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Constitution of Sacred Liturgy

Introduction

Many churches undergo changes throughout history, however, some of the most immense changes took place when the Second Vatican Council was convened and is considered one of the most important religious events which took place during the twentieth century. The second Vatican Council was the 21st Ecumenical council recognised by the Catholic Church. POPE JOHN XXIII, who claimed it was necessary to bring the Church up to date, summoned the council on the 25th January 1959. Over the next few years the council prepared, the first gathering was on 11th October 1962 and was presided over by Pope John XXIII. His opening remarks were “I want to throw open the windows of the church so that we can see out and the people can see in.”

Over a period of the next four years and approximately 178 meetings, 2540 Bishops attended the council from all around the world. Pope John’s XXIII vision for the church was – awareness, renewal and dialogue.

Throughout the Council’s history they agreed 4 main constitutions, 3 declarations and 9 decrees. The majority are aimed at the renewal and reform of Catholicism, but four affect the relationship and the non-Catholic world, they addressed all aspects of Catholic life on all levels: the global, the local and particularly at the parish level.

The Constitution on the Sacred Liturgy

One of the documents, which changed the spiritual life of the Church, was the Constitution on the Sacred Liturgy- Sacrosanctum Concilium. These changes affected every Catholic and inevitably many found these changes disturbing especially the older generation. During these times Mass was commonly said in Latin and many believed that it should be preserved. The Council agreed and expressed its first decree in the “Constitution of Sacred Liturgy”.

This issue was addressed because the Liturgy of the Western Church was said in Latin something which none of the participants understood and came to an understanding that this was only benefiting the papacy and the clergy and it created a separation between the clergy

and its believers. This constitution had hopes that the entire congregation could participate in the mass with the readings, the singing, and reception of the Eucharist. It also was used to change the liturgy when it came to administering Sacraments and administering the Eucharist to the sick. This Constitution was finalized December 4, 1963 with only four votes against it.

This stated

“The use of the Latin language is to be preserved in the Latin Rights.”[ Sacrosanctum Concilium, paragraph 36:1]

However, many parts of the Mass were singled out by the Council, who authorised the use of the vernacular or mother tongue. The council also suggested that where possible the High Alters should be placed facing the congregation to help create a connection to God and that the priest should now face the congragation. Many of the old ceremonies were discarded, such as the prayerful attitude or hardly noticing your neighbour. Now they were asked to greet their neighbour with a “Sign of Peace”

Another change within the Liturgy involved the time of the fasting before they could receive Holy Communion. Prior to the second Vatican Council, it was considered a mortal sin if you consumed either food or water, not even a few drops after midnight.

“To fast from midnight means to take nothing by way of food or drink or medicines after midnight” [Eucharist Law and Practice by Durieux page 179]

During the Vatican II changes about the fasting went from midnight to 3 hours. Then a decree by Pope Paul VI in November 1964 announced a concession:

“In view of the difficulties in many places regarding the Eucharistic fast, Pope Paul VI, acceding to the requests of the bishops, grants that the fast from solid food is shortened to one hour before communion in the case of both priests and faithful. The concession also covers use of alcoholic beverages, but with proper moderation being observed.” [Documents of the Liturgy, 272, 2117]

This change in regulations confused a lot of people who questioned, why does a mortal sin change because a group of men decide it is no longer a mortal sin! What of all those people who have died without receiving Holy Communion because of mortal sin, how is that affected This opened a lot of questions, which are not easily answered. Others believed that a one-hour fast is too short to be defined as a fast and a possible 3-hour fast is much more fitting with the encounter of Christ.

Other changes included vestments were made of everyday material such as cotton and polyester. The chalices were reproduced in pottery, there were new names and meanings for the seven sacraments. Communion could be received on the hand and in a standing position, prayers at the foot of the Alter were shortened,

“To promote active participation, the people should be encouraged to take part by means of acclamations, responses, psalmody, antiphons, and songs, as well as by actions, gestures, and bodily attitudes. And at the proper times all should observe a reverent silence.” [Sacrosanctum Cconcilium, Paragraph 30]

Another principle concern of the Second Vatican Council was one of Christian Unity.

The Constitution of Divine Revelation

The Constitution of Divine Revelation or Dei Verbum (Word of God) was approved and published in November 1965.

Before the installation of this doctrine it was taught that the Bible came second in religious life and people were discouraged from reading it. Many home contained a Bible but mainly for storing date and names of baptism. The new constitution hoped to teach new respect for the scripture and the interpretation of the Bible, the Papacy hoped that by teaching that all religious truth are found in the Bible that Scripture and Church would become united. It encourages the Catholic scholar to read the Bible,

“For the correct understanding of what the sacred author wanted to assert, due attention must be paid to the customary and characteristic styles of feeling, speaking and narrating” [Dei Verbum paragraph 12]

Since the publication of this document many Catholics have learnt to respect scripture and tradition. It is now permitted to read and study the Bible and it has also lead to new ways to teach the Bible in Seminary. This was a major shift fir the Church and an important transformation.

“The word of God may spread rapidly and be glorified.” [2 Thess 3:1]

Christ entrusted his message to his disciples. This has continued down through history within the Church, “flow from the same divine wellspring” [Dei Verbum paragraph 9]

This tradition and teaching of scripture is the basis to our faith and belief. The interpretation of God’s word is entrusted to the teaching office of the Church,

“above the word of God, but serves it” [Dei Verbum paragraph 10]

The Decree of Ecumenism

Dogmatic Constitution of the Church was the fourth decree made. In the past the Reformation of the church was viewed as a super state and the Pope was the head of it. There was also a strong opposition to anything not related to the church. With this decree more emphasis was placed on making the church a mystery and as People of God with equality being a key element. “An individual bishop is given collegial responsibility by his very ordination as bishop. The permanent diaconate is revived; even married people may become deacons. The doctrine on Mary is included in the teaching on the Church; it is no longer something separated from the Church.” Though another decree was made later it has relevance to the Dogmatic constitution of the church, it was the Decree on the Pastoral Office of Bishops. This Decree was instituted due to the Bishops not having a lot of authority or say in the administration. The changes with this decree helped bishops have control over other bishops and over their diocese of people.

Bibliography

http://findarticles.com/p/articles/mi_m1141/is_30_37/ai_75247932/pg_2/?tag=content;col1

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To Study of the Law of the Constitution

Introduction

A V Dicey described the rule of law as “one of two pillars upon which our constitution rests, the other being the sovereignty of parliament.” [1] This immediately brings emphasis to the view that ourUK constitution values the rule of law as well as considering parliamentary sovereignty as a supreme component of our Country’s constitution. The question however, lies in whether parliament has the absolute power to ‘legally legislate on any topic whatever which, in the judgment of parliament, is a fit subject for legislation,’ or conversely, a contradictory argument is much more valid.

First of all, I will take Her Majesty’s words of enactment into account, which conferred that, our present assembly of Parliament, has the authority to create legislation with the consent of the Lords Spiritual and Temporal. This implies Parliament has the power to “make or unmake law whatever, and no body or person is recognised by the Law of England as having a right to override or set aside the legislation of parliament,”[2] as Dicey well defined in his rule of law theory. Evidently, this supports the basis of my argument that Parliament has the sovereignty of power to create or dismiss law and no Political MP or common man, has the capacity to do so.

Furthermore, there is much to support the view that the doctrine of supremacy lies in the hands of Parliament. The courts ascribe Acts of Parliament to have legal force which “other instruments for one reason or another fall short of being an Act of Parliament.” This superlatively supports Dicey’s statement above “no power which, under the English constitution, can come into rivalry with the legislative sovereignty of parliament.’ However, in terms of rivalry the courts referred to treaties entered under prerogative powers, by-laws created by a local authority, order in council, the Scottish parliament or the Northern Ireland Assembly.

Yet, it is justifiable to a very large extent, Parliament has unlimited power in the constitutional affairs of the United Kingdom. The Septennial Act (1715) which Parliament passed to “extend the life of parliament from three to seven years.” [3] Furthermore, the amendments which Parliament made through the Parliament Acts (1911) and (1949) to hold “a general election at least every five years.”[4] As well as, amending its own composition and bills as set out in the 1911 Act.

These were the initial legal changes which gave rise to Parliament’s supremacy to legislate on any matter which is ‘a fit subject for legislation.’ Additionally, through the Act of Settlement (1701) and the Abdication Act (1936), Parliament made a remarkable change through the succession of the throne. The courts who have a role to interpret and apply Acts of Parliament affirmed that only Acts have legal force.

Dicey’s first principle on the rule of law can be supported from above. In addition, Parliament being able to legislate retrospectively strengthens the view that ‘parliament can make or unmake any law it chooses.’ In the case Burmah Oil co v Lord Advocate (1965)[5] Parliament exercised its power to introduce another Act, the War Damages Act (1965) as the decision to overturn the House of Lords decision became crucial to prevent theUK suffering a huge financial drain, at the time of the World Wars. This exemplifies Parliament being able to legislate with no legal limits as such. Thereby, supporting Dicey’s statement above.

Now I will bear relevance to Dicey’s second principle which states “Courts are constitutionally subordinate to parliament.” The rationale for courts to be constitutionally lower than parliament is that Bills do not have legal force, it is Acts that do. Therefore, the stages that a bill must pass to become an Act clearly imply Parliament has greater supremacy, on the grounds, the courts cannot make law. However, they do have the authority to enforce law which has already been an Act.

Moreover, the Enrolled Act rule legally permits the courts to amend legislation which parliament cannot change. The case Edinburgh and Dalkeith co V Wauchope (1842) [6]gave rise to this rule, as Wauchope set out to challenge Parliament as a result of the Private Act affecting Wauchope’s rights against the railway company. Challenge was rejected, as Parliament refused the introduction of the bill into parliament through standing orders of the House of Commons. The legislative authority of Parliament was evident in this case.

On the other hand, Lord Reid in the case Madizimbamuto v Lardner Burke [1969] “it would be unconstitutional for the United Kingdom parliament to do certain things.”[7] The implication of this was clear, it would be unconstitutional for Parliament to legislate for other governments likeRhodesia. However, Parliament may do such things if it wishes to do so, as it is much evident the supreme power remains with parliament. This strongly supports Dicey’s rule of principle.

On the contrary, Sir Glanville Williams (1947) argued that, “no statute can confer this power upon Parliament, for this would be to assume and Act on the very power that is to be conferred.” [8] This implicates statute cannot form sovereignty, opposing the the sovereignty parliament being able to legislate, both ‘prospectively and retrospectively, to be noted from above.’[9] Conversely, the dismissal which took place in the case Cheney V Conn (1968) due to illegal taxes, allowed Ungoed –Thomas J to proclaim “it is the law which prevails over every other form of law”[10] subsequently, ‘what the statute enacts cannot be unlawful because the statute is the law.’[11]

In opposition of Dicey’s statement above, Dicey’s third rule of principle highlights certain limitations on the legislative power of Parliament. In the view that, ‘Parliament cannot bind its successors or be bound by its predecessors.’ Primarily because Parliamentary sovereignty is protected by two doctrines, express repeal and implied repeal. Implied repeal in context for instance, states that if there were to be a conflict between two Acts, one previous and one repealed, then the rule applies that the last of two Acts passed at separate times, it is the most recent Act which must be obeyed. Therefore, Parliament must cohere to this rule.

However, the key limitations which have been argued to challenge the sovereignty of parliament are the Human Rights Act [1998], Devolution ofScotlandandWales, the Treaty of Union (1707) and the European Communities Act (1972).

The Human Rights Act [1998] seeks to protect human rights against legislation by later Parliaments. So it could be justified as a limitation for Parliament to pronounce a lawful decision such as ‘all blue eyed babies should be killed.’

Also, since the devolution of the UK Parliament[12], devolving powers toScotland as ruled in the Scotland Act (1998), Northern Ireland Act (1998) and Government of Wales Act (1998), this may contradict Dicey’s statement above. AsWales,Scotland andNorthern Ireland have the power to legislate on certain matters such as Education-student tuition fees; this possibly means ‘Parliament cannot legislate on any topic whatever’ unless, the powers were to be taken away, which could in theory happen. Seeing as,Westminster still holds the supreme power. Yet, the process is likely to be time consuming.

Additionally, it could be reasoned that Parliament’s powers have been limited since the Treat of Union (1707) came into existence. On the basis that, the treaty of union was introduced to unite the two kingdomsEnglandandScotland, with the belief that, there was a union of equals. Implying thatScotlandis somewhat equal toEngland. They could argue, the Treaty of Union is a higher form of law and may prevail over inconsistent Acts of Parliament.

In historical context, the sovereignty of Parliament was seen in a different light as it is today. Coke CJ in the case of Bonham (1610) 8 co Rep [13] asserted that, Common Law was a higher form of law than an Act of Parliament. However, this judgment was formed when the monarch had greater legislative and judicial power than Acts of Parliament. Since 1714, there has been a reversal of constitutional affairs; consequently this justifies the power of parliament to ‘legally legislate on any topic whatever, which is a fit subject for legislation.’

Conclusion

In conclusion, after evaluating all the limitations above, it would be rightly justified to say that a majority would agree that they were political rather than legal limits imposed on parliament’s sovereignty of power. Thereby, with the supported arguments above, it seems right to agree on A V Dicey’s statement above as there was greater validity.

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Conventions provide the flesh which clothes the dry bones of the law; they make the legal constitution work” (Jennings, 1959). Explain and critically evaluate Jennings’ statement, identifying the functions which conventions perform in the UK constitution.

Abstract

A constitutional convention is an accepted way as to how things should be done within society. Whilst they are not written down, they tend to be long established principles that are considered to be the norm. Although they are not laid down by the law and are not enforceable through the courts, the fact that they are in existence helps to ensure the smooth operation of the constitution and enables an effective system to be maintained. Although there have been many calls for a codified system to be incorporated into the constitution, this would not appear feasible given the flexibility that the current regime provides. This is vital in ensuring that the law can be adapted to suit the needs of society given the changes that frequently take place. This is because; conventions can be altered in accordance with societal changes, which enables the UK’s system to work. Without conventions, the constitution would therefore be unworkable since they fill the gaps in the law that the government has failed to account for. Conventions are therefore thought of as part of the law even though they are not legally enforceable as they are binding upon all individuals.

Introduction

The UK’s constitutional sources are divided into two different categories; legal rules and non-legal rules. Legal rules are thus found in statutory provisions, subordinate legislation and case law, whilst non-legal rules are found in constitutional conventions and informal rules. Because the constitution within the UK is unwritten, the non-legal rules are generally considered of vital importance. This is not the case for those countries that have a written constitution, however, since they will have developed various legal rules that are set in stone. Nevertheless, even in countries such as this, constitutional conventions are still created in order to supplement the codified constitution. As such, conventions are therefore an important aspect of all constitutions around the world and are significant in understanding how the UK is structured and regulated. Constitutional conventions were introduced in order to allow changes to be made where necessary so that the interests of society could be accounted for.Such conventions are thus developed by agreement and are generally accepted by all members of society. If they are breached in any way, undesirable consequences will follow, which is why it is imperative that conventions are regularly observed and adhered to by all. Consequently, Jennings statement, that conventions make the legal constitution work, will be explained and critically evaluated in this assignment in order to consider its adequacy. This will be done by identifying the functions in which conventions within the UK perform and considered whether they are a necessary part of the British constitution.

UK Constitution

The UK does not have a written constitution, yet it instead comprises of various laws, treaties, and conventions, that have been created by Parliament. Under the current system, Parliament is therefore able to pass any legislation in which it deems appropriate. Although it is believed by many that this is necessary in maintaining parliamentary sovereignty, (The Constitution Society, 2009, p. 1)[1] others disagree. Instead it is argued that “the interests of national parliamentarians are not necessarily synonymous with the interests of the nation as a whole”[2] (Laming, 2009, p. 2). There have been many calls for a written constitution to be introduced, though it remains to be seen whether this will ever happen given the longstanding belief that that there should never be any “legal limits as to what Parliament can do”[3] (Dicey, 1967, p. 81). However, if all of the existing unwritten conventions were consolidated into one single written document, the current system would certainly be improved. This is because, restraints would be imposed upon Parliament and the interests of the nation as a whole would be served. Furthermore, greater clarity would also be provided overall (Barnett, 2011, p. 6).[4] Not all agree with this, however, and instead it has been pointed out by Parpworth (2010, p. 15) that the UK’s constitution has been a success so far in that it has produced a stable government in comparison to other constitutions.[5] As a result, it is felt that the introduction of a written constitution cannot be justified since the current system is workable. Many believe that this is purely down to the UK’s constitutional conventions since it is argued that the constitution would not work without them as they play a key role in the uncodified British constitution (Jennings, 1959, p. 81).[6]

Conventions in the UK’s Constitution

Constitutional conventions are the most important class of non-legal rules within the UK’s constitution. They are supplementary to the legal rules of the constitution and therefore define its current practices (Barnett, 2011, p. 35).[7] Dicey (1885, p. 168) defined conventions as “understandings, habits or practices which, though they regulate the conduct of the several members of the sovereign powers, are not in reality laws since they are not enforced by the courts.”[8] It is questionable in view of this definition whether the constitution would in fact work without such conventions given that they are not enforceable through the courts. Nevertheless, given that society is constantly changing, it is imperative that a flexible system exists. This can be achieved by the use of conventions since the law can be changed easily without having to amend a codified document. This is vital to the needs of society because of its continued growth and without a flexible system in place; the law would not be able to keep abreast with the constant changes and advancements that are being made. This would lead to much injustice and the British constitution would be in a state of discontent. Whilst conventions are not legally binding through the courts, they are politically enforceable and certify that democratic principles are being upheld within the constitution. Conventions therefore lay down the type of behaviours that must be conformed to and are considered to be binding “rules of conduct” (Wheare, 1951, p. 180).[9] Consequently, it is vital that conventions are continuously observed in order to ensure that they are being adhered to because as pointed out by Heard (1991, p. 72); “any breach of these terms would produce significant changes in the operation of the constitution.”[10]

Conventions Binding Nature

Whilst conventions are deemed binding rules of conduct, the fact that they are not enforceable through the courts seems to undermine their credibility. Furthermore, under the definition that was provided by Dicey, conventions are merely habits and understanding that determine standard practice. As such, it is arguable whether such habits and understandings do have to be followed. There are, however, different types of conventions that exist, which each perform different functions. Fundamental conventions are those which are integral to the constitution and must be adhered to at all times, meso-conventions are those subject to change, semi-conventions are those prescribing a manner of conduct and infra-conventions are those proposing behavioural standards. Although, the different types of conventions perform different functions, they all “share the same common characteristic – the general level of agreement that supports them” (Marinkovic, 2006, p. 6). Conventions are therefore an integral part of the British constitution and although they are not enforceable through the courts, they do “regulate the working of the constitution” (Hogg, 2009, p. 207).[11] An example of a constitutional convention is where the Crown is required to accept the advice that is provided by the Government and its ministers. Another example is where the Crown is required to grant Royal Assent to all legislative provisions that are passed. Arguably, it seems as though conventions are binding in the sense that must be adhered to by those to whom they apply. However, it has been asserted that they are normative in that they prescribe, as opposed to describing, behaviour (Conte, 1999, 323).[12] Thus, conventions are simply recommendations as to how society ought to act.

