Define: Written Constitution

Written Constitution
Written Constitution
Quick Summary of Written Constitution

A written constitution is a document setting out a state’s legal framework and, perhaps, defining and limiting the powers of the government.

The United Kingdom does not have such a document, for better or for worse. It does, however, have a number of ‘ordinary’ legal instruments that are treated by the courts as having some constitutional status. For example, the European Communities Act (1972) imports into English law vast swathes of EU legislation. In principle, an Act of Parliament passed later than 1972 should take precedence over it, in accordance with the usual conventions of statutory interpretation. However, the courts have frequently upheld the 1972 Act, despite later contradictory enactments. If they did not do this, the UK would be in breach of its obligations under the EC Treaty. All the same, this practice is unusual, to say the least, in UK courts. In short, the 1972 Act has achieved a constitutional status beyond that of other enactments made in the same way. There are a number of other enactments that are, or probably would be, treated by the courts in the same way. Rules that can generously be classed as constitutional may be found in other written sources as well. A good example is Erskine May’s Parliamentary Practice.

What is the dictionary definition of Written Constitution?
Dictionary Definition of Written Constitution

A written constitution is a formal document that outlines the fundamental principles, rights, and institutions of a country’s government. It serves as the supreme law of the land and provides the framework for governance, defining the powers and limitations of the various branches of government. Written constitutions typically establish the structure of government, the separation of powers, the rights and freedoms of citizens, and the mechanisms for amending the constitution itself. Unlike unwritten or partially written constitutions, a written constitution is codified in a single document or a series of documents, making it easily accessible and subject to formal interpretation by courts and legal authorities. Many countries, including the United States, have written constitutions, while others, such as the United Kingdom, rely on a combination of written and unwritten constitutional principles. Written constitutions are often seen as providing stability, clarity, and legal certainty, but they can also be difficult to amend and may require strict adherence to outdated provisions.

Full Definition Of Written Constitution

A written constitution is a formal document defining the fundamental political principles, establishing the structure, procedures, powers, and duties of a government, and often guaranteeing certain rights to the people in a codified form. The importance of a written constitution lies in its role as the supreme law of the land, guiding the governance and functioning of a state. This legal overview explores the concept, characteristics, advantages, disadvantages, and examples of written constitutions.

Definition and Concept

A written constitution is a singular, formal document that lays down the foundational rules and principles governing a state. It is distinct from an unwritten constitution, which consists of various statutes, conventions, judicial decisions, and traditions. The written constitution is typically enacted by a constituent assembly or a similar body and is often rigid, requiring a special procedure for amendments.

Characteristics of a Written Constitution

  1. Codification: The rules and principles are consolidated into a single document.
  2. Supremacy: It is the supreme law, and all other laws and government actions must conform to it.
  3. Rigidity: Amendments usually require a special procedure, often more stringent than ordinary legislative processes.
  4. Clarity and Precision: Being a formal document, it provides clear and precise guidelines on governance and rights.
  5. Entrenchment: Fundamental principles and rights are protected from easy alteration.

Advantages of a Written Constitution

  1. Clarity and Certainty: A written document provides clear guidance on the structure, powers, and functions of government, reducing ambiguity.
  2. Protection of Rights: It guarantees fundamental rights, providing a framework for their protection and enforcement.
  3. Limitations on Power: By defining and limiting government powers, it prevents arbitrary governance and potential abuses of power.
  4. Judicial Review: Courts can interpret the Constitution and ensure that laws and actions conform to it, offering a mechanism for checks and balances.
  5. Public Awareness: Being a single document, it is more accessible for citizens to understand their rights and the functioning of their government.

Disadvantages of a Written Constitution

  1. Rigidity: The difficulty in amending the constitution can make it less adaptable to changing societal needs and circumstances.
  2. Judicial Overreach: Courts interpreting the Constitution might overstep their bounds, leading to judicial activism.
  3. Complexity: Drafting and interpreting a written constitution can be complex and contentious.
  4. Potential for Ambiguity: Despite efforts for clarity, certain provisions might still be open to differing interpretations, leading to legal disputes.

Examples of Written Constitutions

The United States Constitution

The United States Constitution, adopted in 1787, is one of the oldest written constitutions still in use. It establishes a federal system of government, delineates the separation of powers, and enshrines fundamental rights in the Bill of Rights.

The Constitution of India

The Constitution of India, enacted in 1950, is the longest-written constitution in the world. It outlines a federal structure with a strong central government, fundamental rights, and directive principles for state policy.

