A constitution
has been defined as a body of rules established to regulate the system of
government within a state.[1] The
reason for drafting a codified constitution is usually associated with the time
in which a particular State is formed or associated with a major change that
has taken place at national level. For instance, Italy drew up a new
constitution in 1948 and Germany did the same in 1949 following their defeat in
Word War II and also to mark the destruction of their previous regimes. The United
States drafted a codified constitution upon independence from Britain in 1787,
and India drafted a constitution after independence from Britain, in 1950.[2]
In Britain, the
constitution remains uncodified, and Bogdanor argues that the reasons for this
are both historical and conceptual.[3] The
former reflects the fact that British history has remained continuous since
1689, and there has not been an obvious break which would have called for
drafting a codified constitution. As such, Britain has lacked a
"constitutional moment".[4] However,
that is not to say that there have not been important historical events, which
influenced the way Britain is governed. There have been many such events: The
Great Reform Act 1832, the Acts of the Union with Scotland and Ireland in 1707
and 1801 respectively, and the Anglo-Irish Treaty of 1921, to name a few. [5] Conceptually,
Bogdanor argues, the reason for not having a codified constitution in Britain
is because the basis of the government is the sovereignty of Parliament; this
concept seems incompatible with a codified constitution simply because a
codified constitution would limit that sovereignty.[6]
Codified, Uncodified, Flexible and Inflexible
Constitutions
That difference
between a codified and uncodified constitution is also reflected on the fact
that what is written in the constitutional document becomes a superior law that
can only be judged by a Constitutional Court. This brings us to another
classification of constitutions as "flexible", such as the British
constitution that can be amended with ease, and "inflexible", such as
the US constitution, which contains entrenchments that make it very difficult
to make constitutional changes. [7] In
constitutions of the inflexible type, it is the constitution, not the
legislature that is supreme. Arguably, codified constitutions provide
mechanisms to effect constitutional changes. However, making those changes is
not necessarily easy. In the Canadian Constitution of 1982, the whole of Part V
of the constitutional document lays down the procedures for constitutional
amendment, and as a consequence, the constitution is criticised for being at a
standstill.[8]
Monarchical
and Republican Constitutions
Continuing the
comparison between the British and American constitutions, a further
constitutional classification is possible: monarchical and republican. In the
former, the monarch is the head of state, although in Britain"s case, the
powers of the monarch are limited, and the Queen reigns in accordance with the
constitution. The political power lies with the Prime Minister. Accordingly, a
constitutional monarchy is a limited monarchy. A republican constitution on the
other hand, provides for the election of a President who is the head of state
and the head of the government. [9]
Arguably, the
modern concept of a constitution has been attributed to the American
Constitution of 1787, which includes a Bill of Rights, and also to the French
Declaration of Rights of 1789. Both constitutions were created as a consequence
of liberation, from colonialism and the monarchy respectively, in order to
promote The Republic, and they had behind them violent revolutions. No longer
was a constitution a body of law, institutions and customs forming the State,
but it contained the concept of republicanism: the people constituting a State.[10]
Presidential
and Parliamentary Constitutions
By the fact that
a republican constitution places the power in the hands of the President, while
the British constitution places the power on Parliament, it would be possible
to make a further classification of a constitution as "presidential",
or "parliamentary". This affects the way the government operates. In
the case of the former, the President will be the head of state and the head of
the executive branch of the government but not the head of the legislature and
not accountable to it. Furthermore, the President is not a member of the House
of Representatives or the Senate. By contrast, in a Parliamentary constitution,
the head of the executive branch of the government is the Prime Minister, who
will also be the head of the executive, and also a member of the legislative
branch of the government and accountable to it.[11]
Federal
and Unitary Constitutions
In a federal
system such as the one in the US, it can also be said that the constitution is
a "federal" constitution, instead of a "unitary" one. In
the former, apart from a central government, there is also government at state
level, with legislative competence under the constitutional arrangements. This
is the case not just in the US but also in Australia, Canada and South Africa.
