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== Principles of constitutional design ==

== Principles of constitutional design ==

Government in some form goes back to when people were hunter-gatherers and lived in villages, and a common design consisting of a 'council of elders", a "chief" who led hunting or war-making activities, and one or more "priests" who provided a religious guidance or sanction to various activities. Fried, Morton H. ''The Notion of Tribe''. Cummings Publishing Company, [[1975]]. ISBN 0-8465-1548-2 As people began to establish nations or empires and lived in cities, this design evolved into monarchical or feudal patterns, with conquerors or strongmen claiming to rule by "[[Divine Right of Kings|divine right]]". Such rule led some thinkers to take the position that what mattered was not the design of governmental institutions and operations, but the character of the rulers. This view can be seen in [[Plato]], who called for rule by "philosopher-kings". ''[http://www.constitution.org/pla/repub_07.h|Aristotle, by Francesco Hayez]]

Government in some form goes back to when people were hunter-gatherers and lived in villages, and a common design consisting of a 'council of elders", a "chief" who led hunting or war-making activities, and one or more "priests" who provided a religious guidance or sanction to various activities. Fried, Morton H. ''The Notion of Tribe''. Cummings Publishing Company, [[1975]]. ISBN 0-8465-1548-2 As people began to establish nations or empires and lived in cities, this design evolved into monarchical or feudal patterns, with conquerors or strongmen claiming to rule by "[[Divine Right of Kings|divine right]]". Such rule led some thinkers to take the position that what mattered was not the design of governmental institutions and operations, but the character of the rulers. This view can be seen in [[Plato]], who called for rule by "philosopher-kings". ''[https://www.constitution.org/pla/repub_07.h|Aristotle, by Francesco Hayez]]

[[Aristotle]] (c. 350 BC) was one of the first in recorded history to make a formal distinction between ordinary law and constitutional law, establishing ideas of constitution and [[constitutionalism]], and attempting to classify different forms of constitutional government. The most basic definition he used to describe a constitution in general terms was "the arrangement of the offices in a state". In his works ''[[Constitution of Athens]]'', [[Politics (Aristotle)|Politics]], and [[Nicomachean Ethics]] he explored different forms of constitutions, especially those of [[Constitution of Athens|Athens]] and [[Lycurgus|Sparta]]. He classified both what he reBUTJSKFDHAHDSAic elements. He also distinguished between citizens, who had the exclusive opportunity to participate in the state, and non-citizens and slaves who did not. Later writers, such as [[Cicero]] and [[Plutarch]], would examine designs for government from a legal and historical standpoint.

[[Aristotle]] (c. 350 BC) was one of the first in recorded history to make a formal distinction between ordinary law and constitutional law, establishing ideas of constitution and [[constitutionalism]], and attempting to classify different forms of constitutional government. The most basic definition he used to describe a constitution in general terms was "the arrangement of the offices in a state". In his works ''[[Constitution of Athens]]'', [[Politics (Aristotle)|Politics]], and [[Nicomachean Ethics]] he explored different forms of constitutions, especially those of [[Constitution of Athens|Athens]] and [[Lycurgus|Sparta]]. He classified both what he reBUTJSKFDHAHDSAic elements. He also distinguished between citizens, who had the exclusive opportunity to participate in the state, and non-citizens and slaves who did not. Later writers, such as [[Cicero]] and [[Plutarch]], would examine designs for government from a legal and historical standpoint.

The [[Renaissance]] brought a series of political philosophers who wrote implied criticisms of the practices of monarchs and sought to identify principles of constitutional design that would be likely to yield more effective and just governance from their viewpoints. This began with revival of the Roman [[law of nations]] concept ''[http://www.constitution.org/victoria/victoria_.htm Relectiones]'', Franciscus de Victoria (lect. 1532, first pub. 1557). and its application to the relations among nations, and they sought to establish customary "laws of war and peace" ''[http://www.constitution.org/gro/djbp.htm The Law of War and Peace]'', Hugo Grotius (1625) to ameliorate wars and make them less likely. This led to considerations of what authority monarchs or other officials have and don't have, from where that authority derives, and the remedies for abusing such suthority. ''[http://www.constitution.org/vct/vct.htm Vindiciae Contra Tyrannos (Defense of Liberty Against Tyrants)]'', "Junius Brutus" (Orig. Fr. 1581, Eng. tr. 1622, 1689)

