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Constitutional Law

Constitutional law

Constitutional law is the study of foundational laws that govern the scope of powers and authority of various bodies in relation to the creation and execution of other laws by a government. A constitution binds a government or governments, limiting the contexts in which rules may be created, interpreted and force may be applied. Constitutions may reference various bodies, including organizations, associations, stateless peoples and nation-states. Most commonly constitutional law is the law of these foundational laws, customs, and constitution a conventions in regard to nation-states. Not all nation-states have constitutions, though all such states have a jus commune, or law of the land, that may consist of a variety of imperative and consensual rules, that may be customary law, oral law and written law that apply in the various jurisdictions of such state. Of those nation-states that do have constitutions, not all are considered strictly written constitutions, as the laws that govern such issues may not be consolidated into one single constitution document or instrument. The constitutional law may be a matter of interpreting a variety of text which may also be informed by history, custom and unwritten constitutional conventions . Compare, for example, the written Constitution of the United States with British constitutional law, which arises from multiple sources including Magna Carta, the common law, and other customary sources. In some countries, the constitution is known as the Basic Law. Constitutional laws may often be considered second order rulemaking or rules about making rules of exercise power. One of the key tasks of constitutions within this context is to indicate hierarchies and relationships of power. Thus, for example, in the case of a unitary state, the Constitution will vest ulitimate authority in one central administration and legislature, and judiciary, though there is often a delegation of power or authority to local or municipal authorities. Whereas when a constitution establishes a federal state, it will identify the several levels of government coexisting with exclusive or shared areas of jurisdiction over lawmaking, application and enforcement.

Law

:This article is about law in society. For other possible meanings, see law (disambiguation). Law (a loanword from Old Norse lag), in politics and jurisprudence, is a set of rules or norms of conduct which mandate, proscribe or permit specified relationships among people and organizations, provide methods for ensuring the impartial treatment of such people, and provide punishments of/for those who do not follow the established rules of conduct. Law is typically administered through a system of courts, in which judges hear disputes between parties and apply a set of rules in order to provide an outcome that is just and fair. The manner in which law is administered is known as a legal system, which typically has developed through tradition in each country. Legal practitioners, most often, must be professionally trained in the law before they are permitted to advocate for a party in a court of law, draft legal documents, or give legal advice.

Legal traditions

There are generally four broad legal traditions that are practiced in the world today.

Civil law

The Civilian system of law is a codified law that sets out a comprehensive system of rules that are applied and interpreted by judges. It is by and large the most commonly practiced system of law in the world, with almost 60 % of the world's population living in a country ruled on the civilian system. The most important difference to common law is that normally, only legislative enactments are considered to be legally binding, but not precedent cases. However, as a practical matter, courts normally follow their previous decisions. Furthermore, in some civil law systems (e.g. in Germany), the writings of legal scholars have considerable influence on the courts. In most jurisdictions the core areas of private law are codified in the form of a civil code, but in some, like Scotland it remains uncodified. The civil law system has its origins in Roman law, which was adopted by scholars and courts from the late middle ages onwards. Most modern systems go back to the 19th century codification movement. The civil codes of many, particularly Latin countries and former French and Spanish colonies closely trail the Code de Napoléon in some fashion. However, this is not true for most Central and Eastern European, Scandinavian and East Asian countries. Notably, the German BGB was developed from Roman law with reference to German legal tradition. The importance of the Code Napoléon should also not be overemphasized as it covers only the core areas of private law, while other codes and statutes govern fields such as corporate law, administrative law, tax law and constitutional law.

Common law

The Common law is an Anglo-Saxon legal tradition, based on unwritten laws developed through judicial decisions that create binding precedent. The common law system is currently in practice in Australia, Canada (excluding Quebec), United Kingdom, and the United States (excluding Louisiana). In addition to these countries several others have adapted the common law system into a mixed system. For example, India and Nigera operate largely on a common law system but incorporate a good deal of customary law and religious law.

Customary law

Customary law are systems of law that has evolved largely on their own within a given country and have been adapted to meet the needs of the particular culture. Note that customary law may also be relevant within jurisdictions following another legal tradition in fields or subfields of law where no legislative enactment exists. For example, in Austria, scholars of private law often claim that customary law continues to exist, whereas public law scholars dispute this claim. (In any case, it is hard to find any practically relevant examples.)

Religious law

Many countries base their system of law on religious tenants. The most dominant system of this form of law is Muslim law (or "Sharia") which is a codified law that is found within the Koran. These laws deal primarily with the personal rights and dispute resolution between individuals. It is used in some Middle Eastern nations; such as in the Iran and Saudi Arabia. On a smaller level there are still regions of the world that practice canon law, which is followed by Catholics and Anglicans, and a similar legal system is used by the Eastern Orthodox Church. The same can be said for Jewish law (halakha or halacha), which is followed by Orthodox and Conservative Jews, in substantially different forms.

Bodies of law

In the broadest sense, bodies of law can be subdivided on the basis of who the parties to an action are. It is frequent that practiced fields of law overlap into several of these bodies of law.

Private law

The area of private law in a legal system concerns law that oversees disputes between private individuals. This area is, to a large extent, the most comprehensive area of law, dealing with all non-criminal harm one person does to another.

Public law

The area of public law, in a general sense, is the law in a given legal system that concerns disputes between the government and private individuals residing within the country. The state can bring actions against people for criminal acts, as well as breach of regulatory laws. Equally, individuals can bring actions against the government for harm it has done. This includes grounds on the basis of a breach of regulations, legislate on matters beyond their competence, or violation of an individuals rights. These last two points are often protected under a countries’ constitution.

Procedural law

Procedural law concerns the areas of law that regulate how all actions are dealt with. This includes who can have access to the court system, how complaints are submitted, and what are the rights of the parties involved. Procedural law is often known as "adjective" law as it is the law that concern how other laws are to be applied. Typically, this is broadly covered by a government’s civil and criminal procedure rules. But equally this includes the law of evidence which determines what means are used to prove facts, as well as, the law regarding remedies.

International law

International law governs the relations between states, or between citizens of different states, or international organizations. Its two primary sources are customary law and treaties.

Philosophy of law

Philosophy of law is a branch of philosophy and jurisprudence which studies basic questions about law and legal systems, such as "what is the law?", "what are the criteria for legal validity?", "what is the relationship between law and morality?", and many other similar questions. In the western tradition there are several schools of thought on the philosophical basis of law. First, there is natural law, which attempts to describe law as an inherent quality in humans that is derived from natures. Second, there is the positivism which believes that law is a purely human-made construct that society uses to maintain social order. Third, there is legal realism which believes that law is an arbitrary set of rules that are largely established through the tastes and preferences of judges.

