CONSTITUTIONAL LAW MIDTERM:
Constitution and types of constitutions
Definition of a Constitution
A constitution is a foundational body of rules that governs a state, establishing the framework for its
institutions and the rights of its citizens. Rooted in Ancient Greek concepts and refined after the
American and French revolutions, constitutions serve to both create and limit state power.
Dimensions of Constitutions
Constitutions regulate various dimensions within a state:
1. Horizontal Dimension: Regulates the relationship between main government organs
(legislature, executive, and judiciary), defining both substantive norms (power distribution)
and procedural norms (how laws are enacted and how government processes operate).
2. Territorial Dimension: The division of power in federal states or regions with devolved
authorities, specifying competencies for state and regional governments.
3. Vertical Dimension: Governs the relationship between the state and the citizens, often
through rights-based constraints on government, such as those found in bills of rights.
Conceptions of the Constitution
1. State (Political) Conception: Views the constitution as an act that forms the state, involving
two logical moments: the constituent moment (establishing the state) and the organizational
moment (structuring governance and institutional relationships). This organization determines
the type of regimen, monarchy, republic, etc
2. Legal Conception: Sees the constitution as supreme law, with regulatory power that defines
governmental authority and citizens’ rights. The constitution is the foundation of the state and
the backbone of legal order which is established by the ordinary. It holds the highest authority
in the legal hierarchy, providing a binding framework for all other laws.
Types of Constitutions
1. Formal vs. Substantive:
○ Formal: Refers to a single, central document that outlines a state's fundamental rules.
○ Substantive: Includes both written and unwritten fundamental rules governing the
state, encompassing a broader body of law.
2. Written vs. Unwritten:
○ Written: Codified into a single, official text, such as the U.S. Constitution.
○ Unwritten: Developed through constitutional customs, conventions, and statutes,
exemplified by the UK’s constitution.
3. Codified vs. Uncodified:
○ Codified: Organized as a systematic document, consolidating constitutional laws in
one place.
○ Uncodified: A collection of various laws, practices, and conventions without a single
constitutional document, seen in the UK and Israel.
4. Rigid vs. Flexible:
○ Rigid: Requires special procedures or supermajorities for amendments, thus more
resistant to change (e.g., U.S. Constitution).
, ○Flexible: Amendable by the same process as ordinary laws, allowing for quicker
adaptation to social and political changes.
5. Imposed vs. Self-made:
○ Self-made: Drafted and confirmed by the sovereign people, as seen in most
democratic states.
○ Imposed: Enacted by external authorities, often without input from the people,
common in colonial or occupation contexts.
6. Proclamatory vs. Regulatory:
○ Proclamatory: Symbolic or narrative provisions with limited binding force, often
associated with authoritarian regimes.
○ Regulatory: Legally binding and enforceable, actively guiding and structuring political
processes within the state.
Types of Norms in Constitutions
Constitutions generally include:
● Substantive Norms: Define the powers and limits of each branch of government.
● Procedural Norms: Outline the processes for enacting laws and conducting governmental
operations.
● Rights-based Norms: Protect individual rights against government overreach, typically
enshrined in a bill of rights or similar section.
Separation of Powers Models
Comparative constitutional law studies various separation of powers models, each with distinct
structures and power balances:
1. Presidential Model: Emphasizes a clear separation between the executive and legislative
branches, with a president acting as head of state and government.
2. Parliamentary System: The executive is drawn from the legislative branch, with the head of
government (prime minister) accountable to the legislature.
3. Semi-Presidential Model: Combines elements of presidential and parliamentary systems,
with a president and prime minister sharing executive responsibilities.
Majoritarian vs. Consensus Models
Constitutions can further be categorized by their law-making processes:
● Majoritarian Model: Concentrates power within a majority group, often leading to a simpler
legislative process.
● Consensus Model: Requires broader agreement among various groups, often involving
multiple veto players to pass legislation, promoting inclusivity and stability.
