The fundamental law, written or unwritten, that establishes the character of a government by defining the basic principles to which a society must conform; by describing the organization of the government and regulation, distribution, and limitations on the functions of different government departments; and by prescribing the extent and manner of the exercise of its sovereign powers.
A legislative charter by which a government or group derives its authority to act.
The concept of a constitution dates to the city-states of ancient Greece. The philosopher ARISTOTLE (384–322 B.C.), in his work Politics, analyzed over 150 Greek constitutions. He described a constitution as creating the frame upon which the government and laws of a society are built:
A constitution may be defined as an organization of offices in a state, by which the method of their distribution is fixed, the sovereign authority is determined, and the nature of the end to be pursued by the association and all its members is prescribed. Laws, as distinct from the frame of the constitution, are the rules by which the magistrates should exercise their powers, and should watch and check transgressors.
In modern Europe, written constitutions came into greater use during the eighteenth and nineteenth centuries. Constitutions such as that of the United States, created in 1787, were influenced by the ancient Greek models. During the twentieth century, an increasing number of countries around the world concluded that constitutions are a necessary part of democratic or republican government. Many thus adopted their own constitutions.
Different forms and levels of government may have constitutions. All 50 states have constitutions, as do many countries including Japan, India, Canada, and Germany. It is also common for nongovernmental organizations and civic groups to have constitutions.
In its ideal form, a constitution emanates from the consent and will of the people whom it governs. Besides establishing the institutions of government and the manner in which they function toward each other and toward the people, a constitution may also set forth the rights of the individual and a government's responsibility to honor those rights.
Constitutions, whether written or unwritten, typically function as an evolving body of legal custom and opinion. Their evolution generally involves changes in judicial interpretation or in themselves, the latter usually through a process called amendment. Amendment of a constitution is usually designed to be a difficult process in order to give the constitution greater stability. On the other hand, if a constitution is extremely difficult to amend, it might be too inflexible to survive over time.
The ongoing evolutionary nature of constitutions explains why England may be described as having a constitution even though it does not have a single written document that is designated as such. England's constitution instead inheres in a body of legal custom and tradition that regulates the relationship among the monarchy, the legislature (Parliament), the judicial system, and COMMON LAW. Although England's constitution is, in a sense, unwritten because it does not originate in a single document, many written laws have been instrumental in its creation, and England in fact has one of the oldest traditions of constitutionalism.
In a truly constitutional form of government, public officials are subject to constitutional rules and provisions and may not violate them without punishment. Such constitutional governments are also called limited governments because the constitution restricts the scope of their power over the people. However, many governments that have constitutions do not practice true constitutionalism. The former Soviet Union, for example, created the 1936 Constitution of the Union of Soviet Socialist Republics, also known as the "Stalin Constitution," but that document did not establish a truly constitutional form of government. JOSEPH STALIN, the ruler of the Soviet Union from 1924 to 1953, could not be formally penalized or called to account for his actions, no matter how heinous, before any other government official, any court, or the people themselves. The Soviet Constitution also claimed to guarantee FREEDOM OF SPEECH, press, and assembly, but in practice the Soviet government continually repressed those who sought to express those freedoms. Constitutions such as that of the former Soviet Union are called nominal constitutions, whereas those that function more truly as prescriptive documents, such as the CONSTITUTION OF THE UNITED STATES, are called normative constitutions.
In the United States, individual state constitutions must conform to the basic principles of the U.S. Constitution—they may not violate rights or standards that it establishes. However, states are free to grant rights that are not defined in the U.S. Constitution, as long as doing so does not interfere with other rights that are drawn from it. For this reason, groups or individuals who seek to file constitutional claims in court are increasingly examining state constitutions for settlement of their grievances. In the issue of SCHOOL DESEGREGATION, for example, groups such as the National Association for the Advancement of Colored People (NAACP) began in the 1990s to shift focus to the state level, with the hope of finding greater protection of rights under state constitutions.
In many states, however, courts have construed their respective state constitutions to provide rights that are equivalent to those provided under the U.S. Constitution. For example, in Jackson v. Benson, 578 N.W.2d 602 (Wisc. 1998), the Wisconsin Supreme Court, citing settled precedent, noted that the Wisconsin Constitution's provisions relating to EQUAL PROTECTION provide the same rights as those provisions in the federal counterpart, even though the Wisconsin provisions are phrased quite differently. The NAACP claimed that a school program in Milwaukee, which allowed parents of certain qualifying students of public schools in the city to send their children to any private, nonsectarian school of their choice at no cost, was enacted with discriminatory intent. The court treated the state and federal constitutional claims of the NAACP as alike.
Barker, Ernest, trans. and ed. 1946. The Politics of Aristotle. New York: Oxford Univ. Press.
Hamilton, Alexander, James Madison, and James Jay. Terence Ball, ed. 2003. The Federalist. Cambridge, U.K., New York: Cambridge Univ. Press.