Functions of UK Conventions

Conventions are effectively accepted forms of behaviour that must be conformed to by all. Although they are not binding through the courts, they are the backbone of the constitution, in that it would be unworkable if conventions did not exist. Conventions thus perform various important functions within society and consist of established practices as to how individuals ought to behave. It has been pointed out that Trueman (2000, p. 1) that: “Though these conventions are not set in legal stone, their very existence over the years has invariably led to the smooth operation of government.”[13] Arguably, the government would not be where it is today if conventions had not been in existence and so it is said that conventions shape the workings of the constitution. In addition, whilst there are many calls for a written constitution, it cannot be said that the government would have developed as well as it has done and thus moulded itself to the changes within society if the constitution was codified. There would have been less room for change as the constitution would not have had the flexibility to make changes to the rules and regulations that exist at present. The constitution would therefore have been very different if it was codified. This was recognised by Blick (2011, p. 10) when it was argued that; “the UK constitution appears in the literature as ‘flexible’, relatively easy to change, and in ways which are not always widely noticed.”[14] It was further stressed that; “flexibility is an advantage which could be threatened by codification.”[15] Therefore, although many would argue that a codified system is better for consistency, an uncodified system needs to be maintained if changes to existing legal rules and regulations can continue to be made.

The acceleration of change is therefore one of the most important aspects of having an uncodified systems and because the conventions allow great flexibility, it would be unworkable if these were not in existence. Essentially, it has been made clear that although the constitution within the UK is not ‘perfect’ this does not mean to say that it should be codified. “Whilst an uncodified constitution does not provide an easily accessible document detailing governance of the country and the rights of the individual, it does provide a living constitution.”[16] It is effectively a “constitution that can adapt and evolve with the ever-changing conditions in which we live” (Adderley, 2009, p. 3)[17]. If the constitution was codified, applicable changes would not be capable of being made where necessary and the constitution would not work as well as it has done. Thus, the UK’s entry into the European Community in 1973 and the introduction of the Human Rights Act 1998 would not have occurred had the constitution been codified. However, not all agree that the constitution should remain the same and instead believe that the conventions are too flexible. Therefore, whilst it is not argued that a written constitution should be introduced, it is believed that restraints ought to be imposed by introducing positive rights (Adderley, 2009, p. 3)[18]. It remains to be seen whether such changes will be made but what is clear is that conventions should remain at the forefront of the British constitution. This is because, conventions can be adapted easily to change and so are frequently used as a means to introduce constitutional development. Nevertheless, conventions must always ensure that they are in accordance with existing laws, which can be achieved by modifying existing conventions to achieve common goals.

Another important function in which conventions possess is there ability to “fill in the gaps within the legal structure of a government” (Kwan, 2002, p. 3)[19]. Accordingly, because the UK’s constitution is unwritten, there needs to be rules in place that allow for a constitutional government. For instance, there are no rules which state that a Prime Minister must be appointed within the UK. Constitutional conventions therefore rectify this by making provision for the appointment of a Prime Minister. In relation to the theory that was provided for by Jennings (1959, p. 81)[20] it is clear that society conforms to different patterns of behaviour. Therefore, when these patterns of behaviour change, society will adapt their behaviour in conformity with the behavioural trends at the time. This is deemed to be an acceptable form of civilisation and although there may be no penalties imposed upon those who fail to conform to the traditional patterns of behaviour; the same cannot be said for breaching constitutional conventions. Therefore, although conventions are not enforceable through the courts, they must be adhered to by all in order to avoid facing possible sanctions. In effect, it could be said that conventions are therefore binding despite not being enforceable through the courts. On the whole, conventions are rules that are binding upon all individuals within society and are thus supplementary to the British constitution. If conventions did not exist, there would be significant gaps in the constitution which illustrates the importance of them. Furthermore, although conventions are not enforceable per se, they can in fact be codified and thereby placed on a statutory footing. Yet, given the flexible nature of conventions they are better suited at being uncodified so that they can be altered and changes where necessary. This allows the changing needs and advances of society to be accounted for and as such it is important that conventions remains as they are without becoming rules of law that are legally binding.

Conclusion

Overall, it is evident from the findings that constitutional conventions do make the UK’s legal constitution work. This is because; conventions are the most important class of non-legal rules within the UK’s constitution and are supplementary to the legal rules of the constitution. Accordingly, because society is constantly changing, it is important that the system is flexible enough to allow such changes to be accounted for. Thus, because of the flexible nature of conventions, any changes that are made can be incorporated into the constitution in order to preserve the interests of society. This is the most fundamental function in which conventions perform and although they are not enforceable through the courts, they must still be adhered to by all. Continued growth can therefore be made, which would not be as easily achieved if the system was codified. It has been said that conventions lay down appropriate forms of behaviour that must be conformed to and have essentially been called binding rules of conduct. If the terms under the conventions were violated, the operation of the UK’s constitution would be significantly altered, which illustrates their importance. Arguably, conventions thereby regulate the working of the constitution and prescribe, as opposed to describing, behaviour. Therefore, although conventions are not binding through the courts, they are the backbone of the constitution, in that it would be unworkable if conventions did not exist. Essentially, the UK would not be where it is today if conventions had not existed and unless they remain as they are, the UK’s constitutions would end up in discontent and the interests of society would not be maintained.

Bibliography
Books

Barnett, H., (2011). Constitutional & Administrative Law, Routledge, 9th Edition.

Dicey. A.V., (1967). An Introduction to the Study of the Law of the Constitution, 10th Edition, MacMillan, London, Part 1.

Dicey, A. V. (1885) Introduction to the study of the Constitution, 8th Edition, Macmillan.

Heard, A. (1991) Constitutional Conventions, Toronto: Oxford University Press.

Jennings, I (Sir), (1959) The Law and the Constitution, 5th Edition, London, Hodder & Stoughton.

Parpworth, N., (2010). Constitutional and Administrative Law, OUP Oxford, 6th Edition.

Wheare, K (Sir), (1951) Modern Constitution, Oxford University Press.

Journals

Adderley, I., (2009) Our Constitution is Far From Perfect – But Written Codification is not the Answer, Labour List, < http://labourlist.org/2009/08/our-constitution-is-far-from-perfect-but-written-codification-is-not-the-answer/> [Accessed 04 July, 2013].

Blick, A., (2011) Codifying – or not codifying – the UK constitution: A Literature Review, Centre for Political and Constitutional Studies, [Accessed 04 July, 2013].

Conte, R., (1999) From Conventions to Prescriptions. Towards an Integrated View of Norms, Artificial Intelligence and Law, Kluwer Law Academic Publishers, [Accessed 03 July, 2013].

Hogg, P., (2009) Constitutional Authority over Greenhouse Gas Emissions, 46 Alta Law Review.

Kwan, C. P., (2002) Some Basic Information on Constitutional Conventions, Legislative Council Secretariat, [Accessed 04 July, 2013].

Laming, R., (2009). An end to parliamentary sovereignty, The Federal Union, [Accessed 01 July, 2013].

The Constitution Society., (2009) A Written Constitution [Accessed 01 July, 2013].

Trueman, C., (2000) Conventions of a Constitution, [Accessed 03 July, 2013].

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Free Essays

Constitutional conventions represent important rules of political behaviour which are necessary for the smooth running of the constitution.’ (Allen and Thompson, Cases and Materials on Constitutional and Administrative Law, 9th edition, 2008)

Abstract

The UK does not have a written constitution and as such there is a heavy reliance on the constitutional conventions. This analysis considers the importance of the conventions and concludes that these conventions do indeed play a crucial role in the smooth running of the constituions and indeed the development of written practices

Introduction

The UK does not have a formal, written constitution, yet it does have a highly developed approach which broadly creates stability within the political framework of the company. The United Kingdom has therefore developed a codified constitution, which relies heavily on constitutional convention. The purpose of this paper is to consider the importance of constitutional conventions and to consider whether or not these can be attributed with the success of the strong political and constitutional approach taken in the UK. The first part of the paper will look at the definition of constitutional conventions and ascertaining the way in which these have evolved, over the years. The discussion will then look at the positive impact that these constitutional conventions have had, as well as the negative impacts, before undertaking the final analysis of whether or not constitutional conventions represent important rules when it comes to running of a constitution, as per the statement noted above (Loveland, 2003).

Definition and History of Constitutional Conventions

A definition of a constitutional convention by Dicey, in 1898 p Cliii, stated that the Constitutional Convention refers to “conventions, understandings, habits or practices which, though they may regulate the conduct of the several members of the sovereign power…are not really laws at all since they are not enforced by the courts. This portion of constitutional law may, for the sake of distinction, be termed the ‘conventions of the constitution’, or constitutional morality…”

This creates an interesting starting point for the discussion here, with the recognition that a convention does not take a formal footing as, in the absence of a written constitution, the UK largely relies upon these conventions, in order to guide its operation.
There has been substantial constitutional change in the UK, since 1997, without the formal establishment of a written constitution. For example, in 1997, referenda were held in both Scotland and Wales which began to establish a period of devolution, with both Scotland and Wales pursuing their own parliament or, in the case of Wales, a National Assembly. Whilst again this did not ultimately change the existence of the constitution, it has altered the relationship between Scotland, Wales and England. Similarly, in 1998, the Good Friday agreement also allowed the devolved assembly in Northern Ireland and, later the same year, a Greater London authority was approved which enabled a directly elected mayor and an assembly to be established, to manage the running of London.

Another notable constitutional change which could be considered to be a convention although did not have the effect of establishing a formal written constitution include the establishment of the Human Rights Act 1998 which incorporates European law implemented on a global level, as well as the critically important Constitutional Reform Act 2005 which reformed the role of the Lord Chancellor and created a Supreme Court.

By looking at these developments, over recent years, there is substantial support for the idea that constitutional conventions, whether they are written or unwritten, will always find themselves subject to change to take into account underlying factors. These conventions are, therefore, crucially important when it comes to the establishment of rules and regulations and the operation of political parties and bodies (Barnett, 2006).

There is clearly merit in the argument that constitutional conventions in the United Kingdom are particularly important, due to the fact that there is no written constitution. Therefore, the way in which these conventions evolve, over time, and those conventions that are perceived to be relevant are currently likely to have a long-standing impact on the operation of the political bodies and the constitution of the UK, in such a way that may be greater than those jurisdictions which have written constitutions.

Pro-Constitutional Conventions

Interestingly, when looking at the definition of constitutional conventions provided by Dicey, this definition seems to concentrate on the notion that conventions are supposed to achieve a certain aim, and this is a strong starting point. However, it is important to note that conventions need to be distinguished from other forms of practices or habits, as this latter definition simply describes what happens whereas a convention will look more at what should happen or how matters should be dealt with.

Of perhaps greater relevance in this discussion, therefore, is the concept that constitutional conventions add value and “flesh” to the “bones” of basic rules and offer guidance which means that the constitution can operate effectively. As stated by Jennings (1959) p.45: “The short explanation of the constitutional conventions is that they provide the flesh that clothes the dry bones of the law; they make the legal constitution work; they keep it in touch with the growth of ideas”.

This seems to take on a much more positive view of the role of constitutional conventions and suggests that they take on a vitally important role within the constitution, in terms of offering guidance and specific rules which should apply, from a practical perspective.

This definition would suggest that the UK constitution is involved in such a way that it falls into one of two distinct categories. The first refers to the constitution itself, which is contained within the statutory provision and subordinate legislation and this will have an effect on the entire society, whereas the second set of rules is non-legal in nature and can be seen as constitutional conventions that are generally accepted as binding, but cannot be enforced in court. Despite the lack of enforcement powers given to constitutional conventions, it is argued here that their existence has been fundamental in the establishment of the smooth operation of government, over the years, and without these conventions, many of the legal rules would be lacking in efficiency or practicality.

Difficulty with Constitutional Conventions

Whilst there is a clear benefit in the use of constitutional conventions, a practical difficulty arises when determining what, precisely, is meant by a convention and whether or not a certain course of behaviour is to be considered a rule or a constitutional convention which can be relied on and can enforce certain behaviours, without having a legal basis. When it comes to the definition of convention, the concept of obligation is seemingly particularly important and this is a crucial element of the constitutional convention. Without some form of obligation underpinning the precise group of people or those involved in the management of government are likely to find themselves complying with the convention at hand.

If there is no obligation attached to the constitutional convention in question, then it will not necessarily be recognised by those who are observing the constitution (Foley, 1999).

Following this principle, it is therefore argued that the validity and usefulness of a constitutional convention depends on the way in which the constitutional convention is established and whether or not it is accepted by the masses and by those who are required to apply the convention in their day-to-day activities. The determination of the existence of the convention is a good starting point for this discussion as to whether or not the recognition of the existence of a convention can be linked to the point at which it is accepted. For example, once a constitutional convention is accepted as being a convention, there is an argument to suggest that it has gained the necessary support when it comes to the management of the government and activities associated with the government.

A slightly different alternative definition of constitutional convention was provided by Dicey and suggested that constitutional conventions are habits and practices which regulate the way in which sovereign power is used. Although, on the face of it, most of these definitions of the constitutional convention are very similar, this latter definition suggests that the convention describes the way in which certain groups of people operate, rather than the former definition which suggests that the convention gains legitimacy in its own right (Bradley and Ewing 2007).

The Importance of the Constitutional Convention

It is argued here that the importance of constitutional conventions suggested by the theory presented by Jennings that a constitutional convention is the way to add value to the rules and regulations that are being complied with by government or a small segment of government. By pursuing the approach taken by Jennings, it is suggested that society, or groups within society such as the government, will conform to specific trends of behaviour. As certain behaviours become more, and more readily accepted, they then become established as the accepted way to do something, or indeed the way not to do something. In many cases, these conventions suggest activities out of respect, e.g. the removal of a hat when attending a church service. However, failing to abide by these specific conventions has consequences attached and is simply likely to result in an individual being “looked down upon”, or shunned in some way. When applying this to a constitutional situation, these conventions can be seen as ways in which people are expected to act, in order to be accepted by their peer group and by society around them. Failure to comply with these conventions could result in sanctions from other bodies, but fundamentally no law is broken.

Given the flexible way in which the establishment of conventions takes place, it is not surprising that some established conventions have greater strength than others and in many cases the constitutional convention actually plays a pivotal role in the politics of governance of the country. A particularly obvious example of this is the convention that the Queen will automatically pass any statutory provision put in front of her for Royal Assent. The actual rule relating to the need for Royal Assent places no burden on the Queen to automatically accept or reject any statutory provision put before her; yet, any refusal by the Queen to do so would potentially create constitutional chaos.

A further example that could be presented in terms of when a constitutional convention provides stability and efficiency is the convention of collective ministerial responsibility. This concept of collective responsibility indicates that all of the ministers working within the government need to demonstrate a degree of responsibility for the actions of the government, including policies and decisions, even if there is an individual disagreement with certain aspects of these decisions. This constitutional convention is a clear indication of just how important these constitutional conventions can be. Therefore, although there are no specific rules stating that there needs to be collective ministerial responsibility, without it, any policies and decisions emanating from the government could be disowned by individual ministers, thus creating an almost impossible situation with no responsibility being held by anyone (Gordon 2010).

This convention places notable obligations on all ministers to both support and comply with any government policy and there is an expectation that ministers within the government will speak with one voice. This convention has been established as a means of giving public confidence in the policies and procedures laid out by government. Any ministers who find themselves in a position that they outwardly cannot support a government policy would typically be expected to resign from office. Again, this is not a requirement, but is a constitutional convention which has developed over the years and has created a situation whereby collective responsibility is a pillar of government policy. Without this, it would be difficult for the public to have any confidence in government policies and this would seriously reduce the ability of the government to be effective (Fenwick and Gavin 2003).

Cases Dealing with Conventions

Despite the positive aspects of constitutional convention, there have been several cases where courts have refused to accept the reliance on constitutional convention as a means of either bringing an action, or denying an action, but have ultimately given effect to the convention, in such a way that it may as well have been a formal legal rule. For example in the case of Jonathan Cape (1976), it was held by the court that the publication of the diaries which contained details of Cabinet proceedings was not to be seen in the public interest. The attorney general, in this case, stated that they wanted to prevent publication, on the basis that it would have resulted in a breach of convention. Despite this, it was held that confidentiality and the need to protect the public interest was such that the publication should not take place. However, the courts do not accept that this was due to convention, but rather to the need to act in the public interest.

A similar approach was taken in the Manuel case of 1983, where the court once again had the opportunity to crystallise a convention into a firm legal principle. In this case, the debate was about the ability of the UK Parliament to legislation on behalf of Canada, and it was held that convention did not have the power to bring about a change of rules although it may be that a certain conventional breach can, ultimately, be the catalyst to review legal principles. Despite this, conventions themselves could not be held responsible and convention could not therefore be used as the foundation for a legal decision.

Analysis and Conclusions

It can be argued, therefore, that the main goals of the convention is to look at the application of concepts and prevents these from becoming too rigid and to enable changes to take place, to reflect social and economic movement. Conventions are, however, extremely important, as they are observed by a broad range of individuals, including the Prime Minister, judges, civil servants, sovereign and ministers. It is convention for example that the ministers are responsible to the government through parliament for the actions of those within their team. Conventions create the situation whereby a minister may be responsible for the actions of those working within his own department, even if they are not aware of the misdemeanour.

Although it is rare for the courts to utilise and rely on constitutional conventions when making decisions, they are regularly used as a means of interpretation. This again indicates just how important constitutional conventions are, not only in terms of indicating acceptable conduct, on a day-to-day basis, but also when dealing with an acrimonious and potentially difficult situation. It is argued here, therefore, that constitutional convention, as a theory put forward by Jennings, are vitally important within the UK, particularly given the lack of written constitution.

The critical factor associated with the effectiveness of constitutional conventions is though to be down to the fact that these constitutional conventions are readily accepted rules and obligations by those who are responsible for complying with them. In the case of collective responsibility, for example, the strength of the constitutional convention comes from the fact that all ministers accept this collective responsibility, unquestioningly. Difficulties, however, emerge when a constitutional convention is questioned.

On balance, however, it is concluded here that the statement made at the outset is an accurate reflection of the importance of constitutional conventions and in its assessment that constitutional conventions are largely responsible for the smooth running of political agendas within the UK. Crucially, these conventions also present reasonable expectations of how public bodies are likely to act, in a variety of different situations, all of which is fundamental for long-term public confidence.

