CODIFIED CONSTITUTIONS Advantages and Disadvantages

What is a codified constitution?  One that is written down in a single document (e.g. US Constitution (1787) in 20 pages; EU constitution > 2,000 pages!)  Enumerates powers and relationships under thematic headings (i.e. The legislature, the judiciary etc.)  Is usually in formal, legal language – this can be very different (e.g. US constitutional language v. EU constitutional language)  The UK does not have a codified constitution

Why have one?  Defines powers clearly  Can easily be used and referred to – interpretation  Provides a more effective check on powers of any institution  Enumerates relationships specifically

Why not an uncodified constitution?  Uncodified – too elastic; unenumerated – too open to interpretation – no guarantees  Organic, changing, evolving – but isn’t democracy inorganic?  Unclear – who knows what the law is?  Easy to amend without sufficient reason  Places parliament as sovereign – abuse of power?  Complex concept where clarity is essential

Advantages of the Uncodified Constitution  Flexible to changing social, political and economic conditions.  All laws are equal and therefore no government is withheld by the actions or laws of another. This is known as the theory of Parliamentary Sovereignty.  Rules, principles and institutions have proven their worth over time rather than artificially created. E.g. Judicial system.  Decisions on constitutional affairs are usually in the hands of elected officials, not appointed judges.  Historically accepted conventions define the passing of a Bill and not outdated clauses.

Disadvantages of the Codified Constitution  Inflexible to change and therefore can lead to racial, political and social inequalities being enshrined. E.g. right to bear arms/Civil Rights movement.  Checks and balances can be too strong leading to gridlock. E.g. US Congress.  Too hard to change. i.e. need 66% of Congress to approve and 75% of states. Reason for only 27 Amendments.  Can be overridden by “States of Emergency”.  Constitution in hands of unelected officials.  Separation of powers to some extent.  Governments can insert “notwithstanding clauses” to override rights. E.g. Canada.

Case Study: UK  The UK has an uncodified constitution and it doesn’t seem to be exploding.  The UK’s constitution has allowed for:  Democracy. E.g. The Representation of the People Acts and Parliament Acts 1911 and  Devolution in a country that is ever-changing in structure.  The weakening of the monarch and strengthening of parliamentary government.  Landmark Acts that go with the context (e.g. Human Rights Act 1998, Freedom of Information Act 2000 and the Equality Act 2010).  The ability to repeal Acts of Parliament without needless/excruciating procedures.  Provides governments with the ability to fully make use of the doctrine of mandate and manifesto.

Case Study: USA  The USA has a codified constitution and it is in a constant state of gridlock and chaos.  The USA’s constitution makes life impossible because:  Any Act of Congress can be struck down by the Supreme Court. E.g. DC handgun ban.  Any changes must work through a framework of inflexible regulations/procedures. E.g. Constitutional Amendments need 66% of both Houses of Congress and 75% of the States to approve.  The Constitution, as it stands, was/is not prepared to deal with the rise of political parties and regular, democratic elections by the whole nation. = gridlock.  Doctrine of mandate and manifesto derided by constant elections during presidency.  Checks and balances, and separation of powers can be overridden and/or prevent necessary enforcement of Acts. E.g. CR Movement in the 1950s, 1960s and 1970s.

ANY QUESTIONS