Constitution Essay

Constitution Essay.

Edwin Messee III, in his view of the constitution, is passionate in upholding the constitution as it is. In a few words, he described the same as ‘a way of government’ towards liberty. He opined that the constitution is a means towards a government of laws and not of men. Deviation from the same would no longer be a constitutional law in any meaningful sense. The existence of the constitution as a document can never be doubted. It exists as an instrument setting forth fundamental principles, exactingly specific commandment, instructive in character to endure for years.

In this regard, Messee advocates respect on the fundamental law as it is, adherence to every part thereof as the governing and defining provisions on the relations of the government, upholding basic rights and interests. The constitution, he believes, exists for a meaning. It exists because it tells exactly what it says. It can not mean in any way other than the words written in it.

It can not admit any interpretation other than the sense of the terms and intention of the framers. It is what it says. It can not be said to mean as the spirit of the word as other constitutionalists claim.

Moreover, he said that the constitution does not look after the results of various constitutional and governmental acts but governs and sets forth a limit to such acts. Likewise, the constitution concerns itself with the process of governmental acts and not the results thereof. Thus, it can not dictate Congress what specific laws to implement but merely defines the limits for which Congress has to base the legislative acts. In this way also, the constitution does not conform itself to societal changes, evolution of culture and the like.

It remains as it was when originally drafted. Element of flexibility is absent. The constitution denotes a distribution of powers among the various branches with the end in view of securing liberty. Thus, interpretation of the provisions therein must be strictly construed in accordance with the letters thereof. Messee quoted the statement of the high court in the case of Marbury vs. Madison saying that the principles in the constitution are ‘fundamental and permanent and except for formal amendment unchangeable.

This signifies that the constitution is not adoptive to change. It shall remain as originally drafted for years and shall not be subject to amendment at the whims of Congress or the demands of the people unless by virtue of the appropriate constitutional provision. The constitution is the supreme law and from which everything follows. It is the spring from which the water flows and is the leg for which the government relies. While Messee sticks to the strict interpretation of the constitution and viewed its application as one being supreme, Brennan holds otherwise.

Brennan viewed the constitution as something flexibility. It corresponds to the needs of the public and of the status of the state. In this regard, it is viewed that any doubt in the interpretation of the provisions thereof shall be resolved in favor of the spirit in which they are enacted. That is, such interpretation which corresponds to the current status or condition of society shall prevail. While Messee views it as exactingly specific, Brennan opines specificity should not mean its inapplication because its essence shall be proved futile.

The scope of its application is wide and thus requires a liberal interpretation. Critical analysis I shall resolve to favor the arguments posited by Messee. In an ordinary layman’s point of view, the constitution exists as a spring board for which the legislative acts are derived. It simply is the basis for which the legislative enactments are made. A legislative enactment thus has to conform to the constitution otherwise, it will be struck down as null and void. On the other hand, the nature of the constitution is simply a limitation on the state’s power.

So vast is the power of the state that it can afford to abuse the fundamental and basic rights of the citizens if not with the advent of the constitution. Being a limitation, it sets boundaries within which the judiciary is to exercise its power, Congress to enact specific laws for public interest and the Executive to implement the law. The principles embodied in the constitution are supreme in themselves. They remain as they are originally drafted because they are reflective of the views, beliefs, culture and ideals of the state.

The practices and traditions may have gone but the ideals shall remain as they are. Messee posited that the constitution looks at the process of government and does not take into account the results of a governmental act. I adhere to his statement. The role of the constitution vis a vis the legislative enactments simply delineates the line between the two. The constitution could not have been considered the most supreme of all laws of the land had there been no laws enacted on the basis of the constitutional provisions.

It can be noted that various laws, rules and regulations, administrative orders, resolutions implemented in consonance and in pursuance to the provisions therein. By this virtue, the nature of the constitution is strengthened and respect to it is heightened. Premises considered, I shall likewise adhere to the opinion posited by Messee on the strict interpretation of the provisions of the constitution. The rule in statutory construction is that when the provisions of a law are clear, construction shall not be resorted to.

Any ambiguity therein, the provision shall be construed in accordance with the intention of the makers therein. This same rule in statutory construction can not be made inapplicable with respect to any ambiguity in the provisions of the constitution. A liberal construction of the constitution may lead to certain consequences. Although flexibility or adoptability is the theme of the present day rule, stability is still the basic policy. There can be no stability should there be no leg to stand on. The constitution is that foundation from which society is allowed and is better able to adapt to the ever changing environment.