References

Attorney-General v Jonathan Cape Ltd [1976] QB 752

Barnett, H. (2006) Constitutional and Administrative Law. 6th ed. Oxon: Routledge-Cavendish

Barnett, H (2012) Constitutional & Administrative Law, Routledge.

Bradley, A,W, Ewing, K,D.(2007) Constitutional & Administrative Law. 14th ed. Essex: Pearson Education Ltd

Dicey, A.V. (1898) Introduction to the Study of the Law of the Constitution. 10thed. 1959, London: Macmillan

Fenwick,H, and Gavin,P.(2003) Text, Cases & Materials on Public Law & Human Rights. 2nd ed. Oxon: Cavendish Publishing Ltd.

Foley, M (1999) The politics of the British constitution, Manchester: Manchester University Press.

Gordon, R (2010) Repairing British Politics: A Blueprint for Constitutional Change Oxford: Hart.

Jennings, I. (1959) Cabinet Government. 3rd ed. Cambridge: Cambridge University Press

Loveland, I. (2003) Constitutional Law, Administrative Law and Human Rights: A Critical Introduction. 3rd ed. London: Cavendish Publishing

Manuel v Attorney General [1983] Ch.77

Marshall, G. (1987). Constitutional Conventions: The Rules and Forms of Political Accountability. Oxford: Oxford University Press

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Living constitution

For the past two decades, those in favor of original intent/strict contructionism have been gaining some influence over those who favor a “living constitution” interpretation of the Constitution. This seems to correlate with the rise of conservative influence over America in the past two decades.  In response to the liberal activism in what was called the Warren Court, conservatives started to voice what was called the conservative critique. Most visibly, this consisted of President Reagan’s attorney general, Edwin Meese was “unhappy with many of the Supreme Courts liberal decisions of the preceding decades, Meese argued that it was meddling with the affairs of the other federal branches and especially the state governments. (TDD 387).”

In response to Meese’s complaint on judicial activism, Supreme Court Justice William Brennan Jr., argued in defense of the judicial activism in what we think is the correct and most favorable interpretation on the Constitution. Brennan puts forth many arguments in favor of what some call a “Living Constitution” view of the Supreme Courts role in judicial review.

Brennan first criticizes what those who favor Original Intent call “the intention of the Framers” in relation to how judicial review should be carried out. Brennan attacks this doctrine by saying, “It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions…the Framers themselves did not agree about the application or meaning of particular constitutional provisions, and hide their differences in cloaks of generality (DEB 325).”

This asserts that because the Framers themselves didn’t agree, it would be impossible to judge what the Framers intent would be, as there is no pure consensus on certain constitutional provisions leaving the document incomplete and ambiguous.

To view the strict constructionist versus Living Constitution in the right context, one must see who the people are behind these terms. The people who promote a strict constructionist view are almost exclusively economic and social conservatives. This isn’t a coincidence as it is clear to see that many of the major Supreme Court cases of the past century have sided with a economically and socially liberal view.

This suggests that conservatives wouldn’t be against judicial activism if the courts ruled in their favor, for instance what if the Supreme Court all of the sudden ruled against legal abortion, banned gun laws, and got rid of welfare? If this happened the very same people who were once strict constructionist and anti-judicial activism would convert to a pro-judicial activist view, and vice versa with liberals. Which leads me to profess that I only prescribe to pro-judicial activism philosophy because they have made “liberal” decisions in the past.

Brennan of course gives other reasons for a Living Constitution other than the fact that the court has made liberal decisions. He argues that a Living Constitution serves as a check against unconstitutional and poor majoritarian rule by the legislature. Brennan reports that an “Unabashed enshrinement of majority would permit the imposition of a social caste system or wholesale confiscation of property so long as a majority of the authorized legislative body, fairly elected, approved (Brennan 326).”

This of course relies on the values and perhaps the consciences on the judges, who don’t have to play the partison politics games thanks to the lifetime term they can serve but still are put in their positions by elected officials. So if a corrupt and authoritarian elected legistlaative majority can get enough judges they approve of to Supreme Court seats, the legislative check disappears,

 

 

 

 

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How the Constitution Limits the Power of Government

The Founding Father of America believed that freedom is a cornerstone of the nation. Therefore freedom had to be protected from any kinds of abuse including abuse by the Government. In order to achieve this purpose the Constitution has been designed in a manner that allowed to limit the powers of governing authorities and protect human rights. This paper shall investigate some of related constitutional provisions and demonstrate how the Constitution limits powers of the Government.

First and foremost powers of the Government are limited by the American Bill of Rights which includes inalienable rights of every citizen which under no circumstances can be terminated. These rights include a right of free speech, right to carry arms, right to privacy etc. In fact the Bill of Rights does not limit the Government, yet it provides abilities for individuals to protect themselves from abuse by the Government [1].

The second feature that allows to limit power is principle of separation of powers. There are three branches of power: legislative power represented by the Congress, executive power headed by the President and judicial power vested by the Supreme Court. Neither of the branches has absolute power and each of them has certain rights and obligations together forming the checks and balances system – a second guarantee against abuse of powers[2].

The third opportunity to limit the Government is federalism. The principle of federalism means separation of powers between the central power and the states. Federalism restricts exercising absolute power by the Government because some powers can be exercised exclusively by the States. On the other hands, some powers can be exercised exclusively by the central government, so power of the Government and power of the States are mutually limited[2].

The fourth opportunity to limit powers is a right of citizens to elect their governments (both Federal and State). The Government which abuses human rights and misuses it’s powers would simply not be elected for the next term, thusly being deprived of opportunity to further infringe it’s powers[3].

Works Cited:

1. Constitution of the United States of America. Amendments 1-10 (American Bill of Rights). Available at: http://www.usconstitution.net/const.html (last viewed: May 3, 2008)

2. Cooray Mark The Australian Achievement: From Bondage To Freedom. Available at: http://www.ourcivilisation.com/cooray/btof/chap174.htm  (last viewed: May 3, 2008)

3. Jacob G. Hornberger (2000) The Constitution: Liberties of the People and Powers of Government. Available at:  http://www.fff.org/freedom/0900a.asp  (last viewed: May 3, 2008)

 

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Nevada Constitution

“LAS VEGAS — The sixth and final man sought in the armed robbery case against O.J. Simpson has been released on $32,000 bail after surrendering to authorities.

John Moran Jr., the attorney for Charles Bruce Ehrlich, 53, of Miami, said his client is “not a principal in this thing” and will plead not guilty. Moran said Ehrlich planned to return home to the Miami area”. (“Sixth O.J. Robbery Suspect Released On Bail”, 2007)

Article 1 section 7 of the Nevada’s Constitution states that all persons shall be bailable of any case except for Capital Offences or murder. Bailable cases should not be punishable by life imprisonment or when the life imprisonment sentence has parole possibility. Article 1 section 7 of the Nevada’s Constitution is clearly evident in this news. O.J.Simpson is facing cases such as kidnapping, robbery and assault. Although punishment for the said crimes could lead to life imprisonment, the punishment includes parole therefore allowing O.J. Simpson to bail for the cases under Article 1 Section 7 of the Nevada’s Constitution.

Article XIII Section 3

[Sec. 3 of the original constitution was repealed by vote of the people at a special election held March 17, 1937. See: Statutes of Nevada 1937, pp. 19, 50. The original section read: “The respective counties of the State shall provide as may be prescribed by law, for those inhabitants who, by reason of age and infirmity or misfortunes, may have claim upon the sympathy and aid of Society.”]

A little help for the homeless goes a long way

NEVADA APPEAL

Andrew Pridgen
Appeal Staff Writer
September 23, 2007, 4:01 AM

“The day, put on by staff of Carson City Health and Human Services and about 20 volunteers from the community, was an opportunity for homeless residents to get free health care, legal advice and job counseling as well as a meal, a hygiene kit and information about which organizations around town can assist the needy back onto the road to self-sufficiency”. (Andrew Pridge, 2007)

Article XIII Section 3 states that the State shall provide some of the needs of the citizens provided that these citizens are incapable of meeting their own needs for some reasons. This can be seen in the story in such a way that a certain organization, together with several volunteers, is helping the homeless residents of the country. These citizens are definitely in need of the support of the country and society.

Sec. 4.  Taxation of estates taxed by United States; limitations. …The State of Nevada shall:

1.  Accept the determination by the United States of the amount of the taxable estate without further audit. …

Taxes Are the People’s Money

Nevada News Digest…Sept.21-22, 2007

“Open Meetings Are the People’s Law…Many arguments are saying that the issue about tax is an issue manages only by the government agency . The secrecy within the issue of tax should be preserve, and that the people living in the state will not acquire any knowledge on how their taxes are determined. University System Regents have tackled some of these arguments; they conducted debate with their exclusive proclivity to privacy while there are about to spend millions of dollars obtain trough the taxes. The state should greatly criticize Open Meting Law and how this right to determine tax issues accompanied by Nevada Tax Commission behind closed door.” (“Taxes are for the People”, 2007)

The application of Article X, Section 4 (1) can be seen in the article (Taxes are the People’s Money). The news states that “… the people living in the State will not acquire any knowledge on how their taxes are determined”, which clearly shows the application of the constitution. The rate of taxation is determined by the United States and should be accepted by the State of Nevada without any further question or auditing.

Article 10 Section 1

The Legislature may constitute agricultural and open-space real property having a greater value for another use than that for which it is being used, as a separate class for taxation purposes and may provide a separate uniform plan for appraisal and valuation of such property for assessment purposes.

The Beginning Of The End For Farmers Markets?

By Bob Bennett

Nevada News Digest…Sept.21-22, 2007

“In Reno farmer’s Markets are very popular, as well as elsewhere in the nation.  Yet they could be in danger of extinction if certain federal legislation is allowed to go unchecked. The National Animal Identification System have raised their concern about the issue, currently a voluntary system run by the states, including Nevada, becoming mandatory with fines of up to $1,000 a day per animal per day plus criminal liability (as in Texas) should reports to the government fall even one day behind.

While all of those factory farms in the place would all is able to limit their accountability by grouping all of their animals in lots based on its designated area, for all of those small farmers they are about to separate identification numbers … and computer chips for each animal. If a farmer has 12 chickens, twelve numbers would be needed.  Five cows would require five numbers.” (Bob Bebbett, 2007)

Section 1 of Article VII can be seen in this issue of the Reno farmer’s market. The mandatory fine increase for agricultural property had been dictated and evaluated by the government.   A separate uniform plan had also been used in which every animal requires a separate identification number. Every animal should be reported to the government for the assessment of the property, that is agricultural properties more specifically, farm animals.

Article XI     Section 6.

Support of university and common schools by direct legislative appropriation; priority of appropriations.

1.  In addition to other means provided for the support and maintenance of said university and common schools, the legislature shall provide for their support and maintenance by direct legislative appropriation from the general fund, upon the presentation of budgets in the manner required by law.

The Federal Education Budget

The Nevada Observer

August 1, 2005

“The U.S. Department of Education’s fiscal year (FY) 2006 budget provides $56 billion in education funding, up about one third since President Bush took office. Federal money coming to Nevada during FY 2006 will be about $439 million, up almost 69 percent from when Mr. Bush took office. Nevada’s state education budget has not kept pace.

As much as $129 million will be used to help Nevada implement the reforms of NCLB. Special education grants will be more than $70 million and there will about $172 million for new Federal Student Loans”. (“The Federal Education Budget”, 2005)

In this issue, $56 billion had been allotted for education and $129 million will be used by the State of Nevada. The government provided support for education that can be used in the maintenance of the school facilities and other important matters just as stated in Article XI Section 6 of the Nevada Constitution. It is the US Department of Education that evaluates the said budget. As stated in the constitution, the government will determine the amount for education and will be coming from general fund.

Works Cited:

Nevada Law Library.(2007).The Constitution of the State of Nevada. Retrieved September

23, 2007 from http://www.leg.state.nv.us/Const/NvConst.html

Nevada Legislature.(2007).Nevada Law Library. Retrieved September 23, 2007

from http://www.leg.state.nv.us/law1.cfm

The Nevada Observer.(2007). Nevada’s Online State News Journal. Retrieved September 23,

2007 from http://www.nevadaobserver.com/index.html

Webster Univrsity.(2007).Sixth O.J. Robbery Suspect Released On Bail. Retrieved

September 23, 2007from http://www.wftv.com/entertainment/14179988/detail.html?rss=orlc&psp=entertainment

 

 

 

 

 

 

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Is Our Constitution Still Relevant?

The United States Constitution is a very important piece of document for the American people and especially immigrants. There are many reasons for this, but the main one is that the Constitution gives freedom to people who enter America. These freedoms are not in many other countries and that’s why immigrants flee to America to pursue the American Dream. Our Constitution is still relevant today because of two things: Freedom of Speech, and Freedom of Religion.

The first reason why the Constitution is relevant is because of freedom of speech the First Amendment of the Bill of Rights. This gives the American people the right to voice their opinion whether it’s good or bad. In some countries, for example China does not allow freedom of speech because they are communists, they have a law saying anyone can protest against the government, as long as they get a permit first, But if you take the risk to get a permit you’re probably going to be shipped off the a “re-education camp “this is why our Constitution is relevant.

Free speech allows you to say whatever you want without being judged or held against your will by law enforcements. The second reason main reason why the constitution is important is freedom of religion the American people having the right to worship whoever they want even if it’s a dog. People believe in whatever and whoever and it lets them live their life without getting discriminated against by mostly people and/or the government. All in all I believe the Constitution is still relevant today because

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Principles of the Constitution

Principles of the Constitution & the Branches of the Federal Government Grand Canyon University: POS 301 10. 30. 12 Principles of the Constitution: A Chart The Effectiveness of Checks and Balances The founding fathers could see issues with giving too much power to any one part of the government. They had witnessed what ha happened in Pennsylvania when their legislature, uncheched by a judiciary or executive, ignored essential liberties which lead to the deprivation of rights to Quakers based on their religious beliefs. The fathers knew we had out not to make this mistake again. Patterson, 2011) Thus, a system where each branch shared in a bit of the others’ power was created to ensure there would exist no monopoly on political power. To analyze the effectiveness of this system, the motivations behind the system must be revisited. Checks and balances were a means for political moderation. This ensures that all change is well considered by all, and executed in a just manner. Considering issues in the nation’s history such as womens’ suffrage and other civil rights, the rate at which our nation has shifted policy has sometimes dragged its feet.

Policy was well thought out, however at a slow rate. Specifically, there was nearly a century between the freeing of the slaves and the culmination of the Civil Rights movement. While it was a huge decision to be considered, the rights guaranteed to American citizens were being withheld or violated. If we are to consider the system in an international forum, we see that it comes down to the unique execution of the checks and balances. Again, considering the goal is political moderation, consider Mexico.

Mexico has a similar institutional system of checks and balances, yet has an international reputation for being politically extreme. Considering Britain, a nation with unicameral legislature fused with the executive and no mechanism for judicial review, they still maintain a politically moderate reputation. (Patterson, 2011) There is no universal best system, at least thus far. Where there have been issues with the timeliness of our own system, change does eventually occur even while maintaining that moderation which was a goal of the framers. The Three Branches of Government Legislative |Executive |Judicial | |Consists of Senate and House of |Consists of President and the Cabinet. |Consists of the federal court system, highest | |Representatives |Commander of the armed forces. |of which is the Supreme Court of the United | |Draft and approve laws for proposal to the |Essentially the leader of the nation. |States (SCOtUS) | |executive. Can sign proposed legislation into law. |Responsible for hearing cases of suit for | |Requires passing through both houses: the |Power to veto proposed legislation. |federal cases and cases where | |Senate and House of Representatives. |Appoints Supreme Court Judges and other |constitutionality may be in question. | |Have the power to overturn executive veto with|federal officials. |Review constitutionality of policy when | |2/3 majority vote. |The cabinet carries out and enforces laws. |brought in suit. |Have the power to amend the Constitution |Cabinet members: agriculture, commerce, |Nine justices ensures a decision. Each | |Power to coin monies. |defense, education, energy, health, homeland |decision will have Court’s Opinion, a | |Power to establish and maintain armed forces. |security, housing, interior, justice, labor, |commentary of the decision. | |Have the power to declare war. |state, transportation, treasury and veterans |Below the SCOtUS is the appellate court | | |affairs. system. Cases work up through the lower courts| | | |to the SCOtUS. | | | |Appellate court charged with hearing regional | | | |cases. | Branch Interaction The two bodies of Congress, the Senate and the House of Representatives, work together (sometimes with input from the President) to draft and discuss new policy.

If after policy is written, voted upon and approved by both legislative bodies, that policy is given to the President (executive) to approve and write into law, or veto. After this the Supreme Court (judicial) has the power to review policy and weigh in on its constitutional legitimacy. A Bill Becoming a Law Following the skeleton of interaction between the branches of government previously discussed, the Bill starts as proposal from a legislative member. The bill is categorized and sent to the appropriate committee to be discussed, argued and tweaked.

If the bill survives without being tabled, it is presented to both houses of Congress for debate and vote. If the bill passes these votes, it is presented to the President to either sign and enact the policy into law or to veto (deny) it. Effectiveness of the Process of Government There is a desire to have present a democracy, where the will of the majority will be driving force behind politics and policy change. To keep the majority in check, however, a republic is also in place. This puts into place the system of representation which will be accepting of the will of the majority (or its constituency) but not held captive by it. Patterson, 2011) The methods of selection also put varying degrees of separation between the masses and those governing, for example Representatives being elected by the people, the President being selected by the Electoral College, and Justices of the Supreme Court being nominated by the President & confirmed by Congress. What must be considered is whether or not the will and needs of the people are being represented in the making of policy. To be put in a position of representing people takes election from a particular geographic area. Those ho will be elected will, logically, be those individuals who hold and support the values of the majority of voting members of that constituency. That their job depends upon being elected initially, and then re-elected, it is in the politician’s best interest to hold his constituency’s interests at heart. Loosely, it is job security. Whether or not the agendas of the constituency or the politician’s personal agenda are more represented depends on the individual representative. The framers believed it would take a representing body that was virtuous for the republic to work well in execution.

But it is the whim of the people who is elected to represent them, at least in terms of Congress. It takes individual citizens being learned of actions being levied by their representatives and the individuals’ duty to contact that representative or change voting habits. There is a tremendous amount of accountability on all sides to ensure the process represents the people as accurately as possible. References: Patterson, T. E. (2011). The american democracy (10th ed. ). New York, NY: McGraw Hill. ———————– Goals of the Framers -Establish a government which could be strong enough to meet the needs of the nation. –Maintain integrity of states’ rights –Maximize liberty and citizen influence Political Mechanics Installed –Specific granting and denial of power –Bill of Rights for personal liberties –Elections –Separation of Power and Checks and Balances Between Them: Legislative – Executive – Judicial To Accomplish This Executive (President and Cabinet) Legislative: Congress (Senate and House of Reps) Judicial (Supreme Court) Executive over Legislative -Power of veto -Recommendation of policy -Execution of policy Can call special sessions of Congress Legislative over Judicial -Dictates size and jurisdiction of courts -May rewrite judicially interpreted policy Judicial over Legislative -May interpret Constitutional legitimacy of policy -May declare policy unconstitutional Legislative over Executive -May overturn veto or impeach -Approves treaties and appointments -Enacts budget Judicial over Executive -May declare executive action unlawful, against policy or unconstitutional – Executive over Judicial -Nominates those to serve as judges. -Can pardon anyone tried within the system (Patterson, 2011) ———————– 8

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How Successfully Did the Liberals Handle the Constitutional Crisis?

