346 poARgIERT Tree Constitution A constitution is, broadly, @ set of rules, written and Unwritten, that seek to establish the duties. 7 powers and functions of the various institutions of government, regulate the relationships between them, and define the relationship between the state and the individual. The balance between written (legal) and unwritten (customary or conventional) rules varies from system to system. The term constitution is also used more narrowly to refer to a single, authoritative document (a ‘written’ constitution), the aim of which Is to codify major constitutional provisions; it constitutes the highest law in the land. Since not all major provisions can be covered by a single document, a constitution, in this sense, is not co- extensive with constitutional law. 15 CONSTITUTIONS, TH LAW AND JUDIC JARI ES | | # Constitutions : { f ‘Traditionally, constitutions were seen 2° important for two reason. First, th 4 re wot government itself & neat introduction 4" q believed to provide a descripti institutions and their roles. democracy, even its defining feat may aim to lay down @ conducted, none has been and omissions can be found constitutionalism (see p. 321) is is nothing to prevent a constitu of communist states and som profoundly illiberal. Why then the machinery of government the objective of constitutions system. In effect, these ar ment establishes ordered bring stability, predictability an: Secon ture. Sadly, nel in all constitut closely lin tion being un with a discussi is rules that govern U rule in society at large, .d order to tI ‘The idea of a code of rules providing guida an ancient lineage. These cod! power, usually religious in character, t0 hs acknowledged t Yen ot ‘heaven’ id respect to Shari’a law. Not conform. Egyptian pharaol emperors were subject to TF Law, and Islamic caliphs pai principles were also enacted in in the Athenian constitution a special procedure) and the ps les traditi ordinary law, etween the nomos (Ia sephismata (decrees t tion of the assembly). However, such ancient in the modern sense, in that they generally relating to the authority an sstablished authoritative mechanisms through w! and breaches of the fundamental law punished. CONSTITUTIONS 319 g constitution: strengths ang Weaknesses a codified or writter M ent of : constitution include the following: fT nips and Key constitutional provisions i wa Pring them from interference by the govey power of te legislature is constrained, cutti are entrenched, mment of the day, ‘ Ng its sovereignty down to 3H jc judees are able to poice the con _ nota are upheld by other public bodies, more s Fil liberty is ecurely protected, and authoritarianism is kept at ‘stitution to ensure that its 2 document has an edu codified do cational value, in that it hightights the a mj yalues and overall goals of the political system. ? aronacks oF WeEKTESSES Of codification include the following: codified constitution is more rigid, and may therefore be less responsive and + A ptebe tran an uncodiied one. éavernment power May be more effectively constrained by regular elections + iy a constitutional document, : With 2 codified constitution, constitutional supremacy resides with nonelected jg rather than with publicly accountable politicians. + censtutional provisions enshrined in custom and convention may be more videly respected because they have been endorsed by history and not invented". « corsttutional documents are inevitably biased, because they endorse one set cf values or principles in preference to others, meaning that they may precipitate more conflicts than they resolve. Inthe UK in particular, this has stimulated deep controversy and widespread stcsm, Parliamentary sovereignty (see p. 325) has been held responsible for what ‘urd Hailsham (1976) termed elective dictatorship: that is, the ability of a govern- ®ttoactin any way it pleases as long as it maintains majority control of the House Commons. The concentration of power in the hands of the executive to which slads, and the consequent threat that it poses to individual rights and liberties, ~ encouraged some to argue that the UK has no constitution at all. If governments f Ronee elected, act in whatever way they wish, they are surely at liberty to enlarge © “sown powers at will, and are thereby unconstrained by constitutional rules of * kh In Grifith’s (1991) phrase, the constitution in the UK is ‘what happens’. “concerns fuelled in the 1980s and 1990s a growing campaign in the UK for ee ecostitutional reform, which, together with the Labour Party's long period in Sloe (1973.97), eventually converted the party to the reformist cause. From elective dtatorahip: & 2 ects