codified constitutions hinder effective decision … constitutions hinder effective decision-making...

Codified constitutions hinder effective decision-making and may

undermine the democratic processes.

Political Science, Bsc. Semester 1

Mid semester assignment

International Business and Politics

Mads Tryggedsson

Group XE

Juan Ignacio Staricco

November 27th, 2014

STU count: 22,703

Total pages: 9.98

Mads Tryggedsson Midterm Exam Autumn 2014 Political Science

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Constitutions in general, although being a relatively new concept, is considered by many to be the

noblest of documents and the most important one in order for states to legitimize their power.

Thomas Paine, one of the advocators for democracy stated: “Government without a constitution is

power without right” (Paine, 1791-2 cited in Heywood, 2013, p. 331). However, while this statement

can be questioned, the importance and influence of constitutions cannot be neglected. It goes

without saying, that constitutions play a huge role in modern states, at least the liberal democratic

ones, as they set the framework for how governmental institutions can act (Heywood, 2013).

Meanwhile, as there is no evidence that constitutions is a guarantee for democracy, the justification

of constitutions and whether they are beneficiary for the people is up for debate. Throughout the

years of history, there has been several examples of the ways in which constitutions have been

contradicting the general will of the people. Thus, a ‘rule of the law’ instead of a ‘rule of the people’

have been established (Hansen, 2010). This leads to the question whether codified constitutions

hinder effective decision-making and may undermine democratic processes.

This paper will hereby argue that a codified constitution do indeed hinder effective decision-making

and that codified constitutions ultimately undermines the democratic processes. Furthermore, this

paper will establish the linkage between effective decision-making and the empowering of democratic

processes. This will be done through a comparative analysis of respectively effective decision-making

and the undermining of democratic processes in a system based on a codified constitution and in a

system based on an uncodified constitution, as this is the opposite. For the purpose of this paper the

United States of America and the United Kingdom has been selected as cases for the comparative

analysis, as they are great examples of the two systems (Heywood, 2013).


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However, first of all in order to discuss and argue that codified constitutions hinder effective decision-

making and undermines the democratic processes, these three concepts needs to be strictly defined,

the first of them being constitutions. General speaking, a constitution is a set of rules that determines

the functions and powers of the different institutions of government (Heywood, 2013). Per definition,

the main function of a constitution is to limit, or constrain, the powers of government. According to

Heywood, the five main purposes of a constitution is to “empower states, establish unifying values

and goals, provide government stability, protect freedom, legitimize regimes” (Heywood, 2013, p.

338). Furthermore, Heywood emphasizes “… that the central purpose of a constitution is to constrain

government with a view to protecting individual liberty.” (Heywood, 2013, p. 339). Thus, Heywood

concludes that the function of constitutions is to lay down the framework for how government can

exercise power through legislation, for the purpose of protecting individual freedom (Heywood,

2013).

For the purpose of this paper, it is crucial to distinguish between two types of constitutions; codified

and uncodified constitutions, whom have very different characteristics:

"A written - more properly, a codified - constitution provides a clear, accessible and coherent

account of the body of fundamental rules and principles according to which the state and

society are constituted and governed. In addition, it defines the powers of the institutions of

government and sets out the rights of individuals and their responsibilities." (Bogdanor,

Khaitan and Vogenauer, 2007, p. 499).

It is emphasized that in order for a constitution to be codified it must be written, preferably in a

single, legal document. Furthermore, according to Bogdanor and colleagues, a codified constitution is

authoritative and ‘above all’, as it sets the framework for the basic institutions of government.

Heywood shares this conclusion, and uses the term ‘higher law’ in order to describe a codified

constitution (Heywood, 2013). Furthermore, there is another feature to a codified constitution, which

is the presence and probability of judicial review; the power of judges to review and ultimately

overthrow laws, on the basis that they are unconstitutional (Heywood, 2013). Consequently, this


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creates the need for a strong judicial branch, whose main function is to interpret and respect the

constitution, because the bodies of government must be subject to the constitution (Heywood, 2013).

Contrary, an uncodified constitution, although very uncommon, is defined by the absence of a single

written legal document (Heywood, 2013).

“The absence of a codified document implies, most importantly, that the legislatures enjoys

sovereign or unchallengeable authority. It has the right to make or unmake any law

whatsoever, no body having the right to override or set aside its laws” (Heywood, 2013, p.

335).

Heywood argues that the main characteristic of a state with an uncodified constitution is that there is

no limitations or constraints to the legislatures, usually the parliament. Instead, the legislative branch

is sovereign, as it is ‘above all’ because it can pass or overrule any law that it wishes. This is refered to

as ‘parliamentary sovereignty’. Usually, an uncodified constitution rests upon multiple sources, based

loosely on different kinds of laws (Heywood, 2013). However, when these laws are not codified in a

single, legal, document, there is no constraint on the legislatures not to overthrow this uncodified

constitution.

