Definition And Meanings Of Constitution Part 1

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•US Constitution and right to beararms

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•Consider terrible killings in Sandyhook, Connecticut, USA at a primary school in December 2012 and right to bear arms debate in relation to US Constitution: Demand for change but…Orlando Nightclub 2016; Las Vegas 2017; Florida Douglas Park High School 2018…

•Process of amending US Constitution presents many obstacles to supporters in favour of greater gun control

•Highlights difficulty of finding appropriate mechanisms for updating & amending constitutions

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•US Constitution and right to bear arms

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•Erica Lafferty and Jillian Soto, who bothlost family members in the Newtown shooting, urge Congress to pass tougher gunlaws during a news conference

•Constitutional law matters and affectsour daily lives

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Defining meaning of “constitution"

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•Various definitions to describe meaning of “constitution”

•Any organisation can have a constitution

•Constitution lays down fundamental principles that create structure & purpose of an organisation

•Arguably two key aims of a constitution are:

•(1) to ensure that the organisation is run efficiently; and

(2) to prevent those in charge from abusing their powers

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Defining meaning of “constitution"

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•UK Constitution is concerned with the organisation, powers andresponsibilities of government

•Or alternatively, the BritishConstitution is the collection of legal rules and non-legal rules which establish and regulate or governthe government in Britain

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Defining meaning of “constitution"

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•Constitutional law “governsthe system of public administration of the United Kingdom, and relationshipsbetween the individual and the state”•Lord Lester of Herne Hill and D Oliver(eds) Constitutional Law and Human Rights(1997)p7

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Defining meaning of “constitution"

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•CR Munro referred to “constitution” as meaning “the whole system of government of a country, the collection of rules which establish and regulate or govern the government”

•Studies in Constitutional Law (2nd edn 1999)

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Defining meaning of “constitution"

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•Important to note is that constitutionallaw is generally about the lawwhich regulates the structure of the key organs of government and theirrelationship to each other and to the citizen

•Constitutional law deals with the relationship between the State andthe individual

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Keyconcerns of constitutions

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•Choosing and removing of rulers;(Presidents, PMs)

•Choosing governments - elections

•Relationship between the differentbranches of government: Parliament; Government; Judiciary

•The dividing up of powers geographically;

•The relationship between the state andexternal bodies;

•The accountability of government;The rights of the citizen in relation toState.

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Defining meaning of “constitution”

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•Thomas Paine in The Rights of Man on the significance and purpose of constitutions:

•“A constitution is not the act of a government, but of a people constituting a government, and a government without a constitution is power without right…A constitution is a thing antecedent to government; and a government is only the creature of a constitution”

•Note the emphasis on legitimacy which is a key factor in the durability of constitutions and the governments regulated by them

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Defining meaning of “constitution"

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•A narrow definition of constitution would be that it is a single document which contains the core rules that govern a government such as the American Constitution of 1786

•But broader

•So the concept of “constitution” covers a variety of ideas

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“Constitution”summary

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•It can mean a singledocument or all documents, statutes, precedents,rules, customs and practices required or used in the governing of a country

•It can mean rules governing government

•It also covers a sense of legitimacy

•It provides a framework for regulatingthe relationship between the individual and the state

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.Classifying constitutions

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•Constitutions can be classed or categorised according the essential features which they have

•For example, they may be classified as:

•written or unwritten;

•Rigid or flexible;

•Federal or unitary or something in between; •With separated powers or fused powers Republican or monarchical.

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. Classifying constitutions

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•A writtenconstitution is aconstitution which is contained within a single document or series ofdocuments, with or without amendments and defining the basic rules of the state

•In most countries, the constitution isfound in a specialdocument distinct from and superior to theordinary law of that country

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. Classifying constitutions

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•It has a status superior to the rest of the law which can only be altered by specialprocedure

•The need for a specialprocedure to alter elements of the constitutiondemonstrate the special status and place awarded to it within a society

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. Classifying constitutions

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•The origins and examples of written constitutions lie with the American War of Independence and the French Revolution

•More recent written constitutions can derive from the grant or devolution of legislative power from previously imperial powers to former colonies and dominions

•For example, Canada

•In 1982 Canada “repatriated” its Constitution with the Constitution Act 1982 and the UK Canada Act 1982

