Constitution

The U.S. Constitution is the document written in 1787 that established the frame of government for the United States of America. It was written by a group of delegates at the Constitutional Convention in Philadelphia, Pennsylvania . Their goal was to create a stronger federal government than the Articles of Confederation had provided.

Calling for a convention

When America's original thirteen colonies declared independence in 1776, they wrote the Articles of Confederation to create a central government for the new United States of America. The nation functioned informally under the articles until they were adopted officially in 1781. The articles created a government run by Congress without a separate president or judicial system.

By 1786, government under the Articles of Confederation was proving to be insufficient to some Americans. Congress's inability to enforce taxes, regulate commerce between states, and compel state cooperation was causing many problems. Efforts to amend the articles seemed doomed to failure because approval of all states was required for amendments. As criticism grew, it became evident to many that the desired changes might best be accomplished by writing an entirely new constitution.

The call for a Constitutional Convention grew out of two other meetings, the Alexandria and Annapolis Conventions. In November 1785, delegates from Virginia and Maryland met in Alexandria, Virginia, to reconcile some boundary and commercial disputes along the Potomac River. The success of their meeting motivated Virginia to call for another meeting in Annapolis, Maryland, the following year. Nine states were invited to discuss additional common problems, but only five sent delegates.

The delegates in Annapolis made plans for another convention to assemble in Philadelphia in May 1787. All states were requested to send delegates so that problems with the government under the articles could be addressed.

Opposing forces

The Constitutional Convention first met in Philadelphia on May 25. Of the seventy-four men who had been appointed as delegates by their states, fifty-five attended at one time or another, and thirty-nine signed the final document. Many political leaders of the time attended, including Benjamin Franklin (1706–1790), Alexander Hamilton (1755–1804), and James Madison (1751–1836). George Washington (1732–1799) was the presiding officer. Each of the original thirteen states except Rhode Island sent delegates.

From the beginning, there were two political focuses at the convention. One group of delegates was intent on creating an entirely new constitution to set up a new government. Their aim was to create a national government with powers adequate to promote the security, financial stability, commercial prosperity, and general well-being of all of the states.

Another small, but significant, group of delegates sought to preserve states' rights and were firmly opposed to creating a strong national government. They recognized the need for constitutional reform but believed that government under the articles could be improved simply by granting Congress additional powers.

There were no women at the convention, and nobody represented the interests of African Americans, Native Americans, and people without property who lacked voting rights.

When debates between delegates began, two plans gathered most attention. One was a series of resolutions put forth by the Virginia delegation. The Virginia Plan called for a wholly new constitution that would establish a strong national government. In opposition, a proposal called the New Jersey Plan called for a continuation of the Confederation Congress (the governing body of the United States, with representatives from each of the thirteen colonies, that was in place from 1781 until the ratification of the U.S. Constitution). Eventually the proposal to pursue a whole new constitution gained more support, and the delegates began the long debates to write the details of it.

Designing and writing the Constitution

The decision to write a new constitution required the delegates to design a new government. It was the first time in history that people set their minds to crafting a permanent government on the principles of democracy without a monarchical (a government with a ruling king or queen) component. The articles had created just a loose confederation of the states in 1776, when the permanence of independence from Great Britain was far from decided. In 1787, the United States had been independent for eleven years, so it needed a durable constitution.

Among those who wanted a strong central government, there was general agreement that it should contain three parts: a legislative branch for making the laws, an executive branch for enforcing the laws, and a judicial branch for deciding cases under the laws. Dispute and debate centered on the construction and powers of each branch and how they would interact.

Some delegates, primarily from the larger states, wanted the legislative branch to be filled with members based on a state's population. Delegates from smaller states wanted each state to have an equal vote in the legislature. The Congress they designed included both aspects: a House of Representatives with membership based on population, and a Senate with equal membership of two senators per state.

One of the most infamous parts of the Constitution is the “Three-Fifths Clause.” The delegates had to decide how slaves would count toward determining how many members a state was allowed to have in the House of Representatives. Delegates from slavery states wanted slaves to count fully, and delegates from free states wanted slaves not to count at all. The compromise they reached to induce both northern and southern support for the Constitution was to count each slave as just three-fifths of a person in determining population for calculating House membership. Native Americans, called Indians, who did not pay taxes were not to count at all. Also to ensure southern support, the delegates wrote a clause to prevent Congress from outlawing the migration of slaves before 1808.

