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Posted: January 20th, 2021

Whitman Cobb, W. N. (2020). Political science today (1st ed.). Washington, DC: Sage, CQ Press.
Characteristics of Constitutions
Constitutions consist of basic ideas: the formal ways in which power will be distributed in a state, the relationship or relationships among those in power, and the special rules or procedures under which a government must operate. Not only does nearly every country have a constitution, but most businesses, organizations, and clubs have some sort of constitution or document organizing the entity. While constitutions can take many forms, there are some basic characteristics that most have.

Governments, Structure, and Power
First, constitutions specify what kind of government is to be established. Will it be a republic, a monarchy, a presidential system, a parliamentary system? Will it be a direct democracy or even a theocracy? Constitutions must lay out the ground rules for how a government is to operate. Once this has been specified, the document can then lay out other basic structures: Will the state be a unitary, federal, or confederal state? Unitary states are those in which the central government has almost all of the power with little to none reserved for lower-level governments such as cities and provinces. Federal governments, like the United States, split and share power between cities and states and the central, national government. Finally, confederal states are a loose alliance of states in which there is only a weak central government. The United States under the Articles of Confederation was a confederal state, and today’s European Union can also be considered a confederation.
Detailing the structure of the government is important in writing a constitution, but so is the consideration of power structures and the distribution of power. This not only includes whether there will be separate branches, and if so, how many, but how much power each will have both individually and over the other. A distribution of power will also want to consider geography in deciding whether a state will be a federal or unitary one. Larger countries geographically may find it more difficult to have a unitary structure because of the time and distances that will separate outlying regions from a central authority. For example, Russia spans eleven different time zones and a wide swath of Asia; while the central government certainly has a fair amount of power, they are officially set up as a federal government.
As constitution writers consider the type of government they wish to establish, two things are also taken into account: the country’s history and traditions. Establishing a government that is significantly different from what had previously been used or established will require a significant change among both leadership and citizens. For example, countries transitioning to democracy often find it difficult at first and sometimes even backslide into nondemocratic tendencies. Russia is just such a country. After the fall of the Soviet Union in 1991, the country rewrote its constitution to establish a democratic government. However, Russia had very little, if any, experience with democracy prior to the 1990s; before they were an authoritarian communist state, the country was ruled by an autocratic czar. While this does not make a democratic government impossible to establish, it did make it easier for authoritarian-like rulers like Vladimir Putin to establish power and take away many democratic features of the Russian government.

Specificity
Another idea constitution writers must think about is how specific they want to be in writing their constitution. Do you want a constitution that has many specific rules about the government and how power is distributed, or do you want a constitution that is perhaps more vague and open to interpretation? The US Constitution is one that is relatively short and vague; the Framers established the basic outlines of a government including the type of government and distribution of power, but other aspects were left intentionally vague or unknown. For example, Article 3, which establishes the judiciary, is very short and gives the Congress a lot of room to work with. It begins, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” From this one clause, the Congress has designed and established a judicial system in the United States that consists of various districts, appeals courts, administrative law courts, and national security courts.
There are obviously pros and cons in considering how vague or how specific a constitution should be. The more specific a constitution is, the less room for interpretation there will be. For instance, what does the phrase “cruel and unusual” in the Eighth Amendment to the US Constitution mean? Further, there might be fewer questions about the types of power either the government or its citizens may have. There would also be fewer interpretations that people may claim to be authoritative. Vague portions of a constitution may lead to differing interpretations; who is to stay which one is the best or the one that accords the most with what the constitution says? On the other hand, if the constitution is designed to last for longer than a generation, constitution writers must consider how their country is likely to change. Will the specifics that they write in the constitution today be able to stand up to the situation of the country tomorrow? Or will the specificity lock future citizens into a government system that cannot be altered except in the most extreme circumstances?

Over time, constitutions appear to have gotten more specific, more formal, and therefore longer. Shively notes that the US Constitution, written in 1787, was originally 4,300 words long, whereas the German Basic Law, written in 1949, is approximately 19,700 words long.3 More recently, the Iraqi constitution, approved in 2005, is approximately 11,400 words.

Guarantees of Rights
Another element that is often considered in constitution writing are guarantees of rights for citizens. One of the key elements of a democracy, according to a number of scholars, are citizen rights, also known as civil liberties. When the US Constitution was written in 1787, civil liberties, including those eventually enshrined in the Bill of Rights, were not included. Those who participated in the Constitutional Convention claimed they left guarantees of rights out for several reasons. One, the constitutions of the individual states already included civil liberties, including freedom of speech and religion. Two, some of the Framers were afraid that by listing out the specific rights that individuals had, later generations would believe that those were the only rights that citizens had—something which they did not intend. Finally, the writing of the Constitution itself had taken so long that most of the participants were just ready to go home.
In the debate over ratification of the Constitution, opponents argued that without a guarantee of rights, the federal government might be tempted to trample on civil liberties. As states held conventions to ratify the Constitution, one of the compromises that was agreed upon to satisfy these concerns was the addition of amendments that would establish limitations on government power. Once the federal government was established, one of the first things the Congress did was to propose several amendments—ten of which would be ratified by the states and make up the Bill of Rights. In other words, for some, the guarantee of civil liberties, which specifically says what the government cannot do and the rights that citizens fully retain, was and is an intrinsic part of limiting governmental power through a constitution.

Ease of Changes
That the Constitution was amended so quickly after its writing, highlights another element that constitution writers must consider: how and in what ways a constitution can be changed. Few people, and especially those involved in the mechanics of writing a constitution, would believe that their work is infallible, perfect, and therefore should not be changed. The ability to amend a constitution, then, is a significant part of a constitution. Constitution writers must consider the mechanisms through which amendments can be both proposed and approved; depending on the government type and features set out by a constitution, amendments could be added in a number of ways. In the United States, amendments can be proposed by the Congress and ratified by a three-fourths vote of the states; however, that is not the only way amendments can be added. Amendments can also be proposed when two thirds of states call for a convention to propose amendments and ratified by three fourths of the states or by state conventions called for the specific purpose of ratifying a constitutional amendment. Of course, formal amendment processes may look quite different than this. Proposals may come from the executive or even the judiciary in some states; in other states, a vote in the legislature may be all that is required.
Formal amendments are not the only way in which constitutions may be changed and adapted. Constitutions with vague or unclear provisions may be subject to differing interpretations over time. Courts, or other institutions charged with interpreting a constitution, may decide to change the meaning of different provisions or even change how they are applied. One way we can see this is in the application of the Fourth Amendment’s protection from illegal search and seizure. The Fourth Amendment to the US Constitution states the following:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

When this was written, the Internet, cell phones, and electronics could hardly have been envisioned by the Framers. However, over time, courts have taken the Fourth Amendment and applied it to electronic data as well as “houses, papers, and effects.”

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