Friday essays Flashcards
“Uncodified constitutions are preferable to codified constitutions.”
“Codified constitutions are preferable to uncodified constitutions.”
Uk does not have a codified constitution, instead it has an uncodifided one. In the Uk what counts as a law it what develops in practice. Unwritten aspects of the UK constitution includes royal sanctions, treaties, common law, works of authority and conventions held by parliament – such as the vote of no confidence. The UK’s uncodified constitution can be seen as a risky endavour as citizens rights could be manipulated at an easier rate within this system, however there are direct advantages to uncodified contitutions within the uk. One of these is the accountability of the government. The government is subject to being dissolved conventions such as the vote of no confidence allow the parliament to mandate the government, as by convention they must resign after losing a vote of no confidence introduced by the opposition. In written constitutions, such as the German impachement process, the power is given to judges within the federal constitutional court who are not elected officials – therefore impairing the democratic process. Therefore by entrusting the process of regulating and monitoring the government to elected officials ensures democratic legitimacy.
However there are threats to the UK’s democratic system due to the unwritten constitution. Due to the absence of any supreme law, the constitution is made up of numerous provisions scattered over a diverse collection of legislation. This make the constitution less formal, transparent and accessible to politicians and the public. This informality opens the constitution up to multiple interpretations, and somewhat allows people to interpret as suits them. For example, the supreme court – which holds no power over the Uk parliament due to sovereignty – collectively ruled that Boris Johnsons decision to suspend parliament in 2019 was unlawful, however most importantly this showed fundamental differences between the interpretation of the constitution, with Johnson saying he “strongly disagreed” with judicial interpretation. Ultimately, it was found that parliament was never legally porouged. Furthermore this shows that judgment can still ultimately come down to court officials, however removal of power is still in the hands of elected officials. Furthermore, due to parliamentary soverignty there is nothing to stop a majority executive from amending legislation to fit their interpretation.
Ultimately, some view britains uncodified constitution as inadequate. Many refer to the EU Referudum and Brexit as prevalent shortcoming of the uncodified constitution, as a subject as deeply impactful as EU membership can be determined on the basis of a referendum which the leave campaign won by only 4%. Many argue that a written constitution could outline clear and fundamental requirements that must be met to make such impactful policy changes. Furthermore many argue that the UK’s system of parliamentary sovereignty is inherently unstable as if a government gains majority power, such as the current Conservative government, then parliamentary sovereignty essentially become government sovereignty, in which a government can change and amend legislation at will due to the lack of a codified constitution limiting them. For example, in the United States, a super-majority in both houses is require to amend the constitution which essentially make cross-party support a necessity, whereas due to the lack of a constitution the UK government only requires a simple-majority to change even the most fundamental laws. Furthermore only a codified constitution could formally outline and protect human rights, whereas an uncodified constitution allows fundamental rights to be change easily. For example, many view the new The Police, Crime, Sentencing and Courts Bill as a removal of citizens rights to protest.
While having a codified constitution is preferable for many Americans, it has encourtered several issues. Most prominently, following numerous and school shootings, including the Majory Stoneman Douglas High school in Parkland which saw 17 people killed, several politcians and citizens plead for increased gun regulation. However, changing gun laws is difficult in the United States, much more than the United Kingdom which immdeiatley banned many forms of guns following the Dunblane Primary school shooting. This is because of the United States Constitution’s second amendment clearly and formally protects the right to bear arms for citizens. This means that an issue as basic as protecting human life become political, a limitation of codified constitutions. Furthermore, the constitution is often used by organisations such as the NRA (National Rifle Association) as a defence against repealing gun laws, as they argue it would be unconstitutional and limiting the rights of the people – therefore it could very much be argued that the constitution also creates a cultural apprehension towards change as they take pride in the doctrine. However some view the Constitution as a requirement as it protects the rights and provisions for individuals. For example the constitution protects citizens rights to life, right to freedom, right to property and right to participate in the democratic system. Therefore the constitution is said to protect the citizens from tyranny, as as these rights prevent a government from having any absolute power. For example, British man Mark Meecham taught his pet dog to do Nazi Salutes and posted a video of such online, leading to him being charged with creating “Grossly offensive” content. Many view such laws as this dangerous and a stepping-stone towards censorship, this supporters argue, is exactly what the US constitution protects against.