Creation of constitutions:
● Imposed constituciones - external actor
● Self created constitutions - Constituent assemblies
, Constituent assemblies with
● No constraints: Operate with full autonomy to draft a constitution without external pressure
or predefined rules. Can result in innovative and representative constitutional frameworks, but
may also lead to instability if not representative of the populace.
●
● Upstream constraints: Limitations or guidelines that shape the assembly's deliberative
process before the drafting of the constitution. Such as: Existing legal frameworks or prior
agreements that outline the assembly's powers, International norms or treaties, political
agreements
●
● Downstream constraints: Restrictions or conditions that apply after the constitution is
drafted, affecting its implementation and effectiveness. Such as Ratification processes,
Institutional factors such as the capacity of the state to implement the new constitutional
provisions effectively
SESSIONS 3-4
Sovereignty
Sovereignty refers to the absolute authority of a state over its territory and population. It has two main
components:
1. External Sovereignty: independence from foreign interference. The concept of sovereignty
evolved with the Peace of Westphalia (1648), establishing principles of non-interference and
state autonomy in international law which ended the Thirty Years' War
2. Internal Sovereignty: The authority within the state to exercise control over its people and
territory. Constitutions may claim authority from the people (popular sovereignty, as in the
U.S. with “We the People”) or from the concept of the nation (national sovereignty), which is
more abstract and reflects enduring cultural and historical values.
Types of Sovereignty
● National Sovereignty: Power resides with the nation as an abstract entity beyond the living
population; it doesn’t refer to the current population of the country (here and now people) but
to the nation everyone that lived or will live there. It’s often represented by institutions like the
Parliament. (eg. France)
● Popular Sovereignty: Power resides with the people (here and now people0, as seen in
republics where the people actively participate in governance, including amendments and
constitutional changes. Usually showed in preamble of the constitutions such as “we the
people” (US)
Preamble of the constitution
- Usually by the way they are written let one knows who is the sovereignty with, Eg. (we the
people - Popular) (The spanish nation - national sovereignty)
- Usually they don't have legal force
Constitution-Making: Self-Made vs. Imposed
Constitution and types of constitutions
Definition of a Constitution
A constitution is a foundational body of rules that governs a state, establishing the framework for its
institutions and the rights of its citizens. Rooted in Ancient Greek concepts and refined after the
American and French revolutions, constitutions serve to both create and limit state power.
Dimensions of Constitutions
Constitutions regulate various dimensions within a state:
1. Horizontal Dimension: Regulates the relationship between main government organs
(legislature, executive, and judiciary), defining both substantive norms (power distribution)
and procedural norms (how laws are enacted and how government processes operate).
2. Territorial Dimension: The division of power in federal states or regions with devolved
authorities, specifying competencies for state and regional governments.
3. Vertical Dimension: Governs the relationship between the state and the citizens, often
through rights-based constraints on government, such as those found in bills of rights.
Conceptions of the Constitution
1. State (Political) Conception: Views the constitution as an act that forms the state, involving
two logical moments: the constituent moment (establishing the state) and the organizational
moment (structuring governance and institutional relationships). This organization determines
the type of regimen, monarchy, republic, etc
2. Legal Conception: Sees the constitution as supreme law, with regulatory power that defines
governmental authority and citizens’ rights. The constitution is the foundation of the state and
the backbone of legal order which is established by the ordinary. It holds the highest authority
in the legal hierarchy, providing a binding framework for all other laws.
Types of Constitutions
1. Formal vs. Substantive:
○ Formal: Refers to a single, central document that outlines a state's fundamental rules.
○ Substantive: Includes both written and unwritten fundamental rules governing the
state, encompassing a broader body of law.
2. Written vs. Unwritten:
○ Written: Codified into a single, official text, such as the U.S. Constitution.
○ Unwritten: Developed through constitutional customs, conventions, and statutes,
exemplified by the UK’s constitution.
3. Codified vs. Uncodified:
○ Codified: Organized as a systematic document, consolidating constitutional laws in
one place.
○ Uncodified: A collection of various laws, practices, and conventions without a single
constitutional document, seen in the UK and Israel.
