Category: Constitution

The essay detailed below will evaluate the claim that constitutions are essential for maintaining democracy as it varies within different contexts. The essay will start by detailing the strengths of the constitution over the democratic process through its perceived authority. Further on, the essay will also weigh the instances when a constitution was not essential for maintaining democracy especially in national instability, this will provide a more balanced view of the effectiveness of a constitution. This essay will provide support for those claims by analysing key theories from Hobbes, Locke, and the social contract, whilst also reinforcing each point with a current or former world affair.

Cambridge defines democracy as “the belief in freedom and equality between people, or a system of government based on this belief, in which power is either held by elected representatives or directly by the people themselves” (Cambridge English Dictionary, 2020). That core principle complements the idea of a constitution which consists of “the basic principles and laws of a nation, state, or social group that determine the powers and duties of the government and guarantee certain rights to the people in it” (Merriam-webster, 2020).

The core reason why constitutions are essential for the maintenance of democracy is because of the authority invested in it, like the U.S constitution. It can be argued that the authority invested in the U.S constitution is supreme because it originates from consent, based on the social contract theory. A key theorist, Rousseau, theorised that the social contract is a consensual agreement (either tacit or hypothetical) between the people and a ruler or state, because the agreement is perceived as consensual it legitimises the authority of the state or ruler (Blackwell, 2012).

However, it is well known that after the American revolution the ‘Founding Fathers’ did not want a supreme ruler again to whom they would swear allegiance to, instead the supremacy of the state was provided to the U.S constitution, to whom all U.S citizens would swear allegiance to (Madison, 2020). This can be analysed as American citizen’s accepting that supreme authority lies with what the constitution dictates, meaning that all parts of the constitution must be obeyed because they consented to its authority.

This is further supported by theorist Thomas Hobbes, who believed that in a state of nature, which America arguably was during the revolution, citizens will obey whoever can keep the peace to leave anarchism (Wolff, 2006), so it can be concluded that the reason they consented to the constitution is because it ensured democracy and prevented the overthrow of the new republic. It is fair to argue that a democracy can only be prevalent where there is order, in a state of nature, where survival is the only priority, realists claim that that humans are selfish and self-serving (Weiss and Wilkinson, 2013). It can be presumed then, that only a nation of laws codified by a constitution could support democracy.

Democracy is at the heart of the United States constitution. A key way the U.S constitution maintains democracy is through its declaration of 3 co-equal branches of government; the executive, the legislature, and the judiciary (Madison, 2020). This allows the distribution of powers, so one could not act unilaterally. By allowing legislation to be scrutinised by all 3 branches of government it can be assumed this would reduce the chances of a tyranny of the majority (Brown, McLean and McMillan, 2018) because any branch of government can veto the legislation if they believe it to be unconstitutional, like removing the democratic rights of the minority or cancelling the democratic process of voting to their political advantage. It can be justified that restricting the tyranny of the majority would promote more equality and stop the republic from falling back into anarchy.

Moreover, it is broadly accepted that the most fundamental part of democracy is the right to vote. The Greek philosopher Aristotle also indicated his support for public opinion having a role in politics (Minar, 1960). As a fundamental principle in the U.S constitution, it makes the document the backbone for maintaining democracy. It explicitly indicates “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, colour, or previous condition of servitude” (Johnson, 2020, Amendment 15). This monumental constitutional amendment ensured that the constitution would guarantee all men, especially African Americans, have the right to influence the political sphere through voting. This is relevant as the impacts of the amendment ended decades of civil rights violence and the fear of another civil war (Tatel, 2015). The constitutional guarantee of the right to vote forced states to reverse voter suppression laws which further enhanced the democratic process. This shows the constitution is essential, as without the amendment, democracy would still be suppressed.

Furthermore, the first amendment of the U.S. constitution further supports the claim that constitutions are essential for maintaining order and democracy. But they also can appease liberal theorists like John Locke. The first amendment protects the freedom of religion, speech, and petitioning at court (Madison, 2020). Liberal theorist John Locke would support the fact that the state was prohibited by the constitution to suspend the Habeas Corpus (Kim, 2017) because it meant that there could not be unjustified incarceration against your will. It can be interpreted that the constitutional protection for freedom of speech would allow for healthy debate whether controversial or not. Only from debating issues like the critique of the state and governance could people learn new perspectives and implement new improvements to maintain a more sustainable democratic union.

In addition to that, the most controversial example of how the constitution can maintain democracy is through the second amendment which provides the “right to bear arms” (Madison, 2020, Amendment 2). The constitutional guarantee by the ‘Founding Fathers’ to own weapons means that every citizen is entitled to a gun. It can be understood the rationale behind this concept was for the citizens to protect their republic and its democratic values against any future adversary who sought to return them to unilateral rule. The impact of this declaration by the constitution allows for the protection of the constitution.

When reviewing the importance of a constitution to preserve democracy, it must also be acknowledged that not all constitutions are the same. In comparison to the U.S. Constitution which is a codified document there are other variant’s; the United Kingdom does not have an explicit constitution but rather an uncodified constitution consisting of acts of Parliament, precedent, court statures, and conventions like the Magna Carta (Political and Constitutional Reform Committee, 2015).

With that in mind, using the process of the United Kingdom’s exit from the European Union as an example, the several failed attempts for the divorce can provide a robust example of constitutional successes for democracy against unilateralism. In 2017, Prime Minister May attempted to subvert the U.K. Parliaments scrutiny and initiate the ‘Article 50 Withdrawal Agreement’ by executive authority; which resulted in litigation with the government at the U.K. Supreme Court (Casciani, 2017). The landmark ruling recognised the democratically elected parliament’s sovereignty and declared that Article 50 must be passed through the Parliament (The U.K. Supreme Court Justices, 2017). By assessing these details, it can be concluded that the Supreme Court holding the United Kingdom Government accountable, guaranteed by constitutional precedent, further reinforced democracy by recognising the ‘checks and balance’ system between the executive, the Parliament, and the courts.

However, when assessing the claim that a constitution is essential for maintaining democracy there must be reference to the instances when a constitution does not protect against or encourages undemocratic practices. It is essential to understand both sides on the effectiveness of a constitution, not just in the west but across the world if we are to draw any conclusions on it.

In the United States, the second amendment of the constitution gives the citizens “the right to bear arms” (Madison, 2020, Amendment 2). It can be interpreted that this is to maintain democracy by allowing the citizens to fight against anyone who threatens their democratic rights in the republic. But the reader must also consider the possibility that separatists could exploit their constitutional right and arm themselves against the state with an attempt to overthrow a democratically elected president. Assessing the impacts of this amendment, it can be argued that the constitution justified armed warfare by the Confederacy, which started the American Civil War. The constitution was liberal and vague on the slave trade, so when the U.S government wanted to abolish slavery, the southern states revolted, claimed the government was acting unconstitutionally, and armed against the United States (Smith, 2016). Looking at this information, the constitution can be argued as problematic for a democracy by guaranteeing separatist guns which could overthrow an elected president.

The Electoral College in the United States is another example of why constitutions are not essential for maintaining democracy. Article 2 of the U.S. Constitution lays out the election process of the president by the Electoral College (Madison, 2020). Analysing this process, critics will argue that it is undemocratic to allow a president to be elected to office if he can lose the total popular vote of the United States but win the Electoral College and become president. Critics believe that if the majority of voters don’t vote for a president but still wins the Electoral College it proves that the constitution is not essential for maintaining democracy as it endorses an undemocratic process.

Dissenters of the constitution can also point to voter suppression by gerrymandering as an example of the constitution not maintaining democracy by not restricting voter suppression.