The needs of society may have changed, yet it is but important that the ideals, the culture and values be upheld. Further, the law must have the teeth to be credible and effective. This is the element of control. While statutes may easily be repealed, abrogated or amended, the constitution is not. Strict compliance with the provisions therein is necessary; otherwise, the same shall remain unchanged. A foundation which goes with the flow of the music is not a foundation at all. A foundation is one which should be open to change but not changeable in itself.

There could be no basic rules of procedure from which change can formally be made, whether in the social, religious or commercial dealings should there be no fixed grounds from which such change shall be based. Flexibility is not within the realm of the constitution but is within the realm of the present statutes, administrative orders, ordinances and resolutions. The latter type is the ones intended to respond to the needs and demands of the people which require no other qualification except to be in conformity with the fundamental law.

While Brennan gives the implication that flexibility is favorable to be able to respond to the needs of society, this can better be answered by simply abrogating, amending or repealing some present statutes, rules, regulations, administration rules, resolutions or ordinances as the case may be. More importantly, so huge are the number of citizens in a state, so vast is the power of the state, so powerful is the government to such an extent that control is highly necessary.

Control over the people, over the state, the government within a territory can only be obtained when there is that fundamental law which is credible. Statutory enactments are not a guarantee for the state and the governing body thereof to take control with everything because the implementation thereof may be influenced by those in the seat of power or at the least may be abused by them. It can be noted however that whatever and however the constitution may be interpreted, the same may still be influenced by those who are in the seat of governance.

Whatever interpretation is given on the constitution as Messee pointed out has been the subject of so many debates. Thus, it is not something to wonder should continuous debates emerge. It is of personal opinion however that so long as the interest of the public is served, the requirement for the government to better serve the society is met. For ordinary laymen this is what is important. Let the issue of interpretation and application be left to the hands of the constitutionalists and law makers for the wisdom is in their hands.

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Constitution Essay

Texas constitution Essay

Texas constitution Essay.

Texas, like most other states, has functioned under a series of Constitutions, each of which has contributed to the state’s constitutional legacy. Each is appropriately understood from the perspective of the period in which it was adopted. The current Constitution was written in 1876 after the termination of Reconstruction policies. Because reconstruction policies were oppressive, the Constitution was designed to put strong restraints on government to guard against future abuses of power. Today, the document is so restrictive that many believe it is counterproductive.

However, a rewrite of the Constitution has been elusive, due to special interests and others who believe that they benefit from the current system.

The 1876 Constitution was predicated on the theory that governmental excesses could be minimized by carefully defining what governments could and could not do. The document was built upon the national constitutional tradition and embodies three dominant principles: popular sovereignty, limited government, and separation of powers. The post-Reconstruction Texan preference for an independent judiciary is reflected in an elected judicial branch.

The framers of the Texas Constitution failed to anticipate that the limitations they imposed on governmental institutions would ultimately allow major economic interests within the state to dominate the policy-making process, often to the detriment of the lower socioeconomic groups. What the delegates to the Texas Constitutional Convention of 1875 regarded as the strengths of the constitution–fragmented authority, detailed limitations on the power of governmental institutions, and decentralization–have served to limit the ability of state and local governments to adapt effectively to economic and demographic changes. The perceived solutions to many of the problems of 1875 have compounded the problems of state and local governments in the 2000s.

Efforts to overhaul the Texas Constitution have failed. Consequently, the state has been forced to amend the document continually on a piecemeal basis. Fully 409 amendments were approved by Texas voters between 1876 and 2002, while 172 were rejected. The first amendment was adopted on September 2, 1879. A record twenty-five amendments were on the November 3, 1987 ballot. In 1999, a proposal to rewrite the constitution, the first such proposal in twenty years, was rejected by the Legislature. This process has produced some success in modernizing the charter, but many structural problems of state government require major institutional changes that cannot be resolved through this amendment process.

In many ways, the Texas Constitution reflects the values of the state’s conservative political culture, which continues to be suspicious of far-reaching constitutional changes. Moreover, constitutions and debates that surround them are complex, and most people give little attention to these issues. Consequently, it is much easier to mobilize public opinion against rather than for wholesale change.

Over the years, numerous groups have attempted to protect their interests through constitutional amendments. But the same groups usually oppose any proposed changes that threaten their influence, power, or benefits. Consequently, the interests of small segments of the state’s population often prevail over the interests of the majority.

