Comparing the US and UK constitutions Flashcards
What is a constitution?
The framework within which government is conducted - giving the rules that establish the relationship between the state and the individual
What does the constitution establish?
The duties, powers and functions of the various institutions of government
What are both constitutions a product of?
The culture and societies that shaped them
How did the two constitutions emerge differently?
UK emerged by evolution, US emerged by revolution
How do the two constitutions differ in terms of codification?
The US is codified, the UK is uncodified
How are they similar in terms of the sources that make them up?
They are both made up of multiple sources, as the US constitution is supplemented by the interpretative amendments made by the SC
What do both constitutions contain?
Conventions
Define conventions
An unwritten understanding about how something in the constitution could be done. They are not legally enforceable but are universally applied. They are therefore extremely important in how political systems operate
Give an example of a convention in the US
The constitution does not refer to a cabinet directly, but every president has held one
Give an example of a convention in the UK
The expectation that the monarch will always give royal assent to Acts of Parliament
How are they different in terms of status?
US is entrenched in higher law and is rarely amended, parliament is always sovereign in the UK and so the constitution does not hold any kind of special status
How is the amendment process different?
In the US, the amendment process is formal, difficult and infrequent, while in the UK a simple Act of Parliament changes the constitution
How do they differ in terms of who they invest power in?
The UK is a constitutional monarchy with an unelected head of state whose role is ceremonial rather than political. The US is a republic with an elected head of state who is politically active and partisan
How many branches of government do they both provide?
3
How do they differ in terms of the separation of powers?
They are separate in the US and partially fused in the UK
What type of democracy have both constitutions created?
A representative democracy
What type of legislature do both constitutions describe?
Bicameral
What judicial body do both provide for?
A SC
What type of government do both allow for?
Subnational government
What type of elections do both allow for?
Fixed term - although this is at the discression of parliament in the UK
How are the bicameral legislatures different?
Both houses of congress have equal status whereas the commons has primacy in the UK
How is the position of PM easier than the position of president?
The PM will usually be in control of a commons majority, allowing the executive to dominate the legislative programme. In the US, the president must propose legislation to congress and is far less confident this will be acted upon, especially in times of divided government
How do they legislatures differ in terms of democratic legitimacy?
Both chambers are elected in the US but the lords is unelected in the UK
What does the lack of an elected second chamber make the UK constitution?
A more traditional one
How do the two systems differ in terms of checks and balances?
The senate and congress can impose checks upon each other but the lords cannot robustly do this for the commons. The UK has few formal checks and balances, with the main check on the PM being opposition within their own party, as this could impact their control of a commons majority
Give an example of a PM who suffered due to opposition from within the party?
May, especially over Brexit
List the similarities between the president and PM
- Head of government
- Initiate legislation
- Able to initiate military action without consulting the legislature
- Both use patronage to reward support
- Cabinet members will be generally responsible for a specific government department
What were checks and balances designed to do in the US?
Limit the power of government to protect the rights and freedoms of citizens
Explain why the executive is much more dominant in the UK than the US?
- In the US, members of the executive cannot serve in the legislature and the president cannot prematurely end a congress and call elections
- In the UK, the PM draws up a legislative programme which they can be sure will pass due to their control of a commons majority, with the house of lords lacking the power to oppose the executive dominated commons. This leads to a concentration of power in the executive, which is what the US constitution was purpose designed to avoid
Explain how the cabinets are different
- In the UK, the PM is the first among equals in a system of collective government. However, modern PMs have far more power than this, chairing the cabinet and selecting ministers. Cabinet ministers will often be rivals to the PM
- In the USA, the president does not share executive authority with anyone. The president is ultimately predominant rather than preeminent. Unlike in the UK, cabinet officials do not play a major role in policy making, nor are they rivals to the president
Give an example of a cabinet minister being a rival to the PM?
Johnson was May’s foreign secretary and would eventually replace her
When did the respective SC first meet?
