Constitutional right

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A constitutional right can be a prerogative or a duty, a power or a restraint of power, recognized and established by a sovereign state or union of states. All constitutional rights are expressly stipulated and written in a consolidated national constitution, which is the supreme law of the land, meaning that any other laws which are in contradiction with it are considered unconstitutional and thus regarded as invalid. Usually any constitution defines the structure, functions, powers, and limits of the national government and the individual freedoms, rights, and obligations which will be protected and enforced when needed by the national authorities.

Nowadays, most countries have a written constitution comprising similar or distinct constitutional rights.[1] Since 1789, along with the Constitution of the United States of America (hereinafter U.S. Constitution), which is the oldest and shortest written constitution still in force,[2] around 220 other similar constitutions were adopted around the world by independent states.[3]

In the late 18th century, Thomas Jefferson predicted that a period of 20 years will be the optimal time for any Constitution to still be in force since “the earth belongs to the living, and not to the dead.” [4] Coincidence or not, according to recent studies [5][6] the average life expectancy of any new written constitution is around 19 years. However, a great number of constitutions do not exceed more than 10 years and around 10% do not last more than 1 year, as it was the case of the French Constitution from 1971[7][8] and not only.

The most common reasons for these continuous changes are the political desire of an immediate outcome and the scarcity of time devoted to the constitutional drafting process.[9] A study from 2009 showed that the average time allocated for the drafting part of the process is around 16 months [10] however there were also some extreme cases registered. For example, the Myanmar 2008 Constitution was secretly drafted for more than 17 years,[11] whereas on the other extreme, like the case of the Japan’s 1946 Constitution, the bureaucrats drafted everything in no more than a week.Nevertheless, the record for the shortest overall process of drafting, adoption and ratification of a national Constitution belongs to the Romania’s 1938 Constitution which installed a royal dictatorship in less than a month.[12] Studies on the matter showed as a general conclusion that usually non-democracies where the registered extreme cases where the constitution-making process either takes too long or is incredibly short.[13] Important not to forget or make any confusions about it is that constitutional rights are not a specific characteristic of democratic countries, but also non-democratic countries have Constitutions, such as North Korea for example, which officially grants every citizen, among other rights, the freedom of expression.[14]

Other coded set of laws have existed before the first Constitutions were developed having some similar purpose and functions, like the United Kingdom’s 1215 Magna Carta or the Virginia Bill of Rights of 1776.[15]

United States[edit]

Federal constitution[edit]

On September 17, 1787 the United States Constitution was signed during the Constitutional Convention (United States) which took place at the Pennsylvania State House in Philadelphia, now the Independence Hall.[16]

The oldest person signing the Constitution was Benjamin Franklin, one of the founding fathers, being 81 years old at the time and requesting assistance during the process, whereas the youngest one was Jonathan Dayton from New Jersey, being only 26 years old. James Madison and George Washington were the only two signers that later became Presidents of the United States.[17]

Perhaps the first fascinating fact about the U.S. Constitution is its length, containing only 4.400 words and thus being the shortest and oldest written Constitution in the world.[18] Only on December 15, 1791 the Bill of Rights comprising the first 10 Amendments became part of the U.S. Constitution.[19] Later on, other 17 Amendments were added. Thus, the U.S Constitution is summing a total of 27 Amendments and 7 Articles. During all this time, only one amendment overturned a previous one, more precisely the twenty-first Amendment ratified on December 5, 1933 repealed the prohibition of alcohol established by the eighteenth Amendment on January 16, 1919.

The provisions providing for rights under the Bill of Rights were originally binding upon only the federal government. In time, most of these provisions became binding upon the states through selective incorporation into the due process clause of the 14th Amendment. When a provision is made binding on a state, a state can no longer restrict the rights guaranteed in that provision.

Examples of provisions made binding upon the states are the Second Amendment to the United States Constitution which was made "fully applicable" by being Incorporated with the 14th Amendment in 2010, see, McDonald vs. City of Chicago; 6th Amendment's guarantee of a right to confrontation of witnesses, known as the Confrontation Clause, and the various provisions of the 1st Amendment, guaranteeing the freedoms of speech, the press, government and assembly.

For example, the Fifth Amendment protects the right to grand jury proceedings in federal criminal cases. However, because this right was not selectively incorporated into the due process clause of the 14th amendment, it is not binding upon the states. Therefore, persons involved in state criminal proceedings as a defendant have no federal constitutional right to grand jury proceedings. Whether an individual has a right to a grand jury becomes a question of state law.

The content of each Article and Amendment of the U.S. Constitution is easy to predict since they start with a suggestive title. For example, the First Amendment guarantees the freedom of religion, speech, and the press along with the rights of assembly and petition, the Second Amendment the right to bear arms and so on. However, in order to be easier to distinguish, the legal professionals have divided the constitutional rights into two categories: process rights and substantive rights.[20] Whereas, the process rights refer to the powers and obligations of the government with respect to individuals, the substantive rights, more divers than the process ones, incorporate the individual freedoms granted and protected by the national government.[21]

State constitutions[edit]

Each of the United States has its own governing Constitution. The States Constitutions are usually longer and written in much more detail than the U.S. Constitution. For example, the Alabama Constitution has more than 600 pages and the New Jersey Constitution of 1947 is three times longer the the U.S. Constitution.[22] The reason for this difference between the federal Constitution and the states Constitutions is what Justice Brennan called ‘the new judicial federalism’.[23] meaning that rights granted by the States Constitutions can be broader than those comprised by the federal Constitution but not narrowed.

