Codified constitutions

1. Codified constitutions Advantages and Disadvantages

2. 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

3. 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

4. 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

5. 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 • Historically accepted conventions define the passing of a Bill and not outdated clauses.

6. 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/CR 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.

7. 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 1949. • 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.

8. 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.

9. Any Questions