Constitutional law

Constitutional law is a body of law which defines the role, powers, and structure of different entities within a state, namely, the executive, the parliament or legislature, and the judiciary; as well as the basic rights of citizens and, in federal countries such as the United States and Canada, the relationship between the central government and state, provincial, or territorial governments.

Not all nation states have codified constitutions, though all such states have a jus commune, or law of the land, that may consist of a variety of imperative and consensual rules. These may include customary law, conventions, statutory law, judge-made law, or international rules and norms. Constitutional law deals with the fundamental principles by which the government exercises its authority. In some instances, these principles grant specific powers to the government, such as the power to tax and spend for the welfare of the population. Other times, constitutional principles act to place limits on what the government can do, such as prohibiting the arrest of an individual without sufficient cause.

In most nations, such as the United States, India, and Singapore, constitutional law is based on the text of a document ratified at the time the nation came into being. Other constitutions, notably that of the United Kingdom,[1][2] rely heavily on unwritten rules known as constitutional conventions; their status within constitutional law varies, and the terms of conventions are in some cases strongly contested.[3]

Declaration of the Rights of Man and of the Citizen in 1789
The principles from the French Declaration of the Rights of Man and of the Citizen still have constitutional importance

State and legal structure

Constitutional laws may often be considered second order rule making or rules about making rules to exercise power. It governs the relationships between the judiciary, the legislature and the executive with the bodies under its authority. One of the key tasks of constitutions within this context is to indicate hierarchies and relationships of power. For example, in a unitary state, the constitution will vest ultimate authority in one central administration and legislature, and judiciary, though there is often a delegation of power or authority to local or municipal authorities. When a constitution establishes a federal state, it will identify the several levels of government coexisting with exclusive or shared areas of jurisdiction over lawmaking, application and enforcement. Some federal states, most notably the United States, have separate and parallel federal and state judiciaries, with each having its own hierarchy of courts with a supreme court for each state. India, on the other hand, has one judiciary divided into district courts, high courts, and the Supreme Court of India.

Human rights

Human rights or civil liberties form a crucial part of a country's constitution and uphold the rights of the individual against the state. Most jurisdictions, like the United States and France, have a codified constitution, with a bill of rights. A recent example is the Charter of Fundamental Rights of the European Union which was intended to be included in the Treaty establishing a Constitution for Europe, that failed to be ratified. Perhaps the most important example is the Universal Declaration of Human Rights under the UN Charter. These are intended to ensure basic political, social and economic standards that a nation state, or intergovernmental body is obliged to provide to its citizens but many do include its governments.

Some countries like the United Kingdom have no entrenched document setting out fundamental rights; in those jurisdictions the constitution is composed of statute, case law and convention. A case named Entick v. Carrington[4] is a constitutional principle deriving from the common law. John Entick's house was searched and ransacked by Sherriff Carrington. Carrington argued that a warrant from a Government minister, the Earl of Halifax was valid authority, even though there was no statutory provision or court order for it. 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... If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment."[5]

The common law and the civil law jurisdictions do not share the same constitutional law underpinnings. Common law nations, such as those in the Commonwealth as well as the United States, derive their legal systems from that of the United Kingdom, and as such place emphasis on judicial precedent,[6][7][8][9] whereby consequential court rulings (especially those by higher courts) are a source of law. Civil law jurisdictions, on the other hand, 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. Common law judicatures consequently separate the judiciary from the prosecution,[10][11][12] thereby establishing the courts as completely independent from both the legislature and law enforcement. Human rights law in these countries is as a result, largely built on legal precedent in the courts' interpretation of constitutional law, whereas that of civil law countries is almost exclusively composed of codified law, constitutional or otherwise.

Legislative procedure

Another main function of constitutions may be to describe the procedure by which parliaments may legislate. For instance, special majorities may be required to alter the constitution. In bicameral legislatures, there may be a process laid out for second or third readings of bills before a new law can enter into force. Alternatively, there may further be requirements for maximum terms that a government can keep power before holding an election.

Study of constitutional law

Constitutional law is a major focus of legal studies and research. For example, most law students in the United States are required to take a class in Constitutional Law during their first year, and several law journals are devoted to the discussion of constitutional issues.

The rule of law

The doctrine of the rule of law dictates that government must be conducted according to law. This was first established by British legal theorist A. V. Dicey.

Dicey identified three essential elements of the British Constitution which were indicative of the rule of law:

  1. Absolute supremacy of regular law as opposed to the influence of arbitrary power;[13]
  2. Equality before the law;
  3. The Constitution is a result of the ordinary law of the land.

