Written and Unwritten Constitution - Essay Example

Running Head: WRITTEN AND UNWRITTEN CONSTITUTION Written and Unwritten Constitution of the of the Written and Unwritten Constitution All publicists distinguish between written and unwritten constitutions, although the distinction is somewhat superficial. A State is deemed to have a written constitution when the basic principles and institutions of its political organization are to be found in a document or a series of documents. Such is, for instance, the Constitution of the Indian Republic. Almost all modern States have written constitutions, the only exception being the United Kingdom of Great Britain and Northern Ireland where the fundamental political principles and institutions are not to be found in any formally accepted document or documents. As we have already seen, the sources of the British Constitution are many and various, and may generally be grouped under four heads: statutes of the British Parliament; judicial precedents; customs and usages of Parliament; and Constitutional conventions. Great Britain is, therefore, the only country which has an unwritten constitution. (Bennett, 1930, 225) This distinction between written and unwritten constitutions has led to the establishment of a far more important classification of written and unwritten constitutions. The idea of permanency is closely associated with the concept of constitution so much so that stability is considered to be one of its main attributes. Written constitutions are considered to be more permanent and, therefore, more written, because, generally speaking, they cannot be amended except by a special process or by means of special machinery. Unwritten constitutions, on the other hand, are deemed to be unwritten because they can be amended or altered by the ordinary process of legislation. It should, however, be noted that the distinction between written and unwritten constitutions does not necessarily depend on the distinction between written and unwritten constitutions. A written constitution may be as unwritten as an unwritten constitution. A typical instance is furnished by the Italian Constitution of 1848 which, according to the generally accepted view, could be amended by the ordinary process of legislation. (Smith, 2001, 80) The distinction between written and unwritten constitutions was pointed out for the first time by Bryce, and has now become a fundamental concept of constitutional law and practice. According to Bryce, there are two types of constitutions: those which have grown organically without any pattern either in their form or in their content and which consist of a variety of laws, conventions and customs. (Bogdanor, 1997, 351) The second type is the result of systematic, exhaustive and conscious labour. The first type is derived from the same source as the ordinary laws and, consequently, may be abrogated or revised by the same organ and in the same manner as in the case of ordinary laws; and this he calls an unwritten constitution. On the other hand, a written constitution is derived from a source other than that of ordinary laws and is of a rank superior to that of ordinary laws. It can only be annulled or amended by the same organ which created it or some other organ to which its power has been delegated. In other words, a written constitution is one which demands for its amendment or revision special machinery or a special method. 1 It, therefore, occupies a privileged position and possesses a greater guarantee of permanence: a situation which French jurists have described as constitutional super-legality. In theory, therefore, inflexibility is the essence of this system. (Patterson, 1947, 135) A typical instance of a written constitution is furnished by the United States of America. Article 7 of the Constitution prescribes two different methods of amendment: (i) either two-thirds of both Houses of the Congress may propose amendments, or legislatures of two-thirds of the States may call a convention for proposing amendments, and (ii) the proposed amendments may be ratified either by three-fourths of the legislatures of the several States or by conventions of three-fourths of the several States. In fact, all amendments have taken place at the instance of the Congress and after ratification by the legislatures of the States. The problem of implementing a written American Constitution can be seen from the fact that between 1789 and 1890 some nineteen hundred resolutions were submitted to the Congress of which only nineteen obtained the necessary assent of the Congress and only fifteen received the necessary ratification. Strictly speaking, the Indian Constitution falls under the category of written constitutions, but, as we shall see, it is much more unwritten than the Constitution of the United States of America. In fact, during the first seven years of its existence it has been amended as many as seven times. (Spiro, 1959, 68) The distinction between written and unwritten constitutions should not, however, be regarded as absolute and final. Strictly speaking, the classification has no fundamental divisions. A so-called written constitution may, in fact, be