Furthermore, just as these United States in Congress assembled are entering the most crucial and dangerous period in our long history, this network and its resources have made it possible for the average citizen, who is willing to study the issues, to be part of representative self-government, in a way that Thomas Jefferson or George Mason would have approved. And, the surfacing of this missing Amendment, passed out of Congress in 1810 and properly ratified in 1819, is part of what the New England Federalists (referring to their political faction, now, and not just the philosophy), would have easily recognized as Divine Providence. How this Amendment was ratified, what it meant to the men of that era, and how it came to be suppressed and forgotten are the subjects of this essay.
An uncodified constitution creates two problems. First, it makes it difficult to know what the state of the constitution actually is. Second, it suggests that it is easier to make changes to the UK Constitution than in countries with written constitutions, because the latter have documents with a ‘higher law’ status against which ordinary statute law and government action can be tested, and are only amendable via elaborate procedures. The flexibility of the UK constitution is evident from the large number of constitutional reforms since 1997, including the abolition of the majority of hereditary peers in the House of Lords, the introduction of codified rights of individuals for the the first time in the Human Rights Act 1998, and devolution to Scotland, Wales and Northern Ireland. Arguably, however, these recent constitutional reforms may have made the constitution less flexible in some respects: it is debatable, for instance, whether the could ever be repealed.
It has been suggested that the British Constitution can be summed up in eight words: What the Queen in Parliament enacts is law. This means that Parliament, using the power of , enacts law which no other body can challenge. Parliamentary sovereignty is commonly regarded as the defining principle of the British Constitution. This is the ultimate lawmaking power vested in a democratically elected Parliament to create or abolish any law. Other core principles of the British Constitution are often thought to include the rule of law, the separation of government into executive, legislative, and judicial branches, and the existence of a unitary state, meaning ultimate power is held by ‘the centre’ – the sovereign Westminster Parliament. However, some of these principles are mythical (the British constitution may be better understood as involving the fusion of executive and legislature) or in doubt (Parliamentary sovereignty may now be called in question given the combined impact of , devolution, the Courts, and human rights).
When scholars talk of constitutionalism, however, they normally meansomething that rules out Rex's case. They mean not only that there arenorms creating legislative, executive and judicial powers, but thatthese norms impose significant limits on those powers. Oftenthese limitations are in the form of civilrights against government, rights to things like free expression,association, equality and due process of law. But constitutional limitscome in a variety of forms. They can concern such things as thescope of authority (e.g., in a federal system, provincial orstate governments may have authority over health care and educationwhile the federal government's jurisdiction extends to national defenceand transportation); the mechanisms used in exercising therelevant power (e.g., procedural requirements governing the form andmanner of legislation); and of course civil rights (e.g., in aCharter or Bill of Rights). Constitutionalism in this richer sense ofthe term is the idea that government can/should be limited in itspowers and that its authority depends on its observing theselimitations. In this richer sense of the term, Rex's society has notembraced constitutionalism because the rules defining his authorityimpose no constitutional limits. Compare a second state in which Reginahas all the powers possessed by Rex except that she lacks authority tolegislate on matters concerning religion. Suppose further that Reginaalso lacks authority to implement, or to adjudicate on the basis of,any law which exceeds the scope of her legislative competence. We havehere the seeds of constitutionalism as that notion has come to beunderstood in Western legal thought.
The British Constitution is derived from a number of sources. Statutes are laws passed by Parliament and are generally the highest form of law. Conventions are unwritten practices which have developed over time and regulate the business of governing. Common law is law developed by the courts and judges through cases. The UK’s accession to the has meant that European law is increasingly impacting on the British Constitution. The UK is also subject to international law. Finally, because the British Constitution cannot be found in any single document, politicians and lawyers have relied on constitutional authorities to locate and understand the constitution.
