combined elements of monarchy, aristocracy, and democracy in such a way that the citizens of every class were enabled to enjoy their respective privileges and encouraged to exercise their respective responsibilities in the interest of the whole society.

In the Rome of the Stoic philosophers, government was viewed as organized and conducted under the rule of a universal reason and thus as reflecting a kind of universal constitution. This universalism was taken over by medieval Christian thinkers, who held that God's rule over the universe was the type of the justly constituted earthly state, a monarchy.

The modern idea of a constitution began to emerge after the Reformation, particularly in the works of Thomas Hobbes, John Locke, and Jean-Jacques Rousseau, who developed the notion of the social contract. In the social-contract view, people agree  among  themselves  to   give  up  a  portion  of -the  absolute  freedom  that characterizes the pre-social "state of nature" in return for the security that an acknowledged   sovereign   government   can  provide.   Locke's   major  works   were particularly devoted to the division of rights between those assigned to the government and those retained by individuals and to the division of powers within the government. These writings had a great impact on the late 18' -century authors of the American Declaration of Independence, the U.S. Constitution, and the French Declaration of the Rights of Man and the Citizen.

A constitution, to be worthy of the name, must contain provisions for certain political attributes: stability, both of form and of procedure; yet, on the other hand, adaptability to the social, economic, technological, and other changes that are inevitable in the life of a state; accountability of those in power to some other organ of the state, such as an electorate; representation of the governed within the government; openness in the conduct of government; and division of power among distinct branches of government. Constitutional government is thus limited government, and it is a chief function of a constitution to serve as the standard of legitimacy by which governments may be judged.

In its wider sense, the term constitution means the whole scheme whereby a country is governed; and this includes much else besides law. The constitutional lawyer must constantly keep glancing backward into constitutional history; he must also keep his eye on current political practice and the day-to-day working of political institutions. In its narrower sense, "constitution" means the leading legal rules, usually collected   into   some   document   that   comes   to   be   almost   venerated   as   "The Constitution." But no country's constitution can ever be compressed within the compass of one document, and even where the attempt has been made, it is necessary to consider the extralegal rules, customs, and conventions that grow up around the formal document.

Characteristics of Constitutions

Every state has a constitution, since every state functions on the basis of certain rules and principles. It has often been asserted that the United States has a written constitution but that the constitution of Great Britain is unwritten. This is true, but only in the sense that in the United States there is a formal document called the Constitution, whereas there is no such document in Great Britain. In fact, however, many parts of the British constitution exist in written form, whereas important aspects of the American constitution are wholly unwritten. The leading enactments of the British constitution are the Bill of Rights (1689), the Act of Settlement (1700-1701), the Parliament Act of 1911, the Successive Representation of the People Acts (which extended the suffrage). There are also the statutes dealing with the structure of the courts, the various local government acts, and many others. These are not ordinary statutes, even though they were adopted in the ordinary legislative way, and they are notcodified within the structure of a single orderly document.

Whether "long" or "short", written constitutions can concern themselves exclusively or prevalently with the organization of government or deal extensively with  the rights of the people and with the goals of governmental action. The U.S. Constitution is a model of brevity (about 7,000 words). Just a little longer are most of the Western countries' constitutions. On the other hand, the constitution of India extends to hundreds of pages. Merely “organizational" constitutions (i.e., documents containing no guarantees for rights) have become very rare.

Written constitutions are said to be "normative" when their binding principles are more or less all observed in the actual operations of the political system. This applies to the constitutions of the United States, Canada, and of some western European countries. Other constitutions are said to be "nominal," because they are largely or in substantial parts disregarded and do not provide insight into the real functioning of the system. This is often the case with constitutions of rapidly loping countries and of countries ruled by a one-person or a one-party dictatorship.

Constitutions, written or unwritten, must be distinguished according to whether they are "rigid" or "flexible." Rigid are those constitutions at least some part of which cannot be modified in the ordinary legislative way. Flexible are those whose rules can ill be modified through the simple procedure by which statutes are enacted. The United States has a rigid constitution, because proposals to amend the constitutional document adopted in 1788 can only be added through a complex procedure of majority vote in each house of Congress. Great Britain has a flexible constitution because all of its constitutional institutions and rules can be modified by an act of Parliament.