Kara Sears
The concept of constitutional law has a long history, dating back to ancient times. The earliest known code of justice was issued by the Sumerian king Urukagina of Lagash around 2300 BC, which is considered the earliest prototype for a law of government. Since then, the understanding and application of constitutional law have evolved significantly. In modern times, constitutional law serves as the foundation for governing systems around the world, defining the roles, powers, and structures of different entities within a state. It also outlines the basic rights of citizens and their relationship with their governments. The United States Constitution, ratified in 1788, is the oldest and shortest written constitution still in force, influencing the development of constitutional law globally.
| Characteristics | Values |
|---|---|
| Definition | A body of law that defines the role, powers, and structure of different entities within a state, including the executive, the parliament or legislature, and the judiciary, as well as the basic rights of citizens and their relationship with their governments. |
| Basis | In most nations, constitutional law is based on the text of a document ratified at the time the nation came into being. |
| Examples | The United States, India, Singapore, the United Kingdom, Canada, France. |
| History | The earliest known code of justice was issued by the Sumerian king Urukagina of Lagash c. 2300 BC. The oldest written document still governing a sovereign nation is that of San Marino, dating back to 1600. The United States Constitution became operational in 1789 and has been amended 27 times since. |
| Influence | The United States Constitution has influenced the constitutions of other nations, including Australia. |
| Key Figures | John Locke, Thomas Hobbes, Jean-Jacques Rousseau, and others. |
| Key Concepts | Separation of powers, federalism, natural law, inalienable rights, individual liberty, and justice. |
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The US Constitution
The Constitution has seven articles and 27 amendments, with the first 10 amendments known as the Bill of Rights. The first three words of the Constitution are "We the People," and the document defines the principal organs of government and their jurisdictions, as well as the basic rights of citizens. The framers of the Constitution were particularly concerned with limiting the power of the government and securing the liberty of citizens. They established a system of checks and balances, with the separation of powers between the legislative, executive, and judicial branches of government, to ensure that no one branch became too powerful.
The Constitution has been amended several times to adapt to changing conditions and address issues such as slavery and the slave trade. The process of amending the Constitution is outlined in Article Five, which requires a proposal for an amendment to be adopted by two-thirds of both houses of Congress or by a national convention requested by two-thirds of the state legislatures. Once the proposal is passed, Congress decides on the method of ratification, which must then be approved by three-fourths of the states to become an operative part of the Constitution.
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The oldest constitutions
The concept of constitutional law is centuries old, with the earliest known code of justice issued by the Sumerian king Urukagina of Lagash, dating back to c. 2300 BC. However, the document itself has not been discovered yet.
The world has witnessed several significant constitutions throughout history, with varying degrees of influence and longevity. Here is a look at some of the oldest constitutions:
The Constitution of San Marino
The Constitution of San Marino, with some core documents dating back to 1600, is considered the world's oldest active written constitution. This constitution has guided the tiny republic nestled in the Apennine Mountains for centuries. It outlines the organisation of the government, the rights of citizens, and the principles of this ancient microstate.
The United States Constitution
The United States Constitution, ratified on June 21, 1788, is the oldest and shortest written constitution still in force. It established the framework for a federal government, delineated the separation of powers, and enshrined individual rights. The Bill of Rights, added in 1791, guarantees fundamental freedoms, including freedom of speech and religion.
The Polish–Lithuanian Commonwealth Constitution
The Polish–Lithuanian Commonwealth Constitution, passed on May 3, 1791, was the first constitution of its kind in Europe and the world's second oldest after the United States. It was designed to bolster the monarchy and protect the rights of nobility and citizens. Unfortunately, it faced an early demise due to external pressures and the partitioning of the nation.
The French Constitution of 1791
The French Constitution of 1791 was another landmark document, but it lasted only one year.
The Commonwealth of Massachusetts Constitution
The Commonwealth of Massachusetts adopted its constitution in 1780, making it the oldest still-functioning constitution of any U.S. state.
The Kouroukan Founga
The Kouroukan Founga, a 13th-century charter of the Mali Empire in West Africa, included provisions such as the "right to life and the preservation of physical integrity" and significant protections for women.
The Golden Bull (1356)
The Golden Bull, a decree issued by Emperor Charles IV, fixed an important aspect of the constitutional structure of the Holy Roman Empire for over four centuries.
The Ancestral Injunctions (first published in 1375)
These rules served as a constitution for the Ming dynasty in China for 250 years.
While some constitutions have endured for centuries, the average life expectancy of a written constitution is approximately 19 years, with many facing frequent changes or amendments.
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Uncodified rules
The United Kingdom's constitution is a notable example of an uncodified constitution. It is written in numerous fundamental acts of a legislature, court cases, and treaties, rather than a single document. The UK has no entrenched document setting out fundamental rights; instead, the constitution is composed of statute, case law, and convention.
The UK's uncodified constitution is based on legislative statutes and constitutional conventions, and the status of these within constitutional law varies. The terms of conventions are often strongly contested. For example, in the case of Entick v. Carrington, a constitutional principle derived from common law. John Entick's house was searched and ransacked by Sheriff Carrington, who argued that a warrant from a government minister was valid authority, despite there being no statutory provision or court order. 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...
