Public | Constitutions
Classification: Introduction
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Introduction
- KC Wheare:
.. 'constitution' is commonly... used to describe the whole system of government of a country, the collection of rules which establish and regulate or govern the government...
(Modern Constitutions (1966))
Types of Constitution
Written and Unwritten
- most constitutions are enacted or codified, either in a single document or series of documents
- following the models of the US or French constitutions
- UK constitution is considered to be unwritten
- despite key documents such as the Human Rights Act 1998, there is no systematic code
- only other states not to have entirely written constitutions are New Zealand and Israel
Rigid and Flexible
- ease with which a constitution can be altered is a factor
- classed as rigid if they require a special process before they can be changed, usually more onerous and so restricts the ability to change a constitution compared to other laws
- amendments to the Bill of Rights in the US Constitution requires a two thirds majority of both Houses of Congress and ratification by three quarters of State legislatures
- in Republic of Ireland amendments must be passed by the legislature and then approved by a majority in a referendum
- UK constitution is described as flexible
- it requires only the normal procedure to pass on Act of Parliament, essentially a majority in both the Houses, to change any written law elements
- UK constitution also includes non legal rules which can be changed without any formal procedure
Supreme and Subordinate
- supreme constitution is not subject to any external superior force
- subordinate constitution is drafted and introduced in a country by an external sovereign power, so could be amended by that external power
- core of the distinction is whether the constitution provides the highest form of law in the land UK constitution is viewed as supreme
- constitutional impact of UK membership of the European Union (EU) is debated
- can be argued that UK sovereignty is limited by EU treaties but it can be seen this limitation is voluntary, under an Act of Parliament - European Communities Act 1972 and so does not alter supremacy
Federal and Unitary
- internal division of power within a state is an important aspect
- unitary state only the central government has primary law making powers and powers may be delegated to lower tiers
- federal state both central government and individual territories have primary powers
- despite devolution, UK remains a unitary state, with Parliament having the ultimate law making power
Republican and Monarchical
- republics have no monarchy and there will normally be a President, who is a directly elected Head of State, eg US
- some republics the President can be restricted to a more formal role of a figurehead, eg Italy or Germany
- UK remains monarchical, with the Queen as Head of State andcontinues to hold formal powers under the royal prerogative
Legitimacy
- Thomas Paine:
.. a government without a constitution is a government without right...
(Rights of Man (1791)) - Beetham:
.. three conditions are required: its conformity to established rules; the justifiability of the rules by reference to shared beliefs; the express consent of the subordinate, or of the most significant among them, to the particular relations of power...
(The Legitimation of Power (1991))
Legal Exercise of Powers
- constitutions allocate and limit powers
- written constitution provides a higher law in itself
- may provide courts the power to strike down legislation, which can make laws both illegal and unconstitutional
- US Supreme Court has such power even though there is no explicit provision in constitution (Marbury v Madison (1803))
- in UK, Parliamentary Supremacy and common law rules govern the exercise of power
- doctrine of Parliamentary Supremacy limits the ability to challenge legislation in the courts, so laws may be unconstitutional but not illegal
Shared Beliefs
- many written constitutions result from revolution or key historical event so inherently try to embody a set of representative ideals
- often contain a set of fundamental rights, eg Bill of Rights in US constitution
- in UKHuman Rights Act 1998 sets out number of individual freedoms
Consent
- constitutions often initially approved by democratic means which lays foundation for continued acceptance
- usually name the people as the ultimate source of authority