Comparing constitutional arrangements

Comparative theories in politics

1. Structural theory: focuses primarily on institutions and their structure, their formal and
outward appearance. It is most logically applied to topics such as constitutions and legislatures.
Good examples include the ways in which constitutions can be amended, or the powers
possessed by different chambers in a legislature. If politics were a play, the structural theory
could be said to represent the script.
2. Rational theory: the focus here is on the actions and behaviours of groups and individuals. It
can be usefully applied to studying areas such as voting behaviour and the methods adopted by
pressure groups to achieve their aims. The emphasis is on what political tactics make logical
sense in any given situation. To continue the drama analogy, the rational theory could symbolise
the play’s actors.
3. Cultural theory: the emphasis here is on history, shared values and cultural context. This
theory is particularly relevant when examining constitutions and their origins, the nature and
traditional values of political parties, and the background to why legislatures and judicial
benches have developed as they have. To complete the theatrical analogy, the cultural theory
could be seen as the production process leading up to the play being performed, and key
historic features of the venue.

Comparing the constitutions of Britain and America

The structure and potential for change of each constitution
• First, both fulfil the same functions of laying out the framework of democratic politics and
accountable political institutions.
• They also both seek to defend individual rights and deal with issues such as discrimination.
• Finally, in their different ways, both have adapted to the emergence of mass democracy without
the need for a political and therefore constitutional revolution. This is in contrast to some other
democracies, such as France and Germany, where new constitutions have been implemented
following times of political upheaval.
In the USA, differences extend beyond inherent characteristics and are evident in the
distribution of power. The deliberate separation of powers involves distinct branches of
government—executive, legislative, and judicial—each holding a share of government
authority.
In the UK, there is more of a fusion of powers in the legislature: whoever controls parliament
controls the nation. What this often means in practice is that there are few formal or powerful
checks on a prime minister with a large majority. There are checks afforded by their parliamentary
party — backbench rebellions and on occasion, as with Boris Johnson’s attempted prorogation of
parliament in 2019, by the courts. Otherwise, between elections and with a weak second chamber,
the accusation of elective dictatorship holds some sway some of the time.

In the USA, unlike the UK, even presidents with control of both houses of Congress, like
Trump from 2016 to 2018, may struggle to pass legislation, as seen with the American
Health Care Act in 2017. Legal challenges and the need to persuade party representatives
in Congress are common. Theresa May's challenges with Brexit unity and MP discipline
mirror some routine issues faced in the White House.

The rational dimension

Table 12.2 How do the UK and the US constitutions work in practice?
The cultural and historical context
The reasons for the constitutions’ different natures can be explained in large part by their different
origins and intent.

Principles
The US Constitution, deliberately formulated with clear principles and compromises,
embodies features like republicanism and representative government, rooted in a
revolutionary context. In contrast, the British Constitution, shaped over centuries,
incorporates parliamentary government and democratization. While largely ceremonial,
the British Constitution maintains a monarchical element, involving prerogative powers.
The US Constitution, though more specific, allows for some vagueness with implied powers
not explicitly outlined.

Heritage
In comparing the two constitutions, the UK retains a historical legacy of hereditary practice
and deference, evident in documents like the Magna Carta and the titles of legislative
chambers. The acceptance of hereditary peers and bishops is seen as tradition rather than a
democracy concern. In contrast, the US Constitution rejects monarchical or hereditary
principles, drawing inspiration from ancient Rome and Greece. Both constitutions trace
their roots to classical republicanism (USA) and traditional monarchism (UK).
Individual rights
In terms of individual rights, the US Constitution explicitly emphasizes protection,
reflecting a strong historical American attachment to individual liberty. The UK also has a
historic commitment to civil liberties, evident in documents like Magna Carta and the 1689
Bill of Rights, which limit the power of monarchs. Notably, neither constitution initially
aimed to protect the rights of every individual, with Magna Carta being an agreement
between King John and his barons, and the Philadelphia Constitutional Convention
reflecting the views of a colonial male elite. The adaptability and revisions of both
documents over time demonstrate the foresight of their drafters.

