'A written constitution is a mixed blessing'. Is this the lesson to be learned by would be reformers of the British constitution from studying the workings of the US constitution?

‘A written constitution is a mixed blessing’. Is this the lesson to be learned by would be reformers of the British constitution from studying the workings of the US constitution?

Gursharonjit Kaur Sond

A constitution is a system of laws and customs established by the sovereign power of a state for its own guidance, to form an established form of government. The majority of liberal democracies have a constitution, including the UK, USA and France, but with each being unique and specifically designed to meet each countries need. For instance, ‘the US constitution is written within a single document, at a particular date in time as a product of revolution’. (pg 109, McKay, 2001) The UK constitution on the other hand is instead derived from a number of sources, including Statute law, Common law and conventions rather than being written down in a single document. Due to this it is embedded with customs and tradition. One thing that constitutions do have in common though is that they intend to serve the same purpose, with the aim being to serve its citizens and to define the role and power of and between governmental institutions.

A written constitution is often regarded as being a ‘mixed blessing,’ warning would be reformers of the British constitution that along with its advantages there are also disadvantages to having a written constitution. Codified constitutions have a privileged status, as constitutional law is higher than any other form of law. This means that amending the constitution will inevitably be extremely difficult, as it is a legally binding document. Article 5 of the US constitution sets out two methods by which the constitution may be formally amended. The first method outlines that a proposal sent to Congress be passed by a two-thirds majority by both the House of Representatives and the Senate. If these requirements are met then finally three quarters of states legislatures must pass it for the amendment to be made into law. The second method is where a proposal must be made and two thirds of states are required to petition Congress. Congress must then establish a constitutional convention. This second method has never been used because nobody knows how it would operate. On the other hand the first method has been used, with over 10,000 proposals being made. However, ‘only 40 have got to Congress and only 27 have been ratified’. (www. Washingtonpost.com)The 1933 20th Amendment introduced a time limit of 7 years, thus making it even more difficult to amend the constitution. Since ‘1791 there have been only 27 amendments, with the first 10 being done on the same day thus in over 100 years there have been only 17 amendments.’ (pg 117, Bowles, 1998) The majority of these have been regarding technical issues, such as Congressional pay and the rules for vice-presidential succession. More recently amending the constitution has been seen as an obstacle to a country’s security, as the President wanted to pass anti-terrorist legislation in the aftermath of the attacks in September 2001.

This is a preview of the whole essay

The UK on the other hand had no problem in passing such legislation, as there is no such method for amending the constitution, as ‘Parliament is sovereign and not the constitution.’ (pg409, Jones, 2000) This means that any new law simply overrides an old one, if it is contradictory. This is known as Statute law. This is able to happen to effectively when the executive wants to pass a new law due to the fused nature of the UK Parliament. The Prime Minister, as ‘first among equals’ in the cabinet (executive) and as head of the majority party in the legislature controls promotion and maybe even more importantly demotion, thus PM’s get 100% of their legislation passed through. Presidents do not have this privilege as neither the legislature or the judiciary is entwined with the executive, due to the separation of powers at work. The separation of powers makes each governmental institution a separate entity, with the idea of checks and balances at the heart of this. The only common factor they may have is the same party identity, e.g. Democrat or Republican. More often than not though it is personality and loyalty to their state that binds them together. Congressmen have no loyalty to the President because he does not control promotion. However, if President and Congress are of the same party then they may have more legislative success. This is the case at present, where President Bush is a Republican and both chambers of Congress have a Republican majority due to the recent election. This may allow President Bush to get his agenda across without as much opposition if either the House or the Senate were Democrat led, thus making his ‘War on Terror’ a realistic aim.

This may be one reason certain people want to reform the constitution, as there are no limits to the power of the British executive. Thus there has been a growth in an executive led government. The British constitution also, until recently, failed to recognise basic human rights. ‘The Human Rights Act in 1999 was passed by the European Court of Human Rights.( pg408, Jones, 2000) It immediately became part of UK law due to the fact that the UK is a part of the European Union. These set out basic human rights for every citizen, something previously part of the British constitution. The US constitution on the other hand gives the basis to the rights-based culture that America so vividly displays. This reflects the federal nature of the US, as the constitution was a product of revolution, produced at a particular time, i.e. 1787. States wanted to retain sovereignty and a certain degree of power as they had recently fought a war to get rid of a centralised government, but at the same time wanted to create a ‘super state’, which would be able to fend off enemies in the future. Being a federal state some powers, such as defence strategies and a national postal service, were placed in the hands of the national government whilst other powers were shared, e.g. the power to raise taxes. In direct contrast is the UK whereby there is a central government. Parliament in Westminster controls defence, taxes and everything concerning any part of the UK. The devolved government of Scotland has the power to set their own taxes and other matters concerning Scotland but this power can be taken away by central government. For this reason also, reformers believe that the power of Parliament, and in particular the unlimited and unchecked power of the PM, would be restricted with a written constitution.

The President of the USA is clearly limited by the constitution, with each of the six powers given to him restricted in part by Congress as well as by the Supreme Court. This has happened in the past, e.g.’1998 Clinton Vs City of New York, when the Line Item Veto Act was declared unconstitutional because the President could only veto the whole of a bill as opposed to parts of it’. (www. Nytimes.com) This illustrates quite evidently that the President is not as powerful as it is believed. The power of the UK PM is in large due to the fact that the UK constitution is embedded in customs and traditions. The UK has a long history of being ruled by monarchs and although is now a democracy the tradition of having one strong single leader remains. The evolved constitution reflects the traditions associated with it by including sources such as writings by A.V.Dicey and treaties, as well as royal prerogative – a fundamental aspect of the British constitution.

Although constitutions do set out to serve the same purpose each one is unique in the country in which it is being governed by due to the individuality of each country. Walter Bagehot distinguished between the ‘dignified’ and ‘efficient’ parts of the British constitution, meaning that the dignified parts were those, which “excite and preserve the reverence of the population” and the efficient parts as those by which the constitution “works and rules”. This analysis can also be applied to the US constitution, as it can indeed to a number of constitutions, because it refers to the citizens and the workings of government, i.e. the main parts of a constitution. It is the way in which the constitution is set out that gives it its individuality. For instance, both ‘France and the USA have written constitutions but the French constitution is over 250,000 words long compared to just 7000 words for the US constitution’. (www.nytimes.com) Using Bagehot’s distinction the ‘dignified’ parts of the US constitution include the 1st Amendment (freedom of speech), whereas the ‘dignified’ aspects include Article 3 and 4 (powers of the president and Congress).

The UK and US constitutions are both extremely different as they both have a unique history, developed for the needs of each country. The rights based culture so entrenched in the USA would clearly not fit in the UK as citizens in the UK do not see their rights as a cheque they can cash in when they need to. Reformers should be aware that although a written constitution has a number of favourable points, such as creating a system of checks and balances to check the governmental institutions, this would not be easy to create in a society embedded with political culture and tradition. The monarchy in the UK, although has no formal political power, is an important aspect of the constitution. In this sense reformers would need to take into account the role of the monarchy, if there was to be any at all. Although a written constitution has a majority of beneficial points attached to it constitutions cannot just be transplanted from one country to another. Instead a specifically designed constitution to suit the needs of the UK may be a better option, thus taking into account its history and tradition as well as clear rights. It could be argued that the UK is gradually emerging to aspire to this, especially with the introduction of EU law, thus creating a rights based culture in the UK.