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. Classifying constitutions

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•The feature which characterises moststates with a written constitution is that there has been a clear historicalbreak with a previously pertaining constitutional arrangement

•Often the historical break has come aboutbecause of war or revolution representing a defining moment in the history of apeople

•For example the American War ofIndependence and independence being granted to Canada

•The defining historical moment is a catalyst for change and a momentfor a people to think again about their country’s values and its direction

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. Classifying constitutions

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•Other examples would be Germany after the Second World War and the drafting of Germany’s Constitution in 1949, referred to as the “Basic Law”

•Another defining moment for Germany was reunification with the former East Germany which resulted in Germany’s Constitution (Basic Law) being updated

•The “Basic Law for the Federal Republic of Germany” sets out the fundamental structure and functioning of the German State as well as the values of the State EMH

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. Classifying constitutions

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•Note that the vast majority of countries in the world all have written constitutions (Exceptions UK, NZ, Israel)

•Often such constitutions begin with a preamble setting out the purposes and values underlying the document and sometimes the circumstances under which the constitution was adopted

•It therefore represents a statement of the values which that country upholds and aspires to embed in its institutions and society

•UK Constitution: rule of law; parliamentary supremacy; separation of powers

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Preamble of the German Constitution

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•Preamble of German Basic Law, 1949 (amended by unification treaty and law of 1990)

•Conscious of their responsibility before God and man, Inspired by the determination to promote world peace as an equal partner in a united Europe, the German people, in the exercise of their constituent power, have adopted this Basic Law. Germans in the Länder of Baden-Württemberg, Bavaria, Berlin, Brandenburg, Bremen, Hamburg, Hesse, Lower Saxony, Mecklenburg-Western Pomerania, North Rhine-Westphalia,Rhineland-Palatinate, Saarland, Saxony, Saxony-Anhalt, Schleswig-Holstein and Thuringia have achieved the unity and freedom of Germany in free self-determination. This Basic Law thus applies to the entire German people.

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SpanishConstitution and preamble

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•The current Constitution of Spain datesfrom 1978 following parliamentary approval and approval by referendum of theSpanish people on 6 December 1978

•The origins of the current Constitutionlie with the death of Francisco Franco in 1975 and the need to start afreshwith the establishment of a new democracy for Spain

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Classifyingconstitutions: Spain

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•Preamble to the Constitution:

•The Spanish Nation, desiring to establish justice, liberty and security, and to promote the well-being of all its members, in the exercise of its sovereignty, proclaims its will to:

Guarantee democratic co-existence under the Constitution and the law, in accordance with a fair social and economic order;

Consolidate a State of Law which ensures the rule of law as an expression of the popular will; U

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Classifyingconstitutions: Spain

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Protect all Spaniards and peoples of Spain in the exercise of human rights, of their cultures and traditions, and of their languages and institutions;

Promote the progress of culture and of the economy in order to ensure a dignified quality of life for all;

Establish an advanced democratic society;

and Cooperate in the strengthening of peaceful relations and effective cooperation amongst all the peoples of the world.

Therefore, the Cortes pass and the Spanish people ratify the following CONSTITUTION

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Classifyingconstitutions: France

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•France has had numerous constitutions

•In recent history the French Constitution of 1946 established the 4th Republic after the Second World War

The current Constitution dates from 1958 and the established the 5th Republic

•Note again that the values are also stated in the Preamble and Article 1 of the Constitution

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Preamble to French Constitution of 1958

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Preamble

•The French people solemnly proclaim their attachment to the Rights of Man and the principles of national sovereignty as defined by the Declaration of 1789, confirmed and complemented by the Preamble to the Constitution of 1946, and to the rights and duties as defined in the Charter for the Environment of 2004.

•By virtue of these principles and that of the self-determination of peoples, the Republic offers to the overseas territories which have expressed the will to adhere to them new institutions founded on the common ideal of liberty, equality and fraternity and conceived for the purpose of their democratic development. u

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FrenchConstitution

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•Article 1.

•France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs. It shall be organised on a decentralised basis.

•Statutes shall promote equal access by women and men to elective offices and posts as well as to position of professional and social responsibility.

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American Constitution

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•Opening lines of the American Constitution: •We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

•Question: Have their been ‘defining moments’ in Britain’s history which have brought about constitutional change?