Constitutional Comparison

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Whereas the US constitution appeared out of the smoke of gunpowder the UK constitution appeared out of the mists of time  Malcolm Walles

The origins of the UK and the USA constitutions could not be more different; one was born from steady evolution and the other from rapid revolution. What began the US Constitution was the end of the War of Independence in 1787; where French Revolutionary ideals and bruises from the previous British occupation helped mould the historical document that is still in use today. Core principles such as a dominant executive, a strong centralised government and a fear of tyrannical rule are prominent throughout the constitution and a clear separation of institutions was an important factor in structuring how a government was to be formed. For the UK, the constitution has evolved slowly because it has not been invaded by a foreign power for nearly a thousand years.

The comparison between the sources of constitutions of the US and UK is well summarised in the quote  All countries constitutions have written and unwritten elements. It is the balance between the two that varies  Bennett. One of the most important differences between the two constitutions is that the US constitution is known as codified, where the system is written and establishes the rules and principles that are set out and this single authoritative document comprising of seven articles totalling seven thousand words specifies the elements of the conduct of government. The UK s constitution is uncodified, where many of the laws and regulations are not formally stated or collated into a single document. This does not mean that it is unwritten, it simply means that it is not all in one place. For example, thexercises the Royal Prerogative, such as declaring war, but it has become a convention of constitution. Previously to this, it was accepted that the Queen/King at the time alone could exercise these powers, and it was recognised as commonplace for them to do so. Other conventions of the UK constitution include the Prime Minister s right to dissolve Parliament and call an election, and that it should be dissolved at least once every five years.

The role that constitutional silences and conventions play in the US constitution vary. The fact that the Electoral College selects the Presidential candidates is a convention, but on the whole conventions play a much smaller role in the US compared to the UK. Generally when conventions are ignored in America, they have eventually been written into the constitution. The roles that conventions play in the UK constitution, as mentioned before, are much more important. The conventions used here are rules that in general are considered binding. The longer they are in practice the more authority they hold, however they are not enforceable by law or codified.

There are many opposing arguments when considering the benefits and drawbacks of having a codified constitution. One advantage is that a codified constitution provides a very clarified statement of what is allowed and what isn t, and will always be a direct reference in times of uncertainty.  It also helps citizens to be aware of their rights and freedoms, and many Americans can quote the constitution as a defence of their liberties, something which British citizens are much less aware of which can lead to the government taking advantage. Furthermore, a codified constitution acts as a check on the institutions of the government, decisions are likely to made with the view in mind to remain  constitutional  to avoid public reaction. Another interesting advantage of a codified constitution is that it has a strongly positive educational role - Americans are taught to treat it with a sense of reverence and respect, and it helps to create a shared values and culture for all citizens. With restrictions on the President being a prevalent issue in America, a further benefit of their codified constitution is that it is very hard to amend, so the President cannot bend it to his will whenever he wishes, whereas in the UK a simple majority vote in Parliament can enable the Prime Minister to pass legislation effecting constitutional change.

The main disadvantages of the codified constitution mainly focus on the issue of amendment; the written constitution of the US can be too inflexible to adapt to the requirements of the time. A strong argument  proving  its downfall is the controversial gun laws stated in the Bill of Rights - many Presidents have tried to eliminate the Right to Bear Arms amendment but because of its rigidity are unable to. This puts Britain in a more favourable light, as its constitutional arrangement is much more enamoured towards adaptation and change, usually for the better (such as the creation of the Welfare State under Clement Attlee s government). Furthermore, despite all of the aspects of the constitution that claim to protect citizen s rights it is no guarantee of civil liberties. This is evident from the struggle of African American s when they fought for the right to vote.

Another comparison that could be drawn between the two constitutions in more detail is the issue of whether they are rigid or flexible. The US constitution is a prime example of a rigid constitution; it is nearly impossible to amend and resists all change. This was a deliberate aspect of it s creation by the Founding Fathers, who wanted to avoid tyrannical rule in the US again, and it is evident of this being effective as there have been only 27 amendments to the document since it s creation.  Americans as a whole distrust change, and the wording of the document is deliberately vague so that judicial interpretation can evolve the constitution without formal change or amendment. In keeping with this idea of the constitution being sacred and unchangeable, the idea of  constitutional sovereignty  has developed. It serves as a framework for which most political activity takes place and provides a reference that legislation and government can be measured by. In contrast, the UK constitution makes Parliament the sovereign power, which in turn makes the constitution far more flexible, as most constitutional changes occur through suggestion and voting in the Parliament.

As previously mentioned, the constitutions of the US and UK have very differing leniencies for amendment and also have very different processes of amendment. Due to the aforementioned rigidity of the US constitution, the amendment procedure is very complicated and difficult to manipulate. During the proposal stage, the legislation / amendment bill has to be passed with a majority of two thirds in both Congress and the House of Representatives, which is a very rare occurrence. After this, the bill has to be ratified (confirmed or agreed with) in at least three quarters of all sates, again the likelihood of gaining ratification is a rarity. However, with the UK and its flexible constitution, usually a simple act of Parliament is enough to pass amendments. Despite this, recently there is an emerging idea that all permanent and major constitutional changes must be legitimised by a UK wide referendum. The US constitution is amended very infrequently due to its lengthy and awkward process and a very distrustful population who fear change more than anything else. This is evident when Prohibition was introduced in the 1920 s, and written into the constitution, then fast repealed. Furthermore, the issue of the vague wording of the constitution has allowed judicial review to create slow and evolved change, adapting to the changing political and social climates.

Another aspect of the constitutions that is worth comparison is how they form the government. The US government is formed around the idea of  Separation of Powers , and the UK around  Fusion of Powers . Separation of powers is technically the constitutionally assigned division of government into three main branches; the Executive, the Judiciary and the Legislature. It was engineered so that no one branch could have absolute power, and the system of checks and balances between the three allows them all to be scrutinised. However, this term is misleading as the powers are not necessarily separated, but divided and shared. The idea of  separation of personnel  is far more accurate when describing the three branches division; no person can work in any more than one branch of government at a time; President Elect Barack Obama had to sacrifice his job as Senator in order to be able to accept his impending Presidency. Richard Neustadt summaries this idea well:  The constitutional convention of 1787 is said to have created a government of separated powers& rather it set up a government of separated institutions sharing powers . The UK however has a  Fusion of powers  whereby all of the government departments work together to create legislation and discuss issues, a parliamentary government that is characterised by the executive that runs  in and through the legislature .

Overall, when comparing the US and UK constitutions the differences that run through them general are direct opposites, codified and uncodified, rigid and flexible, separated and fused. Despite this, both have proved very effective so far in history and have survived to be the oldest written and non written constitutions in the world.





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