Most commonly, the term constitution refers to a set of rules and principles that define the nature and extent of government. Most constitutions seek to regulate the relationship between institutions of the state, in a basic sense the relationship between the executive, legislature and the judiciary, but also the relationship of institutions within those branches. For example, executive branches can be divided into a head of government, government departments/ministries, executive agencies and a civil service(1).
Most constitutions also attempt to define the relationship between individuals and the state, and to establish the broad rights of individual citizens. It is thus the most basic law of a territory from which all the other laws and rules are hierarchically derived; in some territories it is in fact called “Basic Law”. Constitutions may also provide that their most basic principles can never be abolished, even by amendment. In case a formally valid amendment of a constitution infringes these principles protected against any amendment, it may constitute a socalled unconstitutional constitutional law.
2. Codified Constitution and Uncodified Constitution
(1) Codified constitution
Most states in the world have codified constitutions(also known as written constitutions). Codified constitutions are often the product of some dramatic political change, such as a revolution. The process by which a country adopts a constitution is closely tied to the historical and political context driving this fundamental change. States that have codified constitutions normally give the constitution supremacy over ordinary statute law. That is, if there is any conflict between a statute and the codified constitution, all or part of the statute can be declared ultra vires(2) by a court, and struck down as unconstitutional. In the United States, the Supreme Court is the final interpreter of the Constitution and has the power to rule on the constitutionality(3) of the actions of the other two branches of government(4) as well as those of the states and other governmental entities. Through judicial elaboration of the meaning of the Constitution, the Court can broaden or limit the powers of the president and the Congress. In so doing, the Court breaths life into the Constitution, making it a “living” document that changes as the nation changes.
Codified constitutions normally consist of a preamble, which sets forth the goals of the state and the motivation for the constitution, and several articles containing the substantive provisions. The preamble, which is omitted in some constitutions, may contain a reference to God and/or to fundamental values of the state such as liberty, democracy or human rights.
(2) Uncodified constitution
As of 2010 at least three states have uncodified constitutions: Israel, New Zealand, and the United Kingdom. Uncodified constitutions(also known as unwritten constitutions) are the product of an “evolution” of laws and conventions over centuries. By contrast to codified constitutions, uncodified constitutions include written sources like constitutional statutes enacted by the Parliament(5) and also unwritten sources, such as constitutional conventions, observation of precedents, royal prerogatives, custom and tradition(6). In the days of the British Empire, the Judicial Committee of the Privy Council(7) acted as the constitutional court for many of the British colonies such as Canada and Australia which had federal constitutions.
3. Functions of Constitutions
(1) State and legal structure
One of the key tasks of constitutions is to indicate hierarchies and relationships of power.In a unitary state(8), the constitution will vest ultimate authority in one central administration and legislature, and judiciary, though there is often a delegation of power or authority to local or municipal authorities. In contrast, a federal form of government is one in which the states form a union and the sovereign power is divided between a central governing authority and the member states. The U.S. Constitution delegates certain powers to the national government, and the states retain all powers not delegated to the national government. The relationship between the national government and the state governments is a partnership; neither partner is superior to the other except within the particular area of authority granted to it under the Constitution.
(2) Human rights
Human rights or civil liberties form a crucial part of a country's constitution and govern the rights of the individual against the state.The United States and France each have a codified constitution with a bill of rights. Perhaps the most important example is the Universal Declaration of Human Rights(9) under the UN Charter(10). These are intended to ensure basic political, social and economic standards that a nation or intergovernmental body is obliged to provide to its citizens.
Some countries like the United Kingdom have no entrenched document setting out fundamental rights; in those jurisdictions the constitution is composed of statute, case law and convention. A case named Entick v.Carrington(11) is a constitutional principle deriving from the common law. John Entick's house was searched and ransacked by Sherriff(12) Carrington. Carrington argued that a warrant(13) from a Government minister, the Earl of Halifax was valid authority, even though there was no statutory provision or court order for it.
