What is Constitutional Law?

| CSS Constitutional Law Notes

Definition and Scope of Constitutional Law

What is Constitutional Law?

1. That branch of the public law of a state which treats of the organization and frame of
government, the organs and powers of sovereignty the distribution of political and
governmental authorities and functions, the fundamental principles which are to
regulate the relations of government and subject, and which prescribes generally the
plan and method according to which the public affairs of the state are to be
administered.
2. That department of the science of law which treats of constitutions, their
establishment, construction and interpretation and of the validity of legal enactments
as tested by the criterion of conformity to the fundamental law.
3. A constitutional law is one which is consonant to, and agrees with, the constitution:
one which is not in violation of any provision of the constitution of the particular state

Constitutional law is a type of public law that revolves solely around the distribution and
exercise of government power. In the United States, the constitution is in essence, the
framework for which all laws are established and to specify the separation of powers
between the three branches (judicial, legislative and executive) of the federal government.

That being said, not all nation states possess a codified constitution. Those that do not;
however, will typically utilize some form of law of the land that may consist of a number of
consensual rules. These may include international rules on train, the separation of church
and state, laws governing governmental powers, various statutory laws, customary law
conventions, judge-made laws and an assortment of other frameworks.

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Definition

The basic law or laws of a nation or a state which sets out how that state will be organized
by deciding the powers and authorities of government between different political units, and
by stating the basic law-making and structural principles of society.

The primary contract or law by which the government of a nation or state is set out and
organized.

Constitutional law deals with the fundamental principles by which the government exercises

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its authority. In some instances, these principles grant specific powers to the government,
such as the power to tax and spend for the welfare of the population. Other times,
constitutional principles act to place limits on what the government can do, such as
prohibiting the arrest of an individual without sufficient cause. In most nations,
constitutional law is based on the text of a document ratified at the time the nation came
into being.

Constitutions are not necessarily written and may be based on aged customs and
conventions, as is the case, in part, in England and New Zealand (the USA, Canada and
Australia all have written constitutions). Note these words of Niccolo Machiavelli in his
1611 book, The Prince:

“There is nothing more difficult to arrange, more doubtful of success, and more dangerous
to carry through than initiating change in a State’s constitution. The innovator makes
enemies of all those who prospered under the old order, and only lukewarm support is
forthcoming from those who could prosper under the new. Their support is lukewarm partly
from fear of their adversaries, who have the existing law on their side, and partly because
men are generally incredulous, never really trusting new things unless they have tested
them by experience.”

An almost constant debate is whether a constitution, once written, should be exposed to

judicial expansion – by the adaptation of it to an evolving state.

Even where written, the words and scope of the written constitution is by necessity shaped
by the Courts. As lawyer and later Governor of the State of New York, Charles Edward
Hughes once said, in about 1906:
“We are under a Constitution, but the Constitution is what the judges say it is.”

Scope of Constitutional Law

According to one very wide definition, constitutional law is that part of the Law which
relates to the system of government of the country or it can also be defined as meaning
those laws which regulate the structure of the principal organs of government and their
relationship to each other and to the citizen, and determine their main function.
Constitutional law pervades all areas of law in that there is hardly any department of law
which does not, at one time or another become of constitutional importance. In industrial
law, the freedom of association for industrial purpose and the law of picketing are of
constitutional importance. In the sphere of public order and criminal law, the citizen looks
to the court for protection. The constitutional lawyer has always had a particular interest in
the means which the law provides for safeguarding individual liberty.

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Basic Constitutional Concepts

(Constitutional Conventions, Rule of Law, Due Process)

Constitutional concepts are those ideas which influence the nature or form of constitution. A
basic idea, which seems to encompass these concepts and has permeated constitutional
making in modem world is that of “Constitutionalism “or “limited government” i.e. the idea
of including in the constitution certain rules and regulations geared towards preventing
abuse or the exercise of arbitrary power-by government. This idea was first given birth to
dining the developmental years of natural law, sovereign powers by divine laws.

Noteworthy among these was John Locke’s theory of ‘Social Contract’, which he believed
predated societies and made government mere trustees of the common interest of the
community. A written and entrenched constitution was later seen as primarily performing
this role whilst an unwritten constitution performs it in a less rigid way, through the various
constitutional law concepts and conventions.

