The US constitution is more pluralist than the UK constitution. Discuss.
The US constitution is more pluralist than the UK constitution. Discuss.
This is a statement that would have been irrefutable before the assumption of power of the current Labour government in the UK. However, since gaining office in 1997 Labour has enacted a number of constitutional changes, all of which added to the pluralistic nature of the UK system. The great pace of change has been recognised by the creation of the Department for Constitutional Affairs, a new name for the Lords Chancellor's Office, which has been given some extra responsibilities relating to the constitution.
Taken as a whole, these changes muddy the waters when considering whether the US constitution really is more pluralist than that of the UK. Before plunging into the argument, however, it is necessary to briefly define what a constitution is and what the American and British arrangements actually are.
A constitution is the system of laws, customs and conventions which defines the composition and powers of organs of the state, and regulates their relations with each other and with the citizens. Constitutions may be written or unwritten, codified or uncodified (Jones et al, 2001, 692).
The US constitution has been a model of how to define a pluralist state since it was created by the 55 "Founding Fathers" at a constitutional convention in Philadelphia in 1787. The main architect was James Madison and the principles underlying it were that of Locke's version of social contract theory, where the state is constructed from representative institutions accountable through democratic elections. Added to this were elements of the thinking of French philosopher Baron de Montesquieu, who greatly admired what he considered the division of power between Crown, Parliament and the Judiciary in the English system compared to the monistic French system. Interestingly, this leaves the UK as the original model for pluralism before the US leapt ahead with the first codified constitution built on the principles laid out in the stirring Declaration of Independence of 1776 where all men have "inalienable rights", including "life, liberty and the pursuit of happiness", and, most radically, that it is the "right of the people to alter or to abolish" governments if they are deemed to be "destructive of these ends".
These are laudable values, but they were not matched by an equally laudable view of human nature. Madison set out the premises behind institutional pluralist thought in his seminal Federal Paper No. 10 (Dahl, 1956, pp. 4-33). He assumed that all individuals are egoists who wish to maximise their power and that clashes of interest were inevitable. A system was needed that could cope with these clashes and also ensure that a "tyranny of the majority" was not allowed to develop.
The end result was a system containing institutional checks and balances, with two clear overriding aims: ...
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These are laudable values, but they were not matched by an equally laudable view of human nature. Madison set out the premises behind institutional pluralist thought in his seminal Federal Paper No. 10 (Dahl, 1956, pp. 4-33). He assumed that all individuals are egoists who wish to maximise their power and that clashes of interest were inevitable. A system was needed that could cope with these clashes and also ensure that a "tyranny of the majority" was not allowed to develop.
The end result was a system containing institutional checks and balances, with two clear overriding aims: the vertical separation of powers between the executive, legislature and judiciary; and the horizontal division of sovereignty between the federal government and the states.
Madison's worldview came to be enshrined in the constitution partly because of the essentially pluralist nature of the constitutional convention itself. The 55 Founding Fathers were delegates from the state legislatures and had competing interests, as well as differing political philosophies and views on human nature. The opposite pole to Virginia's Madison was Alexander Hamilton from New York. He believed that without a strong executive, few of the nation's problems would be solved. There was also a split between the more populous states favouring a strong central government, while the smaller states favoured more decentralised arrangements. Compromise was required and it came in the form of a bicameral legislature, with the Senate being given a representative base founded on territory, while the House was to be elected on a population basis and given tax-raising powers. Crucially, both chambers of Congress and the Presidents were given powers to block legislation.
Even with these compromises, the constitution was not considered by many to guarantee individual rights, and so to ensure its ratification 10 amendments were prromised and enacted in the first Congress. These amendments to the constitution were ratified by the states in 1791 and became the Bill of Rights, giving people such rights as freedom of speech, assembly and petition and the right of a fair trial. The durability and flexibility of the constitution is shown by the fact that only a further 16 amendments have since been added, although this discounts the fact that is extremely hard to modify, requiring a consensus in both chambers of Congress and the state legislatures.
The UK's constitution is a very different beast - uncodified, easily modified and built piecemeal over centuries. There is a plurality of power and the executive is constrained in practice if not necessarily in principle, but Parliament and the laws it enacts are sovereign. Instead of a written constitution with overarching principles that all laws must be considered against, the executive (which is linked with the legislature through the practice of the Prime Minister being the leader of the largest parliamentary party) is constrained by rules, conventions and practises. The importance of these was emphasised by parliamentarian MP St John-Stevas in a House of Commons debate, as he remarked, "We have no constitution in this country: we have only procedure - hence its importance" (St John-Stevas, 1980). This was quite a widespread view among British political theorists, and it was this body of thought that gave the current British Government the impetus to make the recent constitutional changes.
