Constitutions and Constitutional Government

Different views of constitutions

• “Constitutions are scraps of paper”

-- Otto von Bismarck

• Constitutions are the foundations of liberal democracy

What is a constitution?

• A fundamental law superior to administrative or statute law

• A framework for government: constitutions define basic political institutions, their powers and their limits

• May include statements of societal goals and objectives

Origins:

• Ancient and medieval systems in which there is some agreement on the basic structures of government, and on limits to the power of institutions.

• For example:– Limits on the prerogatives of the monarch– Agreement on prerogatives of parliaments

Contemporary constitutions may reflect

• earlier frameworks adopted to modern circumstances (e.g Britain)

OR

• Deliberate acts of constituting a country and a government

Constitutions are found both in

• Liberal democracies

& in

• Many, but not all, authoritarian systems

Components:

• A preamble or statement of purpose

• Sections defining the powers and prerogatives of institutions

• Enumeration of citizens’ rights

• An amending formula

Varieties:

• Flexible v. rigid

• Written v. unwritten

• Presidential v. Parliamentary v. Semi-presidential

• Unitary v. federal

Impact or effect of constitutions depends on:

• Willingness of elites and key groups in society to accept its limits -- e.g. – Executive– Political parties– Organized interests– The military

• Willingness (and ability) of courts to ensure that it is followed

Constitutions and how they operate.

• Differences and similarities among– Britain– France– United States– Canada

Britain’s constitution:

• Medieval institutions made modern (or more or less modern)

• Consists of written and unwritten parts

• Best described as an un-codified rather than an unwritten constitution

Written parts:

• Basic constitutional settlements:– Magna Carta (1215)– Act of Union (1707)– Acts of Settlement (1689)

• Ordinary laws:– First Reform Bill (1832)– Second Reform Bill (1867)– Third Reform Bill (1884)– Parliament Act of 1911– Scotland Act (1997)

Unwritten parts of the British Constitution:

• Conventions defining, among other things,– powers of the cabinet – Powers of the prime minister– relations between cabinet and prime minister– relations between cabinet and parliament

• Example: must the government resign if it loses a vote in parliament?

Problems:

• How do we know when a practice is or is not a convention of the constitution?

• How different is Britain from other liberal democracies?

The United States

• Constitution from 1787• A short document –

– 30-35 pages– 7 main articles– 27 amendments

• Provides for– A presidential system with pronounced separation of

powers– A federal system with all residual powers reserved for

the states

Changes in the American constitution over time:

• Democratization: from elite to mass-based politics

• Growth in the power of the federal government:– The 19th c. vs. the 20th century state

• Expansion and contraction of the power of the presidency

Sources of change:

• Judicial review by the Supreme Court implied but not specified in the Constitution -- Established by Chief Justice John Marshall in Marbury v. Madison (1803)

• Practice and interpretation

• Political parties and the ways in which they connect or fail to connect Congress and the Presidency

France:

• Current constitution: Fifth Republic – from 1958• Semi-presidential regime put in place by

threatened military insurrection• Presidential powers implied but not directly

granted. Yet:– Constitution modified through expansion in the powers

of the presidency– via practice and usage– Constitution amended in 1962 by extra constitutional

means (via an amending formula not specified in the constitution)

Canada

• Oh Canada

Problem:

• Why are some constitutions strictly adhered to while others are not?

• Why are some countries able to agree on their constitutions while others are not able to do so?

• What functions do constitutions serve in systems which are fundamentally authoritarian?