Constitutionalism is a goal (i.e. a means to an end), and it refers to the regularity of political
life within a state by means of a constitution. As a concept; Constitutionalism means limited
government i.e. a system of restraint on both the rule and the ruled. Constitutionalism
asserts that there are fundamental limits which must be observed in the relationship
between the ruler and the ruled, when the power relationship among the groups in political
society becomes regularized under law and subject to well-defined restraint, the
constitutional government exist.

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Principle of Constitutionalism

Constitutionalism is government conducted in accordance with and within the limits set by a
written or unwritten constitution–a body of law that is superior to and takes precedence
over all ordinary laws, decisions, and actions of government offices, agencies, and
institutions. A constitutional government, whether democratic or oligarchic, operates in
accord with the provisions of a constitution and does not exceed the authority granted to it
by that constitution.

The purpose of constitutionalism is to limit the power of government. A constitution

generally limits governmental power by requiring the government to follow prescribed
procedures in making and enforcing official decisions and by prohibiting altogether the
government’s taking certain decisions and actions. Instead of or in addition to the foregoing
method of limiting governmental authority, a constitution may accomplish the objective by

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structuring the government in such manner as to ensure maintenance of a balance of power

among the principal organs of government.

Constitutionalism is closely related to the political principle known as the “rule of law.”
Under the rule of law, the law is supreme over government officeholders, who, like ordinary
citizens, are subject to and must abide by the law. Government institutions and officers
must, among other things, follow procedures prescribed by law and observe the legally
guaranteed rights and liberties of individuals

A written constitution contains the most important laws by which a nation’s citizens agree
to live, and it outlines the basic structure of their government. Thus, democratic
constitutionalism based on ideals of individual freedom, community rights, and limited
government power — creates the framework for governing a democracy.

Constitutionalism recognizes that democratic and accountable government must be

coupled with constitutional limits on the power of government.
A constitution defines the basic purposes and aspirations of a society, including the
common welfare of the people.
All laws must be written in accordance with the constitution. In a democracy, an
independent judiciary allows citizens to challenge laws they believe to be illegal or
unconstitutional and to seek court-ordered remedies for illegal actions by the
government or its officials.
A constitution provides the framework for government power — its scope of authority,
mechanisms for exercising that authority, and the procedures for passage of future
laws.
A constitution defines citizenship and establishes the basis for deciding who shall have
the right to vote.
A constitution establishes the political, administrative, and judicial foundations of the
state including the structure of the legislature and courts, requirements for holding
elected office, and terms of office for elected officials.
A constitution lays out responsibilities of government ministries and grants authority
to collect taxes and create a national defense force.
In a federal system, the constitution divides power among the various levels of
government.
Since a constitution is written at a certain point in time, it must be amendable so that
it may adapt to the changing needs of the people in the future. Since the flexibility to
meet unpredictable and unforeseeable challenges in the future is important,
constitutions are usually written to specify general principles of government.
Constitutions generally contain two different types of rights — negative and
affirmative rights.

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Negative rights tell the government what it cannot do. These rights limit government
and prevent it from affecting certain behaviors of its citizens. For example, the
government must refrain from limiting free speech and the ability of citizens to
peacefully assemble, and from illegal imprisonment.

Affirmative rights tell the government what it must do and citizens what they are entitled to.
Such “entitlements” may include social, economic, and cultural rights in the form of
government guarantees of various social indicators. There may be guarantees of primary
and secondary education for all boys and girls, guaranteed “well-being” after retirement, or
jobs and health care for all citizens.

Constitutionalism is closely related to the Anglo-American political principle called the “rule
of law.” The “rule of law,” a concept deeply rooted in the history and development of law in
England and English-speaking North America, means the “supremacy of law.” In any
political society operating under the rule of law, the law is supreme over officeholders in the
government, as it is over the general populace. In the society, there is a single body of law
applicable to all members of the society, a body of law applicable to those who govern as
well as those who are governed. Government officers, like ordinary citizens, are subject to
and must abide by the law; no one is above the law. Government officers, agencies, and
institutions must, among other things, follow legally prescribed procedures and observe the
legally guaranteed rights of individuals.

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