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To what extent does the codified constitution hinder or help liberty?
For centuries, most nations have worked on establishing free countries. During these progressions, people’s liberties have been increasingly violated. The government today limits our political speech, subjecting us to more wiretapping than ever before. The narrowing of these liberties takes place gradually and is often introduced under the guise of nobility. The greatest threat to civil liberties is the increase in power of the government with the help of the constitution. Ironically, this supreme law was drafted by the founders to limit such power, and instead protect the rights of its citizenry. However, the assertion that written constitutions impede the protection of civil liberties is unfounded and does not stand up to scrutiny. Although it is true that citizens of some countries have suffered such infringements because of the establishment of a codified constitution, this is not the reason to completely deny the existence and value of this document.
2.1 codified constitution
An appropriate, stable, and adaptable structure of written constitutional form usually includes a concise constitutional code, many constitutional laws that make the content of the constitution concrete, and supplemented by constitutional interpretation, convention, precedent, and international treaties. While an unwritten constitution is not quite the opposite, although there are no simple laws and regulations in writing, they still based the unwritten constitution on the spirit of the constitution.
As used in the Constitution, liberty is defined as the protection from arbitrary and unreasonable restraint upon individual freedom. These freedoms apply to physical restraints, as well as the freedom to act according to one's own will.
Augustine Christian’s doctrine proclaims everyone is born sinful, declaring that humans are born with impulses to do bad things and disobey God. For the Israelites to be freed from the bondage of sin, God offered the ten Commandments. In the New Testaments, Jesus acknowledged their validity and instructed his followers to go further, and he summarized the ten commandments into two “great Commandments”, which is the ancient version of a codified constitution. Like the hopeful messages mentioned in John 8:32, “you will know the truth, and the truth will set you free.”
3 Analysis of importance of written constitution
3.1 The hindering effect of the unwritten constitution on liberty
To clear up misunderstandings, it is first necessary to understand the difference between the codified and uncodified constitution. The main difference between the two is the existence of a higher body of law in which the law has greater validity than other general law. They expressed this body of law in a written, systematic form. Thus, the unwritten constitution is not an incomplete constitution. Some may interpret the opposition between an unwritten and written constitution as an opposition between order and liberty, a state with a written constitution imposes great restraints on its citizens, while an unwritten constitution encourages liberty. An uncodified constitution does not mean that such a legal system can be modified at will according to the citizens' own wishes but remains under the constraints of the spirit of the constitution. While a constitution needs to be adjusted to consider the changes and developments of the times, if it is allowed to be influenced by popular opinion, it could result not only in diminishing the protection of liberties, but detrimental to liberty itself. Indeed, no country's history and tradition can be a simple picture. In the United States, with its long constitutional traditions, there are varying understandings and interpretations of its own historical traditions. When the justices of the U.S. Supreme Court have investigated American history and precedent to answer constitutional questions, they have often come to widely divergent conclusions. For example, in the 1986 case Bowers v. Hardwick, the Supreme Court denied the right to same-sex sexual conduct based on previous state laws of punishing consensual adult sodomy. However, in Lawrence v. Texas in 2003, the Supreme Court overruled Bowers based on a different historical precedent and found that Texas criminal law punishing sex between homosexuals violated the freedoms protected by the Due Process Clause of the Fourteenth Amendment. Demonstrating the freedom to amend the Constitution may lead to contradictory decisions, which could undermine the fundamental rights of citizens.
3.2 The promoting effect of the written constitution on liberty
The most important feature of a written constitution is that there is a higher body of law in addition to the general force of law. Presented in written form, it is the most enforceable and often requires a complex and lengthy process when amended.These adjustments are time consuming and struggle to keep pace with societal changes. However, complexity of constitutional adjustment is not a sufficient reason for its impediment to civil liberties, nor is it fundamentally wrong to argue that written constitutions impede freedom of expression (WINETROBE, 2011).
First, constitutional adjustment is possible. Critics assert that the codification of the constitution reveals sovereignty, proclaiming that no one can question the validity of the constitution. A reigning government can make laws that future administrations cannot undo However, the American government works on protecting citizen’s liberty, amending the Constitution 27 times thus far. The most significant limitations to the government's power over the individual were added in 1791 in the Bill of Rights. The Constitution’s First Amendment guarantees the rights of conscience, freedom of religion, speech, and the press, and the right of peaceful assembly and petition.
After the American Civil War, three new amendments were adopted: the Thirteenth (1865), which abolished slavery; the Fourteenth (1868), which granted citizenship to those who had been enslaved; and the Fifteenth (1870), which guaranteed formerly enslaved men the right to vote. The Fourteenth Amendment placed an important federal limitation on the states by forbidding them to deny any person the right to “life, liberty, or property, without due process of law” and guaranteeing every person within a state’s jurisdiction “the equal protection of its laws.”
In fact, written constitutions have strict rules and regulations for citizens' freedom rights, and such a strict system does not undermine citizens' freedom, but rather allows for the stable protection of their basic rights in any social context.
