1.1.5 Orientation of new constitutions

In this way—and also because of changing understandings and expectations of the functions of the state, which now include public welfare and policies for a just society, the promotion rather than just the protection of rights, honest administration, and a sustainable environment—the scope of the contemporary constitution goes well beyond its older counterpart. That constitution dealt principally with the structures and powers of the state (and often assumed rather than provided the method for electing the legislature or the government). The constitution did not specify policies of the state but left them to be developed by the political process within the framework of the constitution. With the rise of the middle classes in the nineteenth century, some civil rights of citizens (including property) were incorporated in the framework for policy and lawmaking, but for a long time there were no serious restrictions on state power.

With the increase in the functions, powers, and duties of the state, the constitution began to intrude on society, to try to change it, to assist disadvantaged citizens or communities, to take responsibility for education, health, the economy, and other matters that impinge deeply on society. India was one of the first countries to see the constitution as a means of transformation of social, political, and economic relations. This development has been criticized by some, for two reasons. They consider that the proper function of a constitution is to define state institutions and limit their functions. And they say that the impossibility of achieving most constitutional values and aspirations discredits and delegitimizes the constitution. This is a statement—often driven by the ideology of the commentator—that is hard to assess.

In many countries with great poverty, a constitution without the commitment to eradicate poverty and ensure social justice would enjoy little legitimacy from the mass of the people. There are also other dangers in a constitution intended to transform society. It raises high expectations, which if disappointed also lead to the loss of legitimacy. A constitution that seeks to transform social and economic relations will almost certainly be resisted by the privileged and the well-off, who normally have enough power and skills to undermine the constitution.