WHAT IS A CONSTITUTION? Andrew Heywood

WHAT IS A CONSTITUTION? Andrew Heywood A constitution can broadly be defined as a set of rules, written and unwritten, that seek to establish the duties, powers and functions of the various institutions of government, regulate the relationships between them, and define the relationship between the state and the individual. The balance between written (legal) and unwritten (customary or conventional) rules nevertheless varies from system to system. However, the term is also used more narrowly to refer to a single, authoritative document - a 'written' constitution - that attempts to codify major constitutional provisions and constitutes the highest law in the land. Since not all major provisions can be covered by a single document, a constitution in this sense is not co-extensive with constitutional law Traditionally, constitutions were seen as important for two reason. First, they were believed to provide a description of government itself, a neat introduction to key institutions and their roles. Secondly, they were regarded as the linchpin of liberal democracy, even its defining feature. Sadly, neither view is correct. While constitutions may aim to lay down a framework in which government and political activity is conducted, none is entirely successful in this respect. Inaccuracies, distortions and omissions can be found in all constitutions. Similarly, although the idea of constitutionalism is closely linked to liberal values and aspirations, there is nothing to prevent a constitution being either undemocratic or authoritarian. In the case of communist and some developing states, constitutions indeed have been profoundly illiberal. Why, then, bother with constitutions? Why begin an account of the machinery of government with a discussion of constitutions? The reason is that constitutions aspire to lay down certain meta-rules for the political system. In effect, these are rules that govern the government itself. Just as government establishes ordered rule in society at large, a constitution attempts to stability, predictability and order to the actions of government. Classifying constitutions Written or unwritten constitutions Traditionally, considerable emphasis has been placed on the distinction between written and unwritten constitutions. This was thought to draw a divide between constitutions that are enshrined in law and ones that are embodied in customs and traditions. The former are human artefacts, in the sense that they have been 'created', while the latter have been seen as organic entities that have evolved through history. This system of classification, however, has now been largely abandoned. In the first place, an overwhelming majority of states now possess basic, written documents that lay down major constitutional provisions. Only three liberal democracies - Israel, New Zealand and the UK - continue to possess 'unwritten' constitutions, together with a handful of non-democratic states like Bhutan, Saudi Arabia and Oman. Moreover, the classification has always been misleading. No constitution is entirely written, in the sense that all its rules are formal and legally enforceable; few constitutions, for instance, specify the role of, or even mention, political parties and interest groups. Similarly, no constitution is entirely unwritten, in the sense that none of its provisions have legal substance, all of them being conventions, customs or traditions. Every constitution, then, is a blend of written and unwritten rules, though the balance between them varies significantly. In countries such as France and Germany where constitutional documents serve as state codes, specifying in considerable detail the powers and responsibilities of political institutions, the emphasis is clearly on written rules. The US Constitution, the world's first 'written' constitution, is, however, a document of merely 7,000 words, which confines itself, in the main, to broad principles and so only lays down a loose framework for government. Institutions of undoubted constitutional significance, like congressional committees, primary elections and the bureaucracy have therefore simply evolved over time. Other constitutions, though not entirely unwritten, nevertheless place considerable stress on conventions. For example, the ability of British ministers to exercise the powers of the Royal Prerogative (technically, the monarch's powers) and their responsibility, individually and collectively, to Parliament is based entirely on convention. Codified or uncodified constitutions More helpful - and more accurate - than the 'written'/'unwritten' distinction is the idea of codified and uncodified constitutions. A codified constitution is one in which key constitutional provisions are collected together within a single legal document, popularly known as a 'written constitution' or 'the Constitution'. As pointed out earlier, most constitutions can be so classified, even though they may differ in the degree to which constitutional detail is specified and the extent to which other provisions are unwritten. The significance of codification is, nevertheless, considerable. First, the document itself is authoritative in the sense that it constitutes 'higher' laws, indeed the highest law of the land. The Constitution binds all political institutions including those that enact ordinary law. The existence of the codified constitution thus establishes a hierarchy of laws. In unitary states a two-tier legal system exists with the Constitution standing above statute law made by the national legislature; in federal states a third tier exists, in the form of 'lower' state or provincial laws. Secondly, the status of the codified document is ensured by the fact that at least certain of its provisions are entrenched, so firmly established that it is difficult to amend or abolish them. The procedure for establishing the Constitution and for subsequently revising it must therefore be in some way more complex and difficult than the procedure for enacting ordinary statute law. Finally, the logic of codification dictates that since the Constitution sets out the duties, powers and functions of government institutions in terms of 'higher' law it must be justiciable, meaning that all political bodies are subject to the authority of the courts and, in particular, a supreme or constitutional court. This substantially enhances