State constitutions cannot reduce legal protections afforded by the federal charter, but they can provide additional protections. California v. Ramos, 463 U.S. 992, 1014, 103 S.Ct. 3446, 77 l.Ed.2d 1171 (1983). Even where the text of a state constitution matches verbatim that of the federal constitution, the state document may be held to provide more to the citizen. State constitutional rights can also include those entirely unaddressed in the federal constitution, such as the right to adequate education or the right to affordable housing.

Other Nations[edit]

Many other democratic nations have followed the US model in enshrining certain rights in their constitutions. Countries whose written constitutions include a bill of rights include Germany, India and Japan.

The United Kingdom, as it has an uncodified constitution, does not have a constitutional bill of rights, although the Human Rights Act 1998 fulfills a similar role.

The European Convention of Human Rights applies in those nations which are members of the Council of Europe. Persons who have experienced Convention-infringing human rights violations on the territory of ECHR-signatory nations can appeal to the European Court of Human Rights.

In authoritarian regimes there are generally few or no guaranteed inalienable rights; alternatively, such rights may exist but be unobserved in practice (as was generally the case in the former Francoist Spain).

See also[edit]

References[edit]

  1. ^ ("Constitutional Rights Originis and Travels". Retrieved 29 July 2015.  )
  2. ^ (Jordan, Terry L. (2013). The U.S. Constitution and Fascinating Facts About It, 8th Edition. Naperville IL: Oak Hill Publishing Company. p. 25. )
  3. ^ (Ginsburg, Tom; Melton, James. "Innovation in Constitutional Rights," (PDF). NYU. Draft for presentation at NYU Workshop on Law, Economics and Politics. Retrieved 29 July 2015. )
  4. ^ ("Thomas Jefferson to James Madison". Popular Basis of Political Authority. Papers 15:392--97. 6 September 1789. Retrieved 29 July 2015. )
  5. ^ (Ginsburg, Tom; Melton, James. "Innovation in Constitutional Rights," (PDF). NYU. Draft for presentation at NYU Workshop on Law, Economics and Politics. Retrieved 29 July 2015. )
  6. ^ (Zachary,, Elkins; Ginsburg, Tom; Melton, James (2009). The Endurance of National Constitutions. New York: Cambridge University Press. )
  7. ^ (Ginsburg, Tom; Melton, James. "Innovation in Constitutional Rights," (PDF). NYU. Draft for presentation at NYU Workshop on Law, Economics and Politics. Retrieved 29 July 2015. )
  8. ^ (Zachary,, Elkins; Ginsburg, Tom; Melton, James (2009). The Endurance of National Constitutions. New York: Cambridge University Press. )
  9. ^ (Ginsburg, Tom; Melton, James. "Innovation in Constitutional Rights," (PDF). NYU. Draft for presentation at NYU Workshop on Law, Economics and Politics. Retrieved 29 July 2015. )
  10. ^ (Ginsburg, Tom; Zachary,, Elkins; Blount,, Justin (2009). "Does the Process of Constitution-Making Matter?" (PDF). University of Chicago Law School. Chigaco, IL: Annu. Rev. Law Soc. Sci.5:201–23. p. 209. Retrieved 29 July 2015. )
  11. ^ (Ginsburg, Tom; Melton, James. "Innovation in Constitutional Rights," (PDF). NYU. Draft for presentation at NYU Workshop on Law, Economics and Politics. Retrieved 29 July 2015. )
  12. ^ (Ginsburg, Tom; Zachary,, Elkins; Blount,, Justin (2009). "Does the Process of Constitution-Making Matter?" (PDF). University of Chicago Law School. Chigaco, IL: Annu. Rev. Law Soc. Sci.5:201–23. p. 204. Retrieved 29 July 2015. )
  13. ^ (Ginsburg, Tom; Zachary,, Elkins; Blount,, Justin (2009). "Does the Process of Constitution-Making Matter?" (PDF). University of Chicago Law School. Chigaco, IL: Annu. Rev. Law Soc. Sci.5:201–23. p. 203. Retrieved 29 July 2015. )
  14. ^ (Chilton, Adam S.; Versteeg,, Mila (2014). "Do Constitutional Rights Make a Difference?". Coase-Sandor Institute for Law & Economics. Coase-Sandor Institute for Law & Economics Working Paper No. 694. Retrieved 29 July 2015. )
  15. ^ (Ginsburg, Tom; Melton, James. "Innovation in Constitutional Rights," (PDF). NYU. Draft for presentation at NYU Workshop on Law, Economics and Politics. p. 2. Retrieved 29 July 2015. )
  16. ^ (Jordan,, Terry L. (2013). The U.S. Constitution and Fascinating Facts About It, 8th Ed. Naperville IL: Oak Hill Publishing Company. p. 31. )
  17. ^ (Jordan,, Terry L. (2013). The U.S. Constitution and Fascinating Facts About It, 8th Ed. Naperville IL: Oak Hill Publishing Company. p. 26. )
  18. ^ (Jordan,, Terry L. (2013). The U.S. Constitution and Fascinating Facts About It, 8th Ed. Naperville IL: Oak Hill Publishing Company. p. 25. )
  19. ^ (Jordan,, Terry L. (2013). The U.S. Constitution and Fascinating Facts About It, 8th Ed. Naperville IL: Oak Hill Publishing Company. p. 45. )
  20. ^ (Feinman,, Jay M. (2014). Law 101, 4th Ed. New York: Oxford University Press. p. 49. )
  21. ^ (Feinman,, Jay M. (2014). Law 101, 4th Ed. New York: Oxford University Press. pp. 50–51. )
  22. ^ (Feinman,, Jay M. (2014). Law 101, 4th Ed. New York: Oxford University Press. p. 12. )
  23. ^ (Post, Robert (1990). "Justice Brennan and Federalism". Faculty Scholarship Series. Faculty Scholarship Series. Paper 4649. Retrieved 29 July 2015. )