Anthropology of law

:See main discussion at Honour Law has an anthropological dimension. It has been recognized from Montesquieu to the present that law is shaped by the kind of society in which it is practised. One continuum into which various societies can be placed contrasts the "culture of law" with the "culture of honour". In order to have a culture of law, people must dwell in a society where a government exists whose authority is hard to evade and generally recognised as legitimate. People take their grievances before the government and its agents, who arbitrate disputes and enforce penalties. This behaviour is contrasted with the culture of honour, where respect for persons and groups stems from fear of the revenge they may exact if their person, property, or prerogatives are not respected. Cultures of law must be maintained. They can be eroded by declining respect for the law, achieved either by weak government unable to wield its authority, or by burdensome restrictions that attempt to forbid behaviour prevalent in the culture or in some subculture of the society. When a culture of law declines, there is a possibility that an culture of honor will arise in its place.
History

Practice of law
Practice of law is typically overseen by either a government organization or independent regulating body such as a bar association or barrister society. To practice law – i.e. appear in front of a judge on behalf of someone, draft legal documents, etc. – the practitioner must be certified by the regulating body. This usually entails a two or three year program at a university’s faculty of law or a law school, followed by an entrance examination (eg. bar admissions). Once accredited, a legal practitioners will often work in law firm, as well as in government, a private corporation, or even work as sole practitioner. A significant component to the practice of law in the common law tradition involves legal research in order to determine the current state of the law. This usually entails exploring case reporters, legal periodicals, and legislation.
See also

- Law topics overview
- List of areas of law
- List of legal topics
- List of legal terms
- List of jurists
- List of legal abbreviations
- List of case law lists
- List of law firms
Further reading

- Cheyenne Way: Conflict & Case Law in Primitive Jurisprudence, Karl N. Llewellyn and E. Adamson Hoebel, University of Oklahoma Press, 1983, trade paperback, 374 pages, ISBN 0806118555
- The Bilingual LSP Dictionary. Principles and Practice for Legal language, Sandro Nielsen, Gunter Narr Verlag 1994.
- [http://browse.addall.com/Browse/Author/2088479-1 Other books by Karl N. Llewellyn]
- David, René, and John E. C. Brierley. Major Legal Systems in the World Today: An Introduction to the Comparative Study of Law. 3d ed. London: Stevens, 1985 (ISBN 0420473408).
External links

- [http://www.legalmatch.com LegalMatch] Legal Resource
- [http://ausicl.com The Australian Institute of Comparative Legal Systems]
- [http://www.lpig.org Law and Policy Institutions]
- [http://www.llbee.com/news.php?p=news Laws External Education- Legal News By Subject]
- [http://www.4lawschool.com 4LawSchool- Legal Reference]
- [http://ww3.definitions-legal.com:8567/ Law, Legal Definitions & Reference]
- [http://www.ericdigests.org/1996-3/law.htm Essentials of Law-Related Education. ERIC Digest.]
- [http://www.law.cornell.edu LII - Topical overviews, US Supreme Court decisions, US Code (Acts of Congress)]
- [http://www.worldlii.org WorldLII - The World Legal Information Institute]
- [http://www.lawmoose.com LawMoose Legal Reference Library]
- [http://legallinks.jenkinslaw.org Legal Research Links]
- [http://www.findlaw.com FindLaw]
- [http://ausicl.com The Australian Institute of Comparative Legal Systems]
- [http://www.nolo.com/glossary.cfm Everybody's Legal Glossary] - From Nolo
- [http://www.alllaw.com/ AllLaw]
- [http://legal.wikicities.com/ WikiCities Legal Site]
- Stanford Encyclopedia of Philosophy:
- [http://plato.stanford.edu/entries/law-ideology/ Law and Ideology]
- [http://plato.stanford.edu/entries/law-language/ Law and Language]
- [http://en.jurispedia.org/ The shared law] in Jurispedia
- [http://www.avocatura.com Romanian Law]
- [http://www.thedailylaw.com Daily Law news]
- [http://members.fortunecity.com/victorcauchi/lex/lexindex.htm Laws of Malta] Chapter summaries and a general Glossary of definitions.
- [http://LawyerIntl.com LawyerIntl.com] Legal Resource and Law Dictionary
- [http://LawGuru.com LawGuru.com] Legal Portal
- [http://forumprawne.org Prawo i porady prawne] - web discussion board about Polish law Category:Core issues in ethics ja:法 (法学) simple:Law th:กฎหมาย

Government

A government is the body that has the power to make and enforce laws within an organization or group. In its broadest sense, "to govern" means to administer or supervise, whether over an area of land, a set group of people, or a collection of assets. The word government is derived the Greek Κυβερνήτης (kubernites), which means "steersman", "governor", "pilot" or "rudder".

Definitions

One approach is to define government as the decision-making arm of the state, and define the latter on the basis of the control it has over violence and the use of force within its territory. Specifically, the state (and by extension the government) has been considered by some to be the entity that holds a monopoly on the legitimate use of force within a territory. This view has been taken by the political economist Max Weber and subsequent political philosophers. The exact meaning of it depends on what is understood by “legitimate”. If we use the term in an ethical sense, then this definition would suggest that an organisation might be considered a state by its supporters but not by its detractors. An alternative definition is to take "legitimate" violence to be simply that which has active or tacit acceptance by the vast majority of the population. In this view, the presence of insurrection or civil war against an entity would jeopardise its claim to be a state, provided the insurrection enjoyed significant popular support. Similarly, an entity that shared military or police power with independent militias and bandits could be considered to have a monopoly on “legitimate” violence but to be failing to enforce it, reducing its claim to statehood. In practice, such situations are often described as "failed states". Government can also be defined as the political means of creating and enforcing laws; typically via a bureaucratic hierarchy. Under this definition, a purely despotic organization which controls a territory without defining laws would not be considered a government. Another alternative is to define a government as an organisation that attempts to maintain control of a territory, where "control" involves activities such as collecting taxes, controlling entry and exit to the state, preventing encroachment of territory by neighbouring states and preventing the establishment of alternative governments within the country. In Commonwealth English, the word "Government" can also be used to refer only to the executive branch, in this context being a synonym for the word "administration" in American English (e.g. the Blair Government, the Bush Administration). In countries using the Westminster system, the Government (or party in Government) will also usually control the legislature. The French use of the word gouvernement covers both meanings, whereas Canadian French generally uses it to mean the executive branch. The German word Regierung refers only to government as the executive branch; the wider meaning of the word, government as a system, can be translated as Staatsgewalt.

Forms of government

Various forms of government have been implemented. A government in a developed state is likely to have various sub-organisations known as offices, departments, or agencies, which are headed by politically appointed officials, often called ministers or secretaries. Ministers may in theory act as advisors to the head of state, but in practice have a certain amount of direct power in specific areas. In most modern democracies, the elected legislative assembly has the power to dismiss the government, but in those states that have a separate head of government and head of state, the head of state generally has great latitude in appointing a new one.

Theories

There are a wide range of theories about the reasons for establishing governments. The four major ones are briefly described below. Note that they do not always fully oppose each other - it is possible for a person to subscribe to a combination of ideas from two or more of these theories.

Greed and oppression

Many political philosophies that are opposed to the existence of a government (such as Anarchism, and to a lesser extent Marxism), as well as others, emphasize the historical roots of governments - the fact that governments, along with private property, originated from the authority of warlords and petty despots who took, by force, certain patches of land as their own (and began exercising authority over the people living on that land). Thus, it is argued that governments exist to enforce the will of the strong and oppress the weak.

Order and tradition

The various forms of conservatism, by contrast, generally see the government as a positive force that brings order out of chaos, establishes laws to end the "war of all against all", encourages moral virtue while punishing vice, and respects tradition. Sometimes, in this view, the government is seen as something ordained by a higher power, as in the divine right of kings, which human beings have a duty to obey.

Natural rights

Natural rights are the basis for the theory of government shared by most branches of liberalism (including libertarianism). In this view, human beings are born with certain natural rights, and governments are established strictly for the purpose of protecting those rights. What the natural rights actually are is a matter of dispute among liberals; indeed, each branch of liberalism has its own set of rights that it considers to be natural, and these rights are sometimes mutually exclusive with the rights supported by other liberals.