How successfully did the liberals handle the constitutional crisis in 1901 – 1911? In 1909 Lloyd George was the Chancellor, he was in charge of the countries money and how they spend it and how much they tax the public. He needed to increase the budget some how to pay for battle ships because England was in a arms race with Germany. When taxing the people he only wanted to increase the tax for the rich, he did not see it would be fair to increase the taxes for the already poor and those struggling to pay the tax already; however he came across a problem.

The House of Lords had been the most powerful part of parliament, they had the power to block any bills and laws coming form the House of Commons. They had recently blocked the Education Act. This had been tradition for the past 200 years allowing them to dismiss any bill, this was incredibly bias though, most bills were passed to benefit the poor and to charge the rich. This bill would easily pass the Commons but not the Lords, Asquith’s solution was to ask King Edward VII (who had the highest power in the country) to create peers.

In doing this the Liberals would be able to out vote the Conservative lords. The King agreed to this but he suddenly died in May 1910. This presented the Liberals with another step to over come. The next to the air was George V; his ambition was to get two parties to come to some kind of agreement without resorting to making new peers. A constitutional conference was held between June and November. The Conservatives offered to reform the composition of lords, but the liberals were determined to reduce the power of the constitution.

The Conservatives also tried insisted the lords should have the power to veto any change in the constitution, enabling them to block the home rule for Ireland. Asquith was under strong pressure from the Irish to reject the Conservatives’ proposal. George V finally agreed he would create enough new peers to pass the parliament bill as long as the Liberal’s one a general election fought on this issue held in December. The Election left the Liberals and Conservatives with exactly the same number of seats, 272 each.

However because the Liberals had a strong backing from Labour, who had 47 seats, and from the Irish Nationalists, who had 84 seats, the Liberals were able to rely on a working majority and would remain in government. This parliament act helped make the British constitution more democratic. They stopped the lord’s form controlling parliament and what happened to the country. For this reason alone I believe the Liberals were successful with the constitution crisis, however they would have not been able to do it alone, without the help of Labour and the Irish Nationalists the conservatives would have been in power.

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Dbq Ratifying the Constitution

D. B. Q. 4: Ratifying the Constitution The Constitution of the United States was written in 1787, yet there was a struggle for its ratification that went on until 1790. Members of Congress believed that the Articles of Confederation, the first government of the United States, needed to be altered while others did not want change. After the Revolutionary War, the people did not want a strong central government, because it reminded them too much of what they were trying to escape. Under the Articles, each state had their own laws, and the need for a new Constitution was desired by many.

This desired Constitution created a huge dispute and an argument between people who wanted things to stay the way they were and people who urged to change the Articles. The people who desired change in government were called Federalists. James Madison, Alexander Hamilton, John Jay, and Ben Franklin were all a part of the Federalists. The Federalists believed that the economy was in turmoil because of the Articles (Doc 1). Under the Articles each state had its own currency which created a problem for interstate trade. Another issue that the Federalists had was that the rich were not making money.

On August 1, 1786, George Washington wrote a letter addressed to John Jay stating that they “have errors to correct”. In saying this Washington agrees in the fact that the Articles needed to be revised. The Federalists believed that the government trusted the people with too many rights. The states were allowed to refuse the Federal government whenever they chose. The new country that was trying to establish themselves, weren’t united, but instead “thirteen sovereign, independent, disunited States” (Doc 3). The central government didn’t have enough power under the Articles.

The Federalists believed that even though they didn’t want to be ruled again like they were under England’s rule, that it was necessary to have a strong central government. Anti-federalists were the people who believed that the Articles were working perfectly fine and it would be unnecessary to change them. Two of the major leaders of this group were Patrick Henry and Thomas Jefferson, who was overseas during this time. The Anti-Federalists thought that under the Articles people had the rights that they rightfully deserved. Under the Articles, the poor people benefitted greatly.

During the process of trying to get the new Constitution ratified the Anti-Federalists felt that under this new government the rich had all of the power instead of the people (Doc 5). Under the Articles the states had the power to make laws and do whatever they pleased, and to some of the states the idea of changing to a government that the central government had all the power was absolutely absurd. Other people felt as if the new Constitution had no separation of powers. They felt as if the branches had too much power and there was nothing keeping one branch from becoming too powerful (Doc 2).

The Anti-Federalists did not want to be in the same kind of government they fought so hard to get away from. The Anti-Federalists were also frustrated with the fact that the new Constitution laid out all the rules, but did not list any rights the people had. So Federalists came up with the Bill of Rights as a way to get the Constitution ratified. The Bill Of Rights lead the Anti-Federalists to be less fearful of the new Constitution (Doc 6). This guaranteed that the people would still remain to have rights, but the strong central government that the country needed would be approved and put into motion.

The arguments over the ratification of the Constitution ultimately came to an agreement. The Federalists and Anti-Federalists came to many compromises during the process of getting the Constitution approved. The Federalists thought that the country needed a strong central government while the Anti-Federalist believed that the Articles were working okay. Eventually, both sides came to an agreement and ratified what the United States now knows as the Constitution, and over two-hundred years later the Constitution is still in effect.

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The Definition of Family in the Constitution

Article 41 of the Constitution recognises the Family “as the natural primary and fundamental unit group of Society”, and as a “moral institution possessing certain inalienable and imprescriptible rights” which are “antecedent and superior to all positive law”. The State guarantees to protect the Family in its constitution and authority “as the necessary basis of social order and as indispensable to the welfare of the Nation and the State”[1]. Article 41 of Bunreacht na hEireann contains the main provisions relating to the family. It is generally considered that Articles 41 and 42 were heavily influenced by Roman Catholic teaching.

They were clearly drafted with one family in mind, namely the family based on marriage. ”[2]. Since 1937 when the constitution was drafted there has been major social changes such as, changing attitudes to sexual behaviour, contraceptive use, social acceptance of pre marital relations, cohabitation and single parenthood, social acceptance of divorce, just to name a few. These social changes which would not have readily existed in 1937 have not been adapted to in the Constitution in Article 41/42 concerning the ”family”.

Simply put the definition of family in the constitution is old fashioned. I am of the opinion that an amendment to “The Family”- namely Article 41 is required. I base my argument on 3 main reasons 1) More types of family should be recognised, not just that of a marital family. 2) The definition of family should be changed to include expressed rights of a child incorporated into Article 41 and the rights of a child not just fall under that of ”the family” 3) The wording of the rights of the family to change to allow for more state intervention.

Though the “family” is not defined in the constitution the Supreme Court held that the family is based on marriage – State(Nicolaou) v An Bord Uchtala[3] : Walsh J – “the family referred to on [Article 41. 3. 1] is the family which founded on the institution of marriage, on which the family is founded on the institution of marriage and, in the context of the Article, marriage means valid marriage under the laws for the time being in force in the state”. Article 41. 3. [4] states “The State pledges itself to guard with special care the institution of marriage, on which the family is founded, and to protect against attack” . From this definition it appears that a non-marital family would not be protected by the State against attack. In my opinion this provision should be amended to conform to the social change that I have previously mentioned as a family in current times is no longer just a marital family. “ The law must, as far possible mirror contemporary civilization and as that changes so must the law.

If the law becomes too rigid and inflexible, then there is always the danger that it will conflict with the needs of the people, with all the unfortunate consequences to which conflict may arise……….. during the dynamic periods of History …….. for it becomes essential for the legal system to adjust itself to the novel conditions of social life”[5] As a general rule most rights and obligations flowing from family law legislation are confined to families based on marriage.

There are few contexts where non marital relationships are recognised such as domestic violence[6] and wrongful death[7]. The European Court of Human Rights have taken broader approach then Ireland and has been deemed to protect inter alia the family life of non-marital parents and their children. “It is likely that the failure to recognise the rights, and indeed the duties, of the members of non-marital families may constitute a breach of Art.

8 of the European Convention of Human rights, which requires that the State respect the family life of all persons……. iven that the convention is now part of domestic law it is only a matter of time before Irish Law is found to be in breach”[8] The European Court of Human Rights(ECHR) broader approach to the definition of a ”family” can be seen in Mouta v Portugal[9]. In this case the ECHR recognised a homosexual man and his child as a family which wouldn’t be recognised under the Irish Constitution. Da Silva was previously married and had a daughter in this relationship and divorced 3 years later. .The applicant (Da Silva) sought an order giving him parental responsibility for the child.

The Lisbon Family Affairs Court awarded Da Silva parental responsibility. His ex-wife appealed against the Family Affairs Court’s judgment to the Lisbon Court of Appeal, which reversed the lower court’s judgment and awarding parental responsibility to the ex-wife, with contact to the applicant. It was held by the ECHR that the judgment of the Court of Appeal, in so far as it set aside the judgment of the lower court, constituted an interference with the father’s right to respect for family life and attracted the application of Art 8 of the Convention.

Were this case to appear in an Irish Court De Souza would not have been awarded custody due to the the rigidness of the courts to move from strictly interpreting ”family” in the constitution . Secondly I will explore how 1)Article 41 acts as a shield against state intervention against matters concerning ”the family” and also 2)why I think ”the child” should be given expressed rights in the constitution contained in the definition of family. In my opinion I think that Article 41 acts as a shield against state intervention.

I think “a shield” is an effective way of describing the Article as a shield protects against attack but does not block all danger/damage, just like Article 41protects the ”family” but does not provide complete immunity. This article emphasises the rights of the family as a whole while not exploring individual rights such as the rights of the child. I think the words ”inalienable and imprescriptible”/rights superior to positive law” are too strong as it gives the State limited opportunity to intervene with matters concerning ”the family”.

When can the state intervene?. Murphy J gave his view on this question “where conduct of parents are such to constitute a virtual abdication of their responsibility or alternatively, the disastrous consequences of a particular parental decision are so immediate and inevitable as to demand intervention and perhaps call into question either the basic competence or devotion of the parents” A State intervention must be proportionate -breach of Article 41 must have justifiable circumstances. As I previously mentioned Article 41 does not provide complete protection.

This can be seen in People v T[10] where a father had been convicted of sexual offenses against his daughter. Casey made the point that while Article 41 “established that the family as a unit had it’s own special rights, other provisions make it clear that each member of that unit had his/her own constitutionally-guaranteed personal rights….. It follows from this that the common law rule can have no application in cases where one member of a family is alleged to have committed an offense against another”[11].

I have already given my opinion that i think the words ‘inalienable and imprescriptible” and ”above positive law” are too strong and limit the courts powers in intervening. One case where I think this is prevalent is is N v Health Service Executives[12] aka ”the baby Ann case”. At the time of A’s birth in July 2004 the applicants were unmarried and they decided to place A for adoption. The applicants married in Northern Ireland in January 2006, strengthening their legal position as they now formed a family under the constitution.

The High Court held that the child was in the lawful custody of Mr and Mrs D(the Adoptive parents) and that, accordingly, a conditional order for the inquiry under art 40 had to be discharged. The decision of the High Court was based on his conclusion that the applicants had failed in their duty towards their daughter and abandoned her and that there were compelling reasons why the child should not be returned to their custody. The decision was overturned by the Supreme Court.

I feel that the decision by the Supreme Court was inappropriate, it did not take into account the welfare of the child, Article 41 restricted the courts ability to award custody of the child to the adoptive parents, as the maternal parents and Baby Ann has formed a ”family” under the constitution. If the State had more powers to intervene and supersede Article 41 then the custody would probably have been given to the adoptive parents (which would have been the right decision from my point of view).

John Walters gave his view on the Supreme Courts decision “its hands tied by outmoded provisions of the Constitution, was prevented from doing the “decent” thing: leaving baby Ann with her prospective adoptive parents”[13]. Judge Catherine McGuiness, closing remarks in the case were interesting. She voiced criticism regarding the rights of the child in the constitution and also how she was reluctant to come to the decision to support the maternal parents claims. “ It would be disingenuous not to admit that I am one of the ‘quarters’ who have voiced criticism of the position of the child in the Constitution.

I did so publicly in the report on the Kilkenny Incest Inquiry in 1993. The present case must, however, be decided under the Constitution and the law as it now stands. With the reluctance and some regret I would allow this appeal. ”[14]. I think that the argument to give the child expressed rights under the constitution is intertwined with giving the State more scope on intervening in family cases. As it stands children’s rights are thought as secondary to the parents and this can be see in Crowley. [15] I think that there should be a change from the paternalistic approach, whereby the adults know best.

Were there to be an express provision outlining the right of the child there would gave been an alternative decision in the PKU test case[16]. The court acknowledged the right of the parents to refuse a both standard and important test for a new born child while ignoring the best interests of the child. The Council of Europe Recommendation 1289 (1996) point 8(i) on a European Strategy for children advised that there should be guarantees that children’s rights should be explicitly incorporated into constitutional text. [17]

To summarise I think Article 41 concerning the definition of family should be changed. It is outdated basing a family on marriage as in current times there are more then just marriage based families, there are a variety of situations which the normal person would regard as a ‘family’. The Constitutional Review Group stated that there is a “multiplicity of differing units which may be capable of being considered family”. [18] I think there should be an exhaustive list including the instances above where a member of the public would regard the situation as being a family.

Alternatively you could leave the definition of family open and state that “family” is not confined to that of just a family based on marriage. This would leave the judiciary to determine a family on a case by case basis which is similar to the ECHR approach. This would result in a large amount of uncertainty. I would favor the first option even though it would arise it’s own problems such as would being forced to become a legal family under the constitution infringe on personal rights?

And also how would you determine the length of time a family is together to qualify as co-habitant?. Either way I think the implied definition of family needs to be changed. To highlight the constant increase of different types of families and the need for reform, I have taken statistics from the last 3 census’ of the number of units formed by cohabiting couples (which are one ”family I think should be recognised) and formed a table, this furthermore indicates the need to incorporate the change in society into the constitution.

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Constitutions and by Laws of Ssg

Northside High School Science Club Constitution and By-Laws Article I: Purpose of the Northside High School Science Club The primary purpose of the NHS Science Club is to encourage scholastic effort, foster scientific literacy and interest in science. Article II: Membership Membership in the NHS Science Club is open to students presently enrolled in a science course or were enrolled in a science course the previous semester, has/had an average of 80 and has shown interest in science. Once a student becomes a member, he/she must participate as an active member of the club.

Failure to maintain at least an average of 80 each nine weeks will result in probation during which time the student cannot participate in club activities. If the student fails to improve the science course grade to an 80 average for the second consecutive grading period, the student will be dropped from the club membership roll. Activities in which the student must participate may include club meetings, Science Olympiad, Envirothon, other science competitions, and special projects. Article III: Dues Each member must pay a $20. 0 membership fee for dues by the first meeting of the school year. Article IV: Attendance Club members must report to club meetings on the designated days and must remain during the entire time period of the meeting. If a member is not eligible to attend or desires not to attend a meeting, he/she must attend the regular scheduled class for that period when held during the regular school day. A majority of the meetings will be held during nonschool hours for guest speakers, practice for competitions and/or special projects.

Failure of a club member to attend club meetings and participate in special projects may result in a student being ineligible for future club membership. Article V: Advisors The Science Club advisor(s) must be a science teacher. He/she must attend scheduled club meetings. The advisor(s) must show an interest for the betterment of the club. The advisors(s) must approve the agenda for each meeting. Article VI: Projects All club projects must be approved and voted on by a two-thirds majority vote.

The club will choose whether or not to have a fund-raising project. Article VII: Officers Section 1. Officers will be elected by secret ballot. Nominations will be made at the first meeting of the school year. The advisor(s) will tally the votes and announce the winning officers. Section 2. President The president of the club will be a junior or senior. He/she will preside over all meetings using order to conduct all procedures. It is the president’s responsibility to plan social activities for the club meetings. Section 3.

Vice President The vice president’s job will be to assist the president as needed, to help maintain order, and to preside over meetings in the president’s absence. Section 4. Secretary The secretary will be responsible for all club correspondences, keep accurate records of meetings and an accurate roll of members. Section 5. Treasurer The treasurer is to keep accurate records of money collected and spent. All money is to be turned into the advisor(s) so that it can be deposited into the club account. Section 6. The Executive Committee

The executive committee will be made up of the four officers listed above and the advisor(s). The committee will plan projects and activities for the club. Article VIII: Goal It is the goal of the Science Club to strive to promote excellence in scholastic achievement in the science courses offered at Northside High School. As well, the club members will strive to provide opportunities for students to further their interest in all fields of science and to educate the student body of Northside High School and the community about the preservation of the environment and its natural resources.

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First Amendment

The First Amendment is part of the Bill of Rights. The Bill of Rights is our rights as citizens living in the United States of America. In this paper I will look at three provisions to the First Amendment, highlighting one case for each provision. Included are one case to discuss freedom of speech, one case to discuss separation of church and state and one case to discuss freedom of association.

1.)Discuss at least one Supreme Court case of significance related to three of the provisions of the First Amendment. Case number 1: Cohen v. California, 403 U.S. 15 (1971), this was a United States Supreme Court case dealing with freedom of speech. The United States Supreme Court overturned a disturbing the peace conviction by a man who exited a courthouse wearing a jacket decorated with profanity. On April 26, 1968, Paul Robert Cohen was 19 at the time of his arrest outside a Los Angeles courthouse wearing a jacket decorated with profanity. His jacket had the words “[email protected]%k the Draft.” Cohen was arrested for maliciously and willfully disturbing the peace or quiet by any person or a neighborhood.

a.)Why did this case have to be heard and interpreted by the Supreme Court? Paul Robert Cohen was found guilty of disturbing the peace at a Los Angeles Courthouse. Cohen’s lawyers appealed and the conviction stood its ground in the California Court of Appeal. The California Supreme Court denied review, the United States Supreme Court granted to review and argue the case. The Court’s decision was in favor of Paul Robert Cohen by a vote of 5-4 and overturned the appellate court’s ruling. According to Justice John Marshall Harlan II “the state may not, consistently with the First and Fourteenth Amendments, make the simple public of this single four-letter expletive a criminal offense.” (Cohen v. California, docket #: 299, 1971).

b.)How do the Supreme Court decisions in each case continue to affect the rights of American Citizens today? Cohen v. California is a landmark case because this case removes from our government the right to censor speech and determine what actions of speech are appropriate for a civil society (Balter-Reitz, 2003). This case affects all of us today because it prevents local and federal government determine what is appropriate or over the line when we are expressing ourselves.

