(1) Content, Form & Structure of Constitutions

Question 1

What are the three core issues constitutions typically deal with?

Answer 1

1. Establishment of the branches of government
2. Delineation of their powers
3. Provision of individual rights

Question 2

What may affect the shaping of a particular constitution and lead to differences between them?

Answer 2

Each constitution is shaped, in part, by the circumstances which gave rise to the drafting and implementation of a particular instrument, or to the emergence and development of a particular rule or practice of governance.

Question 3

What examples are there of constitutions being shaped by the circumstances in which they were drafted?

Answer 3

For instance, the German Constitution was drawn up in the aftermath of WW2 and so is ‘animated by the resolve to serve world peace as an equal partner in a united Europe’.

Question 4

How does the specific development of the UK ‘Constitution’ differ from that of other countries?

Answer 4

Many of the fundamental principles of the UK Constitution have been developed and solidified over time, rather than being declared by a written instrument. The doctrine of Parliamentary sovereignty, for instance, grew out of the Glorious Revolution of 1688, The Bill of Rights 1689 and Act of Settlement 1701.

Question 5

How is the development of fundamental principles over time, as in the case of Parliamentary Sovereignty in the UK, supported/acknowledged by King?

Answer 5

King said - ‘constitutions … are never – repeat, never – written down in their entirety’ - thus acknowledging the potential for them to develop over time.

Question 6

Given the different origins of various constitutions, how should they be viewed or examined?

Answer 6

All constitutions are ‘autobiographical and idiosyncratic’ and as such should be examined in the light of the circumstances which gave rise to them, as well as the more contemporary situations in which they apply.

Question 7

What characteristics of constitutions generally, broadly speaking, are common across constitutions of all countries/states regardless of origins?

Answer 7

While the definitions of a constitution and the content and specificity of them is largely uncertain, and certainly varied, the three key functions a constitution should fulfil;
1. Establishment of the branches of government
2. Delineation of their powers
3. Provision of individual rights
Can still be held with a degree of certainty.

Question 8

How do constitutions establish the central structure of government?

Answer 8

Constitutions will make provisions for the various structures of government that should exist within a state. The tripartite structure of government for instance can be seen in the explicit references made to it in both the USA and German Constitutions. A constitution may also specify that state government should adhere to a certain division of functions between national and regional levels – this may be done through some requirement that a state adopt a federalist or unitary structure.

Question 9

How do constitutions define and delimit the powers exercisable by government?

Answer 9

The constitution will govern the relationship between the three branches of state - the separation of powers doctrine simultaneously empowers and restricts the authority of the government institutions.

Question 10

How do different constitutions differ in the way they define and delimit the powers exercisable by government?

Answer 10

The degree of scrutinization and intervention between the different branches of government may vary state-state. The US Supreme Court, for instance, is permitted to strike down legislation in contradiction to the constitution, UK Courts do not have this right to invalidate Primary Legislation.

Question 11

How do constitutions define the relationship between the individual and the state?

Answer 11

Constitutions provide for an independent judicial branch to resolve disputes of law between various parties (including the individual v state). Also, constitutions often provide a list of legal, constitutional rights inherent in the individual which the state must not interfere with – save instances in which there is interference by law on limited, specified grounds - such lists are generally known as ‘Bills of Rights’.

Question 12

What is the most famous example of a Bill of Rights in a constitution?

Answer 12

The American Bill of Rights – the first ten amendments of the USA Constitution.

Question 13

What are the two typical types/differing forms of constitution?

Answer 13

The two typical types of constitution are codified and uncodified constitutions. A codified constitution will contain the vast majority of a state’s constitutional rules in one written document. An uncodified constitution – such as in the UK – may not have a specific document but nevertheless contains written down constitutional rules in some sense – perhaps as legislative measures or codes of practice, etc.

Question 14

How did Anthony King downplay the differences between codified and unmodified constitutions?

Answer 14

Anthony King addressed the issue, saying – ‘… the fact that Britain lacks a capital-C Constitution is far less important than is often made out. On the one hand, large chunks of Britain’s small-c constitution are written down. On the other, large and important chunks of other countries’ capital-C Constitutions are not written down.’

Question 15

What examples are there of uncodified constitutions?

Answer 15

The vast majority of the world’s constitutions are codified, only Israel, New Zealand and the UK among modern democracies have uncodified ones.

