Wednesday, 7 October 2009

Sources of the Constitution

The USA has, along with many countries, a single document defining the fundamental political principles, and establishing the structure, procedures, powers, and duties, of a government.

Of course the study of US Constitutional Law doesn't end with that single document. There is a large body of caselaw and authoritative commentary to consult - as well as other subsidiary constitutional rules (for example: the Rules of the House of Representatives).

In Britain we talk of an "unwritten constitution". In fact it is written - in many different places, but there is no single document. The main sources are

Statutes - examples include

  • Magna Carta (1215)
  • The Habeas Corpus Act (1679)
  • The Bill of Rights (1689)
  • The Act of Settlement (1701)
  • The Parliament Acts (1911 and 1941)
  • The Peerage Act (1963)
  • The European Communities Act (1972)
  • The Scotland Act (1998)
  • The Human Rights Act (1998)
  • The House of Lords Act (1999)
  • The Constitutional Reform Act (2005)

Caselaw - examples include

  • AG v Jonathan Cape Ltd - the Crossman Diaries case - unenforceability of conventions
  • BRB v Pickin - enrolled act rule
  • GCHQ - Judicial Review categories & Royal Prerogative
  • Factortame - impact of EU law on national statutes
  • Pepper v Hart - use of Hansard by Courts

Conventions - defined as "rules of constitutional behaviour which are considered to be binding by and upon those who operate the constitution but which are not enforced by the law courts" - examples include

  • The monarch always gives Royal Assent to bills passed by both Houses of Parliament
  • the Prime Minister must be a member of the House of Commons
  • the opinion of the law officers is confidential

Authoritative Works - by such writers as Sir William Blackstone, A V Dicey & Sir Ivor Jennings