STATUTES and CONSTITUTIONS. – The two terms are not generally considered equivalent, even though the particular distinctions between them, especially when considered in their more modern sense, are purely external. The first derives from *statuere* and originally served to indicate any expression of the ruling will in the regulation of some aspect of social life, so that its meaning almost coincided with that of law. Over time, however, it took on a narrower sense, being applied to those particular laws by which autonomous entities, born and existing within the orbit of the State or Empire, are governed. The communal regime rested upon them. Their origin is due to the convergence of customary norms and a body of provisions sworn to by the magistrates of the Commune, whose source was not an authoritative act of a sovereign will. In this sense, statutes are nothing other than the unitary body of municipal laws by which the Commune governed itself as an autonomous entity.
I. STATUTES AND CONSTITUTIONS AS THE FUNDAMENTAL LAW OF THE STATE
In more recent times, the term has taken on a new nuance, being used to signify the fundamental law of the State, thus approaching and almost merging with that of constitution. Indeed, the differences between statutes and constitutions are exceedingly slight. Whereas a statute would be a charter granted by the sovereign in the exercise of his authority without popular consultation, a constitution would consist in that fundamental written law which regulates the principal aspects of the State’s life as an expression of the people’s will.If one examines these distinctions closely, they are seen to be merely external. The first concerns origin, but it may be observed that, in the final analysis, both statutes and constitutions derive their authority from sovereign power, which in the former case is expressed through the monarch and in the latter through the popular will. The second distinction, which pertains to written form, carries little weight, since even today there exist customary constitutions, as is largely the case in England. The third distinction merely highlights a historical fact, namely that modern constitutions, almost all of which date from after the French Constitution of 1791, have been based upon the concept of popular sovereignty. Yet this concept is not essential to the idea of a constitution. Indeed, common doctrine includes statutes among constitutions as a species within the genus. To conform, however, to current terminology, it may be held that a statute is a constitution granted or a charter given to the people by the sovereign, as, for example, were the Statutes of Pius IX for the Papal States on 14 March 1848, of Ferdinand II for Naples and Sicily on 10 February, of Charles Albert for the Sardinian States on 4 March, and of Leopold II of Tuscany on 14 March.
Today, a constitution is understood to mean that body of written or customary norms by which the structure of the State and the form of its government are established, thereby fixing its principal outlines. Generally, such norms pertain to the powers and their organs, their mutual relations and collaboration, and the limits of their faculties, and so forth. One might suppose that the origin of constitutions is relatively recent, tracing their appearance to the 18th century. In that century, indeed, the movement for independence from English colonial rule led the individual states of North America to proclaim their autonomy and establish a new organization, embodied in certain declarations of rights or constitutional charters, such as those of Virginia, Pennsylvania, and Maryland in 1776, followed by the federal Constitution. Shortly thereafter, the French Revolution condensed its social ideology in the well-known Declaration of the Rights of Man of 1789, which was then incorporated into the constitutions of 1791 and 1793.
Yet one must not be misled by the purely historical contingency of the spread of written constitutional systems at that time. The State cannot exist without a fundamental law, and thus it always stands in history with its own constitution, which, if unwritten, does not thereby lose its nature. England, as has been noted above, has a constitution that is largely customary and unwritten. Moreover, examples of written constitutions are not lacking in earlier periods, even if they do not present the systematic form attained later. The Magna Carta of King Henry I of England in 1215, in its 68 articles, contains many provisions relating to the structure of the State, the limits of royal power, and its relations with the nobility. The same may be said of the Bill of Rights of 1688. In the Middle Ages, moreover, compacts stipulated between the sovereign and the noble estates are not rare, and these go beyond the nature of a private contract.
Constitutions are commonly distinguished by doctrine according to external form, as written or unwritten (customary), and according to their mode of origin, as granted (*octroyées*) at the initiative of the sovereign—such as the Albertine Statute and the Constitution of Pius IX—or as elaborated by parliaments or special assemblies called constituent, regarded as representing the popular will, as in the case of the American states and all modern constitutions of civilized peoples, founded upon a democratic conception of social life. Constitutions are then said to be flexible if they may be modified by the ordinary process of lawmaking, and rigid if their amendment requires special conditions or a qualified majority of votes. The fact that a constitution is rigid does not mean that no change can be introduced into its provisions, but only that such change is rendered more difficult by certain norms included in its own text. A constitution cannot be rigid in the full sense without running the risk of being overtaken by the constant evolution of social reality, which it must interpret and reflect. Nevertheless, it is desirable that it possess such a qualified rigidity, particularly in modern times, when its formulation depends in large measure upon political movements.