The delegates also disagreed on construction of the executive branch. Some, including Alexander Hamilton, wanted a president to serve for life upon election. Others wanted to limit presidential terms. There also was disagreement over how much power the president should have to veto, or reject, laws passed by Congress. The presidency the convention created allowed a president to be elected to an unlimited number of four-year terms. (In practice, two terms was generally regarded as the norm. Franklin D. Roosevelt [1882–1945; served 1933–45] is the only president to serve more than two terms. The Twenty-second Amendment, ratified in 1951, stated that a person could be elected to no more than two terms and could also serve not more than two additional years if that person is finishing out a predecessor's term.) The president may veto laws passed by Congress, but Congress may override a veto if two-thirds of each chamber vote to do so.

Constructing the judicial branch was the least controversial job the delegates faced. They wrote the Constitution to allow the judiciary to decide cases and controversies under the laws. A Supreme Court would sit on top of the federal judicial system. The Constitution left it up to Congress whether to create other federal courts.

Ratification

In mid-September 1787, the convention put its various decisions into a finished draft and submitted the Constitution to the states for approval. In a bold change, the provision for ratification was altered from the unanimous vote demanded by the Articles of Confederation. Instead, a majority of nine states was needed for approval.

State conventions were held, and over the next ten months all but two states, Rhode Island and North Carolina , ratified the Constitution. The new government as defined by the Constitution of the United States convened for the first time in April 1789. The last two of the original thirteen states ratified the Constitution after the new government had begun: North Carolina in November 1789, and Rhode Island in May 1790.

Constitution

On 16 June 1922, the same day as the general election that was inter alia intended to ratify it, the Provisional Government published the constitution of the Irish Free State. A committee of legal and other experts, formally headed by Michael Collins, had drafted the constitution. The document reflected a diverse range of influences, including the constraints of the 1921 Anglo-Irish Treaty, the Westminster model of government, the European and American constitutional traditions, conservative populism, and the radical contribution to the revolution.

In many respects the 1922 constitution was a conventional liberal-democratic document of its time. Despite the inclusion of the Crown (and the governor general as the Crown's representative) in the structure of government, and despite the incorporation of the treaty itself—insofar as legislation repugnant to the treaty was to be repugnant to the constitution—the constitution declared that all power derived from the people. It established a bicameral legislature, consisting of Dáil and Senate, with the government responsible to the Dáil, and the separation of powers between legislature and judiciary.

However, these structures also contained unique elements that reflected the perceived realities of Irish political life. The necessity (under the treaty) and the desire to give adequate representation to minorities led to the introduction of voting by proportional representation (single transferable vote) and of a partially nominated Senate with the power to delay legislation. The belief (ultimately inaccurate) that two-party politics would not develop and that there should be a comparatively unmediated relationship between government and the popular will led to the introduction of extern ministers and the powers of referendum and initiative. Extern ministers were not subject to collective cabinet responsibility and might not be members of the Dáil. They were appointed sporadically in the early years of the Cumann na nGaedheal administration. The powers of initiative and referendum were intended to allow a degree of popular control over legislation. In practice Cumann na nGaedheal bypassed these powers, which became obsolete.

The 1922 constitution also guaranteed a limited range of rights. The investment of the state with rights to the country's natural resources and the right of citizens to a free elementary education derived from the 1919 Democratic Programme of the Dáil. The main body of individual rights—such as the rights to freedom of expression, freedom of assembly, and habeas corpus—stemmed from the liberal-democratic tradition. Religious rights were confined to an assertion of the freedom to practice any religion.

Significantly, the government retained the power to amend the constitution without referendum beyond what had been initially intended to be a transitory period; this power was inherited by Fianna Fáil in 1932. In consequence the 1922 constitution was changed beyond recognition by the passage of public-safety and other legislation under various governments, and more particularly by de Valera's legislative assault on the treaty.

