Constitution Flashcards
(11 cards)
Codification and Constitutional Sources
-a central difference lies in the codification of the US Constitution, which exists as a single, entrenched legal document written in 1787. It sets out the core structures and limitations of government power and is upheld by the Supreme Court. By contrast, the UK’s un-codified constitution is composed of several sources including statute law, common law, conventions and authoritative texts.
-From a structural perspective, the codified US Constitution provides a clear and authoritative legal framework, making it easier to identify constitutional breaches and hold political actors accountable. The UK’s flexible structure, however, allows for constitutional evolution through ordinary Acts of Parliament, enabling rapid change but offering weaker institutional restraints. For example, rights protections in the UK under the Human Rights Act 1998 can be repealed by a simple majority, whereas US constitutional rights are entrenched. This difference has profound consequences for how stable and predictable each country’s political rules are.
Separation of powers vs fusion of powers
-Another key difference is that the US Constitution enshrines a strict separation of powers between the executive, legislature and judiciary with checks and balances designed to prevent dominance by any one branch. In contrast, the UK operates under a fusion of powers where the executive is drawn from the legislature, and the prime minister typically controls a majority in Parliament.
-Using the rational choice approach, we can see that US politicians including the president, must act strategically to advance their agenda within a fragmented system. They face institutional obstacles such as congressional opposition and judicial review, encouraging compromise and negotiation. In the UK, a prime minister with a large majority can often act unilaterally, pushing legislation through Parliament with limited opposition due to party discipline and the whip system. This makes the UK system more efficient, but also more vulnerable to executive dominance.
Amendment process and flexibility
-the amendment process in both systems further distinguish their constitutional frameworks. The US Constitution is entrenched and can only be amended through a rigorous process requiring supermajorities in both congress and the states. By contrast, the UK constitution can be amended by a simple Act of Parliament with no special procedures required.
-the cultural approach explains how societal values and traditions shape constitutional practice. In the US, there is a deep cultural reverence for the Constitution as a symbol of national identity, which maintains its stability and limits frequent formal change. In the UK, political culture is more accepting of evolutionary change, trusting Parliament to reflect current democratic values without needing an entrenched document. This difference reveals how national attitudes towards authority and tradition influence constitutional design and operation, even beyond formal rules.
Judicial power and sovereignty
-the location of sovereignty leads to another key difference. In the US, constitutional sovereignty gives the Supreme Court the power to strike down legislation as unconstitutional. In the UK, parliamentary sovereignty means that courts cannot overturn Acts of Parliament; the judiciary interprets laws, but cannot challenge their validity.
-from a structural viewpoint, this creates a stronger and more autonomous judiciary in the US. Judicial review empowers the courts to be co-equal actors in governance, often resolving disputes between Congress and the president. In the UK, courts can declare laws incompatible with the Human Rights Act but cannot invalidate them, limiting their ability to protect rights or uphold legal standards. This reflects a fundamental structural divide in how judicial power is embedded within each constitutional order.
Legal and political power (Federalism and Devolution)
-a key difference between federalism and devolution lies in the origin and legal foundation of power. In the US, the federal Constitution divides sovereignty between the federal government and the states. Powers not delegated to the federal government are reserved to the states under the Tenth Amendment, meaning that states have independent, constitutionally protected authority. In contrast, the UK follows the principle of parliamentary sovereignty, meaning that all authority flows from Parliament. Devolved institutions such as the Scottish Parliament, the Senedd and the Northern Ireland Assembly were created through Acts of Parliament, and their powers can be legally altered, overridden or even abolished by Westminster.
-from a structural perspective, this difference is critical. The US Constitution entrenches the power of states in a rigid framework that limits federal overreach, whereas UK devolution is structurally dependent on the central legislature. For example, while US states can challenge federal authority in the courts and win (as in NFIB v Sebelius 2012, concerning Obamacare), the UK Supreme Court cannot overturn an Act of Parliament that modifies devolved powers. The Scotland Act 1998, though politically significant, is not entrenched- Parliament remains sovereign. Thus, federalism creates dual sovereignty, while devolution reflects hierarchical, revocable authority, demonstrating a much weaker basis for regional power
Institutional structure (Federalism and Devolution)
-the institutional setup of federalism and devolution also differ in scope, depth and function. In the US, each state possesses its own written constitution, legislature, executive (governor) and independent judiciary. States can design policy in key areas such as education, criminal law, marriage, taxation and even conduct independent elections- leading to wide variation between states like Texas and California. In contrast, UK devolved governments have varying degrees of power (asymmetrical devolution) and often lack full autonomy over core areas. For instance, Scotland controls health, education and justice, but defence and foreign policy remain reserved to Westminster.