the Blair government reshaped important aspects ofthe UK's consti. constitutional mbalane in 2 Sap hndscape, Devolution (see p. 173) was introduced in Scotland, Wales and _ Which executive power is checked only by the need to Neen ay tela, refer electoral systems wei s | referendums and proportional electoral. sys Te MOTE win subsequent elections. se ‘ 5 | the European Convention of Human Rights was incorporated into UK eee15 CONSTITUTIONS, THE LAW AND JUDICIARIES W law through the Human Rights Act (1998), hereditary peers were remove House of Lords, and freedom of information legislation was passed, jy),,"", me stops short of codification, some have argued that it has broy Mt hy, thi from parliamentary sovereignty to popular sovereignty (Hazel, 199)" "oy, ‘An alternative form of classification distinguishes between rigid any constitutions. What procedures exist for amending a constitution? How gy! the constitution adapt to changin nstances? On the face of it, Codified titutions are likely to be relatively inflexible because their provisions are jy 4 entrenched in ‘higher’ law. By the same token, uncodifed ones appear tg eg and adaptable, because laws of constitutional significance can be changed 1) the ordinary legislative process and conventions are, by their nature, conduct and practice. However, there is no simple relationship between ae m constitutions and rigidity, or unwritten ones and flexibility. ile, Various degrees of flexibility are possible, and, surprisingly, the flexi constitution is not directly proportional to the formality of its procedures ang, Whereas the US constitution has endured, albeit with amendments, sing A France has had, over the same period, no fewer than 17 constitutions. simi, : amendment procedures may be more or less complex or difficult. In Austalig mark, Ireland and Spain, for example, referendums (see p. 250) are used to yy the public’s approval for constitutional amendments or ratify ones endorsed by iy legislature. In other cases, special majorities must be achieved in the legislature, the requirement in Germany’s Basic Law that amendments must have two.thyg, support in both the Bundestag and the Bundesrat. In the USA, in addition to ty thirds majorities in both houses of Congress, constitutional amendments mut ratified by three-quarters of the states. This requirement has meant that a mere% constitutional amendments have been passed, with ten of these (the so-called Bil Rights) having been introduced in the first two years of the constitution’s existeng, The seeming rigidity this produces is, however, misleading. Although the words of the US constitution and other codified documents may change litle thr meanings are subject to constant revision and updating through the proces judicial interpretation and reinterpretation. The role of the judiciary in ths respec is examined in the final main section of this chapter. Just as written provisions can allow for flexibility, unwritten ones can, at times, be rigid. While in the UK tie conventions of ministerial responsibility have proved to be so adaptable they cat almost be reshaped at the convenience of the government of the day, other conver tions are so deeply engrained in the political culture and in popular expectationstht their abandonment or modification is virtually unthinkable. This certainly applisie the case of conventions that restrict the political role of the monarchy and prevst monarchs challenging the authority of Parliament. A third system of classification takes account of the relationship between com tutional rules and principles, on the one hand, and the practice of government tt ‘working’ constitution) on the other. As early as 1867, Walter Bagehot in The Exh! Constitution ((1867] 1963) distinguished between the ‘dignified’ parts of the titution (the monarchy and the House of the Lords), which promoted port allegiance but exercised litte effective power, and its ‘efficient’ parts (the cabine*? the House of Commons). An effective constitution is one that fulfils two tt First, in major respects at least, the practical affairs of government correspond? provisions of the constitution. Second, this occurs because the constitution hi capacity, through whatever means, to limit governmental behaviour. pro, % n, ity of oowa CONSTITUTIONS ¢ constitution therefore requi fect -quires not me peace eect of thos ues oe a a ogls. AS whl se blo, how Fain government and estab: oo Jesser extent; the real w, however, all constituti i ae FI ; the real issue is thus the signif ions are violated rg oe, Some constitutions canbe ch ignificance and regularity of wt olat ly de lassified as nominal, in that thei sy accurately describe governmental