In the photo above, the blue shape represents 1 constituency for a U.S congressmanwoman. The constituencies’ distorted shape is due to it the zone being drawn for political advantage, for one party. By drawing zones like this it allows political control over the demographics in each constituency. The photo above is drawn to favour the Republicans, as by drawing around the metro area, they avoid a large African American population who have historically voted overwhelmingly for the Democratic Party, so it gives the Republicans an unfair advantage at winning the constituency; gerrymandering has been referred as ‘rigged electoral maps’ (Wines, 2019). By reviewing this information, it creates a stronger case the U.S constitution does not maintain democracy as it does not restrict voter suppression tactics which are regarded as an afront to democracy. This creates questions on how essential is a constitution for preserving democracy in this era if fundamental democratic rights are suppressed.

Finally, a strong example is to look in the context of Pakistan. Pakistan’s codified constitution separates powers from the head of state (president) and the governmentcourts whilst ratifying a democratic process for elections. But during the ‘2007 State of Emergency,’ the president suspended the constitution, replaced Supreme Court judges, became commander of the army, and was accused of interfering in an upcoming election (Rodhe, 2007). This raises questions on the actual power of a constitution. Is it essential for maintaining democracy if it can just be suspended? The constitution did not stop the undemocratic and unconstitutional actions of the president. Theorists would argue that we must acknowledge that a constitution is only a document and relies on its citizens to protect it. Key theorist Thomas Hobbes acknowledges humans are selfish and put self-interest first (Hobbes, 1969), this is seen by President Musharraf suspending the constitution to hold power, so its reasonable to question if a constitution is essential for maintaining democracy if it relies on citizens, who are viewed as self-interested, to protect it.

In conclusion, when analysing all the facts the essay details how essential the constitution is for maintaining democracy. By weighing both the strengths and weaknesses of the constitutions’ influence over maintaining democracy, it is clear that the argument identifies it is more essential to have a constitution for maintaining democracy. However, the essay also identifies that national stability plays a role in the strength of a constitutions ability to protect democracy, the examples of Pakistan and the United States during their internal crises, civil rights debate and civil wars showed that the constitutions ability to preserve democracy is not effective when there is poor law and order.

Introduction

Laws may be described as a set of rules set up that direct humans or citizens residing in a state or a community. These Laws are set up to reduce the possibilities of friction and chaos in a State and in the event the same occurs, these laws still play a huge role in dealing with them.

However, we should refer our minds to a popular maxim which goes thus; ‘Laws are made for me and not man for laws’. This is to say, that in as much as these laws are set up to direct man, man should not be a slave to the laws, rather, the laws should meet the needs of man. Thus, the element of change should be constant in law as the man will always evolve.

In this essay, we will discuss briefly, the sources of law, the relationship between the sources of law, law, and society, the process of changes in sources of law, and a few examples of the same.

The Sources of Law

The sources of law can be divided into; primary sources and the secondary source.

The primary sources of law are considered to be those authoritative sources that are produced by the legal process itself or by the State institutions and they include; Statutes of the Legislature, Codes, and Judicial Precedents. [footnoteRef:1] [1: Alisdair Gilespie and Siobhan Weare, The English legal system (6th Edn, Oxford University Press 2017) 21]

Secondary sources on the other hand are produced by academias who try to make comments and give their own opinions or make analysis on the already existing primary law. They include; Legal Encyclopaedias, Parliamentary, and Non-Parliamentary Documents, Law Journals, Textbooks[footnoteRef:2] [2: ’Sources of UK Law ‘ (August 2012) https://www.soas.ac.uk/library/subjects/law/research/file70249.pdf> accessed 24th September 2019]

The Law and the Society

As earlier mentioned, the relationship between the law and security cannot be over-emphasized. The creation of laws can be traced back to the creation of mankind where God took man and put him into the garden of Eden to cultivate it and keep it. He further commanded the man to eat all that is in the Garden of Eden but not eat from the Tree of Knowledge and evil.[footnoteRef:3]This is to say that the laws set up are based on the way of life of persons in the society and that’s why it’s hard to separate law from society. [3: Samson Esudu, ‘The Relationship Between Law And Society Today’ (Grin AVerlag 2017) accessed 24th September 2019]

Legal pluralism in South Africa is NOT a necessity for our time

The 1996 Constitution gave legal power to both the State and customary law, making South Africa a legal pluralist state.[footnoteRef:1] Customary law is derived from social practices that the community accepts as obligatory.[footnoteRef:2] While many South Africans live according to customary law, the law regulating the lives of people will vary across communities, ethnicities, religions, cultures, and provinces. The precise number of people who live according to customary law is difficult to estimate as people have a choice of the legal system to regulate different life transitions, such as in terms of land, marriage, and death. At the very least, there are more than 16 million Black South Africans who live in the former homelands under the traditional authority and will have some parts of their personal lives regulated by customary law. [1: (Bennett, 2004)] [2: (Bennett, 2004)]

Drawing a fine line between non-state law and similar non-legal social phenomena has been a continuing problem for legal pluralists.[footnoteRef:3] A German jurist named, Franz Von Benda-Beckmann goes so far as to argue that the attempt to arrive at a definition of law for anthropological purposes resembles a battlefield.[footnoteRef:4] Moreover, not only has no consensus emerged on what differentiates a “legal” system from a “non-legal” form of normative ordering, there is a division of opinion as to whether attempting to formulate such a definition is possible or even useful. Under a positivist approach to law, the question “What is law?” is answered in terms that take some centralized state organizations for granted and consider the presence of rules, courts, or sanctions as essential.[footnoteRef:5] Legal pluralists claim that non-state legal structures exist, raising the problem of how to distinguish law from other forms of social ordering. The question then becomes whether all forms of social control are the law or whether some other criteria can distinguish the legal from the non-legal. [3: (Allott & Woodman, 1985)] [4: (von Benda-Beckmann, 1986)] [5: (Roberts, 2013)]

The main issue surrounding legal pluralism is whether there is a fundamental difference between state law and non-state law. The relationship of legal pluralism to the State and state law has been highly uncertain. It is commented that this problem arises from the fact that legal pluralism makes sense only if it is assumed that one form of law is not objectively superior to all others in every respect.[footnoteRef:6] It is also observed, however, that we cannot assume all forms of law to be equally valuable either.[footnoteRef:7] [6: (Sack & Minchin, 1985)] [7: (Sack & Minchin, 1985)]

Land tenure is one of the most controversial topics in customary law together with research on women’s access to land within customary law. However, recent studies have reported changes in the land rights of single women living in communal areas in South Africa[footnoteRef:8]. This is relevant to children, as children are disproportionately cared for by women in rural homesteads located in their former homelands. A recent survey of women in KwaZulu-Natal, Eastern Cape, and the North West indicated that women had greater access to land than in the past[footnoteRef:9] and that unmarried and widowed women’s access to land had increased noticeably post-apartheid. With the decline of marriage, it was reported that it has become easier for women with children to be given a site. It was even stated that “a woman having children was the motive behind her family wanting her to get her own site because they consider her to be troublesome.”[footnoteRef:10] [8: (Classens & Smythe, 2011)] [9: (Budlender, Mgweba, Motsepe, & Williams, 2011)] [10: (Classens & Smythe, 2011)]

These changes have taken place in the context of severe poverty, unemployment, and increasing reliance on social grants in the former homelands. The changes were not shaped by legal reform but rather by local negotiations between women and land authorities where, it is argued, “the symbolic victory of equality and democracy during the 1994 transition changed the balance of power.”[footnoteRef:11] However, the locally negotiated practices and processes of change that have been achieved through customary law concerning residential sites are in danger of being jeopardized by a range of new laws that Parliament has enacted since 2003. This legislation includes the Traditional Leadership and Governance Framework Act of 2003, the Communal Land Rights Act of 2004, and the Traditional Courts Bill of 2012. In particular, the Traditional Courts Bill has raised concern as it may centralize power in traditional leaders and undermine the multi-vocal processes of negotiation underway in communities.[footnoteRef:12] [11: (Classens & Smythe, 2011)] [12: (Classens & Smythe, 2011)]