Inspired by John Locke(14), the court, led by Lord Camden stated that, “The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. By the laws of England, every invasion of private property, be it ever so minute, is a trespass(15)....” The case hence created the fundamental constitutional principle is that the individual can do anything but that which is forbidden by law, while the state may do nothing but that which is authorized by law.
(3) Legislative procedure
Another main function of constitutions may be to describe the procedure by which parliaments may legislate. For instance, special majorities may be required to alter the constitution. In bicameral(16) legislatures, there may be a process laid out for second or third readings of bills before a new law can enter into force.
the Charter of Fundamental Rights of the European Union 《欧盟基本权利宪章》
ratified 经批准的；经追认的；经认可的
the Universal Declaration of Human Rights 《世界人权宣言》
sheriff 郡长
warrant 手令；授权状
trespass 侵害之诉
codified constitution 法典化的宪法
uncodified constitution 非法典化的宪法
intergovernmental body 政府间的机构
bicameral 两院制的
Ⅲ. SUPPLEMENTARY TEXT Ⅲ．补充资料
On September 17, 1787, the Constitution was completed, followed by a speech given by Benjamin Franklin(17), who urged unanimity, although the Convention decided that only nine states were needed to ratify. The Convention submitted the Constitution to the Congress of the Confederation(18).
Article Ⅶ of the proposed constitution stipulated that only nine of the thirteen states would have to ratify for the new government to go into effect(for the participating states). After a year had passed in statebystate ratification battles, on September 13, 1788, the Articles Congress certified that the new Constitution had been ratified. The new government would be inaugurated with eleven of the thirteen. The Articles Congress directed the new government to begin in New York City on the first Wednesday in March, and on March 4, 1789, the government duly began operations.
Antis' fears of personal oppression by Congress would be allayed by Amendments passed under the floor leadership of James Madison in the first session of the first Congress. These first ten Amendments ratified by the states were to become known as the Bill of Rights(19). Objections to a potentially remote federal judiciary would be reconciled with 13 federal courts(11 states, Maine and Kentucky), and three Federal riding circuits out of the Supreme Court: Eastern, Middle and South. Suspicion of a powerful federal executive was answered by Washington's cabinet appointments of once-Anti-Federalists Edmund Jennings Randolph(20) as Attorney General(21) and Thomas Jefferson(22) as Secretary of State(23).
What Constitutional historian Pauline Maier calls a national “dialogue between power and liberty” had begun anew.
Ⅳ. EXERCISES Ⅳ．练习
1. Answer the following questions.
（1）Please give your understanding of the definition of constitution.
（2）What is the difference between codified constitution and uncodified constitution？
（3）Please describe the characteristics of uncodified constitution.
（4）What are the main functions of constitution?
2. Translate the following terms into English.
（1）越权
（2）单一制国家
（3）法典化的宪法
（4）非法典化的宪法
（5）政府间的机构
（6）制约与平衡
3. Translate the following terms into Chinese.
（1）the Charter of Fundamental Rights of the European Union
（2）the Universal Declaration of Human Rights
（3）judicial review
（4）executive branch
（5）legislative branch
（6）judicial branch
4. Match the given terms with the proper explanation.
A. Judicial branch
B. Federalism
C. Executive branch
D. Separation of Powers
E. Judicial Review
F. Legislative branch
（1）It is used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and constituent political units(like states or provinces).
（2）It is a model for the governance of a state, which is ascribed to French Enlightenment political philosopher Baron de Montesquieu.
（3）It is the doctrine under which legislative and executive actions are subject to review by the judiciary.
（4）It is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy.
（5）It is the part of government with the power to pass, amend, and repeal laws.
（6）It is in charge of the court system. There are three different kinds of courts found in the federal court system.
5. Choose the suitable words from the box and fill in the blanks.
Judicial Power Executive Power executive branch Congress judicial review stipulate
The vesting clause in the United States Constitution Article Ⅱ places no limits on the (1), simply stating that, “The (2) shall be vested in a President of the United States of America.” The Supreme Court holds “The (3)” according to Article Ⅲ, and it established the implication of (4) in Marbury v.Madison. The Constitution does not (5) the number of Supreme Court Justices, which is set by (6).
