Which is more democratic, the American or the British Constitution?

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Which is more democratic, the British or the American constitution ?

        The Universal Declaration of Human Rights written in the aftermath of the Second World War in 1948 states in its preamble that it is “essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law “. Constitution in its broader definition, that is the laws and principles structuring the powers of government and the rights of citizens, was created to ensure that protection by the “rule of law“. Whether we can say that a constitution is democratic or not depends fully on what we call democracy, be it the process by which people are represented by their government or the fact that people have guaranteed rights, which are protected by the state. In this essay I will focus on both definitions of what  we refer to as democratic. I will firstly compare and contrast the British and American ways to separate powers within their political system to then focus on their electoral system and how it aims at representing people’s will in different ways. My third point will be to consider whether the entrenchment of a constitution makes it more or less democratic. I will then conclude by looking at a constitution’s  capacity to protect human rights and civil liberties in our context of the “war against terror“.

        A democratic constitution should most of all aim at maintaining political stability and limiting the power of different institutions. The separation of the three powers ; judicial, executive and legislative ; is common to most contemporary liberal democracies. In the US, the powers are very clearly separated, as the judicial and legislative powers are completely independent from one another and from the executive one. The judicial power represented by the Supreme Court in the US, is composed of 9 Judges appointed for life by the President of the United States and then confirmed by the Senate, thus making it representative of the majority of the voters but with a time lag as the appointing happens when one current Judge decides to retire. It can be argued though that the Supreme Court’s function of “strict scrutiny“ over the constitutionality of the reforms and plans carried by the government and Parliament is sometimes misused and abused by the Judges. In his essay The Supreme Court Phalanx, Dworkin points out one the Court’s misfunctionments which he refers to as “5-4 decisions“. He takes the example of the student assignement plans created by Louisville and Seattle to improve racial relations and academic performances of minorities in their town. The Supreme Court declared these plans unconstitutional,  and that Dworkin argues that if they “had respected the principled, evidentiary interpretation of the strict scrutiny requirement that the Court had carefully established in previous cases, they would have upheld the cities’ plans. “ In the UK on the other hand, there is a fusion of power between the executive and the legislative as the Prime Minister sits in Parliament unlike in the USA. Flinders argues that this near complete fusion means that what we call “parliamentary sovereignty is a euphemism for executive domination“ (2006, p.133-4).  This means that the executive has no limit to its power, which was very well illustrated by the Thatcher era when Thatcher completely ignored the Parliament and acted on her own. Therefore one could argue that in this sense the US constitution is more democratic because it guarantees political stability by separating the powers, and prohibiting a dictatorial takeover of the executive.

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        The electoral systems set out by the constitutions are also very different in both countries and it is difficult to assert whether one is more democratic than the other. While the US is a federal state, devolving a lot of its power to different states ; the UK is still thought to be a unitary and centralised state even though in 1997, the Referendums Act lead to the devolution of important powers to Wales, Scotland and Northern Ireland. In the United States, there is a geographic dispersal of powers meaning that each state has its own constitution and government and has ...

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