CONSTITUTION
The fundamental law, written or unwritten, that
establishes the character of a government by defin-
ing the basic principles to which a society must
conform; by describing the organization of the
government and regulation, distribution, and lim-
itations on the functions of different government
departments; and by prescribing the extent and
manner of the exercise of its sovereign powers.
A legislative charter by which a government or
group derives its authority to act.
The concept of a constitution dates to the
city-states of ancient Greece. The philosopher
ARISTOTLE (384–322 B.C.), in his work Politics,
analyzed over 150 Greek constitutions. He
described a constitution as creating the frame
upon which the government and laws of a soci-
ety are built:
A constitution may be defined as an organi-
zation of offices in a state, by which the
method of their distribution is fixed, the sov-
ereign authority is determined, and the
nature of the end to be pursued by the asso-
ciation and all its members is prescribed.
Laws, as distinct from the frame of the con-
stitution, are the rules by which the magis-
trates should exercise their powers, and
should watch and check transgressors.
In modern Europe, written constitutions
came into greater use during the eighteenth and
nineteenth centuries. Constitutions such as that
of the United States, created in 1787, were influ-
enced by the ancient Greek models. During the
twentieth century, an increasing number of
countries around the world concluded that con-
stitutions are a necessary part of democratic or
republican government. Many thus adopted
their own constitutions.
Different forms and levels of government
may have constitutions.All 50 states have consti-
tutions, as do many countries including Japan,
India, Canada, and Germany. It is also common
for nongovernmental organizations and civic
groups to have constitutions.
In its ideal form, a constitution emanates
from the consent and will of the people whom it
governs. Besides establishing the institutions of
government and the manner in which they
function toward each other and toward the peo-
ple, a constitution may also set forth the rights
of the individual and a government’s responsi-
bility to honor those rights.
Constitutions, whether written or unwrit-
ten, typically function as an evolving body of
legal custom and opinion. Their evolution gen-
erally involves changes in judicial interpretation
or in themselves, the latter usually through a
process called amendment. Amendment of a
constitution is usually designed to be a difficult
process in order to give the constitution greater
stability. On the other hand, if a constitution is
extremely difficult to amend, it might be too inflexible to survive over time.
The ongoing evolutionary nature of constitutions
explains why England may be described
as having a constitution even though it does not
have a single written document that is designated
as such. England’s constitution instead
inheres in a body of legal custom and tradition
that regulates the relationship among the
monarchy, the legislature (Parliament), the judicial
system, and COMMON LAW. Although England’s
constitution is, in a sense, unwritten
because it does not originate in a single document,
many written laws have been instrumental
in its creation, and England in fact has one of
the oldest traditions of constitutionalism.
In a truly constitutional form of government,
public officials are subject to constitutional
rules and provisions and may not violate
them without punishment. Such constitutional
governments are also called limited governments
because the constitution restricts the
scope of their power over the people. However,
many governments that have constitutions do
not practice true constitutionalism. The former
Soviet Union, for example, created the 1936
Constitution of the Union of Soviet Socialist
Republics, also known as the “Stalin Constitution,”
but that document did not establish a
truly constitutional form of government.
JOSEPH STALIN, the ruler of the Soviet Union
from 1924 to 1953, could not be formally penalized
or called to account for his actions, no matter
how heinous, before any other government
official, any court, or the people themselves. The
Soviet Constitution also claimed to guarantee
FREEDOM OF SPEECH, press, and assembly, but
in practice the Soviet government continually
repressed those who sought to express those
freedoms. Constitutions such as that of the former
Soviet Union are called nominal constitutions,
whereas those that function more truly as
prescriptive documents, such as the CONSTITUTION
OF THE UNITED STATES, are called normative
constitutions.
In the United States, individual state constitutions
must conform to the basic principles of
the U.S. Constitution—they may not violate
rights or standards that it establishes. However,
states are free to grant rights that are not defined
in the U.S. Constitution, as long as doing so does
not interfere with other rights that are drawn
from it. For this reason, groups or individuals
who seek to file constitutional claims in court
are increasingly examining state constitutions
for settlement of their grievances. In the issue of
SCHOOL DESEGREGATION, for example, groups
such as the National Association for the
Advancement of Colored People (NAACP) began
in the 1990s to shift focus to the state level, with
the hope of finding greater protection of rights
under state constitutions.
In many states, however, courts have construed
their respective state constitutions to provide
rights that are equivalent to those provided
under the U.S. Constitution. For example, in
Jackson v. Benson, 578 N.W.2d 602 (Wisc. 1998),
the Wisconsin Supreme Court, citing settled
precedent, noted that the Wisconsin Constitution’s
provisions relating to EQUAL PROTECTION
provide the same rights as those provisions in
the federal counterpart, even though the Wisconsin
provisions are phrased quite differently.
The NAACP claimed that a school program in
Milwaukee, which allowed parents of certain
qualifying students of public schools in the city
to send their children to any private, nonsectarian
school of their choice at no cost, was enacted
with discriminatory intent. The court treated
the state and federal constitutional claims of the
NAACP as alike.
FURTHER READINGS
Barker, Ernest, trans. and ed. 1946. The Politics of Aristotle.
New York: Oxford Univ. Press.
Hamilton,Alexander, James Madison, and James Jay. Terence
Ball, ed. 2003. The Federalist. Cambridge, U.K., New
York: Cambridge Univ. Press.
CROSS-REFERENCES
Constitution of the United States; “Constitution of the
United States” (Appendix, Primary Document).