6. Translate the following sentences into Chinese.
（1）The president may be impeached by Congress for treason, bribery, or other high crimes and misdemeanors, but not for political acts.
（2）Article Ⅰ of the Constitution provides for the legislative branch. The duties of the executive branch and the method of electing the president are set forth in Article Ⅱ. The federal judicial system was created by Article Ⅲ.
（3）The drafting and ratification of the Constitution reflected a growing consensus that the federal government needed to be strengthened.
（4）The individual rights guaranteed by the Bill of Rights serve as restrictions on state and federal governments alike.
（5）James Madison and James Wilson once proposed giving a veto power over federal law to a council composed of the president and a “convenient number” of judges.
（6）The problem arises because the Supremacy Clause defines the relationship of federal and state law, not the relationship between the three coequal branches of the federal government.
（7）The federal government is divided into three branches—the executive branch, which enforces the laws; the legislative branch, which makes the laws; and the judicial branch, which interprets the laws.
（8）The Supreme Court was given no express power to review federal legislation. Under the leadership of Chief Justice John Marshall(24), however, the Court found an implied power of review in its responsibility to uphold the Constitution.
（9）The concept of federalism recognizes that society may be best served by a distribution of functions among state governments and the national government on the basis of which government is better equipped to perform these functions.
（10）With the system of checks and balances, no one branch of government can accumulate too much power.
————————————————————
(1) civil service：该术语可以翻译为文职部门，公务员队伍。The term “civil service” has two distinct meanings: (1) A branch of governmental service in which individuals are employed on the basis of professional merit as proven by competitive examinations. (2)The body of employees in any government agency other than the military.
(2) ultra vires：越权，亦作“ultra vires”。这是一个拉丁文术语，其含义是“超越权限”，广义指未经授权而实施行为。Unauthorized; beyond the scope of power allowed or granted by a corporate charter or by law.
(3) constitutionality：合宪性。The quality or state of being constitutional.
(4) 此处的“other two branches of government”是指行政部门和立法部门。
(5) 以英国宪法为例，议会的制定法Northern Ireland Act 1998（《1998年北爱尔兰法》）、Scotland Act 1998（《1998年苏格兰法》）、Government of Wales Act 1998（《1998年威尔士政府法》）、European Communities Act 1972（《1972年欧共体法》）及Human Rights Act 1998（《1998年人权法》）等均为宪法渊源，当然还包括古老的1215年《大宪章》、1628年《权利请书》、1679年《人身保护令法》、1688年《权利法案》及1701年《王位继承法》等。
(6) 比如英国总是在星期四举行大选（always holding the General Election on Thursdays）。
(7) Privy Council：枢密院。In Britain, the principal council of the sovereign, composed of the cabinet ministers and other persons chosen by royal appointment to serve as privy councilors. The functions of the Privy Council are now mostly ceremonial.
(8) unitary state：单一制国家，亦作“(archaically) simple state”。A state that is not made up of territorial divisions that are states themselves.
(9) the Universal Declaration of Human Rights：《世界人权宣言》，是联合国大会于1948年12月10日通过（联合国大会第217号决议，A/RES/217）的一份旨在维护人类基本权利的文献。由于该文件是由联合国大会通过的，《世界人权宣言》并非强制的国际公约。
(10) UN Charter：《联合国宪章》，《联合国宪章》被认为是联合国的基本大法，它既确立了联合国的宗旨、原则和组织机构设置，又规定了成员国的责任、权利和义务，以及处理国际关系、维护世界和平与安全的基本原则和方法。遵守联合国宪章、维护联合国威信是每个成员国不可推卸的责任。
(11) Entick v.Carrington：该案的全称是John ENTICK, (Clerk) v.Nathan CARRINGTON and Three Others。这是一个1765年作出的判决，案例的索引号为：95 ER 807, (1765) 19 St Tr 1030, ［1558—1774］ All ER Rep 41, ［1765］ EWHC KB J98.
(12) sheriff：警长；郡长。A sheriff is in principle a legal official with responsibility for a county. In practice, the specific combination of legal, political, and ceremonial duties of a sheriff varies greatly from country to country.
