Editing Constitutional law

{{Short description|Law dealing with structure of a state}}
{{other uses}}
[[Image:Declaration of Human Rights.jpg|thumb|right|The principles from the French [[Declaration of the Rights of Man and of the Citizen]] still have constitutional importance.]]
'''Constitutional law''' is a body of law which defines the role, powers, and structure of different entities within a [[State (polity)|state]], namely, the [[executive (government)|executive]], the [[parliament]] or [[legislature]], and the [[judiciary]]; as well as the basic rights of citizens and, in federal countries [[History of the United States Constitution|such as the United States]] and [[Canada]], the relationship between the central government and state, provincial, or territorial governments.

Not all [[nation state]]s have codified [[constitution]]s, though all such states have a {{lang|la|[[jus commune]]}}, or law of the land, that may consist of a variety of imperative and consensual rules. These may include [[custom (law)|customary law]], [[Convention (norm)|conventions]], [[statutory law]], [[precedent|judge-made law]], or [[international law]]. 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 constitutional law|United States]], [[Constitution of India|India]], and [[Constitution of Singapore|Singapore]], constitutional law is based on the text of a document ratified at the time the nation came into being. Other constitutions, notably [[Constitution of the United Kingdom|that of the United Kingdom]],<ref name=Parliament>{{citation|title=Mapping the Path to Codifying - or not Codifying - the UK's Constitution|publisher=Parliament UK|first1=Andrew|last1=Blick|first2=Robert|last2=Blackburn|series=Series paper 2. Centre for Political and Constitutional Studies, King's College London|year=2012|url=https://publications.parliament.uk/pa/cm201213/cmselect/cmpolcon/writev/mapping/cde02.htm|access-date=19 November 2016}}</ref><ref>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"</ref> rely heavily on uncodified rules, as several legislative statutes and [[Constitutional convention (political custom)|constitutional convention]]s, their status within constitutional law varies, and the terms of conventions are in some cases strongly contested.<ref>{{cite book |last=Markwell |first=Donald |author-link=Donald Markwell |title=Constitutional Conventions and the Headship of State: Australian Experience |publisher=Connor Court|year=2016 |isbn=9781925501155}}</ref>

==Legal structure==
Constitutional laws can be considered second order rule making{{clarify|date=February 2025}} 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]] for instance as seen in India, it will identify multiple 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. [[Legal system of India|India]], on the other hand, has one judiciary divided into district courts, high courts, and the [[Supreme Court of India]].

==Human rights==
{{Main|Human rights|International human rights law}}
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]].  [[Canada]] is an example where the constitution is not codified, but includes the [[Canadian Charter of Rights and Freedoms]] to protect human rights for Canadian citizens and residents.<ref>{{Cite web |date=2017-10-23|title=Guide to the Canadian Charter of Rights and Freedoms|url=https://www.canada.ca/en/canadian-heritage/services/how-rights-protected/guide-canadian-charter-rights-freedoms.html|access-date=2022-01-20|website=Canadian Heritage }}</ref>

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 [[Constitutional convention (political custom)|convention]]. A case named ''[[Entick v. Carrington]]''<ref>''[[Entick v. Carrington]]'' (1765) 19 Howell's State Trials 1030</ref> 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 [[George Montagu-Dunk, 2nd Earl of Halifax|Earl of Halifax]] was valid authority, even though there was no statutory provision or court order for it. The court, led by [[Charles Pratt, 1st Earl Camden|Lord Camden]] stated that,

{{blockquote|"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."<ref>{{cite web | url=http://www.constitution.org/trials/entick/entick_v_carrington.htm | title=Entick v. Carrington | work=19 Howell's State Trials 1029 (1765) | publisher=Constitution Society | location=[[United States]] | access-date=2008-11-13}}</ref>}}

