Understand Politics
Page 19
The role of a constitution
A constitution will tell us about the political views, aspirations and values of those who wrote it. The Italian Constitution of 1947 reveals a desire on the part of its authors to organize that country’s system of government in order to prevent the return of fascism. This was reflected in the widespread dispersal of political power and the absence of a provision for the direct election of the president. The French Constitution of 1958 displayed a commitment by its authors that strong, effective government was an essential guarantee of national security. They sought to secure this objective by strengthening the executive branch at the expense of the legislature. Parties such as the socialists who traditionally viewed a strong legislature as the essence of republicanism subsequently accepted the enhanced power of the presidency.
An examination of a constitution thus enables us to discover how theory is translated into practice and how the climate of political opinion at the time when that document was drafted subsequently influences the conduct of a country’s governing institutions. It thus embodies a statement of political theory and political history. We shall examine this situation more fully below in relation to the drafting of the American Constitution.
THE PRINCIPLES OF THE AMERICAN CONSTITUTION
The 55 delegates who assembled at Philadelphia in 1787 to draft the American Constitution were influenced by a variety of political ideas and priorities. These included John Locke’s social contract theory and Montesquieu’s concept of the separation of powers.
The separation of powers was advocated by Montesquieu in his work De l’Esprit des Lois, written in 1748. This held that tyranny was most effectively avoided if the three branches of government (the legislature, executive and judiciary) were separate. This implied that each branch would possess a degree of autonomy and its personnel should be different. This theory appealed to those who drafted the American Constitution. It was widely believed that George III’s unreasonable treatment of the American colonists had triggered the War of Independence in 1775. The monarch embodied all three functions of government and was thus prone to tyrannical action. Accordingly, the constitution placed the legislative, executive and judicial functions of government into the hands of different bodies.
However, one difficulty with the separation of powers is that if it were strictly followed, each branch of government would be accountable only to itself. This might result in insufficient restraints being imposed on their actions, enabling each the potential to act in an arbitrary (that is, unreasonable or dictatorial) fashion. The American Constitution thus sought to avoid this situation from occurring by providing for the fragmentation of political power through a system of checks and balances whereby the key functions and operations performed by one branch were subject to scrutiny by the others. Thus the president’s power to appoint members of the executive branch of government is restricted by the requirement that senior appointees are subject to the approval (‘confirmation’) of the Senate. This principle extended to the relationships within the branches of government so that, in the case of Congress, the actions of one of its two Houses could be restrained by the other. The American system of government has thus been described as one of ‘separated institutions sharing powers’.
The main problem with a system of checks and balances is that it can result in inertia – the involvement of numerous people in decision making may result in nothing being done as one group effectively cancels out the work of another.
THE OPERATION OF GOVERNMENT
As students of politics we need to know how a country’s system of government operates. For example, we may wish to ascertain what power is possessed by the head of state. Or we may be interested in the relationship between the executive and the legislature or between the government and its citizens. In addition to informing us of the political values of those who wrote it, a constitution is also responsible for the distribution of power within government.
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Insight
A constitution fulfils a number of roles, in particular providing for the division of governmental responsibilities between the executive, legislative and judicial branches of government, establishing the relationships between these three branches of government and determining the relationship between the government and its citizens.
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THE KEY FEATURES OF GOVERNMENT
A constitution describes the essential features of a country’s system of government. It contains a formal statement of the composition of the key branches of government – the legislature, executive and the judiciary – and refers to the role which each of these plays in the machinery of government. It also informs us of the relationship between the branches of government. The American president, for example, is required to deliver a state of the union address to Congress periodically, and is enabled to put forward legislative proposals for that body’s consideration. Below we consider the functions served by a constitution by examining the main features of the American Constitution.
THE COMPOSITION OF AMERICAN GOVERNMENT
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Insight
The American constitution provides an important illustration of the way in which a codified constitution is able to regulate the operations of government over a long period of time.
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The American Constitution provided for a legislature which is termed ‘Congress’. It consists of two chambers – the House of Representatives and the Senate. The constitution allocated the executive function to the president while the judicial function was ascribed to a Supreme Court and a range of subordinate courts. This constitution further stipulated the qualifications required for membership of the House of Representatives and the Senate and laid down conditions governing the presidency, including eligibility to serve in that office and the length of that official’s tenure.
