PO263 Chapter Notes - Chapter 2: Bill Of Rights 1689, Royal Assent, Legislature
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MONDAY SEPTEMBER 26TH
2.1 Constitutions and Their Functions
•Constitution: a set of rules that authoritatively establish both the structure and their fundamental principles of the
political regime. These set of rules are called a constitution because they constitute the regime. A constitution will
usually do so by performing four different functions:
1. Establish what person or persons will exercise the various forms of political authority. In modern times,
political power consists of 3 types: Legislative power (power to make policy), Executive power (power to
execute or administer that law or policy) and Judicial power (the power the settle questions about specific
violations of the law). Legislative power is to be exercised by a parliament, a congress or an assembly.
Constitution will also determine whether power will be in hands of president, prime minister, cabinet or
perhaps monarch. Finally, it must establish the broad outlines of a judicial system by stipulating what type
of courts the country will have.
2. Provide an authoritative division of powers between national and regionals governments in federal
countries. Countries like France and Britain only have one level of Government. Countries that are larger or
divided into distinct ethnic groups, usually have two levels of government (Provincial and federal). A
workable federal system requires a clear division of powers between the two levels of government. In order
to avoid conflicts between provincial and national governments, federal institutions provide a clear division
of powers and eras of responsibility for each level of government.
3. Delineate the limits of governmental power. The idea of constitutionalism implies that constitution is
supreme and government in subordinate to it. It is not uncommon for constitutions to establish a list of
fundamental rights and liberties in some sort of charter or bill of rights.
4. Provide for an orderly way to make changes to it. Political regimes do not remain static, so a constitutions
must accommodate to structure change. Most constitutions contain clear provisions for amendment.
2.2 Constitutional Forms: Conventions and Laws
•Rules may be written or unwritten; stye may be legally enforced or enforced to public opinion and political
custom. Both rules can be of fundamental importance.
•Two basic types of rules that make up a regimes constitution.
•Conventions are political rules; laws are judicially enforceable rules.
•Political rules are usually followed because one fears the political consequence of breaking the rule.
•A judicially enforced rule is usually followed because one fears punishment.
•The difference between conventions and laws is not that the former are unwritten and the later are written, the
distinction is how the rules are enforced.
•Statutory law in written down, common law is not. Both are rules enforced by courts.
•Conventions are enforced by politics, constitutional laws are enforced by courts.
•Canada’s constitution is a combination of constitutional conventions and entrenched constitutional laws and
Different Constitutional Rules:
1. Constitutional Conventions: Rule based on implicit political agreement and enforced in a political arena instead
of in courts. Similar to a custom. Ex. long established political rule: Monarch will not refuse to provide royal
assent to legislation that has been passed by both House of Lords and House of Commons (This is an unwritten
agreement). The voting public enforces constitutional conventions. Therefore those holding political office will
respect these conventions in fear of invoking the wrath of the voters. Constitutions can be applied with
flexibility. Ex. if you offer you left hand instead of your right hand, it will probably not be refused.
2. Constitutional Law:
•Enforced by courts. Divided into two categories: organic statutes and entrenches constitutional acts. Statute
refers to an act of the authoritative legislative body (Parliament or a provincial legislature). Statues establish
constitutional rules called organic statutes. To say that Britain’s Constitution is “unwritten” is misleading. A
good deal of it’s constitution is actually written in the form of organic statues. (Ex. the Bill Of Rights — 1689).
Two reasons for adopting organic statutes instead of conventions. First, some rules are too complex and detailed
to be left to the realm of unwritten agreement. Second, organic states provide a more effective means of
introducing substantial innovation to the existing constitutional order.
•Constitutional law can also take the form of entrenched constitutional acts: They are written and enforced by
courts. But differ from statues in two ways: first, they tend to be more comprehensive than statutes. Second, the
authority of entrenched constitutional acts is more absolute because they were not as easily changed as statutes.
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