The Central Role of the Constitution - Essay Example

A constitution is a document that seeks to legitimise power, but to do this properly it should also act as a restraint on power. Those are the only functions of a constitution. NAME: UNIVERSITY; COURSE: DATE: INTRODUCTION A constitution is the elementary written or unwritten law that outlines the character of a given government by delineating the rules, policies and principles that the given society must adhere to. This is through the constitution description of governmental regulation, organization and distribution. Furthermore, the constitution outlines the extent to which the government can exercise its sovereign strength. The legal law dictionary defines the constitution as the “legislative charter by which a government or group derives its authority to act”.1 Constitutions date back to the era of Greek philosopher Aristotle (384 – 322 B.C) described the constitution 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”.2 The central role of the constitution of any sovereign state is unquestionable. Not only does a constitution seek to legitimize power but also, it grants the scope for good governance. The challenge arises in the enabling the government with the jurisdiction to mange the government, because it is drafted by men, for men. It is imperative that the governors of the constitution are bestowed with limited power. This concept of power separation is instrumental to constitutionalism. James Madison states that “The great difficulty lies in this: you must first enable the government to control the governed: and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” 3 Constitutions are designed to portray a sense of ultimate power control all the while granting legitimacy and authority. For example, the constitution should accord the state with the capacity to curb anti-social behaviour. A constitution is ensures that there is no abuse of powers by any given individual or institution because the constitution provides with the necessary mechanism to define what constitutes as a violation. Power separation is effected through the separation of legislative, executive and judicial powers and created a sense of checks and balances4. John Locke, in Separationof Powers iinsts that the legislature is the most superior arm. He says that “… the Legislative is the Supream Power. For what can give Laws to another, must needs be superior to him and since the Legislative is no otherwise Legislative of the Society, but by the right it has to make Laws for all the parts and for every Member of the Society, prescribing Rules to their actions, and giving power of Execution, where they are transgressed, the Legislative must needs be the Supream, and all other Powers in any Members or parts of the Society, derived from and subordinate to it”. 5 However, this separation of power is furthered in power division between the federal government and the State itself. Within the state, power is further allocated to selected individuals and institutions while in the legislature, power is split between the Governor, House of representatives and the Senate. The executive arm is often characterized with corruption, nepotism, inefficiency and favouritism, probably because of public service dealings6. The judiciary acts as the custodian of the constitution and takes a leadership role in the investigation of abuse of legislative and executive papers 7. There is contention over the direction and implementation of the constitution as opposed to the legal mandate of courts as law interpreters8 According to Feldman, there are four main roles of the constitution. The first role of the constitution is for the creation of institutions within the entity, which is institutionalization. This allows for the allocation of functions to these institutions and effectively allocating certain powers to them within which they can functions. Due to the political nature of constitutional processes, there is an imminent concern over power allocation, which must be justified by the relevant authorities. There are provisions in constitutions that serve as in check of the prevailing practices and the appearance of the constitution. By conceptualizing the rules, legal and political elites are able to co-exist in the present struggle for public dominance. Professor Peter Hanks states that “…the very reason for the development and existence of these rules is to define, organize, contain and enhance the exercise of political power; and the content of these rules responds to historical, social, economic and political developments.”9 Secondly, the constitution provides a cap on improper conducts by the said institutions. The institutions are bound by governing laws, which give the precedent to detect any lapses in behaviour. Importantly, the conduct of legal and political agents must be publicly acknowledged by the public. Thirdly, the constitution effectively assigns legitimacy and respectability to the body it governs by covering certain aspects that if left uncovered, would subject the body to ridicule. This is effected by the implementation of policies that demand proper conduct of the masses and the elite of the given State. For example, an illegitimate or improper arrest is effectively converted to become a lawful imprisonment because of a conspiracy or sabotage. Essentially, what the constitution manages to do is be like good clothes; hides what cannot be exposed while making its wearer socially acceptable hence avoid any embarrassing encounters, baring sharp similarity to the emporor’s new clothes. This is what function of the constitution is termed as legitimating function or decency preservation (Feldman, 2005). In