The functions of each branch of government were also discussed in this document. A key role given to Congress was that of levying and collecting taxes. One key duty allocated to the president was to be commander-in-chief of the country’s armed forces. The federal judiciary was charged with upholding federal law, including the constitution, and arbitrating disputes between two or more states.
CIVIL RIGHTS
In liberal democracies we usually find statements contained in constitutions concerning the relationship between the government and its citizens. Such documents typically contain safeguards against arbitrary conduct by governments that are designed to safeguard individual freedom. The German Constitution, for example, contains a prominent statement of basic rights which guarantee its citizens a range of personal freedoms. The omission of such provisions was regarded as a major weakness of the American Constitution. Accordingly ten amendments (collectively known as the Bill of Rights) were incorporated into this document in 1791.
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The American Bill of Rights
The first ten amendments to the American Constitution list a range of personal freedoms. These include the freedoms of religion, speech and assembly and the right to petition for the redress of grievances. The constitution safeguards the right of all citizens to possess arms. Provisions concerning the manner in which citizens or their property can be searched are incorporated into this document, which also establishes the right of an accused person to a speedy and public trial.
Similar provisions are found in many other constitutions. In Ireland, personal rights such as the equality of all citizens before the law, the right of habeas corpus and the freedom of expression (including the right to criticize government policy) are embodied in the constitution. In Italy, the right to join a political party or a trade union is enshrined in the constitution.
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Traditionally, such freedoms focused on the conduct of political affairs and the operations of the criminal justice system. They were designed to prevent governments acting in an overbearing fashion towards their citizens. In the late twentieth century, however, other forms of rights have entered political deb
ates. These include social rights such as the right to a job, the right to be housed, the right to enjoy a minimum standard of living or the right for a woman to have an abortion. Although legislation may sometimes remove impediments to prevent specific groups of citizens from exercising defined social functions, constitutions rarely contain a fundamental, all-embracing statement of social rights.
GUARANTOR OF A FEDERAL SYSTEM OF GOVERNMENT
In a federal country such as America or Germany, government is jointly exercised by national and sub-national units. The constitution will commonly establish the division of responsibilities which exists within that country between these units of government. The existence of these sub-national bodies is guaranteed by the constitution.
The balance of power between the federal and state governments in America, for example, is discussed in the constitution, especially in the Tenth Amendment which stipulated that powers not expressly delegated to the federal government in that document or prohibited from being exercised by the states would be ‘reserved to the states respectively, or to the people’. We shall discuss the changing nature of the balance between federal and state governments in America in Chapter 13.
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Unconstitutional and anti-constitutional actions
An unconstitutional act is one which contravenes either the letter or the spirit of the constitution. The perpetrator usually contravenes one specific constitutional provision or convention. In the United Kingdom, a government refusing to resign following the passage of a ‘no confidence’ motion in the House of Commons would be accused of acting unconstitutionally.
An anti-constitutional action is one which displays a total disregard for the entire constitutional arrangements that exist within a particular country and may seek to overthrow them. The assassination of the Israeli prime minister, Yitzhak Rabin, in 1995 in order to try to alter the direction of government policy towards the Palestinians, was an example of an anti-constitutional action. Military intervention to overthrow a system of liberal democracy and impose a different form of government is a further example. The overthrow of Salvador Allende’s government in Chile in 1973 and its replacement by a military regime headed by General Pinochet was an anti-constitutional action.
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Question
Analyse the main functions that are served by codified constitutions.
Codified constitutions as living documents
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Insight
Codified constitutions can be kept up to date by the processes of amendment and judicial review.
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Codified constitutions are designed to be enduring documents. The process of drafting and ratifying (that is, approving) a constitution is a lengthy one. No country can thus afford the luxury of frequently rewriting its constitution.
The question we need to address, therefore, is how a document written at one specific point in time can endure for many years after. In particular we shall consider how a constitution can adjust to subsequent social, economic and political changes which may have a significant impact on the role and operations of government and how it might respond to eventualities which were not perceived when the document was originally drawn up.
THE PROCESS OF AMENDMENT
Constitutions generally contain provisions whereby additions or deletions can be made to the original document. The process of amendment, however, is subject to great variation. Flexible constitutions are those which can be amended by the normal law-making process. The uncodified British constitution (discussed later) is a good example of a flexible constitution, but the German Constitution can also be altered by the normal law-making process.
Usually, however, constitutions can be amended only by a process which is separate from the normal law-making process utilized in a particular country. These are known as rigid constitutions.