Legal pluralism has therefore been shown to be potentially very helpful in addressing cognitive-type questions about how plural legal systems operate in practice in any given jurisdiction. It does not, however, currently have a great deal to offer in relation to answering normative questions about how plural legal systems could best relate to each other.[footnoteRef:13] This type of inquiry involves asking such questions as ‘How can we try to ensure that the different legal orders that exist in any particular jurisdiction operate in a way that maximizes their ability to cross-fertilize, support and enrich each other, rather than to undermine and conflict with each other?’ The fact that legal pluralism does not currently greatly assist in addressing such questions, is possibly one reason why to date it has been largely overlooked by larger development agencies such as the World Bank and the United Kingdom’s Department for International Development, which has recently started to become involved in the development and reform of non-state systems. [13: (Berman, 2007)]

Another area of customary law that conflicts with the given ‘state’ law is that surrounding children and families in terms of the customary law of succession, which outlines how an estate is administered and divided after the death of an individual. The recent reform of customary law by the Constitutional Court and legislature abolished the male primogeniture rule. It also removed all forms of discrimination against female or extra-marital children’s right to inherit from their parent’s estate.[footnoteRef:14] This is a critical development in strengthening the rights of children to inherit directly upon the death of a parent. However, this does not mean that such changes are practised on the ground and it is impossible to specify the living customary law on this matter across the country. Nonetheless, we can draw on a few examples to highlight, where the oldest male child has the right to succeed in the estate of an ancestor to the exclusion of younger siblings, both male and female, as well as other relatives. Some of the issues. A recent study found norms of equality within living customary law regulating matters of intestate succession in some parts of the country.[footnoteRef:15] There is widespread support for the right of children to inherit regardless of their age, sex, or birth status. Moreover, the study found cases in which widows (who have care of their young children) inherited in their own right. It has become increasingly common for parents to direct that a daughter should take over responsibility for the family home on their death.[footnoteRef:16] However, there is still evidence to suggest that succession practices sometimes deny a right of inheritance to legitimate heirs, most specifically widows, daughters, younger sons, and extra-marital children. In particular, the concept of family property is used to exclude women as in what was said previously. [14: (Bhe and Others v Khayelitsha Magistrate and Others, 2004)] [15: (Himonga & Moore, 2015)] [16: (Moore, 2015)]

The relationship between the State and other legal systems is at the heart of the debates about legal pluralism.[footnoteRef:17] This is because law-making and enforcing are two of the core functions of a State, arising from what certain political theorists term the “social contract” between members of society and the State. [footnoteRef:18] [17: (Santos, 2002)] [18: (Santos, 2002)]

As seen in South Africa and in other traditional societies themselves, there has been a strengthening of legal positivism, rather than a move towards a legal pluralist paradigm. This is seen to be due to new governing elites seeking out rapid development, international financing, structural reform, and rapid assimilation to the liberal capitalist model of the State.[footnoteRef:19] Acting on legal pluralism is likely to encroach on state power, which is problematic because not all states are totalitarian, but they all contain the seeds of totalitarianism since it is part of the underlying logic of the state to try to weaken, or even do away with, any authority that rivals its own. [footnoteRef:20] [19: (Hughes, 2010)] [20: (Rouland, 1994)]

One reason why the legal system has tried to stop incorporating customary law in South Africa is the belief by state institutions that a customary legal system constitutes a threat to them and to the system of legislation and case law that reinforces the authority and legitimacy of the State.[footnoteRef:21]Professors of Law, Bruce Ottley, and Jean Zorn explain that ‘By monopolizing the law and its processes, the state reifies itself. Customary law, then, is viewed by the government, whether or not correctly, as a direct attack upon the legitimacy of the state. The government and the propertied classes that the state protects believe that by taking force into their own hands and solving disputes using their own methods, clans are, in effect, communicating to the state that it is not needed and that its monopolies over basic areas of social control are not needed.'[footnoteRef:22] [21: (Ottley & Zorn, 1983)] [22: (Ottley & Zorn, 1983)]

In conclusion, problematic legal pluralism has the potential to negatively affect a legal order’s production and/or its cost functions. There are several inherent challenges when living with customary law. Given the evolving and dynamic nature of the law, ascertaining it and applying it in the courts is challenging. Furthermore, there are significant shortcomings in the ways in which the legislature recognized customary laws by simply, in some cases, adopting civil law concepts. In this way, the legislature, whilst operating within a legal pluralist society, does not recognize the true nature of living customary law.

References

1. Allott, A., & Woodman, G. (1985). People’s Law and State Law: The Bellagio papers. Cinnaminson: Foris Publications.
2. Bennett. (2004). Customary Law in South Africa. Cape Town: Juta and Co.
3. Berman, P. (2007). Global Legal Pluralism. Southern California Law Review, 1166.
4. Bhe and Others v Khayelitsha Magistrate and Others, 49/03 (CCT October 15, 2004).
5. Budlender, D., Mgweba, S., Motsepe, K., & Williams, L. (2011). Women, Land, and Customary Law. Johannesburg: Community Agency for Social Enquiry.
6. Classens, A., & Smythe, D. (2011). Marriage, Land, and Custom: Essays on Law and Social Change in South Africa. Cape Town: Juta & Co.
7. Himonga, C., & Moore, E. (2015). Reform of Customary Marriage, Divorce, and Succession in South Africa: Living Customary Law and Social Realities. Cape Town: Juta and Co.
8. Hughes, R. (2010). Legal Pluralism and the Problem of Identity.
9. Moore, E. (2015). Forms of femininity at the end of a customary marriage. Gender & Society, 817-840.
10. Ottley, & Zorn. (1983). Criminal law in Papua New Guinea. The American Journal of Comparative Law, 251-300.
11. Roberts. (2013). Order and Dispute: An Introduction to Legal Anthropology. London: Quid Pro Books.
12. Rouland, N. (1994). Legal Anthropology. London: The Athlone Press London.
13. Sack, P., & Minchin, E. (1985). Legal Pluralism Proceedings of the Canberra Law.
14. Santos, B. (2002). Toward a New Legal Common Sense. New York: Cambridge University Press.
15. The Australian National University, C. (2019, August 8). Chapter 2. The Possibilities and Limitations of Legal Pluralism. Retrieved from ANU Press: http://press-files.anu.edu.au/downloads/press/p49351/html/ch02s03.html
16. von Benda-Beckmann, F. (1986). Anthropology and Comparative Law.

The continued educational growth of Americans includes the government’s expressed support of the schooling system via subsidized education schemes. In 2019, the Federal Budget allotted $59.9 billion in discretionary appropriations for the Department of Education. Outlined within the Federal Budget 2019, President Trump stated,

“Parents are the best advocates for their children, and we must expand their access to a wide range of high-quality educational choices, including strong public, charter, magnet, private, online, parochial, and homeschool options. Each child is precious and unique, and we must enable our communities to provide a range of schooling options, which will allow students to thrive and prepare for success in adulthood.’

By providing financial support to the different tiers of the education system, the federal and state governments have the ability to make schooling more accessible to low-income families and schools more capable of providing a strong education for students. However, this same concept must be analyzed differently in regard to religious-affiliated schools as the government has long operated via a high wall of separation between the church and state as a means to abide by the Free Exercise, Establishment, and Equal Protection Clauses of the U.S. Constitution.

In 2015, the Montana State Legislature enacted a Tax Credit Program that provided a dollar-for-dollar tax credit to taxpayers’ donations of up to one hundred and fifty dollars to any Student Scholarship Program within the state. A Student Scholarship Organization is a charity that uses the majority of its donated revenue to provide tuition aid to students attending any Qualified Education Provider that meets the Montana Code requirements in Section 15-30-3102(7); under this section, a qualified education provider is essentially any private school. However, under Article X, Section 6(1) of the Montana State Constitution, the state is prohibited from directly or indirectly providing financial aid to religious-affiliated schools. Therefore, the Montana State Department of Revenue determined the need to add ‘Rule 1’ to the Tax Credit Program which narrowed the definition of a Qualified Education Provider to exclude a religious-affiliated school; the addition of Rule 1 allowed for the overall program to be considered constitutional under the Montana Constitution Article X, Section 6(1) in the eyes of the legislature and the Department of Revenue. Overall, the state had effectively barred any funding from reaching religious-affiliated schools.