Social contract

One of the most influential theories of government in the past two hundred years has been the social contract, on which modern democracy and most forms of socialism are founded. The social contract theory holds that governments are created by the people in order to provide for collective needs (such as safety from crime) that cannot be properly satisfied using purely individual means. Governments thus exist for the purpose of serving the needs and wishes of the people, and their relationship with the people is clearly stipulated in a "social contract" (a constitution and a set of laws) which both the government and the people must abide by. If a majority is unhappy, it may change the social contract. If a minority is unhappy, it may persuade the majority to change the contract, or it may opt out of it by emigration or secession.

Operations

Governments concern themselves with regulating and administering many areas of human activity, such as trade, education, medicine, entertainment, and war.

Enforcement of power

Governments use a variety of methods to maintain the established order, such as police and military forces, (particularly under despotism, see also police state), making agreements with other states, and maintaining support within the state. Typical methods of maintaining support and legitimacy include providing the infrastructure for administration, justice, transport, communication, social welfare etc., claiming support from deities, providing benefits to elites, holding elections for important posts within the state, limiting the power of the state through laws and constitutions (see also Bill of Rights) and appealing to nationalism. Different political ideologies hold different ideas on what the government should or should not do.

Territory

The modern standard unit of territory is a country. In addition to the meaning used above, the word state can refer either to a government or to its territory. Within a territory, subnational entities may have local governments which do not have the full power of a national government (for example, they will generally lack the authority to declare war or carry out diplomatic negotiations).

Scale of government

Main articles: government ownership, government spending The scale to which government should exist and operate in the world is a matter of debate. Government spending in developed countries varies considerably but generally makes up between about 30% and 70% of their GDP.

Stateless people

A stateless person is someone with no state or nationality, usually because the state that gave their previous nationality has ceased to exist and there is no successor state. While more common before the 20th century, when states were somewhat more fragile entities, on September 20, 1954 the United Nations adopted the Convention relating to the Status of Stateless Persons: an active policy to prevent people becoming or remaining stateless. States which have ratified the Convention are bound to give stateless persons rights similar to those granted aliens of comparable status. Despite this, there are still Kashmiri, Kurdish and Palestinian refugees who are claiming asylum due to statelessness, for example. A blog post at the Free Rohingya Campaign web site stated: :Nine million people live in countries where they are not considered to be nationals. This status denies many of them access to legal protection or their rights to health care and education. Furthermore, just a single officer at the United Nations High Commissioner for Refugees (UNHCR) carries out the UN’s mandate to protect the world’s stateless people. A slightly comic/tragic rendition of this condition was portrayed in the motion picture The Terminal, where a person was trapped living inside an airport because he couldn't return home due to his citizenship status. This story was based in part on the real-life story of Merhan Karimi Nasseri, who spent several years in the Charles de Gaulle Airport due to conflicts with French law and the fact he was not welcome in his country of origin.

External links

- [http://www.hri.ca/uninfo/treaties/81.shtml UN Convention relating to the Status of Stateless Persons] (full text)
- [http://www.fco.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1042718800592 Full list of (and links to) treaties on Stateless persons] from the Foreign and Commonwealth Office website
- [http://unpo.org/ Unrepresented Nations and Peoples Organisation]
- [http://www.ind.homeoffice.gov.uk/ind/en/home/applying/british_nationality/advice_about_nationality/bn5_-_provisions_for.html British nationality - provisions for reducing statelessness] Category:International law Category:United Nations

Nation states

:This article is about the political concept. For the Internet game, see Jennifer Government: NationStates. A nation-state is a specific form of state (a political entity), which exists to provide a sovereign territory for a particular nation (a cultural entity), and derives its legitimacy from that function. The compact OED defines it as: "a sovereign state of which most of the citizens or subjects are united also by factors which define a nation, such as language or common descent." Typically it is a unitary state with a single system of law and government. It is almost by definition a sovereign state, meaning that there is no external authority above the state itself. Dependent territories of any kind are not considered nation-states, until they achieve independence. The nation-state implies the parallel occurrence of a state and a nation. In the ideal nation-state, the population consists of the nation and only of the nation: the state not only houses it, but protects it and its national identity, that is they coincide exactly: every member of the nation is a permanent resident of the nation-state, and no member of the nation permanently resides outside it. There are no ideal nation-states, however examples of near ideal nation-states would be Japan and Iceland. This ideal has influenced almost all existing sovereign states, and they can not be understood without reference to that model. It also explains how they are different from their predecessor states. Thus, the term nation-state is also used, imprecisely, for a state that attempts to promote a single national identity, often beginning with a single national language, for example France or Germany or Italy. These nation-states did not always exist, and most of the present nation-states are located on territory that once belonged to another, non-national, state, for example, in the case of much of western Europe, the original state was the Roman Empire. They came into existence at least partly as a result of political campaigns by nationalists. The establishment of a nation-state can be considered the central demand of any nationalist movement.

Characteristics

A nation-state is associated with a particular group of people, the nation, and derives its claim to legitimate existence from them. This in contrast to some monarchies, which derived their legitimacy from the ruling dynasty, or ancient land grants to its ancestors. The nation-state is in a sense the historical vehicle of that nation, and tries to ensure its survival as a nation. Almost always, it has an explicit policy to protect the national culture. A nation-state is one of a class of similar states. To distinguish itself, and also to express a shared identity of its own population, it has national symbols, above all a national flag and a national anthem, often a wide range of national emblems. In fact, nation states have promoted a national identity in almost every area of human social and cultural life, from the national library to the national airline to the national language. Nation-states attempt to create and maintain national unity, and at least a minimal internal uniformity. Nation states have a cultural policy and a language policy for this purpose, and the educational system is often subordinated to this goal. That always meant some compulsion, and in some cases brutal repression of minorities and xenophobic campaigns against non-national influences. The desire for uniformity is said to have positive economic effects, because nation-states generally try to reduce internal disparities in income and regional GDP. Most have a regional policy for that purpose.

What states existed before nation-states?

regional policy In Europe, before 1850, the classic non-national state was a multi-ethnic empire. It was a monarchy ruled by a king or emperor, or in the case of the Ottoman Empire, by a Sultan. The population belonged to many ethnic groups and they spoke many languages. The empire was dominated by one ethnic group, and their language was usually the language of public administration. The ruling dynasty was usually, but not always, from that group. This type of state is not specifically European: such empires existed on all continents. Some of the smaller European states were not so ethnically diverse, but were also dynastic states, ruled by a royal house. Their territory could expand by royal marriage, or merge with another state when the dynasty merged. In some parts of Europe, notably Germany, very small territorial units existed. They were recognised by their neighbours as independent, and had their own government and laws. Some were ruled by princes or other hereditary rulers, some were governed by bishops or abbots. Because they were so small, however, they had no separate language or culture: the inhabitants shared the language of the surrounding region. In some cases these states were simply overthrown by nationalist uprisings, which were inspired by the so-called ideal of the nation-state, meaning a state with a uniform state sponsored national identity. In other cases a nation state seems to have grown by accretion of smaller entities. Some grew to unification by trade and political integration. Some were unified by force. The transition was complex, but this so-called nation-state became the standard ideal in Europe, and in the rest of the world because of European dominance of the world. This so-called nation-state, at least in theory, has a uniform population, language and culture. It stops where the nation stops, and it does not swap territory with other states simply, for example, because the king’s daughter got married. For example, at least in theory, there is a uniform French identity which is different from a supposed uniform German identity, despite the fact that the French-German state border is not the French-German ethnic border and there are some who would consider themselves of German ethnicity on the French side of the border and vice versa. The so-called ideal of the nation-state is actually a state which has attempted to define a national identity which justifies its existence, internally and externally; this process is often ironically called nation-building. By this model, non-national entities have survived in Europe: the dependent principalities of Liechtenstein, Andorra, and Monaco, the republic of San Marino, and the Vatican City.

