1: Constitutional Law : Constitutions: Existence and Nature
Introduction:
- Lecture slides and guide will be on Weblearn soon. This will complement the
lectures. PowerPoint presentation and lecture guide will be available every
week.
- First lecture: Existence and nature of constitutions. Then sovereignty of
Parliament, rule of law, separation of powers, Human Rights Act and
devolution.
- Ask questions at any point during or after lectures.
- Essential part of being at university is to learn to think for yourself. That means
you trust no one. You subject everything to your own critical analysis and
scrutiny. That is true for anything the lecturer, tutor, judges etc. say. When you
ask questions in these lectures, the questions can be anything from “I didn’t
understand” to “I think what you said is complete nonsense”.
1. Coverage:
- It is pretty axiomatic that if you study constitutional law, it is useful to know
upfront as to what a constitution is and what it does. It would be foolish to dive
right into the study of parliamentary sovereignty as an aspect of constitutional
law without having the vaguest idea of what constitutes a constitution. Purpose
and feature of constitutions etc.
- This first topic is supposed to fill this foundational gap. To give you the
foundations of an understanding of what constitutions are in order to build on
it for later topics.
- The first issue that we need to be clear about is: What do written constitutions
cover? What do they deal with? What are you going to find when you open a
constitution?
- Typically, constitutions deal with a number of things. They have a horizontal
dimension. Craig will give advance warning if he says anything heterodox or
unorthodox, but this bit isn’t.
- The constitution sets out rules that establish and regulate the main organs of
government. What their constitution and powers are. Typically, we have a
three-part division of powers of government: Legislative, executive and judicial
powers of government. Any written constitution will typically tell you who the
legislative, executive and judiciary are and what their powers are. The
constitution will go into considerably more detail: It will contain both
procedural and substantive rules. Procedural rules tell you: How is legislation
going to be enacted? At least the bottom line is that it is going to be enacted by
majority. But the constitution will also tell you whether there are circumstances
where special majorities are required, e.g. constitutional amendments. The
constitution will actually deal with that. Substantive rules tell you something
about the powers of the legislature, executive and the courts. How much it tells
you in that respect will vary. We will come back to that later. At this stage, the
issue on which pretty much all written constitutions vary from hopeless to
mildly hopeless is the definition of executive power. Most constitutions are not
very good at identifying who the executive is and even less good at actually
specifying what their powers are. In most countries, the executive is pretty
powerful. How powerful varies. Nature of executive power is very difficult to
define. US constitution has huge ambiguities about nature of the power
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, wielded by the President. Also true for German and French constitutions (to a
lesser extent in France).
- Part of the difficulty of defining constitution is that there is a duality of
meaning. The word executive is used in two different ways: (1) In the sense of
implementation of policy that is agreed by legislature. We talk about the
executive implementing, executing the legislation put down by the legislature.
(2) Also operates as one of the prime foundations of policy. In the UK, the
Cabinet and the PM makes policy and plans the legislative agenda.
- When we are talking about the horizontal dimension of power as elaborating in
a constitution, while most constitutions will concentrate on legislative and
executive power, there is a problem, which is encapsulated in the branches of
government. Something in addition to three branches. These are usually
government agencies, which are part of the administration, but exercise and
possess independent executive-type power, which is separate from the Cabinet.
Separate from the normal executive.
- We’ve seen that constitutions have a horizontal dimension that covers
substantive and procedural rules.
- Constitutions also have a vertical dimension, which is concerned with the rules
that regulated interaction between citizen and state. All constitutions have a
vertical and a horizontal dimension (pretty much all). There are some
exceptions. The most visible manifestation of the vertical dimension, the
paradigm manifestation of the vertical dimension, is a Bill of Rights. Will
normally be enshrined in written constitution. Places a right-based constraint
on governmental power. What a Bill of Rights does is that it places rights-based
constraints on exercise of power. If legislation is enacted which fundamentally
limits freedom of speech or discriminates between groups where there should
be no such discrimination, then the idea is that the Bill of Rights provides a
limit to what the government can do. Usually backed up by judicial controls to
police those limits.
- Third dimension is the structural dimension. There is nothing controversial
about this. All this captures here is the idea that in nation-states which are
federal, or where there is some measure of devolution, the structure provisions
of the constitution will identify the powers that can be exercised at federal
level, Westminster level, and those to be exercised at state or devolved level.
UK, we don’t have a fully federal system as exists in US, Canada or Germany.
We do have a system of devolved governments, Wales, Scotland and Northern
Ireland.
- There are different models of devolution, it is not a one-size-fits-all kind of
model. There are also different models of federalism. Divide between federal
and state power can vary enormously. To put it crudely, your constitution might
say “All power resides with the state, other than specific powers, which reside
with the federal branch of government”. It might also say “All powers reside
with the federal government, unless they are given to the state.”
- The fact that something can alter and that in theory Westminster could abolish
the devolved legislatures in Wales or Scotland does not serve to deny that, at
present, relationship of devolved powers is of constitutional status.
Constitutional status is not equivalent to inalterability.
- When people talk about the branches of government, they often refer to US
agencies. In the US, agencies are particularly powerful. Who has constitutional
responsibility for agencies in the US? Quite difficult and complex. Partly the
President, partly Congress. Most people, when they talk about the branches of
government, they talk about the incompleteness of constitutions, i.e. that it
does not include all the organs of government.