Dicey’s rule of law formula consists of three classic tenets. The first is that the regular law is supreme over arbitrary and discretionary powers. "[N]o man is punishable ... except for a distinct breach of the law established in the ordinary legal manner before the ordinary courts of the land."[14]

The separation of powers

The Separation of Powers is often regarded as a second limb functioning alongside the Rule of Law to curb the powers of the Government. In many modern nation states, power is divided and vested into three branches of government: The Legislature, the Executive and the Judiciary. The first and the second are harmonised in traditional Westminster forms of government.[15]

See also

References

  1. ^ Blick, Andrew; Blackburn, Robert (2012), Mapping the Path to Codifying - or not Codifying - the UK's Constitution, Series paper 2. Centre for Political and Constitutional Studies, King’s College London, Parliament UK, retrieved 19 November 2016
  2. ^ H Barnett, Constitutional and Administrative Law (5th edn Cavendish 2005) 9, "A written constitution is one contained within a single document or a [finite] series of documents, with or without amendments"
  3. ^ Markwell, Donald (2016). Constitutional Conventions and the Headship of State: Australian Experience. Connor Court. ISBN 9781925501155.
  4. ^ Entick v. Carrington (1765) 19 Howell's State Trials 1030
  5. ^ "Entick v. Carrington". 19 Howell’s State Trials 1029 (1765). United States: Constitution Society. Retrieved 2008-11-13.
  6. ^ Garner, Bryan A. (2001). A Dictionary of Modern Legal Usage (2nd, revised ed.). New York: Oxford University Press. p. 177. In modern usage, common law is contrasted with a number of other terms. First, in denoting the body of judge-made law based on that developed in England… [P]erhaps most commonly within Anglo-American jurisdictions, common law is contrasted with statutory law ...
  7. ^ Black's Law Dictionary - Common law (10th ed.). 2014. p. 334. 1. The body of law derived from judicial decisions, rather than from statutes or constitutions; CASE LAW [contrast to] STATUTORY LAW.
  8. ^ Lloyd Duhaime. "Common Law Legal Definition". duhaime.org. Judge-declared law. ...
  9. ^ Washington Probate, "Estate Planning & Probate Glossary", Washington (State) Probate, s.v. "common", 8 Dec. 2008:, retrieved 7 November 2009."1. A law based on a prior court decision"
  10. ^ Hale, Sandra Beatriz (July 2004). The Discourse of Court Interpreting: Discourse Practices of the Law, the Witness and the Interpreter. John Benjamins. p. 31. ISBN 978-1-58811-517-1.
  11. ^ Richards, Edward P.; Katharine C. Rathbun (1999-08-15). Medical Care Law. Jones & Bartlett. p. 6. ISBN 978-0-8342-1603-7.
  12. ^ Care, Jennifer Corrin (2004-01-12). Civil Procedure and Courts in the South Pacific. Routledge Cavendish. p. 3. ISBN 978-1-85941-719-5.
  13. ^ A. V. Dicey, Introduction to the Study of the Law of the Constitution (Macmillan, 10th ed, 1959) p.202
  14. ^ A. V. Dicey, Introduction to the Study of the Law of the Constitution (10th ed, 1959) p.188
  15. ^ W B Gwyn, The Meaning of the Separation of Powers: An Analysis of the doctrine from Its Origin to the Adoption of the United States Constitution, Tulane University (1965).

External links

Australian constitutional law

Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Several major doctrines of Australian constitutional law have developed.

Canadian constitutional law

Canadian constitutional law (French: droit constitutionnel du Canada) is the area of Canadian law relating to the interpretation and application of the Constitution of Canada by the courts. All laws of Canada, both provincial and federal, must conform to the Constitution and any laws inconsistent with the Constitution have no force or effect.

In Reference re Secession of Quebec, the Supreme Court characterized four fundamental and organizing principles of the Constitution (though not exhaustive): federalism; democracy; constitutionalism and the rule of law.

Civil rights in the United States

Civil rights in the United States are responsibilities and policies that the United States government maintains to achieve equality and prevent discrimination among its citizens.

Constitution of India

The Constitution of India (IAST: Bhāratīya Saṃvidhāna) is the supreme law of India. The document lays down the framework demarcating fundamental political code, structure, procedures, powers, and duties of government institutions and sets out fundamental rights, directive principles, and the duties of citizens. It is the longest written constitution of any country on earth. B. R. Ambedkar, chairman of the drafting committee, is widely considered to be its chief architect.It imparts constitutional supremacy (not parliamentary supremacy, since it was created by a constituent assembly rather than Parliament) and was adopted by its people with a declaration in its preamble. Parliament cannot override the constitution.