Examples of nation-states

Oddly, the confederation of cantons and former city-states known in English as Switzerland is often called a nation-state, despite having no dominant ethnic group, no national identity, and several national languages, see also Culture_of_Switzerland. This is odd because Switzerland's primary Raison d'être is to protect against a state, internal or external, attempting to enforce a statewide national identity. A classic nation-state, by definition, is inhabited by one ethnic group, who speak one language, have one culture, and share one religion. The population, in other words, is homogeneous. This group is referred to as ‘the nation’ or ‘the people’. They all live inside the border of the nation-state. No other ethnic or cultural group lives there. It is often said that island states are the best place to find something like this, and Iceland is often cited as the best example of a nation-state. Although the inhabitants are ethnically related to other Scandinavian groups, the national culture and language are found only in Iceland. There are no cross-border minorities, the nearest land is too far away. Japan, see also Japan#Demographics and Ethnic issues in Japan, is traditionally seen as a good example, although it includes minorities of ethnically distinct Ryukyuans in the south, Koreans, Chinese, Taiwanese, Filipinos and Brazilians, and in the north, the indigenous Aino minority of Hokkaido. The Republic of Ireland was until recently inhabited almost entirely by ethnic Irish, but the national territory is not considered complete by nationalists because it does not include Northern Ireland. Very few others approach the ideal model of the nation-state: the border does not correspond to the distribution of the national group. Sometimes that is impossible, because population is ethnically mixed, down to the level of individual streets or buildings. Where part of the national group lives in a neighbouring nation-state, it is usually called a national minority. In some cases states have reciprocal national minorities, for instance the Slovaks in Hungary and the Hungarian in Slovakia. National minorities should not be confused with a national diaspora, which is typically located far from the national border. Most modern diasporas result from economic migration. The existence of an Irish diaspora does not make the Republic of Ireland any less a nation-state, and does not affect Northern Ireland, since few emigrants go there anyway. The possession of dependent territories does influence the status of nation-state. A state with large colonial possessions is obviously inhabited by many ethnic groups, and does not conform to the ideal of a single-culture state. However, in most cases, the colonies were not considered an integral part of the motherland anyway, and were separately administered. Some European nation-states have dependent territories in Europe. Denmark contains virtually all ethnic Danes and has relatively few foreign nationals within it. However, it exercises sovereignty over the Faroe Islands and Greenland. If these are considered separate nations, then Denmark is not a classic nation-state.

Minorities and irredentism

So-called nation-states differ from the definition in two main ways: the population includes minorities, and the border does not include all the national group or its territory. Both have led to violent responses by nation-states, and nationalist movements. The nationalist definition of a nation is always exclusive: no nation has open membership. In most cases, there is a clear idea that surrounding nations are different. There are also historical examples of groups within the nation-state's territory who are specifically singled out as outsiders, such as the Roma and Jews in Europe, or Copts in Egypt. Negative responses to minorities within the nation-state have ranged from total assimilation to total extermination. Typically these responses are effected as state policy, though non-state violence in the form of pogroms occurs. However, many so-called nation-states do accept specific minorities as being in some way part of the nation, and the term national minority is often used in this sense. The Sorbs in Germany are an example: for centuries they have lived in German-speaking states, surrounded by a much larger ethnic German population, and they have no other historical territory. They are now generally considered to be part of the German nation, and are accepted as such by the Federal Republic of Germany, which constitutionally guarantees their cultural rights. Of the thousands of minorities and underlying ethnic nationalities in so-called nation-states across the world, only a few have this level of acceptance and protection. :Main article: Irredentism. The response to the non-inclusion of territory and population may take the form of irredentism, demands to annex unredeemed territory and incorporate it into the evolving so-called nation-state, as part of the national homeland. Irredentist claims are usually based on the fact that an identifiable part of the national group lives across the border, in another so-called nation-state. However, they can include claims to territory where no members of that nation live at present, either because they lived there in the past, or because the national language is spoken in that region, or because the national culture has influenced it, or because of geographical unity with the existing territory, or for a wide variety of other reasons. Past grievances are usually involved (see Revanchism). It is sometimes difficult to distinguish irredentism from pan-nationalism, since both claim that all members of an ethnic and cultural natio belong in one specific state. Pan-nationalism is less likely to ethnically specify the nation. For instance, variants of Pan-Germanism has different ideas about what constituted Greater Germany, including the confusing term Grossdeutschland - which in fact implied the inclusion of huge Slavic minorities from the Austro-Hungarian Empire. Typically, irredentist demands are at first made by members of non-state nationalist movements. When they are adopted by a state, they result in tensions, and actual attempts at annexation are always considered a casus belli, a cause for war. In many cases, such claims result in long-term hostile relations between neighbouring states. Irredentist movements typically circulate maps of the claimed national territory, the greater nation-state. That territory, which is often much larger than the existing state, plays a central role in their propaganda. Examples include:
- Greater Albania
- Greater China
- Greater Finland
- Greater Germany, an expression of Pan-Germanism: compare Pan-Slavism
- Greater Greece, expressed in the policy of Megali Idea
- Greater Hungary
- Greater India
- Greater Morocco
- Greater Romania
- Greater Serbia
- Greater Somalia Irredentism should not be confused with claims to overseas colonies, which are not generally considered part of the national homeland. Some French overseas colonies would be an exception: French rule in Algeria did indeed treat the colony legally as a département of France, unsuccessfully. The US was more successful in Hawaii.

Conflicting nationalisms

Iceland not only has clear borders, it is inhabited by people who are either immigrants or self-identify as Icelandic. In many nation-states, all or part of the territory is claimed on behalf of more than one nation, by more than one nationalist movement. The intensity of the claims varies: some are no more than a suggestion, others are backed by armed secessionist groups. Belgium is a classic example of a disputed nation-state. The state was formed by secession from the United Kingdom of the Netherlands in 1830, and the Flemish population in the north speaks a dialect of Dutch. The Flemish identity is also ethnic and cultural, and there is a strong separatist movement. The Walloon identity is linguistic (French-speaking) and regionalist. There is also a unitary Belgian nationalism, several versions of a Greater Netherlands ideal, and a German-speaking region annexed from Prussia in 1920, and re-annexed by Germany in 1940-1944. The fact that a nation-state has a disputed territory in this way, does not make it less of a nation-state. If large sections of the population reject the national identity, the legitimacy of the state is undermined, and the efficiency of government is reduced, That is certainly the case in Belgium, where the inter-communal tensions dominate politics. Most states now declare themselves to be nation-states, that is states that attempt to define and enforce a state sponsored national identity. In the case of very large states, there are many competing claims and often many separatist movements. These movements usually dispute that the larger state is a real nation-state, and refer to it as an empire and what is called nation-building is actually empire-building. There is no objective standard for assessing which claim is correct, they are competing political claims. Large nation-states certainly need to define the nation on a broad basis. China, for example, uses the concept of "Zhonghua minzu," a Chinese people, although it also officially recognises the majority Han ethnic group, and no less than 55 national minorities.

