Constitutional law is the study of foundational or basic laws of
nation states and other political organizations. It provides a framework
for creating laws, protecting an individual's human rights, and
electing political representatives. Constitutions are the framework for
government and may limit or define the authority and procedure of
political bodies to execute new laws and regulations. Constitutional law
looks at the sources in which the triers of fact would turn to guide
their constitutional interpretations, and how such judges may weigh the
words of the text of the document, the framers' intentions, case
precedents, and policy consequences of the interpretation for a legal
decision.
These foundational or basic laws of states or organizations, guided by
constitutional frameworks, are the bases for a cooperative give and take
leading to peace and prosperity for all while at the same time ensuring
the human rights of all members of that society.
Judicial interpretation of a constitution
Constitutional law is created through judicial interpretation of the
constitution. Judicial review of the constitution by judges who study
and construe the constitutional sections encompasses court decisions
which create the body of constitutional law. This case law becomes the
precedent for future cases.
In the United States, there are cases arising under the constitution,
federal law, or a treaty. For example, when the United States is a
party, there is usually sovereign immunity whereas the United States
cannot be sued without its consent. Yet, there is no immunity where the
action is beyond the scope of statutory power or the action is
constitutionally void. When the suits are between a state and citizens
of another state, the Eleventh amendment bars citizens from suing the
state in federal court without its consent. Yet there are limitations on
the eleventh amendment where it does not extend to appellate review of
the state suit against the citizen, to suits against state subdivisions,
against state officials acting unconstitutionally so long as damages
for past conduct are not paid from state funds, or to money damages from
state funds.
Powers of the federal government
In American constitutional law, there is a separation of powers called
checks and balances. There is judicial power through Article III which
encompasses the Supreme Court and lower federal courts. Under the
jurisdiction of the Supreme Court, the court which is a key factor in
developing constitutional law, there is original trial jurisdiction in
cases when the state is a party, ambassadors, and such. The Supreme
Court determines if certain state and federal laws and executive actions
are consistent with constitutional power. There is appellate
jurisdiction subject to Congress' power to regulate and exclude.
Additionally, there are limitations to jurisdiction of the federal
courts wherein only definite and concrete legal interests are decided
along with a standing requirement. The courts will not decide political
issues. There is no constitutional provision giving the Supreme Court
the power to review federal or state acts and declare them
unconstitutional. Yet, the case of Marbury v Madison gave the Supreme Court the power to review the constitutionality of congressional statues and Martin v. Hunter's Lessee created the power to declare state actions unconstitutional.
Principle of constitutionalism
The principles of American constitutionalism lie in the limitations on
the exercise of governmental power, that of due process and equal
protection. There are individual constitutional rights embedded in the
Bill of Rights, in procedural due process with a right to a hearing,
substantive due process and equal protection, restrictions on the taking
of property without due process, and retroactive legislation
encompassing the contract clause, due process and ex post facto which is
the barring of the retroactive application of unforeseeable
interpretations of criminal statutes. There is a limitation on the
exercise of governmental power in the First amendment, freedom of
speech, press, religion and association as well as the congressional
power to enforce constitutional rights as in the Thirteenth and
Fifteenth amendments regarding racial discrimination, the Fourteenth
amendment to remedy state discrimination, and an additional power to
protect civil rights against state and private interference.
Examples of constitutional law bases
United States Constitution
The United States Constitution is the supreme law of the United States
of America. It was adopted in its original form on September 17, 1787,
by the Constitutional Convention in Philadelphia, Pennsylvania, and
later ratified by conventions in each state in the name of "the People."
The Constitution has a central place in American law and political
culture. The U.S. Constitution is argued by many to be the oldest
written national constitution, except possibly for San Marino's Statutes
of 1600, whose status as a true constitution is disputed by scholars.
The handwritten, or "engrossed," original document is on display at the
National Archives in Washington, D.C.
Constitution for Europe
The Treaty establishing a Constitution for Europe (TCE), commonly
referred to as the European Constitution, was an unimplemented
international treaty intended to create a constitution for the European
Union. It was signed in 2004 by representatives of the member states of
the Union but was subject to ratification by all member states, two of
which subsequently rejected it in referendums. Its main aims were to
replace the overlapping set of existing treaties that compose the
Union's current informal Constitution, to codify human rights throughout
the EU, and to streamline decision-making in what the 27-member
organization.
Constitution for South America
The Cusco Declaration, formally titled, Preamble to the Foundation Act
of the South American Union, is a two-page declaration of intent signed
by 16 South American countries during the Third South American Summit,
on December 8, 2004, in Cusco, Peru, announcing the foundation of the
South American Community of Nations. It called for a regional
parliament, a common market, and a common currency.
The importance of constitutional law
Constitutional law involves some of the most fundamental issues
concerning government and society. It begins with the historical pathway
from the drafting of the document through its adoption, the application
of the document to governmental and societal issues, and the influences
of any amendments to address issues which were not in the original
document. Constitutional law looks at the sources in which the triers of
fact would turn to guide their constitutional interpretations, and how
such judges may weigh the words of the text of the document, the
framers' intentions, case precedents, and policy consequences of the
interpretation for a legal decision. The benefits that befall a society
from constitutional law are that it limits governmental power to protect
individual liberties, it clarifies the roles to reduce disputes between
governmental parties, and it is committed to the principles of
democracy and the dignity of the individual.
Constitutional law alternative
The term "basic law" is used in some places as an alternative to
"constitutional law." A Basic Law is either a codified constitution, or
in countries with uncodified constitutions, a law given to have
constitution powers and effect. The name is usually used to imply an
interim or transitory nature, or avoid attempting a claim to being "the
highest law," often for religious reasons. In West Germany, the term
"basic law" (Grundgesetz) was used, to indicate that the basic
law was provisional until the ultimate reunification of Germany,
whereupon a new constitution would be adopted. In the event, no
constitution was ever adopted, and the basic law was instead extended
throughout the entire German territory.