A revision of the Texas Constitution would require large amounts of political capital to challenge or accommodate the numerous special interests who benefit from provisions in the current charter. Until the Constitution is revised, the state legislature will continue to put several proposed amendments on the ballot, as needed, to deal with issues and problems that the 1876 Constitution could not have envisioned.

Texas constitution Essay

Sovereignty and Preamble Essay

Sovereignty and Preamble Essay.

On analysing the Preamble according to its qualitative characteristics it can be divided into three parts. The first part of Preamble is said to be declaratory, whereby the people of India adopted, enacted and gave to themselves this Constitution in their Constituent Assembly. The second part is resolutionery, whereby the people of India solemnly resolve themselves into a sovereign, democratic republic. The third part is promissory in nature, it is a promise to secure to all the citizens; justice, liberty, equality and fraternity together with dignity of the individual and unity and integrity of the nation.

Another way of looking at the structure of the Preamble could be by referring to the three events which gives three messages to the past, present and future. “We, the people of India, having solemnly resolved in our Constituent Assembly this 26th day of November, 1949” is record of past event that has already happened. The following part “do hereby adopt, enact and give to ourselves this Constitution” is a simultaneous event i.

e. , present event. And after that the rest of the Preamble is: “to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political;

LIBERTY, of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; And to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;” is meant as future or destiny of the “We, the people”, “nation”, “the republic, that is, India” and it outlines the hopes and aspirations of the people of India, a solemn promise made on that day not only to themselves but also the generations to come and posterity. 1 We, the people of India

In the Constitution it has nowhere been explicitly stated that all the powers on ultimate analysis vest in the people of India or the residuary powers of the sovereignty vests in the people. There was a controversy over the issue whether the Constituent Assembly could truly be called representative of the people of India. The Constitution was not subjected any ratification by the direct vote of the people. The expression “we the people” has been borrowed from the Constitution of Eire and the Constitution of United States of America. In Union of India Vs.

Madan Gopal2 it was held that our Constitution as it appears from the Preamble derives it authority from the people of India. This is based on the contents of the Preamble itself. However the fact remains that neither the Constituent Assembly nor the people of India ever doubted or questioned the representative character of the Constituent Assembly and their acting on behalf of the people of India. Crafting of Preamble With regard to the crafting of the Preamble, it can be observed that every word has been cautiously chosen. The order in which the words have been arranged is with proper significance and suggestion.

It is pertinent at this stage to refer to what K. M. Munshi said in Indian Constitutional Documents, Vol. I: Pilgrimage to Freedom to delve into the minds of framers of the Constitution. As compared to the Objectives Resolution passed in December 1946, the Preamble reflected the changes that had come over the country as a result of the Partition and the integration of the Indian States. 3 The republic is visualized in the Preamble as a form of government of the people, for the people and by the people, through their freely elected representatives.

This was the reason that it was found essential to qualify sovereignty of the republic by the word “democratic”. 4 The content of the word “democratic” was made clear by emphasizing “liberty, of thought, expression, belief, faith and worship and equality of status and of opportunity”. An independent sovereign state might well become dictatorial or develop into what is euphemistically called “people’s government”. 5 The Preamble on the one hand emphasized on “the unity of the nation” and on the other hand, as much on the “dignity of the individual.

” The Union is implied with an obligation by the use of the word “dignity” to respect the personality of an individual, creating conditions where the citizen could seek individual self-fulfilment. It is observed that K. M. Munshi has tried to deal with the concept of sovereignty in more detail as we see in the Preamble and Constitution. He has tried to identify where sovereignty rests factually and juristically in our Constitution. K. M. Munshi observes; “The Union Government is not sovereign, because its powers only from the Constitution.

Parliament and State Legislatures are not sovereign; legislation can be struck down by the Supreme Court. The Supreme Court is not sovereign, though it can declare the Acts of Parliament and state legislatures unconstitutional, for it derives its powers from the Constitution. The States in India are not sovereign; the residuary powers are with the Union, as also the express power of altering their boundaries. Parliament has also the power of superseding the legislature and the Government of a State in an emergency. ”6

It could therefore be concluded that Constitution is sovereign but in a juristic sense only. If it were treated as a sacrosanct then only the sovereignty could be maintained. Within its framework itself people will get accustomed to carry their political, social, economic activities. I believe what Justice R. C. Lahoti writes as to the place of the people of India. On the forehead of the Constitution, the people of India are given a predominant place. It is not just a resolution but a solemn resolution by the people of India in the Preamble.

