The practice of constitutional government

Great Britain

It is accepted constitutional theory that Parliament (the House of Commons and the House of Lords acting with the assent of the monarch) can do anything it wants to, including abolish itself. The interesting aspect of British government is that, despite the absence of restraints such as judicial review, acts that would be considered unconstitutional in the presence of a written constitution are attempted very rarely, certainly less often than in the United States.

The English constitution and the English common law grew up together, very gradually, more as the result of the accretion of custom than through deliberate, rational legislation by some “sovereign” lawgiver. Parliament grew out of the Curia Regis, the King’s Council, in which the monarch originally consulted with the great magnates of the realm and later with commoners who represented the boroughs and the shires. Parliament was, and is, a place in which to debate specific issues of disagreement between, initially, the crown, on the one hand, and the Lords and Commons, on the other. The conflicts were settled in Parliament so that its original main function was that of a court—it was in fact known as “the High Court of Parliament” as late as the 16th century.

The locus of power in the English constitution shifted gradually as a result of changes in the groups whose consent the government required in order to be effective. In feudal times, the consent of the great landowning noblemen was needed. Later, the cooperation of commoners willing to grant revenue to the crown—that is, to pay taxes—was sought. The crown itself, meanwhile, was increasingly institutionalized, and the distinction was drawn ever more clearly between the private and public capacities of the king. During the course of the 18th century, effective government passed more and more into the hands of the king’s first minister and his cabinet, all of them members of one of the two houses of Parliament. Before this development, the king’s ministers depended upon their royal master’s confidence to continue in office. Henceforward they depended upon the confidence of the House of Lords and especially the House of Commons, which had to vote the money without which the king’s government could not be carried on. In this way the parlay that was originally between the monarch and the houses of Parliament was now struck between the ministry and its supporters, on the one hand, and opposing members of Parliament, on the other. Parliamentary factions were slowly consolidated into parliamentary parties, and these parties reached out for support into the population at large by means of the franchise, which was repeatedly enlarged in the course of the 19th century and eventually extended to women and then to 18-year-olds in the 20th.

Until the early 21st century, a prime minister who lost a vote of confidence in the House of Commons could either resign to let the leader of the opposition form a new government or ask the monarch to dissolve Parliament and call for new elections. Following adoption of the Fixed-Term Parliaments Act (2011), however, monarchs could no longer dissolve Parliament upon the request of the prime minister, and general elections were permanently scheduled to take place on the first Thursday in May in every fifth year, beginning in May 2015. (Early elections could still take place if agreed to by at least two-thirds of the House of Commons or if a motion of no confidence is adopted and no new government is formed within 14 days.) Relations between, and the relative powers of, the House of Lords and the House of Commons have been repeatedly redefined to the disadvantage of the House of Lords by acts of Parliament, to such an extent that the Lords retain only a weak suspensory veto. All such fundamental constitutional changes have occurred either informally and without any kind of legislation at all or as a result of the same legislative procedures employed to pass any other ordinary circumstantial bill.

United States

The U.S. Constitution is not only replete with phrases taken from the British constitutional vocabulary, but in several respects, it also represents a codification of its authors’ understanding of the English constitution, to which they added ingenious federalist inventions and the formal amending procedure itself. Despite the availability of this procedure, however, many if not most of the fundamental changes in American constitutional practice have not been effected by formal amendments. The Constitution still does not mention political parties or the president’s cabinet. Nor was the Constitution changed in order to bring about or to sanction the fundamentally altered relations between the executive and the Congress, between the Senate and the House, and between the judiciary, the legislature, and the executive.

The presence of a constitutional document, however, has made American politics more consciously “constitutionalist,” at least in the sense that politicians in the United States take more frequent recourse than their British counterparts to legalistic argumentation and to actual constitutional litigation. The United States, moreover, is denied the kind of flexibility illustrated by the postponement of British parliamentary elections during World War II since the Constitution explicitly provides the dates for congressional and presidential elections. It is one of the remarkable facts of American constitutional history that the constitutional timetable for elections has always been observed, even during external war and the Civil War of the 19th century.