The relationship between constitutions and law

Since the constitution validates the exercise of power by governments, two questions arise, namely:

what validates the constitution? and

what is the relationship between government and the constitution?

One of the best brief answers to these questions, at least from the viewpoint of the political tradition which is usually known as liberal democracy, may be found in the words of Tom Paine, the 18th century English radical:

A constitution is not the act of a government, but of a people constituting a government, and a government without a constitution is power without a right … A constitution is a thing antecedent to a government; and a government is only the creature of a constitution.

In short, therefore, the constitution comes before, and validates, the government, rather than the government coming first and then validating the constitution. It follows that, since law is the product of governmental processes (using that phrase loosely for the moment), we can adapt Paine’s words and say that the constitution is a thing antecedent to the law.

One crucial function of any constitution is to identify the person who, or the body which, exercises supreme power within the state. Different constitutions take different views of this matter, with variations in constitutional histories between different states usually providing the explanation for how the matter has been resolved in each case. Some states, such as the United States of America, place this ultimate power in the Supreme Court. On the other hand, perhaps the most important doctrine of the British Constitution is that this ultimate power lies with Parliament. At this stage, therefore, it is appropriate to turn our attention to the underlying doctrines of the British Constitution generally.