2.)Discuss at least one Supreme Court case of significance related to three of the provisions of the First Amendment. Case number 2: McCollum v. Board of Education, 333 U.S. 203 (1948), this was a United States Supreme Court case dealing with separation of church and state. This case was argued at the United States Supreme Court to the power of a state to use tax money to support public schools to provide religious instruction. Vashti McCollum an atheist objected to the religious classes being provided by the Champaign public school district. McCollum argued that the school district violated the First Amendment, the principle of separation of church and state.

a.)Why did this case have to be heard and interpreted by the Supreme Court? McCollum v. Board of Education, 333 U.S. 203 (1948) was first decided in the circuit court of Champaign County in favor of the school district. McCollum then appealed to the Illinois Supreme Court that held the lower court’s ruling. McCollum finally appealed to the United States Supreme Court that agreed to hear her case. The Courts decision was in favor or Vashti McCollum by a vote of 8-1ruling that the religious classes was unconstitutional. Justice Hugo Black stated that “To hold that a state cannot consistently with the First and Fourteenth Amendments utilize its public school system to aid any or all religious faiths or sects in the dissemination of their doctrines” (McCollum v. Board of Education, 333 U.S. 203, 1948).

b.)How do the Supreme Court decisions in each case continue to affect the rights of American Citizens today? This was a landmark case because it separated church from state. This case also provided a level platform for those who are attending a public school. In the McCollum case her son was being singled and made fun of by other students because he did not attend the religious classes. This case was beneficial for all of us today to attend a public school government funded and not have to attend religious classes against our will. As a result of this case school officials in Champaign Ill, decided to release the students one hour earlier known as “release time” to attend religious classes without supervision from teachers or school officials (Time Magazine, 1948)

3.)Discuss at least one Supreme Court case of significance related to three of the provisions of the First Amendment. Case number 3: Boy Scouts of America et al. v. Dale, 530 U.S. 640 (2000), this was a United States Supreme Court case dealing with freedom of association. James Dale an assistant scoutmaster for the Boy Scouts of America was expelled from scouting after the Boy Scouts of America read an article at a local newspaper that Dale indicated and quoted that he was gay.

a.)Why did this case have to be heard and interpreted by the Supreme Court? Boy Scouts of America et al. v. Dale, 530 U.S. 640 (2000), was first decided at a New Jersey Supreme Court which forced the Boy Scouts of America to readmit assistant Scoutmaster James Dale after learning that he is gay. The United States Supreme Court overturned the New Jersey Supreme Court decision and decided that forcing the Boy Scouts of America to readmit James Dale violated the rights of the Boy Scouts of America, specifically the freedom of association. The Freedom of Association allows a private organization to determine which person can be included into the organization (Boy Scouts of America et al. v. Dale, 530 U.S. 640, 2000.)

b.)How do the Supreme Court decisions in each case continue to affect the rights of American Citizens today? Affects of the U.S. Supreme Court’s decision on the case of Boy Scouts of America et al. v. Dale, 530 U.S. 640, (2000) is difficult to measure. It only has been 10 years since the decision but today we are experiencing other cases similar to one above. Cases of the military’s “don’t ask don’t tell” policy has recently been on the news as well states allowing or opposing gay marriages. I predict that the above case will be serving as a foundation for future decisions regarding Americans rights to freedom of association especially if they are gay.

4.)Evaluate the rights and responsibilities that the constitution provides you as an American Citizen. In the examination of the cases above, the Constitution provides me an American Citizen a safety net to argue situations when I felt that my constitution is being violated. I can believe that I can appeal to a higher court and all the way to the United States Supreme Court to make a final decision. In conclusion, this was a great paper to write because as an American Citizen I have neglected to fully understand the right given to me as a citizen. This paper made me realize how much protection I have as a citizen. After examining the three United States Supreme Court cases I am glad that there is a higher court and whether the decision is pro or con, I can rest assure that a fair and just decision will be made.

References

http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=Cohen_v_CA

http://www.time.com/time/magazine/article/0,9171,804516,00.html

caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=99-699

caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=333&invol=203

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State & Center Relation in India

An essay on the divisions of powers between the Union and the States . Because of its enormous size and economic, social, religious, cultural, linguistic and ethnic diversities our leaders thought unfit to give India a federal constitution. Our constitution provides for decentralization of political author¬ity. The powers of the Centre and the States have been divided carefully in our constitution. In addition, Part XI of the Constitution (Art. 245 to 255) deals exclusively with the relations between the Union and States.

The effort of the Constitution makers has been to grant autonomy to the States on one hand and to maintain unity and integrity of the vast country on the other hand by keeping co-coordinating authority with the Union, ‘Unity in Diversity’ is a unique feature, which has been kept in view by Constitution makers. The Constitution clearly enumerates the areas of control under the centre and the states in three lists. List I consists of subject under the Control of Union, while List II contains areas of Control of the States. Yet there is a third list known as concurrent list.

Associated essay: A.K. Kraipak v. Union of India Summary

The Union and States have concurrent powers on the subjects contained in this list. These lists are contained in seventh schedule of our Constitution. By and large, defense of the country, foreign affairs, currency, railways, shipping and navigation etc. are the subjects of the Union List, while maintenance of law and order, prisons, police force, local govern¬ments, public health etc. are subjects of State List. The subjects like criminal law and procedure, marriage and divorce, lunacy, forests, economic and social planning etc. are in the concurrent list.

The Union Parliament can make laws for the whole or any part of India in regard to subjects contained in Union List while the states have exclusive power to make laws for the state as a whole or any part there of will respect to any of the matters listed in the State List. State Legislatures can also make laws on the subjects contained in the concurrent list. The residuary powers are vested in the centre. Parliament can, however, legislate with respect to a matter in State List if the subject is declared to be of national importance by a resolution of Rajya Sabha or when a proclamation of emergency is in operation.

The centre has been given some administrative powers over the states for effective co-ordination. It is the responsibility of the States to ensure compli¬ance of Union laws within their territory. The centre can give directions to the states for die purpose. The Union can also give directions to a state regarding construction and maintenance of means of communication of national or military importance and for the protection of the railways within the state. The centre can deploy any grave situation of law and order in the state.

The power to settle disputes between states relating to distribution of waters of inter-state rivers lies with the Union. The centre can set up inter-state councils, if it feels necessary. For this administrative co-ordination, there is a provision of All-India Services in the Constitution. These services are common to the Centre and States. The recruitment and other service matters are controlled by the centre, while they continue to service their states. The centre, by rotation, utilizes their services on deputation for a specified period.

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Amendments

There are Ten Amendments ratified to the United States Constitution. These amendments are called and known as the “Bill of Rights”. The first amendment in the Bill of Rights talks about how the freedom of establish of religion, freedom of press, freedom of assembly right to petition, freedom of speech. They all have to do with people talking free in the United States and doing what they can with this amendment.

The first part talks about the freedom of religion. In these case the freedom of religion lets you be in any kind of religion you want to be in the United States. In the contrary some other countries you could not be any different from others because you can be considered an outsider or an enemy to the people of that country. In addition, freedom of religion is known to be a human right.

The first amendment rights to freedom of the press guarantees me the right to read any news paper, read any magazine, or right about any story, or watch any movie without having any fear that my government would censor my right to do these things. For example, if I want to release a video on the internet containing any nudity or foul language, I have the right to do so without any censorship. The government can only regulate by putting some sort of warning label on it but can not prohibit me from doing so.

Also, the freedom to assemble allows us the people to gather up for harmonious and legal purposes. Implicit within this right is the right to association and belief. In other words this amendment protects us from what we believe. For example, people can organize a parade for immigration rights, and the government would be ok with it because it falls down in legal purposes to assemble. Furthermore, people can also gather up to celebrate a “Quinsenera” without any problems because this would fall down under the peacefully assemble. Now the government may also prohibit people from associating in groups that engage and promote illegal activities.

The right to petition the government for justice of grievances guarantees people the right to ask the government to provide a second chance of relief to change something wrong to a right. This petition is made my court or by any other governmental action. For example, a person gets a ticket for speeding , but he or she is more than sure that he wasn’t. That person is going to try to appeal that ticket by going to court and standing in front of a judge to try to dismiss that ticket.

The right to freedom of speech allows an individual to express themselves without interference or constraint by the government. This amendment gives us the right to express what we feel. We have the symbolic and the uttered way on expressing ourselves. We don’t necessarily have to speak in order to show our emotions; we could use the symbolic method to do so. We can express it by wearing clothing that symbolizes what we feel. In the other hand we also have the most common way, which is uttered. Most people express themselves by making a speech. However, our right is also limited because the government prohibits some speech that may cause a breach of peace or may cause violence. For example, someone might make a judgment that they hate someone. But just because they hate them doesn’t mean they have to kill them.

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Articles of Confederation

After many long and hard years of constant fighting, turmoil, and endless bloodshed, the thirteen colonies finally separated itself from England. The country of America now had a new problem at hand, setting up an effective government that would be much better than the oppressive rule of the British. The first step, of course, is setting up a constitution. The Articles of Confederation, ratified in 1781, was the first constitution of America. The Articles of Confederation was strong in that it gave the central government the powers to conduct foreign affairs, regulate western lands, and set up departments.

This constitution was weak in that the central government was unable to impose taxes, control international trade, or enforce laws, and it was difficult to pass any law. Even though the Articles of Confederation had its strengths and weaknesses, its weaknesses outweighed its strengths rendering the document useless in governing the new country. The Articles of Confederation kept the central government weak due to the colonists’ fear of a tyrannical central government. Congress did not have the power to regulate international of interstate trade.

This was a significant weakness. International trade is a crucial part to any country’s economy as it is a way to earn money. Congress’s inability to regulate international trade impedes it to raise money, crippling the whole country. Levying taxes was another power deprived from Congress. Not having the ability to tax its citizens is a major disadvantage to any government. Taxing is a form of raising money for several services. These weaknesses economically hampered the country. Also, Congress could not enforce any laws. It could only suggest and appeal laws.

By not being able to enforce laws, there is no central authority whatsoever. Therefore, it’s almost as if each state was an independent country. This was evident during Shay’s Rebellion. This was a rebellion of poor people in Massachusetts. The central government was unable to step in due to its lack of power. Lastly, it was virtually impossible for Congress to pass any new laws. A vote of two thirds of the states was required to pass any law. This was nearly impossible due to the fact that there were only thirteen states. The Articles of Confederation set up an extremely weak central government.

The central government was almost useless due to its lack of powers. The federal government did have some powers under the Articles of Confederation and were able to make some wise decisions. Congress had the ability to establish various departments. Departments of War, Treasury, Marine, and Foreign Affairs were established. This gives the government more organization. The departments established would eventually give rise to today’s cabinet departments. The federal government’s ability to conduct foreign affairs allowed it to sign the Treaty of Paris of 1783, which gave America more land.

This treaty allowed America to expand its boundaries to the Mississippi River. Obviously, this was a great land gain that favored the country greatly. Congress then was able to develop an effective plan for surveying and selling the land it got from the treaty. Congress passes the Land and Northwest Ordinances which split up the land. This was another good decision Congress was able to make under the Articles of Confederation. Congress did have some powers which allowed it to make wise decisions. The Articles of Confederation was the very first constitution that ruled the United States.

It was strongly influenced by the time spent by the colonies under British rule. Because the crown had been so tyrannical, the new country did not want another abusive central government. They looked to avoid this by hardly giving the federal government any power. Most of the power was given to the states. The document had its strengths and weaknesses, but overall, it was a failure. The weaknesses outweighed its little strengths. The Americans learned from this mistake and abandoned this constitution. They began work on a new and improved constitution.

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Arizona Constitution

The American constitution plays a crucial role in delegating of laws in the country and it governs all citizens. On the other hand, a state’s constitution serves a similar purpose but only under the state’s jurisdiction. This constitution is the basis for other state laws including those of other sections of the state government. This implies that all the laws outlined by this constitution affect its organization, operations and maintenance. Actions carried out outside the constitutional boundaries are considered to be illegal.

As such, the Arizona constitution has endeavored to effectively guide the State of Arizona by impacting on the state’s counties, schools, municipalities and corporations. This paper will discuss these distinct effects. In essence, the State of Arizona constitution sets boundaries for all laws within the state. In Article 12 of the Arizona constitution, the issue of counties has been clearly addressed. This article is detailed with guidelines regarding various aspects of counties.

The county is hereby defined and its fundamental roles displayed. For instance in section 3 of this article, specifications are made on county officers, their election and term of office. A county is depicted to be inclusive of such officers like the sheriff, county attorney, treasurer, and superintendent of schools, a recorder and supervisors (Arizona State Legislature, 2007). These officers occupy these positions for a period of four years and this predicts when they cease to serve the people of Arizona.

The article also specifies on the election of these officers, their qualifications, duties and powers. This ensures the effective use of the law when there are individuals or groups of people embarked on using corrupt and selfish means. Furthermore, citizens within a particular county are empowered to elect leaders of their choice and also in the enactment of county charters. Ideally, when the county’s citizens implore for the collection of taxes it must be done under the provision of the county charters.

This protects citizens from unfair imposition of taxes. Municipalities are also subject to the jurisdiction of the Arizona constitution. As outlined by McClory (2001), Article 13 of the said constitutions dictates the conditions for the creation of municipalities. Section 1 of the article notes that the municipalities are not created by any special laws but by the existing legislature. The constitution mandates the minimal population for any city’s or town’s elevation into a municipality as 3,500 residents.

Only then can these residents elect a board of freeholders which further develops a charter for the creation of the municipality. Again, the constitution explicitly leaves the role of enacting such crucial decisions to the citizens. Only after they have voted and a majority of the citizens having voted in favor of the charter is it passed. The Arizona constitution also gives municipalities the right to engage in business or entrepreneurial activities as stated in Article 13, section 5.

This positively impacts on the municipality especially since such enterprises like garbage collection and waste disposal for all households can work positively in the municipal’s development. Apart from Municipalities, the Arizona constitution has also made provisions for other corporations. In Arizona State Legislature (2007) Article 14, Section 1 outlines a substantial definition of corporations to include associations and companies which possess powers and privileges not possessed by sole individuals or partnerships.

In addition, these entities are individualized and empowered to sue others and be sued in return. This makes it simple for citizens who have qualms with such corporations to seek the intervention of the law since they are treated as such entities under the law. As constitution directs the procedures and requirements for the formation of corporations, it similarly warns that failure to incorporate these conditions will make corporations non viable and their claims inadmissible in courts. Corporations are also limited by this article in their capacity to fund political actions and endeavors.

Article 15 also addresses the same issue of corporations only its concern is on public service commissions. It is in this regard that this Article establishes the Arizona Corporation Commission (Arizona Corporation Commission, 2010). As entities formed with the sole purpose of offering necessary services to citizens, the commissions perform the role of regulating and providing public utilities. The constitution also indicates that these corporations are under state regulation which aids in creating accountability and effective operations in these bodies.

Finally, public education in Arizona is also another area which is strictly controlled by the Arizona constitution. This is inclusive of all types of schools be it elementary, middle or high schools. Included in this lot are also colleges and universities. In Article 11, these schools’ conduct and supervision is delegated to a board of education, superintendent of public instruction, among other governing bodies as per the law. The constitution has served citizens with low income earnings as it provides for the establishment of free schools.

Furthermore, it also facilitates the acquisition of permanent state school funds which in Article 11, Section 8, should be derived from the sale of school lands, from estate shares and any bequests made to the state for educational purposes (Arizona State Legislature, 2010). Gifford and Hunter (2000) emphasize the integral role of constitutional provisions for school funding on the effectiveness of the public education system. Its impeccable endeavor to safeguard the wellbeing of the visually and hearing impaired has also ensured their appropriate treatment in their search for education.

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Debate for the Constitution

When the U. S. constitution was made it there was a long debate over the ratification of the constitution. There were two sides in the debate, the Federalists, who were supporter of the new constitution, and were better, organized than their opponents, and the Federalists had the support of the most respected men in America, George Washington, and Benjamin Franklin. The other side of the debate was the Antifederalists, who opposed ratification; although they weren’t as organized as the Federalists they did have some dedicated supporters.

One major argument used by the supporters’ side in the debates over the ratification of the U. S. constitution is that there would be disorder without a strong central government. By 1787, most people were not happy with the articles of confederation. The farmers came to be debtors: and revolts like Shays’ rebellion where happening. The Federalists argued that without a strong central government, more rebellions like Shays’ rebellion would occur.

So they looked to the constitution to create a national government capable of maintaining order. According to document 1, in which the Massachusetts sentinel wrote that the United States needed to adopt the constitution to make a more efficient federal government, to help the farmers, and protect the American name and character. Also according to document 3, in which a letter written by George Washington to John Jay, where Washington agreed with Jay that the articles of confederation had to be corrected.

Also Washington suggested that America needed a stronger, national government. In the end, the Federalists won but not without strong debates and arguments from the Antifederalists. One major argument used by the supporters’ side in the debates over the ratification of the U. S. Constitution is that there would be disorder without a strong central government. The documents supporting my answer were document 1, and document 3.

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Australian Constitution – Essay

– Like the American political system, the Australian system is divided into two levels (federal and local), For instance the FED cannot tell the local government how to make their local laws and regulate their government and the local can’t do that to the FED. – The Australian Government is different from the United States though in that it has a Parliament like the British.

The government is made up of the Prime Minister and his cabinet and at any time the Parliament (which is just like the American Congress) can remove the Government or force it to call an in which neither level can change the power of the other nor make laws that the other has rights over. election. – Also the Australian Constitution does not say that a politician’s term has to be fixed like an American politician’s does. For instance the President will without a doubt serve a full four years baring impeachment or assignation, but in Australia Governor-General or Prime Minister can be kicked out at anytime – The U.

S. Constitution clearly describes the separation of powers. The members of the executive branch cannot sit in Congress and so forth, but in the Australian Government has what they call an independent judiciary system where the government and parliament are not separated. The ministers can be members of parliament and the Prime Minister can dissolve parliament if he so chooses. – Like the U. S. the Australian Constitution is written down and is entrenched and very hard to change.

Their constitution does most everything the American one does including separation of powers, division and powers of the different branches of government, has a form of supremacy clause which says commonwealth law is supreme over state law, and the last chapter deals with amending or changing the constitution. – Where the U. S. has a President who is head of the executive branch, the Australians have a Queen and her representative the Governor-General, who in many ways is like a president in that he is the Comand in Chief of the military.