History

The origins of the nation-state are disputed: see the main article on nationalism. Some theories see them as a 19th-century European invention, the product of nationalist movements, facilitated by developments such as mass literacy and the early mass media. Some see the nation-state as emerging in a few specific states, such as France and its rival England. They expanded from core regions, Paris and London, and developed a national consciousness, and sense of national identity (Frenchness and Englishness). Both assimilated peripheral regions and their cultures (Wales, Brittany, Aquitaine and Occitania), where regionalism and nationalism resurfaced in the 19th century. The idea of a nation-state is associated with the rise of the modern system of states, usually dated to the Treaty of Westphalia (1648). The balance of power, which characterises that system, depends for its effectiveness on clearly-defined, centrally controlled, independent entities, whether empires or nation-states. The nation-state received a philosophical underpinning from the era of Romanticism, at first as the 'natural' expression of the individual peoples (romantic nationalism). Since then many varieties of nationalism have developed. The increasing emphasis on the ethnic and racial origins of the nation, during the 19th century, led to a redefinition of the nation-state in ethnic and racial terms. That reached its height in the fascist movements of the 20th century. The combination of 'nation' ('people') and 'state' expressed in such terms as the Völkische Staat made fascist states such as early Nazi Germany qualitatively different from non-fascist nation-states. Obviously minorities, who are not part of the Volk, have no authentic or legitimate role in such a state. (The ultimate development of the Nazi state was determined by the total war which its conquests initiated, rather than Nazi theories of the state). In recent years, the nation-state's claim to absolute sovereignty within its borders has been much criticised. A global political system based on international agreements, and superanational blocs characterized the post-war era. Non-state actors, such as international corporations and non-governmental organizations, are widely seen as eroding the economic and political power of the nation-states.

Jus commune

Jus commune or ius commune is Latin for common law. It is often used by civil law jurists to refer to those aspects of the civil law system's invariate legal principles, sometimes called the law of the land in English law. The phrase the common law of the civil law systems means those underlying laws that create a distinct legal system and common to all its elements.

Constitution of the United States

The Constitution of the United States is the supreme law of the United States of America. It was completed on September 17, 1787, with its adoption by the Constitutional Convention in Philadelphia, Pennsylvania, and was later ratified by special conventions in each of the original thirteen states. It created a federal union of sovereign states, and a federal government to operate that union. It replaced the less defined union that had existed under the Articles of Confederation. It took effect in 1789 and has served as a model for the constitutions of numerous other nations. nations] nations nations nations

History

During the Revolutionary War, the thirteen states first formed a very weak central government—with the Congress being its only component—under the Articles of Confederation. Congress lacked any power to impose taxes, and, because there was no national executive or judiciary, relied on state authorities (who were often uncooperative) to enforce all of its acts. It also had no authority to override tax laws and tariffs between states. The Articles required unanimous consent from all the states before they could be amended and states took the central government so lightly that their representatives were often absent. For lack of a quorum, Congress was frequently blocked from making even moderate changes. In September 1786, commissioners from five states met in the Annapolis Convention to discuss adjustments to the Articles of Confederation that would improve commerce. They invited state representatives to convene in Philadelphia to discuss improvements to the federal government. After debate, the Confederation Congress endorsed the plan to revise the Articles of Confederation on February 21, 1787. Twelve states (Rhode Island being the only exception) accepted this invitation and sent delegates to convene in May 1787. The resolution calling the Convention specified its purpose was to propose amendments to the Articles, but the Convention decided to propose a rewritten Constitution. The Philadelphia Convention voted to keep deliberations secret and decided to draft a new fundamental government design which eventually stipulated that only 9 of the 13 states would have to ratify for the new government to go into effect. These actions were criticized by some as exceeding the convention's mandate and existing law. However, Congress, noting dissatisfaction with the Articles of Confederation government, unanimously agreed to submit the proposal to the states despite what some perceived as the exceeded terms of reference. On September 17, 1787, the Constitution was completed in Philadelphia, and the new government it prescribed came into existence on March 4, 1789, after fierce fights over ratification in many of the states. The original transcribed copy of the Constitution is on permanent display at the National Archives in Washington, D.C. For a list of those who signed the Constitution, see List of signatories of the United States Constitution.

The Constitution

The U.S. Constitution styles itself the "supreme law of the land." Courts have interpreted this phrase to mean that when laws (including state constitutions) that have been passed by state legislatures, or by the (national) U.S. Congress, are found to conflict with the federal constitution, these laws are ultra vires and have no effect. Decisions by the Supreme Court over the course of two centuries have repeatedly confirmed and strengthened the doctrine of Constitutional supremacy, or the supremacy clause. supremacy clause The Constitution guarantees the legitimacy of the American state by invoking the American electorate. The people exercise authority through state actors both elected and appointed; some of these positions are provided for in the Constitution. State actors can change the fundamental law, if they wish, by amending the Constitution or, in the extreme, by drafting a new one. Different kinds of public officials have varying levels of limitations on their power. Elected officials can only continue in office if they are reelected at periodic intervals; appointed officials serve, in general, at the pleasure of the person or authority that appointed them, and may be removed at any time. The exception to this practice is the lifetime appointment by the President of Justices of the Supreme Court and other federal judges; the justification for this exception is that once appointed for life, these judges are presumed capable of acting free of political obligations or influence.

Principles of government

Although the Constitution has been amended several times since it was first adopted, its basic principles remain the same now as in 1789. There are three branches of the national government—executive, legislative, and judicial—and they are separate and distinct from one another. The powers given to each are in theory balanced and checked by the powers of the other two. Each branch ideally serves as a check on potential excesses of the others. This is known as "separation of powers", and was partly taken from the ideas of the Baron de Montesquieu. Baron de Montesquieu.]] The United States is federal in nature. Powers enumerated in the Constitution are given to the Federal Government, and all other, unenumerated, powers remain with the states or the people. (See the Tenth Amendment.) The Constitution, together with laws passed according to its provisions and treaties entered into by the president and approved by the Senate, stands above all other laws, executive acts, and regulations. Beginning with the case of Marbury v. Madison, the United States judiciary has engaged in judicial review. This means that the federal courts will examine duly enacted laws, and, if they are found to be unconstitutional, will overturn them. They also examine the acts of public officials—up to and including those of the president. (See United States v. Nixon.) Since the enactment of the Fourteenth Amendment, all persons have been equally entitled to the law's protection. All states are equal and in principle none can officially receive special treatment from the federal government. Within the limits of the Constitution, each state must recognize and respect the laws of the others. State governments, like the federal government, must be republican in form, with final legitimacy resting with the people. By means defined in the Fifth Article of the Constitution, Congress may propose amendments to the Constitution. Moreover, any two thirds of the states may themselves initiate a convention for proposing amendments. When ratified as specified, all amendments are considered part of the Constitution.

Preamble

The Preamble reads: :We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. The Preamble neither grants any powers nor inhibits any actions; it only explains the rationale behind the Constitution. The preamble, especially the first three words ("We the people"), is one of the most quoted and referenced sections of the Constitution.

Articles of the Constitution

The remainder of the constitution consists of seven articles.

Legislative power

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Article One establishes the legislative branch of government, U.S. Congress, which includes the House of Representatives and the Senate. The Article establishes the manner of election and qualifications of members of each House. In addition, it outlines legislative procedure and indicates the powers of the legislative branch. Finally, it establishes limits on federal and state legislative power.

