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MODERN CONSTITUTIONS

It is natural to ask, in the light of this discussion, why it is that countries have Constitutions, and why most of them make the Constitution superior to the ordinary law.

If we investigate the origins of modern Constitutions, we find that, practically without exception, they were drawn up and adopted because people wished to make a fresh start, so far as the statement of their system of government was concerned. The desire or need for a fresh start arose either because, as in the United States, some neighbouring communities wished to unite together under a new government, or because, as in Austria or Hungary or Czechoslovakia after 1918, communities had been released from an Empire as the result of a war and were now free to govern themselves; or because, as in France in 1789 or the U.S.S.R. in 1917, a revolution had made a break with the past and a new form of government on new principles was desired; or because, as in Germany after 1918 or in France in 1875 or in 1946, defeat in war had broken the continuity of government and a fresh start was needed after the war. The circumstances in which a break with the past and the need for a fresh start come about vary from country to country, but in almost every case in modern times, countries have a Constitution for the very simple and elementary reason that they wanted, for some reason, to begin again and so they put down in writing the main outline, at least, of their proposed system of government. This has been the practice certainly since 1781 when the American Constitution was drafted, and as the years passed no doubt imitation and the force of example have led all countries to think it necessary to have a Constitution.

This does not explain, however, why many countries think it necessary to give the Constitution a higher status in law than other rules of law. The short explanation of this phenomenon is that in many countries a Constitution is thought of as an instrument by which government can be controlled. Constitutions spring from a belief in limited government. Countries differ however in the extent to which they wish to impose limitations. Sometimes the Constitution limits the executive or subordinate local bodies; sometimes it limits the legislature also, but only so far as amendment of the Constitution itself is concerned; and sometimes it imposes restrictions upon the legislature which go far beyond this point and forbid it to make laws upon certain subjects or in a certain way or with certain effects. Whatever the nature and the extent of the restrictions, however, they are based upon a common belief in limited government and in the use of a Constitution to impose these limitations.

The nature of the limitations to be imposed on a government, and therefore the degree to which a Constitution will be supreme over a government, depends upon the objects which the framers of the Constitution wish to safeguard. In the first place they may want to do no more than ensure that the Constitution is not altered casually or carelessly or by subterfuge or by implication; they may want to secure that this important document is not lightly tampered with, but solemnly, with due notice and deliberation, consciously amended. In that case it is legitimate to require some special process of constitutional amendment - say, that the legislature may amend the Constitution only by a two-thirds majority or after a general election or perhaps upon three months notice.

The framers of Constitutions have more than this in mind. They may feel that a certain kind of relationship between legislature and the executive is important, or that the judicature should have a certain guaranteed degree of independence of the legislature and executive. They may feel that there are certain rights which citizens have and which the legislature or the executive must not invade or remove. They may feel that certain laws should not be made at all. The framers of the American Constitution, for example, forbade Congress to pass any ex post,facto law, that is, a law made after the occurrence of the action or the situation which it seeks to regulate-a type of law which may render a man guilty of an offence through an action which, when he committed it, was innocent. The framers of the Irish Constitution of 1937 forbade the legislature to pass any law permitting divorce.

Further safeguards may be called for when distinct and different communities decide to join together under a common government but are anxious to retain certain rights for themselves. If these communities differ in language, race, and religion, safeguards may be needed to guarantee to them a free exercise of these national characteristics. Those who framed the Swiss, the Canadian, and the South African Constitutions, to name a few only, had to consider these questions. Even when communities do not differ in language, race, or religion, they may still be unwilling to unite unless they are guaranteed a measure of independence inside the union. To meet this demand the Constitution must not only divide powers between the government of the Union and the governments of the individual, component parts, but it must also be supreme in so far at any rate as it enshrines and safeguards this division of powers.

In some countries only one of the considerations mentioned above may operate, in others some, and in some, all. Thus, in the Irish Constitution, the framers were anxious that amendment should be a deliberate process, that the rights of citizens should be safeguarded and that certain types of laws should not be passed at all, and therefore they made the Constitution supreme and imposed restrictions upon the legislature to achieve these ends. The framers of the American Constitution also had these objects in mind, but on top of that they had to provide for the desire of the thirteen colonies to be united for some purposes only and to remain independent for others. This was an additional reason for giving supremacy to the Constitution and for introducing certain extra safeguards into it.

(From Modern constitutions by K. C. Wheare)