Secondly, in order to make the argument that codified constitutions hinder effective decision-making,

it is of great importance to define what is understood as effective decision-making. For the purpose of

this study, effective decision-making is referred to as the legislature’s ability to effectively make

decisions. That is, the ability of the legislatures to create and pass policy. In this matter, ‘effectivity’ is

understood as the ease in which an idea or an issue can become actual policy. Therefore, the harder,

more challenging and ultimately more troublesome it is for the legislative branch to create actual

policy, the less effective the decision-making. Hence, this definition of effective decision-making is

generally concerned with the process, and what happens within the ‘black box’ of decision-making in

which decision-making becomes more effective the fewer actors inside this ‘black box’.

At last, it would be impossible to discuss and argue whether a codified constitution undermines the

democratic processes, without strictly defining what is understood as the democratic process and


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subsequently what it means to undermine this particular process. For the purpose of this study,

democracy is overall defined as by Montesquieu: "When the body of the people is possessed of the

supreme power, it is called a democracy.” (Montesquieu, 1748, p. 25). Hence, in order for a system to

be democratic, the body of the people, popular referred to as parliament, must have supreme power.

Rephrased, this means that the legislative branch must consist of ‘the body of the people’ in order to

be democratic, which can also be put as the ‘rule/will of the people’. Often, the term ‘liberal

democracy’ is used to describe modern time democracy, which rests upon the definition by

Montesquieu (Hansen, 2010). Heywood argues and defines one of the central features of liberal

democracy as the following:

“Liberal democracy is an indirect and representative form of democracy, in that political office

is gained through success in regular elections that are conducted on the basis of formal

political equality.” (Heywood, 2013, p. 99).

Heywood stresses the importance of regular elections in order to have a liberal democracy. This

perception of elections being the core of democracy is shared among many scholars and is

implemented in the Human Rights (Hansen, 2010). The main purpose of elections is for the governed,

the people, to express consent to the government, and thereby creating legitimacy (Beetham, 1991).

In doing so elections establish an evaluation between the government and the people. As elections is

one of the central features of liberal democracy, this implies that one of the key features of the

democratic process is the presence of this evaluation to make sure that the will of the people is

expressed. To undermine the democratic process is therefore to, partially, remove or reduce this

evaluation; that is impair the power of the governed to evaluate the government.

Having defined the characteristics of a codified and uncodified constitution and what is understood as

effective decision-making, it can now be argued that a codified constitution do hinder effective

decision-making. This will be argued on the basis of a comparative analysis of decision-making in the

two different systems. Specifically, this is done through a study of decision-making in the United

States of America and the United Kingdom, with a focus point in the role of a constitution. These two


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countries have been chosen, as they are representative for respectively a codified and uncodified

constitution.

The constitution of the United States of America is a great example of a codified constitution, and is

often looked upon for inspiration (Heywood, 2013). However, it will hereby be argued that due the

presence of a codified constitution, decision-making in the US is not very effective. The constitution

of the USA is based very strictly upon Montesquieu’s (Montesquieu, 1748) theory of separation of

powers, in which the parliament, Congress, should posses all legislative powers (Watts, 20076). It is

the role of the legislatures to make decisions, which happens inside the two chambers of Congress.

However, there is a paradox between the role of Congress and the American constitution. Due to the

presence of a codified constitution, Congress is subject to, or limited by, the constitution, thus not all

legislative powers are vested in Congress. As it is the central role of the judiciary branch to respect

and interpret the constitution, judges acquire the power of judicial review; the power to review and

possible overthrow passed laws (Heywood, 2013). When the judiciary branch have the ultimate

power to overthrow laws passed by the legislative branch, the effective decision-making of the

legislature is impaired, because the legislatures are less free to legislate. After all, it is not very

effective when a policy, the product of decision-making, is overruled and overthrown.

Contrary to the codified constitution of the US, the constitution of the United Kingdom is an

uncodified constitution, loosely based upon multiple sources and laws. (Heywood, 2013). However,

the argument can be made that, due to the absence of an authoritative document, there is no actual

constitution in the UK and consequently decision-making can be very effective. It is said, that the

uncodified constitution of the United Kingdom consists of statute and common laws, custom and

tradition and also works of authority (Heywood, 2013). However, none of these laws acts as a ‘higher

law’ as they are, legally, not above others, therefore the possibility of judicial review does not exist.

Instead, legislative power is vested entirely in the parliament, meaning that parliament is sovereign

and above all (Bogdanor et al, 2007). Hence, the constitution of the United Kingdom is a paradox. Due

to parliamentary sovereignty, parliament can act in every way, including ignoring the uncodified

constitution. Accordingly, there is no actual constitution limiting the bonds of the legislative branch.


