The word “Constitution” has two distinct although intermixed meanings. In the first place it can simply be a set of rules for the functioning of the government. It establishes for example a two chamber Legislature and an independent executive branch in the case of the United States, but parliamentary supremacy in England. It should be said that England can be argued not to have a true Constitution even in this sense. The gradual reduction and power of the House of Lords for example proceeded through a sequence of simple parliamentary acts.
It is possible for non-democratic governments to have a set of internal rules that can be called “Constitutions,” mainly for administrative convenience. The current dictator of Pakistan has revised the Constitution several times for the apparent purpose of solidifying his power. Needless to say under the circumstances, the Constitution is of only minor importance.
The other meaning of Constitution, that is perhaps best exemplified by the United States, involves restrictions on the functioning of the government mainly in order to protect certain liberties of the citizenry or to prevent government organs from expanding their power by trenching on the powers of other organs. It is frequently said that the American Constitution was deliberately designed to provide conflict between the three principal branches of the federal government — the legislature, the executive and the judiciary — and between the federal government as a whole and the states. If this was the intent it clearly has not succeeded, since the United States has experienced significant conflicts of both kinds, conflicts that on balance have restricted the growth of government.
Unfortunately although this has restricted the growth of government, it has not prevented it. Large-scale transfers from the federal to the state governments have greatly reduced the potential for conflict between the states and federal government. The conflict in the federal government, however, has continued. It is far from clear which of the three main branches, Executive, Legislative and Judicial is winning the power struggle.
The Supreme Court has recently assumed an essentially legislative role. Cheered on by the large majority of U.S. law professors, it has recently taken the position that it is the body that should take the lead in changing the ethical code. The recent decisions about death penalties included, for example, language about public opinion on the subject with the apparent view that the Supreme Court should follow the views of the public rather than leaving these to elected officials. But this is only a more overt expression of a policy position that has been gradually growing in legal decisions.
To take a quite different example, the United Kingdom is an example of a country without a written constitution and yet, that possesses an informal constitution enforced through a slowly evolving common law system. The common law system itself has been eroded by legislation. For example, civil cases are no longer tried with juries. Further, the English equivalent of the American Fifth Amendment is now largely in abeyance. Further, the Home Secretary of the British Labour Government is attempting to remove trial by jury even in criminal cases. The development of separate quasi governments in Scotland and Wales is also an example of changes which are politically feasible in the absence a written Constitution and with a general acceptance of the supremacy of Parliament. Nevertheless, the British government is far from tyrannical.
Needless to say these are not the only two countries that have Constitutions, but they are examples of the two extremes. The American Constitution is formally strong and the British Constitution is formally weak. Most other democracies lie between these two extremes. For undemocratic governments, the Constitution is normally merely a convenience for the ruling dictators rather than a constraint on their actions.
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