In April 1935 de Valera commenced drafting a new constitution. It was a personal project, carried out in consultation only with a few hand-picked civil servants, notably John Hearne of the Department of External Affairs, and with members of the Jesuit community in Dublin.

Bunreacht na hÉireann, ratified on 1 July 1937, reflected de Valera's desire to replace a dictated constitution with one that would require little adjustment if and when partition ended; this established a form of government that more closely approximated the demands of republicans and that was attuned to Irish—in reality, nationalist and Catholic—values.

With partition in effect and with a view to maintaining links with the British Commonwealth, which he saw as necessary to persuade Ulster Unionists to enter a thirty-two-county state, de Valera declined to declare a republic. Nonetheless, his constitution set out a fundamentally republican form of government, with a president replacing the monarch as internal head of state. Though the powers of the president were limited and largely ceremonial, the office was responsible for the defense of the people and the constitution against arbitrary government—an essential role from the perspective of the international environment of the 1930s.

The question of partition was dealt with directly in Article 2, which defined the national territory as the whole island of Ireland (thereby establishing a constitutional claim to jurisdiction over Northern Ireland), and in Article 3, which restricted this jurisdiction to the twenty-six-county area, "pending the re-integration of the national territory."

The forms of government and the guaranteed rights in the constitution differed little from those of its predecessor and reflected a continuity of the same traditions. The bicameral legislature was reinstated—the Senate having been abolished temporarily in 1936—although the non-nominated members of the Senate were henceforth to be elected by vocational panels rather than directly.

However, the constitution also reflected de Valera's commitment to Gaelic and Catholic values. The state was renamed "Éire," and Irish was adopted as the first national language. Article 44, on religion, referred to the "special position" of the Catholic Church, and the constitution was deeply influenced by Catholic social teaching. De Valera was motivated by the social principles set out in the encyclical Quadragesimo Anno promulgated by Pope Pius XI in 1931. The underlying philosophy of the encyclical was the quest for a middle road between socialism and capitalism through the reorganization of society on vocational lines and according to the principle of subsidiarity, or decision-making at the lowest possible level. These principles suggested the method of election to the Senate and informed the social provisions and directives of the constitution, the existence and nature of which mark the most significant difference between the two constitutions.

The social provisions included a reference to the family as "the fundamental unit group of society" (Article 41). Following from this, the rights of the state in educational matters were circumscribed (Article 42) and the introduction of divorce legislation was prohibited (Article 41). Article 41 also acknowledged the contribution made to the state by woman "by her life within the home," which led to a feminist protest in 1937 against the introduction of a gendered concept of citizenship.

Although the explicitly Catholic tenor of the constitution was subjected to increasing criticism from the 1960s onward, it aroused little antipathy when it was written. Article 44 represented a characteristic de Valera compromise between Catholic absolutism and pluralism and was drafted in consultation with leaders of all faiths. The social provisions were admired internationally, and they later provided a model for the constitutions of newly independent nations such as India and Pakistan.

Amendments to the constitution require a referendum and have generally reflected a changing political and social environment rather than a desire to alter the structure of government. Attempts by Fianna Fáil in 1959 and 1968 to abolish proportional representation were rejected. Among the most significant referenda have been those removing the "special position" of the Catholic Church (1972); permitting entry into the EEC (1972) and ratifying subsequent treaties; removing the ban on divorce (1995); and establishing and modifying the right to life of unborn children (1983 and 1992), thereby imposing a ban on abortion. In 1998, in the wake of the Good Friday Agreement, Articles 2 and 3 were replaced by articles emphasizing the common nationality of citizens of both parts of the island and of the Irish diaspora.

SEE ALSO Commonwealth; Declaration of a Republic and the 1949 Ireland Act; de Valera, Eamon; Gaelic Catholic State, Making of; Northern Ireland: Policy of the Dublin Government from 1922 to 1969; Politics: Independent Ireland since 1922; Presidency; Roman Catholic Church: Since 1891; Primary Documents: Constitution of the Irish Free State (5 December 1922); From the 1937 Constitution; The Belfast/Good Friday Agreement (10 April 1998)

Bibliography

Chubb, Basil. The Politics of the Irish Constitution. 1991.