The [[Renaissance]] brought a series of political philosophers who wrote implied criticisms of the practices of monarchs and sought to identify principles of constitutional design that would be likely to yield more effective and just governance from their viewpoints. This began with revival of the Roman [[law of nations]] concept ''[https://www.constitution.org/victoria/victoria_.htm Relectiones]'', Franciscus de Victoria (lect. 1532, first pub. 1557). and its application to the relations among nations, and they sought to establish customary "laws of war and peace" ''[https://www.constitution.org/gro/djbp.htm The Law of War and Peace]'', Hugo Grotius (1625) to ameliorate wars and make them less likely. This led to considerations of what authority monarchs or other officials have and don't have, from where that authority derives, and the remedies for abusing such suthority. ''[https://www.constitution.org/vct/vct.htm Vindiciae Contra Tyrannos (Defense of Liberty Against Tyrants)]'', "Junius Brutus" (Orig. Fr. 1581, Eng. tr. 1622, 1689)

A seminal juncture in this line of discourse arose in England from the [[English Civil War|Civil War]], the [[Oliver Cromwell|Cromwellian Protectorate]], the writings of [[Thomas Hobbes]], [[Samuel Rutherford]], the [[Levellers]], [[John Milton]], and [[James Harrington]], leading to the debate between [[Robert Filmer]], arguing for the divine right of monarchs, on the one side, and on the other, [[Henry Neville (writer)|Henry Neville]], [[James Tyrrell (writer)|James Tyrrell]], [[Algernon Sidney]], and [[John Locke]]. What arose from the latter was a concept of government being erected on the foundations of first, a state of nature governed by natural laws, then a state of society, established by a [[social contract]] or compact, which bring underlying natural or social laws, before governments are formally established on them as foundations.  

A seminal juncture in this line of discourse arose in England from the [[English Civil War|Civil War]], the [[Oliver Cromwell|Cromwellian Protectorate]], the writings of [[Thomas Hobbes]], [[Samuel Rutherford]], the [[Levellers]], [[John Milton]], and [[James Harrington]], leading to the debate between [[Robert Filmer]], arguing for the divine right of monarchs, on the one side, and on the other, [[Henry Neville (writer)|Henry Neville]], [[James Tyrrell (writer)|James Tyrrell]], [[Algernon Sidney]], and [[John Locke]]. What arose from the latter was a concept of government being erected on the foundations of first, a state of nature governed by natural laws, then a state of society, established by a [[social contract]] or compact, which bring underlying natural or social laws, before governments are formally established on them as foundations.  

Along the way several writers examined how the design of government was important, even if the government were headed by a monarch. They also classified various historical examples of governmental designs, typically into democracies, aristocracies, or monarchies, and considered how just and effective each tended to be and why, and how the advantages of each might be obtained by combining elements of each into a more complex design that balanced competing tendencies. Some, such as [[Montesquieu]], also examined how the functions of government, such as legislative, executive, and judicial, might appropriately be separated into branches. The prevailing theme among these writers was that the design of constitutions is not completely arbitrary or a matter of taste. They generally held that there are underlying principles of design that constrain all constitutions for every polity or organization. Each built on the ideas of those before concerning what those principles might be.  

Along the way several writers examined how the design of government was important, even if the government were headed by a monarch. They also classified various historical examples of governmental designs, typically into democracies, aristocracies, or monarchies, and considered how just and effective each tended to be and why, and how the advantages of each might be obtained by combining elements of each into a more complex design that balanced competing tendencies. Some, such as [[Montesquieu]], also examined how the functions of government, such as legislative, executive, and judicial, might appropriately be separated into branches. The prevailing theme among these writers was that the design of constitutions is not completely arbitrary or a matter of taste. They generally held that there are underlying principles of design that constrain all constitutions for every polity or organization. Each built on the ideas of those before concerning what those principles might be.  

