What is a Constitution?

Sometimes called "the basic law" or "the fundamental law", it is typically a set of rules, and can be found in a document or documents, a set of practices, customs, traditions, or some combination of all of the above.

"Constitutional law is the law prescribing the exercise of power by the organs of a State" Hogg, p.1

Constitutional law is thus, in the first place, a set of legal rules:

-- Part of the law

-- But also the first part: all other law depends on, and defers to it

Function of constitutional law

-- in general, constitution explains and regulates the distribution of power in the state

-- constitution identifies which institutions or organs can make laws (legislative)

-- constitution identifies which institutions or organs can implement laws (executive)

-- constitution identifies which institutions or organs can adjudicate disputes (judicial)

-- constitution defines distribution of governmental powers among central and regional authorities

-- constitution outlines civil liberties (i.e. the limits of governmental power)

-- constitution "must recognize and protect the values of a nation" (Hogg)

How does it do all of this? 2 analogies.

1) The chess analogy:

-- constitution is like the rules of a game:

-- rules of chess tell you

a) what the pieces are

b) how the pieces can be moved

c) what the pieces move on (i.e. the board)

d) how the pieces interact (e.g. capturing pieces, putting the king in "check")

e) which player moves first

f) how players take turns

g) the object of the game

2) The Operating System analogy:

-- constitution is like the operating system of a computer (Windows, DOS, OS)

-- operating system:

a) allows you to use your computer as something more than an expensive paper weight

b) makes it possible to run various applications (e.g. word processor, browsers, games, etc.)

c) determines which applications you can or cannot use (can't use Mac application in Windows for e.g.)

c) allows you to move from one application to another

d) controls the interaction of the applications

e) etc.

Some further observations:

-- constitutions (like chess rules and operating systems) make certain things possible

-- constitutions (like chess rules and operating systems) seek to prevent certain kinds of things (i.e. those actions that are "unconstitutional")

-- constitutions typically contain information about who has the last word in constitutional disputes.

-- constitutions typically contain information about how they can be changed or amended.