Farrell, Brian, ed. De Valera's Constitution and Ours. 1988.

Kohn, Leo. The Constitution of the Irish Free State. 1932.

Litton, Frank, ed. The Constitution of Ireland, 1937–1987. 1987.

Murphy, Tim, and Patrick Twomey, eds. Ireland's Evolving Constitution. 1998.

O'Leary, Don. Vocationalism and Social Catholicism in Twentieth-Century Ireland. 2000.

Susannah Riordan

CONSTITUTION

At the time of the Stamp Act controversy, a British lord told benjamin franklin that Americans had wrong ideas about the British constitution. British and American ideas did differ radically. The American Revolution repudiated the British understanding of the constitution; in a sense, the triumph in America of a novel concept of "constitution" was the "revolution." The British, who were vague about their unwritten constitution, meant by it their system of government, the common law, royal proclamations, major legislation such as magna carta and the bill of rights, and various usages and customs of government animating the aggregation of laws, institutions, rights, and practices that had evolved over centuries. Statute, however, was the supreme part of the British constitution. After the Glorious Revolution of 1688–1689, Parliament dominated the constitutional system and by ordinary legislation could and did alter it. Sir william blackstone summed up parliamentary supremacy when he declared in his Commentaries (1766), "What Parliament doth, no power on earth can undo."

The principle that Parliament had unlimited power was at the crux of the controversy leading to the American Revolution. The American assertion that government is limited undergirded the American concept of a constitution as a fundamental law that imposes regularized restraints upon power and reserves rights to the people. The American concept emerged slowly through the course of the colonial period, yet its nub was present almost from the beginning, especially in New England where covenant theology, social compact theory, and higher law theory blended together. thomas hooker in 1638 preached that the foundation of authority lay in the people who might choose their governors and "set bounds and limitations on their powers." A century later Jared Elliot of Massachusetts preached that a "legal government" exists when the sovereign power "puts itself under restraints and lays itself under limitations. This is what we call a legal, limited, and well constituted government." Some liberal theologians viewed God himself as a constitutional monarch, limited in power because he had limited himself to the terms of his covenant with mankind. Moreover God ruled a constitutional universe based on immutable natural laws that also bound him. Jonathan Mayhew preached in Boston that no one has a right to exercise a wanton sovereignty over the property, lives, and consciences of the people—"such a sovereignty as some inconsiderately ascribe to the supreme governor of the world." Mayhew explained that "God himself does not govern in an absolute, arbitrary, and despotic manner. The power of this almighty king is limited by law; not indeed, by acts of Parliament, but by the eternal laws of truth, wisdom, and equity.…"

Political theory and law as well as religion taught that government was limited; so did history. But the Americans took their views on such matters from a highly selective and romanticized image of seventeenth-century England, which they perpetuated in America even as England changed. Seventeenth-century England was the England of the great struggle for constitutional liberty by the common law courts and Puritan parliaments against despotic Stuart kings. Seventeenth-century England was the England of edward coke, john lilburne, and john locke. It was an England in which religion, law, and politics converged with theory and experience to produce limited monarchy and, ironically, parliamentary supremacy. To Americans, however, Parliament had bound itself by reaffirming Magna Carta and passing the habeas corpus act, the Bill of Rights, and the toleration act, among others. Locke had taught the social contract theory; advocated that taxation without representation or consent is tyranny; written that "government is not free to do as it pleases," and referred to the "bounds" which "the law of God and Nature have set to the legislative power of every commonwealth, in all forms of government."

