Constitution

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First French Republic
)
Constitution in 1848.
Constitution of the Kingdom of the Two Sicilies in 1848

A constitution is the aggregate of fundamental

entity, and commonly determines how that entity is to be governed.[1]

When these principles are written down into a single document or set of legal documents, those documents may be said to embody a written constitution; if they are encompassed in a single comprehensive document, it is said to embody a codified constitution.

The Constitution of the United Kingdom is a notable example of an uncodified constitution; it is instead written in numerous fundamental Acts of a legislature, court cases, or treaties.[2]

Constitutions concern different levels of organizations, from sovereign countries to companies and unincorporated associations. A treaty that establishes an international organization is also its constitution, in that it would define how that organization is constituted. Within states, a constitution defines the principles upon which the state is based, the procedure in which laws are made and by whom. Some constitutions, especially codified constitutions, also act as limiters of state power, by establishing lines which a state's rulers cannot cross, such as fundamental rights. Changes to constitutions frequently require consensus or supermajority.[3]

The Constitution of India is the longest written constitution of any country in the world,[4] with 146,385 words[5] in its English-language version,[6] while the Constitution of Monaco is the shortest written constitution with 3,814 words.[7][5] The Constitution of San Marino might be the world's oldest active written constitution, since some of its core documents have been in operation since 1600, while the Constitution of the United States is the oldest active codified constitution. The historical life expectancy of a constitution since 1789 is approximately 19 years.[8]

Etymology

The term constitution comes through

Latin word constitutio, used for regulations and orders, such as the imperial enactments (constitutiones principis: edicta, mandata, decreta, rescripta).[9] Later, the term was widely used in canon law for an important determination, especially a decree issued by the Pope, now referred to as an apostolic constitution
.

William Blackstone used the term for significant and egregious violations of public trust, of a nature and extent that the transgression would justify a revolutionary response. The term as used by Blackstone was not for a legal text, nor did he intend to include the later American concept of judicial review: "for that were to set the judicial power above that of the legislature, which would be subversive of all government".[10]

General features

Generally, every modern written constitution confers specific powers on an organization or institutional entity, established upon the primary condition that it abides by the constitution's limitations. According to Scott Gordon, a political organization is constitutional to the extent that it "contain[s]

citizenry, including those that may be in the minority".[11]

Activities of officials within an organization or polity that fall within the constitutional or statutory authority of those officials are termed "within power" (or, in Latin, intra vires); if they do not, they are termed "beyond power" (or, in Latin,

federal state trying to legislate in an area that the constitution allocates exclusively to the federal parliament, such as ratifying a treaty. Action that appears to be beyond power may be judicially reviewed
and, if found to be beyond power, must cease. Legislation that is found to be beyond power will be "invalid" and of no force; this applies to primary legislation, requiring constitutional authorization, and secondary legislation, ordinarily requiring statutory authorization. In this context, "within power", intra vires, "authorized" and "valid" have the same meaning; as do "beyond power", ultra vires, "not authorized" and "invalid".

In most but not all modern states the constitution has supremacy over ordinary

statutory law (see Uncodified constitution below); in such states when an official act is unconstitutional, i.e. it is not a power granted to the government by the constitution, that act is null and void, and the nullification is ab initio, that is, from inception, not from the date of the finding. It was never "law", even though, if it had been a statute or statutory provision, it might have been adopted according to the procedures for adopting legislation. Sometimes the problem is not that a statute is unconstitutional, but that the application of it is, on a particular occasion, and a court may decide that while there are ways it could be applied that are constitutional, that instance was not allowed or legitimate. In such a case, only that application may be ruled unconstitutional. Historically, the remedies for such violations have been petitions for common law writs, such as quo warranto
.

