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Constitutional Right
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. 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, around 220 other similar
constitutions were adopted around the world by independent states.
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.” Coincidence or not, according to
recent studies 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 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. A study from 2009 showed that the average time allocated for
the drafting part of the process is around 16 months however there were also
some extreme cases registered. For example, the Myanmar 2008 Constitution
was secretly drafted for more than 17 years, 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. Studies on the matter showed as a general conclusion that usually nondemocracies where the registered extreme cases where the constitution-making
process either takes too long or is incredibly short. 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.
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.
United States
Federal constitution
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.
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.
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. Only on December 15, 1791 the Bill of Rights
comprising the first 10 Amendments became part of the U.S. Constitution. 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. 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.
State constitutions
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. The reason for this difference between the federal Constitution
and the states Constitutions is what Justice Brennan called ‘the new judicial
federalism’. 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.