Amendments provide one obvious way for a constitution to be kept up to date. Those made to the American Constitution include civil rights issues such as the abolition of slavery, the right of women to vote and the universal introduction of votes at the age of 18. The power of federal government was enhanced by the amendment which authorized Congress to levy income tax.
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Rigid constitutions – Ireland and America
Amendment of the Irish Constitution requires a referendum to be held to determine popular support for or rejection of any constitutional change put forward by parliament (the Oireachtas). Examples of amendments which were made using such a procedure include two in connection with Ireland’s membership of the European Union (in 1972 and 1987).
The American Constitution can be amended in two ways. The manner which is usually utilized requires two-thirds of the members of both Houses of Congress to approve a change, following which it is submitted to state legislatures or ratification conventions organized at state level. A proposal needs the support of three-quarters of the states in order to be incorporated into the constitution. The alternative method enables the states rather than Congress to initiate the process of reform.
Generally, amendments are most easily secured to flexible constitutions. Changes are more difficult to make when the amending process is lengthy and drawn out. There have only been 26 amendments made to the American Constitution since 1789. Well-supported changes (such as the Equal Rights Amendment in the 1970s) failed to secure sufficient support to be incorporated into that document. One potential danger with rigid constitutions is that they fail to keep abreast of social changes.
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JUDICIAL REVIEW
A second way whereby constitutions can be adapted to suit changed circumstances is through the process of judicial review, which is performed by the judiciary. This entails assessing when a contemporary issue or problem is compatible with the letter or spirit of the constitution, enabling judges to strike down actions which, in their view, contravene a country’s basic law. In performing this function judges may draw solely on their legal expertise or they may, as is the case in Germany, consider submissions from interested parties before reaching a judgement. Judicial review enables the courts to inject contemporary views and values into a country’s constitution when they are required to deliver judgement on a specific issue which comes before them. Judicial review may extend the scope of state activity or it may affect a citizen’s civil rights. The American Supreme Court’s decision (in Roe v. Wade, 1973) that under certain circumstances a woman had a right to an abortion is an example of judicial interpretation of the constitution.
There are two problems with the process of interpretation. The first is when the core values enshrined in this document lose their appeal because broader social changes make them unfashionable. In such circumstances, the process of judicial review may be unable to adapt the constitution to the new climate of opinion and may have to be replaced by a new document.
The second difficulty is that an acceptance that the constitution is a document whose meaning can be determined by judicial interpretation may result in the loss of its ability to restrain the actions of government. The ability to adjust a constitution in this manner may result in sanction being given to any action which the government wishes to undertake, especially when the latter has the ability to appoint judges. In these circumstances, the constitution does not meaningfully limit the operations of government or force it to subscribe to any basic standard of behaviour. It thus ceases to be an independent source of power, which is essential if it is to act as an impartial arbitrator.
The United Kingdom’s uncodified constitution
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Insight
The UK is an example of a country whose constitution is uncodified. Information concerning the operations of government is derived from a range of sources including legislation and judicial decisions.
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In contrast to the USA’s codified constitution, the UK possesses an uncodified constitution. With the exception of the Commonwealth period, 1649–60, there has been no politic
al revolution or fundamental political crisis to justify the writing of a constitution. The processes of government have been subject to evolutionary adjustments enabling them to accommodate major changes, including the agricultural and industrial revolutions in the eighteenth and nineteenth centuries and the expanded role of the state after 1945. There is thus no one document that provides a basic store of knowledge concerning the operations of the branches of government or the rights and liberties of the subject in the UK. Instead, information of the type normally contained in a constitution is dispersed. There is a wide range of written and unwritten sources to the UK’s constitution.
THE SOURCES OF THE UK’S CONSTITUTION
The main sources of the UK’s uncodified constitution are as follows.
Statute law
There are numerous examples of acts of parliament that govern the way in which Britain’s system of government operates. Examples include the 1911 and 1949 Parliament Acts (which concern the relationship between the House of Commons and the House of Lords and which specify the powers of the latter chamber) and the 1971 Courts Act (which established the present system of crown courts). Devolved government for Scotland, Wales and Northern Ireland was provided in the 1998 Scotland Act, Northern Ireland Act and Government of Wales Act, and the 1998 Human Rights Act set out the fundamental rights possessed by citizens in the United Kingdom.