If we analyse the phrase “sovereign, democratic, republic” then we would observe that “sovereign” and “democratic”, they both qualify “republic”. It is evident that both words “sovereign” and “democratic” are of equal importance. It could have been phrased as “democratic, sovereign, republic” but that was not done. It will be very difficult for democracy to “survive” without assigning sovereignty. Sovereignty along with being the quality of democracy is also the source of democracy. Further, to qualify as democratic, republic should be preceded by “democratic”.

Hence, the order of words in the phrase is; “sovereign, democratic, republic”. Why a sovereign, democratic, republic? The answer to this lies in the following line—to secure to all its citizens and justice, liberty, equality fraternity. Every citizen is guaranteed justice, liberty, equality fraternity. It conveys the fact that what the citizens had lacked earlier is now assured by the Constitution. The words justice, liberty, equality fraternity are carefully placed in that order. Liberty is meaningless without justice and it would also not survive without justice.

Justice and liberty would secure equality. Justice and liberty would express themselves into equality. In the words of Dr. Ambedkar, fraternity means; “A sense of common brotherhood of all Indians- of Indians being one people. It is the principle which gives unity and solidarity to social life. It is a difficult thing to achieve. ” Sans justice, liberty and equality, fraternity would be a wishful thinking. The four words placed in the order reflect the working of the Constitution as to what had been the ideology at the beginning. To the question whether sovereignty exists in people of India, M. H. Beg, J.

drew a distinction between “political sovereignty” and “legal sovereignty”, and held whole of legal sovereignty was transmitted from British Parliament to the people and territory of this country in British India and to Constituent Assembly which spoke in the name of the People of India. 7 He held that legal sovereignty lies in the Constitution whereas the political sovereignty resides in the people of India. The concept was developed by Beg,J. that the “sovereignty of constitution” is a feature” “inherent in a genuine whole. ” Without thinking there cannot be any expression. It is the liberty of though which enables liberty of expression.

Belief occupies a place higher than thought and expression. 8On the liberty of thought and expression rests the belief of the people, according to Justice Lahoti. If we place it on the three angles of a triangle, thought and expression would the bases of the triangle where belief would be placed at the upper angle. 9 Belief, Thought and Expression Belief Thought Expression If there is absence of expression, belief and thought then there is lack of faith. Respect for thought, belief, expression and faith gives meaning to worship and such worship would not pose any threat and any risk to liberty of one and all. Justice, liberty and equality

If we secure justice, liberty and equality the fraternity is assured. Fraternity can only be held forward and furthered, it cannot be inculcated, it can only be promoted. The prime constituent of fraternity is dignity of the individual and fraternity assured dignity of the individual. Both are interdependent and intertwined. It is difficult for unity and integrity of the nation to survive unless the dignity of every individual is guaranteed. It is impossible to assume that citizens would stand united and integrated where there is a potent risk to their individual dignity, it has not been guaranteed or it has been taken away.

It is the regard and respect by every individual for the dignity of the other that brings unity and integrity of the nation almost. Justice . Equality Liberty Justice promises to give people what they are entitled to in terms of basic rights to food, Clothing, housing, participation in the decision-making and living with dignity as Human Beings. The Preamble covers all these dimensions of justice – social, economic and political. Besides, the granting of political justice in the form of universal adult franchise or the representative form of democracy.

The Preamble also mentions about liberty of thought and expression. These freedoms have been guaranteed in the Constitution through the Fundamental Rights. Though freedom from want has not been guaranteed in the Fundamental Rights, certain directives to the State have been mentioned in the Directive Principles. The importance of the judiciary in India in this connection must also be highlighted in this country. In this connection reference may be made to two decisions of the Supreme Court viz. , Govt of A. P. and others vs. P. Laxmi Devi10 and Deepak Bajaj vs. State of Maharashtra and others11.

In these cases, the Supreme Court has emphasized the importance of liberty for progress, and has observed that the judiciary must act as guardians of the liberties of the people, protecting them against executive, or even legislative arbitrariness or despotism. Liberty, Equality and Fraternity are not to be treated as separate entities but a trinity. They form a union in that and to divorce one from the other is to defeat the very purpose of Democracy. 12 Fraternity, Dignity, Unity and Integrity In the background of India’s multi-lingual, multi-cultural and multi-

religious society and keeping in view the partition of the country, the framers of the Constitution were very much concerned about the unity and integrity of our newly independent country. There was a need for harmonious co-existence among various religions, linguistic, cultural and economic groups. Inclusion of phrases like ‘dignity of individuals’, ‘fraternity among people’ and ‘unity and integrity of the nation’ in the Preamble highlight such a need. Chapter II Preamble- Whether Part of Constitution? Though the Constitution opens with the Preamble it is quite amusing to note that the Preamble was not the first to come into existence.