Scotland is a devolved power within the UK, and throught the Scotland act 1998 they have set electoral procesdures and devolved powers. Many view these as constitutional arrangements, however the supreme court ruled that the act does not equal a constitution, and therefore can be altered, in theory, through a simple majority in the house of commons. Scotland’s devolved powers includes education, health, justice and rural affairs. However many view the lack of a codified constitution to cause great political strife between the nations, as Scotland never feels truly in control of its powers. For example, despite widespread support for the SNP party, with them winning 64 seats in the 2021 scottish parliament elections, the ability to hold an independence referendum is completely at the discretion of the Uk government. This has lead to animosity between the nations, with the SNP saying that it will request a section 30 – allowing it to pass laws traditional reserved for Westminster – in order to hold a second referendum, and that “there could be no moral or democratic justification for denying that request.” Furthermore, following the close results in the 2014 independence referendum the Scotland act was updated to give more power, such as control over all taxes applying to Scottish taxpayers. Therefore it could be argued that under a codified contittuion the powers could not have been updated as quickly, leaving the large yes voters largely unsatisfied.
Furthermore, due to its formality and lack of flexibility a poor codified constitution can be extremely dangerous – as it is both broken and difficult to change. Russia is a prominent example of this. Russia is not a democracy, nor is it a dictatorship. Putin affectively neutralised all opposition to him, making victory a certainty. For example, outspoken opposition leader to Putin alexei navalny was recently arrested on potentially fabricated embezzlement and corruption charges. This has lead to dangerous situation, in which Putin has effectivley absolute power as it is virtually impossible for him to lose elections or referendums, and therefore absolute power to change a codified constitution that holds supreme law. If it were an uncodified constitution it could possibly be altered by opposition parties in government, however to change the constitution in Russia a supermajority is required in both State Duma, the lower house and the Federation Council, the upper house. Therefore, knowing his control of electoral results, Putin put several constitutional amendement to a referendum between 25th of June and the 1st of July 2020, which passed with nearly 80% of the vote, enacting not only limitations on who can run for President, decreasing his candidates, but also introducing article 81 which effectively allowed President Putin to run for office for two more terms, meaning he could remain in the Kremlin until 2036.
‘Devolution has advantages over other forms of constitutional arrangements.’
The argument for devolution within the UK is that devolution makes it possible for cultural, geographical and economically differences to be taken into account. For example, Scotland possesses 60% of the UK’s timber production, meaning more in depth legislation must be required for that area. This opportunity to create policy for different areas, allows for increased innovation and therefore benefits the united kingdom as a whole, for example Scotland has introduced proportional representation in it’s Scottish parliament elections throught the AMS, which has had great success leading to institutions such as the Electoral reform society to compaign for the adoption or proportional systems in UK general elections. Furthermore devolution helps keep the Union together, as more production in the UK as a whole creates a more stable economy. Therefore by allowing Scotland to have more power while remaining in the UK is far more preferable than Scotland leaving outright, with Former US president Barrack Obama saying that “have a deep interest in making sure that one of the closest allies that we will ever have remains (a) strong, robust, united and effective partner.” – essentially a decleartion of pro-union support, suggesting a split Uk would not be robust.
One weakness of devolution is that it weakness the central authority of the nation. Many believe that devolution grants too much power to the devolved states and weakens not only the power of the nation as they can’t take a fully united approach to tackling social and economic issues due to discrepancies in policy – such as the different approaches to tackling poverty, with the SNP calling for increased welfare support and the Conservatives calling for lower taxes in order to “back businesses” – it also acts as a “stepping stone” towards independence as the devolved countries become more confident in their abilities. For example, Scotland unanimously voted remain while the UK as a whole voted to leave the EU, leading for calls for a second independence referendum as Scotland feels it has the ability to put “scotland’s future in scotland’s hands.” Furthermore some feel that a devolved government only highlights cultural differences and creates animosity, with only 26% of Scottish people saying they felt “very strongly” British, compared with 46% in England according to a 2018 BBC Study.