The petitioners of this case, known collectively as Espinoza, are mothers of children that attend religious-affiliated schools, and whose children are no longer eligible to receive scholarships for tuition aid under the Tax Credit Program. Together the petitioners sued the Department of Revenue in the District Court to challenge the constitutionality of Rule 1. Espinoza argued Rule 1 violated the Free Exercise Clause of the Montana and United States Constitution because “it indirectly penalized parents for sending their children to religiously-affiliated schools.” However, the respondent claimed that without Rule 1 the entire Tax Credit Program would be unconstitutional because it would have allowed for state funds to indirectly be given to religious-affiliated schools, as public funding is forbidden under the state constitution from being used in the funding of religious-affiliated schools. The District Court ruled in favor of Espinoza, striking Rule 1 because the Tax Credit Program was constitutional as originally enacted in 2015 as the program was not an expenditure of state funds and thus did not trigger Article X, Section 6(1).

The Department of Revenue appealed the ruling to the Montana Supreme Court; this appeal led to the ruling of the District Court being overturned. The Montana Supreme Court held that the Tax Program as a whole was in violation of Article X, Section 6(1) of the Montana Constitution and invalidated the program. The court grounded its ruling in the fact that Article X, Section 6(1) was purposefully written by legislatures to prohibit any use of state funds to aid religious-affiliated schools. The court also found that the Department of Revenue has violated its powers in the creation of Rule 1; and finally, that the inclusion of Rule 1 was unnecessary as the Tax Program as a whole was unconstitutional as it indirectly provided aid to religious-affiliated schools.

Espinoza filed a petition for a writ of certiorari to the U.S. Supreme Court, which was granted on the grounds of the Supreme Court seeking to resolve whether invalidating a religiously neutral, generally available scholarship program, which indirectly provides public funds to religious-affiliated schools, violates the Establishment Clause, Free Exercise Clause, or the Equal Protection Clause of the U.S. Constitution.

The question posed in Espinoza v. Montana Department of Revenue (18-1195) is:

1. Whether it violates the Religion Clauses or the Equal Protection Clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.

The two court doctrines at the heart of this case, the Free Exercise Clause and the Establishment Clause are truly opposites. While the Free Exercise Clause forbids the government from burdening religious practice, the Establishment Clause forbids the government from advancing or endorsing any singular religion. In addition to the religion clauses, there is also the influence of the Fourteenth Amendment’s Equal Protection clause in which all people are treated equally under the law as well as the Blaine Amendment that supports the separation between church and state.

The Free Exercise Clause of the First Amendment as written in the Constitution is, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” This clause preserves the right of all American citizens to practice or engage in any religion of their choosing. Additionally, this clause prohibits the government from infringing on an individual’s right to take part in their chosen religion. The Supreme Court has found that the only time a law can infringe on the Free Exercise of religion is when said law is legitimate, facially neutral, and advances a legitimate government purpose through an analysis under the strict scrutiny test.

The Establishment Clause is also found within the First Amendment and is derived from the following statement, “Congress shall make no law respecting an establishment of religion…” This refers to the government’s inability to make a law that would endorse one particular religion over another. Questions revolving around the Establishment Clause make recurring appearances in front of the Supreme Court; in the past, the Court has permitted religious invocations to open legislative sessions, public funds to be used for private religious school bussing and textbooks, and university funds to be used to print and publish student religious groups’ publications. In comparison, the Court has ruled against overt religious displays at courthouses, state funding supplementing teacher salaries at religious schools, and some overly religious holiday decorations on public or federal land. The Supreme Court uses the Lemon Test in order to determine if a law has violated the Establishment Clause. The test is derived from the 1971 Supreme Court case of Lemon v Kurtzman (403 US 602). A law passes the Lemon Test by abiding by the three requirements: government action must have a completely secular purpose, the effect of the law neither enhances nor inhibits religion, and the law must not foster excessive engagement between the state and religion.

Finally, the third Constitutional doctrine involved with Espinoza v. Montana Department of Revenue is the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause guarantees that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ Therefore, the Equal Protection Clause forces the state and federal government to govern impartially, to not draw distinctions amongst individuals solely because of differences that are irrelevant to achieving a legitimate government purpose. It is for this reason that this clause is used frequently for the furthering and protecting of civil rights and liberties. Due to the Equal Protection Clause involved with Espinoza v. Montana, the Blaine Amendment must be discussed as well. The Blaine Amendment is an article included in thirty-seven state constitution’s across the country, the amendment forbids any state entity from making any direct or indirect appropriation or payment to any sectarian purpose or any religious-affiliated school. Criticizers of the Blaine Amendment claim that it is discriminatory against religion. Now that the court doctrines related to Espinoza v. Montana have been analyzed, the related case precedence can be discussed.

In the District Court hearing, Espinoza referenced Trinity Lutheran Church v. Comer, 582 US _ (2017) as supporting their argument that Rule 1 was a violation of the Free Exercise Clause and that their case was distinguishable from Locke v. Davey, 540 U. S. 712 (2004). Locke v. Davey, 540 U. S. 712 (2004), referenced in the petitioner’s argument holds valid case precedence regarding issues of the First Amendment and scholarship funds. In 1999, the state of Washington established the Promise Scholarship to provide scholarships to talented students; however, this scholarship cannot be used to obtain a degree in theology as the prohibition of funding religious instruction is outlined in Washington’s Constitution. Davey forfeited his Promise Scholarship in order to major in pastoral ministries at a private Christian college; he later sued in district court claiming his right to free exercise had been violated. The Supreme Court ruled against Davey because the state had simply chosen not to fund a distinct category of instruction. The court furthered their argument by supporting the constitutionality of Washington’s amendment which explicitly prohibits state money from going to religious instruction as not violating the free exercise clause as there was no animosity towards religion and the state has a compelling interest in excluding religion from public funding.

Trinity Lutheran Church v. Comer is a more recent decision in which the Supreme Court decided whether the exclusion of churches from an otherwise neutral and secular aid program was a violation of the Free Exercise and Equal Protection Clauses. The Trinity Lutheran Church of Columbia operates a licensed preschool and daycare center, called the Learning Center, this school has an open admission policy and incorporates daily religious instruction into its programs. The Missouri Department of Natural Resources, the DNR, offers a grant program in which qualifying organizations can apply for funding to purchase recycled tires to resurface playgrounds. The Trinity Church applied for said grant and was denied under Article I, Section 7 of the Missouri Constitution which prohibits state money from indirectly or directly funding any church, section, or denomination of religion. The Supreme Court ruled in favor of Trinity, providing that the exclusion of churches from an otherwise neutral and secular aid program was in violation of the First and Fourteenth Amendments. The majority, in this case, ruled in favor of Trinity because the Court has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion; therefore, the DNR’s policy discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character. The Court found that the state’s interest in creating a “wide berth” around religious entanglement concerns was not enough of a compelling interest to burden Trinity.

Finally, a case not mentioned by either party in the suit that has valid precedence is Zelman v. Simmons-Harris 536 US 639 (2002). In the late 90’s Ohio established the Pilot Project Scholarship that provides tuition aid in the form of vouchers for students in the Cleveland City School District, the state allowed for both religious and non-religious schools to participate. The financial aid is distributed to parents and the parents then have the discretion to send their child to any school of their choosing. This resulted in 96% of the participating children within the program attending a religiously-affiliated school; additionally, 60% of the children that benefited from this program were at or below the poverty line. A group of Ohio taxpayers challenged the constitutionality of the program, claiming it violated the Establishment Clause. The Supreme Court upheld the constitutionality of the program because the state of Ohio was attempting to provide better education to children; additionally, the court found that the aid to religious-affiliated schools was only reaching those schools through the decisions of the parents. The court found that the state was not endorsing any religion nor was the state intentionally funding religious-affiliated schooling. Now that the court doctrines in question, as well as the related case precedence, have been explained, it can be applied to the case currently before the Supreme Court.

