Codified constitutions’ impact on effective decision-­‐making and democratic processes Political Science, Mid-­‐Term Exam 2014 BSc. International Business & Politics, 1st semester. COPENHAGEN BUSINESS SCHOOL 2014 20th-­‐27th October 2014 Line Wedam Fruergaard xxxxxx Tutorial class: XD, Mogens Kamp Justesen 10 pages, 22,687 STU count Line Wedam Fruergaard Political Science, Mid-­‐Term Exam Introduction
“Government without a constitution is power without right” stated the British philosopher, Thomas
Paine back in 1791 and emphasized the importance of a constitution (Heywood, 2013: 331). Paine
stated that in the United States (US) “constitutional law is king” both limiting politics and
protecting the rights of man (West, 2013). Dialog regarding the rule of law and power of judiciary
is essential in the discussion to whether a codified or uncodified constitution is a prerequisite for
democracy. Discussion of adapting a codified constitution has played a conspicuous part in the
United Kingdom (UK), being one out of only three liberal democracies in the world to have an
uncodified constitution (Heywood, 2013: 333). The essence of the debate relies on the question, if a
codified constitution ensures or simply undermines the existing democracy? This paper investigates
to which extent codified constitutions hinder effective decision-making and undermine democratic
processes.
This paper will argue and show how the separation of powers, in a codified constitution, hinders
effective decision-making, and how judicial power can be an undermining feature in the democratic
processes. To discuss this matter, the paper will start by giving a definition of constitutions by using
definitions from Andrew Heywood’s book “Politics” and Montesquieu’s theory of the separation of
powers. Secondly, a definition of effective decision-making will be given. Democratic processes in
liberal democracy will be defined by the use of theory from Robert A. Dahl. US and UK constitute
the supporting empirical examples of this paper, and are also the reason why theory of liberal
democracies is chosen. US, holding a codified constitution, will form the main support of
arguments, and counter arguments will be provided by comparing with UK’s uncodified
constitution. Montesquieu’s separations of powers, Dahl’s critical view on the judiciary, and
relevant points from Heywood form the basis of the discussion of effective decision-making and
democratic processes in a codified constitution.
Constitutions and the separation of powers
A constitution is a set of rules, which establishes the powers of and the relationship between the
different branches of government. It seeks both to regulate and define the relationship between the
individual and the government (Heywood, 2013: 332). Most important is to emphasize the
distinction between codified and uncodified constitutions. United States’ Declaration of
Independence from 1776 is an example of a codified constitution formulated and gathered together
2 Line Wedam Fruergaard Political Science, Mid-­‐Term Exam in a single document. The document itself is authoritative and constitutes “higher law” with
entrenched laws, difficult to amend or abolish. In a codified constitution “all political bodies must
be subject to the authority of the courts” (Heywood, 2013: 334), which clarifies the importance of
the judiciary.
The French political philosopher, Montesquieu’s theory on separation of powers constitutes the
foundation of US’ codified constitution. The separation of powers is relevant for this paper to
analyse government powers and investigate the role of the judiciary in a modern liberal democracy.
According to Montesquieu, the powers of government should be separated into three branches; the
legislature, the executive and the judiciary, respectively making, implementing and interpreting law
(Heywood, 2013: 285). Montesquieu’s ideas are also the foundation of the US constitution’s checks
and balances, which possess the ability of the different branches to constrain one another’s power to
defend and secure liberty and avoid tyranny (Heywood, 2013: 312). Although codified often is
linked to the term of a written constitution, this is misleading due to the fact that no constitution is
entirely written or unwritten. All constitutions are therefore a blend of written and unwritten rules,
and the balance between these is what determines whether it is classified as codified or uncodified
(Heywood, 2013: 333). UK is an example of a liberal democracy with an uncodified, but partly
written, constitution. The unwritten elements consist of the statute law, common law, conventions
and various works of authority. Most importantly is the fact that “the legislature enjoys sovereign
or unchallengeable authority” (Heywood, 2013: 335).
Effective decision-making
The making of decisions and reaching of conclusions are usually seen as the key feature of the
policy-making process (Heywood, 2013: 352). Effective is most commonly referred to as
“producing the intended or expected result” (Dictionary, 2010). However, the decision-making
process in the policy-making process does not include the implementation or measuring of outputs.
Effective decision-making in this paper is referred to as government making political decisions
rather fast and without higher complications.