behavi , in that their texts or nist states See Sanaa but fail to limit it. For ; 20 yowledged the monopoly of power of the fiche Leal ppb tODS were politically irrelevant because Ge ee We ? ons! ithe col stitution, was kept under firm ie judiciary, charged with p82 conatitations. These fer pewter kheer avian yal Spar, only @ propaganda role, Ti rom pola practi end fev at bes orate, where the This is particularly the case in dictatorial ta th commitment to individual rights and liberties a ele further an the content of the state’s constitutional documents. tons hav igo been classified in terms oftheir content and specifically ‘onal structure they underpin. This enables a number of distinctions to Moa ample oraueas have traditionally been categorized as either di he In theory, the former invest constitutional supremacy ina Mile in the latter political authority is derived from the people. How- rulers bi e emergence 2 ee monarchies (see p. 366), in which power has Seip beeh trans! - 0 see institutions, has meant that, apart from inthe surviving absolute monarchies in states such as Nepal and Saudi Arabia, js distinction 1S no longer of central importance. More widely used, though, is Bf incon betwees unitary and federal constitutions (discussed more fully in chapter 8): thats, the difference between constitutions that concentrate sovereignty asingle national body and ones that divide it between two levels of government. * approach is to differentiate between what are seen as parliamentary 1 presidential constitutions. The key here is the relationship between deereutive and the “esembly. In parliamentary systems the executive is derived fom and accountable to the ‘assembly, while in presidential ones the two branches sfgorerament function independently on the basis of a separation of powers (see 9.39) These different systems are examined in Chapters 15 and 16. Finally, pluralist > atutions can be contrasted with ‘monopolistic ones. The former are characteristic ‘Tiber democracies in that they ensure that political power is dispersed, usually though guarantees of participatory rights and party competition. ‘The latter are tecommonly found in communist oF ‘authoritarian states where the unquestion= ‘le authority of a ‘ruling’ party or supreme leader is formally entrenched, thus éenonstating that a constitution and liberal constitutionalism do not necessarily ‘hand in hand. a ‘i veranothe Jorn x / alee, io the vast majority of states have constitutions but also most institutions msn groups have rules that have some kind of constitutional effect. his cs snter tba been weds sy tes Lice ESS and the Euro- jal government, political parties, Pani passion, and is also true of regional and proving! ibs and so on. The popularity of these hhat constitutions somehow play a ficult, and perhaps impossible, 32a qb Constituti Constitutionalis narrow sense, is the practice of limited government ensured PY, the Bistence of a constitution Thus constitutionalism CaM inthis sense, be sid t0 exist when government institutions and political processes are erfectively constrained by Constitutional rules. More Sroadly, constitutionalism f° proet of political values aN epirations that reflect 172 Gesire to protect livery jonalism m, ina constitution, @ a separation of Powers bicameralism, and federalism oF decentralization.ee 15 CONSTITUTIONS, THE LAW AND JUDICIARIES for states and other organized bodies to cae ble 2 Const difficulty with answering this question is oe Stations do not havea simple purpose. Rather, they have a number Of functions and are used gee, ways. The most important of these are the following: ‘eye * to empower states to establish unifying values and goals * toprovide government stability to protect freedom © to legitimize regimes Empowering states Although the popular image of constitutions is that they limit government more basic function is that they mark out the existence of states and make q* concerning their sphere of independent authority. The creation of ney (orhether through the overthrow of colonialism, the fragmentation of larga or an amalgamation of smaller ones) is invariably accompanied by the enact a constitution. Indeed, it can be argued that such states exist only once they a consttition, since without one they lack formal jurisdiction over a pari territory ora governing apparatus that can effectively exercise that juisdictign | The state of India can thus be said to have come into existence in the peg between the granting of independence in 1947 and the adoption of its federal em | titution in 1950: during this time, a UK-appointed Governor General continudy exercise supervision. In the same way, the