Constitutional law

Lore & Background

Constitutional law deals with the fundamental principles by which government exercises its authority. In some instances, these principles grant specific powers, such as the power to tax and spend for the welfare of the population; other times, they place limits on government action, such as prohibiting arrest without sufficient cause. Most nations, such as the United States, India, and Singapore, base constitutional law on a document ratified at the time the nation came into being, while others, notably the United Kingdom, rely heavily on uncodified rules, including legislative statutes and constitutional conventions, whose status varies and whose terms are sometimes strongly contested. Constitutional laws can be considered second order rule making or rules about making rules to exercise power. They govern relationships between the judiciary, legislature, and executive. In a unitary state, the constitution vests ultimate authority in one central administration, though power may be delegated to local authorities. In a federal state, such as India, multiple levels of government coexist with exclusive or shared areas of jurisdiction. Some federal states, most notably the United States, have separate and parallel federal and state judiciaries, each with its own hierarchy of courts and a supreme court for each state. Human rights or civil liberties form a crucial part of a country's constitution, upholding 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 has a constitution that is not codified but includes the Canadian Charter of Rights and Freedoms. Some countries, like the United Kingdom, have no entrenched document setting out fundamental rights; their constitution is composed of statute, case law, convention, and international agreements such as the European Convention on Human Rights. The doctrine of the rule of law, first established by British legal theorist A. V. Dicey, dictates that government must be conducted according to law, with three essential elements: absolute supremacy of regular law, equality before the law, and the constitution as a result of the ordinary law of the land.

Reader's Guide

Constitutional law is foundational to the structure and function of modern states, defining the distribution of power among branches of government and the rights of citizens. Its significance lies in establishing hierarchies and relationships of power, whether in unitary or federal systems, and in providing mechanisms for legislative procedure, such as special majorities for constitutional amendments or processes for bicameral legislatures. The rule of law, as articulated by A. V. Dicey, ensures that government operates under legal constraints, with no person above the law and with constitutional principles arising from judicial decisions. Separation of powers, often regarded as a second limb alongside the rule of law, curbs government power by dividing it among legislature, executive, and judiciary. Constitutional law also underpins human rights protections, whether through codified bills of rights, uncodified charters, or international enactments like the Universal Declaration of Human Rights. Its study is a major focus of legal education and research, with law students in the United States typically required to take a class in Constitutional Law during their first year. The field continues to evolve through judicial precedent, especially in common law jurisdictions, and through legislative action in civil law systems.

Did You Know?

• Not all nation states have codified constitutions; some, like the United Kingdom, rely on uncodified rules including statutes, conventions, and international agreements.
• In the case of Entick v Carrington, judges derived constitutional principles from common law, ruling that a warrant from a government minister was not valid authority without statutory provision or court order.
• A. V. Dicey identified three essential elements of the British Constitution indicative of the rule of law: absolute supremacy of regular law, equality before the law, and the constitution as a result of ordinary law.
• Common law nations place greater emphasis on judicial precedent as a source of law, while civil law jurisdictions give legislators significantly more power to modify the law.