Democratic processes
In order to discuss the influence on judicial power on democratic processes this paragraph will
define “democratic processes in a liberal democracy”. Democracy means, literally, rule by the
people (Dahl, 1989: 1662). As mentioned, this paper takes point in liberal democracies, which
includes three key points. First, the society’s right to rule in the sense that they have an active role
3 Line Wedam Fruergaard Political Science, Mid-­‐Term Exam and a given mandate to shape and control government. Secondly, the government in constrained by
a constitution and finally, liberal democracy emphasizes the focus on a free economy, free press an
independent trade unions (Heywood, 2013: 270). These rights in the liberal democracy form the
foundation for the democratic processes. While having defined liberal democracy, this paper digs
deeper into the term “democratic processes” by means of Dahl’s five requirements for a democratic
process, phrased in Dahl’s “Democracy and its critics”(Dahl, 1989). Dahl’s main point is build on
the idea of “the intrinsic equality of all persons” meaning that all person should be given equal
consideration in making collective decisions (Dahl, 1989: 1663). According to Dahl, a democratic
process includes effective participation and voting equality at the decisive stage. Furthermore a
democratic process must give the opportunity for citizens to decide what matters are on the agenda,
as well as provide adequate and equal opportunities for citizens to reach understanding and
validating these matters to be decided (Dahl, 1989: 1664). Overall, this paper focus on the view that
democratic process includes citizens’ participation in making collective decisions.
The separation of powers as a hindrance to effective decision-making
The separation of powers divides governmental powers, which makes the decision-making process
more ineffective. Due to the fact that US’ codified constitution ensures the separation of powers, the
US presidential system holds a division of governmental powers in the sense of the president
constituting the executive branch and the Congress constituting the legislative branch (Heywood,
2013: 337). The division of presidential and legislative powers allows the president to propose and
Congress to dispose. If disagreement arises between these two branches it can create a less effective
decision-making process. Furthermore, with no exclusive authority to govern, no one can be held
exclusively accountable (Weaver, 1993: 2). As the former Treasury Secretary, C. Douglas Dillon
has argued, a divided government causes both policymaking and accountability to suffer because
“the president blames the Congress, the Congress blames the president, and the public remains
confused and disgusted with government in Washington” (Weaver, 1993: 2-3).
Ultimately, the ineffective decision-making process can be expressed in and lead to institutional
deadlock, or “governmental gridlock” (Heywood, 2013: 313). An example of this governmental
gridlock was demonstrated in October 2013, when the Senate and the House of Representatives
could not reach an agreement of the funding of US President Barack Obama’s health care law, also
known as “Obamacare”. This caused the first government shutdown in nearly two decades.
4 Line Wedam Fruergaard Political Science, Mid-­‐Term Exam Congressional Republicans, who was holding a majority in the US House of Representatives
refused to pass a funding of Obama-care in the 2014 federal budget. Commonly, the Senate
Democrats denied to pass a 2014 federal budget that did not hold “Obamacare” (Cohen, CNN). The
case shows how a divided government, in which the opposition has enough power to hinder a
president’s signature goals, can lead to higher complications within the decision-making process.
These occurrences might be more likely, when the presidency and the Congress are represented by
rival parties, or rival parties are represented within the Congress, but can also occur when both
branches are controlled by the same party (Heywood, 2013: 314). President Jimmy Carter
discovered in 1970s, how Congress can rebuff presidents, even when the same party represents both
branches. Congress, dominated by the democrats refused to pass major provisions of Carter’s bills
and his labour reform package, mainly due to a prolonged conflict between the White House and
Congress (Jones, 1984: 437).
So, is an uncodified constitution means of effective decision-making? The fact, that UK does not
have a codified constitution, and therefore no “down-written” separation of powers, provides the
legislature with more power. Government possesses a so-called parliamentary sovereignty, where
the parliament has unlimited authority (Heywood, 2013: 336). The central feature in UK
government is a fusion of legislative and executive power; meaning government is parliamentary
(Heywood, 2013: 311). Heywood simply argues: “In short, parliamentary executives can get things
done” (Heywood, 2013: 311). When the legislative and executive branch is not separated, as in the
US government, it hinders the chance of government gridlock and overall, there are fewer
complications in the making of decisions. Another argument in favour of an uncodified constitution
is that codified constitutions hinder effective decision-making, in the sense that the political
decisions being made must always be in agreement with the written constitution. With nothing
entrenched, or entirely written down, the political decision-making process might simply be easier
and without further complications. Constitutional significance can be changed through the ordinary
legislative process, and conventions are based on conduct and practice (Heywood, 2013: 336).
Noticeable, unwritten constitutions can in some cases be too flexible and adaptable. This case has
shown in UK, where the conventions of ministerial responsibility have shown the possibility of
almost being reshaped at the convenience of the given government of the day (Heywood, 2013:
336). Overall, the down-written laws and the separated powers of decision-makers can delay the
decision-making process.