Such ideas withered but did not die in eighteenth-century England. cato ' sletters popularized Locke on both sides of the Atlantic; Henry St. John (Viscount Bolingbroke) believed that Parliament could not annul the constitution; Charles Viner's General Abridgment of Law and Equity endorsed Coke's views in Dr. bonham ' s case (1610); and even as Parliament debated the Declaratory Act (1766), which asserted parliamentary power to legislate for America "in all cases whatsoever," charles pratt (Lord Camden) declared such a power "absolutely illegal, contrary to the fundamental laws of … this constitution.…" Richard Price and Granville Sharpe were two of the many English radicals who shared the American view of the British constitution.

taxation without representation provoked Americans to clarify their views. james otis, arguing against the tax on sugar, relied on Dr. Bonham's Case and contended that legislative authority did not extend to the "fundamentals of the constitution," which he believed to be fixed. thomas hutchinson, a leading supporter of Parliament, summed up the American constitutional reaction to the stamp tax duties by writing, "The prevailing reason at this time is, that the Act of Parliament is against Magna Charta and the natural rights of Englishmen, and therefore according to Lord Coke, null and void." The townshend act duties led to American declarations that the supreme legislature in any free state derives its power from the constitution, which limits government. john dickinson, inan essay reprinted throughout the colonies, wrote that a free people are not those subject to a reasonable exercise of government power but those "who live under a government so constitutionally checked and controlled, that proper provision is made against its being otherwise exercised." J. J. Zubly of Georgia was another of many who argued that no government, not even Parliament, could make laws against the constitution any more than it could alter the constitution. An anonymous pamphleteer rhapsodized in 1775 about the "glorious constitution worthy to be engraved in capitals of gold, on pillars of marble; to be perpetuated through all time, a barrier, to circumscribe and bound the restless ambition of aspiring monarchs, and the palladium of civil liberty.…" tom paine actually argued that Great Britain had no constitution, because Parliament claimed to exercise any power it pleased. To Paine a constitution could not be an act of the government but of "people constituting government.… A constitution is a thing antecedent to a government; a government is only the creature of the constitution."

Thus, by "constitution," Americans meant a supreme law creating the government, limiting it, unalterable by it, and above it. When they said that an act of government was unconstitutional, they meant that the government had acted lawlessly because it lacked the authority to perform that act. Accordingly the act was not law; it was null and void, and it could be disobeyed. By contrast when the British spoke of a statute being unconstitutional, they meant only that it was impolitic, unwise, unjust, or inexpedient, but not that it was beyond the power of the government to enact. They did not mean that Parliament was limited in its powers and had exceeded them.

The American view of "constitution" was imperfectly understood even by many leaders of the revolutionary movement as late as 1776. The proof is that when the states framed their first constitutions, the task was left to legislatures, although some received explicit authorization from the voters. thomas jefferson worried because Virginia had not differentiated fundamental from ordinary law. Not until Massachusetts framed its constitution of 1780 by devising a constitutional convention did the American theory match practice. When the constitutional convention of 1787 met in Philadelphia, the American meaning of a constitution was fixed and consistent.

Leonard W. Levy
(1986)

Bibliography

Adams, Randolph G. (1922) 1958 Political Ideas of the American Revolution. 3rd ed. New York: Barnes & Noble.

Bailyn, Bernard 1967 Ideological Origins of the American Revolution. Cambridge, Mass.: Harvard University Press.

Baldwin, Alice M. (1928) 1958 The New England Clergy and the American Revolution. New York: Frederick Ungar.

Mc Laughlin, Andrew C. 1932 The Foundations of American Constitutionalism. New York: New York University Press.

Mullett, Charles F. 1933 Fundamental Law and the American Revolution. New York: Columbia University Press.

CONSTITUTION

The fundamental law, written or unwritten, that establishes the character of a government by defining the basic principles to which a society must conform; by describing the organization of the government and regulation, distribution, and limitations 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 society are built:

A constitution may be defined as an organization of offices in a state, by which the method of their distribution is fixed, the sovereign authority is determined, and the nature of the end to be pursued by the association and all its members is prescribed. Laws, as distinct from the frame of the constitution, are the rules by which the magistrates 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 influenced by the ancient Greek models. During the twentieth century, an increasing number of countries around the world concluded that constitutions 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 constitutions, 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 people, a constitution may also set forth the rights of the individual and a government's responsibility to honor those rights.

Constitutions, whether written or unwritten, typically function as an evolving body of legal custom and opinion. Their evolution generally 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).

constitution. A constitution is a body of rules, formal or informal, which regulates the government of a state, or, indeed, a private association. It is concerned essentially not with ‘What is to be done?’ but ‘How?’ The procedures to be followed when taking decisions form the constitution. The distribution of power between the various organs of government, the limits of governmental authority, the methods of appointing or electing those who govern—these are the staple of a constitution.