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Therefore, in a system of an uncodified constitution decision-making can be extremely effective, as

there is no constraint or limitation to what the legislative branch is capable of due to the absence of

judicial review. There is only a single actor, the legislator, inside the ‘black box’ of decision-making

thus making it very effective.

Having argued, and determined that the presence of a codified constitution ultimately hinders

effective decision-making; this paper will now address the issue of whether a codified constitution

undermines democratic processes. However, this all comes down to the perception of democracy,

and what it means to undermine the democratic processes. Previously, democracy was defined as

‘the rule of the people’ and the key democratic process defined as being regular elections, in which

government is evaluated by the people. Using these definitions, this paper will argue that it is possible

for a codified constitution to undermine the democratic process, but that this is not necessarily the

case. This will be done through a comparative analysis of how a codified constitution undermines the

democratic process in the US and how this is not the case with an uncodified constitution in the UK.

First of all, a linkage can be made between a codified constitution, effective decision-making and the

democratic process. To have effective decision-making is the ability for the legislature to legislate

without too many obstacles. Therefore when the legislatures are effective the democratic processes

are intact, because the will of the people (or at least the majority), expressed through the legislature

on the grounds of regular elections, is ultimately law. On the other side, ineffective decision-making

undermines the democratic process, because the will of the people, expressed through the

legislature, cannot become law as easily. Therefore, the rule of the people is compromised, because it

is subject to inefficient decision-making due to the presence of a codified constitution; which limits

the legislature and thus limits the will of the people. Hence, a codified constitution both hinders

effective decision-making, and thereby undermining the democratic process. However, this argument

is very sensitive to the definitions of the applied concepts. Therefore an isolated comparative analysis

of the role of a constitution in the undermining of the democratic process is needed to satisfactory

make this argument.


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It has previous been argued that an important feature of a codified constitution is the introduction of

judicial review. Due to the existence of judicial review, a codified constitution undermines the key

process of democracy. Judicial review creates the possibility that the judicial branch become actual

decision-makers and therefore also legislators, because the judicial branch gains the power to

overturn and make laws, due to a codified constitution (Dahl, 2001). Judicial review undermines the

democratic process because the judicial branch is not subject to ‘evaluation’ through regular election.

Consequently, the actual policy is not the ‘will of the people’, but instead the ‘the will of the judicial

branch’. An example, although an extreme one, of which judicial review undermined the democratic

process in the US and actually interfered with the ‘rule of the people’, is the case of the 2000

presidential election (Hansen, 2010). At the 2000 presidential elections disputes rose over the

accuracy of the ballot, and a recount was decided. However, the US supreme court quickly overruled

this decision, stating is as ‘unconstitutional’. Generally, it is believed that the outcome of the election

had been different if votes were actually recounted (Heywood, 2013). In this case, due to the

presence of strong judicial review it was possible to neglect and ignore the will of the people and thus

completely undermining the democratic process.

On the other side, supporters of constitutionalism would argue that the presence of a codified

constitution keeps authoritarianism at bay, ensures certain rights and provides protection for

minorities (Heywood, 2013). However, as democracy is defined as the ‘rule of the people’, it is not a

democratic requirement nor a responsibility to protect minorities. Instead, it would be a breach of the

democratic process to entrench the protection of minorities in a constitution because this would be,

as David Hume famously put it, the dead ruling the living (Hansen, 2010, p. 69). As an example the

American Constitution, written more than 300 years ago, still sets the framework for how the people

today are ruled. As the people today have very little chance to evaluate the constitution (Heywood,

2013), which is strictly speaking the work of the dead, the democratic process is undermined.

Contrary to a codified constitution that undermines the democratic process, an uncodified, or the

complete absence of a, constitution will empower the democratic process. This is because more

power is invested in the legislative branch; the parliament elected by the people. In the case of the


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United Kingdom the legislative branch, parliament, enjoys sovereignty; there is no bonds or

restrictions on the power of parliament (Watts, 2006). As the people elect the legislatures, the

legislatures resembles the opinion of the majority of the people, a very strong majority rule is

establishes, in which the democratic process is ensured because the government is frequently subject

to the evaluation of the governed through the elections. Therefore, with an absence of a codified

constitution parliament is sovereign and consists of a majority rule. Based on the definition of

Montesquieu (1748), this empowers the democratic process because ultimately there is a bigger

manifestation of the ‘rule of the people’.

