What is a constitution? (01/10/19)
Textbook: Elliot and R. Thomas, Public Law, 3rd edition (2017)
Assessment:
30% 1200 word essay
70% exam
What is a constitution?
“The organic and fundamental law of a nation or state”….”written or unwritten” -
Black’s Law Dictionary (6th ed 1990)
Narrow Conception of a constitution:
• Written in a single document
• Special legal status (superior to other laws)
• Courts ‘strike down’ legislation that conflicts with the constitution
Can all constitutional laws be within one document?
Language is vague, complex and always needs interpretation. It’s impossible to
draft away all potential conflicts of meaning.
Example from USA: Marbury v Madison (1803) enabled judicial review, allowing
courts to deem laws made by congress, unconstitutional.
Example from Ireland: McGee v Attorney General (1974) right to marital privacy,
extended to right to privacy.
Broader Conception of a constitution:
• Not simply a document containing an exhaustive list of rules
• Rules in a constitution can be found in other sources
“The set of laws, rules and practices that create the basic institutions of the state”
- HoL Select Committee
Purposes of a Constitution
1. Declaration of general principles
2. Allocation, limiting and enabling of power
3. Protection of individual rights
4. Regulates relationships between individuals
5. Allows for change
1. Example: Article 2, Constitution of France “France shall be an indivisible,
secular, democratic and social Republic”
Example: Article 1, Constitution of SA
2. Plato’s Five Regimes
, “Power corrupts, absolute power corrupts absolutely.”
Roman republic had a mixed constitution,
• Monarchy
• Aristocracy
• Democracy
James Madison, Federalist Papers No. 47, “The accumulation of all powers,
legislative, executive and judicial….may justly be pronounced the very definition of
tyranny”
3. Allocates and regulates how power is exercised
• International Level (Monist v Dualist)
• European Level
• Central Government
• Devolved Government
• Local Government
Federalism: Combination of central and regional governments (USA)
Unitary: Power is located centrally (UK)
4. 1st Amendment of US Constitution – freedom of speech
Who decides when these rights have been breached?
What if there is disagreement over the rights enshrined in the
constitution?
• 2nd Amendment, US Constitution
5.
Constitutions can be changed. In the US, it is a long process – but still possible.
You need 2/3 of the votes of the House & the Senate, AND 2/3 of the state
legislatures. It can be done by a, ‘national convention.’
Textbook: Elliot and R. Thomas, Public Law, 3rd edition (2017)
Assessment:
30% 1200 word essay
70% exam
What is a constitution?
“The organic and fundamental law of a nation or state”….”written or unwritten” -
Black’s Law Dictionary (6th ed 1990)
Narrow Conception of a constitution:
• Written in a single document
• Special legal status (superior to other laws)
• Courts ‘strike down’ legislation that conflicts with the constitution
Can all constitutional laws be within one document?
Language is vague, complex and always needs interpretation. It’s impossible to
draft away all potential conflicts of meaning.
Example from USA: Marbury v Madison (1803) enabled judicial review, allowing
courts to deem laws made by congress, unconstitutional.
Example from Ireland: McGee v Attorney General (1974) right to marital privacy,
extended to right to privacy.
Broader Conception of a constitution:
• Not simply a document containing an exhaustive list of rules
• Rules in a constitution can be found in other sources
“The set of laws, rules and practices that create the basic institutions of the state”
- HoL Select Committee
Purposes of a Constitution
1. Declaration of general principles
2. Allocation, limiting and enabling of power
3. Protection of individual rights
4. Regulates relationships between individuals
5. Allows for change
1. Example: Article 2, Constitution of France “France shall be an indivisible,
secular, democratic and social Republic”
Example: Article 1, Constitution of SA
2. Plato’s Five Regimes
, “Power corrupts, absolute power corrupts absolutely.”
Roman republic had a mixed constitution,
• Monarchy
• Aristocracy
• Democracy
James Madison, Federalist Papers No. 47, “The accumulation of all powers,
legislative, executive and judicial….may justly be pronounced the very definition of
tyranny”
3. Allocates and regulates how power is exercised
• International Level (Monist v Dualist)
• European Level
• Central Government
• Devolved Government
• Local Government
Federalism: Combination of central and regional governments (USA)
Unitary: Power is located centrally (UK)
4. 1st Amendment of US Constitution – freedom of speech
Who decides when these rights have been breached?
What if there is disagreement over the rights enshrined in the
constitution?
• 2nd Amendment, US Constitution
5.
Constitutions can be changed. In the US, it is a long process – but still possible.
You need 2/3 of the votes of the House & the Senate, AND 2/3 of the state
legislatures. It can be done by a, ‘national convention.’