1790 in the US and 2009 in the UK
What were both SCs designed to create?
An independent judiciary separate from the other branches of government
What can both SCs use judicial review to do?
Examine the actions of the executive and rule against government actions
What is the difference in how judicial review against the government turns out?
The US SC can declare unconstitutionality but the UK SC can only declare ultra vires
What do both SC have the power to do in terms of the constitution?
Interpret it and make judgements as they see fit
Describe how both countries ensure high quality justices
They have detailed systems of scrutiny for potential justices and all justices are experienced legal professionals who enjoy security of tenure
What does an ultra vires declaration do?
Put pressure on government to amend the law
How do interpretative amendments compare?
They are less significant in the UK as the constitution is unentrenched, with interpretative amendments mainly focusing on the HRA
Why is a declaration of unconstitutionality more powerful than an ultra vires declaration?
Because a decision of the US SC must be accepted, there is no such power in the UK and the government could theoretically ignore an ultra vires declaration - even though it is extremely unlikely to do this in practise
Why is it easier to bypass the UK SC?
If it declares incompatibility, the government can simply pass a new law to amend this. However, if the SC declares something unconstitutional in the US, congress will need to push through a constitutional amendment to get around this
Why is the position of the US SC more stable?
Because it derives its authority from article III of the constitution, whereas the UK SC was created by an Act of Parliament so could be abolished by another
How is the separation of powers uneven in the US?
Because the federal government holds more power than the state government
What has happened to power in the UK since 1998?
It has been devolved to the regions
What identical purpose to devolution and federalism both serve?
To give power and legitimacy to local communities and give voice to regional pressures by bringing government closer to the people in order to stop people feeling alienated from the national government
What do devolution and federalism allow to be reflected within the constitution?
Local political traditions and trends
Give an example of how devolution has reflected local politics
The more left leaning Scotland has higher taxes for its wealthiest citizens, higher spending on public services and free university tuition fees
Give an example of how federalism has reflected local politics
The more conservative states in the south have stricter abortion laws
What problem have both the devolved assemblies and state legislatures faced?
They have found their autonomy challenged by central government
Give an example of a devolved institution having its power encroached upon by Westminster
Scottish parliament is not able to hold a referendum on Scottish independence without Westminster’s consent and was rebuffed in its attempts to get involved in Brexit negotiations
How have the states been encroached upon by the federal government?
They have found their policies challenged and overruled by federal laws like when Obergefell vs Hodges enforced same sex marriage in the states
Where was the division between federal and state competences incorporated in the US constitution?
The 10th amendment
What is the difference between federalism and devolution in terms of sovereignty?
The state and federal governments are equal whereas as sovereignty belongs solely to Westminster in the UK
How do federalism and devolution differ in terms of how much area they cover?
Federalism covers the whole US but devolution leaves out England
Why is devolution less secure than federalism?
The UK has traditionally been a unitary state, with devolution a recent development creating by legislation that merely delegates sovereignty out to the devolved regions, rather than it being permanently transferred
Why does federalism do a better job of protecting local interests from central government?
Because the devolved assemblies are subservient whereas the state legislatures are equal
Why can parliamentary sovereignty not be used to reverse devolution?
Because this would be practically very difficult, as it would be seen as undemocratic
List the similarities between federalism and devolution
- The states rely on federal funding to supplement their budget, and the four nations that make up the UK are also reliant upon funding from Westminster
- Both central governments maintain a degree of dominance
- The states and devolved regions have notable differences in legislation compared to other parts of the country
List the differences between federalism and devolution
- The states have more autonomy over legislation and criminal punishment than the devolved regions
- State sovereignty is entrenched in the constitution but in the UK only parliament is sovereign, meaning the devolved institutions rely upon parliament for their existence
- US states often successfully challenge the federal government in the SC but devolved bodies have limited recourse to appeal in the UK SC