Federalism is the system in which the United States is run, in which power is divided between a national government and the 50 states governments. Each government has a rights the other can not encroach upon. For example one power of the federal government is to regulate trade between the state. States however run their own schools and their own police. Many argue this is very beneficial as it allows for pragmatism to be practiced. The United States is a large and diverse country, with a population of over 300 million. Therefore there will be large cultural and economic divideds between a state such as New York and Detriot for example. Therefore it makes sense for the laws, conventions and public services to be differentiated for each state. The federal system allows this happen, while still granting control over the most important issues to the federal government. For example, the most common crime in Detroit is larceny-theft whereas the most common crime in New York City is aggravated assault. However all states must comply with the US constitution and laws such as the Controlled Substances Act. Federalism differs from devolution in that the powers of the state cannot be encroached upon, whereas under devolution Scotland’s powers can be repealed and Amended by the Uk government. Furthermore Devolution is an evolving matter, as is proven through the scotland act of 2016 which supplemented the system. Therefore federalism is more effective at ensuring the cultural and economic tailoring for clearly outlined finite number of powers, however it offers little flexibility.
However some view federalism negatively, arguing that it effects democratic legitimacy as citizens are ignorant to state governance. In 2020, 67% of the electorate turnout to vote in the presidential election, compared with turnout in state and local elections often being less than 25 percent. This leads to citizens being apathetic towards elections and leaders that has significant powers over their lifes. Therefore one could argue that state governance does not adequalty represent the will of the people. For example state leaders have the ability to set tax rates, education and healthcare. Ignorance of who’s in-control may be undemocratic but it’s consequence is vastly more dangerous – ignorance of the law itself. This can lead to vast economic consequences as moving across states to setup enterprise is common, however an inability to comprehend or acknowledge the differing regulations governing each state can creating a large amount of difficulty with setting up a business. This has lead to the United States ranking 51st out of 190 countries on ease of starting up a business according to an annual report by the world bank. Therefore it can be argued that federalism grants too much power to the state through the state constitution, and that this can create a system that gives a lot of power to officials which most people are apathetic towards. Devolution, however, allows powers to be added and taken away based on public desire to have a devolved power - whereas state powers are set-in-stone no matter of public attitude.
A unitary government is one in which a single central government has complete control over all other states/counties. This system is most prevalent in a China, which, much like the US, is also large – with a population of 1.4billion. One argument for unitary governance is that it allows the country to be operate in an agile and direct manner, allowing for mass change as unlike devolution, the government policy wishes do not have to be negotiated or politicised anymore than necessary. This unified approach to all economic efforts has allowed for mass economic growth, with its GDP growth averaging 10 percent per year from 1978. The unified approach has allowed china to push mass manufacturing at the expense of regional health, for example 49,000 people have died in the cities of Beijing and Shanghai due to air pollution.
However a consequence of this constitutional arrangement is an increased risk of extremism. This is because a unitary system, unlike federalism or devolution, grants all power to the single legislative body. While it could be argued that devolution can essentially do the same, as the Scotland act allows Scottish devolved powers to be altered, it would be politically damaging to remove all devolved powers from Scotland as it would be deemed as undemocratic. Furthermore, the UK two-party system, albeit insignifacnt in the case of a majority like the current Conservative government, would require at least some cross-party support in most cases. Therefore a unitary government can often enact legislation that benefits overall economic growth at the expense of certain regions, for example the French National government has total authority over all provinces. This has lead to a prevalent anti-establishment movement, with the French feeling that they are “considerably less free” than citizens of other developed nations. For example, Marine Le Pen’s National rally received 21.3% of votes in the first round of the 2017 french elections – only falling short to President Emmanuel Macron.
Constitution limiting the executive
In order for a bill to be made into law in the United states, it must first receive a majority in the house of representatives and at least 60 votes in the senate- which is designed to make cross-party support a necessity- according to the constitution. All laws past in congress must also be deemed constitutional by the courts, with supreme court having ultimate jurisdiction at both a state and federal level. This means two things for the president, first off cross-party support is required to pass bills, making compromise a necceesity, and secondly whatever direction he wishes to direct his party must be constitutional. For example, a president could not direct party members to vote a bill which in which censors free-speech as it would be striked down by the courts. One way in which the president can bypass cross-party support is by issuing executive orders. For example, Donald Trump used Executive Order 13769 in an effort to stop travellers from seven predominantly muslim countries. This allowed trump to enact a controversially bill that would likely have failed in congress, however executive orders still require approval from the supreme court as they must still be in-line with the constitution. This lead to order 13769 being struck down by supreme court as it was viewed as discriminatory. This means that while the President can bypass congress for certain issues which fall under his direct scope of command, such as the army as commander in chief, by issuing executive orders it must still be constitutional.