the importance of judges, or at least senior judges, who become, in effect, the final arbiters of the constitution and thereby acquire the power of judicial review. Uncodified constitutions, though small in number, have very different characteristics. The UK constitution, properly thought of as an uncodified but part written constitution, draws on a variety of sources. Chief amongst these are statute law (law made by Parliament), common law (based on custom and precedent), conventions and various works of authority, whose role is to clarify and explain the constitution's unwritten elements. The absence of a codified document implies, most importantly, that the legislature enjoys sovereign or unchallengeable authority in that it has the right to make or unmake any law whatsoever, no body having the right to override or set aside its laws. By virtue of their legislative supremacy, bodies like Parliament in the UK and Knesset in Israel are able to function as the ultimate arbiters of the constitution - the constitution means what they say it means. Parliamentary sovereignty is therefore the chief characteristic of the UK constitution, implying the absolute and unlimited authority of Parliament, reflected in its ability to make, amend or repeal any law it wishes. The UK constitution has stimulated deep controversy and mounting criticism. Parliamentary sovereignty has been held responsible for what Lord Hailsham termed 'elective dictatorship', the capacity of a government, so long as it maintains majority control of the House of Commons, to act it any way it pleases. The concentration of power in the hands of the executive that this leads to, and the consequent threat that this poses to individual rights and liberties, has encouraged some to argue that Britain has no constitution at all. If governments once elected can act however they wish, they are surely at liberty to enlarge their own powers at will and are thereby unconstrained by constitutional rules of any kind. In this sense, the constitution in the UK is 'what happens'. Such an analysis clearly fuels the campaign in the UK for constitutional reform, either in the form of a revision of the constitutional structure to ensure a wider dispersal of government power - by the introduction of proportional representation, on elected devolution, freedom of information and so forth - all through the introduction of a codified constitution embodying an entrenched Bill of Rights. Rigid and flexible constitutions An alternative form of classification is to distinguish between rigid and flexible constitutions. What procedures exist for amending the constitution? How easily does the constitution adapt to changing circumstances? On the face of it, codified constitutions are likely to be relatively inflexible because their provisions are in some way entrenched in 'higher' law. By the same token, uncodified ones appear to be flexible and adaptable, because laws of constitutional significance can be changed through the ordinary legislative process and conventions are, by their very nature, based on conduct and practice. Nevertheless, there is no simple relationship between 'written' constitutions and rigidity or between 'unwritten' ones and flexibility. Flexibility is a matter of degree, and is, surprisingly, not clearly linked to formal procedures and rules. Whereas the US Constitution has endured, albeit amended, since 1787, France over the same period, has had no fewer than 17 constitutions. Similarly, amendment procedures may be more or less complex or difficult. In states like Australia, Denmark, Ireland and Spain, referendums are used to introduce constitutional amendments or ratify ones endorsed by the legislature. In other cases, special majorities must be achieved in the legislature. In the United States, in addition to two-thirds majorities in both Houses of Congress, constitutional amendments must be ratified by three-quarters of the states, a requirement that has meant that a mere 26 amendments have been passed, 10 of them (the so-called 'Bill of Rights') introduced in the first two years of the constitution's existence. The rigidity that this seems to imply is, however, misleading. Although the words of the US and other codified documents may change little, their meanings are subject to constant revision and updating through the process of judicial interpretation and re-interpretation. Nevertheless, just as written provisions can provide for flexibility, unwritten ones can, at times, be rigid. While in the UK the conventions of individual and collective responsibility have proved to be so adaptable that they can almost be re-shaped at the convenience of the government of the day, other conventions are so deeply engrained in political culture and popular expectations that their abandonment or modification is virtually unthinkable. This certainly applies in the case of conventions that restrict the political role of the monarchy and prevent monarchs challenging the authority of Parliament. Strengths and weaknesses of a codified constitution The strengths of a codified or 'written' constitution are usually seen to include the following:  Major principles and key constitutional provisions are entrenched, safeguarding them from interference by the government of the day.  The power of the legislature is constrained, cutting its sovereignty down to size.  Non-political judges are able to police the constitution to ensure that its provisions are upheld by other public bodies.  Individual liberty is more securely protected and authoritarianism kept at bay.  The codified document has an educational value, in that it highlights the central values and overall goals of the political system. The drawbacks of codification may nevertheless include the following:  The constitution is more rigid and may therefore be less responsive and adaptable.  Government power may be more effectively constrained by regular elections than it is by a constitutional document.  Constitutional supremacy passes from publicly accountable politicians to non-elected judges.  Constitutional provisions enshrined in custom and convention may be more widely respected because they have been endorsed by history and not 'invented'.  Constitutional documents are inevitably biased because they endorse one set of values or principles over another, meaning that they may precipitate more conflicts than they resolve.