American Declaration of Independenay | 1776 initiated the process through which the USA achieved statehood, but ths, not completed until the US constitution was ratified in 1789, The need for empove | ment also applies to subnational and supranational bodies. In federal systems | example, constituent provinces or states have their own constitutions in oe | to guarantee their sphere of authority relative to that of central government. Te ‘constitution’ of the EU, which comprises treaties and agreements such asthe Trey of Rome (1957), the Single European Act (1986) and the Treaty on European Uni | (or Maastricht Treaty) (1992), authorizes EU bodies to intervene in various: ways the affairs of EU member states. Establishing values and goals In addition to laying down a framework for government, constitutions invari embody a broader set of political values, ideals and goals. This is why consti cannot be neutral; they are always entangled, more or less explicitly, with ideooe™ priorities. The creators of constitutions therefore seek to invest their regime wid! set of unifying values, a sense of ideological purpose, and a vocabulary that used in the conduct of politics. In many cases these aims are accomplished xp!" A in preambles to constitutional documents, which often function as statem* national ideals. These ideals can vary from a commitment to democra) or the welfare state to a belief in socialism, federalism or Islam. The 1977 constitution thus proclaimed the USSR to be a “developed socialist socitY” Germany's Basic Law states a determination to ‘serve the peace of the worl: In other cases, however, these values a Charles Beard (1913), for example, 1 ety int ind ideological priorities are a io argued that the provisions of the US © aYor ea aims tates ates, at of have cular riod ns ed to ce in S was, ywer- s, for order . The reaty inion ays in riably tions ogical vith a an be icity nts of edom Soviet while CONSTITUTIONS “au esentlly By economic interests, in particular the desire to defend seit the sng power of the propery “f at ution f sve, a Knowle ge the significance of racial divisions, the constitution eas that aie om soil ls ot gender I the ease of the jon the doctrine of parliamentary sovereignty hasbeen interpreted asa ging, or even discrediting, forms of extraparliamentary political oa isu oo ye i overnment stability ps BME jes, powers and functions amongst the vara stitutions of vt a actras ‘orpanizati ahi ; » ve constitutions act as “organi tional charts’, ‘definitional guides’, or ¥0nt SJaeprnts. AS such, they formalize and regulate the relationships en n be oa bodies and provide a mechanism through which conf yet ed and resolved. The Indian constitution, for instance, contains a highly cn sescrption of institutional powers and relationships in a lengthy document sos 00 articles, Despite varying in their degree of specificity and their gaan constitutions full the vital function of introducing a measure of gainer jerand predictability to the workings of government. From this point of ais ome oF of constitutional government is random, capricious or arbitrary ven nt Thisis precisely why constitu ions go hand in hand with organization. : al interaction can be maintained only ifall concerned know gre ptterns of SOCk inet a eee who can expected dow putecting freedom vied democracies it is often taken for granted that the central purpose of a snittion sto constrain government with a view to protecting individual liberty. sry constittions tend to be viewed as devices for establishing and maintain- mented government. Certainly, constitutions lay down the relationship between sate and the individual, marking out the respective spheres of government wasnt and personal freedom (see p- 324). They do this largely by defining civil ‘sand liberties, often through the means of bill fright. The impact of liberal -ertonalism has ensured that in many cases ‘classic’ or traditional civil liberties sep.) suchas freedom of expression, freedom of religious worship, freedom {enbl and freedom of movement, are recognized as ‘fundamental’ in that rights have a liberal ‘ey ue constitutionally guaranteed. These so-called negative a because the state is thus prevented from encroaching upon the they mark outa sphere of government inactivity. Pte number of states have, in addition, entrenched a range of economic, ae ree rights, such as the right to healthcare, the right to education and oo work These postive rights however, have caused controversy, % they ar inked to the expansion, not contraction, of governments and dependent upon the economic and social resources Mites 1 Tenn tin goesion. Can these rights and freedoms be thought of as