STATUTES AND CONSTITUTIONS. — The two terms are generally not regarded as equivalent, although the particular distinguishing features of each, especially when considered in their more modern meaning, are purely external. The former derives from statuere and originally served to designate any expression of the ruling will in the regulation of some aspect of social life, so that its meaning came almost to coincide with that of law. Over time, however, it acquired a narrower sense, being applied to those particular laws by which autonomous bodies, established and existing within the orbit of the State or the Empire, are governed. The municipal system relied upon them. Their origin is attributable to the convergence of customary norms and a body of provisions accepted under oath by the magistrates of the Comune, whose source was not an authoritative act of a sovereign will. In this sense, the s. are
nothing other than the unified body of municipal laws by which the Comune governed itself as an autonomous entity.
I. S. AND C. AS THE FUNDAMENTAL LAW OF THE STATE. - In more recent times the term has acquired a new nuance, having been used to signify the fundamental law of the State, so as to approach and almost become confused with that of c. The differences, in fact, between s. and c. are extremely slight. Whereas s. would be a charter granted by the sovereign in the exercise of his authority, without popular consultation, c. would consist in that fundamental written law which regulates the principal aspects of the life of the State as an expression of the will of the people.
If one observes carefully, the differences indicated are merely external. The first concerns their origin, but it may be observed that, ultimately, both s. and c. have their source in sovereign power, which in the former case is expressed through the monarch and in the latter through the popular will. The second difference, which concerns the written form, has little significance, since unwritten constitutions still exist today, as is true of the English constitution in large part; the third, moreover, elevates to the status of a distinguishing feature a historical fact, namely that modern c., almost all of which arose after the French one of 1791, rested upon the concept of popular sovereignty. But that concept is not essential to c. Indeed, common doctrine includes s. among c. as a species within the genus. In order, however, to conform to current terminology, one may hold that s. is a c. granted, or a charter given to the people by the sovereign, as, for example, were, in 1848, that of Pius IX for the Papal States of 14 March, that of Ferdinando II for Naples and Sicily of 10 February, that of Carlo Alberto for the Sardinian States of 4 March, and that of Leopoldo II of Tuscany of 14 March.
By c. today is meant that body of written or customary norms by which the structure of the State and the form of its regime are established, so that its principal features are determined. Generally, such norms concern power and its organs, their mutual relationship and cooperation, the limits of their powers, and so forth. One might think that the origin of c. is relatively recent, dating its appearance to the eighteenth century. In that century, in fact, the movement for independence from English colonial rule led the individual States of North America to proclaim their autonomy and adopt a new organization, set forth in certain declarations of rights or constitutional charters, such as those of Virginia, Pennsylvania, and Maryland of 1776, which were later followed by the federal one. Shortly thereafter, the French Revolution condensed its social ideology in the well-known declaration of the rights of man of 1789, which were subsequently incorporated into the c. of 1791 and 1793.
One must not, however, be misled by the purely historical circumstance of the spread achieved by the system of written c. at that time. The State cannot exist without a fundamental law and therefore always appears on the stage of history with its own c., which, by virtue of not being written, does not lose its nature. It has already been noted above that England has a predominantly customary and unwritten c. Moreover, examples of written c. are not lacking in the preceding period, although they do not display the systematic form later attained. The Magna charta of Enrico I of England of 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, agreements concluded between the sovereign and the noble estates, extending beyond the nature of a private contract, were not uncommon.
According to common doctrine, c. are usually distinguished, taking their external form as the criterion, into written and unwritten or customary constitutions and, with reference to their mode of origin, into those granted (octroyes) on the initiative of the sovereign, such as the Statuto albertino and the c. of Pio IX, and c. drawn up by parliaments or by special assemblies called constituent assemblies, regarded as representatives of the popular will, such as those of the American States and all the modern constitutions of civilized peoples, founded upon a democratic conception of social life. Those that can be amended through the ordinary process of lawmaking are called flexible; those whose alteration requires special conditions or a qualified number of votes are called rigid. The fact that a c. is rigid does not therefore mean that no change can be introduced into its provisions, but only that such change is made more difficult by certain norms included in its own text. A c. cannot be rigid in the full sense without running the risk of being overtaken by the constant evolution of social reality, whose requirements it must interpret. Nevertheless, it is advisable that it possess a certain degree of stability, particularly in modern times, when its formulation depends to a great extent upon political movements.