any constitution, there is a disparity between the reality and the appearance as a result of the dynamic nature of any governing process. The constitution is organic and dynamic, not static. Importantly, the constitution provides adequate room for modification in the event of changes within the body politic, a process called constitutional amendment and its objective is to create a stable constitution. This flexibility is important in that is allows for change without the need to create a new constitution every time inevitable changes occurs in a dynamic State. This flexibility can be described descriptively as the Knicker –Elastic function. Furthermore, rules must be applied to the decency - preserving functions because they would otherwise be rendered dysfunctional. This flexibility enables the constitution be conform with the values of the day and hence, become consistent with the society10. If this is not so, democratic constitutionalism cannot be exercised. Edmund Burke insits that constitutional reviews and amendments must be conducted in a manner that is cautious yet innovative. Importantly, the extent of this elasticity is not limited because this would otherwise render the constitution ineffective. One of the oldest constitutionalism practices is by the United Kingdom. Although there is no written constitution in the UK, tradition has seen many laws written that have guided the interaction of the legislature, the judiciary and the monarchy. However, there is no challenge to the fact that the UK parliament is at the top of the hierarchy It is true to say that there is no single constitution because the UK accommodates contrasting visions and opinions from varying moral, political and social factions. Over time, this free-will notion has proved tot be the greatest undoing to the UK system because “competing factions must therefore struggle to control”11. The UK approach to the constitution offers an ideal example of how the constitution can be a vehicle through which individuals with varying opinions concerning power can interact. CONCLUSION It is true to state that constitution is a document that seeks to legitimise state power, but to do this properly it should also act as a restraint on state power. However, it is imperative to note that the constitution is not simply a compilation of normative ideologies. The constitution is instead an avenue that allows varying ideologies to be debated, analysed and explored in practice. Constitutions first emerged following the conscious effort to allocate power equitably and provide justifications for the allocation. There should be one source for the rules of any constitution, which must be argued out and justified. Once justified, it is then possible to address issues according to the constitution’s guidance. The question that arises is whether the constitution effectively provides wholistc address to the issues it faces. What offers some sort of consolation is a provision for constitutional amends is made12. For the constitution of a given state to be effective, there must be a demonstrated commitment to peaceful conflict resolution. By so doing, ideal constitutionalism is attained. Constitutionalism is characterized by a state in which all the stakeholders in any decision-making process are in accord over the principles and regulations of the states. The power of the State must be legitimised and a constitution seeks to do so. However, for this to be effected, the constitution must without fail, act as a restraint on state power REFERENCES Cooray Mark. The Role of the Constitution and the Law in a Free Society. Available at URL link http://www.ourcivilisation.com/cooray/constit/index.htm (This article provides a straightforward outline concerning the role of the constitution and the law. It does not project an idealist description of the affairs of modern states). Federalist, Alexander Hamilton, James Madison, John Jay.The Federalist, on the Constitution. (New York; Williams and Whiting, 1810). Page 31. (This reference offers authoritative information from critical articles of the 18th century, especially on constitution implementation. Furthermore, it provides a strong background into the opposing factions of that era). Feldman David. None, one or several? Perspectives on the UK’S constitution. 2005. Available at URL (This paper attempts to establish the status of the United Kingdom Constitution. It highlights the fact that the constitutional position is a result of competing ideologies, all of which bare substantial arguments. It further clarifies that the constitution is mot a mere illustration of State power and that this powers is never form one single source). Locke John. Separation of Powers. 1689. Available at URL link http://press-pubs.uchicago.edu/founders/documents/v1ch10s3.html> (This reference provides a model for governance. It conceptualised the notion that power in any state should be divided between the legislative, executive and judiciary power). Legal dictionary. Constitution. Available at URL link . (This gives an accurate and detailed definition of the word ‘constitution’ as used in academic circles.” Peter Hanks, Australian Constitutional Law Materials and Commentary 4th edn. (Sydney: Butterworths, 1990), p. 2. (This book is used to illustrate the universality constitutional matters). Pious Richard. President, The Congress and the Constitution: Power and Legitimacy in American Politics. Detroit; Free Press, 1984. (This book clear articulates politics verses power-constitutional ideologies in relation to authority figures of the nation. This book further illustrates how power claims alter the distribution of policy making as per the constitution). Read More