5 Line Wedam Fruergaard Political Science, Mid-­‐Term Exam Judicial power as an undermining feature in democratic processes
Strong, judicial power make judges a part of the legislature, even though they are not elected by the
civil society, which conflicts the democratic process. Montesquieu’s separation of powers, in the
US constitution, enhances judicial independence in the sense that “they are ‘outside’ the machinery
of government and not object to political influence”, and by this, that the judiciary is separated from
the other branches of government (Heywood, 2013: 344-345). Nevertheless, the different branches
often influence each other and diminish the separation of powers. The existence of a codified
constitution enhances the power of the judiciary, in form of judicial review, and might create
“judicial policy-making” or “judicial legislation” (Dahl, 2001: 19). The US constitution makes no
mention of judicial review, but lays down the legal standards for the behaviour of government
institutions, these needed to be supervised by the judiciary (Heywood, 2013: 348). Hence, the
American Supreme Court can overrule the state laws, if these laws are violating the constitution,
which gives a “higher level of law”. Judges have the power to interpret and enact laws, and this
makes them the final arbiters of the constitution (Heywood, 2013: 334). In this connection, Dahl
uses the term “quasi guardianship”, which refers to the case, when rights and interests of a
democracy are protected by non-democratically elected “guards” (Dahl, 1989: 1665). By
concentrating power to the judiciary, instead of the legislature, no fundament exists for effective
participation and voting equality – an essential part of the democratic processes. As Dahl argues,
the judiciary can be justified, when it is used to maintaining the democratic processes, but it is not
justified as a substitute for democratic policy-making process (Dahl, 1989: 1666).
In contrast to Dahl, Larkins and O’Connor emphasizes the importance of the courts’ role in
guaranteeing a democratic stability. According to Larkins & O’Connor, there comes a responsibility
with holding the rule of law, that is, protecting minority rights, and securing procedures associated
with liberal government (Larkins in Gibler et al., 2011; 698). A codified constitution, including a
strong judiciary, is according to Larkin & O’Connor essential in securing the individual rights. With
absent judicial protection, citizens lose their ability to monitor and check the ruling regime with
speech, press, and public demonstration (Gibler et al, 2011: 698). The individual rights can be seen
as the precondition for democratic processes, but again, if the “protectors of the rights”, the judges,
are not democratically chosen, there is no guarantee that the judges will safeguard the individuals’
interests. The democratic process will in this case, and according to Dahl’s definition, be
undermined, as there is no active participation and voting for citizens. In contrast to Larkin &
O’Connor, Dahl furthermore argues that it simply cannot be said that fundamental rights and
6 Line Wedam Fruergaard Political Science, Mid-­‐Term Exam interests are less protected in countries such as UK, than they are in the US. He points to other ways
in securing minority rights and preventing problems in democratic processes, such as by
establishing safeguards in voting, election or legislative procedures (Dahl, 1989: 1665).
The lack of a neutral judiciary can furthermore undermine democratic processes. Montesquieu’s
intended independency and neutrality of the judiciary might never be possible, because it always in
some way will be subject to external bias or internal bias. This paragraph works exclusively with
external bias, defined as when political bodies such as parties, the assembly and government, are
able to exert on the judiciary (Heywood, 2013: 345). In the US Supreme Court, judges are hold
office for life, appointed by the US president, and subsequently confirmed by the Senate. This
makes it possible for external bias to intrude the judiciary in the sense of presidential influence
(Heywood, 2013: 345). Since the 1930s a pattern of presidential appointment of Supreme Court
judges, on the basis of party affiliation and ideological disposition, has shown (Heywood, 2013:
346). The tendency of nominating judges, whose political agenda is in the favour of the president,
was also shown recently in May 2010, when US President Obama chose Elena Kagan as a Supreme
Court judge. Kagan was before the nomination Solicitor General for the Obama government. A
defender of the constitution, from the Center for Constitutional Rights, Vincent Warren argued that
Obama would seek to appoint a Supreme Court Judge, who would endorse his policies. Warren
stated that Obama’s nomination of Kagan “indicates a troubling support for expanding presidential
powers, something we must be vigilant about at this time” (Cohen, CNN). However, trying to
democratize the judiciary, by choosing to appoint judges through popular elections, might still draw
judges into partisan politics and make judicial neutrality impossible. Furthermore, electing the
judges on the basis of popularity can be at the expense of their expertise and specialist knowledge
(Heywood, 2013: 346). At the same time, fully neutrality might always be impossible, since judges
are individuals, and individuals will always create certain biases.
Nevertheless, some might argue that the US Supreme Court has the ultimate power – also in the
matter of presidents. The US Supreme Court magnificent power was shown in 2000, where the
Supreme Court overruled the court in Florida, regarding a recount of the ballots after the president
election with Al-gore and Bush as candidates. The Supreme Court blocked Florida’s recount and it
was suspected that the ruling was motivated by partisan political advantage. Bush won the
presidential election, but it is generally believed that if the statewide recount had gone ahead, Gore
would have won the presidential election. Justices were suspected to increase the chances of further
7 Line Wedam Fruergaard Political Science, Mid-­‐Term Exam conservative appointments to the Court in the future, by installing a Republican rather than a
Democrat in the White House (Heywood, 2013: 348). This is an example of the great power the
Supreme Court hold in influencing politics. When the judicial branch has influence on the
legislative branch, and vice versa, the separation of powers to some extent fails, and undermines the
democratic processes.
