Unit 6C: Comparative UK and US Politics
Professor at the Department of Politics at the University of Dundee writes for the BBC Parliament
The power of the British courts is looming larger
Imagine government as the exercise of power and authority in the public domain, ultimately backed by the threat of state coercion.
Constitutional government is the same, but with power and authority limited by law and a conception of rights that affords protection to individuals and minorities.
In the view of great English 17th century political philosopher John Locke, it is a contractual form of government in which both sides have duties and obligations.
The people are expected to abide by just laws (if they do not they are sanctioned with the help of the police through the courts), and government may not exceed the powers properly delegated to it by the people, nor may it act contrary to their interests or to undermine their rights (if it does it should be brought back into line by the judiciary or, failing that, by revolution).
These are the underlying principles of liberal, democratic constitutionalism. However, how these principles are implemented varies from state to state.
With and without a written constitution
In the USA there is a comprehensive written constitution, in Britain there is not.
In the USA the final say (other than revolution by the people) lies with the constitution and the way that it is interpreted by the Supreme Court: witness the decision by the Supreme Court about the votes cast in Florida in the Presidential election of 2000, which decided that George Bush rather than Al Gore would be president.
The ability of the Supreme Court to decide what is and what is not constitutional is called the right of judicial review.
In the recent past it has declared segregation of races unconstitutional and granted women the right to abortion during the first three months of pregnancy, on the basis that such a decision is a private matter between the woman and her doctor
The Court has temporarily ruled that capital punishment was cruel and unusual and should not be a method of punishment and then reversed itself, and decided during the Watergate scandal that President Nixon should hand over tape-recordings that he had made in the White House which later clearly showed that he was criminally involved in the cover-up and hence guilty of obstructing justice.
In Britain the final say about constitutional matters is rather more dispersed. Britain does not have a written constitution and hence it does not have a well-established system of judicial review in the way that the USA has.
However, this is changing. Parliament is traditionally seen as supreme, but the courts, especially after the incorporation of the European Convention on Human Rights into British law in October 2000, also have some power of judicial review to qualify Parliamentary supremacy.
In other words, just as in the USA political actions can be measured against the constitution to see whether they are legitimate or not, so now in Britain political actions and laws can be measured against the European Convention on Human Rights to see whether or not they are legitimate.
The highest appeal court in Britain is the House of Lords.
© Professor Alan Dobson 2004
Department of Politics
University of Dundee