Are codified constitutions better than non-codified constitutions?

[Michael_UK]

I was thinking about the US constitution and comparing it to the UK constitution. Contrary to popular belief, the UK does have a constitution, but it isn't written down in one place, so it isn't codified.

Many US conservatives are fans of what they say is "originalism", by which they mean following the original intent of the founding fathers. I can see problems here, as the document was originally written over 200 years ago, when slavery, sexism, etc were common place. The further problem I see is that so much is clouded in what a phrase actually means. Conservatives and liberals don't seem to be able to agree on what the first or second amendment actually mean. The fact that there is so much dispute, leads to this jockeying over trying to get conservative or liberal judges (more pressure is coming from the right on this one) on the bench.


The UK constitution is by its very nature, "organic" in that it can change in response to social change. The big negative would be that a dictator (or repressive government) might find it easier to limit women's rights, etc. However, it hasn't been too much the case, and the UK judges seem less political.

What do you think about the respective constitutions?

[enigma000]

1. I guess its whatever works

Very few, if any, countries other than Britain, have no set constitution. Its expected in modern nations. Its just like companies are expected to have a "corporate vision" and "mission statement" and other stuff that MBAs are taught about. The exception might be a handful of corporations created by royal proclamation centuries ago.

Britain evolved into what it is today. Almost every other country went through one of three processes: a revolution against its own government (France, Russia), Independence from a colonial power (United States, India, Canada, etc.) or temporary occupation after war(Germany, Japan, Iraq?). Constitutions sood followed.

I guess the British don't need a constitution written in one place because they they know what type of society and political structure they want. Its in the bone. By the same token, as much as the American constitution was a work of genius, what keeps the republic going is people's faith in it. A constitution is words on an old piece of paper. What counts is the willingness to believe in these words, and follow it. If you can do this, who needs a constitution.

[hansberrym]

2. No need to write anything down - trust me. (sarcasm)

The disgreements about originalism are mostly just pretended. Both sides are quite able to find what a particular clause meant when ratified when it suits their interests to find out the original meaning.

Case in point -the 2nd amendment. Some on the Left say they don't know what introductory clause means or why the word "keep" was used. However the Supreme Court in US v. Miller gives an excellent and concise history of the amendment which tells us who was to keep arms and what sort of arms they were expected to keep. More recent decisions by lower courts simply ignore the known and readily available history -so it is not a case of not knowing, it is often simply evidence barring.


Note that the Right also plays this same game. Justice Scalia sided with the majority in a recent case regarding medical marijuana.
In this case Scalia abandoned his supposed fidelity to Originalism and went with the majority who relied an expanded definition of the Commerce Clause to reach even an individual's growing marijuana for their own use. That is not commerce, not even intra-state commerce, but some how becomes commerce by a "broad reading" of the Commerce Clause which can not be supported by originalism.




Note that there are shades of Originalism.

Original Intent -seeks to know the intentions of the drafters.

Originalism as espoused, but not consistently practiced, by Scalia - seeks to know the meaning of the text as would have been reasonably understood by at the time by those who ratified, supported, or opposed the legislation.

More liberal jurists also rely on a sort of originalism butlook only to the original purposes of a particular provision, and place purpose above plain meaning of the text.

Justice Breyer just put out a short book (Active Liberty) which argues for the last approach.