more unwritten than a so-called unwritten constitution. For instance, the Constitution of England, although unwritten, has in fact undergone very little change since its basic principles were finally settled. Since the beginning of the twentieth century there have really been only three statutory changes of an important character. These were the Parliament Act of 1911, the Representation of the People Act, 1918 and the Parliament Act of 1949. It may, therefore, be contended that rigidity is not necessarily a characteristic of the so-called written constitution. Further, although a constitution may belong to the class of written constitutions, its provisions may in actual practice be amended otherwise than in accordance with the special procedure prescribed by it. In the first place, it must be remembered that the meaning of a provision of a constitution depends on its actual wording, and words in a living language do not always have the same meaning and significance. For instance, the meaning of the words "inter-state commerce" in the Constitution of the United Kingdom has undergone a considerable change in consequence of judicial decisions and has been extended to cover practically the entire economic life of the United Kingdom; and this change has been brought about without any amendment of the Constitution. (Conley, 1991, 512) Secondly, a constitution can only provide for and regulate the fundamental aspects of the political life of the State. It cannot deal with detailed particulars in respect of each and every contingency. Therefore, in the actual day to day working of a constitution, many changes are introduced as a matter of practice to supplement the express provisions of the constitution. Thirdly, every constitution is based upon certain fundamental principles and these are controlled and governed by the actual social and political circumstances prevailing at the time. Therefore, with changes in the circumstances, these fundamental precepts acquire new and fresh significance. A typical illustration is furnished by the Spanish Constitution of 1834 which prohibited the Cortes to deliberate upon any matter which was not especially submitted to it by virtue of a royal decree; in other words, the Cortes had no initiative in the matter of legislation. There was, however, an Article in the Constitution which empowered the Cortes to submit petitions to the King, and this power was utilized by the Cortes to initiate legislative measures. (Ruth, 1993, 856) British constitution could be said to consist of a series of documents. First in the series is Magna Carta (1215), in which King John's barons forced him to accept a number of restrictions on his power and on that of his heirs. Magna Carta was followed by others, among them the Petition of Right (1628), in which King Charles I assented to even more far-reaching concessions demanded by his Parliament. (Read, 1938, 290) This was followed by the Bill of Rights (1689), which was passed by Parliament after the so-called Glorious Revolution of the previous year, and many of whose provisions were repeated in the Bill of Rights of the Constitution of the United States. The Act of Settlement (1701) did the same thing for the British Crown that the Act of Succession, a century later, did for the Swedish Crown. The Reform Acts of 1832 and 1867 extended the suffrage. The acts granting the suffrage to all men in 1918, and to all women in 1928, would also be considered constitutional. The Parliament Acts of 1911 and 1949 reduced the functions of the House of Lords. Some students of the British constitution would extend this list, and it is unlikely that all would agree as to which documents should be included. This, then, is one reason why Britain is said to have an unwritten constitution. (Rapport, 2002, 153) In studying United Kingdom, we could distinguish between acts of the Riksdag that are, and those that are not, part of the British constitution, because constitutional acts can be amended only if passed by two successive Parliaments with a general election intervening. This is not true in Great Britain, where any Parliament could make the most fundamental change --one which would certainly be considered constitutional in Sweden or the United States--by a simple majority of the House of Commons and of the House of Lords and with the assent of the Monarch. The remarkable phenomenon is that constitutional amendments, in this sense, have never been passed by such simple majorities or without full and prolonged debate of the issue. As a result, there seems to be only one method for deciding which documents should be considered parts of the British constitution: the measurement of their effective longevity as parts of the operative constitution of which people and politicians are conscious, and of the proportions of the debate that preceded their adoption. This test leaves certain difficulties, one of them being the second reason for calling the British constitution unwritten. Most of those institutions and procedures, which occupy the most prominent places in written constitutions, are not mentioned in the great constitutional documents that have just been listed; in