Scholars debate whether a constitution must necessarily be

Hegel said "A constitution...is the work of centuries; it is the idea, the consciousness of rationality so far as that consciousness is developed in a particular nation."[12]

History and development

Since 1789, along with the

Constitution of the United States of America (U.S. Constitution), which is the oldest and shortest written constitution still in force,[13] close to 800 constitutions have been adopted and subsequently amended around the world by independent states.[14]

In the late 18th century, Thomas Jefferson predicted that a period of 20 years would be the optimal time for any constitution to be still in force, since "the earth belongs to the living, and not to the dead".[15] Indeed, according to recent studies,[14] the average life of any new written constitution is around 19 years. However, a great number of constitutions do not last more than 10 years, and around 10% do not last more than one year, as was the case of the French Constitution of 1791.[14] By contrast, some constitutions, notably that of the United States, have remained in force for several centuries, often without major revision for long periods of time.

The most common reasons for these frequent changes are the political desire for an immediate outcome[clarification needed] and the short time devoted to the constitutional drafting process.[16] A study in 2009 showed that the average time taken to draft a constitution is around 16 months,[17] however there were also some extreme cases registered. For example, the Myanmar 2008 Constitution was being secretly drafted for more than 17 years,[17] whereas at the other extreme, during the drafting of Japan's 1946 Constitution, the bureaucrats drafted everything in no more than a week. Japan has the oldest unamended constitution in the world.[18] The record for the shortest overall process of drafting, adoption, and ratification of a national constitution belongs to the Romania's 1938 constitution, which installed a royal dictatorship in less than a month.[19] Studies showed that typically extreme cases where the constitution-making process either takes too long or is extremely short were non-democracies.[20]

In principle, constitutional rights are not a specific characteristic of democratic countries. Autocratic states have constitutions, such as that of

freedom of expression.[21] However, the extent to which governments abide by their own constitutional provisions varies. In North Korea, for example, the Ten Principles for the Establishment of a Monolithic Ideological System are said to have eclipsed the constitution in importance as a frame of government in practice. Developing a legal and political tradition of strict adherence to constitutional provisions is considered foundational to the rule of law
.

Pre-modern constitutions

Ancient

sun deity
.

Excavations in modern-day

code of justice, issued by the Sumerian king Urukagina of Lagash c. 2300 BC. Perhaps the earliest prototype for a law of government, this document itself has not yet been discovered; however it is known that it allowed some rights to his citizens. For example, it is known that it relieved tax for widows and orphans, and protected the poor from the usury
of the rich.

After that, many

Mosaic law
.

In 621 BC, a scribe named

Cleisthenes
again reformed the Athenian constitution and set it on a democratic footing in 508 BC.

Diagram illustrating the classification of constitutions by Aristotle

Sparta, and Carthage
. He classified both what he regarded as good and what he regarded as bad constitutions, and came to the conclusion that the best constitution was a mixed system including monarchic, aristocratic, and democratic elements. He also distinguished between citizens, who had the right to participate in the state, and non-citizens and slaves, who did not.

The Romans initially codified their constitution in 450 BC as the Twelve Tables. They operated under a series of laws that were added from time to time, but Roman law was not reorganized into a single code until the Codex Theodosianus (438 AD); later, in the Eastern Empire, the Codex repetitæ prælectionis (534) was highly influential throughout Europe. This was followed in the east by the Ecloga of Leo III the Isaurian (740) and the Basilica of Basil I (878).

The

code of Manu
.

Early Middle Ages

Many of the Germanic peoples that filled the power vacuum left by the

Anglo-Saxon was used for those of England, beginning with the Code of Æthelberht of Kent (602). Around 893, Alfred the Great combined this and two other earlier Saxon codes, with various Mosaic and Christian precepts, to produce the Doom book
code of laws for England.

Prince Shōtoku, is an early example of a constitution in Asian political history. Influenced by Buddhist
teachings, the document focuses more on social morality than on institutions of government, and remains a notable early attempt at a government constitution.

The

Hijra (622).[25]

In Wales, the Cyfraith Hywel (Law of Hywel) was codified by Hywel Dda c. 942–950. It served as the main law code in Wales until it was superseded by the Laws in Wales Acts 1535 and 1542.

Middle Ages after 1000

The Pravda Yaroslava, originally combined by

Great Novgorod around 1017, and in 1054 was incorporated into the Russkaya Pravda; it became the law for all of Kievan Rus'
. It survived only in later editions of the 15th century.