On the other hand, Britain has a unitary constitution and it is centrally
governed. However, this point may now be challenged because due to devolution
powers to Scotland, Wales and Northern Ireland, perhaps there is an incipient
federal aspect to the British constitution.[12]
Political
and Legal Constitutions
A further
constitutional classification is a "political" and a
"legal" constitution. The former is associated with holding to
account those who hold political power, because it advocates that the making of
laws is the exclusive domain of Parliament, and only when Parliament
legislates, does the law become legitimatised.[13] Behind
a political constitution such as the British constitution is the concept of
"majoritarianism", that is, that an elected majority should make the
decisions affecting the voters, rather than leaving those decisions to the
courts.[14] In
contrast, a legal constitution such as the American one, empowers the courts,
in particular the Constitutional Court to establish the limits of government
power.[15]
Advocates of a
political constitution such as Griffith and Tomkins argue that politics is the
best way to exert government control because entrusting government
accountability to the judiciary is neither democratic nor effective, due to the
fact that judges do not have the democratic legitimacy of an elected government.[16] As
such, a political constitution is the living representation of the politics
that create it.[17] Perhaps
an important difference between a political and a legal constitution is the
weight given to the latter. A political constitution is flexible and changeable
while a legal constitution, such as the American Constitution, has the status
of a civil religion or scripture,[18] the
constitutional document is held in high esteem and the Supreme Court has a very
high status within the country as the "guardian" of the Constitution.[19]
An example of
constitutional zeal is seen in the "Tea Party", which advocates
carrying a copy of the constitution at all times. Furthermore, literal
constitutional interpretation by the Supreme Court has helped to perpetuate the
second amendment which allocates a right "to keep and bear arms",
interpreted by the more liberal as applying only to a "well regulated
militia" but interpreted by the Supreme Court in District
of Columbia v Heller [20] as
allowing the citizens to keep and bear arms regardless of whether certain
states had banned weapons based on public safety.[21]
Arguably, the
British political constitution based on the sovereignty of Parliament has
changed through the enactment of the European Communities Act 1972 (ECA) which
incorporated the European Union (EU) Treaties into the British constitution,
allowing also for the primacy of EU law.[22] A
further constitutional change was the incorporation of the European Convention
on Human Rights into national law by the enactment of the Human Rights Act 1998
(HRA), in order to protect fundamental rights which were not considered to be
protected by common law in a sufficient manner or to have proper judicial
articulation.[23]
Critics may argue
that this is a sign that the British political constitution is beginning to
show tendencies towards becoming a legal constitution, and that both the ECA
and the HRA have created entrenchments. However, it could also be argued that
this is merely the effect of Britain being part of a global economy, and that
because it remains uncodified, the British constitution remains flexible, and
able to change with the times.[24]
Conclusion
In conclusion,
whether a constitution is codified or uncodified, flexible or inflexible,
presidential or monarchical, republican or parliamentary, political or legal,
the one thing they have in common is that all constitutions are unique.
Parpworth states, quoting Finer, that the reason for this uniqueness is that
all constitutions contain autobiographical elements, and they are therefore
idiosyncratic. Furthermore, they are based on different historical contexts
that have generated different preoccupations, and therefore different
priorities. [25]
Despite that, it
can be argued that there is a general level that should be upheld in every
constitution regardless of how it is classified: a democratic basis, protection
against the abuse of power, promotion of the separation of powers,
implementation of the rule of law and a proper system of checks and balances to
effect government control. Constitutional maintenance should occur through
active constitutional surveillance and assessment. In that sense, a political
and flexible uncodified constitution has a better chance to do so, and to
develop organically according to the needs of the times.[26] However,
each constitution should be able to operate within its own core of custom,
convention, case law and compromise.[27]
BIBLIOGRAPHY
Bogdanor V, The
New British Constitution (Hart 2009)
Bogdanor V,
"Imprisoned by a Doctrine: The Modern Defence of Parliamentary
Sovereignty" (2012) 32(1) Oxford Journal of Legal Studies, 179-195
Grey T C,
"The Constitution as a Scripture" (1984) 37(1) Stanford Law Review, 1
Jones B C,
"Preliminary warnings on "constitutional" idolatry" (2015)
Jan, Public Law, 74-92
Le Sueur A,
Sunkin M, Murkens J, Public Law: Text, Cases and Materials (2nd
edn, OUP 2013)
Parpworth N, Constitutional
and Administrative Law (5th edn, OUP, 2008)
Stevenson S,
"The Supreme Court"s Renewed Interest in Autochthonous
Constitutionalism"(2015) July, Public Law, 394-402
Tomkins A, Our
Republican Constitution (Hart, 2005)
Tomkins A, Public
Law (1st edn, OUP 2013)
CASES
District of Columbia v Heller 554
U.S. 570 (2008)
LEGISLATION AND TREATIES
Act of the Union
with Scotland 1707
Act of the Union
with Ireland 1801
European
Communities Act 1972
European
Convention on Human Rights 1950
Great Reform Act
1832
Human Rights Act
1998
Anglo-Irish
Treaty 1921
FOOTNOTES
[1] Neil
Parpworth, Constitutional and Administrative Law (5th
edn, OUP, 2008) 3
[2] Vernon
Bogdanor, The New British Constitution (Hart 2009) 8
-14
[3] Ibid
[4] Ibid
[5] Ibid,
12
[6] Ibid,
13
[7] Parpworth
(n1) 6, 7
[8] Ibid,
6
[9] Ibid,
11
[10] Brian
Christopher Jones, Preliminary warnings on
"constitutional" idolatry (2015) Jan, Public Law,
74-92
[11]Parpworth
(n1) 8
[12] Ibid
[13] Andrew
Le Sueur, Maurice Sunkin, Jo Murkens, Public Law: Text, Cases and Materials (2nd
edn, OUP 2013) 41
[14] Ibid,
42
[15] Ibid,
44
[16] Adam
Tomkins, Our
Republican Constitution (Hart, 2005) 3
[17] Adam
Tomkins, Public
Law (1st edn, OUP 2013) 3
[18] T
C Grey, The
Constitution as a Scripture (1984) 37(1) Stanford Law Review,
1
[19] Jones
(n9) 79
[20] 554
U.S. 570 (2008)
[21] Jones
(n9) 86
[22] Vernon
Bogdanor, Imprisoned by a Doctrine: The Modern Defence of
Parliamentary Sovereignty (2012) 32(1) Oxford Journal of Legal
Studies, 179-195
[23] Scott
Stevenson, The Supreme Court"s Renewed Interest in Autochthonous
Constitutionalism (2015) July, Public Law, 394-402
[24] Ibid,
401
[25] Parpworth
(n1) 9
[26] Jones
(n9) 89
[27] Ibid
SOURCE
LAW TEACHER
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