At the end of the first reading of the Constitution it was in fact the last piece of drafting adopted by the Constituent Assembly and then it was seated at the beginning of the Constitution. On 17th October, 1949 the motion to adopt the Preamble was moved. Amendments to the Preamble were suggested but all of them were negated. The motion was moved by the President – “That the Preamble stands part of the Constitution. ”The motion was adopted on November 2, 1976. The Preamble was added to the Constitution. 13 Whether the Preamble is part of the Constitution or not, this vexed issue was dealt in two leading cases on that subject: Berubari Case14

Keshavananda Bharti Case15 Whether the Preamble is considered to be the part of Constitution, on the to this crucial question would depend the resolution of the following question, which as a corollary follows that whether the Preamble can be amended at all. “Under Article 143(1) of the Constitution, Berubari Case16 was the Presidential Reference on the implementation of Indo-Pakistan Agreement Relating to Union and Exchange of Enclaves which came up for consideration by a Bench consisting of eight Judges headed by the Chief Justice B. P. Sinha . The unanimous decision of the Court was given by Justice Gajendragadkar.

Quoting story, the eminent constitutional jurist, the Court rules that the Preamble to the Constitution, containing the declaration made by the people of India in the exercise of their sovereign will, no doubt is “a key to open the mind of the makers” which may show the general purposes for which they made the several provisions in the Constitution but nevertheless the Preamble is not a part of the Constitution. Willoughby on American Constitution was quoted as saying— “It has never been regarded as the source of any substantive power conferred on the Government of the United States, or on any of its departments.

Such powers embrace onlt those expressly granted in the body of the Constitution and such as may be implied from those so granted. ”17 What had been held in Berubari Case18 was concisely stated in the Kehsavananda Case19 by Shelat and Grover, JJ. as under: “ 1. A preamble to the Constitution serves as a key to open the minds of the makers, and shows the general purpose for which they made the several provisions in the Constitution. 2. The preamble is not the part of our Constitution. 3. It is not a source of several powers conferred on government under the provisions of the Constitution; 4.

Such powers embrace those expressly granted in the body of the Constitution ‘and such as may be implied from those granted’; 5. What is true about the powers is equally true about the prohibitions and limitations; 6. The preamble did not indicate the assumption that the first part of preamble postulates a very serious limitation on one of the very important attributes of sovereignty viz. ceding territory as a result of the sovereign power of the State of treaty-making and on the result of ceding a part of the territory. 20 ” Berubari Case21 was relied on in Golak Nath case22 , Wanchoo, J.

said— “On a parity of reasoning we are of the opinion that the preamble cannot prohibit or control in any way or impose any implied prohibitions or limitations on the bar to amend the Constitution contained in Article 368. ” Bachawat, J. observed— “Moreover the Preamble cannot control the unambiguous language of the articles of the Constitution. ” Justice Lahoti observes that while answering the Presidential Reference in Berubari Case23 it is a matter of regret and also a matter of record that the constitutional history was overlooked by the eminent Judges constituting the Bench.

The motion that was adopted by the Constituent Assembly stated in so many words that the Preamble stands as a part of the Constitution. In the Keshavananda Bharti Case it was expressly ruled by the majority that like any other provision of the Constitution Preamble was also the part of the Constitution. It is interesting to observe what some of the judges had to say about the Preamble in Keshavananda Bharti Case. This case has created history. A special bench of 13 judges was constituted to hear the case (the case was heard for 5 month and the court gave the longest judgement running into 595 pages).

11 separate opinions were placed by thirteen judges placed on record. To the extent necessary for the purpose of the Preamble, it can be safely concluded that the majority in Keshavanada Bharati case leans in favour of holding, (i) that the Preamble to the Constitution of India is a apart of Constitution; (ii) that the Preamble is neither a source of power nor a source of limitations or prohibitions; (iii) the Preamble has a significant role to play in the interpretation of statutes, also in the interpretation of provisions of Constitution.

24 It is a very difficult task to find out as what is the ratio in Keshavananda Bharti Case. I believe with what Justice R. C. Lahoti further says; When it is necessary to determine the width or reach of any provision or when there is any ambiguity or obscurity in the provision which needs to be clarified or when the language admits of meanings more than one the Preamble may be relied on. But when the language is clear and unambiguous then the Preamble could not be made use of as an aid of interpretation. 25

Sovereignty and Preamble Essay