Thomas Paine in The Rights of Man asserted that " A government without a constitution is power without right." The Constitution embodies political values and provides collective identity within political arrangements. Alec Stone Sweet argues that constitutions since the wave of democratization in the 1990s have a strong system of protection of rights in place along with a charter of rights.
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Defining Constitution
Andrew Heywood defines, constitution as a set of rules, written or unwritten, that establish the power and functions of various institutions of government. The Constitution also regulates the relationship between the government and individuals. Alec Stone Sweet defines a constitution as a body of higher-order legal rules that specify how all other legal norms have to be " produced, applied, enforced, interpreted and changed."
The Beginning and Purpose of Constitution
The ancient codes of conduct drew their authority from moral and religious grounds but they were not constitutions. Andrew Heywood argues that the constitution is a late eighteenth-century invention. He further argues that the "age of constitutions" was initiated with the creation of the first written constitution: the US constitution in 1787 and with the Declaration of Rights of Man and the Citizen in 1789 in France.
The Constitution plays a significant role in the running of various governmental organizations. The Constitution serves several purposes; it provides order and stability to the functions of government, lays down legislative procedures, contains a charter of rights, and facilitates but also constrains the powers of the state. The existence of a constitution also provides legitimacy to a state in the international community.
We must recognize that the constitution is not in itself sufficient to guarantee a liberal democratic polity. Constitutions in order to enable a democratic polity to function also require, presence of social, political, and cultural conditions that are conducive for democracy. Andrew Heywood writes that for a constitution to work three conditions must be fulfilled: one, that a constitution must be supported by political culture, second it should be respected by rulers and must accord with values of the dominant group and third, on the constitution’s ability to remain relevant with time and despite altering political circumstances.
Types of Constitution
The constitution can be classified in several ways: written or unwritten, rigid or flexible, effective or façade, federal or unitary, parliamentary or presidential, etc. Andrew Heywood argues that all constitutions are a blend of written and unwritten rules, with balance between these varying significantly. For example, the US constitution is a document of only 7,000 words and confines itself to laying down only broad principles for government. In the United Kingdom which has an unwritten constitution, the publication of "Questions on Procedure for Ministers" has given formal significance to conventional practices as Andrew Heywood argues.
Alec Stone Sweet bases his classification of constitution on the capacity of constitutions to constrain the authority of those involved in making and enforcing laws. Sweet Stone's classification is as follows :
The Absolutist Constitution, where the ability to change and produce legal norms is absolute and centralized. In this scheme, the rulers are above law. Alec Stone Sweet calls them sham constitutions.
The Legislative Supremacy Constitution, here the constitution itself lays down a set of rules for governmental institutions and elections to legislature. The rule of parliamentary sovereignty is crucial here.
The Higher Law Constitution, here legal norms establish governmental institutions and link them with people through elections. A defining feature is the existence of the Charter of Rights and judicial means of enforcing these rights. Countries like India and the United States can be classified as higher law constitutions.
Alec Sweet Stone writes that in the past fifty years there is a growing consensus among scholars that only type three constitutions are "good constitutions." This convergence has been called new constitutionalism.
Understanding Constitutional Endurance
Tom Ginsberg writes that constitution-makers are engaged in the process of controlling the future and are thus often critiqued by those in favor of more radical notions of democracy. Thomas Jefferson argued that the dead had no right to govern the living. Jefferson argued for the replacement of the constitution every 19 years so each generation may be able to determine its own rules.
Most scholars while framing the constitution however aim for constitutional endurance. Constitutional endurance refers to the life expectancy of a constitution which denotes how long it lasts between its adoption and its replacement by a new constitution. Constitution makers want the constitution to last for a long time. Tom Ginsberg argues that constitutional endurance has benefits like the development of collateral institutions, social and political stability and constitutional endurance also encourages an organic process of change. Ginsberg argues that when makers of the constitutions will be preoccupied with the stability it will incentivize them to safeguard and recognize political benefits for groups besides themselves.
Constitutional Endurance in India
The Indian constitution contains 146,385 words and is one of the longest constitutions in the world. On independence in 1947, many people in the western world doubted if India with its colossal diversity would be able to sustain democracy for long? But India with its principle of Unity in Diversity became the world's largest democracy.
Madhav Kosala argues that the success of the Indian democratic experiment can be attributed to several factors like constitutional endurance and widespread trust in rule of law. Bruce Ackerman argues that strong charismatic Indian leaders respected the law and thus strengthened democracy. The success of the endurance of the Indian constitution is remarkable as compared to the longevity of the constitutions of Bangladesh and Pakistan. Pakistan's constitution was approved in 1956, then abrogated in 1958, the 1962 constitution was abrogated in 1972 and the 1973 constitution ended with a military coup in 1973.
Conclusion
In their significant 2009 book titled, “The Endurance of National Constitutions” scholars Zachary Elkins, Tom Ginsberg, and James Melton argue that the greater the detail in the constitution the more likely it is to survive longer, this also refers to the specificity of the constitution. Second, constitutions with a high degree of endurance are often made with a high degree of inclusiveness. Third, more flexible constitutions are more enduring. Flexibility refers to the capacity of the constitution to respond to changes in the environment.
The Indian constitution has been remarkably successful because of the constitution's specificity, inclusiveness and flexibility. The Indian constitution was created by the founding fathers of India who had strong philosophical underpinnings and the constitutional endurance of the Indian constitution has undoubtedly played a prominent role in the success of the Indian nation-state.
By Preet Sharma
Preet Sharma is a Graduate of Political Science from Hindu College , Delhi University.
Email: preetsharma20005@gmail.com
References
Elkins, Z., Ginsburg, T., & Melton, J. (2009). The Endurance of National Constitutions. Cambridge: Cambridge University Press.
Caramani, Daniele. 2017. Comparative Politics. Oxford University Press. (Constitutions, Rights and Judicial Power by Alec Stone Sweet)
Heywood, Andrew. 1997. Politics. Houndmills, Basingstoke, England: Macmillan