The later writings of [[O.A. Brownson]] [http://www.constitution.org/oab/am_rep.htm] ''The American Republic: its Constitution, Tendencies, and Destiny'', O. A. Brownson (1866)] would try to explain what constitutional designers were trying to do. According to Brownson there are, in a sense, three "constitutions" involved: The first the ''constitution of nature'' that includes all of what was called "natural law". The second is the ''constitution of society'', an unwritten and commonly understood set of rules for the society formed by a [[social contract]] before it establishes a government, by which it establishes the third, a ''constitution of government''. The second would include such elements as the making of decisions by public [[Convention (meeting)|convention]]s called by [[public notice]] and conducted by established [[Parliamentary procedure|rules of procedure]]. Each constitution must be consistent with, and derive its authority from, the ones before it, as well as from a historical act of society formation or constitutional ratification. Brownson argued that a [[state]] is a society with effective dominion over a well-defined territory, that consent to a well-designed constitution of government arises from presence on that territory, and that it is possible for provisions of a written constitution of government to be "unconstitutional" if they are inconsistent with the constitutions of nature or society. Brownson argued that it is not ratification alone that makes a written constitution of government legitimate, but that it must also be competently designed and applied.

The later writings of [[O.A. Brownson]] [https://www.constitution.org/oab/am_rep.htm] ''The American Republic: its Constitution, Tendencies, and Destiny'', O. A. Brownson (1866)] would try to explain what constitutional designers were trying to do. According to Brownson there are, in a sense, three "constitutions" involved: The first the ''constitution of nature'' that includes all of what was called "natural law". The second is the ''constitution of society'', an unwritten and commonly understood set of rules for the society formed by a [[social contract]] before it establishes a government, by which it establishes the third, a ''constitution of government''. The second would include such elements as the making of decisions by public [[Convention (meeting)|convention]]s called by [[public notice]] and conducted by established [[Parliamentary procedure|rules of procedure]]. Each constitution must be consistent with, and derive its authority from, the ones before it, as well as from a historical act of society formation or constitutional ratification. Brownson argued that a [[state]] is a society with effective dominion over a well-defined territory, that consent to a well-designed constitution of government arises from presence on that territory, and that it is possible for provisions of a written constitution of government to be "unconstitutional" if they are inconsistent with the constitutions of nature or society. Brownson argued that it is not ratification alone that makes a written constitution of government legitimate, but that it must also be competently designed and applied.

Other writers ''Principles of Constitutional Design'', Donald S. Lutz (2006) ISBN 0521861683 have argued that such considerations apply not only to all national constitutions of government, but also to the constitutions of private organizations, that it is not an accident that the constitutions that tend to satisfy their members contain certain elements, as a minimum, or that their provisions tend to become very similar as they are amended after experience with their use. Provisions that give rise to certain kinds of questions are seen to need additional provisions for how to resolve those questions, and provisions that offer no course of action may best be omitted and left to policy decisions. Provisions that conflict with what Brownson and others can discern are the underlying "constitutions" of nature and society tend to be difficult or impossible to execute, or to lead to unresolvable disputes.

Other writers ''Principles of Constitutional Design'', Donald S. Lutz (2006) ISBN 0521861683 have argued that such considerations apply not only to all national constitutions of government, but also to the constitutions of private organizations, that it is not an accident that the constitutions that tend to satisfy their members contain certain elements, as a minimum, or that their provisions tend to become very similar as they are amended after experience with their use. Provisions that give rise to certain kinds of questions are seen to need additional provisions for how to resolve those questions, and provisions that offer no course of action may best be omitted and left to policy decisions. Provisions that conflict with what Brownson and others can discern are the underlying "constitutions" of nature and society tend to be difficult or impossible to execute, or to lead to unresolvable disputes.

States that have codified constitutions normally give the constitution supremacy over ordinary [[statute]] law. That is, if there is a conflict between a legal statute and the codified constitution, all or part of the statute can be declared ''[[ultra vires]]'' by a court and struck down as [[Constitutionality|unconstitutional]]. In addition, an extraordinary procedure is often required to make a [[constitutional amendment]].  These procedures may involve: obtaining ⅔ majorities in the national legislature, the consent of regional legislatures, a [[referendum]] process or some other procedure that makes obtaining a constitutional amendment more difficult than passing a simple law.

States that have codified constitutions normally give the constitution supremacy over ordinary [[statute]] law. That is, if there is a conflict between a legal statute and the codified constitution, all or part of the statute can be declared ''[[ultra vires]]'' by a court and struck down as [[Constitutionality|unconstitutional]]. In addition, an extraordinary procedure is often required to make a [[constitutional amendment]].  These procedures may involve: obtaining ⅔ majorities in the national legislature, the consent of regional legislatures, a [[referendum]] process or some other procedure that makes obtaining a constitutional amendment more difficult than passing a simple law.

