The Barendt-Ridley Debate Flashcards
- What is F.F Ridley’s ideology of the constitution?
Ridley ideology states that the constitution can have many meanings such as a man having much constitution and in a political definition as it is more like a power map between the state and the government allocating power and controlling powers.
- What is Ridely’s first requirement/argument?
The constitutional documents must be prior to and establishes the system of government for example Ridley looks to the battle of American independence to provide a meaning as to how the constitution must be prior to the government.
Ridely stated that there is no prior system of government in the UK although most lawyers may point to the battle of hastings in 1066 as the closest thing to a revolution, but in general there was no point where people sat down and said this is how things are going to be set out.
- What is Ridely’s second requirement/argument?
There must be an Idea of a constituent power and ‘popular sovereignty’ – for example:
The first 3 words of the U.S constitution are “We the People” which implies that everyone had a say in what went into the constiution.
Ridley stated that when you have revolutionary moment you have a constituent power and constituent power creates popular sovereignty whereas in the UK the body that is legally sovereign are the king the House of Lords and the government are sovereign, we are technical subjects of the king.
- What is Ridley’s Third Requirement/Argument?
The Constitution MUST be superior to ordinary law (importance of a Supreme Court) for example in this country all acts of parliaments are equal and have very little difference in power between them we do not have any superior or entrenched constitutional provisions.
Where as in the US the constitutional laws are entrenched meaning it is very hard to change as they are most likely to be of a higher legal status and permanent.
- What is Ridley’s Fourth Requirement/Argument?
4) It must be entrenched.
For Example in the US:
Two stage process in US:
1) Proposal of the change of the amendment requires 2/3rds of the states to be able to change the law
2) Ratification you require ¾ of the states to support either by vote or by usual state referendums 38/50 states to change the constitution, it is a long and complicated process taking years
Successful Amendments:
13th Amendment (December 1865) The Abolition of Slavery
18th Amendment (January 1919) The Prohibition of Alcohol After WW1
21st Amendment (December 1933) The Repeal of Prohibition
22nd Amendment (February 1951) A Rule That Limits Presidents of Two Terms in Office because during the second World War 1 president kept winning over and over which resembled a monarchy and was undesired as they are republic.
Compared to the UK this is a much harder way in changing the law whereas we can make our changes very quickly with the parliamentary process
- What is Ridley’s fifth and final argument?
5) It should be codified – written into one document.
NB: Unwritten (uncodified)
Ancient Rome – ‘Law of the Twelve Tables’
Uncodified
We have written sources
BUT not in a single document
UK
New Zealand
Israel
What is Barent’s first argument?
1) “…there is clearly a constitution in the sense of a ‘power map.’
Barendt’s arguments:
We have a ‘power map’ or ‘functional’ constitution - it is just not written down but nevertheless we have both houses of parliament we have the monarch we have the rules of the monarch and how they interact with the houses of parliament.
- What is Barendt’s Second Arguement?
2) There are clearly laws of a constitutional character…
Parliament Acts 1911 & 1949 – which govern the powers of the house of Lords.
Representation of the People Acts – decides who can vote and when they can in the UK.
Bill of Rights 1689 – an extensive list of prohibitions of the king ex raising the taxes controlling the army
Act of Settlement 1700 – who was entitled to be the monarch.
- What is Barendt’s Third Argument?
Although we lack a written constitution as a country thought its history we have maintained constitutionalism
4) Britain has a long history of constitutionalism…
Magna Carta 1215 ( put into force in 1297) -kings power was limited, and people have the right to a fair trial with a jury not the king.
Bill of Rights 1689
Triennial Act 1694 – created the requirement that we must have regular parliament instead of the same one (3 years back then 5 Years now)
Slavery Abolition Act 1833
It fails Ridley’s requirements…
“Yet it seems unhelpful to withdraw from it the title of ‘Constitution’”.
- Name some of the policital issues around Gun Control in the US, and the influentce of the Bill of Rights in 1689.
Influence of our own Bill of Rights 1689 – after Charles the 2 was restored to the crown, he wasn’t a man of politics, when he died James took over he was very alike his father very religious, he tried to build a standing army (permanent army which was not common) the people at the time did not want this to happen as this would give too much power… he made laws which….. are called standalone laws he was driven by the country, and he fled to France.
Fear of ‘standing armies’
Fear of ‘disarmament’
Law of Gun Control
Role of US Supreme Court (SCOTUS) -
Robertson v Baldwin (1897) – concerned restriction on carrying a gun in a concealed way/manner confirm that this was an individual right.
United States v Miller (1939) – being prosecuted for carrying a sawed off shot gun across two states.
District of Columbia v. Heller (2008) – if you have a handgun in your home you can only have it in there lawfully, the constitutionality was challenged.
