Constitutional Structures (Parliamentary, Presidential, Separation of Powers) | CSS Constitutional Law Notes

The Concept of a Constitution

The whole concept of a constitution emerged from the concept of Natural Law because it was thought that nature works on certain fundamentals and therefore, there is a harmony in nature. Thus human organizations must also work on certain fundamentals and only then, there will be harmony.

In the beginning, when the man was in the state of nature, no constitution was needed. The need for a constitution arose when the men decided to live in a society or a specified territory.

We also know that initially these fundamentals were unwritten. The tradition of writing the constitution arose only in the 18th century. Before that, the constitutions were unwritten. Even today, the British and Dutch Constitutions are unwritten.

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The unwritten part included:

1. Certain Universal Moral Values.

2. The Proclamations of the Ruler.

3. Certain Conventions or the Best Practices. By observations, it was found that were certain best practices that produce best results. Even today, the major part in British Constitution is played by Conventions.

4. Customs and Traditions

There were two problems with this approach:

1) When things are not written, they could not be clearly identified. Hence, lot of uncertainty was existing.

2) The restrictions on exercise of power by the organized power were undefined. There were no limitations on exercise of power.

After noticing such problems, it was thought that the fundamentals of a constitution need to be written down. Those written rules must operate as a limitation on the powers of the government. The era of written constitutions began.
The trend started after 1787 when the American Constitution was drafted and thereafter, all the other constitutions. They started laying down the fundamental layers.

A logical question now arises that from where the text of a constitution emerges? The text of the constitution emerges from various sources:

1. It may be a product of an agreement between the parties. John Locke says that Constitution is a contract between the people and the government. The classical example of this is the American Constitution as it is the product of an agreement between the thirteen states. The Philadelphia Convention was called where all the thirteen colonies sent their representatives. There was a written agreement. It consisted only of seven articles and that was the American Constitution.

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2. A constitution may be a product of an Interactive Political Process. The best example of this is the EU Constitution which is in the form of treaties. Before Second World War, there were monarchies. After Second World War, the Europe was devastated. An interactive process was started. US helped Europe in drafting their constitution. The fundamental layer of the EU constitution is the dignity of the individual and integration.

3. A constitution may be a product of pre-conceived notions of certain enlightened leaders of the society.
4. A constitution may be a product of evolution from people. Constitution emerges from the people. It represents the ethos of the people at that particular point of the time. It is the spirit of the people.

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Who can give a Constitution?

A constitution sometimes can be imposed by an outside authority. It may also be given by inside authority. The constitution may also emerge from the people. People may give themselves the constitution. Most of the democratic constitution have been given to the people by people’s representatives.

The Father of the Constitution

Although many people contributed to the creation of the Constitution, James Madison played a special role. The Madisonian model of government focuses on dispersing power among several branches and establishing constitutional safeguards to prevent any single person or group of people from controlling the government. He outlined this philosophy in an essay now known as Federalist No. 10 (1787). Madison worked closely with other delegates to shape the final document; for this reason, he is sometimes called the “Father of the Constitution.”