Executive power

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Article Two describes the presidency (the executive branch): procedures for the selection of the president, qualifications for office, the oath to be affirmed, the powers and duties of the office, and procedures for selection. It also provides for the office of Vice President of the United States, and specifies that the Vice President succeeds to the presidency if the President is incapacitated or resigns. The article nominally makes the Vice President the presiding officer of the Senate, but in practice the Vice President only serves as such under limited circumstances. Article Two also provides for the impeachment and removal from office of civil officers (the President, Vice President, judges, and others). (See presidential system).

Judicial power

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Article Three describes the court system (the judicial branch), including the Supreme Court. The article requires that there be one court called the Supreme Court; Congress, at its discretion, can create lower courts, whose judgments and orders are reviewable by the Supreme Court. Article Three also requires trial by jury in all criminal cases, defines the crime of treason, and charges Congress with providing for a punishment for it, while imposing limits on that punishment.

States' powers and limits

Article Four describes the relationship between the states and the Federal government, and amongst the states. For instance, it requires states to give "full faith and credit" to the public acts, records and court proceedings of the other states. Congress is permitted to regulate the manner in which proof of such acts, records or proceedings may be admitted. The "privileges and immunities" clause prohibits state governments from discriminating against citizens of other states in favor of resident citizens (e.g., having tougher penalties for residents of Ohio convicted of crimes within Arizona). It also establishes extradition between the states, as well as laying down a legal basis for freedom of movement and travel amongst the states. Today, this provision is sometimes taken for granted, especially by citizens who live near state borders; but in the days of the Articles of Confederation, crossing state lines was often a much more arduous (and costly) process.

Process of amendment

Article Five describes the process necessary to amend the Constitution. It establishes two methods of proposing amendments: by Congress or by a national convention requested by the states. Under the first method, Congress can propose an amendment by a two-thirds vote (of a quorum, not necessarily of the entire body) of the Senate and of the House of Representatives. Under the second method, Congress must call a national convention for the purpose of considering amendments when two-thirds of the state legislatures "apply" to Congress for such a convention. Thus far, only the first method (proposal by Congress) has been used. Once proposed—whether submitted by a national convention or by Congress—amendments must then be ratified by three-fourths of the states to take effect. Article Five gives Congress the option of requiring ratification by state legislatures or by special conventions assembled in the states. The convention method of ratification has been used only once (to approve the 21st Amendment). Article Five currently places only one limitation on the amending power—that no amendment can deprive a state of its equal representation in the Senate without that state's consent.

Federal power

Article Six establishes the Constitution, and the laws and treaties of the United States made in accordance with it, to be the supreme law of the land. It also validates national debt created under the Articles of Confederation and requires that all legislators, federal officers, and judges take oaths to support the Constitution.

Ratification

Article Seven sets forth the requirements for ratification of the Constitution. The Constitution was originally proposed as an amendment of the Articles of Confederation, which required ratification by all 13 of the original states for amendments to take effect. Article Seven of the Constitution, however, only required ratification by 9 states for that document to take effect. Scholars have traditionally resolved this contradiction by arguing that when the ninth state ratified the Constitution and the document took effect, those 9 states implicitly seceded from the union governed by the Articles and created a new, separate federal union. Under this theory, those states that did not ratify the Constitution would have remained part of a separate country. However, eventually all the states did ratify the Constitution.

Provisions for amendment

The authors of the Constitution were clearly aware that changes would be necessary from time to time if the Constitution was to endure and cope with the effects of the anticipated growth of the nation. However, they were also conscious that such change should not be easy, lest it permit ill-conceived and hastily passed amendments. Balancing this, they also wanted to ensure that an overly rigid requirement of unanimity would not block action desired by the vast majority of the population. Their solution was to devise a dual process by which the Constitution could be altered. The first option must begin in Congress which, by a two-thirds vote (of a quorum) in each house, may initiate an amendment. Alternatively, the legislatures of two-thirds of the several states may ask Congress to call a national convention to discuss and draft amendments. To date, all amendments have been proposed by Congress; although state legislatures have on occasion requested the calling of a convention, no such request has yet received the concurrence required for such a convention. In either case, amendments must have the approval of the legislatures or of smaller ratifying conventions within three-fourths of the states before becoming part of the Constitution. All amendments save one have been submitted to the state legislatures for ratification; only the 21st Amendment was ratified by individual conventions in the states. Unlike most constitutions, amendments to the U.S. constitution are appended to the existing body of the text, rather than being revisions of or insertions into the main articles. There is no provision for expunging from the text obsolete or rescinded provisions. Some people feel that demographic changes in the U.S.—specifically the great disparity in population between states—have made the Constitution too difficult to amend, with states representing as little as 4% of the population theoretically able to block an amendment desired by over 90% of Americans; others feel that it is unlikely that such an extreme result would occur. However, any proposals to change this would necessarily involve amending the Constitution itself, creating something of a Catch-22. Aside from the direct process of amending the Constitution, the practical effect of its provisions may be altered by judicial decision. The United States is a common law country, and courts are obliged to follow the precedents established in prior cases. However, when a Supreme Court decision clarifies the application of a part of the Constitution to existing law, the effect is to establish the meaning of that part for all practical purposes. Not long after adoption of the Constitution, in the 1803 case of Marbury v. Madison, the Supreme Court established the doctrine of judicial review, which is the power of the Court to examine legislation and other acts of Congress and to decide their constitutionality. The doctrine also embraces the power of the Court to explain the meaning of various sections of the Constitution as they apply to particular cases brought before the Court. Since such cases will reflect changing legal, political, economic, and social conditions, this provides a mechanism, in practice, for adjusting the Constitution without needing to amend its text. Over the years, a series of Court decisions, on issues ranging from governmental regulation of radio and television to the rights of the accused in criminal cases, has effected a change in the way many Constitutional clauses are interpreted, without amendment to the actual text of the Constitution. Congressional legislation, passed to implement provisions of the Constitution or to adapt those implementations to changing conditions, also broadens and, in subtle ways, changes the meanings given to the words of the Constitution. Up to a point, the rules and regulations of the many agencies of the federal government have a similar effect. In case of objection, the test in both cases is whether, in the opinion of the courts, such legislation and rules conform with the meanings given to the words of the Constitution.

Amendments

The Constitution has a total of 27 amendments. The first ten, collectively known as the Bill of Rights, were ratified simultaneously. The following seventeen were ratified separately.

The Bill of Rights (1–10)

