Introduction to Public Law - constitutions

Question 1

What is a constitution?

Answer 1

The set of principles and fundamental rules that establishes how a country is organised and run

Question 2

What are the 5 definitions of a constitution?

Answer 2

1) Legal Document

2) Political framework

3) Institutional blueprint

4) Supreme Law

5) Social Contract

Question 3

What is the legal document definition?

Answer 3

A formal written or unwritten document that outlines the rules governing a political community

Question 4

What is the political framework definition?

Answer 4

A set of political rules that structures the relationships between the branches of government

Question 5

What are the 3 branches of government?

Answer 5

Legislative, executive and judicial

Question 6

What is the institutional blueprint definition?

Answer 6

The design/organisation of government institutions that dictate how they should operate

Question 7

What is the supreme law definition?

Answer 7

The highest legal authority within a state, to which all other laws must conform

Question 8

What is the social contract definition?

Answer 8

The agreement/understanding between the government and its citizens about the roles, responsibilities and limits of both

Question 9

What is meant by the ‘contested nature’ of the constitution?

Answer 9

Different political ideologies, legal scholars and cultural contexts may interpret the meaning and significance of the Constitution differently

Question 10

What are the 3 different forms that constitutions can take with examples?

Answer 10

• Written (U.S.)
• Unwritten (UK - based on statutes, conventions, judicial decisions and historical documents)
• Hybrid (combination)

Question 11

What is the normative vs descriptive nature of constitutions?

Answer 11

• Normatively = How thingsshouldoperate according to principles of justice, democracy, or human rights
• Descriptively = How thingsactuallyfunction in practice

Question 12

What do constitutions do?

Answer 12

They provide the framework for government, guarantee rights and freedom, and ensures the rule of law

Question 13

What is a ‘constitutional moment’?

Answer 13

Refers to a significant period of political or social change that leads to the drafting, amending, or reinterpreting of a constitution

Question 14

What is an example of a ‘constitutional moment’?

Answer 14

The American Constitutional Convention of 1787 and the drafting of South Africa’s post-apartheid constitution

Question 15

What are 5 verbs to describe what constitutions do?

Answer 15

1) Empower
2) Limit
3) Protect
4) Organise
5) Reflect

Question 16

What are the 5 common functions of constitutions?

Answer 16

1) Establishes government structure

2) Defines the relationship between state and citizens

3) Provides a legal framework

4) Ensures accountability and rule of law

5) Facilitate social and political stability

Question 17

How do constitutions establish government structure?

Answer 17

Defines the composition, roles and powers of the different government bodies

Question 18

How do constitutions define the relationship between state and citizen?

Answer 18

Sets out the rights, duties and freedoms of individuals and the limitations on the state’s power over its citizens

Question 19

How do constitutions provide a legal framework?

Answer 19

Acts as the highest legal authority, guiding the creation, enforcement and interpretation of laws

Question 20

How do constitutions ensure accountability and rule of law?

Answer 20

Establishes mechanisms that hold public officials accountable and ensure governance according to the law

• elections, judicial review

Question 21

How do constitutions facilitate social and political stability?

Answer 21

Aim to unify diverse groups within a society by providing a shared legal/political framework

Question 22

What is constitutionalism?

Answer 22

A compound of ideas, attitudes, and patterns of behaviour elaborating the principle that the authority of government derives from and is limited by a body of fundamental law

• should be limited to protect individual liberties and prevent tyranny

Question 23

What does Anthony King’s definition of constitutionalism include, what are they?

Answer 23

• Includes three essential pillars

1) Limited government = gov is bound by laws and must operate within constraints set by the constitution

2) Rule of law = every individual and institution (including the gov) is subject to and accountable under the law

3) Protection of fundamental rights = ensures the protection of individual rights and freedoms against the arbitrary power of the state

Question 24

What are the 4 types of constitutionalism?

Answer 24

1. Liberal constitutionalism
2. Transformative constitutionalism
3. Legal constitutionalism
4. Political constitutionalism

Question 25

What is liberal constitutionalism?

Answer 25

Emphasises individual rights and the separation of powers

Question 26

What is transformative constitutionalism?

Answer 26

Focuses on using the constitution as a tool to achieve profound social change

Question 27

What is legal constitutionalism?

Answer 27

Views the constitution primarily as a legal document, emphasising judicial review and the role of courts

Question 28

What is political constitutionalism?

Answer 28

Argues that the constitution's primary function is political and political institutions, rather than courts, should be the main enforcer of constitutional norms