In England,

King John to sign Magna Carta in 1215. The most important single article of Magna Carta, related to "habeas corpus", provided that the king was not permitted to imprison, outlaw, exile or kill anyone at a whim – there must be due process
of law first. This article, Article 39, of Magna Carta read:

No free man shall be arrested, or imprisoned, or deprived of his property, or outlawed, or exiled, or in any way destroyed, nor shall we go against him or send against him, unless by legal judgement of his peers, or by the law of the land.

This provision became the cornerstone of English liberty after that point. The

House of Commons
.

The

Corpus Iuris Civilis
.

transplanting within articles 171 and 172 of Dušan's Code, which regulated the juridical independence, is notable. They were taken from the Byzantine code Basilika
(book VII, 1, 16–17).

In 1222, Hungarian King Andrew II issued the Golden Bull of 1222.

Between 1220 and 1230, a

Eike von Repgow, composed the Sachsenspiegel
, which became the supreme law used in parts of Germany as late as 1900.

Around 1240, the

Constitution was first granted by Emperor Haile Selassie
I.

Third volume of the compilation of Catalan Constitutions of 1585

In the

Usatges of Barcelona is considered part of the compilation of Constitutions) until 1716, when Philip V of Spain gave the Nueva Planta decrees, finishing with the historical laws of Catalonia. These Constitutions were usually made formally as a royal initiative, but required for its approval or repeal the favorable vote of the Catalan Courts
, the medieval antecedent of the modern Parliaments. These laws, like other modern constitutions, had preeminence over other laws, and they could not be contradicted by mere decrees or edicts of the king.

The Kouroukan Founga was a 13th-century charter of the Mali Empire, reconstructed from oral tradition in 1988 by Siriman Kouyaté.[30]

The Golden Bull of 1356 was a decree issued by a Reichstag in Nuremberg headed by Emperor Charles IV that fixed, for a period of more than four hundred years, an important aspect of the constitutional structure of the Holy Roman Empire.

In

Ming Dynasty
for the next 250 years.

The oldest written document still governing a sovereign nation today is that of San Marino.[31] The Leges Statutae Republicae Sancti Marini was written in Latin and consists of six books. The first book, with 62 articles, establishes councils, courts, various executive officers, and the powers assigned to them. The remaining books cover criminal and civil law and judicial procedures and remedies. Written in 1600, the document was based upon the Statuti Comunali (Town Statute) of 1300, itself influenced by the Codex Justinianus, and it remains in force today.

In 1392 the

penal law
.

The

Haudenosaunee nation also known as the Great Law of Peace, established a system of governance as far back as 1190 AD (though perhaps more recently at 1451) in which the Sachems, or tribal chiefs, of the Iroquois League's member nations made decisions on the basis of universal consensus of all chiefs following discussions that were initiated by a single nation. The position of Sachem descends through families and are allocated by the senior female clan heads, though, prior to the filling of the position, candidacy is ultimately democratically decided by the community itself.[32]

Modern constitutions

The Cossack Constitution of Pylyp Orlyk, 1710
A painting depicting George Washington at the Constitutional Convention of 1787 signing of the U.S. Constitution

In 1634 the

Kingdom of Sweden adopted the 1634 Instrument of Government, drawn up under the Lord High Chancellor of Sweden Axel Oxenstierna after the death of king Gustavus Adolphus
. This can be seen as the first written constitution adopted by a modern state.

In 1639, the

Constitution State
".

English civil war era

On 4 January 1649, the Rump Parliament declared "that the people are, under God, the original of all just power; that the Commons of England, being chosen by and representing the people, have the supreme power in this nation".[33]

The

Lord Protector of the Commonwealth." This position was designated as a non-hereditary life appointment. The Instrument also required the calling of triennial Parliaments
, with each sitting for at least five months.

The Instrument of Government was replaced in May 1657 by England's second, and last, codified constitution, the

Restoration
of the monarchy.

British colonies in North America

All of the British colonies in North America that were to become the 13 original United States, adopted their own constitutions in 1776 and 1777, during the American Revolution (and before the later

United States Constitution), with the exceptions of Massachusetts, Connecticut and Rhode Island. The Commonwealth of Massachusetts adopted its Constitution
in 1780, the oldest still-functioning constitution of any U.S. state; while Connecticut and Rhode Island officially continued to operate under their old colonial charters, until they adopted their first state constitutions in 1818 and 1843, respectively.