It was adopted by the Constituent Assembly of India on 26 November 1949 and became effective on 26 January 1950. The constitution replaced the Government of India Act, 1935 as the country's fundamental governing document, and the Dominion of India became the Republic of India. To ensure constitutional autochthony, its framers repealed prior acts of the British parliament in Article 395. India celebrates its constitution on 26 January as Republic Day.The constitution declares India a sovereign, socialist, secular, democratic republic, assuring its citizens justice, equality and liberty, and endeavours to promote fraternity. The original 1950 constitution is preserved in a helium-filled case at the Parliament House in New Delhi. The words "secular" and "socialist" were added to the preamble in 1976 during the emergency.

Constitutional convention (political meeting)

A constitutional convention is a gathering for the purpose of writing a new constitution or revising an existing constitution.

Members of a constitutional convention (sometimes referred to as "delegates" to a constitutional convention) are often, though not necessarily or entirely, elected by popular vote. However, a wholly popularly-elected constitutional convention can also be referred to as a Constituent assembly.

Constitutionality

Constitutionality is the condition of acting in accordance with an applicable constitution; the status of a law, a procedure, or an act's accordance with the laws or guidelines set forth in the applicable constitution. When one of these (laws, procedures, or acts) directly violates the constitution, it is unconstitutional. All the rest are considered constitutional until challenged and declared otherwise, typically by courts through judicial review.

Duke University School of Law

Duke University School of Law (also known as Duke Law School or Duke Law) is the law school and a constituent academic unit of Duke University, Durham, North Carolina, United States. One of Duke's 10 schools and colleges, the School of Law began as the Trinity College School of Law in 1868. In 1924, following the renaming of Trinity College to Duke University, the school was renamed the Duke University School of Law.

Duke Law is consistently ranked as one of the top law schools in the United States and admits roughly 20% of applicants. The law school is one of the "T14" law schools, that is, schools that have consistently ranked within the top 14 law schools since U.S. News & World Report began publishing rankings. On average, 95% of students are employed at graduation, with a median starting salary in the private sector of over $160,000. The class of 2017 had the highest employment number in the country for the category of long-term, full-time jobs that require bar passage and are not funded by the school at 93.8%. Duke's 2017 class bar passage rate was 97.44%, which was among the top five law schools in first time bar passage rates. The Law School Transparency estimated debt-financed cost of attendance for three years is $285,725.

Executive (government)

The executive is the organ exercising authority in and holding responsibility for the governance of a state. The executive executes and enforces law.

In political systems based on the principle of separation of powers, authority is distributed among several branches (executive, legislative, judicial)—an attempt to prevent the concentration of power in the hands of a small group of people. In such a system, the executive does not pass laws (the role of the legislature) or interpret them (the role of the judiciary). Instead, the executive enforces the law as written by the legislature and interpreted by the judiciary. The executive can be the source of certain types of law, such as a decree or executive order. Executive bureaucracies are commonly the source of regulations.

In the Westminster political system, the principle of separation of powers is not as entrenched as in some others. Members of the executive, called ministers, are also members of the legislature, and hence play an important part in both the writing and enforcing of law.

In this context, the executive consists of a leader(s) of an office or multiple offices. Specifically, the top leadership roles of the executive branch may include:

head of state – often the supreme leader, the president or monarch, the chief public representative and living symbol of national unity.

head of government – often the de facto leader, prime minister, overseeing the administration of all affairs of state.

defence minister – overseeing the armed forces, determining military policy and managing external safety.

interior minister – overseeing the police forces, enforcing the law and managing internal safety.

foreign minister – overseeing the diplomatic service, determining foreign policy and managing foreign relations.

finance minister – overseeing the treasury, determining fiscal policy and managing national budget.

justice minister – overseeing criminal prosecutions, corrections, enforcement of court orders.In a presidential system, the leader of the executive is both the head of state and head of government. In a parliamentary system, a cabinet minister responsible to the legislature is the head of government, while the head of state is usually a largely ceremonial monarch or president.

King-in-Council

The King-in-Council or the Queen-in-Council, depending on the gender of the reigning monarch, is a constitutional term in a number of states. In a general sense, it would mean the monarch exercising executive authority, usually in the form of approving orders, in the presence of the country's executive council.

Laurence Tribe

Laurence Henry "Larry" Tribe (born October 10, 1941) is a China-born American lawyer and scholar who is the Carl M. Loeb University Professor at the Harvard Law School in Harvard University. Tribe's scholarship focuses on American constitutional law. He also works with the firm Massey & Gail LLP on a variety of matters.Tribe is a constitutional law scholar and cofounder of American Constitution Society. He is the author of American Constitutional Law (1978), a major treatise in that field, and has argued before the United States Supreme Court 36 times.Controversially, Tribe has promoted unreliable sources and conspiracy theories about Donald Trump.

