Politics Essay On The US Constitution
“The US Constitution is entrenched and rigid; the UK has no Constitution worthy of that name.” To what extent do you agree with this view? (40 marks)
This quote is certainly questionable, and there are many factors that need to be considered before a definite answer can be given. The term Constitution refers to a set of written rules and procedures by which a country is governed. It determines the structures and powers of the organs of the state. In this quote, the Constitution may be entrenched and rigid implying the processes to change or amend it are complex and difficult to achieve. The UK’s Constitution is made more complicated due to the various sources it has, both written and unwritten. This makes it more flexible and more open to changes and amendments.
In 1787, as a result of revolution in the US-the American war of independence- the Founding Fathers created a written, codified Constitution. On the other hand, the Constitution in the UK is a result of organic development and evolution. It has many sources, some unwritten, rather than one document. This makes it uncodified. The sources come under headings of Statute law, Common law, Conventions and Works of authority. In the US only 27 amendments have been made to the Constitution, the first 10 of these known as the Bill of Rights. There may have been so few changes because of attitudes. American’s have a reverence for the Constitution and a great reluctance to tinker with it. Most support Horace Walpole when he said ‘Everybody talks of the Constitution, but all sides forget that the Constitution is extremely well, and would do very well, if they would but leave it alone’. This contrasts significantly with the situation in the UK, where Constitutional reform and modernisation has been a central plank of the New Labour governments, and essentially a vote winner.
The ease of amendment determines the changes to Constitutions. In the US, the Founding Fathers created a deliberately difficult process. To pass an amendment requires a two-thirds majority in the House and Senate. Three-quarters of the state legislatures must then ratify the amendment. Few attempted amendments have made it through the process successfully. One that did make it through was the 1971 amendment that allowed the voting age to be lowered to 18. In the UK however, Constitutional amendments are passed in the same way as any other proposed piece of legislation. For example, reforms of the House of Lords or devolution are no different from that to pass legislation raising the school leaving age or establishing a national lottery.
The ways, and extent, of interpreting the Constitutions vary in the two countries. The American Supreme Court has the power of judicial review. This allows it to declare Acts of Congress, and actions of the state government or executive branch to be unconstitutional. This makes them null and void. Of the many interpretive amendments, notable cases include Brown versus Board of Education of Topeka (1954), Roe v Wade (1973), and Furman versus Georgia (1972). These cases dealt with issues on civil rights, abortion and capital punishment. So the judges’ decisions can affect the Constitution and therefore the whole population greatly. This lead Chief Justice Charles Evans Hughes to state ‘we are under a Constitution, but the Constitution is what the judges say it is’. The judges are appointed, not elected by the people, and because of this he and many others feel it is wrong for them to hold powers as great as these. In the UK however, courts do not hold this power. They can only ‘mould’ Acts of Parliament through interpretation. Therefore it could be disputed that they have less power than those in the US.
It is argued that the codified Constitution in the US is failing to change along with society due to its inflexibility. The most notorious failure to change surrounds the 2nd Amendment- the right to keep and bear arms. This was created in the eighteenth century to ensure the continuation and flourishing of the state militias as a means of defense. In present times, this is arguably not necessary and much pain and devastation have resulted. Examples include not only rises in more common crimes but also in mass killings, and more recently killings at an Amish school and Virginia tech college. The ‘outdated’ amendment highlights how inflexible the US Constitution really is. The UK, as explained earlier, could change the laws and Constitution much more easily so that it was more modern and relevant to present day needs.
However, the US Constitution’s granting of power to Congress to ‘provide for the common defence and general welfare of the United States’ is an example where it is surprisingly flexible. Cases like this one which have vague wording allow for judicial interpretation; there aren’t many though. This interpretation by the judiciary is how far judges’ powers in the UK go.
Federalism is a fundamental principle of the US Constitution, as is the theory of a unitary system in the UK. Federalism allows political power to be divided between a national government and state government, each having their own area of substantive jurisdiction (independent authority to administer justice). Although it is not written out in the US Constitution, we can see this is the system they have. Federalism in the US is: written into the enumerated powers of the three branches of the federal government, included in the implied powers of the federal government, and seen in the concurrent powers of the states. In the UK, we have a different system. We do not have the sub national laws like those in the US. This relates back to the Constitution because if the country is as big as the USA, then national fundamental laws will supposedly not fluctuate or change as much as the state ones. The state laws may be disputed as less important as the national ones because they don’t affect the whole population; only that state’s. Furthermore, the UK has fused powers whereas the US Constitution sets out a separation of powers. Sovereignty in the UK lies with parliament, but in the US it comes back to the people- popular sovereignty. Our unitary Constitution, be it in theory, recognises that sovereignty resides only in the centre of the state. However, powers that have been passed to the EU and through devolution can be argued to have undermined parliamentary sovereignty.
I believe the US Constitution is too inflexible. But this doesn’t make it a weaker democracy. If a decision was reached to change the second amendment, the struggle to carry out the process would be enormous. When so many peoples’ lives are being disrupted and other peoples’ lives taken away completely due to the fact that the Constitution is entrenched, therefore preventing change the 2nd amendment, I cannot help feeling frustrated. If this amendment was to be discarded, many would accept it to be inevitable that crime rates would fall in time and less peoples’ lives would be upset or destroyed. I do however understand the need to uphold the US Constitution as it needs to apply to everyone in every state. The Separation of Powers are, in my opinion, a brilliant tool. They allow checks and balances that among other things reduce the chances of one part of government becoming over powerful.
The UK’s Constitution though, in my opinion, is far more in touch with the present times we live in. However, I can sympathise with people who become frustrated when more and more power is passed to the EU, causing pooling of sovereignty. It would be extremely difficult to return the powers from the EU, even though in theory it is possible. Since the UK joined the EC in 1973, the acquis communitaire has led the UK towards a more codified constitution, while stopping short of adopting a fully codified constitution. EU laws and treaties now form an important written element of our constitution. They include the European Convention on Human Rights into UK law in 1998 and The Freedom of Information Act 2000. I think caution and careful decisions must be taken before rushing into short term decisions on the Constitution, and the referendum promised on the EU treaty should used.