What are constitutions?

The Australian Constitution underpins our political and legal systems

A constitution is a set of rules and guidelines for a government, corporation or other organisation. A constitution is often referred to as the ‘fundamental law’ or ‘highest law’, because it is the source of legislative power – in other words, all law-making power of parliaments, their subordinate bodies and the courts is derived from the constitution. Constitutions also outline the structure and framework of government. They create and define political institutions like houses of parliament, courts and executive committees. They determine how these bodies will be elected or chosen, and outline which law-making powers they can exercise. Constitutions incorporate and enshrine important political concepts and values, such as democracy, responsible government and the separation of powers. Many constitutions also protect or guarantee individual rights and freedoms, either expressly or through implied meanings.

Not all constitutions exist as a singular piece of law. The British constitution, for instance, is ‘unwritten’ in the sense that there is no single constitutional document. The British constitution is instead said to reside in the vast body of legislation, executive orders, common law and conventions. New Zealand, Canada and Israel have similar constitutions, each having no single ‘supreme’ document. The modern trend, however, is for governments to base their law-making authority upon a single, codified constitutional document. The United States Constitution (see picture) was written in 1787 and enacted in 1789, following the American Revolution and the United States’ independence from Britain. Its preamble begins with “We the People of the United States…”, establishing the Constitution as a written expression of popular sovereignty. Other nations with written constitutions include India (enacted 1949) Malaysia (1957) Indonesia (1959) Egypt (1971) Pakistan (1973) Spain (1978) China (1982) and Poland (1997). A constitution for the European Union, a confederacy of European nations, was created in 2004 but has never been implemented.

In federal systems of government, such as Australia and the United States, an important function of the constitution is the distribution and division of law-making power between the national government and the various state governments. The constitution also divides power and responsibility between the different branches of government (executive, legislative and judicial). When formulating new laws, a government must first determine whether it has the constitutional authority to legislate in that area – otherwise the law might later be challenged and found to be unconstitutional. Constitutions also contain a facility for revision and reform, so that the sections can be added to, changed or removed from the document.

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