UK vs USA constitution Flashcards
What are the differences in structure of the US and UK constitution?
- US constitution is codified, so it collects a set of rules on government and politics and puts them into 1 document.
E.g. the US constitution collects 7 articles together on how the country should run, the first 3 explain how the branches of federal government should work.
UK constitution has several sources, is uncodified.
E.g. the Bill of Rights, statute law such as the Representation of the People Act 1918 and common law.
- Formal amendment of the US constitution is difficult and complex.
E.g. in the USA 2/3 of Congress is needed to propose an amendment, and 3/4 of state legislatures are needed to ratify it. In June 2006, the Senate voted 66–34 in favour of the Flag Burning Amendment but this was not enough since
In the UK, the constitution is easy to amend.
E.g. a simple Act of Parliament such as the HRA 1998, which ensured the right to a fair trial among many other things.
What are the differences in nature and authority of the US and UK constitution?
- In the USA the constitution is sovereign, the SC has the ultimate power of interpretation, so the constitution is what the judges say it is.
E.g. in Roe v Wade 1976 the SC ruled that the right to private property in the 4th amendment was to include a woman’s unborn child
In the UK, parliament is sovereign, the constitution is what parliament chooses it to be.
E.g. parliament can sign an Act of Parliament to amend the constitution, such as the Representation of the People Act 1918 which gave the right to vote to all men over the age of 21 and all women with property over the age of 30.
- In the USA, many of citizens’ rights are entrenched and alienable, found mainly in the Bill of Rights
E.g. the right to a fair and speedy trial found in the 6th Amendment is both entrenched and alienable.
In the UK, citizens’ rights are mainly protected by parliamentary legislation.
E.g. the HRA 1998, which incorporates rights from the ECHR into British law.
- In the USA, the constitution provides formal checks and balances.
E.g. the President can veto legislation, such as when Obama vetoed the Justice Against Sponsors of Terrorism Act 2016
In the UK, the constitution provides few checks and balances. Main threats and limits to PM’s powers come from a lack of parliamentary majority.
E.g. Theresa May’s government elected in 2017, she therefore struggled to pass Brexit legislation.
How do the US and UK constitutions separate powers?
- US constitution shares powers through the principle of federalism.
E.g. in the 10th amendment, it is stated that powers not held by the federal government shall reside with individual states. Such powers include the choice of whether or not to have the death penalty.
UK constitution has changed since 1997 to give greater powers for the regions and a loss of power at Westminster.
E.g. the Scotland Act 2012 gave the Scottish government the power to vary income tax up or down by 10 pence per pound.
- Separation of powers is a fundamental principle of the US constitution.
E.g. each branch is outlined in separate articles of the Constitution.
Separation of powers is not a fundamental principle of the UK constitution, which in part reflects a monarchical system of power being held in the hands of the few not the many.
E.g. the royal prerogative which conveys considerable power to the PM, such as the appointment and removal of ministers.
What are the differences in checks and balances of the UK and US constitution?
- In the US, the constitution allows the SC to strike down federal laws and executive actions as unconstitutional.
E.g. Obergefell v Hodges 2015 struck down the Defence of Marriage Act 1996
In the UK, there are no such provisions. Instead the UKSC can declare laws and executive actions as ‘incompatible’ with the HRA 1998.
E.g. in R vs Secretary of State for the Home Department 2019 the UKSC ruled that he right to rent scheme is incompatible with article 14 of ECHR
- In the USA, the constitution provides formal checks and balances for legislation.
E.g. President can veto legislation, such as when Obama vetoed the Justice Against Sponsors of Terrorism Act 2016
In the UK, the constitution provides few checks and balances for legislation. Main threats and limits to PM’s powers come from a lack of parliamentary majority
E.g. Theresa May’s government elected in 2017.
How do UK and US legislatures differ?
- In the US federal law created by the legislature can be struck down by the courts as unconstitutional.
E.g. Obergefell v Hodges 2015 struck down the Defence of Marriage Act 1996
In the UK however, parliamentary statutes cannot be struck down by the courts, but instead they can be deemed incompatible with the HRA 1998.