The Governor-General can however dissolve both houses of Parliament if they are deadlocked and he can appoint sitting time for the Parliament. As discussed earlier the Australians like the British have a Prime Minister. – Like the American Constitution the Australian one has a preamble but the constitution itself is divided into chapters, parts, and sections that deal with each specific form of government with the first being Parliament. The preamble is divided into parts where the rest of the constitution is in chapters with sections within each chapter. Overall the Australian Constitution is very much like ours in that it has to deal with the same problems that we do. It has sections that deal with race, equality, elections, and many other things. It seems that while the Australians seem to be more British in their political set up, they are in fact very much like us as well. While the country is trying to decide whether to be more like a monarchy as always or change into somewhat of a republic, their constitution remains unchanging and the Supreme Law of the Land.

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How Accurate Is It to Describe the Us Constitution as Too Rigid?

How accurate is it to describe the US Constitution as too rigid and difficult to change? The USA has a written codified constitution and as a result, it may be described as too rigid and difficult to change. The UK in contrast, has an unwritten constitution in the sense that it is not contained in one single document so it lacks a formal constitution but is made up of a variety of different sources along with long-standing traditions. This has led to some saying it is too flexible and easy to change.

While it may be argued, that the US constitution is too rigid and too difficult to change and this is highlighted through the lack of new amendments, I do not feel that this is a bad thing, it was desire of the Founding Fathers to be this way in order to ensure long-term political stability. In order to amend the constitution the Founding Fathers stated that Congress must call a national convention at the request of two thirds of the state legislatures or there must be a two-thirds supermajority in favour of the amendment of both houses in Congress, the first has never been used.

For a proposal to be ratified the Founding Fathers specified that there should never be another supermajority in three-quarters of the state legislatures for this amendment to be added to the constitution. The relatively inflexible nature of the US constitution is revealed through the number of amendments that have been made. Since the bill of rights, which was the inclusion of ten rights to the constitution, there have been only 17 amendments made.

Even two of these cancel each other out, the 18th and 21st regarding to the prohibition of alcohol. This could be argued this is appropriate rigidity, some people would argue that it prevents the USA from adapting to changes in the national culture and situations. Many people state the ‘right to bear arms’ as the principle example highlighting the nation’s failure to set stricter gun laws. However, the nature of the constitutional change in the USA requires that the majority of people to put pressure onto Congress to implement necessary changes.

The fact that this has not happened in some ways shows that the constitution is fulfilling its role and preventing fundamental changes based on minority views, just as it was designed to do. While the limited number of amendments presents the USA constitution as being highly flexible, it has been kept up to date through judicial interpretation. The founding fathers granted the judiciary the power to interpret the document and this has allowed the rules of the constitution to be kept up to date. It has been flexible in the sense it can evolve along with the changes in society.

In this role, the judiciary has been willing to interpret the words in the light of modern conditions and ignore precedent. It should be noted that when the Judiciary is mainly Republican, they are more likely to conserve the constitution in its present state, whereas Democrats are likely to be more willing to add and interoperate the constitution more freely. The constitution was intended to be a full set of fundamental principles for the ‘new nation state’. If they are such fundamental principles, then it possibly could be argued that it should in fact be entrenched and difficult to change.

In the USA, constitutional law is above that of ordinary statute law where there is conflict between the two. In contrast, the UK does not have constitutional law. ‘Constitutional changes’ are implemented in exactly the same manner as statute law, by a simple majority in the sovereign parliament, such as the Devolution of Scotland, however, in America any change in power would need constitutional amendment, and as I have pointed out this is a difficult process, however though not many amendments have been enacted, a few have showing it does happen time to time.

The founding fathers set in place the rigidity of the constitution, giving the judiciary, the ability in making constitution to be flexible in terms of its interpretation, thus allowing it to keep it up to date. It has stood the test of time and has maintained political stability

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Constitutional Law and European Integration

There are few cases that rival Factortame in being concurrently substantively clear and decisive, and perplexing as to its full impact. The scope of the change to the UK constitution that has been instigated by it and other European Court of Justice decisions has been conceptualised as ranging from a ‘legal evolution’ to ‘revolution’. Although some theories are more convincing than others, each faces its own weaknesses.

However, notwithstanding the conclusion of this particular speculative debate, the processes of European integration has undoubtedly quickened the pace at which UK Parliament and courts as part of a globalised world have had to squarely confront these constitutional changes, especially the departure from Parliament’s stronghold over the constitution. A Diceyan view of the UK constitution is no longer compatible with the current relationship between UK and EU law.

It was decided in Factortame and confirmed in Equal Opportunities Commission, that the implications of the European Communities Act 1972 s. 2(4) is that EU law has supremacy in the case of clashes between EU and national laws. Within the orthodox view that Parliament is absolutely sovereign, inconsistencies between Acts of Parliament are to be dealt with by applying the doctrine of explicit or implied repeal to give effect to the later Act which is simply another illustration of how no Parliament can bind its successors.

It would never have been open to national courts to declare provisions within primary statute incompatible with EC law either temporarily or permanently as it is today. However, so long as UK remains a part of the EU, EU law will prevail when inconsistencies arise and any derogation from this position will have to be done expressly and unequivocally. Therefore, even if the current position of Parliamentary sovereignty cannot clearly be defined, Factortame and EOC alone emphasise the unworkability of a Diceyan view of Parliamentary sovereignty in an European context.

A radical but yet convincing argument that conceptualises the constitutional implications suggests that, EU law is able to place a substantive limit on Parliament’s law making authority on overlapping areas because being a member state has partially changed the rule of recognition of Parliamentary sovereignty. Although this necessitates presupposing Parliamentary sovereignty is a legal principle, not a purely political one, it seems justified because instead of accepting Parliament to be sovereign merely by its existence, it allows for a justification based on normative rguments. This is important considering that the UK is a modern democracy and intrinsically different to the state it was in when the doctrine of Parliamentary sovereignty was originally developed. Being a legal phenomenon, the scope of Parliamentary sovereignty evolves through the judgments of the court which provides a more balanced and legitimate decision than considering just a political aspect because the political realities are still considered but are weighted against other principles such as the rule of obedience to statutes.

Furthermore, courts are gradually developing the idea that the authority of Parliament to make law is something that is subject to, and therefore controllable by constitutional law. For example, in the domestic case of Anisminic, the scope of Parliament’s authority to confer on public authorities powers which are not subject to judicial review was sharply limited. Thus, the effect of ECJ decisions on the constitution has been to develop it to a stage where Parliament is no longer sovereign at times when, and only when, inconsistencies between EU and national law occur within a field where both laws operate.

On the other hand, Sir William Wade would argue that ‘constitutional revolution’ rather than a mere evolution has resulted. However, this argument is not only at odds with Lord Bridge’s judgement but lacks plausibility in itself. He explains that the courts have acted unconstitutionally and shifted their allegiance because Parliamentary sovereignty being a ‘rule of recognition’and a solely political norm, is a constitutional fixture which may only be ‘diminished’ as a matter of practical politics.

There is a real difficulty in accepting this because it would suggest judicial whim may reverse a commitment that was reached democratic consensus among all branches of government and wider society through public referendum. This formidable weakness of Sir William Wade’s argument supports viewing Parliamentary sovereignty as, at least partly, a legal concept. Although the theory that it is possible for the EU to place substantive limits to Parliamentary sovereignty accommodates the ‘voluntary’ contractual argument and ‘functional requirement of EU’ arguments that Lord Bridge presents, it is not without limitations either.

It fits well with Lord Bridge’s alternative reasonings because they suggest that Parliament does have the power to limit its own powers and that the present conflict should be tackled on principled bases. This is important because legal phenomenon arise out of case law and albeit sparse, his judgment was the only one to address the topic. However, the persuasiveness of this argument is reduced by the fact that it simply leads us to another equally difficult question of what legal means set the width of its powers.

The judges themselves seem to be in disagreement amongst each other about this as Lord Hope says ‘measures enacted by Parliament’ itself whereas Laws LJ says the unwritten constitution as interpreted by the judges which seems legitimate but in practical terms, leaves everything just as uncertain. So far only the implications of ECJ case law has been discussed but there are other elements to European integration such as the doctrine of direct effect and the European Union Act 2011 which have affected the development of the UK constitution.

These developments suggest that the “new view” is the most plausible representation of Parliamentary sovereignty today because referendum locks and the possibility for individuals to present a case in national courts on law derived from sources other than Parliament present limitations on Parliamentary sovereignty but not in the substantive sense discussed above. Proponents of the “new view” view that ultimate sovereignty remains with Parliament but it may have to conform to certain manner and form limitations.

The appealing factor of this model is that it also accommodates for the limitations that Human Rights Act proposes on Parliamentary legal authority as well. Yet it is problematic in that the EU has explicitly stated in s2 of the ECA that on at least an EU level, Union law is regarded as supreme and this theory fails to encompass this dimension of the relationship between domestic and EU law. Most importantly, it accentuates how the increasingly multi-layered nature of the constitution must be taken into account in the broader debate.

The holding of a point of absolute power faces pressure from outside as well as inside the nation. When the broader question of whether we should be edging away from political and towards a more legal constitution is considered in light of the multi-tiered constitutionalism arising from the Parliamentary Acts of 1911 & 1949, Human Rights Act, Devolution as well as EU membership, it would seem that to maintain a wholly political view of Parliamentary sovereignty in any context would be to deny reality.

However, anything more exact requires us to assess what balance between adaptability and elasticity from maintaining a political constitution, and protected rights and principles from a legal constitution will provide the checks and balances necessary in dealing with the legal and political challenges of today. Due to declining public reputation of Parliament and diminishing respect for political process generally, as well as the aim of Parliamentary sovereignty having originally been to secure the broadest possible basis for ensuring democracy and legitimacy, we may not have to be so uneasy about adopting a more legal constitution.

The UK constitution must embrace the emphasis it has always placed on a dynamic experience and once again, like with the case of devolution, make a smooth transition before political repercussions manifest themselves. ——————————————– [ 1 ]. R v Secretary of State for Transport ex parte Factortame Ltd [1990] ECR I-2433 [ 2 ]. Paul Craig, ‘Britain in the European Union’ in The Changing Constitution (7th ed, 2011) pg120 [ 3 ]. HWR Wade, ‘Sovereignty- Revolution or Evolution? ’ [1996] 112 LQR 568 [ 4 ].

R v Secretary of State for Employment ex parte Equal Opportunities Commission [1995] 1 AC 1 [ 5 ]. HWR Wade, ‘The Basis of Legal Sovereignty’ [1955] CLJ 174 [ 6 ]. Paul Craig, pg121 [ 7 ]. 17th century –Glorious Revolution, Bill of Rights [ 8 ]. TRS Allan, ‘Parliamentary Sovereignty: Law, Politics, and Revolution’ [1997] 113 LQR 447 [ 9 ]. Mark Elliott and Robert Thomas, ‘Public Law’ (2011, Oxford) pg334 [ 10 ]. Anisminic v Foreign Compensation Commission [1969] 2 AC 147 [ 11 ]. Wade, ‘Sovereignty- Revolution or Evolution? ’ [ 12 ]. HLA Hart, ‘The Concept of Law’ (1996, Claredon Press) [ 13 ].

Wade, ‘Sovereignty- Revolution or Evolution? ’ [ 14 ]. UK European Communities membership referendum 1975 [ 15 ]. Lord Bridge in Factortame [ 16 ]. Paul Craig ‘Britain in the European Union’ in Jowell and Oliver (eds) TheChanging Constitution (7th edn, Oxford, 2007) pg 121 [ 17 ]. Jackson v Attorney-General [2005] UKHL 56 [ 18 ]. Thoburn v Sunderland City Council [2002] EWHC 195 [ 19 ]. Sir I. Jennings, The Law and the Constitution (1959) ch. 4 [ 20 ]. Jonathan Sumption ‘Judicial and Political Decision-making: The Uncertain Boundary’ [2011] Judicial Review 301

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The Constitution of Malaysia

Malaysia is known for its richness of multicultural and multi-racial country which is spread between Peninsular Malaysia, Sabah and Sarawak. Despite being one huge political unit, it has different set of rules and law to comply with. Malaysia law can be classified into various sources, mainly are written law, unwritten law and Muslim law. Written law comprises The Federal Constitution which is the supreme law of the land and State Constitution, a range of constitutions regulating the governments of thirteen states in Malaysia.

Second written law is the Legislation law which is endorsed by Parliament and Legislative Assemblies at the federal and state level respectively. Final source of written law is the Subsidiary legislation as states in the Interpretation Act ‘any proclamation, rule, regulation, order, notification, by-law or other instrument made under any Ordinance, Enactment or other lawful authority and having legislative effect’. Malaysia has huge amount of subsidiary legislation.

Subsidiary legislation is referred to law made through powers delegated by the legislature mainly Ministers and local authorities. Only Subsidiary legislation made in a proclamation of emergency under Article 150 of the Federal Constitution is accepted , other breaching of either a parent Act or the Constitution is voided. Unwritten law under the Malaysian law is the law which is not written or found in Federal and State Constitutions. It is also not endorsed by the Parliament or the State Assemblies.

Unwritten law comprises of Judicial decisions of the superior courts Principles of English Law and Customs law. Judicial decisions using the systematical method called `doctrine of binding judicial precedent` at the High Court, Court of Appeal and the Federal Court followed by Supreme Court can still be found in Malaysian law. Nevertheless the decisions made by Federal Court and Judicial Committee of the Privy Council are still binding on the present court. Binding or persuasive is a process of adjudication, this is after argument and before the judge reaches the conclusion.

The judge will formulate and apply a legal principle in accordance with certain rules to form a guide for future. The judge will provide reason for reaching a decision or the legal principles behind the decision; this may bind other similar disputes in future. Binding precedents depends on the court’s position in the hierarchy of the courts. These are binding until they are reversed or overruled, where else persuasive precedents are those which are not binding authorities. Another important unwritten law is the Principles of English Law.

It consists of Common Law and Equity. The common Law is the body of rules developed by the old common law courts of England which no longer exist. It is established on customs common throughout England. On the other hand, Equity is the body of incomplete rules developed as a supplement to Common Law to correct defects and to reduce the harshness. Even though English Law forms part of the Malaysian law, the facts and rules stated are only part of the entire law of English common law and rules of Equity.

Principles of English Common Law and rules of Equity received and applied in Malaysia Legal System is by virtue of the Civil Law Act 1956 (Revised01972) . Under Section 3(1) of the Civil Law Act, 1995 states that in Peninsular Malaysia, the courts shall apply the common law of England and the rules of equity as administrated in England on 7th April, 1956. As for Sabah and Sarawak, the courts shall apply the common law of England and the rules of equity, together with statutes of general application, as administrated or in force in England on 1st December 1951 and 12 December 1949 respectively.

Application of common law of England is subjected to two limitations; firstly Local law takes priority over common law. Common Law is applied only in the absence of local statues. It is only meant to fill up gaps in the legal system in Malaysia. Secondly, part of common law which suits the local circumstances is applied. Common Law was initially introduced to the Straits Settlements through Royal Charters of Justice which was then extended to the Malay states through administrative arrangements. Finally the third unwritten law of Malaysian law is the Customary law.

Malaysia is known as a multi-religious country, the multiracial local population of Malaysia is also a source of law which has been accepted by the Malaysian courts. Mostly family law limits, namely marriage, divorce and inheritance are given legal force by the courts of Malaysia. In peninsular Malaysia, `Adat` applies to Malays, there are two main diversities of Malay customary, the adat pepatih and adat temenggong. Adat pepatih is mainly known for the matrilineal system where else the adat temenggong is a patrilineal system of law.

As for the Hindu and Chinese, prior to the enforcement of the Law Reform Hindu and Chinese customary law is applied to Hindu and Chinese respectively. The Law Reform includes abolishing polygamous marriages, since then, Chinese and Hindu customs have become minimal to almost no effect as a source of law in Malaysia. In Sabah and Sarawak, native customary laws apply in land dealing over native customary lands and family matters where natives subject themselves to native customary laws. Other indigenous people of Malaysia apart from Sabah and Sarawak are the aborigines.

There is an aboriginal customary law for the aboriginal people under the law of Malaysia. In contrast to the source of law discussed previously, Muslim law or Islamic law continues to grow in importance as another source of law just like the written and unwritten law as part of Malaysian law. Government policies of absorbing Islamic values in administration by introducing Islamic banking and Islamic insurance where Muslim law and Islamic principles are applicable is part of the renaissance of Islam in Malaysia.

Also the Federal Constitution has provided that State has the power to administer Muslim Law. The head of the Muslim religion in State is the Sultan. Muslim law is applied only to Muslims and the courts which enforce Muslim law are the Syariah Courts. Malaysian Islamic law is of the Shafii school jurisprudence, as modified by Malay adat, which was discussed under customary law, Malay adat law. This Islamic law falls into two main categories; the primary and secondary sources. Primary sources are Qur’an which is the Word of Allah and Sunnah is rules deducted from the traditions.

The secondary sources are more to the means of discovering the law rather than source. These sources are Ijma which is consensus of jurists of any particular era on a juridical rule and Qiyas which are the deductions from reasoning by ijtihad or analogy. Initially Islamic law was not included in the definition of law; this was even after the independence of the Federation of Malaya. Federal Constitution was declared as the supreme law . Before amendment in 1988, Article 121 Clause (1A) Syariah courts were excluded.

However, upon recommendation from Alliance Party, a provision was added to the original draft of Reid Constitution Commission where Article 3 of Federal Constitution declares that ‘Islam is the religion of the Federation’. Article 3 appeared with necessary qualification that ‘other religions may be practiced in peace and harmony in any part of the Federation’. However there are clauses to ensure non-Muslim’s civil rights are also not affected. At any official functions, Islamic way of prayers is being offered.

Islam being the official religion of the federation has two main consequences, firstly, the government (federal or state) may lawfully establish or maintain, or assist in establishing or maintaining, Islamic institution, or provide or assist in providing instruction in Islam, and incur the necessary expenditure for these purpose. Secondly, through annual Supply Acts and Enactments, may spend money on the administration of Islamic law. Also in some of the cases for marriages where a non-Muslim is involved, Islamic law takes precedence over the common law.

The religion of a child from previous marriage is determined by the parents of the child , in the case of where the consent is not given the minor will remain in the religion of the parent at the time of marriage . Furthermore polygamy marriages are allowed with judicial permission dependent upon application and court hearing should be with the existence of wife or wives. Judicial permission is requested only upon permission granted for marriages by the existing wife or wives. As Muslim Law is one of the main sources of law in the county, Malaysia became a member of Organisation of the Islamic Conference (OIC) when it was established in 1969.

OIC is a major organization of Islamic States that voices and coherent Muslim opinion on issues which are affecting the Islamic States. Other associations where Malaysia is involved will be ASEAN where Malaysia was one of the first five countries to establish ASEAN in 1967. It was established to work together amongst the members of the association to speedup the economic growth, social progress as well as cultural development jointly to strengthen and prosperous with peaceful in amongst Southeast Asian Nations.