Question 16

What potential advantage do codified constitutions have over uncodified ones?

Answer 16

A seeming advantage of codified constitutions is certainty in regards to the source of a country’s constitutional rules. All of the rules in a codified constitution can be found relatively easily – though there may still be linguistical or conceptual uncertainty. By contrast, those seeking to find explicit reference to the constitutional rules in a country with an uncodified constitution would have a far more difficult search

Question 17

How did Dicey highlight the potential advantage of codified constitutions?

Answer 17

He recognised the potential lack of certainty created by uncodified constitutions saying - ‘He may search the statute-book from beginning to end, but he will find no enactment which purports to contain the articles of the constitution; he will not possess any test by which to discriminate laws which are constitutional from ordinary enactments.’

Question 18

What is the nature of the UK’s uncodified constitution?

Answer 18

The UK Constitution cannot be found in one single document, but rather in a range of differing legal and political sources. Cumulatively, the content of the constitution may be said to be provided by; statute, convention, judicial precedent and international treaty obligations. This range of legal and political authorities provide a ‘set of rule and common understandings’ that underpin our system of government.

Question 19

According to King can the UK be said to have a constitution?

Answer 19

According to King’s definition the lack of codification should pose no barrier to the assertion that the UK does indeed have a constitution of sorts - instead there is a ‘set of rules and common understandings’ derived from various political and legal sources.

Question 20

What other substantive characteristics may constitutions have?

Answer 20

Codified constitutions may also be entrenched – meaning they’re protected from amendment by way of the ordinary legislative procedure. (This represents another difference between codified and uncodified constitutions).

Question 21

Why are constitutions entrenched?

Answer 21

Constitutions are often entrenched, this is because as well as being the source of governmental power, constitutions also act as a restriction to the exercise of governmental power. A constitution seeks to protect certain fixed principles so fundamental that they should be placed out of the reach of temporary majorities.

Question 22

What are the advantages and disadvantages typically associated with entrenchment?

Answer 22

Entrenchment – that is protection from the ordinary legislative process – may provide certainty and stability to the system of government, however, it may also allow for the reflection of outdated political values and aspirations in contemporary society.

Question 23

How are the potential disadvantages of an entrenched constitution reduced/managed?

Answer 23

Constitutions generally provide special mechanisms, outside of the ordinary legislative procedure for their own amendment - thus preventing the outdated political values being maintained in contemporary society.

Question 24

What is an example of a special legislative procedure allowing for the alteration of an otherwise entrenched constitution?

Answer 24

In the US this mechanism takes the shape of a 2/3 majority requirement of Congress endorsing an amendment to the constitution.

Question 25

Is the UK Constitution entrenched?

Answer 25

In the UK Constitution, however, entrenchment is impossible because of the doctrine of Parliamentary sovereignty. While this may lead to a lack of permanence in the UK’s constitutional arrangements, as identified by Ridley, it allows a greater degree of flexibility in the UK’s system of government – reducing the chances of being bound by old and outdated ideas/rules/thinking.

Question 26

Beyond the codified/uncodified or entrenched/flexible characteristics of constitutions what else impacts their operation in practice/practical qualities?

Answer 26

Even in states with codified constitutions, the written words of the document itself provide only part of the picture as to how the constitution operates and is applied in practice. Just as important as the specific wording is the judicial interpretation of how the constitution operates and political practice.

Question 27

How did Munro recognise the importance of judicial interpretation in relation to constitutions?

Answer 27

Munro acknowledges such a position regarding the constitution as no more than a framework which will be filled out when ‘overlaid with judicial interpretation and political practices.

Question 28

What example is there of the impact of judicial interpretation on the operation of a constitution?

Answer 28

An example of the impact of judicial interpretation upon how constitutional rules will take effect can be seen in the US doctrine of political questions which holds that certain issues are most appropriately resolved by the elected branches of government – President and Congress.

Question 29

What is an example of a non-legal rule or convention operating in the UK with implications for the effects of the constitution in practice?

Answer 29

Constitutional practices like the requirement that Ministers of the Crown in the UK should present themselves before Parliament to give an account to Parliament also provides an insight into the functioning of a constitution – in this instance this requirement forms part of the broader doctrine of Ministerial Responsibility – one of the many conventions or non-legal rules of the UK Constitution.