Constitutions and separation of powers

Political Science · Government and institutions. The idea in plain words, the rules to remember, the mistake to avoid and a worked example, written and checked by Mega Lecture.

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The idea

A constitution is the body of fundamental rules that sets up the organs of government, fixes their powers and defines the relation between the state and the citizen. It is called written when the main rules are in one codified document, and unwritten when they are spread over statutes, court decisions and conventions.

A flexible constitution can be changed by the ordinary law-making process. A rigid one needs a special, harder procedure.

The separation of powers gives law-making, law-enforcing and law-interpreting to three different organs so that no one body holds all power. Checks and balances then let each organ limit the others. Judicial review lets courts set aside laws or acts that conflict with the constitution.

Rules to remember

Written (codified): USA, drawn up at Philadelphia in 1787; also India and Pakistan. Unwritten (uncodified): United Kingdom.
Flexible: amended like ordinary law, by simple majority (UK). Rigid: special procedure (USA: two-thirds of both houses of Congress to propose, three-quarters of the states to ratify).
The flexible and rigid classification is associated with James Bryce.
Conventions: unwritten rules of practice that are obeyed but not enforced by courts, e.g. royal assent to bills in Britain.
Montesquieu, The Spirit of the Laws (1748): three powers, legislative, executive and judicial.
Checks and balances in the USA: presidential veto, Congress overrides by two-thirds of both houses, Senate confirms appointments, impeachment.
Judicial review in the USA was established by Marbury v. Madison (1803), Chief Justice John Marshall.

Common mistake

Written does not mean rigid, and unwritten does not mean that no rules exist. Britain has many constitutional statutes; it simply has no single codified document, and its Parliament can change any of them by ordinary Act.

Worked example

In a certain state, Parliament passes a constitutional amendment only by a two-thirds majority, and it must then be approved by half of the provinces. Is the constitution flexible or rigid, and what is the usual argument for this design?

An ordinary law needs only a simple majority, but here an amendment needs two-thirds plus approval of the provinces.
The amending procedure is harder than the ordinary law-making procedure, which is the test of rigidity.
The argument for rigidity is stability: basic rules and rights are protected from a temporary majority.

Answer: It is a rigid constitution, valued for stability and the protection of fundamental rules.

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