The UK's uncodified constitution is also based on customary law, conventions, statutory law, judge-made law, and international law. The common law and civil law jurisdictions do not share the same constitutional law underpinnings. Common law nations, such as those in the Commonwealth and the United States, derive their legal systems from the UK and emphasise judicial precedent, whereby consequential court rulings are a source of law. In contrast, civil law jurisdictions place less emphasis on judicial review, and only the parliament or legislature has the power to effect law. As a result, the structure of the judiciary differs significantly between the two, with common law judiciaries being adversarial and civil law judiciaries being inquisitorial.
Uncodified constitutions are not limited to the UK. Canada, for example, does not have a codified constitution but includes the Canadian Charter of Rights and Freedoms to protect human rights for citizens and residents. Other examples of uncodified rules in constitutional law include the 13th-century charter of the Mali Empire in West Africa, known as the Kouroukan Founga, which was reconstructed from oral tradition in 1988 by Siriman Kouyaté. It included the "right to life and to the preservation of physical integrity" and significant protections for women. The Golden Bull of 1356 was a decree issued by a Reichstag in Nuremberg headed by Emperor Charles IV, which fixed an important aspect of the constitutional structure of the Holy Roman Empire for over four hundred years.
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Natural law
The age of constitutional law varies across different nations. The oldest written document still governing a sovereign nation is that of San Marino. The oldest constitution still in force is the United States Constitution, which was ratified in 1789. Since then, close to 800 constitutions have been adopted and amended by independent states.
The concept of natural law is distinct from that of constitutional law, though they are related. Natural law is a philosophical and legal theory that asserts the existence of a set of inherent laws derived from nature and universal moral principles. These laws are considered discoverable through reason and independent of enacted laws or societal norms. In ethics, natural law theory posits that certain rights and moral values are inherent in human nature and can be universally understood. In jurisprudence, natural law holds that there are objective legal standards based on morality that underlie and inform the creation, interpretation, and application of human-made laws. This view contrasts with legal positivism, which emphasises that laws are rules created by human authorities and may not be connected to moral principles.
The idea of natural law has a long history, dating back to ancient Greek philosophy, including Aristotle, and ancient Roman philosophy, where it was mentioned by Cicero. References to natural law can also be found in the Bible, and the concept was later elaborated on during the Middle Ages by Christian philosophers such as Albert the Great and Thomas Aquinas. Aquinas is credited with laying the foundation for a consistent system of natural law, arguing that because human beings possess reason, and because reason is a spark of the divine, all human lives are sacred and of infinite value.
During the Renaissance, the School of Salamanca made notable contributions to the development of natural law. In the medieval period, Christian natural law theories influenced the emergence of liberal natural law, which was further shaped by Hobbes' revision of natural law. The United States Declaration of Independence, ratified in 1776, reflects the influence of natural law in its assertion that the people are entitled to "the separate and equal station to which the Laws of Nature and of Nature's God entitle them". While some early American lawyers and judges viewed natural law with scepticism as a basis for concrete rights and governmental limitations, it did serve as an authority in some judicial decisions, legislative acts, and legal pronouncements.
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Human rights
The Universal Declaration of Human Rights (UDHR) was adopted by the UN General Assembly in 1948. It is the first legal document to set out the fundamental human rights to be universally protected. The UDHR, along with the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, make up the International Bill of Rights. The UDHR's 30 articles provide the principles and building blocks of current and future human rights conventions, treaties, and other legal instruments.
The UDHR states that "all human beings are born free and equal in dignity and rights". It ensures freedom from discrimination, which is a principle present in all major human rights treaties. All states have ratified at least one of the nine core human rights treaties, as well as one of the nine optional protocols. This means that states have obligations and duties under international law to respect, protect, and fulfill human rights.
The US Constitution, written in 1787, is the oldest written national constitution still in use. It primarily focuses on the rights of citizens and the relationship between the government and the people. The first ten amendments to the Constitution, known as the Bill of Rights, came into effect in 1791, limiting the powers of the federal government and protecting the rights of all citizens, residents, and visitors in American territory. The Bill of Rights protects freedom of speech, religion, assembly, and petition, the right to bear arms, and freedom from unreasonable search and seizure, among other things.
While the US Constitution guarantees important rights, it does not explicitly mention certain rights outlined in the UDHR, such as the right to education. The Fourteenth Amendment's guarantee of equal protection under the law has been interpreted to mean that all children have the right to equal access to education, and the Supreme Court has ruled that education is a fundamental right protected by the Constitution. However, the lack of explicit mention has led to criticism that the US has not done enough to ensure access to quality education.
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Frequently asked questions
The US Constitution was ratified on June 21, 1788, and became operational in 1789. It is the oldest written constitution still in force.
The UK does not have an entrenched document setting out fundamental rights. Its constitution is composed of statutes, case law, and convention.
The oldest surviving constitution in the world is the Constitution of San Marino from 1600.
The oldest written document still governing a sovereign nation is that of San Marino.