Democratic constitutions: 18th century

Warsaw's Royal Castle
, where the Constitution has just been adopted.

What is sometimes called the "enlightened constitution" model was developed by philosophers of the Age of Enlightenment such as Thomas Hobbes, Jean-Jacques Rousseau, and John Locke. The model proposed that constitutional governments should be stable, adaptable, accountable, open and should represent the people (i.e., support democracy).[39]

Spirit of the Laws. This Constitution also limited the executive authority of the hetman, and established a democratically elected Cossack parliament called the General Council. However, Orlyk's project for an independent Ukrainian
State never materialized, and his constitution, written in exile, never went into effect.

Corsican Constitutions of 1755 and 1794 were inspired by Jean-Jacques Rousseau. The latter introduced universal suffrage for property owners.

The

religious freedom. The constitution was commended by Voltaire.[40][41][42]

The

Montesquieu, and others. The document became a benchmark for republicanism and codified constitutions written thereafter.[43]

The

Stanislaw August Poniatowski, Stanisław Staszic, Scipione Piattoli, Julian Ursyn Niemcewicz, Ignacy Potocki and Hugo Kołłątaj.[47] It was adopted by the Great Sejm and is considered the first constitution of its kind in Europe and the world's second oldest one after the American Constitution.[48]

Another landmark document was the French Constitution of 1791.

The

1811 Constitution of Venezuela was the first Constitution of Venezuela and Latin America, promulgated and drafted by Cristóbal Mendoza[49] and Juan Germán Roscio and in Caracas. It established a federal government but was repealed one year later.[50]

On 19 March 1812, the

South European and Latin American nations, for example, the Portuguese Constitution of 1822, constitutions of various Italian states during Carbonari revolts (i.e., in the Kingdom of the Two Sicilies), the Norwegian constitution of 1814, or the Mexican Constitution of 1824.[51]

In Brazil, the Constitution of 1824 expressed the option for the monarchy as political system after Brazilian Independence. The leader of the national emancipation process was the Portuguese prince Pedro I, elder son of the king of Portugal. Pedro was crowned in 1822 as first emperor of Brazil. The country was ruled by Constitutional monarchy until 1889, when it adopted the Republican model.

In

Riksdag, the king and the judiciary.[52] However the Norwegians managed to infuse a radically democratic and liberal constitution in 1814, adopting many facets from the American constitution and the revolutionary French ones, but maintaining a hereditary monarch
limited by the constitution, like the Spanish one.

The first Swiss Federal Constitution was put in force in September 1848 (with official revisions in 1878, 1891, 1949, 1971, 1982 and 1999).

The

Serbian revolution initially led to a proclamation of a proto-constitution in 1811; the full-fledged Constitution of Serbia followed few decades later, in 1835. The first Serbian constitution (Sretenjski ustav) was adopted at the national assembly in Kragujevac
on 15 February 1835.

The Constitution of Canada came into force on 1 July 1867, as the British North America Act, an act of the British Parliament. Over a century later, the BNA Act was patriated to the Canadian Parliament and augmented with the Canadian Charter of Rights and Freedoms.[53] Apart from the Constitution Acts, 1867 to 1982, Canada's constitution also has unwritten elements based in common law and convention.[54][55]

Principles of constitutional design

After tribal people first began to live in cities and establish nations, many of these functioned according to unwritten customs, while some developed autocratic, even tyrannical monarchs, who ruled by decree, or mere personal whim. Such rule led some thinkers to take the position that what mattered was not the design of governmental institutions and operations, as much as the character of the rulers. This view can be seen in Plato, who called for rule by "philosopher-kings".[56] Later writers, such as Aristotle, Cicero and Plutarch, would examine designs for government from a legal and historical standpoint.