II. FORM OF MODERN CONSTITUTIONS
Modern constitutions usually consist of two parts. In the first, called the dogmatic part, are expressed the rights of citizens, moral persons, and the various institutions existing within the State, for which, beyond legal recognition, the necessary protections are established in relation to the powers of political authority. The enumeration of such rights varies from constitution to constitution, though in most cases they follow an almost common pattern, more or less derived from the so-called civic liberties proclaimed at the time of the French Revolution. The most recent, such as the Italian (v. ITALIA, REPUBBLICA) and the French (v. FRANCIA), have broadened this framework by introducing the recognition and protection of what are called social rights. Several constitutional texts, like the Italian one, abound in general and programmatic statements that lack the character of law but either reflect particular political conceptions or serve as guidelines for public authorities.In the second part, called the organic part, are included the norms governing the structure of the State, the form of government, the division of powers and their respective organs with their spheres of competence, representative chambers and the organization of suffrage, the powers of the head of State, and the composition of the government. Greater variety is found in this part, which depends upon the dominant political tendencies at the time the constitutional text is formulated.
### III. LEGAL FOUNDATION OF CONSTITUTIONS
Regarding the legal foundation of constitutions, opinions vary greatly, as the solution to this question reflects the diversity of ideologies concerning law and its sources. To properly address the issue, it is necessary to distinguish in every constitution two parts: a substantial one, which consists of those principles inherent to social life or the set of constitutional norms implicitly present in every political formation by virtue of its very existence as a natural institution; and an accidental one, which depends on the free choice of man in the positive organization of the State and in practice coincides with what has been termed the organic part. The legal foundation of the first is the very natural order of justice and the objective and universal exigencies of social life, which translate into norms of autonomous value, made positive by the text of the constitution as principles assumed from a pre-existing legal order. The validity of the second depends on the expression of the will of the legitimate power existing in every State, or diffused throughout the people, whether conceived organically or already gathered into a determined subject. In both suppositions, the original and immanent sovereign power of the State operates; nor is it necessary in any way to resort to the motive of contract or pact, which is shown to be fictitious except in the case where the constitution is the result of a political-legal compromise between authority and the people.
### IV. CONSTITUTIONS AND CONSTITUENT POWER
The topic just touched upon has an intimate connection with the question of constituent power, to which it is fitting to make a brief reference in order to clarify its nature, legal foundation, functions, and limits. Constituent power is not a de facto power, as many have depicted it, but rather falls within the number of original moral faculties possessed by the political organism; that is, it is a fundamental right of the State, whose specific characteristic is given by the function it is called upon to perform: the formation of the constitution or its reform. It is, therefore, an essentially legislative power, which is distinguished from ordinary power in that while the latter is a constituted power whose function is exercised in the formation of ordinary law in conformity with the existing statutory norms, the former is constituent and operates autonomously, at a time when the latter remains suspended. It is not, however, necessary to conceive of them as two distinct powers, as they may well be considered two functions of the single and indivisible legislative power inherent to the sovereignty of the State; and thus the question of whether constituent power encompasses all other powers of the State—the executive and the judiciary—is resolved in the negative. Another distinct characteristic of constituent power is its temporariness: once its function is fulfilled, it returns to a potential state, to re-emerge in case of necessity.
It has been erroneously defined as an essentially revolutionary power. It is certainly not such in the hypothesis of a constitutional reform carried out according to the norms provided by the existing constitution, nor in that of a newly formed society, with respect to which the legitimacy of its work is supported by the original right of the political organism to give itself a positive structure, establishing the fundamental laws for the regular development of social life. It might appear as such, and thus be considered a de facto power, in the supposition that its emergence is due to a movement that overthrows an existing order to create a new one; in this case, according to a widely held opinion, the legality of its acts would be obtained through a retroactive reflection of the law it itself approves. Apart from the insoluble difficulty of deriving law from a mere fact, against this solution it must be noted that the State in a time of revolution does not cease to exist but continues with all its original powers. If, therefore, the revolution is just, the legitimacy of constituent power derives from the return of sovereignty to its primitive subject, the people, who, according to Bellarmine, Lessius, and Suárez, retain it in root and may make use of it when the legitimate holder is lacking. If, on the other hand, the revolution were unjust, the constituent power and all its acts would remain illegal, lacking the support of law. Nevertheless, the constitution promulgated and imposed by it, once the new order has been victoriously established, acquires legal value by virtue of the fundamental norm of social life, which requires the preservation of order, the stability of relations, and the certainty of law. In this case, it is not the fact that is transformed into law, but a higher exigency of life that imparts juridical character to the established norms.
It is superfluous to note that constituent power, like any other power of the State, is limited in its faculties not only by its specific function but also by all the intrinsic limits that imperatively condition the exercise of sovereignty, of which it is an extraordinary function. In determining constitutional norms, it is especially bound to respect the substantial constitution mentioned above and to incorporate its principles integrally, adapting them to the concrete conditions of social life, without, however, violating or denying them; otherwise, the constitution, in whole or in part, will not be able to have the value of a directive and imperative law for the community.