The [[Constitution of Australia]] is an example of a constitution in which constitutional law mainly derives from a single written document, but other written documents are also considered  part of the constitution. The [[Constitution of India]] is the longest codified constitution in the world. President Kermit L. Hall - The Power of Comparison in Teaching Civic Literacy. Accessed March 3, 2007. [http://www.albany.edu/president/speeches/power_of_comparison0706.shtml] It is unique in that it incorporates codes from many other constitutions like those of Japan, Malaysia, and [[Anglosphere]] countries. Constitution Of India, 2007. Accessed March 3, 2007. [http://en.wikipedia.org/wiki/Constitution_of_India]

The [[Constitution of Australia]] is an example of a constitution in which constitutional law mainly derives from a single written document, but other written documents are also considered  part of the constitution. The [[Constitution of India]] is the longest codified constitution in the world. President Kermit L. Hall - The Power of Comparison in Teaching Civic Literacy. Accessed March 3, 2007. [https://www.albany.edu/president/speeches/power_of_comparison0706.shtml] It is unique in that it incorporates codes from many other constitutions like those of Japan, Malaysia, and [[Anglosphere]] countries. Constitution Of India, 2007. Accessed March 3, 2007. [https://en.wikipedia.org/wiki/Constitution_of_India]

===== Uncodified constitution =====

===== Uncodified constitution =====

==References==

==References==

*[http://www.parliament.the-stationery-office.co.uk/pa/ld200203/ldselect/ldconst/168/16809.htm#note92 Report on the British constitution and proposed European constitution by Professor John McEldowney, University of Warwick] Submitted as written evidence to House of Lords Select Committee on Constitution, published to the public on [[15 October]] [[2003]].

*[https://www.parliament.the-stationery-office.co.uk/pa/ld200203/ldselect/ldconst/168/16809.htm#note92 Report on the British constitution and proposed European constitution by Professor John McEldowney, University of Warwick] Submitted as written evidence to House of Lords Select Committee on Constitution, published to the public on [[15 October]] [[2003]].

==External links==

==External links==

*Audio Commentary [http://www.adventuresinlegalland.com/images/stories/audio/spooner_no_treason_full.mp3 No Treason: The Constitution by L. Spooner] mp3  

*Audio Commentary [https://www.adventuresinlegalland.com/images/stories/audio/spooner_no_treason_full.mp3 No Treason: The Constitution by L. Spooner] mp3  

*[http://www.oefre.unibe.ch/law/icl ''International Constitutional Law'':] English translations of various national constitutions

*[https://www.oefre.unibe.ch/law/icl ''International Constitutional Law'':] English translations of various national constitutions

*[http://www.constitution.org/ The Constitution Society] Research and public education on the principles of [[Constitutionalism|constitutional republican government]]

*[https://www.constitution.org/ The Constitution Society] Research and public education on the principles of [[Constitutionalism|constitutional republican government]]

*[http://etext.lib.virginia.edu/cgi-local/DHI/dhi.cgi?id=dv1-61 ''Dictionary of the History of Ideas'':] Constitutionalism

*[https://etext.lib.virginia.edu/cgi-local/DHI/dhi.cgi?id=dv1-61 ''Dictionary of the History of Ideas'':] Constitutionalism

*[http://www.staff.amu.edu.pl/~wroblew/html/en_pr_konst.html ''Constitutional Law''] "Constitutions, bibliography, links"

*[https://www.staff.amu.edu.pl/~wroblew/html/en_pr_konst.html ''Constitutional Law''] "Constitutions, bibliography, links"

*[http://www.nccs.net/ U.S. National Center for Constitutional Studies]

*[https://www.nccs.net/ U.S. National Center for Constitutional Studies]

* [http://www.usip.org/pubs/specialreports/sr107.html Democratic Constitution Making] [[U.S. Institute of Peace]] Report, July 2003

* [https://www.usip.org/pubs/specialreports/sr107.html Democratic Constitution Making] [[U.S. Institute of Peace]] Report, July 2003

*[http://www.archives.gov/national-archives-experience/charters/constitution.html Images of the Constitution] and downloadable high-resolution images from the National Archives.

*[https://www.archives.gov/national-archives-experience/charters/constitution.html Images of the Constitution] and downloadable high-resolution images from the National Archives.