The [[common law]] and the [[Civil law (legal system)|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,<ref name="GarnerUsageDef0">{{cite book | title = A Dictionary of Modern Legal Usage | url = https://archive.org/details/dictionaryofmode00garn_0 | url-access = registration | last = Garner | first= Bryan A. | year = 2001 | publisher = [[Oxford University Press]] | location = New York | edition = 2nd, revised |page=[https://archive.org/details/dictionaryofmode00garn_0/page/177 177]| isbn = 978-0-19-507769-8 |quote = 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'' ... }}</ref><ref name="Blacks10thDef1">{{cite book|title=Black's Law Dictionary - Common law|date=2014|edition=10th|page=334 | quote=1. The body of law derived from judicial decisions, rather than from statutes or constitutions; CASE LAW [contrast to] STATUTORY LAW.}}</ref><ref>{{cite book |last1=Macpherson |first1=Heidi S. |last2=Kaufman |first2=Will |title=Britain and the Americas: Culture, Politics, and History |date=2005 |publisher=Ezekial Books, LLC |location=Manchester, NH |isbn=9791851094317 |page=259}}</ref> whereby consequential court rulings (especially those by higher courts) are a [[stare decesis|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 system|adversarial]] and civil law judiciaries being [[inquisitorial system|inquisitorial]]. Common law judicatures consequently separate the judiciary from the prosecution,<ref name="Hale">{{cite book|last=Hale|first=Sandra Beatriz|title= The Discourse of Court Interpreting: Discourse Practices of the Law, the Witness and the Interpreter |publisher=John Benjamins|date=July 2004|page=31|isbn=978-1-58811-517-1|url=https://books.google.com/books?id=HVwg_sQ5a5UC&q=%22adversarial+system%22&pg=PA31}}</ref><ref name="Richards">{{cite book|last=Richards|first=Edward P. |author2=Katharine C. Rathbun|title=Medical Care Law|publisher=Jones & Bartlett|date=1999-08-15|page=6|isbn=978-0-8342-1603-7|url=https://books.google.com/books?id=6FvwvJ-sJiAC&q=%22adversarial+system%22&pg=PA6}}</ref><ref name="Care">{{cite book|last=Care|first=Jennifer Corrin |title=Civil Procedure and Courts in the South Pacific|publisher=Routledge Cavendish|date=2004-01-12|page=3|isbn=978-1-85941-719-5|url=https://books.google.com/books?id=fbuuXuZjceMC&q=%22adversarial+system%22&pg=RA1-PA8}}</ref> 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' [[Judicial interpretation|interpretation]] of constitutional law, whereas that of civil law countries is almost exclusively composed of codified law, constitutional or otherwise.

There are also international enactments to protect human rights. One example is the [[Charter of Fundamental Rights of the European Union]] which was intended included in the [[Treaty of Lisbon]]. Perhaps the most important international 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.

==Legislative procedure==

{{Main|Parliamentary 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==
{{Globalize|date=December 2010}}
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:
#Absolute supremacy of regular law as opposed to the influence of [[arbitrary power]];<ref>A. V. Dicey, ''[[Introduction to the Study of the Law of the Constitution]]'' (Macmillan, 10th ed, 1959) p.202</ref>
#[[Equality before the law]];
#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."<ref>A. V. Dicey, ''Introduction to the Study of the Law of the Constitution''  (10th ed, 1959) p.188</ref>

The second is that all men are to stand equal in the eyes of the law. "...no man is above the law...every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals" <ref>A. V. Dicey, ''Introduction to the Study of the Law of the Constitution''  (9th ed, 1945) p.193</ref>

The third is that the general ideas and principles that the constitution supports arise directly from the judgements and precedents issued by the judiciary. "We may say that the constitution is pervaded by the rule of law on the ground that the general principles of the constitution... are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts" <ref>A. V. Dicey, ''Introduction to the Study of the Law of the Constitution''  (9th ed, 1945) p.195</ref>

==The separation of powers==
[[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 (government)|executive]], and the [[judiciary]] are known as the horizontal separation of powers. The first and the second are harmonized in traditional [[Westminster system]].<ref>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).</ref> Vertical separation of powers is decentralization.

== Election law ==
[[Election law]] is a subfield of constitutional law. It includes the rules governing the process of elections. These rules enable the translation of the will of the people into functioning [[Democracy|democracies]]. Election law addresses issues who is entitled to [[Voting|vote]], [[voter registration]], [[ballot access]], [[campaign finance]] and [[Political party funding|party funding]], [[Redistribution (election)|redistricting]], [[Apportionment (politics)|apportionment]], [[electronic voting]] and [[voting machine]]s, [[accessibility]] of elections, [[Electoral system|election systems]] and formulas, [[vote counting]], election disputes, [[referendum]]s, and issues such as [[electoral fraud]] and [[Election silence|electoral silence]].

==See also==
*[[Constitutionalism]]
*[[Constitutional review]]
*[[Constitution]]
*[[Constitutional economics]]
*[[Constitutional rights]]
*[[Monism and dualism in international law]]
*[[Philosophy of law]]
*[[Public law]]
*[[Rechtsstaat]]
*[[Rule of law]]
*[[Rule according to higher law]]

==References==
{{Library resources box}}
{{Reflist}}

==External links==
* {{Cite NIE|wstitle=Constitutional Law|short=x}}
* {{Merriam-Webster|Constitutional law}}

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[[Category:Constitutional law| ]]