Among the most influential of contemporary democratic critics isJeremy Waldron. Waldron is, to put it mildly, no fan of judicialreview. Nor is he enamored of the grandiose constitutional charters andbills of rights which serve as the most contentious ground in terms ofwhich that power is often exercised by courts. According to Waldron andhis fellow democratic critics, judicial review under a constitutionalcharter is fraught with both theoretical and practical difficulty. Itthreatens democracy and is both fundamentally unfair and politicallydangerous. It also relies on outmoded views about the nature of moralrights—that there are objective, universal rights of politicalmorality to which charters make reference, upon which there iswidespread agreement within democratic communities, and to which judgescan sensibly and justifiably be asked to appeal in protecting citizensagainst recalcitrant exercises of government power. While it is truethat judicial review need not be based on an appeal to abstract rightsof political morality—it could, for example, be restricted toquestions such as whether an administrative agency has followed properprocedure—and true that it need not include the abilityactually to strike down legislation, the main focus of democraticcritics has been on forms of judicial review which exemplify these twofeatures.
According to hard critics, factors like originalunderstandings and the supposed discipline of common law reasoningseldom, if ever, succeed in fixing meaningful limits upon governmentpower. As a result, reliance on such factors in constitutionaladjudication only serves: (a) to rationalize the purely politicaldecisions of judges pursuing, consciously or not, their own politicalideologies. Further consequences include: (b) a serious affront todemocracy. Small groups of unelected, elitist judges end upsubstituting their own, highly contentious views about the properlimits of government power for the considered judgments of the people'srepresentatives, e.g., those members of Congress or Parliament dulyelected to exercise, on behalf of the people, the latter's sovereignright to participate in political decisions affecting their basicrights. And possibly (c): suppression of those—women, minorityracial groups, the poor, and so on—whose interests are notadequately recognized and protected by the dominant, mainstreamideologies to which these elite judges have an affinity. Instead of thecurbing of rights-threatening government power for which the idea ofconstitutionalism is supposed to stand, we have political suppressiondisguised in a cloak of false constitutional legitimacy.
On this view, constitutionalinterpretation must accommodate itself to previous attempts tointerpret and apply the abstract rights provisions expressed in theconstitution's text. And just as the traditional rules ofprecedent combine respect for the (albeit limited) wisdom and authorityof previous decision makers (legislative and judicial) with anawareness of the need to allow adaptation in the face of changingviews, and new or unforeseen circumstances, so too must constitutionalinterpreters respect the wisdom and authority of previous interpreters,while allowing the constitution to adapt so as to respond to changingviews, and new or unforeseen circumstances. Living constitutionalinterpretation, though flexible and adaptive, is no less constrainedand disciplined than reasoning under common law.
Living constitutionalists have a number of responses to theseobjections. For instance, it might be argued that the theory in no wayresults in the unconstrained, arbitrary exercise of judicial power itsopponents often portray it to be. Living constitutionalists likeStrauss (2010) and Waluchow (2007a) suggest that the ongoinginterpretation of a constitution's abstract rights provisions isa process much like the process by which judges develop equallyabstract, common-law notions like ‘negligence’ and‘the reasonable use of force.’ According to Strauss, theU.S. constitutional system
As noted above, democratic critics tend not to be as utterlydismissive of constitutions and constitutional rights protections astheir more hard-line cousins. Their principal objections revolve arounda practice with which these aspects of modern constitutional regimesare typically associated: judicial review. This is the generalpractice whereby courts are sometimes called upon to review a law orsome other official act of government (e.g., the decision of anadministrative agency like the US Food and Drug Administration or theCanadian Radio-television and Telecommunications Commission) todetermine its compatibility with the constitution.Particular instances of this practicevary considerably. In many jurisdictions, such as the United States,France and Canada, judicial review includes the power to ‘strikedown’ or nullify a law duly passed by a legislature body oradministrative body, while in other jurisdictions, powers of review aremore limited. For example, United Kingdom courts do not have the powerto invalidate Parliament's legislation, that is, declare it voidand of no force and effect. But they do have the authority, undersection 4 of the Human Rights Act 1998, officially to declarelegislation incompatible with The European Convention on HumanRights. Upon such a declaration, Parliament usually undertakes toamend or repeal the offending legislation. But should it chose not todo so, the legislation remains valid and the courts have no furtherlegal recourse.