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,2. Depth:
- These points are quite basic and most of them are intuitive. Constitutions vary
enormously as to how detailed they are. Therefore, what that means is that
when we talk about the thinness or fatness of constitutions, what one means in
this respect is that some constitutions deal with a lot of detail with the
coverage issues and in many respects, they include a whole ton of other stuff in
the constitution. German, South African and Polish constitutions are bulky and
elaborate on the issue of coverage. They also cover a lot of other stuff. The US
institution is relatively short. No normative statement, Craig is being entirely
descriptive. Either thin or bulky. The consequence that flows from this is that,
other things being equal, the more room there will be for decisions to be
fleshed out, the less it is of a constitutional nature.
- Depth is a really important dimension of constitutions as well.
3. Written and unwritten elements:
- This needs to be taken with a pinch of salt. There will in all constitutions
always be unwritten elements, even in relation to those constitutions that are
relatively detailed. If you reflect for a moment, you will understand why. There
will be issues, which the framers of the constitution never thought about.
Might be because the constitution was written a long time ago, e.g. US
constitution. Problems or constitutional issues, which you might worry about
nowadays, e.g. privacy in the age of Internet, were not on the minds of
founding fathers. The gaps will be filled in by judicial decisions, legislation of a
constitutional nature and by constitutional conventions.
- The element of written vs. unwritten is markedly affected by the level of
abstraction with which the constitution is originally written. The higher the
level of abstraction, the more room there is going to be for disagreement about
what this actually means. E.g. famous due process clause in US constitution, 5th
and 15th Amendment. Have been subject to a huge variety of different
interpretation over the years. Some have given the due process clause a
substantive, others a procedural meaning.
- In the UK, the courts have recognized constitutional legislation. It is not
uncommon in legal system for legislation which relates to or builds upon
important revisions of the written constitution to be treated in some differential
way to ordinary, run of the mill legislation. Precisely how it is differentiated can
vary between legal systems.
4. Central features:
- A constitution will be the top of the hierarchy of norms in the legal system.
Ordinary law that conflicts with the constitution will often be invalid or
inapplicable, although whether courts should have the power to make decisions
on such conflicts is contested. Ordinary law or legislation that conflicts with
the constitution will normally be invalid or inapplicable. Where the courts
should have the power to judge on this is contested.
- When we talk about a hierarchy of legal norms, we mean that in a legal system,
in any political system, there will be laws in existence of various pedigree.
Let’s imagine that there is a by-law enacted by the city of Oxford. It is a formal
legal instrument enacted by Oxford City Council. E.g. that you cannot ride your
bike on this street. You then ask what the legal authority of this by-law is. You
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, then go to something vertically anterior to that by-law. There is going to be
something more important than the by-law. The thing that is vertically anterior
to the by-law is what is known in the UK as a statutory instrument. A piece of
delegated legislation. A piece of statutory instruments, which are legally
binding instruments made pursuant to ordinary statutes. Two steps in our
hierarchy, (1) by-law and (2) statutory instrument pursuant to which it is
applicable. To question statutory instrument, go vertically anterior again.
Originates from legislature of the country. Why does the legislature of that
country have the power to make statutes? Whence does its authority come?
The answer in the majority of countries is: The written constitution. Gives
authority to the legislature. It’s the top legal rule of the system. You can then
start asking some deeper questions, which is why the constitution itself is
valid. To which the answer is: Ultimately, it’s a matter of social acceptance.
There is nothing legally vertically anterior, which validates the constitution as
such. The constitution continues to be accepted as setting the legal framework
for that society, because we accept that the constitution continues to provide
the framework of analysis in that country.
- A constitution is meant to be stable. It can be amended, but it is meant to serve
as a stable framework for the political and legal institutions of the country.
Constitutions all have rules for amendment. They have to. They cannot be
frozen in time, that would be crazy. How they are amended varies enormously
from constitution to constitution. Sometimes you require special majority,
majority in both houses (in bicameral system), referendum etc. At the same
time, and notwithstanding the capacity to amend constitutions, they are meant
to be stable. You don’t want to wake up each month to an altered constitution,
nor do you believe that a constitution should be changed merely because there
is a change in the political party, which has a majority in the government at the
time. It is meant to provide a stable order of society at a given time.
- We need to understand the constitutions may contain express provisions, which
allow the courts to use their power to test the compatibility of laws with the
constitution. If laws are incompatible, the courts can declare these laws to be
invalid.
- Constitutional judicial review: To review legislation for compatibility with the
constitution. There is a second possibility, which is that the court may arrogate
the power to do this, even though there is no express provision in the
constitution about it. That distinction between points 1 and 2 is important.
Much of the debate about the legitimacy of constitutional judicial review has
been shaped by US. In US, there is no express provisions which vests the
power of constitutional review with the Supreme Court. In an early decision,
the Supreme Court reasoned through that the constitution implied in effect
that it had this power. This has remained controversial in one way or another. A
lot of literature on this.
- Why is this controversial? Craig is not taking a side in the debate at present.
- It is controversial, because when a court exercises its power of constitutional
review, it is invalidating a legislation that what enacted by the duly elected
legislature of that country. It is subject to the objection that it is anti-
majoritarian in the sense that what you have are five judges, unelected,
deciding that a piece of legislation duly enacted by the duly elected legislature
is unconstitutional. You are substituting the view of the court for that of the
legislature. The immediate rejoinder is: Yes, but you have a constitution and
the court is not making things up as it goes along. The constitution has laid
down certain limits to what the legislature can do and the court is simply
enforcing those limits. The counter-argument to that is that quite often the
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