The advantages of a codified constitution

‘The advantages of a codified constitution now outweigh its disadvantages.’ Discuss (40) A codified constitution is a single document that sets out the laws, rules and principles on a how a state is to be governed, and the rights of the citizens; these are collected in one authoritative document. Its adversary is an uncodified constitution, where rules, laws and principles are not in one authoritative document, but are found in a variety of sources which may be written or unwritten. I will explore both the advantages and disadvantages of a codified constitution in this essay. Some would say that, yes, there are more advantages of a codified constitution than disadvantages. One advantage of a codified constitution is the clarity of its meaning as it sets out the laws, rules and principles on a how a state is to be governed. Therefore, everyone who belongs to the constitution is fully aware of its meanings and obligations.

This clarity of the codified constitution also makes the job easier for judges during the process of judicial review, as they pass the decision on whether new laws are constitutional or not, and by using the codified constitution, they can easily make their decision. The gathering of all the main principles and law in one authoritative document also gives the judicial system a convenient point of reference. As a result, this can protect the constitution from any new law which may endanger it. However, in countries such as the UK and New Zealand without codified constitutions the law is made up of conventions and works of authority which can slow down the judicial process as there are many different sources of the constitution’s law.

Another advantage of a codified constitution is entrenchment which means that the fundamental principles of the constitution are protected, such as the right to trial before a jury. Therefore, high authority and special political powers are required to amend the codified constitution. Under entrenchment, there is a separation of powers which restricts the amount of power one specific political party has and the damage it can do the constitution whilst in power. Also, a codified constitution provides the government with high accountability and provides checks and balances on the government. This is an advantage, because in countries such as the UK without a codified constitution, they provide too much power to their political party in charge and to their individual prime minister under their systems; this means that power is not widely dispersed and is held in too few hands.

This also means that under an uncodified constitution, the prime minister can force through laws with the approval of Parliament, even if everyone else is against that law, whereas, this wouldn’t be possible with a codified constitution as the government would have to prove and justify their proposed laws. Furthermore, many politicians in the UK argue that many of the public are disengaged in politics and have a lack of political understanding. Therefore, having a codified constitution would educate the public and get encourage political participation as all the laws would be clearly and simply stated for the public to understand the fundamental laws of their countries. If they disagree with any laws on the codified constitution, they can challenge government by either lobbying or even establishing pressure groups which would strengthen the democracy.

Plus, people may argue that the UK’s constitution is too old-fashioned and is only one of the few countries in the world with an uncodified constitution. Therefore, they should change to a codified constitution like the USA who were the first ‘written’ constitution and because of this cannot change the Constitution through its normal legislative process and amendments must be passed by at least two-thirds of the votes; the US constitution is also highly rigid. Although some may say that an advantage of an uncodified constitution is that it can be amended and can change with time, a disadvantage of this is that the laws can be changed with insufficient reasoning which cannot happen under a codified constitution.

On the other hand, a disadvantage of a codified constitution is that they are inflexible to change which can lead to radical actions against the government and even political inequalities such as the Civil Rights Movement. Also, the checks and balances on the government can be too strong and too severe which can lead to gridlock of the government such as the US Congress. In the USA, a codified constitution is also very difficult to change with times and if circumstances in the country have changed, as 66% of Congress and 75% of the states would have to approve of change. Furthermore, as there is a separation of powers under a codified constitution, this means that the decision-making process would be very slow and not all of the ranks of government would agree making it more complicated.

It is also stated that codified constitutions can be used by unelected officials such as in the USA, where unelected judges are able to make decisions based on the codified constitution, Also, governments in a codified constitution can insert clauses known as ‘notwithstanding clauses’ or the ‘override power’ in order to override some rights in a country such as in Canada, which is very controversial and undemocratic as they give their citizens hardly any rights to a certain extent. Also, constitutions can rapidly fall out of date and therefore a codified constitution is inadaptable and difficult to change with time; which is why many states periodically rewrite their constitution. Some may also say that constitutions should be able to evolve by themselves as it is organic; therefore, the laws should be able to change and evolve with time. Looking at the UK as an example of a country with an uncodified constitution, there may be no need for them to change to a codified constitution as they have been quite strong and stable under the current constitution.

It has allowed devolution in a country that is ever-changing, so the constitution can be changed unlike in a codified constitution. Whereas the USA has a codified constitution and is in a constant state of gridlock and chaos as checks and balances and separation of powers can be overridden and prevent necessary enforcement of acts such as the Civil Rights Movement in the 1950s. To conclude, I disagree that the advantages of a codified constitution outweigh the disadvantages as a constitution should be allowed to evolve by itself and over time with the times, not just be rigid and inadaptable as in a codified constitution. Also, looking at the UK, there is no need for change and the uncodified constitution has caused no problems unlike the USA’s problems with a codified constitution. Furthermore, a codified constitution would not please the whole of the democracy and cause further divisions as people may not agree with the fundamental laws of the country placed on one authoritative document.