Also to support regional peace and stability for justice and the rule of law in relationship amongst the member’s countries, making sure it adhere to the principles of United Nations Charter. ASEAN also provides assistance amongst the members in form of training and research facilities in the educational, professional, technical and administrative spheres. Other Malaysian involvement in reference to Asia-Pacific concerning economic growth is APEC which aims to support sustainable economic growth and prosperity in the Asia-Pacific region. This is done by multiple different encouragement and enhancements.

Apart from regional involvement, Malaysia does have collaboration with particular country which may not be part of ASEAN or APEC to jointly enhance for the benefits of both countries. Malaysia has jointly signed agreement to work together in multiple areas with many other countries. Malaysia has been involved in relationship with countries like China and India since before independence was declared in 1957. Till today Malaysia has been maintaining the well established relationship especially with these two countries by getting into agreement in multiple collaborations.

Chinese is the second largest race in Malaysia followed by Indian since they were brought in by the British Empire before independence. Chinese migrated to Malaysia vastly as coolies in tin mining industry and rubber plantation. Although it is said that Chinese have been in “Malaya” since Malacca Empire in 15th Century . Today, 25% of the country populations are Chinese which are made up of various dialect groups such as the Hokkien, the Hakka, the Cantonese, the Teochew, the Hainanese, the Hokchiu and etc. who have intermarried extensively with each other.

The Chinese have dedicated media and publication exposure for example daily newspapers, dedicated Chinese language radio stations and daily broadcast from all terrestrial television stations . Till date Chinese communities still perform traditional art, the lion dance and the dragon dance mainly during Chinese New Year. Chinese New Year is declared as a national public holiday where there Chinese celebrate the New Year by fulfilling most of the tradition and cultural activities. However the fireworks or firecrackers are part of the Chinese culture which has been ban in Malaysia due to safety reason .

For the Chinese, apart from the myth that says firecrackers are to frighten away the “Nian”, it also signifies a joyful time of year which is an important element of Chinese New Year celebrations . On the other hand, the Indians started migration to Malaysia for the purpose of plantation labour, traders, policemen and colonial soldiers. Some English-speaking Indians were also brought to work in the British colonial government . However just like the Chinese, it is said that the Indians have been here from more then 500 years ago.

Initially the Arabs and the Indians mainly the Indian Muslims from Gujerat came to Malaya as traders and merchants. Now the Indian population in Malaysia is 8% which is made up from Tamil, Malayalam, Telegu, Punjabi, Bengali, Gujerati and etc. Just like the Chinese, Indians also have dedicated media and publication exposure of daily newspapers, dedicated Indian language radio stations and daily broadcast from all terrestrial television stations. This is mainly in Tamil language as 80% of the Indian communities are the Tamils (South Indians) .

Diwali aka Deepavali is the most significant celebration of Indian community where national holiday is acknowledged for. Fireworks during Diwali are to mark several significant , however in respect to the law it is not legally practiced in this country. Another tradition not being legally practice is gambling under Act 495 Betting ACT 1953. Among other tradition obstructed by the Malaysian law is the architecture of a Sikh Gurdwara should not have a dome to avoid the Muslims to mistaken that for a mosque .

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Absolutism and Constitutionalism

1. Why did monarchs in the late 16th/early 17th centuries need new sources of income? Why did monarchs wish to get their income without the permission of the nobility? 2.

Explain the role that each of the following played in the failure of England achieving absolutism, as well as the success of the French: England France · Religion – Religion · Parliament/Tradition – Estates General · Personalities of Leaders – Personalities of Leaders · Trust of Nobility – Trust of nobility 3. Henry IV came to the throne and helped to end the French Wars of Religion.

After over 30 years of civil war, France was a wreck politically and economically. To set the stage for absolutism, he and his finance minister, the duke of Sully, needed to strengthen certain aspects of the nation and weaken others. Explain where the following fell into their plans, using the terms in parenthesis in your answer: · power of nobility (parlements) · increased money for crown (monopolies) · increased opportunity for economic success (canals, corvee) 4. After Henry IV’s assassination, his 9 year old son Louis XIII became king.

Too young to rule, his mother named a brilliant official to serve as his regent. Explain how the following policies show the nature of Richelieu’s “raison d’etat”: · Use of intendants · Actions in the 30 Years War (1618-1648) · Treatment of nobles · Treatment of Huguenots 5. Describe the factors that led to the revolt (known as the Fronde) of the French nobility against the young Louis XIV and Cardinal Mazarin (1649-1652). What lesson did the Fronde teach Louis XIV? How did it help prepare the French people for absolutist rule?

Helpful Hints for Reading this Section: o The first part of this reading provides an overview of the two systems of government that developed, and offers you hints as to why they developed as they did. Read this carefully so that many of the details listed in future sections will mean more to you. o There is a big difference between the English Parliament and the French parlements (note difference in spellings). The Parliament (-ia) historically had the ability to declare whether taxes were just (fair) or not, and so the kings/queens always had to go before Parliament whenever they needed money.

Parliament, located in London, had the ability to make laws. French parlements (-e) were different in that there were many regional parlements as opposed to one central one, and they lacked the ability to make laws. Rather, the French parlements just had the authority to accept or refuse policies proposed by the monarchy. The French also had the Estates General to serve as its legislature, but it was a medieval creation that never really caught on among the French nobles. It could only meet when it was called into session by the king, and that was very rare (met once between 1618 and 1788).

Chapter 13 – England 1. The Policy of Circumvention refers to the various English kings’ efforts to go around, or circumvent, Parliament in their gathering of money for the crown. Explain how each of the following was an effort to raise or save money, and why it angered nobles/members of Parliament: · impositions- These additional custom duties were seen as taxation on imports and exports by Parliament and as requiring parliamentary consent. They angered nobles and members of Parliament because they viewed it as taxation without consent. selling titles of nobility (think supply and demand– why would nobles feel like they each had less power if there were more nobles in the nation? )- people did anything they could to get a higher position so of course they would buy titles of nobility and since there were many nobles now, previous nobles felt less power because there weren’t as many “important” titles for everyone. · James I’s role as peacemaker- 2. Summarize the many religious complaints that were raised against King James I. In defending the episcopacy, what did James mean when he retorted “No bishops, no king (pg. 452). – James viewed the proposal to replace bishops with presbyteries as an attempt to diminish his power in the church so he quoted that. 3. What actions led Parliament force Charles I to accept the Petition of Right? How would Charles I have attempted to defend himself and his actions? What freedoms did the Petition guarantee? -disputes between Parliament and King Charles I over the execution of the Thirty Years’ War, Parliament refused to grant subsidies to support the war effort, leading to Charles gathering “forced loans” without Parliamentary approval and arbitrarily imprisoning those who refused to pay.

The Petition guaranteed restrictions on non-Parliamentary taxation, forced billeting of soldiers, imprisonment without cause, and restricts the use of martial law. 4. Why did Parliament not meet between 1629 and 1640? Describe the circumstances that required their meeting in 1640. – The Triennial Act was intended to prevent kings from ruling without Parliament, as Charles had done between 1629-1640. The act required that Parliament meet for at least a fifty-day session once every three years. 5. Create a timeline using the following terms, explaining what each is and how the terms relate to one-another. · Short Parliament Scottish Invasion · Long Parliament’s New Laws (1640-41) · Grand Remonstrance · Invasion of Parliament (Roundhead/Cavaliers) 1639-1640 – Scottish Invasion= Breakdown of Charles’s government of Scotland and two attempts to impose his will by force. Scots rose in 1639 against Charles’ introduction of the English Prayer Book into Scotland, the anti-royalist London merchants encouraged the invading Scots to capture Newcastle. This they did in 1640, totally disrupting the export of coal. The Scottish army remained in Newcastle for a year and charged the Corporation a regular fee for billeting its troops. 640 – Short Parliament= sat from 13 April to 5 May 1640 during the reign of King Charles 1 of England and called “short” because it only lasted 3 weeks. He was forced to call the Short Parliament primarily to obtain money to finance his military struggle with Scotland in the Bishops’ War. -Long Parliament= established to pass financial bills. It received its name from the fact that through an Act of Parliament, it could be dissolved only with the agreement of the members and those members did not agree to its dissolution until after the English Civil War and at the end of interregnum in 1660. 641 -Grand Remonstrance= a list of grievances presented to King Charles I by English Parliament on 1 December 1641, but passed by the House of Commons on the 22nd of November 1641, during the Long Parliament; it was one of the chief events which were to precipitate the English Civil War. 1642-1651 -Invasion of Parliament (Roundhead/Cavaliers)= was a series of armed conflicts and political machinations between Parliamentarians (Roundheads) and Royalists (Cavaliers).

The first (1642–46) and second (1648–49) civil wars pitted the supporters of King Charles I against the supporters of the Long Parliament, while the third war (1649–51) saw fighting between supporters of King Charles II and supporters of the Rump Parliament. The Civil War ended with the Parliamentary victory at the Battle of Worcester on 3 September 1651. 6. Explain how the “Rump Parliament” and, more appropriately, Oliver Cromwell, ruled England during the period between Charles I and Charles II. – ruled first England, and then Ireland and Scotland from 1649 to 1660.

After the English Civil War and the execution of Charles I, the republic’s existence was initially declared by “An Act declaring England to be a Commonwealth” adopted by the Rump Parliament, on 19 May 1649. The government took the form of direct personal rule by Oliver Cromwell. Just before and after the execution of King Charles I on 30 January 1649, the Rump passed a number of acts of Parliament creating the legal basis for the republic. Helpful Hints for Reading this Section: o To help remember the order of the English monarchs, try to remember the “Cromwell Sandwich. As with any good sandwich, it is named after the meat, which goes in the middle. Surrounding the meat is usually CHeese. In the Cromwell Sandwich then, the buns equal James (James I on top, or first, and James II bottom, or last) and the CHeese equals CHarles (Charles I on top of the meat or first, and then Charles II below the meat or second). Thus the order goes Bun (James I), Cheese (Charles I), Meat (Oliver Cromwell), Cheese (Charles II), and Bun (James II). I don’t know, it helps me. : ) 1. Describe England under the Restoration of the Monarchy (what powers did King have?

Religion? )- began in 1660 when the English, Scottish and Irish monarchies were all restored under Charles II. 2. Religion and the monarchy became an increasingly touchy subject in Restoration-era England. Discuss how the following acts/events display the conflict developing between monarch and Parliament: · Clarendon Code= The Clarendon Code was a series of four legal statutes passed between 1661-1665 which effectively re-established the supremacy of the Anglican Church after the interlude of Cromwell’s Commonwealth, and ended toleration for dissenting religions. Declaration of Indulgence= Charles II of England’s attempt to extend religious liberty to Protestant nonconformists and Roman Catholics in his realms, by suspending the execution of the penal laws that punished recusants from the Church of England. Charles issued the Declaration on 15 March 1672. · Test Act (note who this one was aimed at)= were a series of English penal laws that served as a religious test for public office and imposed various civil disabilities on Roman Catholics and Nonconformists.

The principle was that none but persons professing the Established Church were eligible for public employment, and the severe penalties pronounced against recusants, whether Catholic or Nonconformist, were affirmations of this principle. In practice nonconformists were often exempted from some of these laws through the regular passage of Acts of Indemnity 3. Both politics and religion played a large role in the forced removal of James II as King of England. Summarize the role of each, and note what served as the immediate cause of the Glorious Revolution. . Describe the political philosophy of John Locke found in his Two Treatises on Government. 5. How could one point to the Glorious Revolution and the English Bill of Rights as early successes for the history of Democracy? Helpful Hints for Reading this Section: o When trying to keep straight Thomas Hobbes and John Locke, think about what they stood for in regards to man’s “natural state. ” Hobbes, who believed man was horrible, awful, wicked nasty and cruel, was a “Hater. ” Thus, the first letter of his name and how he felt both match up (Hobbes; Hater).

Locke, who said man was naturally good, was all about the Love. Thus, his name and beliefs are also connected by a first-letter principle (Locke; Love). Chapter 13 – France 1. Explain how the theory of Divine Right strengthened Louis XIV’s power as king. How did his saying “L’etat, c’est moi” reflect the teachings of Bishop Bossuet? – The Divine Right strengthened Louis XIV’s by saying that dictators, nobles, and parliament don’t have power over the people. “L’etat, c’est moi” means “I am state” reflected the teaching of Bishop Bossuet by saying God has the almighty power. 2.

The Palace at Versailles is an integral part of Louis XIV’s strong reign. Answer the following with regard to life in Versailles: · To “domesticate” something means to make it tame, or to train it to be useful to humans. In what ways did Louis XIV “domesticate the nobility? ” · Why did Louis XIV order nobles to follow such trivial social rules and elaborate social functions at Versailles? Louis ordered nobles to follow trivial social rules and elaborate social functions at Versailles because he wanted them to have less power, so they won’t be a threat to him. What types of people did Louis choose to head his government agencies? Why did he prefer to use them instead of the nobles, as was the case in other times and other countries? Louis XIV replaced the princes who had previously held positions as ministers with new aristocrats who feared him more. This gave Louis XIV, the King of France more power. 3. Explain the ways in which Jean-Baptiste Colbert made France’s economy superior to any other nations’ in the 17th century. How did the marquis of Louvois dramatically increase the effectiveness of France’s military? 4.

Louis XIV’s France became so powerful that no one nation could likely stand up and defeat the French. For that reason, Louis chose to involve himself in a series of wars that would eventually break his nation’s finances. Include each of Louis XIV’s war in a timeline that shows the following: · Years fought · Reasons for War · How foreign nations worked to Balance out French power · Outcomes of War 5. Why did Louis XIV feel it was necessary to revoke the Edict of Nantes? What impact did this move have on his nation? Huguenots as a threat to his power.

Huguenots through his reign were hostile to the crown and launched revolts. The revocation of the Edict of Nantes caused large numbers of them to flee to other protestant countries and establish themselves there, weakening the French economy. 6. Explain why the War of Spanish Succession (and the subsequent Treaty of Utrecht) makes a fitting culmination to a. the grand wishes of Louis XIV’s plans for domination of Europe, and; b. the principle of Balance of Power used to stop Louis XIV and contain French power 7. Consider Louis XIV’s Legacy. Create a list of positive and negative aspects of Louis XIV’s legacy.

Then, create a thesis statement that evaluates the impact of Louis XIV on French history. Be sure your thesis 1) takes a side/has direction, and 2) does not simply list 3 things Louis did good and/or bad. o Intendants were government officials (royal civil servants,’ according to the text) in charge of oversight duties across all areas of French society. They were responsible for making sure that all tax money collected by regional tax officials went directly to the king (as opposed to some going to the collector’s pocket), and to oversee the training and discipline of the French military.

They studied efficiency in production and carried their lessons to emerging French industries. Possibly the most important aspect of the intendants was the fact that they were not of strong noble birth. Richelieu and Louis XIV realized that using nobles to do the most important jobs of government ran counter to the idea of centralizing full power in the hands of the crown. For that reason, the intendants typically came from middle class backgrounds, people who did not possess large lands of their own. Thus, these peoples’ success in life was fully-dependent upon the king.

If they became corrupt, another intendant would call them out and they would lose their job and what was likely their only chance to be very successful in life. This created an incredibly driven, obedient and loyal bureaucracy for the French kings. o During the Counter-Reformation, several different groups of Catholics came up with various ways they saw as correct in regards to Catholicism. The Jesuits were likely the most famous and most successful, as they traveled to every coastline and set up schools and monasteries in most all prominent nations.

One of the Jesuits’ key messages to people was, “we can help save you. ” By this, the Jesuits promoted the fact that people who were Catholic could be guaranteed salvation, so long as they followed the 7 sacraments and did as their priest told them. Another group, the Jansenists, saw this as untrue. Much like Luther and Calvin, the Jansenists believed that there was nothing people could do on earth to guarantee their salvation. They still believed in following all 7 of the Sacraments and other areas of Catholic doctrine, but they said that getting into heaven had to be a “gift” of God’s grace.

A big religious dispute broke out within the Catholic church, and the influential Jesuits led an out-cry of opposition against the Jansenists. The point the text is trying to make with the Jansenists is that their group offered a form of Catholicism that included aspects of many Protestant religions (role of faith/grace as gift for salvation etc. ), which potentially could have kept French Huguenots (French Protestants) within the Catholic faith and kept them within France. When Louis XIV outlawed Jansenists, he made legal only the strongly anti-Protestant Jesuit Catholics, who began pushing for strong laws against Protestants.

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Is the Constitution a Living Document?

“Is the Constitution a living document? ” Well the meaning of the living document is the provisions by which it may be altered in order to remain current, address unforeseen circumstances and make legal provisions for those accordingly. By being a “living” document, the Constitution has grown and expanded, and now ensures women and minorities the right to vote among many other things. Most justices agree that the writers of the Constitution prudently chose to write this document in general terms so that modern-day justices can still apply its precepts to a world with changing laws, attitudes, and conditions through successive generations.

Justice Oliver Wendell Holmes first advanced the concept of a living Constitution in 1920 in his opinion on the case, Missouri VS Holland. A second, and more controversial, view of a living Constitution contends that when the elected legislative and administrative agents of the government fail to redress a wrong or solve a particular social problem, then the courts may act to remedy the situation through the process of judicial review. Our written Constitution, the document under glass in the National Archives, was adopted 220 years ago. It can be amended, but the amendment process is very difficult.

The most important amendments were added to the Constitution almost a century and a half ago, in the wake of the Civil War, and since that time many of the amendments have dealt with relatively minor matters. The American Constitution is long-lived, has enduring qualities, and was intended for many decades. The living document was founded on enduring principles, and was based on the authority of a people who are sovereign has been attested to by many of its leaders. That it can be changed when, and if, the people ordain such change is a part of its own provisions. For these reasons, it can be said to be a “Living Constitution”.

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Indian Constitution

The Constitution of India has some distinct and unique features as compared to other constitutions to the world. As Dr. B. R. Ambedkar, the Chairman of the Drafting Committee puts it, the framers had tried to accumulate and accommodate the best features of other constitutions, keeping in view the peculiar problems and needs of our country. The following are the salient features of the Constitution of India. 1. Longest written constitution Indian Constitution can be called the largest written constitution in the world because of its contents.

In its original form, it consisted of 395 Articles and 8 Schedules to which additions have been made through subsequent amendments. At present it contains 395 Articles and 12 Schedules, and more than 80 amendments. There are various factors responsible for the long size of the constitution. One major factors was that the framers of the constitution borrowed provisions form several sources and several other constitutions of the world. They have followed and reproduced the Government of India Act 1935 in providing matters of administrative detail.

Secondly, it was necessary to make provisions for peculiar problems of India like scheduled castes, Scheduled Tribes and backward regions. Thirdly, provisions were made for elaborate centre-state relations in all aspects of their administrative and other activities. Fourthly, the size of the constitution became bulky, as provisions regarding the state administration were also included. Further, a detail list of individual rights, directive principles of state policy and the details of administration procedure were laid down to make the Constitution clear and unambiguous for the ordinary citizen.