The

law of nations concept[57] and its application to the relations among nations, and they sought to establish customary "laws of war and peace"[58] to ameliorate wars and make them less likely. This led to considerations of what authority monarchs or other officials have and don't have, from where that authority derives, and the remedies for the abuse of such authority.[59]

A seminal juncture in this line of discourse arose in England from the Civil War, the Cromwellian Protectorate, the writings of Thomas Hobbes, Samuel Rutherford, the Levellers, John Milton, and James Harrington, leading to the debate between Robert Filmer, arguing for the divine right of monarchs, on the one side, and on the other, Henry Neville, James Tyrrell, Algernon Sidney, and John Locke. What arose from the latter was a concept of government being erected on the foundations of first, a state of nature governed by natural laws, then a state of society, established by a social contract or compact, which bring underlying natural or social laws, before governments are formally established on them as foundations.

Along the way several writers examined how the design of government was important, even if the government were headed by a monarch. They also classified various historical examples of governmental designs, typically into democracies, aristocracies, or monarchies, and considered how just and effective each tended to be and why, and how the advantages of each might be obtained by combining elements of each into a more complex design that balanced competing tendencies. Some, such as Montesquieu, also examined how the functions of government, such as legislative, executive, and judicial, might appropriately be separated into branches. The prevailing theme among these writers was that the design of constitutions is not completely arbitrary or a matter of taste. They generally held that there are underlying principles of design that constrain all constitutions for every polity or organization. Each built on the ideas of those before concerning what those principles might be.

The later writings of Orestes Brownson[60] would try to explain what constitutional designers were trying to do. According to Brownson there are, in a sense, three "constitutions" involved: The first the constitution of nature that includes all of what was called "natural law". The second is the constitution of society, an unwritten and commonly understood set of rules for the society formed by a social contract before it establishes a government, by which it establishes the third, a constitution of government. The second would include such elements as the making of decisions by public conventions called by public notice and conducted by established rules of procedure. Each constitution must be consistent with, and derive its authority from, the ones before it, as well as from a historical act of society formation or constitutional ratification. Brownson argued that a state is a society with effective dominion over a well-defined territory, that consent to a well-designed constitution of government arises from presence on that territory, and that it is possible for provisions of a written constitution of government to be "unconstitutional" if they are inconsistent with the constitutions of nature or society. Brownson argued that it is not ratification alone that makes a written constitution of government legitimate, but that it must also be competently designed and applied.

Other writers[61] have argued that such considerations apply not only to all national constitutions of government, but also to the constitutions of private organizations, that it is not an accident that the constitutions that tend to satisfy their members contain certain elements, as a minimum, or that their provisions tend to become very similar as they are amended after experience with their use. Provisions that give rise to certain kinds of questions are seen to need additional provisions for how to resolve those questions, and provisions that offer no course of action may best be omitted and left to policy decisions. Provisions that conflict with what Brownson and others can discern are the underlying "constitutions" of nature and society tend to be difficult or impossible to execute, or to lead to unresolvable disputes.

Constitutional design has been treated as a kind of metagame in which play consists of finding the best design and provisions for a written constitution that will be the rules for the game of government, and that will be most likely to optimize a balance of the utilities of justice, liberty, and security. An example is the metagame Nomic.[62]

Political economy theory regards constitutions as coordination devices that help citizens to prevent rulers from abusing power. If the citizenry can coordinate a response to police government officials in the face of a constitutional fault, then the government have the incentives to honor the rights that the constitution guarantees.[63] An alternative view considers that constitutions are not enforced by the citizens at-large, but rather by the administrative powers of the state. Because rulers cannot themselves implement their policies, they need to rely on a set of organizations (armies, courts, police agencies, tax collectors) to implement it. In this position, they can directly sanction the government by refusing to cooperate, disabling the authority of the rulers. Therefore, constitutions could be characterized by a self-enforcing equilibria between the rulers and powerful administrators.[64]

Key features

Presidential copy of the Russian Constitution

Most commonly, the term constitution refers to a set of rules and principles that define the nature and extent of government. Most constitutions seek to regulate the relationship between institutions of the state, in a basic sense the relationship between the executive, legislature and the judiciary, but also the relationship of institutions within those branches. For example, executive branches can be divided into a head of government, government departments/ministries, executive agencies and a

Basic Law
".