E.g. in R vs Secretary of State for the Home Department 2019 the UKSC ruled that he right to rent scheme is incompatible with article 14 of ECHR.
- In the US, the legislature is separate to and independent from the executive. The executive cannot sit in the executive due to the principle of separation of powers.
E.g. Obama had to resign from the Senate before becoming president.
In the UK, the executive is found in the legislature.
E.g. the PM, and his cabinet are all MPs.
- In the US the legislature can remove individual members of the executive by impeachment.
E.g. Nixon was impeached over Watergate but resigned before almost certain conviction
In the UK the legislature can remove the whole executive by a no-confidence motion.
E.g. in 1979 James Callaghan’s government was removed from office by one vote
What are the strengths and weaknesses of the UK and US constitution?
- US constitution is difficult to amend and is inflexible, but it can be amended informally via judicial review and interpretative amendments.
E.g. Obergefell v Hodges 2015 essentially legalised gay marriage
The UK constitution is easy to amend, as the constitution is what parliament says it is.
E.g. parliament incorporated the ECHR into the constitution by passing the HRA 1998, which ensured the right to a fair trial among many other things.
- The US constitution allows power to be shared and spread. However, this can lead to congressional gridlock if both chambers fail to agree on a bill.
E.g. during much of Obama’s administration the Republicans controlled Congress, which stopped any meaningful gun legislation from being passed, including the proposal for increased background checks which 91% of Americans supported
The UK constitution gives the PM considerable power over Parliament and can usually force through legislation, given they have a large majority.
E.g. in 2019 Boris Johnson was able to pass a controversial Brexit bill within weeks of winning his large majority
Explain and analyse three ways in which the structural theory could be used to study legislatures in the UK and USA.
- The difference in power between the different chambers in each body.
E.g. both the Senate and House have equal legislative power, while the Commons always has the final say in the UK - The difference in membership between the
two institutions, not least that Parliament,
unlike Congress, contains the executive. This means that government ministers in the UK are routinely questioned and held accountable to the legislature
E.g. at
Question Time and in debates.
3.
The importance of parliamentary sovereignty in
the UK gives Parliament far more authority and
power compared with Congress.
E.g. Congress has to share with the president and the judiciary, parliament has no such restrictions.
‘The US constitution is more rigid an inflexible than that of the UK’
1.
Yes, formal amendment of the US constitution is difficult and complex.
E.g. in the USA 2/3 of Congress is needed to propose an amendment, and 3/4 of state legislatures are needed to ratify it. The last formal amendment was in 1992 many recent attempts have failed such as in June 2006, the Senate voted 66–34 in favour of the Flag Burning Amendment but this was not enough
No, as the constitution can be amended informally via judicial review and interpretative amendments.
E.g. Obergefell v Hodges 2015 essentially legalising gay marriage
2.
Yes, in the UK, the constitution is easy to amend.
E.g. a simple Act of Parliament such as the HRA 1998, which ensured the right to a fair trial among many other things.
No, as there are some elements of rigidity to the
UK Constitution in reality.
E.g. signing up to the ECHR restricts the
freedom of Parliament in some ways, if it wanted to implement capital punishment, for example, it would need to repeal the Human Rights Act and pull out of the ECHR altogether.
‘There is little difference in reality between federalism in the USA and devolution in the UK’
- Yes, the growing powers transferred to Scotland
and Wales
E.g. Scotland Act 2012 gave Scottish Parliament the power to levy taxes by 10 pence per pound
No, these powers are devolved and not inalienably transferred as seen in the US, meaning Westminster can take powers away
E.g. Westminster took powers from the Northern Irish Assembly from 2017 to 2020 due to disagreements within their government
- Yes, even some social issues are partially decided
at a devolved level
E.g. abortion laws are much tighter in Northern Ireland
compared with those in the UK and it could be problematic if Westminster imposed uniformity on Ulster in this area
No, states have greater autonomy on social issues
E.g. states can decide drug policy such as California legalising marijuana, and states can decide punishments for crimes such as Kansas who still decide to use the death penalty
- Federal power has grown in the US
E.g. in areas such as education that traditionally were the preserve of states. Recent presidents have made much less of ‘states’ rights’ than, say, Reagan.
