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CONSTITUTIONAL SOURCES
A constitution is a body of rules that defines the manner in which a state or society is organised.
Within this broad definition there are two basic styles of constitution:
- Codified constitution consists of a full and authoritative set of rules written down in a single place
- Uncodified constitutions are less defined, often having evolved over time and are as much reliant on traditions and customs as on any written documents.
Constitutions are based on certain sources, regardless of whether or not they are codified or uncodified.
The US constitution is codified. This document, including the amendments and Supreme Court rulings that clarify its meaning, is the basis US constitutional law. US statute can also define power relationships within the USA but it remains subject to the Constitution and can be declared void through judicial review.
The UK constitution is uncodified and based in statute, common law, conventions, works of authority, and EU treaties and law. The UK parliament is sovereign and parliamentary statures are the supreme source of constitutional law and cannot be declared unconstitutional.
Higher UK courts can use the power of judicial review to:
- suspend statute likely to contravene EU law
- declare stature incompatible with the Human Rights Act
- declare actions ultra vires
KEY POINT: Constitutional law in the USA is as much reliant upon Supreme Court interpretations of the Constitution as it is on the document itself. In the UK, the courts do not have the same freedom to review and interpret statute. UK courts can suspend statute that is likely to be in violation of EU law and issue declarations of incompatibility. This can happen where new or existing laws contradict elements of the European Convention on Human Rights incorporated in the Human Rights Act 1998.
CONSTITUTIONAL PRINCIPLES
The rule of law is a key principle in both the UK and the USA. Most famously defined by A.V. Dicey, in 1885, this doctrine states that:
- no man can be punished without trial
- no one is above the law; all are subject to the same justice
- the general principles of the constitution, e.g. personal freedoms, result form the decisions of the judges (case law), not from acts of statute or executive order
Aside from the rule of law, the US and UK constitutions share a few principles in common.
Key elements of the UK constitution are parliamentary sovereignty, the unitary state and constitutional monarchy. The US constitution, in contrast, is based upon principles of constitutional sovereignty, federalism, limited government and republicanism.
US federal and state roles of government remain distinct and cannot be taken away without constitutional amendment. Similarly, in the UK the power to reverse both European integration and devolution remains with the parliament.
UK
- Parliamentary sovereignty
- Parliamentary government under a constitutional monarchy
- Unitary state
US
- Sovereignty of constitution and of the people
- Presidential government operating under a principle of republicanism
- Federalism and limited government
KEY POINT: Constitutional principles tend to be implied in any constitutional settlement, as opposed to being spelled out explicitly. This is true even in codified constitutions, where the emphasis is normally on setting out the rules that establish the various institutions and processes rather then on making general statements about ethos or ideals.
Committees
US Committee System
Like UK, US committees also divided into standing and select but actions/powers are very different.
Standing Committees
- Exist in both Senate and House. Standing committees – Senate about 18 members, House 40 – 50 members.
- Standing committees often divided into subcommittees. E.g. House Science Committee has four sub-committees: environment, research, energy & space.
- Membership is proportional to strength of party in Senate/House.
- Standing committees are permanent, policy specialist. Members often serve for years or even decades which allows them to develop expertise.
- Some committees have a higher status than others and there is usually a wait to become a member – Judiciary, Armed Services, Appropriations.
- Standing committees in both houses of Congress have two roles – ? to conduct the committee stage of the legislative process (this happens before rather than after the second reading) and ? to conduct investigations within the committees policy area (this would be done by select committees in UK).
- Senate standing committees also have the role ? of starting the confirmation process of presidential appointments.
- Unlike the UK, US standing committees are able to hold hearings on a bill where they will take evidence from witnesses who could include interest groups, professional bodies likely to be affected by the legislation, ordinary members of the public. Witnesses give a statement and are then subject to questions from the committee.
- The length of the hearing will depend largely on how controversial the bill is. E.g. Clinton’s Healthcare Reform Bill – the hearing went on for over a year.
- Once the hearing is over the committee decides whether a bill should be passed on to its second reading.
- Most standing committees are intended to authorise legislation but some have the role of providing the funds to finance legislation. These committees are highly prestigious and influential. In particular, the House Appropriations Committee (source of all appropriations bills), the House Ways and Means and Senate Finance Committees (which are responsible for all tax bills), and the Budget Committees.
- Standing Committees also conduct investigations within the committee’s policy area. They attempt to answer questions like ‘Why did this happen?’ ‘Is this legislation effective?’ Investigations can be held where the committee feels there has been a policy failure or a crisis. An example of an investigation would be the Senate Armed Services Committee’s investigation into the situation in Iraq and the intelligence basis for the conflict. Again, the committee is able to call witnesses and take evidence.
- The Senate standing committees also play a role in the confirmation of presidential appointments – the most important committees being the Judiciary and Foreign Relations Committees. The Senate standing committees hold hearings at which supporters and possibly critics of the nominee give evidence. The committee then votes on whether the nominee should be confirmed. This is advisory rather than decisive but because committees are seen as policy specialists their recommendations are rarely overturned.