Although much of the system is still intact, the incorporation of the European Convention on Human Rights into British Law through the Human Rights Act 1998 gave the UK legislation akin to the US Bill of Rights. Starting from the bottom, as it were, the British people now have the power to challenge legislation on a constitutional basis, rather than on a purely procedural basis as before. The first major case to show this difference happened this year when Home Secretary David Blunkett was found to be in contempt of court after the Home Office deported an asylum seeker despite a court order saying his human rights were being breached by not being given sufficient time to appeal.
Moving on up, sovereignty has also been devolved with the creation of parliaments for the Celtic nations and the likely creation of governments for those English regions that want them (decided through referendums). Strictly speaking, this is not such a big change as Parliament still has the power to disband these assemblies. However, practically, and more importantly politically, this is highly unlikely to happen.
At a national level, the judiciary's powers have been greatly increased with the introduction of the above mentioned Human Rights Act, as well as on the ground as judges are increasingly confident in using their powers of judicial review. This trend is almost certain to continue, with the introduction of a Supreme Court on US lines now Government policy.
At this point, we reach the legislature and executive. Here there is little doubt that the US system is more pluralist. The House of Representatives is meant to be the prime source of legislation, but the Senate and the President both have blocking powers. The House of Commons is pre-eminent in the British system with the House of Lords only having the power to delay. Disappointingly, from a pluralist point of view, Tony Blair is now retreating from previous commitments for an elected House of Lords. Although bicameral equality was never on the cards, a more democratic chamber would have greater credibility, and thus power.
On these criteria, the US is clearly more pluralist. However, the UK, has a couple of aces in the hole. First is the monarchy, which has an important constitutional role. The monarch has the right to choose the Prime Minister, the right to withhold assent to legislation, the dispensing of ministerial powers, the dissolution of Parliament, and the declaring of war. He/she may not be elected, but this is an important power source and, in theory at least, is a useful bulwark against a despotic Government, particularly as the monarch is also the Commander in Chief of the armed forces and in a position to act if Britain's 'elected dictatorship' acts in a manner against the interests of the people. Convention and Britain's 'constitutional settlement' with the Crown means these powers are now in name only, but they still exist and, in extreme circumstances, could be called upon.
On top of this is the UK's membership of the European Union and the treaty condition that EU laws have supremacy over British legislation. The EU's founding treaty also obligates states to seek "ever greater union", meaning the power of the EU will grow ever more far-reaching in British society. European governments are also in the process of trying to agree on a European Union constitution. Much of the proposed document formalises previous treaties, but it also creates a position of president and is likely to include the creation of a foreign minister. Additionally, it increases the scope for majority voting, reducing the circumstances where the powerful nations will be able to block or opt out of legislation. There is no doubt that this 'supra-national' power base increases the UK's plurality and reduces the sovereignty of Parliament - witness the squealing of British nationalists.
So, even in cases where Britain's executive, legislature and judiciary are all in favour, or at least accept, a certain policy, it is possible that another must be pursued by the state. Now that's what I call pluralism. The British Parliament still, in theory, has the power to withdraw from the EU, but that eventuality becomes less likely as economic integration becomes more pronounced each year.
In conclusion, the US has a greater degree of vertical separation of powers, as the executive is fully separated from the legislature and the bicameral chambers have equal powers to block legislation. However, the UK appears to be ahead in terms of the horizontal division of sovereignty, with both the monarchy and the EU having claims that cannot be ignored by the government of the day. Sovereignty has also been brought closer to the people of Scotland and Wales and, hopefully, Northern Ireland. If this process is continued in England, then the UK will certainly have the edge.
Dahl, Robert. 1956. A Preface to Democratic Theory, Chicago: University of Chicago Press.
Jones, Bill, and Dennis Kavanagh, Michael Moran, Philip Norton. 2001. Politics UK, 4th edition, Harlow: Pearson.
St John-Stevas, Norman. 1980. House of Commons Debate, vol 991, col 721, October 30. London: Her Majesty's Stationery Office.