Law of Germany

The Law of Germany (German: Recht Deutschlands), that being the modern German legal system (German: Deutsches Rechtssystem), is a system of civil law which is founded on the principles laid out by the Basic Law for the Federal Republic of Germany, though many of the most important laws, for example most regulations of the civil code (Bürgerliches Gesetzbuch, or BGB) were developed prior to the 1949 constitution. It is composed of public law (öffentliches Recht), which regulates the relations between a citizen/person and the state (including criminal law) or two bodies of the state and the private law (Privatrecht) which regulates the relations between two people or companies. It has been subject to a wide array of influences from Roman law, such as the Corpus Juris Civilis, to Napoleonic law, such as the Napoleonic Code.

Law of Russia

The primary and fundamental statement of laws in the Russian Federation is the Constitution of the Russian Federation.

Police power (United States constitutional law)

In United States constitutional law, police power is the capacity of the states to regulate behavior and enforce order within their territory for the betterment of the health, safety, morals, and general welfare of their inhabitants. Under the Tenth Amendment to the United States Constitution, the powers not delegated to the Federal Government are reserved to the states or to the people. This implies that the Federal Government does not possess all possible powers, because most of these are reserved to the State governments, and others are reserved to the people.

Police power is exercised by the legislative and executive branches of the various states through the enactment and enforcement of laws. States have the power to compel obedience to these laws through whatever measures they see fit, provided these measures do not infringe upon any of the rights protected by the United States Constitution or their own state constitutions and are not unreasonably arbitrary or oppressive. Methods of enforcement can include legal sanctions, physical means, and other forms of coercion and inducement. Controversies over the exercise of state police power can arise when exercise by state authorities conflicts with individual rights and freedoms.

Public law

Public law is that part of law which governs relationships between individuals and the government, and those relationships between individuals which are of direct concern to society. Public law comprises constitutional law, administrative law, tax law and criminal law, as well as all procedural law. In public law, mandatory rules prevail. Laws concerning relationships between individuals belong to private law.

The relationships public law governs are asymmetric and unequal – government bodies (central or local) can make decisions about the rights of individuals. However, as a consequence of the rule of law doctrine, authorities may only act within the law (secundum et intra legem). The government must obey the law. For example, a citizen unhappy with a decision of an administrative authority can ask a court for judicial review.

Rights, too, can be divided into private rights and public rights. A paragon of a public right is the right to welfare benefits – only a natural person can claim such payments, and they are awarded through an administrative decision out of the government budget.

The distinction between public law and private law dates back to Roman law. It has been picked up in the countries of civil law tradition at the beginning of the nineteenth century, but since then spread to common law countries, too.

The borderline between public law and private law is not always clear in particular cases, giving rise to attempts of theoretical understanding of its basis.

Queen-in-Parliament

The Queen-in-Parliament (or, during the reign of a male monarch, King-in-Parliament), sometimes referred to as the Crown-in-Parliament or, more fully, in the United Kingdom, as the King or Queen in Parliament under God, is a technical term of constitutional law in the Commonwealth realms that refers to the Crown in its legislative role, acting with the advice and consent of the parliament (including, if the parliament is bicameral, both the lower house and upper house). Bills passed by the houses are sent to the sovereign, or governor-general, lieutenant-governor, or governor as her representative, for Royal Assent, which, once granted, makes the bill into law; these primary acts of legislation are known as acts of parliament. An act may also provide for secondary legislation, which can be made by the Crown, subject to the simple approval, or the lack of disapproval, of parliament.

Several countries, although having received their independence from the United Kingdom, operate under a system of President-in-Parliament, which formally designates the President as a component of Parliament alongside the House or two Houses.

Reconstruction Acts

The Reconstruction Acts, or Military Reconstruction Acts, (March 2, 1867, 14 Stat. 428-430, c.153; March 23, 1867, 15 Stat. 2-5, c.6; July 19, 1867, 15 Stat. 14-16, c.30; and March 11, 1868, 15 Stat. 41, c.25) were four statutes passed during the Reconstruction Era by the 40th United States Congress addressing requirement for Southern States to be readmitted to the Union. The actual title of the initial legislation was "An act to provide for the more efficient government of the Rebel States" and it was passed on March 4, 1867. Fulfillment of the requirements of the Acts was necessary for the former Confederate States to be readmitted to the Union from military and Federal control imposed during and after the American Civil War. The Acts excluded Tennessee, which had already ratified the 14th Amendment and had been readmitted to the Union.

Royal prerogative

The royal prerogative is a body of customary authority, privilege, and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy, as belonging to the sovereign and which have become widely vested in the government. It is the means by which some of the executive powers of government, possessed by and vested in a monarch with regard to the process of governance of the state, are carried out.

United States constitutional law

United States constitutional law is the body of law governing the interpretation and implementation of the United States Constitution.

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