4. Rigid vs. Flexible:
○ Rigid: Requires special procedures or supermajorities for amendments, thus more
resistant to change (e.g., U.S. Constitution).
, ○Flexible: Amendable by the same process as ordinary laws, allowing for quicker
adaptation to social and political changes.
5. Imposed vs. Self-made:
○ Self-made: Drafted and confirmed by the sovereign people, as seen in most
democratic states.
○ Imposed: Enacted by external authorities, often without input from the people,
common in colonial or occupation contexts.
6. Proclamatory vs. Regulatory:
○ Proclamatory: Symbolic or narrative provisions with limited binding force, often
associated with authoritarian regimes.
○ Regulatory: Legally binding and enforceable, actively guiding and structuring political
processes within the state.
Types of Norms in Constitutions
Constitutions generally include:
● Substantive Norms: Define the powers and limits of each branch of government.
● Procedural Norms: Outline the processes for enacting laws and conducting governmental
operations.
● Rights-based Norms: Protect individual rights against government overreach, typically
enshrined in a bill of rights or similar section.
Separation of Powers Models
Comparative constitutional law studies various separation of powers models, each with distinct
structures and power balances:
1. Presidential Model: Emphasizes a clear separation between the executive and legislative
branches, with a president acting as head of state and government.
2. Parliamentary System: The executive is drawn from the legislative branch, with the head of
government (prime minister) accountable to the legislature.
3. Semi-Presidential Model: Combines elements of presidential and parliamentary systems,
with a president and prime minister sharing executive responsibilities.
Majoritarian vs. Consensus Models
Constitutions can further be categorized by their law-making processes:
● Majoritarian Model: Concentrates power within a majority group, often leading to a simpler
legislative process.
● Consensus Model: Requires broader agreement among various groups, often involving
multiple veto players to pass legislation, promoting inclusivity and stability.
Creation of constitutions:
● Imposed constituciones - external actor
● Self created constitutions - Constituent assemblies
, Constituent assemblies with
● No constraints: Operate with full autonomy to draft a constitution without external pressure
or predefined rules. Can result in innovative and representative constitutional frameworks, but
may also lead to instability if not representative of the populace.
●
● Upstream constraints: Limitations or guidelines that shape the assembly's deliberative
process before the drafting of the constitution. Such as: Existing legal frameworks or prior
agreements that outline the assembly's powers, International norms or treaties, political
agreements
●
● Downstream constraints: Restrictions or conditions that apply after the constitution is
drafted, affecting its implementation and effectiveness. Such as Ratification processes,
Institutional factors such as the capacity of the state to implement the new constitutional
provisions effectively
SESSIONS 3-4
Sovereignty
Sovereignty refers to the absolute authority of a state over its territory and population. It has two main
components:
1. External Sovereignty: independence from foreign interference. The concept of sovereignty
evolved with the Peace of Westphalia (1648), establishing principles of non-interference and
state autonomy in international law which ended the Thirty Years' War
2. Internal Sovereignty: The authority within the state to exercise control over its people and
territory. Constitutions may claim authority from the people (popular sovereignty, as in the
U.S. with “We the People”) or from the concept of the nation (national sovereignty), which is
more abstract and reflects enduring cultural and historical values.
Types of Sovereignty
● National Sovereignty: Power resides with the nation as an abstract entity beyond the living
population; it doesn’t refer to the current population of the country (here and now people) but
to the nation everyone that lived or will live there. It’s often represented by institutions like the
Parliament. (eg. France)
● Popular Sovereignty: Power resides with the people (here and now people0, as seen in
republics where the people actively participate in governance, including amendments and
constitutional changes. Usually showed in preamble of the constitutions such as “we the
people” (US)
Preamble of the constitution
- Usually by the way they are written let one knows who is the sovereignty with, Eg. (we the
people - Popular) (The spanish nation - national sovereignty)
- Usually they don't have legal force
Constitution-Making: Self-Made vs. Imposed
