In a very real sense, every state has a constitution, if by a constitution is meant, in the words of Lord Bryce, "the aggregate of the laws and customs through and under which the public life of a State goes on..." (Studies I 1901). In this sense, every state may be said to have a constitution.
There is, however, a tradition in the history of political thought which describes a constitution in terms of a higher law which is an expression of the will of the people. In this view, the state is created by and is organized by the people in the writing and adoption of a constitution, and government derives its authority, institutions, and procedures from this constitution.
That is why, Thomas Paine maintained that any government which violates the constitution exercises "power without right." If the distinction between constitution and government is ignored, then, Paine argued, there being no check upon the will of the government, it follows that the state is a despotism. A true, written constitution, he held, was always antecedent to the actual government, for, in his words, "The constitution is not the act of its government, but of the people constituting a government" (Elster & Slagstad 1988).
To understand the nature of consti ...