Bill of Rights The Bill of Rights comprises the first ten amendments to the Constitution. Those amendments were all adopted within a few years of the ratification of the Constitution, and all relate to limiting the power of the federal government. They were added in response to criticisms of the Constitution by the state ratification conventions and by prominent individuals such as Thomas Jefferson (who was not a delegate to the Constitutional Convention). These critics argued that without further restraints, the strong central government would become tyrannical. The amendments were proposed by Congress as part of a block of twelve in September 1789. By December 1791 a sufficient number of states had ratified ten of the twelve proposals, and the Bill of Rights became part of the Constitution. It is commonly understood that the Bill of Rights was not originally intended to apply to the states, though except where amendments refer specifically to the Federal Government or a branch thereof (as in the first amendment, under which some states in the early years of the nation officially established a religion), there is no such delineation in the text itself. Nevertheless, a general interpretation of inapplicability to the states remained until 1868, when the Fourteenth Amendment was passed, which stated, in part, that: :No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The Supreme Court has interpreted this clause to extend some, but not all, parts of the Bill of Rights to the states. Nevertheless, the balance of state and federal power has remained a battle in the Supreme Court; for example, a recent case dealt with whether a state could be sued by an employee under the federal Americans with Disabilities Act of 1990 (see Federalist Society and Federalism). The amendments that became the Bill of Rights were actually the last ten of the twelve amendments proposed in 1789. The second of the twelve proposed amendments, regarding the compensation of members of Congress, remained unratified until 1992, when the legislatures of enough states finally approved it and, as a result, it became the Twenty-seventh Amendment despite more than two centuries of pendency. The first of the twelve—still technically pending before the state legislatures for ratification—pertains to the apportionment of the United States House of Representatives after each decennial census. The most recent state whose lawmakers are known to have ratified this proposal is Kentucky in 1792 during that commonwealth's first month of statehood. The first amendment addresses the rights of freedom of speech and the press; the right of peaceful assembly; and the right of petition. It also addresses freedom of religion, both in terms of prohibiting the establishment of religion and protecting the right to free exercise of religion. The second states, in its entirety, "A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed." Current case law (including U.S. Supreme Court decisions) tends to assert that the "right of the people to keep and bear Arms" is an individual right but not an absolute right, and that the states and federal government may omit certain classes of people from the general-public sense of the "militia" for cause (criminal record, young or old age, mental incapacity, etc.), and may limit the types of weapons to which the right applies. The courts have interpreted and reinterpreted the second amendment since it was ratified; the Supreme Court first visiting it in United States v. Cruikshank, in 1875. The third prohibits the government from using private homes as quarters for soldiers without the consent of the owners. The fourth guards against unreasonable searches, arrests, and seizures of property. The next four amendments deal with the system of justice. The fifth forbids trial for a major crime except after indictment by a grand jury; prohibits repeated trials for the same offense after an acquittal (except in certain very limited circumstances); forbids punishment without due process of law; and provides that an accused person may not be compelled to testify against himself. The sixth guarantees a speedy public trial for criminal offenses. It requires trial by a jury (of peers), guarantees the right to legal counsel for the accused, and guarantees that the accused may require witnesses to attend the trial and testify in the presence of the accused. The seventh assures trial by jury in civil cases involving anything valued at more than 20 U.S. dollars. The eighth forbids excessive bail or fines, and cruel and unusual punishment. The last two of the first ten amendments contain very broad statements of constitutional authority. The ninth declares that the listing of individual rights is not meant to be comprehensive; that the people have other rights not specifically mentioned in the Constitution. The tenth provides that powers the Constitution does not delegate to the United States and does not prohibit the states from having are "reserved to the States respectively, or to the people."

Subsequent amendments (11–27)

Amendments to the Constitution subsequent to the Bill of Rights cover many subjects. The majority of the seventeen later amendments stem from continued efforts to expand individual civil or political liberties, while a few are concerned with modifying the basic governmental structure drafted in Philadelphia in 1787.
- Eleventh Amendment (1795): Clarifies judicial power over foreign nationals, and limits ability of citizens to sue states in federal courts and under federal law. (Full text)
- Twelfth Amendment (1804): Changes the method of presidential elections so that members of the electoral college cast separate ballots for president and vice president. (Full text)
- Thirteenth Amendment (1865): Abolishes slavery and grants Congress power to enforce abolition. (Full text)
- Fourteenth Amendment (1868): Defines United States citizenship; prohibits states from abridging citizens' privileges or immunities and right to due process and the equal protection of the law; repeals the three-fifths compromise. (Full text)
- Fifteenth Amendment (1870): Prohibits the federal government and the states from using a citizen's race, color, or previous status as a slave as a qualification for voting. (Full text)
- Sixteenth Amendment (1913): Authorizes unapportioned federal taxes on income. (Full text)
- Seventeenth Amendment (1913): Establishes direct election of senators. (Full text)
- Eighteenth Amendment (1919): Prohibited the manufacturing, importing, and exporting of beverage alcohol. Repealed by the Twenty-First Amendment. (Full text)
- Nineteenth Amendment (1920): Prohibits the federal government and the states from using a citizen's sex as a qualification for voting. (Full text)
- Twentieth Amendment (1933): Changes details of Congressional and presidential terms and of presidential succession. (Full text)
- Twenty-first Amendment (1933): Repeals Eighteenth Amendment but permits states to retain prohibition and ban the importation of alcohol. (Full text)
- Twenty-second Amendment (1951): Limits president to two terms. (Full text)
- Twenty-third Amendment (1961): Grants presidential electors to the District of Columbia. (Full text)
- Twenty-fourth Amendment (1964): Prohibits the federal government and the states from requiring the payment of a tax as a qualification for voting for federal officials. (Full text)
- Twenty-fifth Amendment (1967): Changes details of presidential succession, provides for temporary removal of president, and provides for replacement of the vice president. (Full text)
- Twenty-sixth Amendment (1971): Prohibits the federal government and the states from using an age greater than 18 as a qualification to vote. (Full text)
- Twenty-seventh Amendment (1992): Limits congressional pay raises. (Full text) There also have been many failed attempts to amend the Constitution. There are some that are still ongoing today (See Proposals for amendments to the United States Constitution).

Unratified Amendments

Over 10,000 Constitutional amendments have been introduced in Congress since 1789; in a typical Congressional year in the last several decades, between 100 and 200 are offered. Most of these concepts never get out of Congressional committee, much less get proposed by the Congress for ratification. Backers of some amendments have attempted the alternative, and thus far never-utilized, method mentioned in Article Five. In two instances—reapportionment in the 1960s and a balanced federal budget during the 1970s and 1980s—these attempts have come within just two state legislative "applications" of triggering that alternative method. The Eighteenth Amendment is the only amendment to be directly and specifically repealed by another (the Twenty-first). The episode highlighted the importance of proposing and ratifying only the most important, and least evanescent, of amendments. Of the thirty-three amendments that have been proposed by Congress, six have failed ratification by the required three-quarters of the state legislatures—and four of those six are still technically pending before state lawmakers. Starting with the 18th amendment, each proposed amendment (except for the 19th Amendment and for the still-pending Child Labor Amendment of 1924) has specified a deadline for passage. The following are the unratified amendments:
- The Congressional Apportionment Amendment proposed by the 1st Congress on September 25, 1789, defined a formula for how many members there would be in the United States House of Representatives after each decennial census. Ratified by eleven states, the last being Kentucky in June 1792 (Kentucky's initial month of statehood), this amendment contains no expiration date for ratification. In principle it may yet be ratified, though as written it became moot when the population of the United States reached ten million.
- The so-called missing thirteenth amendment, or "Titles of Nobility Amendment" (TONA), proposed by the 11th Congress on May 1, 1810, would have ended the citizenship of any American accepting "any Title of Nobility or Honour" from any foreign power. Some scholars maintain that the amendment was actually ratified by the legislatures of enough states, and that a conspiracy has suppressed it. Known to have been ratified by lawmakers in twelve states, the last in 1812, this amendment contains no expiration date for ratification. It may yet be ratified.
- A pro-slavery proposal, known as the Corwin amendment, proposed by the 36th Congress on March 2, 1861, which would purportedly have prevented the passage of any future constitutional amendment allowing Congress to regulate "the domestic institutions" within any state. It was ratified by only Ohio and Maryland lawmakers before the outbreak of the Civil War. Illinois lawmakers—sitting as a state constitutional convention at the time—likewise approved it, but that action is of questionable validity. The proposed amendment contains no expiration date for ratification and may yet be ratified. However, adoption of the 13th, 14th, and 15th Amendments after the Civil War likely means that the amendment would be ineffective if adopted.
- A child labor amendment proposed by the 68th Congress on June 2, 1924, which stipulates: "The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age." This amendment is now moot, since subsequent federal child labor laws have uniformly been upheld as a valid exercise of Congress' powers under the commerce clause. This amendment contains no expiration date for ratification. It may yet be ratified.