Supporters of constitutionalism, and thus critics of parliamentary sovereignty, will look sceptically

upon a very functional and effective parliament, which operates without constraint. A system of

parliamentary sovereignty relies greatly on trust; the trust that parliament does not abuse the power

given to them by the electorate. The main argument by supporters of constitutionalism is that power

corrupts (Hansen, 2010). Therefore, according to these critics, when parliament is given total power it

will abuse its powers, due to the bare nature of human beings, as Hobbes originally put it (Hansen,

2010). Lord Hailsham termed this possibility for a sovereign parliament, such as the one in United

Kingdom, to abuse its powers as ‘elective dictatorship’ (Heywood, 2013). Hailsham argued that due to

parliamentary sovereignty, thus implicit the lack of judicial review, the government is able to act

exactly the way it wants. Accordingly, it is more adequate to refer to the system of the United

Kingdom as an elective dictatorship, rather than an actual democracy. Some argues that this was the

case of the Conservative Thatcher government in the 1980’s and 1990’s who abused its legislative

powers and ultimately undermined civil liberties (Heywood, 2013). Nonetheless, even though this

might be the case, given a certain timeframe an ‘elective dictatorship’ can always be removed and

overthrown by the people due to the frequency of elections, in which the ‘elective dictatorship’ is

evaluated1 and thereby keeping the democratic process intact.

Because a codified constitution places legislative power in the judicial branch, it creates the

opportunity of judicial activism in which the judicial branch becomes an effective decision-maker.

1 Assuming, of course, that elections have not been removed completely.


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Judicial activism is undermining the democratic processes, because no evaluations are imposed on the

judicial branch, which is essential for the democratic process. Therefore, a codified constitution may

undermine the democratic processes. However, this will not always be the case, as there is

necessarily not a direct linkage from a codified constitution to judicial activism. As an example, there

is only one case judicial review in Denmark in which the Supreme Court has overruled a law. (Hansen,

2010). Additionally, Robert Dahl argues that only 4 out of 23 stable democracies have strong judicial

review (Dahl, 2001). Nonetheless, as long as the codified constitution hinders the effective decision-

making, this is an undermining of the democratic process, as the link between effective decision-

making has been proven.


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Conclusion

This paper has investigated whether a codified constitution hinders effective decision-making and

additionally if a codified constitution is able to undermine the democratic process. This paper has

found, based on definitions by Montesquieu and Heywood, that codified constitutions do hinder

effective-decision making and undermines key democratic processes. Furthermore, this paper has

established the linkage between effective decision-making and the democratic process. Based on a

comparable case-study of the influence of a constitution in respectively the US and UK, as these two

states are based on either a codified or an uncodified constitution, it has been found that decision-

making in the US is ultimately less effective than in the UK. This is due to the presence of a codified

constitution, which by definition constrains and limits the abilities for the legislature, the Congress in

the case of the US, to effectively make policy. In general, a codified constitution creates the possibility

for judicial review, which is the ability for the judicial branch to overrule already passed laws.

Consequently, two actors are present inside the ‘black box’ of decision-making, thus a codified

constitution will always hinder effective decision-making.

When democracy and the democratic process is defined as the ‘rule of the people’ and the key

democratic process being the ability for the governed to give consent to the government, that is the

capability for the people to evaluate the legislature through regular elections, a codified constitution

will undermine both democracy and the democratic process. This is due to the ability of judicial

review, in which the judicial branch become decision-makers. The key democratic process is

undermined as long as the judicial branch is not subject to regular elections. Furthermore, as a

codified constitution hinders effective decision-making this automatically undermines the democratic

process. The reason for this is that as long as the legislatures are effective, the will of the people is

ultimately law, expressed through the legislature on the grounds of regular elections. On the contrary,

ineffective decision-making undermines the democratic process because the will of the people cannot

become law as easily. The will of the people is compromised, as it is subject to inefficient decision-

making due to the presence of a codified constitution, which limits the legislatures and thereby limits

the people.


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List of references

Bogdanor, Vernon. Khaitan, Tarunabh and Vogenauer, Stefan (2007): Should Britain Have a Written

Constitution? The Political Quarterly, 78(4): 499-517.

Beetham, David (1991): The Legitimation of Power. Hampshire: Palgrave Macmillan

Dahl, Robert (2001): How Democratic is the American Constitution? Yale: Yale University Press.

Hansen, Mogens Herman (2010). Demokrati som styreform og som ideologi. Copenhagen: Museum

Tusculanums Forlag

Montesquieu, Charles-Louis (1748): The Spirit of Laws. Kitchener: Batoche Books, 1992.

Heywood, Andrew (2013): Politics. Hampsire: Palgrave Macmillan (4th Ed.)

Watts, Duncan (2006): British Government and Politics: A Comparative Guide. Edinburgh: Edinburgh

University Press.

codified constitutions hinder effective decision … constitutions hinder effective decision-making...

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