-from rational-choice perspective, this means that political actors operate with different incentives and restraints. US governors and state legislatures have enough autonomous institutional capacity to make long-term policy calculations and even oppose federal directives. For example, California has frequently introduced progressive environmental and immigration policies in defiance of federal leadership. In the UK, devolved leaders have less institutional independence and must engage in strategic political bargaining with Westminster. Nicola Sturgeon for example, has used the platform of Holyrood to promote independence, but she ultimately lacks the legal authority to call a referendum without UK consent. Therefore, while US actors operate within a pluralistic and balanced institutional framework, UK devolved leaders act under a more centralised and constrained model shaping their strategic behaviour accordingly.
Autonomy and permanence (Federalism and Devolution)
-a further contrast lies in the security and permanence of regional authority. In the US, federalism is embedded in the Constitution and can only be changed by a constitutional amendment, which requires a two-thirds majority in both Houses of Congress and ratification by three-quarters of the states- making reversal of state power almost impossible. In contrast, UK devolution is politically entrenched, but legally fragile: Westminster retains the authority to revoke or alter devolved powers by a simple majority. While such a move would provoke major political backlash, it is still technically possible, and thus devolution lacks the same legal inviolability.
-the cultural approach explains how public attitudes and norms help to compensate for this lack of legal permanence. In the UK, there is now widespread acceptance of devolution as a permanent feature of the political landscape, particularly in Scotland and Wales. Any attempt by Westminster to reverse devolution would likely lead to a crisis of legitimacy and potential constitutional rupture. Similarly, in the US, there exists a deeply embedded culture of state identity and rights, especially among republicans, which reinforces the formal protections already granted, this was evident in resistance to federal COVID mandates by states like Florida and Texas. Thus, while legal safeguards differ sharply, cultural expectations in both countries serve as informal constraints on central interference- though again, these are stronger in the US where they align with formal structures.
Legal entrenchments of rights (rights protections)
-the primary difference in rights protections lies in the degree of legal entrenchment. In the US, rights are codified in the Constitution through the Bill of Rights (1791) and subsequent amendments, such as the 14th amendment, which guarantees equal protection under the law. These rights are entrenched, meaning they cannot be easily altered or repealed without a highly demanding constitutional amendment process. In contrast, in the UK, rights are generally protected through ordinary statute law, notably the Human Rights Act 1998, which incorporates the ECHR into domestic law, and through common law procedures.
-applying the structural approach, the US system is underpinned by a rigid constitutional framework that gives rights an unchallengeable legal supremacy, whereas in the UK, the flexible constitution allows Parliament to repeal, amend or override rights protections through a simple majority. For example, Parliament could repeal Human Rights Act without requiring any special procedure. Structurally, therefore, the US provides stronger legal safeguards for rights, whereas the UK’s protections are subject to political will.
Judicial enforcement and interpretation (rights protections)
-the role of the judiciary in enforcing rights also differs markedly between the two systems. In the US, the Supreme Court has the power of judicial review, enabling it to strike down laws or executive actions that violate constitutional rights, as seen in landmark cases like Brown v Board of Education (1954) and Obergefell v hodges (2015). In the UK, the Supreme Court cannot overturn Acts of Parliament due to the principle of parliamentary sovereignty; it can only issue declarations of incompatibility under the Human Rights Act, leaving Parliament free to respond or ignore such rulings.
-the rational-choice approach helps explain how judicial actors operate differently in each system. US judges are incentivised to be active defenders or constitutional rights sometimes evening pursuing ideological agendas (liberal vs conservative interpretations on the Court). By contrast, UK judges tend to be more restrained, focusing on interpreting parliamentary statutes rather than fundamentally challenging them. Thus, rational actors in the US judiciary can independently shape rights protections in a way that UK judges cannot, making judicial protection of rights stronger and more dynamic in the US.
Flexibility vs rigidity in rights developments (rights protections)
- a final key difference lies in how easily rights frameworks can evolve. The US system, while offering strong protections, is rigid. Amending the Constitution to expand rights is notoriously difficult- only 27 amendments have ever been ratified and significant reforms like the Equal Rights Amendment have failed. This has sometimes left rights dependent on judicial interpretation, which can be reversed (e.g Dobbs v Jackson overturning Roe v Wade in 2022). In contrast, the UK system allows for faster, more responsive changes, since Parliament can pass legislation to expand rights (e.g the Equality Act 2010 or the legalisation of Same-Sex marriage in 2013).
-although cultural expectations support rights in nations, the UK’s flexible model allows it to better reflect evolving social values. However, this also means that rights are more vulnerable to political shifts especially under strong majorities. In the US, while the Constitution guards against short-term erosion, it can also freeze outdated norms, requiring judicial activism to keep pace with modern values.