Classification

Classification

Type Form Example
Codified In single act (document) Most of the world (first: United States)
Uncodified Fully written (in few documents) San Marino, Israel, Saudi Arabia
Partially unwritten (see constitutional convention) Canada, New Zealand, United Kingdom

Codification

A fundamental classification is codification or lack of codification. A codified constitution is one that is contained in a single document, which is the single source of constitutional law in a state. An uncodified constitution is one that is not contained in a single document, consisting of several different sources, which may be written or unwritten; see constitutional convention.

Codified constitution

Most states in the world have codified constitutions.

Codified constitutions are often the product of some dramatic political change, such as a revolution. The process by which a country adopts a constitution is closely tied to the historical and political context driving this fundamental change. The legitimacy (and often the longevity) of codified constitutions has often been tied to the process by which they are initially adopted and some scholars have pointed out that high constitutional turnover within a given country may itself be detrimental to separation of powers and the rule of law.

States that have codified constitutions normally give the constitution supremacy over ordinary statute law. That is, if there is any conflict between a legal statute and the codified constitution, all or part of the statute can be declared ultra vires by a court, and struck down as unconstitutional. In addition, exceptional procedures are often required to amend a constitution. These procedures may include: convocation of a special constituent assembly or constitutional convention, requiring a supermajority of legislators' votes, approval in two terms of parliament, the consent of regional legislatures, a referendum process, and/or other procedures that make amending a constitution more difficult than passing a simple law.

Constitutions may also provide that their most basic principles can never be abolished, even by amendment. In case a formally valid amendment of a constitution infringes these principles protected against any amendment, it may constitute a so-called unconstitutional constitutional law.

Codified constitutions normally consist of a ceremonial preamble, which sets forth the goals of the state and the motivation for the constitution, and several articles containing the substantive provisions. The preamble, which is omitted in some constitutions, may contain a reference to God and/or to fundamental values of the state such as liberty, democracy or human rights. In ethnic nation-states such as Estonia, the mission of the state can be defined as preserving a specific nation, language and culture.

Uncodified constitution
Main article: Uncodified constitution
Magna Carta

As of 2017 only two sovereign states, New Zealand and the United Kingdom, have wholly uncodified constitutions. The Basic Laws of Israel have since 1950 been intended to be the basis for a constitution, but as of 2017 it had not been drafted. The various Laws are considered to have precedence over other laws, and give the procedure by which they can be amended, typically by a simple majority of members of the Knesset (parliament).[65]

Uncodified constitutions are the product of an "evolution" of laws and conventions over centuries (such as in the

British constitutional law
.

Mixed constitutions

Some constitutions are largely, but not wholly, codified. For example, in the Constitution of Australia, most of its fundamental political principles and regulations concerning the relationship between branches of government, and concerning the government and the individual are codified in a single document, the Constitution of the Commonwealth of Australia. However, the presence of statutes with constitutional significance, namely the Statute of Westminster, as adopted by the Commonwealth in the Statute of Westminster Adoption Act 1942, and the Australia Act 1986 means that Australia's constitution is not contained in a single constitutional document.[citation needed] It means the Constitution of Australia is uncodified,[dubious – discuss] it also contains constitutional conventions, thus is partially unwritten.

The

Proclamation of 1763. Although Canada's constitution includes a number of different statutes, amendments, and references
, some constitutional rules that exist in Canada is derived from unwritten sources and constitutional conventions.

The terms written constitution and codified constitution are often used interchangeably, as are unwritten constitution and uncodified constitution, although this usage is technically inaccurate. A codified constitution is a single document; states that do not have such a document have uncodified, but not entirely unwritten, constitutions, since much of an uncodified constitution is usually written in laws such as the Basic Laws of Israel and the Parliament Acts of the United Kingdom. Uncodified constitutions largely lack protection against amendment by the government of the time. For example, the U.K. Fixed-term Parliaments Act 2011 legislated by simple majority for strictly fixed-term parliaments; until then the ruling party could call a general election at any convenient time up to the maximum term of five years. This change would require a constitutional amendment in most nations.

