consequences follow) establishment provisions are generally unconditional.
They just establish the institution in question. For this reason they are typically
brief, being the one liner of constitutional law.
Composition
In bare form an establishment provision establishes an institution. But for an
institution to function it needs to have a composition. This can be on two
levels.
First, an institution may be composed of other institutions. To illustrate section
1 of Article I of the United States Constitution provides that the “Congress of
the United States” shall consist of two institutions namely “a Senate and [a]
House of Representatives”. (In truth, it is also constituted by the President
because the President is given a power to veto legislation in section 7 of
Article 1.)
Second, an institution ultimately needs human
members. Hence composition
provisions need to identify these members. In doing so they will specify such
things as their qualifications and disqualifications, method of appointment,
terms of service, and the means by which their service is terminated. To
illustrate, section 2 of Article I United States Constitution
makes provisions
concerning members of the House of Representatives. The relevant part of
section 2 provides
as follows: “The House of Representatives shall be
composed of Members chosen every second Year by the People of the
several States, and the Electors in each State shall have the Qualifications
requisite for Electors of the most numerous Branch of the State Legislature”.
Powers
Powers of legislatures, courts and executive government are defined by two
sorts of provisions. Some provisions confer power –
these are labelled
authorisations. Some provisions deny or take away power – these are labelled
prohibitions.
Authorisations
In the simple case an authorisation of power is made by a provision that
simply and directly confers legislative power. For example s52 of the
Australian Constitution provides that "The Parliament shall have power to
make laws" on some specified topics. Sometimes, however, the provision is
not simple or direct. For example s71 of the Australian Constitution refers to
courts which "the Parliament creates”. Section 71 confers power to legislate to
create courts.
In the United States Constitution legislative power is conferred by a two
stranded operation in section 8 of Article I. First, it confer powers on the
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