In the current case of Espinoza v. Montana Department of Revenue (18-1195), the Supreme Court should rule in favor of Montana for four main reasons. The first reason the Supreme Court should rule in favor of Montana’s case is the recent ruling in Trinity v. Comer that established the exclusion of churches from an otherwise neutral and secular aid program was a violation of the First and Fourteenth Amendments was an incorrect conclusion of the case. The ruling in Trinity v. Comer creates a broad anti-discrimination principle involving government provision of benefits to religious organizations. This new standard will allow for a more direct line of financial assistance from the state to religious organizations, resulting in excessive entanglement between the church and state. Additionally, the Free Exercise Clause allows states to make exceptions to applicable laws based on an organization’s status as religious. The second reason the Supreme Court should rule in favor of Montana is that in the ruling of Locke v. Davey, the court upheld the state’s right to not fund religious teaching as it was a part of their constitution to prohibit all funds from aiding religious-affiliated entities. Therefore, because it is Constitutional for a state constitution to include a provision forbidding the use of public funds to aid religious-affiliated entities, the Supreme Court of Montana was correct in its decision to invalidate the program as the establishment of the Tax Program was in violation of Montana’s own Constitution. States have a historical and compelling interest to exclude religious activity from public funding and maintain a high wall of separation of church and state; therefore, Montana’s constitutional provision is not a violation of the First’s Free Exercise Clause as it only prohibited the government from taking certain action. The third reason the Court should rule in favor of Montana is that this case differs from Zelman v. Harris as the Ohio Constitution does not include a provision that forbids any public funding from reaching a religious entity like Montana’s Constitution does. This precedence shows the U.S. Supreme Court’s cases dealing with the Establishment Clause have held that states should have the power to decide whether to enact school-choice programs that support religious schools. States should also have the power to decide not to enact them which includes the power to bar such programs at the state constitutional level, just like Ohio and Montana. Finally, the Supreme Court should rule in favor of Montana because the Montana Supreme Court did not violate the Equal Protection Clause of the Fourteenth Amendment. In the Montana Supreme Court’s decision to strike down the Tax Credit Program as unconstitutional, Article X, Section 6(1) was applied equally to all private schools, whether sectarian or secular, impacting both religion and nonreligion in the same way as they were all denied aid.

Even though it is the duty of the state and federal governments to provide accessible and quality schooling options; however, they must maintain a high wall of separation between the church and state in regard to financial aid to religiously affiliated schools. Currently, a student’s ability to use state funds for a private, religiously affiliated school depends on the state and wherein the student lives. Espinoza v. The Montana Department of Revenue has the capacity to bring uniformity through the Supreme Court’s ruling. It is, for this reason, it is important for the Court to rule in favor of Montana for four key reasons: the ruling in Trinity v. Comer is too broad and stands to allow for excessive entanglement between the church and state, the Supreme Court of Montana made the correct decision in striking down the Tax Credit Program as it violated the state’s own Constitution that forbids the funding of religious-affiliated schools as supported by Locke v. Davey, the ruling of Zelman v. Harris supports the argument that states have a right to choose how their funding is spent and follow their constitutions, and the denial of aid to private schools was uniform and featured no discrimination against religion.

The Americans won a war that no human would believe they would win. The first Americans were under the control of the British Empire and had to follow certain laws. America had to do further business if they wanted to come through and survive the future that was ahead of them. After the Revolution, the United States faced plentiful times, and they faced times that were at a low state. With the United States being a new-found country, they were at a standstill because they didn’t quite know what to do. The United States didn’t start out with a central government or much support to help them, but the United States did have the Articles of Confederation. These articles were not a lot of help to the people living and running the country, In return these articles slowly took out the support of the country. The United States soon faced an economic crisis, military weakness, and interstate conflict. Most of these problems left people doubting their new country and made many people ashamed of what may happen. The U.S. government struggled to levy taxes within America. By struggling to levy taxes, the war debt was starting to overrun our government. In the meanwhile, our country was not just struggling financially, they were also not cooperating with each other. In the beginning, the federal government gave the power to the states too powerful to handle, because of their freedom they made decisions that the feds could not control. The government had many issues with little control factors that they needed to settle. Each singular state had its difficulties with each other, and it started an uproar. The states were slowly starting to shut all trades through their borders and even some travel; consequently, this made enemies with some states and started a lot of bickering. The United States has small states and large states. So the men at the convention struggled against each other because some were big state folks and others were small. There were also struggles within the National vs. the State Government and the Executive Branch that these bright individuals had to solve. The Articles of Confederation were not strong enough and stable enough to control a large country, by this it caused more issues than it solved. This is why many educated men, such as Alexander Maddison, Thomas Jefferson, and James Madison, came together as one to try to fix these issues within these articles. By setting up a meeting for a convention in Philadelphia, Pennsylvania, 55 brilliant men came together to fix many issues. With the calling of this convention, The men didn’t think that they were here to strip the Articles of Confederation all the way down and build from the ground up and restart. Abolishing the Articles of Confederation Has been and still is the best idea that the American government could have done. By making these decisions, It then created one of the most powerful countries in the world. Step by step, these 55 men came closer and closer to fixing all the issues in the Articles of Confederation.

These 55 men started making excellent plans that would help the country survive and not fail, as well as the majority of each of them and their states. Each of the men wanted their single state to thrive, so the men had to work together to find one plan each person believed would work. This did not work the best because most of the individual men were only focused on their state and did not see the big picture. At the end of the struggle, they ended up being able to compromise. Legislative representation was a serious issue in this process. Discussions over how each state’s population would influence their representation got really intense when discussed among these men. William Paterson is an important man in his time because he introduced the New Jersey plan. This was a plan to make the smaller states the same rights as the bigger states, who thought they needed more rights. The New Jersey Plan said that smaller states, such as Delaware, have as much power as New York. Arguing the New Jersey Plan, struck up the topic of the Virginia Plan. The Virginia Plan was proposed by James Madison. This certain discussion took on for days and had many discussions over it. The reason it took so long is that they could not fit each person’s needs.´´The committee on postponed matters boasted a stellar array of delegates. Madison, Morris, Sherman, and Dickinson were there, representing large states and small extreme and more moderate nationalism, populist and elitist views.´´(136) This took so long because the big and powerful people were on the big states’ side, and it took some time to get everyone on the same page. Oliver Ellsworth came up with a trade-off council, this put one person from each state on here, and they came to each other and conversed with each other. On July 5th, this group of men would introduce The Connecticut Compromise. The trade-off which was only won by one vote, expressed that this would consist of a lower house, and a higher house, the Senate, where each state had equal representation because this bicameral legislature made its governing rules inside Congress better. The Connecticut Compromise just only won five states and part of Massachusetts, but it was a good thing to be. Even with the terrible characteristics of this ruling, it was required to have. This gave a voice to little states and the bigger states. This put the tension between these states to a halt. This was vital to the recreation of the Constitution and conquering legislative representation troubles among the states. The union started looking more and more grounded and progressively started joining together. Although there were still many issues that needed to be solved before they were done working.

Developing the executive branch was one of the harder tests that were given to these 55 men to try to solve. These men needed to make a bill that would be eligible to the states yet be secure enough to ensure against corruption and deposition. Discussions took place to make a plan that would show the president’s capacity, however, yet appointed their duties. Before the Constitution, the executive branch was not included in the Articles of Confederation. The 55 delegates wanted the best. The best way to make an effective official branch was by constraining the branch’s capacity and power. The delegates struggled to tackle this task and make it powerful, so it could not be overruled. The more in-depth discussions got, These people thought that if this were to happen, there would not be much power outside only three people that would run the executive branch. The representatives expected to make a strategy for the political race for the branch.

