Constitutional law: Wikis

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The French Declaration of the Rights of Man and of the Citizen, whose principles still have constitutional value

Constitutional law is a body of law dealing with the distribution and exercise of government power.

Not all nation states have codified constitutions, though all such states have a jus commune, or law of the land, that may consist of a variety of imperative and consensual rules. These may include customary law, conventions, statutory law, judge-made law or international rules and norms, etc.

Contents

Functions of constitutions

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State and legal structure

Constitutional laws may often be considered second order rulemaking or rules about making rules to exercise power. It governs the relationships between the judiciary, the legislature and the executive with the bodies under its authority. One of the key tasks of constitutions within this context is to indicate hierarchies and relationships of power. For example, in a unitary state, the constitution will vest ultimate authority in one central administration and legislature, and judiciary, though there is often a delegation of power or authority to local or municipal authorities. When a constitution establishes a federal state, it will identify the several levels of government coexisting with exclusive or shared areas of jurisdiction over lawmaking, application and enforcement.

Human rights

Human rights or civil liberties form a crucial part of a country's constitution and govern the rights of the individual against the state. Most jurisdictions, like the United States and France, have a single codified constitution, with a bill of rights. A recent example is the Charter of Fundamental Rights of the European Union which was intended to be included in the Treaty establishing a Constitution for Europe, that failed to be ratified. Perhaps the most important example is the Universal Declaration of Human Rights under the UN Charter. These are intended to ensure basic political, social and economic standards that a nation state, or intergovernmental body is obliged to provide to its citizens but many do include its governments.

Some countries like the United Kingdom, have no entrenched document setting out fundamental rights; in those jurisdictions the constitution is composed of statute, case law and convention. A case named Entick v. Carrington[1] illustrates a constitutional principle deriving from the common law. John Entick's house was searched and ransacked by Sherriff Carrington. Carrington argued that a warrant from a Government minister, the Earl of Halifax was valid authority, even though there was no statutory provision or court order for it. The court, led by Lord Camden stated that,

"The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. By the laws of England, every invasion of private property, be it ever so minute, is a trespass... If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment."[2]

Inspired by John Locke,[3] the fundamental constitutional principle is that the individual can do anything but that which is forbidden by law, while the state may do nothing but that which is authorised by law.

Legislative procedure

Another main function of constitutions may be to describe the procedure by which parliaments may legislate. For instance, special majorities may be required to alter the constitution. In bicameral legislatures, there may be a process laid out for second or third readings of bills before a new law can enter into force. Alternatively, there may further be requirements for maximum terms that a government can keep power before holding an election.

The study of constitutional law

Constitutional law is a major focus of legal academia. For example, most law students in the United States are required to take a class in "Con Law" during their first year, and several law journals, like the Duke Journal of Constitutional Law & Public Policy, the University of Pennsylvania Journal of Constitutional Law, and the University of California, Hastings Constitutional Law Quarterly, are devoted to the discussion of constitutional issues.

Constitutions by region

The Rule of Law

The doctrine of the rule of law dictates that government must be conducted according to law.

Dicey identified 3 essential elements of the British Constitution which were indicative of the rule of law.

1. absence of arbitrary power; 2. equality before the law; and 3. the constitution is a result of the ordinary law of the land.

References

  1. ^ Entick v. Carrington (1765) 19 Howell's State Trials 1030
  2. ^ "Entick v. Carrington". 19 Howell’s State Trials 1029 (1765). USA: Constitution Society. http://www.constitution.org/trials/entick/entick_v_carrington.htm. Retrieved 2008-11-13. 
  3. ^ Chapter 9, Line 124, John Locke, Second Treatise on Government (1690)

Quotes

Up to date as of January 14, 2010
(Redirected to United States Constitutional law article)

From Wikiquote

Quotes related to Constitutional law.

  • "A law can be both economic folly and constitutional." ~ Antonin Scalia
  • "I have three degrees in history and only one in law, but since I came back to specialize in constitutional law where history is so essentially a part and an explanation of much that exists, the two disciplines blended very well." ~ Frank Scott
  • "One country, one constitution, one destiny." ~ Daniel Webster, Speech, March 15, 1837.
  • "The Constitution devotes the national domain to union, to justice, to defence, to welfare and to liberty. But there is a higher law than the Constitution." ~ William H. Seward, Speech, March 11, 1850.
  • "The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution." ~ Byron R. White
  • "The current constitutional law places the president of the republic in an embarrassing situation." ~ Jose Eduardo Dos Santos

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