Flashcards in Consitutions Deck (21)
What is a constitution ?
A constitutional is the fundamental or basic law which establishes the framework of gov.
Could argue that a constitution serves 3 main purpose ?
1) Set out rules/conventions that underpin the operation or functioning of the state.
2) provide a guided framework as to how different parts of the state (PAR/GOV) should exercise its powers.
3) sets out the nature of the relationships between the state and its citizens particularly in terms of rights, duties and obligations.
What are the 5 specific aims of constitutions?
1) empowerment of the state 2) promote legitimacy 3) highlight core values and aspiration 4) provide an operational framework for state apparatus 5) define the parameters of state activity and the rights of citizens.
1) what is empowerment of the state ?
- a state can prove it exists if it has a constitution and it has the ability to exercise authority.
2) what is promote legitimacy ?
(Links 1) a constitution can be used by a state and its gov to indicate to other states that it's a legitimate regime - it obeys by a series of rules and regulations, constitutions can also be used by state to prove its legitimacy to its own people.
3) what is highlight core values and aspirations?
- Tends to lay down the broad values and goals of a particular state regime (e.g socialist society France - 1789 French Revolution overthrew "absolutist monarchy" since then France has been a republican system and has various constitutions - wanted to build a society on liberty, equality and fraternity.
4) what is provide an operational framework for state apparatus ?
- To set out powers and responsibilities of the diff parts of the state (I.e draw lines of demarcation (splitting things) and determine the roles and powers of the various component parts of gov)
5) what - Define the parameters of state activity and the rights of citizens ?
- Most important aim - in a democratic system a constitution will usually try to constrain the powers of the gov. Consit will try and stop gov from going out of control and turning into a totalitarian state. Consit wants to protect citizens from this.
No consit is entirely written ?
In the same sense that all it's rules are formal and legally enforceable - few consit specify the roles of ( or mention) political parties and interest groups.
No consit is entirely unwritten?
None of its provisions have any legal substance all of them being conventions, customs or traditions.
- Brit consit is uncodified - means there's no single doc which explains the framework of gov. Brits lack of a written consit can be explained by history - idea that within state system the par is meant to be the most powerful insit/powerful decision- making body.
- means that Brit consit is flexible - no special legal procedure for changing (amending) the consit, meaning for instance PAR could change the composition of HOL by passing the 1999 act- with judiciary having no power to change that. This means through the way the UK is governed can be adjusted to match the needs of current society.
- flexibility of U.K. Consit is evident from the large number of constitutional reforms since 1997 - including abolition of maj of hereditary peers in HOL, introduction of codified rights of indivuals for first time in Human Rights Act 1998 & devolution to Scotland, Wales and Nothern Ireland. Arguably however these recent constitutional reforms may have made the constitutional less flexible in some respects - it's debatable for instance whether the devolution settlements could ever be replaced.
- brits constitution is a monarchical consit rather than a republican one and it is a parliamentary consit rather than presidential one.
Advantages of uncodifed
- much easier to adapt and change to the changes within society - E.g - 1997 the changing of hereditary peer system & further reforms to change the structure of par.
- parliament has more power to pass through laws and make needed new or amended polices without restriction - can link into devolution of Wales & Scotland & Nothern Ireland.
Disadvantages of uncodified
- unclear power division - codified are known to define & establish powers of every gov branch but uncodified dosent have any limitation hence gov branches having an uncontrolled branch of growth and power.
- controversy creation - greatest disadvantage - because there's no clear cut laws written down , misunderstandings can arise about the customs and use of the constitution provisions
- A written consit is a formal document defining the nature of the constitutional settlement, the rules that govern the poltical system & the rights of citizens & gov in a codified form.
- US consit was the worlds first consit - only 1 page that confines itself & has loose framework.
- Consit of US of America is the supreme law of US.
- empowered with sovereign authority of people by the farmers & the consent of legislatures of states, it is the source of gov powers & also provides important limit on gov that protect the fundamental rights of US citizens.
- a chief aim of the consit as drafted by convention was to create a gov with enough power to act on a national level but without so much power that fundamental rights would be risk.
- one way that this was accomplished was to separate the power of gov into 3 branches and then to include check n balances on those powers to assure that no one branch of gov gained supremacy.
Advantages of codified ?
- limited gov - the rules for gov are established so it becomes clear when gov oversteps the mark.
- the power of the leglisture is constrained cutting its sovereignty down to size.
- protection of rights - basic rights are enshrined in the consit such as freedom of speech , meaning legalisation cannot trample over these rights.
- clear rules for political procedure - a codified consit allows for removal of precedent as a form of procedure. Things become far more clear-cut.
Disadvantages of codified ?
Rigidity- codified consit are notoriously difficult to amend, less responsive and adaptable than uncod- US consit has only had 27 amendements since 1787.
- Judicial Tyranny - cod consit is interpreted by the judiciary & as such it can be the case that judge can " legislate from the bench".
-Condititionsal doc ate inevitably biased - endorse one set of values / principles in preference to others.
Institutional framework (3) points
- A consit will vary depending upon the type of gov & political system which it defines (3);
1) monarchical non- pol actors/powers or republican state system without king/queen/monarch.
2) parliamentary power resides in the par ( has PM) or presidential someone who is elected president.
3) unitary most of the power is centralised at national level or federal very strong regional gov.
U.K. Consists of - Monarchical, Parliamentary and Unitary.
Unitary - although devolved powers have been granted to Scotland, Wales and Nothern Ireland most of the national level of governance is at Westminster par.
USA consists of - Republican, presidential and federal.
Presidential - they have a president & there's no intersection between par and gov and it contains a very strong regional gov.
Codified consit are rigid because it is usually quite difficult to make consit amendments.
USA for example you need 2/3 maj in both houses in the US congress ( American parliament) (both houses - house of senate and house of rep) & also must have a 3/4 maj of each othe 50 individual sate gov.