l“A constitution is not a thing in name only, but in fact. It has not an ideal, but a real existence; and wherever it cannot
be produced in a visible form, there is none. A constitution is a thing antecedent to a government, and a government is
only the creature of a constitution. The constitution of a country is not the act of its government, but of the people
constituting a government … A constitution … is to a government, what the laws made afterwards by that government
are to a court of judicature. The court of judicature does not make the laws, neither can it alter them; it only acts in
conformity to the laws made: and the government is in like manner governed by the constitution” (Thomas Paine,
Rights of Man, 1791).
What is this saying?
- We need to have this physical constitution
- For a constitution to exist it needs to be in a visible form
- It is not a thing that is visible, but it exists
- The constitution existed before the government
- The government is only an element of the constitution
- The laws cannot be changes by the constitution
- People make up the government, but
Things to contest
- If this were to be true, then it means that the UK doesn’t have a constitution as the UK doesn’t have a written
singular document where the constitution is recorded on (alone with Israel and New Zealand
- How applicable is this to political states of countries
o Not all countries are democratic therefore cannot choose their government
So not all will have a choice over their constitution
- We are in a common law legal system
o We use precedent
Made by Judges
This means that the court of judicature can change and make these laws
“Democratic theory conventionally defines a constitution as a ‘higher law’ that cannot be changed through normal
lawmaking procedures in a popularly elected assembly. Exceptional legal entrenchment issued to insulate constitutional
rules from the majoritarian controls that purportedly govern ordinary legislation. In this way, a constitutional text
strives to make fast the form of government (a presidential or parliamentary, a unitary or federal republic), the limits of
government (inviolable rights and immunities), and the goals for which government is empowered to act (to ensure
domestic tranquility, provide for the common defence, and promote the general welfare)” (Stephen Holmes,
“Constitutions and Constitutionalism).
What is this saying?
- The constitution is a higher law
- It is protected so it cannot be easily changed by new presidents, prime ministers etc.
- If you allowed the constitution to change after any change of power, then there would constantly be shifts in the
constitution
- Protects domestic tranquility, defense and promotes general welfare
- Determines what type of government you’re going to have
What can be contested?
- Doesn’t apply to the UK constitution
o The UK’s constitution can be changed easily due to its uncodified constitution compared to codified
constitutions
- It is from one person’s perspective
o Application of this theory, is only applicable to a democratic system
be produced in a visible form, there is none. A constitution is a thing antecedent to a government, and a government is
only the creature of a constitution. The constitution of a country is not the act of its government, but of the people
constituting a government … A constitution … is to a government, what the laws made afterwards by that government
are to a court of judicature. The court of judicature does not make the laws, neither can it alter them; it only acts in
conformity to the laws made: and the government is in like manner governed by the constitution” (Thomas Paine,
Rights of Man, 1791).
What is this saying?
- We need to have this physical constitution
- For a constitution to exist it needs to be in a visible form
- It is not a thing that is visible, but it exists
- The constitution existed before the government
- The government is only an element of the constitution
- The laws cannot be changes by the constitution
- People make up the government, but
Things to contest
- If this were to be true, then it means that the UK doesn’t have a constitution as the UK doesn’t have a written
singular document where the constitution is recorded on (alone with Israel and New Zealand
- How applicable is this to political states of countries
o Not all countries are democratic therefore cannot choose their government
So not all will have a choice over their constitution
- We are in a common law legal system
o We use precedent
Made by Judges
This means that the court of judicature can change and make these laws
“Democratic theory conventionally defines a constitution as a ‘higher law’ that cannot be changed through normal
lawmaking procedures in a popularly elected assembly. Exceptional legal entrenchment issued to insulate constitutional
rules from the majoritarian controls that purportedly govern ordinary legislation. In this way, a constitutional text
strives to make fast the form of government (a presidential or parliamentary, a unitary or federal republic), the limits of
government (inviolable rights and immunities), and the goals for which government is empowered to act (to ensure
domestic tranquility, provide for the common defence, and promote the general welfare)” (Stephen Holmes,
“Constitutions and Constitutionalism).
What is this saying?
- The constitution is a higher law
- It is protected so it cannot be easily changed by new presidents, prime ministers etc.
- If you allowed the constitution to change after any change of power, then there would constantly be shifts in the
constitution
- Protects domestic tranquility, defense and promotes general welfare
- Determines what type of government you’re going to have
What can be contested?
- Doesn’t apply to the UK constitution
o The UK’s constitution can be changed easily due to its uncodified constitution compared to codified
constitutions
- It is from one person’s perspective
o Application of this theory, is only applicable to a democratic system