- Committees are able to ‘pigeonhole’ bills - put to one side. The House/Senate can force a committee to release a bill but this is rare and ‘pigeonholing’ effective kills the legislation.
House Rules Committee
Once the House of Representatives standing committees are finished with a bill it passes to the House Rules Committee. This committee prioritises the order in which bills reach the House floor for their second reading. Means that House Rules Committee has considerable power - can determine way in which bill can be debated during second reading. Type of ‘rule’ affect bill:
- ‘open’ rule - amendments without limit - bill can be debated to death.
- ‘closed’ rule - limited no. of amendments can be passed.
- ‘special’ rule - bills must be considered immediately in current form).
- House Rules Committee can also ‘pigeonhole’ a bill.
- Chair of the House Rules Committee is considered one of the most influential posts in Congress.
Select Committees
- Also known as ‘special’ or ‘investigative’ committees. Most are ad hoc, set up to investigate a particular issue. Investigations are set up when the topic does not fall within the area of a standing committee or is going to be too time consuming for the standing committee to complete its ordinary business. E.g. House Select Committees on political assassinations – Kennedy etc, joint select committee on Iran-Contra affair, joint select committee on 11 September 2001.
- US committees can subpoena witnesses and documents – though executive can resist and sheer volume of documentation can make it difficult to know what to ask for.
Committee chairs
- Committee chair used to be based on seniority – member of majority party longest serving on committee. *Changed in 1970s – introduction of secret ballot to choose chairman and ranking minority members also chosen in past through seniority. Typical to still be longest serving member.
- 1990s – term limits. Chairs can now serve no more than 6 terms. This meant 14 new chairs for House standing committees in Jan 2001.
- Response to criticism of Democrat control of chairs for long periods of time – including 43 years served as chair of Appropriations sub-committee on agriculture.
Comparison
- Committee stage in US before second reading but after second reading in UK.
- Committees in UK weaker because party system in UK is stronger.
- US committees have greater independence in part because of separation of powers.
- US committees can effectively kill a bill whereas UK committees have very little impact on government legislation.
- UK committees lack permanence, expertise of US committees.
- UK committees far less money, far fewer resources than US (something like 30,000 permanent staff for Congress to use for research etc).
- Congress has to use committees to scrutinise actions of executive – cannot do so in chambers because of separation of powers. However UK also has parliamentary Qs as opportunity to examine actions of government.
- Congressional committees have far more political clout – President will be far more likely to actively seek support of committee chairs.
- Select Committees in US very influential – can potentially embarrass executive – i.e. Reagan’s embarrassment over Iran-Contra affair.
- UK requests witness attendance US can subpoena and cannot also subpoena documents which does not happen in UK.
Judiciary in UK and USA
- US - Constitution ==> Acts of Congress unconstitutional
- UK - Doctrine of Parliamentary Supremacy & lack of codified constitution means not able to declare acts of Parliament unconstitutional.
- Interpreting law - what means & how should be applied. Resolve disputes between individuals and between individuals & state.
- Judges guardians of law ? apply rules fairly ? equal justice. Impartial
Safeguarding rights/liberties.
USA
- Senior judges appointed by President for life - confirmed by Senate.
- Senior judges appointed on advice of Lord Chancellor. No formal checks on appointments.
UK all judges appointed
Appointment system
- Cronyism, Nepotism: Similar philosophy ? more so in US where more power over political issues.
- But Senate can reject choice and judges can be unpredictable ? candidates more liberal than they appear.
- Appointed not representative. Unsympathetic to those who wish to disturb the status quo.
- Elected - follow popular whim.
Politicisation
- US politics and judiciary connected ? Appointment, 2000 election result, constitutional power etc.
- UK less politicised ? still potential. Recommended by Lord Chancellor - member of gov’t party.
- Both countries more willing to be political.
Representation/Accountability
- Claim political independence in UK/US. Refrain from involving selves in party politics & electioneering.
- Supt Ct attends State of Union address.
- Enhanced by life tenure - above political
- US see court as part of political apparatus ? abortion, crime and punishment election etc
- UK some want to see more/some less ? adopting written constitution/bill of rights etc would see politicisation as in US
Checks
- Legislation ? alter laws & thereby judgements.
- USA - constitutional amendments limited to declare issue unconstitutional.
- US ? legislation plays role in appointment & removal ? impeachment
- Executive US - political weight behind judgement.
- Practical support from other elements of government.
- Public opinion - what is acceptable has impact.
Activism
- Growth in US & UK
- UK since 80s more willing to issue judgement critical of actions of ministers. Judicial review increased sharply.
- Not able to declare actions unconstitutional. Can declare ultra vires - beyond powers. Such decisions mainly in areas of human rights and civil liberties. E.g. Howard as H.S. defeated 10 times over sentencing policy.
- K. Baker lost out in court over immigration and television licensing.
Comments
These notes are aimed at people studying for A Level Politics, but will be suitable for other people too.
Originally submitted by little one and aimeegreen on TSR Forums.