Amendments

Main article: Constitutional amendment
United States Constitution

A constitutional amendment is a modification of the constitution of a

entity. Amendments are often interwoven into the relevant sections of an existing constitution, directly altering the text. Conversely, they can be appended to the constitution as supplemental additions (codicils
), thus changing the frame of government without altering the existing text of the document.

Most constitutions require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation.

Methods of amending

Procedures for amending national constitutions
Approval by Supermajority needed Countries
Legislature (unicameral, joint session or lower house only) >50% + >50% after an election Iceland, Sweden
>50% + 60% after an election Estonia, Greece
60% + >50% after an election Greece
60% France, Senegal, Slovakia
2⁄3 Afghanistan, Angola, Armenia, Austria, Bahrain, Bangladesh, Bulgaria, Cambodia, Djibouti, Ecuador, Honduras, Laos, Libya, Malawi, North Korea, North Macedonia, Norway, Palestine, Portugal, Qatar, Samoa, São Tomé and Príncipe, Serbia, Singapore, Slovenia, Solomon Islands, Turkmenistan, Tuvalu, United Arab Emirates, Uzbekistan, Vanuatu, Vietnam, Yemen
2⁄3 after an election Ukraine
2⁄3 after an election Belgium
3/4 Bulgaria, Solomon Islands (in some cases)
4/5 Estonia, Portugal (in the five years following the last amendment)
Legislature + referendum >50% + >50% Djibouti, Ecuador, Venezuela
>50% before and after an election + >50% Denmark
3/5 + >50% Russia, Turkey
2/3 + >50% Albania, Andorra, Armenia (some amendments), Egypt, Slovenia, Tunisia, Uganda, Yemen (some amendments), Zambia
2/3 + >60% Seychelles
3/4 + >50% Romania
3/4 + >50% of eligible voters Taiwan
2⁄3 + 2⁄3 Namibia, Sierra Leone
75% + 75% Fiji
Legislature + sub-national legislatures 2⁄3 + >50% Mexico
2⁄3 + 2⁄3 Ethiopia
Lower house + upper house 2⁄3 + >50% Poland, Bosnia and Herzegovina
2⁄3 + 2⁄3 Bahrain, Germany, India, Italy, Jordan, Namibia, Netherlands, Pakistan, Somalia, Zimbabwe
60% + 60% Brazil, Czech Republic
75% + 75% Kazakhstan
Lower house + upper house + joint session >50% + >50% + 2⁄3 Gabon
Either house of legislature + joint session 2⁄3 + 2⁄3 Haiti
Lower house + upper house + referendum >50% + >50% + >50% Algeria, France, Ireland, Italy
>50% + >50% + >50% (electors in majority of states/cantons)+ >50% (electors) Australia, Switzerland
2⁄3 + 2⁄3 + >50% Japan, Romania, Zimbabwe (some cases)
2⁄3 Antigua and Barbuda
2⁄3 + >50% + >50% Poland (some cases)[66][67]
75% + 75% + >50% Madagascar
Lower house + upper house + sub-national legislatures 12/12 Canada (in some cases)
>50% + >50% + 2⁄3 Canada (in most cases)
2⁄3 + 2⁄3 + >50% India (in some cases)
2⁄3 + 2⁄3 + 75% United States
2⁄3 + 2⁄3 + 50% Ethiopia[68]
Referendum >50% Estonia, Gabon, Kazakhstan, Malawi, Palau, Philippines, Senegal, Serbia (in some cases), Tajikistan, Turkmenistan, Uzbekistan
Sub-national legislatures 2⁄3 Russia
75% United States
Constitutional convention Argentina
2⁄3 Bulgaria (some amendments)

Some countries are listed under more than one method because alternative procedures may be used.

Entrenched clauses

An entrenched clause or entrenchment clause of a

the Islamic Republic of Iran, Brazil and Norway.[71] India's constitution does not contain specific provisions on entrenched clauses but the basic structure doctrine makes it impossible for certain basic features of the Constitution to be altered or destroyed by the Parliament of India through an amendment.[73] The Constitution of Colombia also lacks explicit entrenched clauses, but has a similar substantive limit on amending its fundamental principles through judicial interpretations.[71]

Constitutional rights and duties

Main article: Constitutional right

Constitutions include various rights and duties. These include the following:

Separation of powers

Main article: Separation of powers

Constitutions usually explicitly divide power between various branches of government. The standard model, described by the

executive, legislative and judicial. Some constitutions include additional branches, such as an auditory branch
. Constitutions vary extensively as to the degree of separation of powers between these branches.

