Duhaime's Law Dictionary


Constitution Definition:

The basic, fundamental law of a state which sets out how that state will be organized and the powers and authorities of government between different political units and citizens.

Related Terms: Federalism, Government, Constitutional Law, Common Law

The basic law or laws of a nation or a state which sets out how that state will be organized by deciding the powers and authorities of government between different political units, and by stating the basic law-making and structural principles of society.

The primary contract or law by which the government of a nation or state is set out and organized.

The constitution is colloquially referred to as the "#1 law of the land"; to which all of government, citizens, corporate persons and other laws must defer in the event of any conflict.

The Canadian Constitution is typical in stating that:

"The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect."

Constitutions are not necessarily written and may be based on aged customs and conventions, as is the case, in part, in England and New Zealand (the USA, Canada and Australia all have written constitutions).

Note these words of Niccolo Machiavelli in his 1611 book, The Prince:

"There is nothing more difficult to arrange, more doubtful of success, and more dangerous to carry through than initiating change in a State's constitution. The innovator makes enemies of all those who prospered under the old order, and only lukewarm support is forthcoming from those who could prosper under the new. Their support is lukewarm partly from fear of their adversaries, who have the existing law on their side, and partly because men are generally incredulous, never really trusting new things unless they have tested them by experience."

An almost constant debate is whether a constitution, once written, should be exposed to judicial expansion - by the adaptation of it to an evolving state.

Even where written, the words and scope of the written constitution is by necessity shaped by the Courts. As lawyer and later Governor of the State of New York, Charles Edward Hughes once said, in about 1906:

"We are under a Constitution, but the Constitution is what the judges say it is."

 

While an agreeable idea to almost all judges, such changes would then emanate not from elected officials or even from popular vote, but from judicial opinions of judges. In McCulloch v. Maryland, Chief Justice John Marshall of the United States Supreme Court wrote what is still today the dominant theory:

"(The) constitution (of the USA is) intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs."

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