After several days of debate, the states gradually started to get friendly with the document. Few states, that were closely similar to Delaware, consistently decided in favor of the Constitution. Although others just passed it by a thin greater part. With an 11-2 vote, the Constitution was passed with great colors. Just “Rogue’s Island’ and North Carolina voted against the Constitution. These men overcame enormous obstacles: deciding the ways of the legislative branch, building up the executive branch, and battling for the confirmation of the Constitution. Each of these 55 men traded their own wisdom and knowledge to create an even stronger constitution, as there once was. Both little and big states had to give up little portions of power to create a big central government to withstand strong and not crash. Our Founding Fathers were able to save the struggling American government and nation by building the Constitution, filled with compromise and difficult work. These brave and intelligent men created a brilliant solution.

The argument over abandoning the Articles of Confederation and adopting the Constitution contributes to the shaping of the first party system, the Federalists and Republicans. Republicans became the first anti-federalist; they favored the retaining of the Articles of Confederation. As for the Federalists, they were in favor of the Constitution. The Federalists believed in a strong central government, as well as the Republicans. The Republicans wanted a strong central government with the Articles of Confederation being protected. Eventually, Republicans split because there were many arguments and flaws in the Republican party at the time. Which caused Jefferson to incorporate some Federalist ideas during his presidency. Which then caused the former Republican party name to be known as the Democrats.

The Federalist Party positions believe in a “strong central government with a loose construction of the Constitution as well as incorporate a national bank” (Stephen A. Reed 2010, 42). In order to give power to the central government, which would favor the national bank, high tariffs, and internal improvements paid by the federal government. People who joined the Federalists were wealthy businessmen. The Republican party believed in a “small central government with states’ rights and a strict construction of the constitution and no national bank” (Stephen A. Reed 2010, 42). To limit the power of a central government. They also favored local and private banks, low tariffs, and internal improvements by the state. As for the Republican party, it was lower-class people such as farmers, mechanics, and immigrants.

In the first party system, the Republicans were a more conservative party. They favored a small central government compared to a federal government as well as wanting a stronger version of the Constitution. Federalists were more liberal and wanted the power to be in the federal government. For example, the Federalists wanted internal improvements to be paid for by the federal government and the anti-federalist (the Republicans) were in favor of internal improvements made by the state.

‘If men were angels, no government would be necessary,’ stated James Madison, which briefly explains the value of a state’s constitution. Reflecting back to the state of nature, men enter into social contracts and form governments to protect their natural rights, which serves as the primary purpose of governments. In this sense, citizens give their consent by accepting the government’s laws and services, and the essence of the Constitution serves as the foundation for these laws. The Constitution is more than just a document that lays out the do’s and don’ts of a given state; aside from the fact that it is the document where laws and statutes were outlined; it also has other functions, such as empowering and authorizing regulations for public institutions and defining the limitations on how representatives can obtain power. The constitution, according to Hedling (2017), is a collection of fundamental precepts that specifies the overall organization and administration of the state and contains essential concepts and standards that support and guide all government action. Hedling further said that because the constitution is the foundation of the state’s actions and decisions, it should be anticipated to last a long time and govern indefinitely. Accordingly, the definition by Malcolm and Laurel, Philippine Constitutional Law states that the constitution is a written instrument by which the government’s essential powers are founded, limited, and defined, and by which those powers are dispersed among the several departments for safe and useful implementation for the benefit of the people. With that, according to Calilung and Bunquin (2014), the Philippine constitution is a living proof of the people’s sovereignty, a by-product of the fight against tyranny and dictatorship, and, most importantly, an embodiment of the Filipino people’s reignited faith and confidence in democratic values, as well as the sanctity and significance of democratic institutions, which are truly a spectrum of empowerment.

The most significant aspects of a government are protected by the Constitution. For example, in the Philippines, the constitution establishes fundamental civil and political rights for citizens, including the right to due process of law, the right against unwarranted arrest, the freedom of speech, the equal protection clause, and many others, while also limiting the government’s powers to ensure that these rights are exercised (Nachura, 2014). Furthermore, the constitution lays out the framework for how the government should operate; for example, in a democratic setting, the government must have three branches: executive, legislative, and judiciary. In consonance with those provisions, the political autonomy of local government units that serve as municipal governments for provinces, cities, municipalities, and barangays was as well limited (Calilung and Bunquin, 2014). Furthermore, the constitution has provisions that allow citizens of the country to change or revise the contents of the constitution if it no longer meets the needs of the people or is no longer applicable to the status quo.

Knowing the constitution’s purpose and goals for the general welfare of the people and the state enabled us to appreciate its significance as a whole, for which the constitution, as the fundamental law, ensures that the people are fairly represented—that the government’s decisions and laws are implemented in the people’s best interests. The constitution establishes actions to hold public officials accountable for any committed abuses or grievances through the limitations and rules imposed on them. The constitution essentially protects the people; for example, in a democratic setup, citizens are provided with protected and guaranteed individual rights and freedoms while ensuring each individual’s life, human dignity, and liberty. Constitution is a cooperative effort between the government and the people that harmonizes all of the various political viewpoints in order to maintain a stable society. When disagreements arise, all decisions would lay back based on the constitution’s framework. Furthermore, as the foundation, the constitution establishes the basic information that presents the state’s identity, whether it is a democratic or authoritarian state. For example, the 1987 constitution establishes the Philippines as a ‘democratic and republican state’ in which ‘sovereignty resides in the people and all government authority emanates from them”. In addition, the constitution specifies who is eligible to vote and who is deemed a citizen of the state.

The purpose of the constitution, as stated above would conclude the reasons why it is important for a state to have a constitution, going back to James Madison’s statement in the first sentences of this paper: ‘If men were angels, no government would be necessary.’ This explains that men are innately irrational, and there is no guarantee that people will conform and respect the rights of others —that indeed we need a government that would execute the constitution where the basic and fundamental rights of each citizen were outlined to be protected.

The constitution is the basis of every political system, and without it, the state cannot function properly. The Oxford English Dictionary defines a constitution as a body of fundamental principles or established precedents according to which a state or organization is governed. There are different types of constitutions, however, in this essay, I will focus on the unwritten constitution. The is one of few democracies in the world which does not have a written constitution. This can be seen as problematic. Many people argue that should have a written constitution to establish strong bedrock of how our system should work. In the debate over whether requires a written constitution, my opinion aligns with King who is supportive of a written constitution. The goal of this essay is to explore arguments for and against the written constitution.

The function of the Constitution is to allocate state power among three different institutions of government: the legislative branch, executive branch, and judicial branch. This is an important function because if the power is not separated autocracy can occur where a person has an absolute power and this therefore leads to corruption. John Locke prominently asserted this idea. He believed that it is ‘too great a temptation’ of human nature to desire more for their ‘own private advantage’. It seems to me that Locke’s argument is valid since abuse of power happens in the system. A great example is Boris Johnson having both legislative and executive powers which he abused. On September 2019, Johnson decided to suspend Parliament for a period of five weeks which was considered an ‘unlawful and illegal’ act. His actions were disastrous and a threat to Parliamentary sovereignty. Lady Hale commented that such actions prevented Parliament from ‘carrying out its function’. This is a clear demonstration of the danger and requirement for a written constitution because an unwritten constitution does not obviously define powers. A written constitution would show clear rights and limitations of each of the three institutions of government which would be really beneficial.

Dicey was against the written constitution. He formed his belief on the third principle of the Rule of Law which states that fundamental rights are defined and protected by the common law. Dicey referred to an unwritten constitution as a ‘judge-made’ constitution where the principles of the constitution are based on judicial decisions. This suggests that our rights might come from judgments of the court and not necessarily from the written constitution. I agree to some extent with Dicey’s reasoning as case law (judicial precedent) is helpful in delivering fair judgment. Judicial precedent just like the unwritten constitution is flexible and adapts to societal changes and challenges. In addition to this, judicial precedent operates under the principle of stare decesis which means ‘to stand by decision’. This is important as it shows that the court applies the law that was set out in decisions from old cases. Some even from the sixteenth century. Also, not always judges’ decisions were applied rightfully. A new, written constitution would be much better because it can provide guidance in problems of contemporary society. Making one single document with principles would be clearer and more accessible for people as well. This can be linked to Jeremy Bentham’s book Constitutional Code (1830) where he used utilitarianism to express that a written constitution would bring ‘the greatest happiness of the greatest number’. My thoughts are parallel with Bentham’s. I am sure that a written constitution would be valuable for all of us and it would be peoples’ national identity which would be unique of its kind and express issues of our society which might not be similar to other societies of other parts of the world.