The German Basic Law (Grundgesetz)

The German Basic Law, adopted in 1949, serves as Germany’s constitution. It establishes a federal parliamentary republic, guarantees fundamental rights, and incorporates principles like the social state and the rule of law.

Drafting and Enactment of Written Constitutions

The process of drafting a written constitution typically involves:

  1. Constituent Assembly: A specially elected or appointed body tasked with drafting the constitution.
  2. Deliberation: extensive discussions and debates on the principles, structure, and content of the Constitution.
  3. Public Participation: Often, there is a process for public input, ensuring the constitution reflects the will of the people.
  4. Ratification: The draft constitution is usually subject to ratification, either by a referendum or a legislative body.

Amendment Procedures

Written constitutions often have specific procedures for amendments to ensure stability while allowing for necessary changes. These procedures can include:

  1. Supermajority: Requiring a supermajority in the legislature to approve amendments.
  2. Referendum: Subjecting amendments to approval by the electorate.
  3. Bipartisanship: Ensuring broad support across political parties for constitutional changes.
  4. Sequential Approvals: Requiring multiple stages of approval, often with time intervals, to amend the constitution.

Interpretation and Judicial Review

The role of the judiciary in interpreting a written constitution is crucial. Courts, particularly constitutional or supreme courts, interpret the constitution and ensure laws and government actions comply with it. Judicial review serves as a check on legislative and executive powers, safeguarding constitutional principles and protecting individual rights.

Comparative Analysis: Written vs. Unwritten Constitutions

Written Constitutions

  • Pros: Clarity, certainty, protection of rights, limitations on power, public awareness.
  • Cons: rigidity, potential for judicial overreach, complexity, and possible ambiguity.

Unwritten Constitutions

  • Pros: Flexibility, adaptability, evolution with societal changes, simplicity.
  • Cons: Ambiguity, potential for arbitrary governance, less protection of rights, reliance on conventions and traditions.

Case Study: The United Kingdom

The United Kingdom is an example of a country with an unwritten constitution. It relies on statutes, common law, conventions, and works of authority. While this provides flexibility and adaptability, it can also lead to uncertainty and less formal protection of rights.

Conclusion

A written constitution is a cornerstone of modern governance, providing a clear and structured framework for the functioning of a state. It offers numerous advantages, including clarity, protection of rights, and limitations on government power. However, its rigidity and potential for judicial overreach present challenges. Understanding the characteristics, benefits, and drawbacks of written constitutions is essential for appreciating their role in shaping democratic governance and protecting fundamental rights.

Written Constitution FAQ'S

A written constitution is a formal document that outlines the fundamental principles, structures, and powers of a government or organisation. It serves as the supreme law of the land and provides a framework for governance.

A written constitution is a single document or a series of documents that are codified and clearly delineate the organisation and functioning of a government. In contrast, an unwritten constitution relies on a combination of statutes, judicial decisions, conventions, and traditions to govern.

A written constitution typically includes provisions regarding the distribution of powers among different branches of government, the protection of fundamental rights and freedoms, the process for amending the constitution, and the structure of the government.

Some examples of countries with written constitutions include the United States, India, Canada, Germany, Australia, and South Africa, among others.

Yes, most written constitutions include provisions for their own amendment. The process for amending a constitution usually requires a supermajority vote by the legislature or a special constitutional convention.

Written constitutions often include provisions guaranteeing certain fundamental rights and freedoms, such as freedom of speech, religion, and assembly. These rights are typically protected through mechanisms such as judicial review and constitutional interpretation.

The judiciary plays a crucial role in interpreting and applying the provisions of a written constitution. Courts have the authority to strike down laws or government actions that are deemed unconstitutional and to uphold the rights enshrined in the constitution.

In some cases, a written constitution may include provisions allowing for the suspension of certain rights or the declaration of a state of emergency during times of crisis. However, such actions are typically subject to strict legal limitations and oversight.

A written constitution often delineates the powers and responsibilities of different branches of government, such as the executive, legislative, and judicial branches. It establishes a system of checks and balances to prevent any one branch from becoming too powerful.

While a written constitution can provide a framework for stable governance, it cannot entirely prevent political crises or instability. The effectiveness of a constitution depends on various factors, including the adherence to its principles by political actors and the ability to adapt to changing circumstances.

Disclaimer

This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

This glossary post was last updated: 9th June 2024.

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