fact, they are not mentioned in any law at all. Since they are not written down in any Act of Parliament, they could be changed overnight. Yet no British politician would even think of proposing anything of the sort. This puzzling state of affairs is another reason why we will have to inquire later on into the content of the "True Constitution." (Burdick, 1922, 385) These qualities of English politics are also suggested by two other facts. The first of these is the remarkable success achieved by British political procedures when exported by the British themselves to America. Asia, and Africa. (McAffee, 2000, 100) We will see case studies of this in Canada and the United States. Some of the former British colonies, to be sure, have experienced difficulties as newly independent nations in trying to make British processes work--Pakistan, for example, or Ghana. But none of them has encountered as much trouble as the former colonies of France, Italy, or the Netherlands. The second evidence of the uniqueness of the British constitution is the fact that the success of British politics, at least since the eighteenth century, has generated so much "envy of less happier lands," in Shakespeare's phrase, that British institutions and procedures have become the most widely copied in the world, by far. The French constitutional monarchies of the nineteenth century were modelled on the British pattern. Constitutional monarchy elsewhere in Europe, as we saw in the Italian case, also attempted to emulate Great Britain, either directly or indirectly. The copying has not been confined to the institution of constitutional monarchy; indeed, the widespread adoption of the system of parliamentary procedure in use at Westminster is especially significant. The influence of this kind of borrowing on the procedures used by international assemblies, such as those of the League of Nations and of the United Nations, is really incalculable and, in terms of present world problems, may well turn out to be of much greater importance than other forms of imitation. (Horwill, 1925. 75) Only in the last hundred years has the Constitution of the United Kingdom become an export commodity that has been giving considerable competition to Great Britain in this "market." The Latin-American countries and others wanting either a popularly elected president or a federal system, or both, have generally followed the model of the United States. Swiss federalism provides a limited illustration of this. But so many of the subtler, and for that very reason more fundamental, features of American political processes are also adaptations of the British archetype-this will be a principal theme of our description of government in the United States--that copying them sometimes merely amounts to second-hand borrowing from England. (McDonald, 1925, 114) In the United Kingdom, formal amendment of the Constitution is even more difficult than in Sweden, which is why informal amendment has so often occurred. But again, there are many fundamental procedures which are older than the written Constitution, some of them as old as the common law itself. This is true of Great Britain, too, where the unwritten constitution could be amended by a passing majority of the House of Commons. (Lynch, 1999, 29) This suggests that truly constitutional rules need not be included in the formal constitution, but for the system to be stable and to elicit acceptance, some procedures commanding consensus must be fundamental. (Tomkins, 1998, 689) References Bennett, Munro William. (1930). The Unwritten Constitution: The Macmillan Company: London, p. 225 Bogdanor, Vernon. (1997). The Monarchy and the Constitution: Clarendon Press: Oxford, p. 351 Burdick, Charles K. (1922). The Law and the British Constitution: University of Glasgow Press: Glasgow, p. 385 Conley, Carolyn A. (1991). The Unwritten Law: Oxford University Press: London, p. 512 Horwill, Herbert W. (1925) The Usages of the British Constitution: Oxford University Press, H. Milford: London, p. 75 Lynch, Joseph M. (1999). Negotiating the Constitution: The Earliest Debates over Original Intent: Greenwich University Press: London, p. 29 McAffee, Thomas B. (2000) The Written Constitution, and Popular Sovereignty: Greenwood Press: Westport, CT, p. 100 McDonald, William. (1925) A Constitution for New Britain: Oxford University Press: London, p. 114 Patterson, Perry C. (1947) The Unwritten Constitution: Univ. of North Carolina Press: Chapel Hill, NC, p. 135 Rapport, Nigel. (2002) British Subjects: An Anthropology of Britain: Berg: New York, p. 153 Read, Conyers. (1938). The Constitution Reconsidered: Oxford University Press: London, p. 290 Ruth, Robert J. (1993) British Empiricism and American Pragmatism: New Directions and Neglected Arguments: Cambridge University Press: London. Publication Year, p. 856 Smith, Paul. (2001) The English Constitution: Cambridge University Press: Cambridge, England, p. 80 Spiro, Herbert J. (1959) Government by Constitution: The Political Systems of Democracy: Random House: New York, p. 68 Tomkins, Adam. (1998). The Constitution after Scott: Government Unwrapped: Oxford University: Oxford, p. 689 Read More