What is a Constitution? Flashcards
- What is a Constitution according to the House of Lords and Kenneth Wheare?
What is a constitution?
“[T]he set of laws, rules and practices that create the basic institutions of the state, and its component and related parts,and stipulate the powers of those institutions and the relationship between the different between those institutions and the individual”
“[T]he whole system of government of a country, the
collection of rules which establish and regulate or govern the government”
(Kenneth Wheare, Modern Constitutions (Oxford University
Press 1951) p 1)
- What is the definition of the word constituion according to Vernon Bogdanor?
“[There are] . . . two different meanings of the term ‘constitution’. The first refers to a written instrument containing the basic and most important rules
of government.
The second refers to the rules, whether or not written
down, which regulate government — and in this sense every society, by definition, has a constitution.”
(Vernon Bogdanor, The New British
Constitution, p 10)
- Whats the point of Constiutions?
- It creates system of government
- Provide a rulebook for how a state is run and organised
allocate and regulate power within the state - identify the
holders of state power, how power is divided between them,their relationships with each other, the limits on their powers - Show when government has exceeded its power
- Embody and protect rights of individuals, show the
relationship between power bodies (institutions of
government) and the citizens of that state - Can reflect a country’s beliefs and values, culture and
history, aspirations, social changes - Reflect its legal system
“A constitution is a thing antecedent to a government, and a government is only the creature of a constitution”
(Tom Paine, Rights of Man)
- What’s the point of constitutions?
A constitution normally specifies whether a state is:
A republic or has a monarchy (monarchical)
Federal (where power is non-centralised and dispersed
divided between a central authority and regional centres of power)
Unitary (where power is centralised)
A Presidential or Parliamentary system
A Legal Constitution has a formal, written Constitution with the status of higher law, containing strong normative rules.
A Political constitution is where government power is
restricted mainly by political processes so is more
changeable
- What is the idea of Constitutionalism?
Constitutionalism is the idea that there should be legal limits on the power of government, and those limits will be contained within a state’s constitution.
- What status do Codifed Constiutions have?
Codified constitutions often have special legal status – the highest law in a state
- If the state’s ordinary laws infringe provisions of that constitution, they
may be declared unconstitutional by a designated court
- What does entrenched mean?
A constitution’s provisions might be entrenched = they’re fixed and cannot be changed until a deliberate act of amendment takes place –following a specified process for amending the constitution.
- Entrenchment gives enhanced protection
- Constitutions which can’t easily be changed are known as rigid constitutions – compared with flexible constitutions like the UK’s
- Where do Constituions come from?
Constitutions are drafted by experts (a
constituent assembly)
- E.g. a constitutional conference
with delegates who draft a
constitution which goes to the state’s
Parliament for approval, then a
referendum for the people to approve it
- What is the constituent power?
The constituent power – where a
constitution gets its authority and legitimacy from.
The people of a state are a higher power than government and legislature – a state’s system of government comes from the will of
the people
- What triggers a new constitution?
New constitutions can arise through evolution or
deliberate creation, or replacing an older constitution.
- What is a constituional moment?
‘The constitutional moment’ = an event + the need for a
fresh start (e.g. war, revolution, a former colony becoming independent, creation of a new state)
Or might just be the right time for a new constitution –
needs political will + popular support
- How else can constitutions change and evolve?
Constitutions can also change and evolve through judicial interpretation e.g. Marbury v Madison 5 US 137 (1803).
- What type of Constitution does the UK have, what can the UK do to change the Constitution?
An unwritten (uncodified) constitution = a series of
uncodified constitutional laws, political practices and rules found in different sources (some may be written) which together form a system of governance for a state
The UK Parliament can change the constitution by a
simple Act of Parliament e.g. Constitutional Reform Act 2005 created the Supreme Court
The UK constitution is flexible and so it is easily changed and adaptable
Only three democracies in the world have an uncodified
constitution - Britain, New Zealand and Israel
- What does F.F Ridley argue about the UK Constitution?
Ridley argues that the UK has none of the
4 characteristics of a constitution:
- A constitution establishes the
system of government and is prior to the
system of government
- A constitution establishes the
- A constitution ‘involves an authority
outside and above the order it
establishes’ (the constituent power)
- A constitution ‘involves an authority
- It is a form of superior law
originating from a higher authority than
the legislature
- It is a form of superior law
- It is entrenched and can only be
changed by special procedures
- It is entrenched and can only be
- (F.F. Ridley, ‘There Is No British
Constitution: A Dangerous Case of the
Emperor’s Clothes’ (1988) 41(3)
Parliamentary Affairs 340)
- What does Eric Barendt argue about the UK Constitution?
Barendt argues that the UK
does have a constitution:
- It has a power map =
constitutional rules describing
the arrangement of power and
relations between government
institutions, and between those
institutions and the people - It also has laws ‘of a
constitutional character’ - (Eric Barendt, ‘Is There a United
Kingdom Constitution?’ (1997)
17(1) Oxford Journal of Legal
Studies 137).
