Constitutional Theory: Why Judges Can Overrule Majorities
The big ideas behind constitutions: who makes them, how power is split and checked, and why rights can trump majorities.
Try 3 questions
1. At its core, constitutionalism is the idea that government power should be what?
- Limited by higher, binding law
- Exercised by judges alone
- Concentrated for the sake of efficiency
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Answer: Limited by higher, binding law
Constitutionalism holds that rulers are bound by rules they cannot change at will, which protect liberty by restraining power.
2. Can a country have a constitution without any single written constitutional document?
- No, a constitution must be a single document
- Only if the country is a monarchy
- Yes, through statutes, conventions and case law
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Answer: Yes, through statutes, conventions and case law
Uncodified constitutions exist: basic rules can be spread across ordinary statutes, judicial decisions and long-standing political conventions.
3. The 1789 French Declaration says a society has no constitution unless it guarantees rights and does what?
- Holds a referendum every decade
- Has a written national code
- Separates the powers of government
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Answer: Separates the powers of government
Article 16 links the very idea of a constitution to two conditions: guaranteed rights and a determined separation of powers.
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