What is a constitution?

constitution_quill_penWhat is a constitution?  The question may seem simple, but the answer, in the United States, is rather different to any other jurisdiction, or indeed any ordinary meaning of the word, and may go some way to explaining why the US Constitution is by far the oldest in the world.

Ordinarily speaking, a constitution is the governing law of a country, state or province. It defines the system of governance. But the laws which define the system of governance in the US are far more extensive than the document known as the Constitution. For example, one of the most notable innovations in American governance is the primary election. It is fundamental. In many cases the primary determines who is elected and the general election merely ratifies a foregone conclusion. Even in competitive elections, by thinning the field of viable candidates, almost always to just two, the primary sets the tone of the election. But party primaries – indeed parties themselves – are unknown in the Constitution. Rules for primary elections vary between the states and between the parties. 

The US Constitution is much shorter than comparable documents in other countries, and has some remarkable blind spots. It says nothing about the electoral system, for example. So Louisiana and California are free to use the double ballot system for elections to Congress. Other states, such as Georgia, trigger run-off elections if no candidate exceeds a set percentage of the vote. Most states use the first past the post system, in which the candidate with the greatest vote, which may or may not be a majority of the votes cast, is elected. 

The original Constitution said almost nothing about the franchise: save only that whatever franchise was used for the most numerous branch of the state legislature would apply for Congress. Most states had a property qualification at the time, and though that is now unknown, it has never been expressly banned. States may not exclude citizens from voting on the grounds of race, sex or – if over 18 – age. But there is no guarantee against being excluded on other grounds. Many states bar felons from voting. If a state tried to reintroduce a property qualification then it would be challenged on the grounds of disproportionately disenfranchising minorities, though since a bar on felons voting does the same, there is no guarantee that such a challenge would succeed. 

What the Constitution does is separate out those elements of constitutional law that can only be amended by a supermajority: in the case of the US that means a two thirds vote in Congress and ratification by three fourths of the states. In some countries and states it means ratification by a referendum. 

This is perfectly sensible. Not every aspect of law which defines government structures needs such supermajority protection. Modern constitutions often try to define too much – the structure of health and education policy, for example, when such things should be left open to innovation and experimentation. 

The sheer brevity of the US Constitution is a strength and why, with the exception of the Bill of Rights, which was adopted at the outset, it has been amended only 17 times. Only one amendment has ever been repealed. When other countries plan their constitutions they would be wise to look to this example and ask which ideas are so fundamental they need supermajority protection. 

qlQuentin Langley is a Senior Lecturer in Marketing at the University of Bedfordshire Business School as well as a freelance columnist published in the UK and all parts of the US. He blogs on social media and crisis communications at brandjacknews.com

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