CONSTITUTION

ESSAY FOR OPEN BOOK

A B M KHALED ANWAR

100368
 CONSTITUTION
Carl Friedrich (1937) defined a constitution as 'a system of effective, regularized restraints upon
government'. The constitution expresses the most important fundamental rules of the political
system. Three sets of rules are crucial. First, the constitution allocates governmental activities,
defining what structures will perform the various political functions (for example, defining the
powers of a president). Second, it establishes the formal power relationships among the political
structures, indicating the conditions under which each is independent or dependent upon the
actions of the others (for example, outlining how a US president may veto an Act of Congress and
how that veto can be overridden). Third, the constitution limits the power of the rulers and
guarantees the rights of the ruled, by defining the maximum extent of the state's authority over its
citizens and by enumerating citizens' freedoms and benefits from the state. At the heart of most
political systems is a constitution, a set of statements describing the fundamental rules of the
political system. Most constitutions are composed of single, written document, in the manner of the
U.S. Constitution.

Constitutions can be codified, like the USA constitution, or un-codified, such as in the UK where
there is no single document which makes up a constitution. Codified constitutions are usually the
product of independence struggles (the USA, Nigeria); revolutions (China, Russia) or the impact of
wars (Italy, Germany). Codified constitutions are a higher form of law, the 'basic law' to which all
other laws must conform -so elected assemblies cannot pass any laws they wish. Codified
constitutions are generally entrenched, i.e. they can only be amended be special procedures, usually
'super majorities'. These limits the damage political opponents can do to each other when they
obtain power. The US Constitution has a double protection - first proposals for change require a two-
thirds majority of both houses of Congress (something achieved only 33 times in over 200 years) and
then three-quarters of the states must approve - or ratify - the proposals. Only 27 have been
approved. However these safe guards come at a price as policy making is therefore often slow and
incremental. Codified constitutions often embody timeless principles, for example, a Bill of Rights
establishes the liberty to practise one religion or the right to a jury trial. Some political systems do
not have such a codified document; their fundamental rules are embedded in major statutes,
precedents, and legal decisions, as in Great Britain's 'unwritten constitution' or in Israel's 'basic laws.'

The lack of a written constitution in Britain forms the main difference between the UK and US
constitutions. Britain does have a constitution in the general sense of a 'collection of rules which
establish and regulate or govern the government'. The constitution is made up of several distinct
sources - statutes, EU law, conventions, and the customs of parliament and books of authority, the
common law and judicial interpretation of statutes. Britain has an un-codified, partly written
constitution in which unwritten conventions play an important role. Equally important, Britain has a
culture and tradition of constitutional government. The government, opposition politicians, the mass
media, pressure groups and citizens all recognise legitimate constraints on their behaviour. For
example, violent protest is seen as unacceptable. However, some key features of a codified
constitution are absent in Britain for instance no laws have special status by being entrenched so all
laws can be passed or repealed by a simple majority in parliament. There is also no concept of a
timeless set of principles such as expressed in a Bill of Rights. While it is true that the US constitution
is codified, it is not the case that the whole of the American Constitution is written, there are
elements which are purely 'convention'. Nor is the US constitution a comprehensive document, it is
only a very short document of 7,000 words.
 CONSTITUTION
While it is true that the American Constitution is predominantly a liberal document, Britain's
counterpart is essentially conservative in nature. This reflects a different view about the relationship
between government power and the citizen. Liberal ideas include limited government, the
separation of powers and the desire to safeguard individual rights through a Bill of Rights. In Britain,
the Constitution is generally seen as part of the living, changing society and culture. It is rooted
within them. It should, therefore, be allowed to grow and develop in sympathy with social change.
So, it cannot be a fixed set of principles, but should, instead, be allowed to reflect constantly shifting
public sentiment. So when it is felt that some individual rights should be sacrificed in the interests of
public order, the British Constitution is flexible enough to allow this to occur. Similarly, when it is
widely accepted that government should be granted more powers, this can be achieved without
major constitutional upheaval. This ease of change and flexibility which is present in the British
constitution is not present in the American constitution because of the supremacy and status of the
American constitution.

In the USA it is clear that the Constitution is absolutely supreme. All laws and acts of Government
are subordinate to it. Where there is a conflict the Constitution must always prevail. In Britain
however, it is accepted that, while constitutional principles are important, they can be subordinated
to the needs of government. Provided the correct procedures are adopted, ordinary law and
decisions taken under properly delegated powers cannot be constrained by the Constitution. This
principle will always be upheld by the courts. The situation is quite different in the USA where, the
Supreme Court can overrule state legislatures, Congress and the President. Justices are guardians of
the constitution.

The UK is, in several ways, moving toward the American model of government. One of the ways in
which this is happening is the increasing political nature of the courts. Judicial review is carried out in
the British courts, usually the Court of Appeal or the House of Lords. There are also challenges being
made to the constitutional validity of executive actions, and judges are required to test those actions
against established constitutional principles. In both countries the courts have the power to set
aside governmental decisions. The power of judges to limit government has been greatly increased
since October 2000 when the ECHR was introduced, but not entrenched, into UK law.

In conclusion, the US has a written codified constitution, which is, deeply entrenched it would
appear that the US constitution is very inflexible. This is largely true. The constitution is very difficult
to change, but far easier mechanisms, which are supported and up held, can be put into effect e.g.
legislation, executive agreements, judicial review etc. These are not as solid as the constitution but
are nevertheless are treated in the highest regard. On the other hand the UK constitution is not
entrenched and is un-codified and is therefore is far more flexible than the US as it can be easily
changed. But this is now somewhat limited due to the inclusion of EU law and devolution of Scotland
and Wales. At a first glance the title could be easily accepted but it is apparent the US constitution is
far more flexible than generally thought and the UK constitution is flexible but less than it appears.