The existence of a constitution implies that there are some restraints upon those who govern. If decisions, for instance, depend upon the whim of an absolute monarch, or the fancy of a dictator, it is hard to speak of a constitution. Constitutions are about procedures, and arbitrary power, by its very arbitrariness, is not hedged around by prescribed procedures. Most states, and many private associations, have written constitutions—a code of written rules binding those who govern, together with any amendments which have been made in accordance with the procedures laid down in the constitution. Thus the US constitution is the document accepted in 1787, together with the 27 amendments passed subsequently. Such a document, or collection of documents, is called the written or, more aptly, the formal constitution.

A contrast is sometimes made between written and unwritten constitutions. Britain, it is said, has an unwritten constitution. But the distinction is overdrawn. Britain is unusual in that there is no single document which can be called the formal constitution. The constitution in Britain is scattered through hundreds of Acts of Parliament and judicial rulings. There are, of course, many statutes that form part of the formal constitution in Britain: the Bill of Rights of 1689 which limited royal power; the Act of Settlement of 1701 which regulated the succession to the throne; the Representation of the People Acts from 1832 to the present day, which progressively widened the right to vote and regulated the conditions under which the right could be exercised. These statutes have not, however, been brought together in one legal document; the formal constitution of Britain, like truth, has to be collected and put together limb by limb.

But the description of Britain as having an unwritten constitution usually focuses on another attribute—the importance of conventions. Some of Britain's most important constitutional rules are constitutional conventions—rules which are generally observed but have no legal force. There is a convention that monarchs act on the advice of their ministers: there is no direct legal compulsion on them to act on ministerial advice, but they invariably do. By convention, a government clearly defeated on a vote of confidence in the House of Commons either resigns or holds a general election. The most powerful organ in the constitution, the cabinet, is barely known to the law. Its composition, its time of meeting, its powers, are all regulated by convention and usage, not by law.

Conventions are rules which have evolved over decades of constitutional practice. They have grown up and are obeyed because people find them useful. It is as though opposing players in a game had reached informal understandings about what was to be considered ‘foul play’ without bothering to write them down in the rule book. Conventions play a most important part in British political life, but it is quite wrong to regard them as a unique feature of British politics. Conventions develop in both states and private clubs. They figure conspicuously in the constitutional practice of the USA, which has the oldest surviving written constitution in the world. The growth of conventions, for example, has changed the choice of the American president from the indirect election provided for by the framers of the constitution to direct election by the people.

The constitution, especially the formal part, is often regarded as having a superior status to ordinary law; indeed, it is often seen as a fundamental law, a framework from which particular acts of legislation or executive decisions draw their legitimacy. It is held that it must be set apart from ordinary law and venerated as such, and be protected by change from chance majorities or the whims of a faction dominant for the time being. Many constitutions therefore specify that the constitution can be changed only by a special procedure. The constitution may lay down that an amendment must be passed by a special majority in the legislature, or must be approved by both houses of the legislature, or by the people in a referendum. Such measures emphasize the special status of the constitution and affirm that constitutional change can come about only through the deliberate and considered will of the people or their representatives. Such constitutions are called rigid; constitutions which can be changed in the same way as any ordinary mundane law are called flexible. Britain has a highly flexible constitution: that of the USA is highly rigid.

It is easy to assume that a constitutional state, one where the governors are themselves bound by rules, must also be democratic, but the assumption is false. A constitutional state is wholly compatible with a restricted franchise or oligarchic government. It is not the source of power which makes a state constitutional or otherwise, but the degree to which the various organs of the state check and control the use of arbitrary power. It is arbitrariness, not, say, traditional kingship, which is the opposite of constitutionalism.

Lastly, while it is true that a constitution may help to shape the political habits of a people, the converse is more likely to hold good. The world is littered with the parchment of dead constitutions—legal frameworks so remote from the experience of the peoples they sought to guide, so hostile to the most powerful interests in the land, that they collapsed at the first breath of challenge.

Hugh Berrington