ean anihttere is no practical way of guarantecing their delivery? tn Sow mtion tis is acknowledged through the qualification that the “apmen, OF ample, is secured ‘within the limits of economic capacity and n vilarly, it can while the Fourteenth Amendment and Fifteenth Amendment to the Bill of rights docurnont that Abit of rights ‘constitution spocities the rights and freedoms of the individual, ‘and so dofines the legal ‘extent of olvil liberty (s8¢ p. 407), Entrenched bills of rights can be distinguished from statutory ones. AN entrenched bil of rights 18 enshrined in ‘higher’ lave ‘and thus provides the basis for constitutional judicial review (soe p. 330). A statutory bil of rights, OF statute of rights, can be ‘amended or repealed through the same processes as other statute 1aWs. ‘Supporters of bills of rights ‘argue that they are the only effective means of providing citizens with legal and possibly constitutional protection against the state, and that they have an educational value in promoting a ‘human rights culture’, Opponents point cout that they enlarge the authority of judges at the expense of elected politicians; that they are flexible and artificial; and ‘that they foster a litigious culture. Limited government: Government operating within constraints, usually imposed by law, a constitution or institutional checks and balances. Negative rights: Rights that mark out a realm of unconstrained action, and thus check the responsibilities of government. Positive rights: Rights that ‘make demands of government interms of the provision of resources and support, and thus extend its responsibilities324 * Freedom The term freedom (or liberty) means, in ts broadest sense, the ability to think or act as one wishes. A distinction is hevertheless often made between ‘negative and “positive liberty: that is, between being free from something and being free £0 do something (Berlin, 1958). Negative freedom ‘means noninterference: the absence of external constraints on the individual. The individual is thus ‘at liberty’ to act as Ne or she wishes. Positive freedom is linked to the ‘achievement of some identifiable goal or benefit, usually personal development, self realization or selfmastery. ‘The ‘freedom from’ and ‘freedom to’ distinction is misleading, however, because every example of freedom can be described in both ways. For instance, being free from ignorance means being free to gain an education. 15 CONSTITUTIONS: T . jtimizing regimes i Legitimizing eB stitution isto help build legitimacy (seep, | % ipnatitutions, even by states with congty !! wf idespread use 0} ee it ae ‘or a complete facade. This legitimation process has on ‘ sc the existence of @ constitution is almost a py. oe ee ace ge international community and for isco | 2 ere significant, boweves is abit © ue 8 ont wet| legitimacy within a state dhrough the promo f respect an compliance 0 |; legitimacy pation, This posible Deus 9 conn both | ‘jgseminates the values of the Tukng elite, and invests the governmental sy a : f ye cisak of legality. To make the constturion, more effective inthis respect, gt are often made to prom : . te veneration for the constitution itself, ether a0 a nent of historical importance oF 284 symbol of national purpose andideniy “| | nstitution is often taken for granted. The existence of ‘ihation, so the assumption goes, provides benefits such as political stably nat | government and guaranteed rights and liberties. Nowhere is this faith in ag! | sever pore developed than in the USA, where it amounts, in Louis Hartz (ig | aaron righe cult of constitution worship’. OF course this faith has been od. wrcted, not least by allegations during the Watergate crisis that President ial Nixon had helped to cover up illegal acts by senior White House officials dung 1972 election campaign. Nevertheless, Nixon’s resignation in 1974 enabled iy successor, Gerald Ford, to declare that ‘our constitution works’, reiterating ty Since sentiment of constitutionalism: ‘we have a government of laws, not of ey However, the mere existence of a constitution does not ensure that a government | constitutional. Indeed, there is little evidence that a constitution is a major guatane against tyranny, still less that it offers ‘ticket to Utopia’. Constitutions ‘work’ in certain circumstances. In other words, they serve ht various purposes only when they are supported by a range of other cultural politi economic and social conditions. In particular, constitutions must correspond tou be supported by the political culture; successful constitutions are as much a prot of the political culture as they are its creator. This is why so many of the mol liberal-democratic