The past paragraphs demonstrated, how a codified constitution enhances judicial power and can
undermine democratic processes, due to a biased judiciary with lack of independency. But does this
mean that an uncodified constitution is the answer to ensure democratic processes? If we take a
look at the UK for instance, an uncodified, and partly unwritten constitution restricts the power of
the judiciary. In 2005 the independence of UK judges were strongly enhanced, when appointment
of judges was moved from the political arena into a separate commission, the Judicial
Appointments Commission (Heywood, 2013: 346). Despite the strengthen of UK’s judicial branch,
the UK Supreme Court is still relatively weak compared to the US Supreme Court. This is caused
by the absent of a codified constitution, which means a greater part of power is given to the
executive branch, creating parliamentary sovereignty and supremacy of statute law over forms of
law (Heywood, 2013: 336). More power to the legislature, in the uncodified constitution, solves the
democratic problems in the codified constitution regarding non-elected judicial policy-makers. Dahl
underpins this matter by arguing that with a more enhanced executive branch, containing publicly
accountable politicians plus a constrained judicial branch, the political processes are more
democratic (Dahl, 1989: 1666).
Critics of parliamentary government would point to the problem of executive domination, which is
the case in UK. A combination of strict party discipline and a disproportional electoral system
allows government to control Parliament through cohesive and reliable majority in the House of
Commons. In this connection, Lord Hailsham (1976) came with the term “elective dictatorship” to
describe the UK government (Heywood, 2013: 311). Elective dictatorship is referring to the ability
of a government to act, once elected, as pleased as long as it holds majority control of the House of
Commons (Heywood, 2013: 335). The British politician, Kenneth Clarke from the Conservative
Party warned Britain back in 2010 about the drift towards “elective dictatorship” during Labour’s
years in power. Clarke came with his statement after Labour’s large majorities allowed to return
greater powers to Parliamant, and he pointed to the fact that “the executive has grown much, much
more powerful” (Home Affairs Editor, 2010: 6). With the executive branch holding much power
8 Line Wedam Fruergaard Political Science, Mid-­‐Term Exam the government is free to act the way it wishes, which threatens individual rights and liberties.
Hence, some have gone so far as arguing that UK does not have a constitution at all (Heywood,
2013: 335). A codified constitution secures these individual rights and liberties, defining the
relationship between state and citizens, which constitutes the foundation of democratic processes in
the liberal democracy. The importance of the judiciary’s responsibility in securing these rights, are
according to Larkin & O’Connor essential in providing democratic stability. Lord Hailsham and
proponents of a strong judiciary power would further argue that judicial power is essential in acting
as a safeguard for elective dictatorship, and by this, ensuring democratic processes. Dahl would in
this matter, simply argue that “the more a nation relies on judicial review, the less it can utilize the
democratic processes” (Dahl, 1989: 1665). In this connection, it is important to point that Dahl
concedes that judicial review does not necessarily violate requirements for democracy, but he
caution against ”relying on judicial review as a correction for failures in the democracy” (Dahl,
1989: 1664). You could therefore argue that a codified constitution secures democratic processes in
the form of individual rights and liberties, but fails to ensure citizens’ active participation in making
collective decisions due to the lack of ability to elect the judges protecting their rights and
ultimately, making policies.
Conclusion
US’ codified constitution holds Montesquieu’s idea of separation of powers, which creates a
division of government, causing an ineffective decision-making process. Simultaneously, the US
constitution ensures the rule of law, which enhances judicial power and to some extent undermines
democratic processes, due to the fact that judges are not democratically elected. Independency of
the judiciary is a precondition for democratic processes, which can be difficult due to external
biases. UK’s uncodified constitution narrows the judicial power but strengthens the legislative
power, which secures the democratic process by giving citizens the ability to elect who should
safeguard their interests. However, Lord Hailsham points to the problem of elective dictatorship,
giving the executive branch much power and threatening individual rights and liberties, which by
definition forms the foundation for democratic processes in a liberal democracy. Therefore, Larkins
& O’Connor argue that a codified constitution with a strong judiciary is essential in the creation of
democratic stability to secure these rights. But again, the thoughts of Dahl can overrule Larkin &
O’Connors view: if the judges, safeguarding the interests of the people and holding some legislative
power as well, are not elected by civil society, the democratic processes are undermined to some
extent.
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