Constitutional Law – Sources of Constitutional Rights

State Power Established

Introduction Law and State 

Constitutional: The law is strongly connected to the state, on one hand, because the state creates most of the law and, on the other hand, because the state itself is regulated by the law. From a historical point of view, it was the increasingly effective and tightly organized state (whether it was a city-state, a principality, a kingdom, or an empire) that succeeded in imposing law upon its citizens. This trend is illustrated by the development Law of criminal as a separate branch of law, next to private law. 

Constitutional Law
Constitutional Law

By prosecuting crimes as offenses against the state (and monopolizing violence and the suppression of crimes) rather than considering their offenses against the victims, states drastically reduced the rates of violence between individual people, clans, and tribes. With this enforced pacification and improved legal certainty, as well as with growing infrastructure, states boosted productivity and facilitated peaceful commerce between people. 

At the same time, we expect that the state itself be organized and regulated by the law and that rulers exercise their power in accordance with legal norms, rather than arbitrarily. The branch of law that regulates the state itself is called constitutional law. Constitutionality law contains rules on the organization of a state, the powers that its organs possess, and the relations between these organs (institutional law), and it provides fundamental rights that protect the legal position of the individual against the state (human rights law, judicial review, and, as an offspring, administrative law).

Sources of Constitutional Law

Constitutionality 

In most states, the most important of these constitutional Law rules have been laid down in a central written document. This document is typically called a constitution, but it may also carry different names, such as basic law, charter, or regulation of the state.

For example, Article 12 (3) of the Irish Constitution provides that the President of Ireland is elected for a term of seven years; Article 12(6) no. 1 stipulates that the President may not be a member of parliament at the same time. Some states even do without an official written constitution! They do, however, always have a constitution, but the constitutional right Law norms are then exclusively found in ordinary laws, customs, and case laws. The best example is the United Kingdom.

It is constitutional Law norms that may be changed by ordinary laws and can therefore be qualified as a “flexible” constitutionality Law model. However, constitutionally relevant rules are often found in ordinary laws, in case of laws, or in customs.

Ordinary laws that tend to have constitutional Law significance are, For example, election laws, rules of procedure of parliaments, laws on the organization of the court system, or laws stipulating the establishment and powers of regional or local governments.

Case Law 

Case law may be constitutionally relevant where courts lay down rules with a “constitutional” focus, such as the United Kingdom doctrine of parliamentary sovereignty or the United State doctrine of judicial review, or when courts are called upon to interpret the meaning of the constitution or establish fundamental rules and principles with constitutionality significance in practical cases.

A court might, for example, rule whether a certain authority is legally competent to act in a certain way, or whether a certain law violates human rights. Thus, the US Supreme Court pronounced itself on the question of whether the US Congress may pass laws to establish gun-free zones in and around schools, or to restrict the ownership of guns altogether. 

In the first case, it may be argued that the Constitution does not allow Congress to regulate such issues for the whole country and that they should be resolved by the individual states, meaning that the rules in California are different from those in Arizona. In the second case, it may be argued that a ban on guns violates the individual’s right to bear arms as is laid down in the Constitution.

Customs often play a role in the internal proceedings of parliaments, such as the composition of parliamentary committees or the panel of parliamentary chairmen. They may also play a role in the process of govt formation.

Constitutional Law Examples

In some constitutional monarchies, such as the UK, the Netherlands, or Denmark, the King or Queen will appoint as Prime Minister the person who leads a majority in Parliament, and won’t appoint anyone against Parliament’s will.

Of course, customary rules differ significantly between states; what is a custom in one state is explicitly regulated in another and may simply not exist in a third.

Entrenchment Because of their fundamental nature, written constitutional Law documents almost always provide that they can only be amended through difficult, special procedures often involving special majorities. This feature is called “entrenchment,” and an entrenched constitution is generally called “rigid.” Entrenchment is meant to make changes in the constitution harder to accomplish than changes in ordinary law. As a result, a constitution will reflect a larger majority and be more protective of minorities or minority interests.

An amendment of the Polish Constitution, for example, requires a two-thirds majority in the lower chamber of Parliament and an absolute majority in the Senate, and in some cases, a referendum may be prescribed afterward to confirm the amendment. Normal laws, by contrast, in principle require a majority in the lower chamber, and the senate may usually be overruled if it objects to a law.