In the united Kingdom parliament has complete sovereignty via convention this means that they enact bills and laws as they wish with no limitations. This results in the supreme court and judicial systems simply having the responsibility of scrutininising new bills and legislations to determine wether or not they contradict with pre-exisitng bills, if they do they advise parliament on how to rectify the issue. This means that the judicial courts have no real power to block a bill. Therefore it can be said that the uk parliament is not limited by the constitution as it creates the constitution is uncodified and therefore is simply a collection of regular acts of parliament – such as the equality act of 2010. Therefor it can be said that the constitution of the UK is held accountable to the executive. However this does not mean that the supreme courts do not identify when the executive has broken the law. For example, the UK supreme court ruled that Boris Johnson decision to prorogue parliament in 2019 was unlawful, and therefore parliament had to return. However this doesn’t not mean that the UK execurtive is held to account like the US executive, as the UK executive can in theory alter any law to fit their will – and can therefore make anything legal – especially if they have a majority like the current conservative government. However, certain bills are very much untouchable via convention, and to attempt to abolish them would be extremely bad pr. For example the magna carta establishes that rulers of the country such as the Monarch are subject to law, and therefore this bill is unlikely to be abolished.
Both the Uk and US constitution hold the governments to account by giving the ability for them to be removed from power. However both constitutions differ in how they do this. For example, the UK constitution has an uncodified convention called a vote of no confidence, which is tabled by the opposition leader on the government to highlight their shortcomings and remove them from power. The vote requires a simple majority in the house of commons to pass, after which to events can occur. One in which a new government is formed, usually by the opposition leader in order to gain support, and secondly another General Election is triggered. In 2019 Jeremy Corbyn tabled a vote of no confidence against Theresa May after he viewed her government as inadequate due to their failure to secure parliamentary support for Brexit legislation. The vote failed 325 to 306, however arguably it had a large political impact on May as she stepped down shortly after as leader of the conservative party.
In the United States the codified constitution gives congress the power to impeach the president for ‘treason, bribery, or other high crimes and misdemeanors.” The house of represnetatives is granted the power to start this impeachment process, which therefore gives rival parties the opportunity to propose impeachment against the president, with the process starting via reviewal from committees which review evidence to determine whether there are significant grounds for approval, furthermore committees are made up of members from both the democrats and republicans, limiting the Presidents power to influence the committee reviewal in his favour. The committee will then put forwards articles of impeachment to the house of represnetatives with only one or more needing to pass for the president to be impeached. However, once impeached a trial will take place in the senate with a conviction removing the president from power. However it is questionable wether this actually holds the president to account as a conviction requires a supermajority vote in favour, this means that it doesn’t really result in conviction unless the President has lost support of his own party or the opposition party has a very large majority in the senate.
In the Untied states the Constitution grants power to both the federal government and the states. Due to this, American citizens are technically citizens of both their state and their country. Both the state and the executive have specific powers that the other cannot encroach upon, such as the state having control of state income tax – with Texas having no income tax – and the US Federal government having control over regulating trade between states and the armed forces. This means that the executive cannot attempt to, wether through executive order or directing members of congress, overrule the sates rules. Furthermore, states laws often contradict with federal laws. For example, during Obama’s presidency Colorado legalised Marjuana while it was still illegal under the controlled substances act. However if a President feels strongly he/she can order the national guard to enforce the law in the state. Overall, this limits the executive as not only can laws not encroach upon state law, states often directly disobey the will of the executive.
In the UK Scotland, wales and Northern Ireland are devolved governments, each with powers commanded to them through legislation forming a somewhat uncodified constitution. This therefore limits the executive as they must respect the devlolved powers of these nations. Scotland has several deveolved powers as set out through the Scotland act of 1998 and the Scotland act of 2016, both of which are said to form the constitution of which the executive and parliament must respect. While in practice this may be somewhat true as it would be politically impossible to gain support to remove the powers of these devolved nations, the supreme court has ruled that the act is technically not a constitution, so in reality the parliament and therefore, at least to some degree, the executive has the power to amend and abolish the powers granted to Scotland. So therefore, it is unlikely the executive, even with a majority would attempt to abolish these powers. Therefore the “constitutional” provisions that grant powers to Scotland such as education, health, justice and rural affairs greatly limit the executive’s powers – not so much in theory, but in practice.
