Week 2

Question 1

Constitution vs constitution

Answer 1

• Constitution refers to the central, apex legal document that is often referred to as the country’s ‘Constitution.’ It is the single document that has hierarchy of supremacy over the country’s legislation and state organs.
• constitution refers to a combination of written legislation, court rulings, scholarly writings, customs, customary law, etc. that serve as legitimizing and limiting government authority. It gives effect to the Constitution, but is of lesser relevance. Examples are Constitutional Court rulings, constitutional review, number of seats in municipal council underlined by the Gemeentewet, etc.

Question 2

What is the purpose of a Constitution?

Answer 2

• To symbolize the social contract between the citizens and (authorities of the) state
• To regulate the relationship between the citizens and (authorities of the) state
• Establishes and guides the organization of the state
• Attributes power to public authorities
• Must be superior and bind all state organs to it

Question 3

Constitutive constitutions

Answer 3

• Descriptive
• Outlines how country and society is set up and its functions
• Limits itself to the codification of the power structure
• Shorter articles that have more bare-boned structure
• Older Constitutions such as the Dutch, Belgian, Norwegian

Question 4

Programmatic constitutions

Answer 4

• Prescriptive
• Organizes the state, contains promise for the future, and provides ideas for how the country should be
• Provides aims, what people should strive for, and how the country’s model society should look
• Gives more context for solving political and societal issues
• Forward-looking, normative, guiding
• Newer constitutions (German, Nigerian, Peruvian)

Question 5

Entrenched/super-entrenched Constitution’s

Answer 5

• Refers to how difficult it is to amend an article or a provision of an article in the Constitution
• Entrenched articles are more difficult to amend (i.e., requiring more steps or approval) and super-entrenched articles are even more difficult to amend
• Example of entrenched Constitutional article: Art 1 German Constitution says that for amendment of the provision, it must be voted in favour by 2/3 of parliament
• Example of super-entrenched Constitutional article: Art 2 German Constitution says that for amendment of the provision, at least 3/4 of parliament must vote in favour of the amendment

Question 6

Rigid and flexible Constitution’s

Answer 6

• Refers to, historically, how often the Constitution has been changed and how difficult it has been to change the Constitution
• A constitution that has been changed fairly little and has proven to be difficult to change is a rigid constitution
• A constitution that has been changed a lot and has proven fairly easy to change makes it a flexible constitution

Question 7

Relationship between rigid/flexible and entrenched Constitution’s

Answer 7

• These two concepts are mutually exclusive
• A Constitution can have many entrenched/super-entrenched articles but has been changed many times (i.e., due to political, social or other reasons) and thus would be a flexible constitution
  *A Constitution can have few entrenched/super-entrenched articles but has proven to be extremely difficult to change (i.e., due to political, social or other reasons) and thus would be a rigid constitution