Another argument for a written constitution comes from Vernon Bordanor. In his pamphlet ‘Brexit and our unprotected constitution’, Bordanor admits that the crisis surrounding Brexit has strengthened the case for a written constitution. He claims that a written constitution will provide the judicial protection of human rights. It would be argued that he is wrong. The European Convention on Human Rights (ECHR) is separate from the EU. The Human Rights Act 1988, a ‘constitutional statute’, has made rights from ECHR enforceable in court. Additionally, section 2 of the European Communities Act 1972 allows EU legislation to have a direct effect. This shows that a written constitution would not make any impact on human rights. Therefore, a written constitution is unnecessary.

The last argument that I will present comes from King who is in favor of a written constitution. He advocates a one-every-generation constitution where one-third of citizens and two-thirds of politicians are chosen in order to write the constitution. He calls this constitutional assembly. King believed that the Constitution must represent the people. From a Marxist perspective, Parliament and the government are bourgeoisie and do not represent the needs of the rest of society- the proletariat (working-class people). This is the reason why I agree with King’s point that Constitution should represent everyone. It is important to include people from different social backgrounds to make a valid and representative constitution. However, King’s proposition creates two major problems. Firstly, writing a constitution once every generation is too often and preparation would involve a large amount of time and effort. Secondly, most citizens do not know how to draft a constitution as they do not possess the necessary skills. Nonetheless, the written constitution which reflects people is vital.

Overall, I do believe should have a written constitution. The written form of the constitution will not allow for too arbitrary interpretation of the provisions as it can be done in the case when it exists in the unwritten form. Hence, we should not retain the status quo.

The has an uncodified system which is a constitution that is made up of rules that are found in a variety of sources in the absence of a single legal document. A codified constitution is a constitution in which key constitutional provisions are collected within a single legal document. It is often propagated that the implementation of a codified constitution would lead to accountability and clarity. However, the current system we have in Britain already does this, it has been a success for years and produces a good government in relation to democracy and transparency. In this essay, I will evaluate the view that should retain its uncodified constitution as it is a useful and historical system that has proven repeatedly to work.

There are many issues with following a codified constitution, in particular judicial tyranny. The’s time of unbroken democratic rule is often seen as a strength of the uncodified constitutional system. In ‘s uncodified constitution, parliamentary sovereignty is vested in the elected House of Commons. As a result, we see changes to the constitution consequently as a democratic pressure. The powers of the House of Lords were reduced through both the Parliament Acts of 1911 and 1949 because of a growing belief that an unelected second chamber should not be able to stop the impact of an elected government. Through a codified constitution judges would be the people ruling over the constitution. Judges are unelected and socially unrepresentative which would lead to a democratic deficit due to a lack of democratic legitimacy. A codified constitution would be interpreted in a way that is hard to be held publicly accountable. It may also be interpreted due to the subjective views of the judges. A counterpoint to judicial tyranny is that retaining the codified constitution allows a neutral interpretation in that it would be ”policed” by senior judges and that this would be ensured that the provisions of the constitution. are held up and Judges are ‘above’ politics, so they are unbiased and neutral. This counterpoint is poor for several reasons.

Firstly, and as aforementioned, Judges are unelected figures, and they are not representative of the population which would lead to a democratic deficit due to a lack of legitimacy. Not all judges are unbiased after all, they are selected by the executive or the person in power so of course they would elect someone who would rule in their favor. The counterpoint also fails to consider that the ‘neutral’ position some judges might take can reflect the preferences and values of senior judges. Overall, the counterpoint to the concern of judicial tyranny is a weak one and just proves that implementing the codified constitution is useless, and instead of solving issues, it only creates them.

The second issue with implementing a codified constitution is that by doing so, it would effectively abolish parliamentary sovereignty as we know it. The principle of parliamentary sovereignty states that parliament can change and amend any law it desires. With a codified constitution parliament would not be able to change to any law it wishes due to the existence of the constitution, and potentially a bill of rights. This will cause the codified constitution to become the law. Therefore, a codified constitution would undermine the key principle’s representative democracy. Under this codified constitution becomes higher law, again it causes more problems in that it is far more rigid than statute law and that it is near impossible to change and edit. The beauty of the democratic system is that when the public changes its opinions on issues, the parliament can debate it and pass it immediately unlike the US constitution which is an example of a codified constitution’s rigidity that since 1787, it has only 27 edits made ever.

The counterpoint to this would be that with implementing the codified constitution, the key rules are collected in one single document, they are clearly defined than in an unconstitutional constitution. This creates less confusion about the constitutional rule. This is a valid counterpoint however this will cause issues for Parliament later as their powers are decreased and at best this leads to confusion during a crisis as to what Parliament, the executive, and the judiciary can do; at worst it leads to power politics between the branches as each seeks to maximize their share of political power in this new political system would find itself in. It is imperative to keep the system of parliamentary sovereignty because if it is abandoned for retaining the codified constitution, it would throw the political system into uncharted and complicated territory. Overall, the counterpoint is not particularly good, and it is proved that by retaining a codified constitution, we risk our entire democracy for a set of rigid rules.

A less important but still valid argument against a codified constitution is that it is unnecessary in the sense that the uncodified constitution system we have now is organic and that Government power can still be checked by strengthening the system we already have. Government power is checked and reviewed on a regular basis by an independent judiciary as seen in the Gina Miller Brexit case. Under the system we have today, we can still fix and amend the issues without having to overthrow a history of democracy.

To conclude, should implement a codified constitution. From issues with judicial tyranny and the future of a further broken justice system paired with the possibility of the system of parliamentary sovereignty being thrown out to lastly a confusing set of rules that will inevitably cause a series of political disasters and a valid system being taken away for a difficult and arduous constitution. Thus, it is my opinion that should stick to its unmodified constitution as it is a case of ‘if it ain’t broke, don’t fix it.’

The constitution is one of an uncodified nature. This means rules are not held in a single written document. Whereas a written constitution (also known as a codified constitution) is the idea that all the constitutions should be written down in one document. The does not need a written constitution because the strength of the current codified constitution outweighs the weakness. For example, strengths such as the sovereignty of parliament and flexibility of the uncodified constitution can allow the constitution to adapt to the changing society, whereas a written constitution may limit this and may not be progressive according to society. In addition, a codified constitution may disturb the balance of power, which may impact and restrict democracy since judges are unelected.

The current system’s flexibility is one of the reasons why does not require a written constitution. A written constitution will make flexibility impossible and therefore it questions the necessity of the written constitution. The current constitution employs an ad hoc progressive technique in which advancements are incremental and contingent on their necessity over time, exposing us to the possibility of evolving toward legal codification rather than political constitutionalism. The constitution has significantly accelerated codification, particularly in the areas of rights and power balancing. The flexibility of the system means laws and regulations can be added according to the situation. For instance, this can be seen through many changes: the addition of Human Rights 1998, Devolution Legislation, Freedom of Information, and the Constitutional Reform Act 2005 to the legal celebration. In addition, the progressive nature of the codified constitution can be seen through the acceptance of homosexuality, abortion, race, and gender equality. The flexibility and the adaptability of adding and removing laws mean that there isn’t a need for a written constitution because under a written constitution laws will be hard to amend and may be fixed, making it harder to suit the needs and issues depending on time and society. These legislative milestones are actions introduced and defined by parliament into our unwritten constitution, codified not only in our processes but also in our culture.