constitutions bequeathed to developing states by deparig colonial rulers filed to take root. Constitutional rules guaranteeing individual ris and political competition may be entirely irrelevant in societies with ech entrenched collectivist values and traditions, especially when such socielts a struggling to achieve basic economic and social development. In the same way, the various Soviet constitutions not only enshrine = — foreign 2 the mass of the people, but also failed to develop ne : | support for sch yale ding the 74 years of the USSR’s existence. In the US aad ae Fe institutionalized racism, the constitutional aa pet wpheld i : Seas black people enacted after the es ‘he | epee Pea ae ern states until the 1960s. On the other hand, ™ eee ae ' spite the fact that it was imposed by the occupying 38 Tae a rights in place of the more traditional Japanes ore eee remarkably successful, providing a stable frame | and political development. As in postwar Germany, y D nstit De The value of a ‘soil |ad Key factor is whether or not a on te interests and values of do minant y" sat ie oe 7 Liberti ined civil liberties. Constitutio, sovereignty to alter the constitutional rol Jocal government and the trade unions, and, some argued, substantially costtution bas had the advantage of bein 8 Sustained b, yan t groups, G iq during 1977_, bition were abrogated by the declaration of 7-81, mi oof support of the military leadership prove ote Spsttutional niceties. The UK's uncod Fe unusual SCOPE for abuse because it relies je emment of the day. This became particul eteents of the 19808 and 1990s exploited fied constit so heavily o} “economic " is respected by rulers and tution is often said to mn the self-restraint of larly apparent as the Conservative the flexibility inherent in parlia- les of institutions such as the civil ‘he final factor is the adaptability of a constitution and its ability to remain despite changing political circumstances. No constitution reflects political Us and few set out specifically to do so, Generally, success constittions are “aren flexible to accommodate change within a broad and enduringly relevant fomevork; those that are infinitely flexible are, strictly speaking, not constitutions at J TheUS constitution is particularly interesting inthis respec. Its ‘genius’ has ben ts ‘mentation on broad principles and the scope it therefore provides to rectify its own beens, US government has thus been able to evolve in response to new challenges ‘ndnew demands. The formal amendment process, for example, allowed US institu- finsto be democratized, and in the twentieth century judicial interpretation made Such changes, however, can be said to have o ery have continued to be respected, albeit in teteforms the Blair government introduced +r1997, In contrast, the constitution of the yccurred withit renewed Prucea succession of weak and unstable governments. AS the Yvaluton to this impasse, the result was a new ith Republic, which broadened presidential * ‘vised by General de Gaulle. te a Thelaw id 1 m Ny t r emoralit 1 he htonship between taw and morality sone “On the surface, law and morality are VerY ee ee of th constitution different thin pl the growth of presidential powers, a shift of authority from state to federal pemment,and, in certain respects, a widening of individual rights. in the constitution, in tut coe principles such as the separation of powers, federalism and individual form. The same is true of in the UK’s uncodified constitution Fourth French Republic proved to be tariable because the emphasis it placed upon the National Asemby tended to constitution offered in 1958, inaugurating power according to 2 blueprint ¢ thorniest problems in political gs. Lawisa distinctive liamentary sovereignty Parliamentary sovereignty refers to the absolute and unlimited authority of a Parliament or legislature, reflected in its ability to make, amend or repeal any law t wishes. Parliamentary sovereignty is usually seen as the central principle of the British constitution, and results from the absence of 2 codified constitution, the supremacy of statute law over other forms of law, the absence of rival legisletures, and the convention that no parliament can bind its successors. Supporters ‘commended the principle for investing constitutional supremacy in a representative institution rather than an artificial body of rules or @ nonelected body of judges. Crities point out that the principle is implicitly authoritarian, leading to ‘elective ictatorship" when the patiament is executive dominated, Law: Aset of public and enforceable rules that apply throughout political ‘community; law is usually recognized as binding.