Accountability

In

semi-presidential systems of government, department secretaries/ministers are accountable to the president
, who has patronage powers to appoint and dismiss ministers. The president is accountable to the people in an election.

In

vote of no confidence or, depending on the country,[101]
loses a particularly important vote in parliament, such as vote on the budget. When a government loses confidence, it stays in office until a new government is formed; something which normally but not necessarily required the holding of a general election.

Other independent institutions

Other independent institutions which some constitutions have set out include a

truth and reconciliation commission.[109]

Power structure

Constitutions also establish where sovereignty is located in the state. There are three basic types of distribution of sovereignty according to the degree of centralisation of power: unitary, federal, and confederal. The distinction is not absolute.

In a unitary state, sovereignty resides in the state itself, and the constitution determines this. The territory of the state may be divided into regions, but they are not sovereign and are subordinate to the state. In the UK, the constitutional doctrine of Parliamentary sovereignty dictates that sovereignty is ultimately contained at the centre. Some powers have been devolved to Northern Ireland, Scotland, and Wales (but not England). Some unitary states (Spain is an example) devolve more and more power to sub-national governments until the state functions in practice much like a federal state.

A federal state has a central structure with at most a small amount of territory mainly containing the institutions of the federal government, and several regions (called states, provinces, etc.) which compose the territory of the whole state. Sovereignty is divided between the centre and the constituent regions. The constitutions of Canada and the United States establish federal states, with power divided between the federal government and the provinces or states. Each of the regions may in turn have its own constitution (of unitary nature).

A confederal state comprises again several regions, but the central structure has only limited coordinating power, and sovereignty is located in the regions. Confederal constitutions are rare, and there is often dispute to whether so-called "confederal" states are actually federal.

To some extent a group of states which do not constitute a federation as such may by

metric system of measurement
instead of national units previously used.

State of emergency

Main article: State of emergency

Many constitutions allow the declaration under exceptional circumstances of some form of state of emergency during which some rights and guarantees are suspended. This provision can be and has been abused to allow a government to suppress dissent without regard for human rights – see the article on state of emergency.

Facade constitutions

See also: Constitutionalism

Italian political theorist Giovanni Sartori noted the existence of national constitutions which are a facade for authoritarian sources of power. While such documents may express respect for human rights or establish an independent judiciary, they may be ignored when the government feels threatened, or never put into practice. An extreme example was the Constitution of the Soviet Union that on paper supported freedom of assembly and freedom of speech; however, citizens who transgressed unwritten limits were summarily imprisoned. The example demonstrates that the protections and benefits of a constitution are ultimately provided not through its written terms but through deference by government and society to its principles. A constitution may change from being real to a facade and back again as democratic and autocratic governments succeed each other.

Constitutional courts

Further information: Constitutional court and Constitutionality

Constitutions are often, but by no means always, protected by a legal body whose job it is to interpret those constitutions and, where applicable, declare void executive and legislative acts which infringe the constitution. In some countries, such as Germany, this function is carried out by a dedicated constitutional court which performs this (and only this) function. In other countries, such as Ireland, the ordinary courts may perform this function in addition to their other responsibilities. While elsewhere, like in the United Kingdom, the concept of declaring an act to be unconstitutional does not exist.

A constitutional violation is an action or legislative act that is judged by a constitutional court to be contrary to the constitution, that is, unconstitutional. An example of constitutional violation by the executive could be a public office holder who acts outside the powers granted to that office by a constitution. An example of constitutional violation by the legislature is an attempt to pass a law that would contradict the constitution, without first going through the proper constitutional amendment process.

Some countries, mainly those with uncodified constitutions, have no such courts at all. For example, the

United Kingdom Parliament
could not be questioned by the courts.

See also

Judicial philosophies of constitutional interpretation (note: generally specific to

United States constitutional law
)

Further reading

References

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External links

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