Should We Codify Constituion Flashcards
1A: protection of rights
HRA Can be taken any point
Trump’s executive order to end birthright citizenship deemed “blatantly unconstitutional” and overruled by judge
Keeps govt accountable from authoritarian regimes
Creates trade of such as Belmarsh Case 2005 between ir and cr.
1B: protection of rights
However takes away from parliamentary sovereignty
Democratic deficit as politicised judges appointed by President e.g. overturned roe v wade
Hra Pseudo entrcnehd, replaced with BBOR, US needs 2/3 senate support to amend constitution so stays in status quo, right to bear arms is contentious but impossible, will never have 2/3 democratic senate, why should be bound to precedessor
2A: clear
Codified constitutions are more clear
This means govt could not extend power by ambiguity
Creates less confusion and ensures they can be enforced
For example, conventions can be easily broken, BJ prorogation of Parliament although eventually ruled as undemocrstic, took a tough decision from SC, also confusion on whether Salisbury Convention applies to minority govt/coalitions
2B: rigidity
Codified constitutions by design are hard to change, this means they may struggle to adapt to a changing social climate.
For example, the US constitution has only been amended 27 times in history, AOP can be made at any time and progress the country.
For example, devolution would not be possible without incredible support in parliament, whereas in the UK’s uncodified constitution, refenrudms attack the issue directly
3A: judicial review
A codified constitution allows senior judges to ensure the constitution is upheld at all level of government. An independent and impartial judiciary, as the UK has, would be able to expand judicial review, providing more checks on the executive.
E.g. National Federation of Independent Business v. Sebelius (2012) ruled that it was constitutional for Obamacare to impose mandatory purchase of health insurance.
3B: judicial tyranny
Judges are unelected, unrepresentative and un accountable. Judges who will inevitably have their own political biases will have too much power. In the US, the president can elect judges, meaning the SC is dominated by ideological factions of the Republican or Democrat party. This would make decisions such as the UKSC ruling that trans-women are not legally women even more controversy, and lead to theories that it is an illegitimate ruling as it is an inherently political issue. Furthermore, anything that political should be to the discretion of parliament, if parliament wished to overturn that decision they could.