II. FORM OF MODERN C
Modern c. are generally composed of two parts. In the first, called the dogmatic part, the rights of citizens, moral persons, and the various institutions existing within the State are set forth; with regard to these, in addition to legal recognition, the appropriate safeguards are established vis-à-vis the powers of political authority. The enumeration of such rights varies from c. to c., although in most cases they follow an almost common pattern, more or less derived from the so-called civic liberties proclaimed in due course by the French Revolution. The more recent ones, such as the Italian (v. REPUBBLICA) and the French (v. FRANCIA), have broadened this framework by introducing the recognition and protection of rights known as social rights. Several constitutional texts, such as the Italian one, abound in general and programmatic statements, which do not have the character of law, but either reflect particular political conceptions or serve as guidance for the public authorities.In the second, called the organic part, are included the norms concerning the structure of the State, the form of the regime, the division of powers and the respective organs with their related sphere of competence, the 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 was formulated.
III. LEGAL BASIS OF CONSTITUTIONS
With regard to the legal basis of constitutions, opinions differ greatly, reflecting in the solution of the question the variety of ideologies concerning law and its source. For a correct formulation of the problem, it is necessary to distinguish in every constitution two parts: a substantive part, composed of those principles immanent in social life, or of a group of constitutional norms implicit in every political formation by the very fact of its existence as a natural institution; and an accidental part, which depends on the free choice of man in the positive organization of the State and in practice comes to coincide with what was termed above the organic part. The legal basis of the former is the same natural order of justice and the objective and universal requirements of social life, which are translated into norms possessing autonomous value and are made positive by the text of the constitutions as principles assumed from a pre-existing legal order. The validity of the latter depends on the expression of the will of the legitimate power existing in each State, whether still diffused throughout the people, organically conceived, or already gathered in a determinate subject. In either supposition, the original power immanent in the State and sovereign over it is operative; nor is there any need whatsoever to resort to the notion of a contract or pact, which can be shown to be fictitious only when the constitution is the result of a political-legal compromise between authority and the people.IV. C. AND CONSTITUENT POWER. — The subject just touched upon is intimately connected with the question of constituent power, to which it is appropriate to devote a brief mention, in order to clarify its nature, juridical foundation, functions, and limits. Constituent power is not a power of fact, as many have portrayed it, but belongs among the moral faculties originally possessed by the political organism; that is, it is a fundamental right of the State, whose specific characteristic is determined by the function it is called upon to perform: the formation of the constitution or its reform. It is therefore an essentially legislative power, distinguished from ordinary legislative power in that, whereas the latter is a constituted power whose function consists in forming ordinary laws, in conformity with the statutory norms already in existence, the former is constituent and operates autonomously, at a time when the other remains suspended. It is not, however, necessary to conceive of them as two distinct powers, since they may very well be regarded as two functions of the one and indivisible legislative power inherent in the sovereignty of the State; and this resolves in the negative the question whether constituent power comprises within itself all the other powers of the State, the executive and the judicial. Another of its distinguishing characteristics is its temporariness: once it has performed its function, it returns to a potential state, to re-emerge in case of necessity.
It has mistakenly been defined as an essentially revolutionary power. It is certainly not such in the case of a constitutional reform carried out according to the norms laid down by the existing constitution, nor in that of a newly formed society, with respect to which the legitimacy of its action rests upon the original right of the political organism to give itself a positive structure, establishing the fundamental laws for the orderly conduct of social life. It might appear to be such, and for that very reason be regarded as a power of fact, on the supposition that its emergence is due to a movement that overturns an existing order in order to create a new one; in that case, according to a very widespread opinion, the legality of its acts would be obtained through a retroactive effect of the law approved by II. Apart from the insurmountable difficulty of deriving a right from a pure fact, contrary to this solution it should be noted that the State does not disappear in time of revolution, but continues to exist with all its original powers. If, therefore, the revolution is just, the legitimacy of constituent power derives from the return of sovereignty to its original subject, the people, which, according to Bellarmine, Lessius, and Suárez, retains it in root and may make use of it when the legitimate holder has ceased to exist. If, on the other hand, the revolution were unjust, 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 had been victoriously established, acquires juridical 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 communicates juridical character to the norms established.
It is unnecessary, moreover, to point out 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 above all bound to respect the substantial constitution mentioned above and to accept its principles in their entirety, adapting them to the concrete conditions of social life, without nevertheless violating or repudiating them; otherwise, the constitution, either wholly or in part, could not have the force of a directive and imperative law for the community.