Another reason, why there is no need for a written constitution is that it would change the balance of power. Under a written constitution, a change could only be done in ‘one big bang’ (Oliver, p.150), which would unavoidably strengthen the role and hence the power of the judiciary. For example, under a written constitution, judges may be given the power to make decisions based on amending and maintaining the constitution. This would be unfair to a pro-parliament party because political power can only be wielded through democratic institutions. This means that decision-making power may be given to unelected judges, whereas parliament is based on elected members, therefore making it undemocratic. However, King argues that this case against the written constitution often fetishizes the past without justification. It overemphasizes the role of courts, which is less significant than suggested (King, 2015). This makes the argument weaker because according to King, the fact that judges will get more power is not a massive issue. Nevertheless, One can disagree with King, as codifying the constitution would disrupt this delicate balance, tipping in favor of unelected judges ‘a concept that is not rationally in the best interests of a constitution that prides itself on democracy. Therefore, does not need a written constitution, because the change in the balance of power may affect democracy.

Another argument is the idea that a codified constitution upholds parliamentary sovereignty. By protecting sovereignty it can be viewed as a ‘guarantor of democracy’ as parliament’s leading component, because the House of Commons, is elected. According to Bogdanor, there is no use in having a constitution unless one is willing to risk the notion of sovereignty in parliament because codification is ‘incompatible with this premise'(Bogdanor, 2009, p.14) codification would limit its powers. This makes the argument stronger. As a result, the concept that parliament cannot be constrained or overridden by any higher body would be overturned, rendering sovereignty a dogma of the past. This means powers to interpret the constitution would go to unelected judges. This demolishes our democratic efforts and creates the prospect of unfair policy, process, and legislation. Therefore, there is no need for a written constitution. Furthermore, Bogdanor (2009), also argues that under a newly written constitution, the right of minorities may be put at risk and therefore may undermine a traditional moral consensus, on which the old informal constitution rested.

In conclusion, there is no need for a written constitution because the retention of flexibility and parliamentary sovereignty allows the constitution to adapt to the progressive society, while democracy is being protected. Under a written constitution, democracy is put at risk, when unelected judges are given more power. In addition, the right of minorities may be put at risk. Therefore, the issues of the written constitution override the need for a written constitution. The argument of retaining flexibility and parliamentary sovereignty is stronger, compared to the idea of needing a written constitution because the written constitution also has issues with balance of power, therefore doesn’t solve or create a solution. Therefore, a written constitution is not seen as a necessity. Furthermore, has relied on the unwritten form of the constitution for a long time, that a written constitution may cause unpredictable issues in an uncodified system. Although the current constitution also has problems proved by Brexit, some may argue that they are solvable with complete codification. However, they are also not to be solved by creating another heavy and life-changing revolution of codification. This could lead to unpredictable problems. Therefore, there is no need for a written constitution.

How effectively do elections ensure citizens’ views are represented?

In this essay, I will argue that elections do not effectively ensure citizens’ views are represented. This can be seen through the weakness of the current voting system, the first past the post system (FPTP). I will be referring to both the national and local elections. For Instance, MPs and government can be elected on less than 50 percent of the vote, which means that more than half the people don’t think that the elected MPs or government represent their views. In addition, there is a lack of proportionality within the system and the fact that votes are of unequal value means it is difficult to accurately represent the individual view. These outweigh the strength of FPTP and suggest that there is further improvement needed to ensure that people’s views are accurately represented.

The fact that MPs and the Prime Minister may be elected with less than 50% of the vote suggests that people’s views are not fully represented. Under the FTPT, MPs do not require an overall majority of votes cast to win but can win by receiving one more vote than the second-place contender. Although this system in a way ‘promotes clarity of responsibility for policy choices and enables voters to hold governments to account’ through one person (Gay, Schleiter and Belu, 2015: 118). However, this results in more votes being cast against the winning candidate rather than for the actual candidate. This suggests that more than half of those polled do not believe that the elected MPs represent their interests. This, therefore, suggest that an election is not effective in ensuring people’s view are accurately being represented when more than half in some cases don’t vote for them. Furthermore, when turnout data are included, support for parties and candidates is much lower. For example, in the 2015 general election, the turnout in Belfast South was 60%, but Alasdair Mcdonnell received just 14.7 percent of the vote (UK Parliament, 2015). In addition, although the 2015 election produced a single-party majority government (in contrast to that in 2010, which led to the Conservative-Liberal Democrat Coalition), it did not mark a return to business as usual (Green, Jane, and Prosser, Christopher, 2016). This can also be compared to the elections at the national level. FPTP regularly produces governments elected on a minority of the popular vote. This marks how the election system is ineffective in representing people’s views. The lowest percentage, for example, was recorded in 2005, when Tony Blair was re-elected with ‘35.2 percent’ of the vote (Kopstein, and Lichbach, 2005: 56). This makes the argument stronger as this weakens the mandate enjoyed by the winning party, especially as general elections since 2001 have been characterized by low voter turnout. For instance, younger people often have a lower voter turnout compared to other groups. Evidence shows that ‘only about 40 percent turn out to vote’ (Grasso, 2016:151). Therefore, their opinions aren’t accurately represented. This feature means that significant numbers of voters feel that the system lacks legitimacy and therefore elections are not efficient in ensuring people’s views are represented accurately.

Another reason, why elections are not effective in ensuring citizens’ views are represented is due to the lack of proportionality and the unequal value of votes under the two-party system. The FPTP method does not accurately transfer the number of voters into seats for each party. This is because the system prefers parties with a concentrated vote over those with dispersed support across a vast geographical region. For example, a party may finish second in many seats, but the FPTP system does not recognise this because only one candidate may win in each constituency. In 2015, for example,IP received over 3.9 million votes but only one seat (Leston-Bandeira and Thompson, 2018:131). Another example is when in 2015 the Scottish National Party displaced Labour as the largest party in Scotland, winning 56 out of 59 seats with 50 per cent of the vote (UK parliament, 2015). Furthermore, FPTP fails to account for the reality that the number of individuals voting for the two major parties has been falling for some time. For example, between 1945 and 1970, each parliament elected 10 MPs from minor parties on average. That number has climbed to 87 MPs by 2015. This shows how the FPTP doesn’t represent the current voting behaviour and doesn’t accurately reflect people’s views.

Dunleavy (2005) touches on this and argues that one needs to stop focussing on the two-party system but instead on how party competition works in an era where increasingly ‘dealigned voters’ have multiple preferences. Dunleavy (2005) fails to understand that although this concluding statement may suit the context of the PR system, however, it is questionable whether it suits the current FPTP voting system. In addition, the Fixed-term Parliament Act was only introduced to make the coalition government more stable. However Gay, Schleiter and Belu (2015) notes that the Act’s existence makes future coalitions more likely. This shows that election is not reliable and effective in creating a stable government, while accurately representing people’s views. In addition, Curtice (2019) notes that the 2019 election bucked the trend of 2010 and 2017 in delivering a solid single-party majority for the Conservatives, but also that the earlier tendency of the system, at least since 1945, to deliver majority power to the largest single party still has not returned. This point in a way reflects the two-party system and the way how the voting system is not accurate in representing people’s views.

In conclusion, elections are not effective in ensuring citizens’ views are represented. This is due to the weakness of the FPTP system. It doesn’t ensure that people’s individual views are accurately represented. This is because MPs and government can be elected on less than 50 per cent of the vote, which means that more than half the people don’t think that the elected MPs or government represent their views. This is a big issue and shows a major flaw in the system. In addition, there is a lack of proportionality within the system and the fact that votes are of unequal value. The fact that a smaller constituency’s votes have bigger value compared to the bigger constituency, means votes are being wasted. These outweigh the strengths of the elections system because the wastage of votes means individual votes are not represented and means minorities’ votes are put aside. Therefore, this makes the argument stronger that elections are not effective in representing citizens’ views. This suggests that there is further improvement needed to ensure that citizens’ views are accurately represented. A single transferable vote system may address those concerns and problems of FPTP and may be a better system for representing people’s views accurately.