Thus, the Constitution of India became an exhaustive and lengthy one. (2) Partly Rigid and Partly Flexible The Constitution of India is neither purely rigid nor purely flexible. There is a harmonious blend of rigidity and flexibility. Some parts of the Constitution can be amended by the ordinary law-making process by Parliament. Certain provisions can be amended, only when a Bill for that purpose is passed in each house of Parliament by a majority of the total membership of that house and. by a majority of not less than two-third of the members of that house present and voting.

Then there are certain other provisions which can be amended by the second method described above and are ratified by the legislatures of not less than one-half of the states before being presented to the President for his assent. It must also be noted that the power to initiate bills for amendment lies in Parliament alone, and not in the state legislatures. Pundit Nehru expressed in the Constituent Assembly, “While we want the Constitution to be as solid and permanent as we can make it, there is no permanence in Constitution. There should be certain flexibility.

If you make anything rigid and permanent, you stop the nation’s growth, the growth of a living, vital organic people. ” 3) A Democratic Republic India is a democratic republic. It means that sovereignty rests with the people of India. They govern themselves through their representatives elected on the basis of universal adult franchise. The President of India, the highest official of the state is elected for a fixed term. Although, India is a sovereign republic, yet it continues to be a member of the Commonwealth of Nations with the British Monarch as its head.

Her membership of the Commonwealth does not compromise her position as a sovereign republic. The commonwealth is an association of free and independent nations. The British Monarch is only a symbolic head of that association. 4) Parliamentary System of Government India has adopted the Parliamentary system as found in Britain. In this system, the executive is responsible to the legislature, and remains in power only as long and it enjoys the confidence of the legislature. The president of India, who remains in office for five years is the nominal, itular or constitutional head. The Union Council of Ministers with the Prime Minister as its head is drawn from the legislature. It is collectively responsible to the House of People (Lok Sabha), and has to resign as soon as it loses the confidence of that house. The President, the nominal executive shall exercise his powers according to the advice of the Union Council of Ministers, the real executive. In the states also, the government is Parliamentary in nature. 5) A Federation Article 1 of the Constitution of India says: – “India, that is Bharat shall be a Union of States. Though the word ‘Federation’ is not used, the government is federal. A state is federal when (a) there are two sets of governments and there is distribution of powers between the two, (b) there is a written constitution, which is the supreme law of the land and (c) there is an independent judiciary to interpret the constitution and settle disputes between the centre and the states. All these features are present in India. There are two sets of government, one at the centre, the other at state level and the distribution of powers between them is quite detailed in our Constitution.

The Constitution of India is written and the supreme law of the land. At the apex of single integrated judicial system, stands the Supreme Court which is independent from the control of the executive and the legislature. But in spite of all these essential features of a federation, Indian Constitution has an unmistakable unitary tendency. While other federations like U. S. A. provide for dual citizenship, the India Constitution provides for single citizenship. There is also a single integrated judiciary for the whole country.

The provision of All India Services, like the Indian Administrative Service, the India Police Service, and Indian Forest Service prove another unitary feature. Members of these services are recruited by the Union Public Service Commission on an All-India basis. Because these services are controlled by Union Government, to some extent this constitutes a constraint on the autonomy of states. A significant unitary feature is the Emergency provisions in the Indian constitution. During the time of emergency, the Union Government becomes most powerful and the Union Parliament acquires the power of making laws for the states.

The Governor placed as the constitutional head of the state, acts as the agent of the centre and is intended to safeguard the interests of the centre. These provisions reveal the centralising tendency of our federation. Prof: K. C. Wheare has rightly remarked that Indian Constitution provides, “a system of government which is quasi-federal, a unitary state with the subsidiary unitary features”. The framers of the constitution expressed clearly that there exists the harmony of federalism and the unitarism. Dr.

Ambedkar said, “The political system adopted in the Constitution could be both unitary as well as federal according to the requirement of time and circumstances”. We can say that India has a “Cooperative federalism” with central guidance and state compliance. 6) Fundamental Rights “A state is known by the rights it maintains”, remarked Prof. H. J. Laski. The constitution of India affirms the basic principle that every individual is entitled to enjoy certain basic rights and part III of the Constitution deals with those rights which are known as fundamental rights.

Originally there were seven categories of rights, but now they are six in number. They are (i) Right to equality, (ii) Right to freedom, (iii) Right against exploitation, (iv) Right to freedom of Religion, v) Cultural and Educational rights and vi) Right to constitutional remedies. Right to property (Article-31) originally a fundamental right has been omitted by the 44th Amendment Act. 1978. It is now a legal right. These fundamental rights are justiciable and the individual can move the higher judiciary, that is the Supreme Court or the High Courts, if there is an encroachment on any of these rights.

The right to move to the Supreme Court straight for the enforcement of fundamental rights has been guaranteed under Article 32 (Right to Constitutional Remedies). However, fundamental rights in India are not absolute. Reasonable restrictions can be imposed keeping in view the security-requirements of the state. 7) Directive Principles of State Policy A novel feature of the Constitution is that it contains a chapter in the Directive Principles of State Policy. These principles are in the nature of directives to the government to implement them for establishing social and economic democracy in the country.

It embodies important principles like adequate means to livelihood, equal pay for both men and women, distribution of wealth so as to subserve the common good, free and compulsory primary education, right to work, public assistance in case of old age, unemployment, sickness and disablement, the organisation of village Panchayats, special care to the economically back ward sections of the people etc. Most of these principles could help in making India welfare state. Though not justiciable. These principles have been stated a; “fundamental in the governance of the country”. ) Fundamental Duties A new part IV (A) after the Directive Principles of State Policy was incorporated in the constitution by the 42nd Amendment, 1976 for fundaments duties. These duties are: i) To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; ii) To cherish and follow the noble ideals, which inspired our national struggle for freedom; iii) To uphold and protect the sovereignty, unity and integrity of India; iv) To defend the country and render national service when called upon to do o; v) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic, regional or sectional diversities, to renounce practices derogatory to the dignity of woman; vi) to value and preserve the rich heritage of our composite culture; vii) to protect and improve the natural environments including forests, lakes, rivers and wild life and to have compassion for living creatures; viii) to develop scientific temper, humanism and the spirit of inquiry and reform; x) to safeguard public property and to abjure violence; x) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of Endeavour and achievement. The purpose of incorporating these duties in the Constitution is just to remind the people that while enjoying their right as citizens, should also perform their duties for rights and duties are correlative. 9) Secular State A secular state is neither religious nor irreligious, or anti-religious.

Rather it is quite neutral in matters of religion. India being a land of many religions, the founding fathers of the Constitution thought it proper to make it a secular state. India is a secular state, because it makes no discrimination between individuals on the basis of religion. Neither it encourages nor discourages any religion. On the contrary, right to freedom of religion is ensured in the Constitution and people belonging to any religious group have the right to profess, practice or propagate any religion they like. 0) An Independent Judiciary The judiciary occupies an important place in our Constitution and it is also made independent of the legislature and the executive. The Supreme Court of India stands at the apex of single integrated judicial system. It acts as protector of fundamental rights of Indian citizens and guardian of the Constitution. If any law passed by the legislature or action taken by the executive contravenes the provisions of the Constitution, they can be declared as null and void by the Supreme Court.

Thus, it has the power of judicial review. But judicial review in India constitutes a middle path between the American judicial supremacy in one hand and British Parliamentary supremacy in the other. 11) Single Citizenship The Constitution of India recognises only single citizenship. In the United States, there is provision of dual citizenship. In India, we are citizens of India only, not of the respective states to which we belong. This provision would help in promoting unity and integrity of the nation.

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Are Constitutional Conventions Necessary

Are Constitutional Conventions Necessary Are Constitutional Conventions Necessary To Preserve The Legal Structure Of Government? Illustrate By Example Introduction A constitutional convention is an informal and uncodified procedural agreement that is followed by the institutions of a state. The Constitution of a country comprises both written rules enforced by courts, and “unwritten” rules or principles necessary for constitutional government. Written rules mandate that they be followed in a particular specified situation, and on the other hand unwritten rules come into play when there is no given written rule to cover the situation at hand.

Constitutional conventions are said to be rules of political practice, which are regarded as binding by those to whom they apply, but they can’t be called exact laws, as they are not enforced by courts or by the Houses of Parliament. Notwithstanding the fact that ours is a detailed Constitution, the Constitution-framers left certain matters to be governed by conventions, thereby giving to the holders of constitutional offices some degree of discretion in respect of such matters.

The main purpose of the Constitutional conventions is to ensure that the legal framework of the Constitution retains its flexibility to operate in tune with the prevailing constitutional values of the period. Although conventions are not legally enforceable and the sanction behind them is moral and political, yet some conventions of the constitution which set norms of behavior of those in power or which regulate the working of the various parts of the Constitution and their relations to one another, may be as important, if not of greater significance, as the written word of the Constitution itself.

This is particularly true of the role of ‘conventions’ in a system of Parliamentary democracy having a Constitutional distribution of powers between two or more levels of Government. Often constitutional conventions are more important than written constitutional provisions. For example, the President is empowered by the Constitution to appoint the Prime Minister, but the Constitution provides no guidance as to who should be appointed as Prime Minister. Here conventions regarding the appointment of the Prime Minister play an important role in guiding the President.

Following are some of the characteristics of the conventions: Conventions are rules that define non-legal rights, powers and obligations of office-holders in the three branches of Government, or the relations between governments or government organs. Conventions in most cases can be stated only in general terms, their applicability in some circumstances being clear, but in other circumstances uncertain and debatable. They are distinguishable from rules of law, though they may be equally important, or more important. They may modify the application or enforcement of rules of law.

Sir Ivor Jennings suggested that in order to establish a convention three questions must be asked: What are the precedents? Secondly, did the actors in the precedents believe that they were bound by a rule? Thirdly, whether there is a good reason for the rule? A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless the persons concerned regard themselves to be bound by it. Conventions grow out of and are modified by practice.

At any given time it may be difficult to say whether or not a practice has become a convention. Conventions do not come from a certain number of sources, their origins are amorphous and nobody has the function of deciding whether conventions exist or not. As the researcher’s topic requires proving whether or not the constitutional conventions are necessary to preserve the legal structure of the government (with an example), the researcher would confine his study to the one of the most debated and controversial constitutional conventions – the appointment of the Prime Minister .

The conventions are compared with British conventions since most of our constitutional practices are derived from the United Kingdom and through this example, the researcher will try to illustrate the importance of Constitutional Conventions. Appointment Of The Prime Minister British Precedents In England, it is the monarchy whereas in India it is the President who makes this choice. This choice demands independence of status and familiarity with political conditions, but no method of choice can altogether avoid bias. The nature of the monarch’s choice necessarily depends upon the status of parties in the House of Commons.

If a party has a clear majority, its recognized leader will be the Prime Minister. A completely different situation arises where no party gets a majority in the legislature. Here two possibilities arise—the formation of a coalition government or the formation of a minority government, as another dissolution at that time is not practicable. It is an accepted rule that when a government is defeated, either in Parliament or at the polls, the monarch should send for the leader of the opposition. This rule is based on the assumption of impartiality of the crown.

British constitutional history also shows us that the Queen has consulted the outgoing Prime Minister on some occasions, but it is not an invariable rule (but more sought of a convention). Indian Scenario However, these considerations are not suited to a country like India with its diversity and plurality where the regional parties are making an impact on our political scene. Even though our Constitution is bulky, certain aspects are left to conventions. One of them is the appointment of Prime Minister by the President. Most of our constitutional conventions are derived from the United Kingdom.

However, the British precedents offer no specific answers to the problems raised by elections in India. Article 75(1) of the Indian Constitution gives the President the right to appoint the Prime Minister. In normal circumstances it is the leader of the majority in the House of the People (Lok Sabha). But, in circumstances where the Prime Minister dies in office or resigns, the President will have to exercise his personal judgment. Also in circumstances when the party may have no recognized leader or either of the two parties may be able to form a government and command the support of the House of the People.

In such circumstances the President may chose for a person who could form a coalition with the help of two or more parties and command the support of the Lok Sabha. “ It was such discretion that President Reddy exercised in 1979 after the fall of the Janta Ministry in inviting Charan Singh to form the ministry and also in not inviting Jagjivan Ram to do so after Charan Singh resigned and advised the dissolution of the House. ” Options In A Hung Lok Sabha The Prime Minister must command a majority in the House at the time of the vote of confidence.

However, in an uncertain situation, say in the case of hung Lok Sabha, how is the President to determine which of the party leaders will manage to secure majority support? Being leader of the single largest party does not necessarily mean being the leader of the majority members of the House. A person need not be the leader of the single largest party in the House to command the support of the House. The practice now more or less seems to be settled that the leader of the party who is able to secure the support of the House should be invited to form the Government.

This again brings us back to the question, when and how does a practice become a convention? Ivor Jennings’s three-stage test mentioned before might be helpful in deciding whether a practice has crystallized into a convention or not but that is not a conclusive test for determining the existence of a convention. There has been demand from several quarters to codify the convention with respect to the appointment of Prime Minister and Chief Ministers. The reason given is that having a written Constitution, we should not leave the appointments to these high offices on conventions.

The controversy invariably surrounding every appointment (in cases where no one party has absolute majority) of the Prime Minister and Chief Ministers further strengthens the demand for codification of conventions. One of the suggestions that have been put forward is the amendment of Article 75 of the Constitution so as to have the following effect: “The Prime Minister shall be appointed by the President on the recommendation of the House of the People which recommendation shall be binding on the President”. Thus the onus will be on the legislature to choose the Prime Minister, than on the President.

Such a move is welcome since it will help in avoiding confusion and controversies in the appointment of the Prime Minister and Chief Ministers. However, at the same time it must also be kept in mind that a Constitution cannot contain all and sundry provisions concerning a matter including that for the appointment of Prime Minister. Moreover, the discretion to appoint the Prime Minister has been vested in none other than the President who is the head of the republic. Hence, the presumption that he will act impartially should always weigh in his favour. Thus The Importance Of Conventions???

Notwithstanding the fact that ours is a detailed Constitution, the Constitution-framers left certain matters to be governed by conventions, thereby giving to the holders of constitutional offices some degree of discretion in respect of such matters. Conventions lubricate the room left at the joints in the constitutional structure and protect them against ossification. The main purpose of the Constitutional conventions is to ensure that the legal framework of the Constitution retains its flexibility to operate in tune with the prevailing constitutional values of the period .

Although conventions are not legally enforceable and the sanction behind them is moral and political, yet some conventions of the constitution which set norms of behaviour of those in power or which regulate the working of the various parts of the Constitution and their relations to one another, may be as important, if not of greater significance, as the written word of the Constitution itself. One unfortunate fact of the Indian situation is that enough attention has not been paid to the evolution and observance of the right codes of conduct and conventions.

Even the codes and conventions evolved in the earlier years have been broken too lightly in the later years. There is an increasing tendency to resort to extra-Constitutional methods to force settlement of political or economic issues—imagined or real. This would be a cause for concern even in a small homogeneous country. In India, a heterogenous country of huge dimensions, this cannot be a matter of grave anxiety. Hence, natural reaction would be that the loopholes in the Constitution which have permitted aberrant developments should be plugged.

It is urged that, if conventions do not work, appropriate constitutional safeguards should be provided. If appropriate conventions are not followed and the discretion provided under certain circumstances is misused, the entire system may collapse. In order that appropriate conventions and codes of conduct get evolved, it is essential that incumbents of constitutional offices are selected from among persons of admitted competence and integrity and provided with reasonable security of tenure. Conclusion The main purpose of conventions is to guide the use of constitutional discretion.

Thus, every time there is a general election or a request for dissolution of the House of People, the questions that start doing rounds are—whom will the President invite to form the next government? What if the President invites someone to form a government who does not have a clear majority in the Lok Sabha ? Will the President heed to the advice of the Cabinet to dissolve the House? These are some of the important questions to which the Constitution provides no answer to, and this is where conventions play their part as a catalyst.

Some conventions are well-established and may be relied upon absolutely, while some are vague and may lead to manipulation for political purposes. For example, appointment of the Prime Minister is to be done by the President and the prevailing convention is that the person enjoying support of the absolute majority of the House concerned is appointed to the respective office. The snag lies in ascertaining that support. The task of the President becomes difficult and open to criticism, as he has to often follow vague conventions and foreign precedents.

The conventions being vague, the President may go on appointing the leader of the largest party in the Lok Sabha as the Prime Minister, despite the fact that the appointed Prime Minister is not in a position to secure majority in the Lok Sabha . Hence if the conventions are codified and the effect of that codification is to give jurisdiction to the courts to enforce the codified conventions then in such a scenario the flexibility of the conventions will be lost. Moreover, codified laws cannot cover any and every situation that might arise. Hence, it makes more sense to leave the conventions uncodified.

Therefore, since the main purpose of the Constitutional Conventions is to ensure that the legal framework of the Constitution retains its flexibility to operate in tune with the prevailing constitutional values of the period, it helps the Constitution to adapt and make amends according to the needs and desire of the changing times, as the Founders of our Constitution couldn’t have foreseen and safeguarded the Constitution from future loopholes and hence left certain matters to be governed by conventions as they are as important, if not of greater significance, as the written word of the Constitution itself.

Sources of Constitutional Law As mentioned, the constitution in the UK is derived from several sources. One of the most important is Acts of Parliament. The Parliament Acts of 1911 and 1949, for example, allow the House of Commons, in certain limited circumstances, to pass legislation without the consent of the House of Lords, and consequently to act in a manner which would otherwise be unconstitutional. This is very rare, however, and has happened less than five times in the last sixty years.

The threat of using the Parliament Acts may be sufficient to pass legislation which is unpopular in the House of Lords. Case law also forms an important part of the constitution. The decisions of the judiciary have occasionally imposed limits on executive power. Constitutional conventions, although not legally binding, also play an important role in the UK’s legal fabric. By convention, the monarch appoints as prime minister the person who commands a majority in the House of Commons after a general election.

By law, however, there is nothing to stop the monarch from appointing his or her head gardener as prime minister. This would never happen, of course, but in strict legal theory remains a possibility. Finally, EU law and international treaties may also contribute to the UK’s constitution. In fact, in one case concerning EU law the House of Lords went so far as to grant an injunction to ‘disapply’ a legitimate Act of Parliament.

Again, this is an extremely rare occurrence, and decisions affecting the constitution are not taken lightly. Devolution The Labour government which came to power in 1997 has made several significant changes to the UK’s constitution. The most notable of these have been the creation of the Welsh Assembly and the Scottish Parliament. The main powers that have been delegated include those regarding health and education. Other more serious powers, such as those on defence, remain the sole preserve of Westminster.