Expired Amendments

Properly placed in a separate category from the other four constitutional amendments that Congress proposed to the states, but which not enough states have approved, are the following two offerings which—due to deadlines—are no longer subject to ratification.
- The Equal Rights Amendment, or ERA, which reads in pertinent part "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex." Proposed by the 92nd Congress on March 22, 1972, it was ratified by the legislatures of 35 states, and expired on either March 22, 1979, or on June 30, 1982, depending upon one's point of view of a controversial ratification deadline three-year extension by the 95th Congress in 1978. Of the 35 states ratifying it, four later rescinded their ratifications prior to the extended ratification period which commenced March 23, 1979 and a fifth—while not going so far as to actually rescind its earlier ratification—adopted a resolution stipulating that its approval would not extend beyond March 22, 1979. There continues to be diversity of opinion as to whether such reversals are valid; no court has ruled on the question, including the Supreme Court. But a precedent against the validity of rescission was first established during the ratification process of the 14th Amendment when Ohio and New Jersey rescinded their earlier approvals, but yet were counted as ratifying states when the 14th Amendment was ultimately proclaimed part of the Constitution in 1868.
- The District of Columbia Voting Rights Amendment was proposed by the 95th Congress on August 22, 1978. Had it been ratified, it would have granted to Washington, D.C., two Senators and at least one member of the House of Representatives as though the District of Columbia were a state. Ratified by the legislatures of only 16 states—less than half of the required 38—the proposed amendment expired on August 22, 1985.

Proposals for amendments

There are currently only a few proposals for amendments which have entered mainstream political debate. These include the proposed Federal Marriage Amendment, the Balanced Budget Amendment, and the Flag-Burning Amendment.

International influences on the development of the Constitution

Flag-Burning Amendment acknowledged the debt American law and constitutionalism had to Magna Carta by erecting a monument at Runnymede, England.]] Some of the ideas embodied in the Constitution were new, but many were drawn from Classical Antiquity and the British governmental tradition of mixed government which was in practice among 12 of the 13 states and were advocated by the writings of Charles de Secondat, Baron de Montesquieu. The United States Constitution was partly based on ideas from the uncodified constitution of the United Kingdom, such as Article 39 from the Magna Carta of 1215 which states that: :No free man shall be arrested, or imprisoned, or deprived of his property, or outlawed, or exiled, or in any way destroyed, nor shall we go against him or send against him, unless by legal judgement of his peers, or by the law of the land. The English Bill of Rights (1689) also acted as a source of ideas for the United States Constitution. For example, like the English Bill of Rights, the U.S. Constitution requires jury trials, contains a right to bear arms, and prohibits excessive bail and of "cruel and unusual punishments." Liberties guaranteed by Magna Carta and the 1689 English Bill of Rights were directly incorporated into state statutes and the Virginia Declaration of Rights, and many were then further incorporated into the Constitution and the United States Bill of Rights.

International influences of the Constitution

The Constitution of the United States has also served as a model for the constitutions of numerous other nations, including the second oldest codified constitution, the May Constitution of Poland, which was written in 1791. The course and ideas of the French Revolution were also heavily influenced by the United States Constitution.

Legality of the Constitution

One historical controversy is whether the Constitution was illegally adopted. For example, historian Joseph Ellis in Founding Brothers charges that there is truth in the allegations that the: # "Convention was extralegal, since its explicit mandate was to revise the Articles of Confederation, not replace them." # "Machinery for ratification did not require the unanimous consent [as] dictated by the Articles [of Confederation] themselves." Constitutional lawyer Michael P. Farris disagrees, arguing that: # "No limits were placed on the authority of the convention to make amendments," and that the Constitution is, in effect, simply an amended version of the Articles of Confederation. # "Congress and all thirteen state legislatures approved the new ratification process as required by the Articles." Eleven states held ratification conventions (approved by their legislatures) and approved the Constitution by July 26, 1788, a direct approval of the change in procedure. The other two states' legislatures (of North Carolina and Rhode Island) also approved of the ratification process—North Carolina by holding a convention and Rhode Island by submitting the Constitution to a referendum, although they both rejected the Constitution (at first). Thus, the change in procedure was approved by all the states.

External links

National Archives

- [http://www.archives.gov/national-archives-experience/charters/constitution.html The National Archives Experience — Constitution of the United States]
- [http://www.archives.gov/national-archives-experience/charters/charters_downloads.html The National Archives Experience — High Resolution Downloads of the Charters of Freedom]
- [http://www.archives.gov/national-archives-experience/charters/constitution_transcript.html Full text of U.S. Constitution]
- [http://www.archives.gov/national-archives-experience/charters/bill_of_rights_transcript.html Full text of The Bill of Rights]
- [http://www.archives.gov/national-archives-experience/charters/constitution_amendments_11-27.html Full text of the amendments]

Official U.S. government sources

- [http://www.gpoaccess.gov/constitution/index.html Analysis and Interpretation of the Constitution of the United States]: Annotated constitution, with descriptions of important cases (official publication of U.S. Senate)
- [http://www.loc.gov/rr/program/bib/ourdocs/Constitution.html United States Constitution and related resources]: Library of Congress

Non-government web sites

- [http://www.law.cornell.edu/topics/constitutional.html Law about...the Constitution]: An overview of constitutional law from the Legal Information Institute
- [http://www.usconstitution.net The U.S. Constitution Online]: Full text of Constitution, with some history and annotation
- [http://www.usconstitution.net/constamrat.html The U.S. Constitution Online: Record of ratifications by states]
- [http://www.constitutioncenter.org/ National Constitution Center in Philadelphia]: Museum and education center
- [http://www.ericdigests.org/pre-926/constitution.htm Education on the U.S. Constitution. ERIC Digest No. 39.]: Study on the treatment of the Constitution in public education
- [http://librivox.org/the-constitution-of-the-united-states-of-america-1787/ Free audiobook] from [http://librivox.org librivox.org]
- [http://www.law.cornell.edu/anncon/ Annotated Constitution] by the Congressional Research Service of the U.S. Library of Congress(hyperlinked version published by LII)

Activist/advocacy web sites

- [http://www.smallgovtimes.com/ SmallGovTimes.com]: Site advocating small government and strict constitutional construction
- [http://www.thirty-thousand.org/ Thirty-Thousand.org]: Site advocating an increase in the size of the House of Representatives.
- [http://www.usconstitution.biz U.S. Constitution.biz]: Web site of "Free Mart Publications", offering conservative pamphlets on the Constitution
- [http://www.krusch.com/real/real2.html Krusch, Barry (2003). Would The Real First Amendment Please Stand Up?] Online book arguing that the Supreme Court's interpretation of the First Amendment has created a “virtual First Amendment" that is radically different from the true amendment.
- [http://praxeology.net/LS-NT-0.htm No Treason by Lysander Spooner] 19th century essay argues that the U.S Constitution is without authority. Constitution Constitution Constitution Category:Constitutions

Constitutional law

See also

Law

Legal traditions

Civil law

Common law

Customary law

Religious law

Bodies of law

Private law

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Procedural law

International law

Philosophy of law

Anthropology of law

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Further reading

External links

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Natural rights

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See also

Relevant lists

Stateless people

External links

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See also

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Constitution of the United States

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The Constitution

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The Bill of Rights (1–10)

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General

Related documents

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