22.2.1 Codified or uncodified and their sources, provisions and principles

Nature of the Constitutions

• Sovereignty and Source of Authority
  • US Constitution: The US Constitution is sovereign and serves as the ultimate source of authority. The Supreme Court holds the final power of interpretation, making the Constitution what the judges say it is. Judicial review allows the Supreme Court to invalidate laws and actions deemed unconstitutional.
  • UK Constitution: Parliamentary sovereignty defines the UK Constitution, meaning the Constitution is what the Westminster Parliament decides. This was reinforced by the 2019 court case concerning the prorogation of Parliament, which upheld Parliament's supreme authority.
• Checks and Balances
  • US Constitution: The US Constitution has a formal system of checks and balances. This often leads to legislative gridlock, particularly when different parties control the presidency and Congress. This system makes it difficult for presidents to pass legislation without significant negotiation and compromise.
  • UK Constitution: The UK system has fewer formal checks and balances, allowing prime ministers, especially those with a large Commons majority, to exert significant control over the legislature. This can lead to accusations of an 'elective dictatorship', where the executive has substantial dominance over legislative processes.
• Separation of Powers vs. Fusion of Powers
  • US Constitution: The US Constitution embodies a separation of powers, ensuring that members of the executive branch cannot serve simultaneously in the legislature. This separation is designed to prevent the concentration of power and to maintain a balance between the branches of government.
  • UK Constitution: The UK system reflects a fusion of powers, with the executive branch drawn entirely from the legislature. However, since 2009, the judiciary has become institutionally separate with the establishment of the UK Supreme Court.
• Protection of Citizens' Rights
  • US Constitution: Citizens' rights are entrenched and inalienable, primarily outlined in the 1791 Bill of Rights (the first ten amendments). These rights are protected from government infringement and can only be changed through the difficult formal amendment process.
  • UK Constitution: In the UK, citizens' rights are protected mainly by parliamentary legislation, such as the Equality Act 2010, and by common law. These rights are not entrenched and can be amended or repealed by Parliament.

Sources of the Constitutions

• US Constitution: The US Constitution is a single codified document created in 1787. It has been formally amended only 27 times, with the process being deliberately challenging to ensure stability and continuity.
• UK Constitution: The UK Constitution is uncodified and has several sources, including the 1689 Bill of Rights, various statutes such as the 1918 Representation of the People Act, and common law. It has evolved over centuries, with some elements, like the Magna Carta, dating back to the Middle Ages. It can be easily altered through Acts of Parliament.

Structure of the Constitutions

• US Constitution: The US Constitution clearly delineates the separation of powers between the federal government and the states, establishing a federal system of government. This system ensures that states have significant autonomy in various areas, balancing power between state and federal authorities. The Constitution is designed to be a compromise, balancing interests such as those between small and large states in congressional representation (e.g., the Connecticut Compromise).
• UK Constitution: The UK Constitution favors a unitary style of government, with no explicit provision for federalism. Devolution has created a quasi-federal model, but this remains reversible by Parliament. Devolution in the UK is asymmetrical, with different powers granted to Scotland, Wales, Northern Ireland, and none to England. The Constitution is a product of gradual evolution, reflecting the UK's transition from a traditional monarchy to a parliamentary democracy over several centuries.

Amendment Process

• US Constitution: The US Constitution is difficult to amend, requiring significant consensus, which ensures that changes are made only after thorough consideration and widespread agreement.
• UK Constitution: The UK Constitution can be easily amended through Acts of Parliament, reflecting its flexible and evolving nature.

Head of State

• US Constitution: The US is a republic with an indirectly elected head of state (the President), who plays an active and politically partisan role.
• UK Constitution: The UK remains a constitutional monarchy with an unelected head of state (the Monarch), whose role is largely ceremonial and non-political.

Separation of Powers

• US Constitution: Embodies a separation of powers, or at least separate personnel and shared powers. Members of the executive branch cannot simultaneously be members of the legislature.
• UK Constitution: Reflects a fusion of powers where the executive is drawn entirely from the legislature. However, the judiciary became institutionally separate with the creation of the UK Supreme Court in 2009.

Codified or Uncodified and Their Sources

Codification

• US Constitution: A single codified document created in 1787 and amended infrequently. It is considered rigid and difficult to amend, requiring a complex process.
• UK Constitution: Uncodified, with multiple sources including the 1689 Bill of Rights, various statutes such as the 1918 Representation of the People Act, and common law. It is flexible and frequently amended through Acts of Parliament.

Sources

• US Constitution:
  • Single Document: The Constitution itself is the primary source, along with its subsequent amendments.
  • Bill of Rights: The first ten amendments, known as the Bill of Rights, entrench citizens' rights.
• UK Constitution:
  • Statute Law: Key statutes like the Equality Act 2010.
  • Common Law: Judicial decisions that shape constitutional principles.
  • Conventions: Unwritten practices that are followed by the government.
  • Historical Documents: Magna Carta and the 1689 Bill of Rights.
  • EU Laws and Treaties: Until Brexit, these were also part of the UK Constitution.

Provisions and Principles

Federalism vs. Unitary System

• US Constitution: Explicitly provides for a federal system where power is shared between the federal government and the states. Federalism is an inherent characteristic.
• UK Constitution: Traditionally favors a unitary system. Devolution has created a quasi-federal structure, particularly in Scotland, Wales, and Northern Ireland. However, this is asymmetrical and reversible by Parliament, with no federal provision for England.

Citizen's Rights

• US Constitution: Citizens' rights are entrenched and inalienable, found mainly in the Bill of Rights (1791). These rights are protected and difficult to alter without constitutional amendments.
• UK Constitution: Citizens' rights are mainly protected by parliamentary legislation (e.g., the Equality Act 2010) and common law. Rights can be more easily changed or removed compared to the US.

Government Structure

• US Constitution: Establishes a republic with an indirectly elected president who is highly active and politically partisan.
• UK Constitution: The UK remains a constitutional monarchy with an unelected head of state whose role is largely ceremonial and non-political.

Historical Development

• US Constitution: The Constitution was created in 1787 as a compromise, particularly with the Connecticut Compromise, balancing the representation rights of small and large states. It has been amended infrequently, with some amendments like the 14th being transformative.
• UK Constitution: A product of gradual evolution, the UK Constitution has developed over centuries, transitioning from a traditional monarchy to a parliamentary government in the late seventeenth century, and eventually to a full democracy in the twentieth century.

Examine the ways in which the US and UK Constitutions are similar

Paragraph 1:

One similarity is through their sovereignty

• In the US separation of powers is through the executive, legislative and judicial branches, each branch provides checks and balances
• Similarly, in the UK the House of Lords, House of Commons, the Supreme Court and the Prime Minister share powers. Paragraph 2:

Another similarity is through their protection of rights

• The US has the Bill of Rights and a powerful Supreme Court to uphold this

• This is similar to the UK, the UK has the Human Rights Act 1998 which is also protected by the Supreme Court

• Both constitutions ensure the rights of the people are protected Paragraph 3:

• One similarity is through their principles

• The US Constitution has embedded the idea of a limited government, ensuring a separation of powers as well as devolution in the form of federalism, and also bipartisanship

• Similar to the UK as the UK has devolution, a divided parliament that relies on bipartisanship and separation of powers

• Both Constitutions are similar as they provide dispersion of powers to ensure a central government does not have too much power