(13) warrant：手令；授权状。
(14) John Locke：约翰·洛克（1632—1704年）。Widely known as the Father of Liberalism, he was an English philosopher and physician regarded as one of the most influential of Enlightenment thinkers. Considered one of the first of the British empiricists, following the tradition of Francis Bacon, he is equally important to social contract theory. 洛克的原文是：The great end of men's entering into society being the enjoyment of their properties in peace and safety, and the great instrument and means of that being the laws established in that society, the first and fundamental positive law of all commonwealths is the establishing of the legislative power, as the first and fundamental natural law which is to govern even the legislative. Itself is the preservation of the society and(as far as will consist with the public good) of every person in it.对照译文：既然人们参加社会的重大目的是和平地和安全地享受他们的各种财产，而达到这个目的的重大工具和手段是那个社会所制定的法律，因此所有国家最初的和基本的明文法就是关于立法权的建立；正如甚至可以支配立法权本身的最初的和基本的自然法，其目的就是为了保护社会以及（在与公众福利相符的限度内）其中的每一成员。参见洛克的《政府论》（Two Treatises of Government, 1690）下篇第11章《论立法权的范围》（Of the Extent of the Legislative Power）。
(15) trespass：侵害之诉。英格兰中世纪的一种诉讼形式，指因自己的身体、财产、权利、名誉或人际关系被侵害而索赔的诉讼。An unlawful act committed against the person or property of another; especially wrongful entry on another's real property.
(16) bicameral：两院制的。In the government, bicameralism(Latin bi, two + camera, chamber) is the practice of having two legislative or parliamentary chambers. Thus, a bicameral parliament or bicameral legislature is a legislature which consists of two chambers or houses.
(17) Benjamin Franklin：本杰明·富兰克林。著名的政治家，从1757年到1775年，他数次次作为北美殖民地代表到英国谈判。独立战争爆发后，他参加了第二届大陆会议和《独立宣言》的起草工作。1776年，富兰克林出使法国，获得了法国和欧洲人民对北美独立战争的支援。1787年，他积极参加了制定美国宪法的工作。
(18) Congress of the Confederation：邦联议会。独立战争期间，大陆会议于1777年11月通过了《邦联条例》（Articles of Confederation），1778年经各州批准后该条例生效。根据条例，解散了原来的大陆会议，建立了邦联政府，它实际上是一个松散的各州联合体。邦联议会虽是当时美国的最高权力机构，但它只是各州代表的会议，并没有一个主权国家应有的宣战、媾和、签约、发行货币、借债、征兵和征税等权力，它也不是立法机构，它的决议需要征得各州同意；而各州却拥有主权国家所享有的一切权力。
(19) Bill of Rights：《权利法案》。《美国宪法》前十条修正案。
(20) Edmund Jennings Randolph：埃德蒙·詹宁斯·伦道夫。美国律师、 美国独立战争时期和建国初期的政治活动家。他积极参加了制宪运动，在批准联邦宪法和宪法修正案方面做了大量工作。曾于1786—1788年担任弗吉尼亚州州长，是美国历史上第一任司法部长，曾致力于建立完整的司法体系。
(21) Attorney General：（美国）司法部长、总检察长。
(22) Thomas Jefferson：托马斯·杰斐逊。第三任美国总统，是美国独立战争期间的主要领导人之一，1776年，参与起草了美国《独立宣言》。此后，他先后担任了美国第一任国务卿，第二任副总统和第三任总统。他在任期间保护农业，发展民族资本主义工业。从法国手中购买路易斯安那州，使美国领土近乎增加了一倍。他被普遍视为美国历史上最杰出的总统之一。
(23) Secretary of State：（美国）国务卿。
(24) John Marshall：约翰·马歇尔(1755—1835年)，1799年至1800年担任美国众议院议员，1800年至1801年担任美国国务卿，1801年至1835年担任美国联邦最高法院第四任首席大法官。马歇尔是美国联邦最高法院任职时间最长的首席大法官。