3.3 Review the meaning of written constitution from the development of American written constitution
The United States was the first country in the world to have a written constitution. Adopted in 1787 and took effect in 1789. It had a short preamble and seven articles. They adopted Ten amendments at about the same time as the Constitution. These Bill of Rights defined the basic rights of citizens. Although Congress cannot make direct changes the U.S. Constitution itself, it can propose as much. Due to its complexity and procedural process, only 27 amendments have been approved in the constitutions 232 years of existence. The First Amendment provides for freedom of religion, speech, the press, assembly, and petition. The first Constitution expressly states that Congress shall make no law respecting an establishment of religion or prohibit the free exercise thereof; abridging the liberty of speech, or of the press; or abridging the right of the people peaceably to assemble, and to petition the government for a redress of grievances. After the federal constitution replaced the confederate constitution, many people expressed dissatisfaction that it did not include the bill of rights to guarantee the individual rights of citizens (King, 2018). They believed that citizens would inevitably be infringed upon by the government if there were not multiple barriers including the bill of rights between the government’s power and civil rights. Thus, the United States constitution is criticized not because it restricts liberty, but rather because it is not strict enough about protecting such liberties. The mechanism of guaranteeing civil liberties through the political system of the United States has a wide range of reference significance for the design and construction of the perfect political system. Many countries have stipulated various rights of citizens in the form of codified constitutions. If the mechanism to protect these rights from being infringed is not perfect, these rights may remain on paper forever and cannot enter the lives of ordinary people. The enactment of the written constitution not only means the promulgation of laws, but also means a set of more perfect legislative, judicial and law enforcement procedures which are different from the general judicial procedures.
3.4 The hindering effect of the written constitution on liberty
Historically, public power has often infringed on civil liberties more often than individuals. As an authoritative and powerful public power, the government represents the country to some extent, and it is easy to infringe citizens' liberty on issues related to national security and government authority. Although these violations are not necessarily intentional, it can result in the violation of civil liberties.
The first known case involving liberty of expression was Schenck-vs- United States in 1919. This case was to determine whether a law passed by Congress was unconstitutional through litigation in the judicial system. They charged Schenck with conspiracy to violate the Espionage Act of 1917 in the context of World War I. The Act prohibits any disrespect for the government of the United States, the federal Constitution, as well as the branches of military and the United States’ Flag. Punishing individuals who violate the Act with a fine up to $10,000 or up to 20 years in prison. Schenck, the general secretary of the Socialist Party of America, directed the printing and distribution of anti-war leaflets to Army conscripts in Philadelphia. Upon appeal, The Supreme Court upheld the Federal District’s decision, sighting that Espionage Act did not violate Schenck’s first amendment rights Concluding that speaking to the public against government policies can result in jail time, suggesting that freedom of speech is not completely guaranteed.
4 Why UK needs a written constitution
Currently, the United Kingdom is the most representative unwritten constitutional state in the world. Dating back 200 years, the uncodified system of the UK has met the needs of stable social and political development. . Therefore, in the eyes of the UK, the unwritten constitution is superior to the written constitution (BOGDANOR et al, 2007). It is widely believed that the advantage of the unwritten constitution is in its flexibility is its ability to be amended without a drawn-out formal process. Making it easier to adapt constitutional norms to the changes in social conditions and ideologies (Blick & Dickson, 2018).
However, the flexibility of the UK constitution has come under scrutiny with the rise of the human rights movement. There is a growing concern that the UK's unwritten constitution is not conducive to the protections of fundamental human rights. Whereas in the past, the pliability of the UK Constitution once considered an advantage, it is now viewed as a risk. The relevant provisions of the UK constitution make the government accountable to Parliament and the electorate, the government must obey the law, and parts such as the interests of individuals and minorities are inevitably modified, superseded, or abolished (Backer, 2014). UK law ostensibly tries to avoid rules and principles, believing that those human rights and procedures that should be protected have stability and continuity. Although the UK constitution could rely on traditional culture and maintain relative stability in the modern era, this stability, while increasing, was lacking in security. The stability of the UK constitution is based entirely on convention and custom, as citizens become accustomed to change, the constitution is bound to change as well. As noted above, the risk that the unwritten constitution of the United States has led to contradictory results because of changing perceptions is also present in the unwritten constitution of the United Kingdom. Moreover, the configuration of power in society is not fixed and can be changed by deciphering constitutional conventions, greatly enhancing the function of modern government but also jeopardizing the protection of individual rights and weakening the function of constitutional conventions (Ackerman, 2018). Thus, changes in political values and attitudes have altered the understanding of the constitution, requiring us to revisit the meaning of the unwritten and written constitutions for the liberal power of UK citizens.
A written constitution does not in fact appear to undermine civil liberties because of its strict definition of rights. In fact, rather than impeding liberty, this strict codified definition of civil rights promotes liberty by protecting the stability of the judicial system. Allowing the changing perceptions of citizens to affect the understanding of the constitution actually increases the risk to the judiciary.
Ackerman, B. (2018). Why Britain Needs a Written Constitution—and Can’t Wait for Parliament to Write One. The Political Quarterly (London. 1930), 89(4), 584–590.
Backer, L. C. (2014). Jiang Shigong on “written and unwritten constitutions” and their relevance to Chinese constitutionalism. Modern China, 40(2), 119–.
BOGDANOR, V., KHAITAN, T., & VOGENAUER, S. (2007). Should Britain Have a Written Constitution? The Political Quarterly (London. 1930), 78(4), 499–517.
Blick, A., & Dickson, B. (2020). Why does the United Kingdom now need a written constitution? Northern Ireland Legal Quarterly, 71(1), 59–.
Chafetz, J. (2008). Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the UK and American Constitutions . Yale University Press.
King, J. (2019). The Democratic Case for a Written Constitution. Current Legal Problems, 72(1), 1–36.
Michelman, F. I. (2018). “Constitution (Written or Unwritten)”: Legitimacy and Legality in the Thought of John Rawls. Ratio Juris, 31(4), 379–395.
WINETROBE, B. K. (2011). Enacting Scotland’s “Written Constitution”: The Scotland Act 1998. Parliamentary History, 30(1), 85–100.
I. PALMER (2021, MAY 27). 23 Meaningful Bible Verses About Freedom.