A constitution is a social contract, an agreement between all citizens and their government
leaders.  This contract defines what powers the leaders have and what powers the
citizens have.  Once established this contract is intended to serve as a fundamental
guarantee of the rights of citizens and the form of government.  While a majority of
citizens may change leaders with each election, the concept of a constitution is that certain
basic structures transcend electoral politics and should provide a system that remains in
place regardless of elections.  While this framework may be guided by the majority, it
must also ensure respect for the rights of the minority.  Because a constitution is to serve
as a base for organizing the affairs of all citizens, it is generally given a special, supreme
status.  Consequently, any law or administrative act is by definition invalid to the extent it
is inconsistent with the constitution.  This supremacy is intended to place the constitution
outside the realm of normal politics.

To foster this supremacy, constitutions generally include certain  principles of government.
The most basic and common principle is that there must be three fundamental divisions
within government: separate legislative, executive, and judicial powers.  This “separation
of powers” has ancient origins in the writings of the Greek philosopher Aristotle and has
remained an essential concept in the modern era of constitutionalism, as can be seen in the
work of the French lawyer/philosopher Montesquieu.  Today, the separation of powers is
considered the basic foundation upon which a constitutional democracy is built.

The importance of the separation of powers rests in the establishment of a system of
checks and balances.  Through this system, independent powers are placed in the three
branches of government thereby creating a system whereby each branch exercises
powers of control over the other.  For example, the legislative branch typically controls
the legislative process.  However, the executive branch also generally has the power to
review legislation, suggest changes to legislation, and veto legislation if it considers the
legislation inappropriate.  Similarly, the judicial system has the power to decide cases on
the proper application of the law, and in some cases, strike down provisions of a law or
regulation.  Furthermore, the judicial system has the power to do so independently of the
opinions of the executive or legislative branch.

When the system of separation of powers fails, power becomes concentrated in a
particular branch of government.  As a rule, this leads to abrogation of the social contract,
which underlies all successful constitutions.  For example, an executive branch with the
ability to choose and dismiss judges freely will naturally begin to dismiss judges making
decisions contrary to the interests of the executive.  After a period of time, the judiciary
will become sufficiently politicized so that citizens can no longer rely on the judicial system
to issue rulings against the executive.   The executive branch is then free to initiate cases
and control their outcome.  Once this occurs, the human rights provided for in the
constitution become meaningless, unless a citizen is popular with the ruling executive
authority.  Citizens cannot rely on the law to protect their interests.  At this point, it is then
clear that the fundamental social contract is broken, and the citizen can no longer be said
to enjoy constitutional guarantees.  In legal terms, this event signifies the destruction of a
state based upon the “rule of law” and the introduction of a state based upon the rule of
individuals.


Once the separation of powers has been compromised, history demonstrates that citizens
then tend to rely on personal relationships, nepotism, and corruption to secure their place
in society.  Individual merit, hard work, and new ideas become secondary issues.   In this
environment, the centralized systems of communism and fascism flourish.  With their
emphasis on personal connections and party affiliation, these systems quickly take root in
society that embraces personal relationships, nepotism, and corruption, and they rapidly
exclude the possibility of separate powers that could champion the rights and merits of the
individual against the “rights of the people and the state.”

To secure and protect a constitutional democracy, and the social contract it reflects,
requires an active citizenry.  A constitution can help create a social contract, but the
population itself must be responsible for its protection and enforcement.  Constitutional
democracy thrives only where the citizenry is willing to sacrifice their immediate
self-interest for a system that will guarantee long-term freedom.  The immediate
gratification that can be secured from those willing to profit solely on the basis of personal
relationships, nepotism, and corruption comes with a high price: the undermining of the
modern, constitutional system of government.

This commitment on the part of the citizenry, while intangible, is essential, and its effect is
dramatic.  The United Kingdom is one clear example.  Though the United Kingdom does
not have a written constitution in the classic sense, it has a rich constitutional tradition that
dates back to the Magna Charta in 1215.  This rich commitment on the part of the
citizenry has secured and protected the social contract of constitutional democracy and
established the United Kingdom as a model of its benefits.  This is so regardless of the
fact that the U.K. does not posses a simple constitutional text.

Once enacted, a constitution is a blueprint for a democratic society, but the ultimate
construction of this society relies on the continued active participation of citizens.  Citizens
must embrace the guarantees in the constitution and exercise their constitutional rights
vigorously to create a climate where the constitutional democracy may thrive.  The
constitution of a country  enjoys special status in the hierarchy of laws, for it is generally
considered to be the supreme law.  However, in the end, its actual supremacy comes
from the citizens who safeguard its enforcement.

Submitted by Scott Carlson
accapp/qakapp
Rr. “Donika Kastrioti” Vila 6
Tirana, Albania
Phone: 355-42-40672
Fax: 355-42-40673
E-mail: [email protected]