Comparing and contrasting, US federalism and UK devolution

The US Constitution enshrines federalism as an entrenched principle (Tenth Amendment),
making it difficult to repeal. In the UK, devolution was established through parliamentary
statute, allowing for potential reversal by a subsequent parliament, although this is highly
improbable given the current political climate. Devolution in the UK involves the
delegation, not alienation, of powers.
In the United States, states wield more law-making powers than devolved regions in the
UK, exemplified by differences such as the death penalty. However, the gap is narrowing,
with increasing legislative distinctions across the UK. Scotland, for instance, sets higher
income tax for top earners, and England charges higher tuition fees for university students.
While the US has seen a rise in federal government influence, especially in healthcare and
education, states still have autonomy in determining electoral systems. Similarly, devolved
assemblies in the UK, like Scotland and Wales, can choose their own systems, leading to a
diverse range of approaches across the country. For example, Scotland and Wales use the
additional member system (AMS), while Northern Ireland employs the single transferable
vote (STV) system.
In the UK, devolution applies only to Scotland, Wales, and Northern Ireland, leaving
England without its own parliament. The majority of the UK's population resides in
England, where decisions are made by Westminster MPs, limiting the power of English
councils compared to the legislative authority of devolved regional assemblies. In the USA,
the federal system uniformly governs all 50 states, granting legislative equality. However,
state laws must align with federal law and the Constitution, leading to legal challenges for
issues like abortion and campaign finance.

Comparing the legislatures: Congress and parliament

There are certain key similarities between the legislatures of the UK and the USA:

➢ Both pass laws that have legislative supremacy over any state or devolved measures.
➢ Each has a vital representative role, above all through political parties and geography.
➢ In both cases, the bodies serve as important checks on the executive, while committees play an
important role in this process.
 ➢ Both institutions are bicameral (they comprise two chambers).
➢ Political parties dominate proceedings in both Congress and parliament.

The strengths and weaknesses of each legislature

Legislators resembling their voters
In both the UK and the USA, the people in charge (in parliament and Congress) are mostly men, white,
and older, which doesn't fully represent the diverse population. Although there's progress, the numbers
are still low. In 2019, a third of the UK parliament members were women, and just over a quarter of the
US Congress was female in 2020. More people from minority ethnic groups are getting elected, but it's
still not proportional to the general population, where over half the voters are women, and about 14%
(UK) and 33% (USA) are from minority ethnic backgrounds.

Both the UK and US legislatures grapple with underrepresentation, but the party disparity is more
pronounced in the US Congress. In the 2018 midterms, 88 out of 101 newly elected women in the House
were Democrats, with only 13 being Republicans. However, after the 2020 congressional elections, the
number of female Republican House representatives roughly doubled. In the UK, there is less gender
gap between the Labour and Conservative parties, with a quarter of Tory MPs being women after the
2019 election, compared to just over half for Labour.

Legislators as political representatives

Majoritarian electoral systems in both constitutions lead to overrepresentation of the two largest
parties and underrepresentation of third parties, more pronounced in the USA where no third party is in
Congress. Parliament, in contrast, features a wider range of parties, including the Liberal Democrats in a
coalition with the Tories from 2010 to 2015, and nationalist parties.

Legislators as checks on the executive

In the UK, prime ministers face the influence of backbenchers, as seen with Theresa May and
Margaret Thatcher. In Congress, the president has a separate mandate, and only impeachment
can remove them, a challenging task due to the two-thirds Senate majority requirement. Strong
partisanship in Congress often hinders such efforts, as demonstrated by limited Republican
support for Trump's impeachment. In contrast, all UK prime ministers must maintain the
confidence of the House of Commons.
Congressional scrutiny is potent in various ways. Committees can conduct inquiries into
executive actions, spanning from wars under George W. Bush to political bias allegations at the
Internal Revenue Service during Barack Obama's presidency. In the UK, select committees can
highlight government failures, like the Windrush immigration scandal, but lack direct
enforcement powers. However, Parliament has a unique advantage with the ability to directly
question ministers and prime ministers during Prime Minister's Question Time (PMQs).

Legislators as effective lawmakers

Parliament is typically more efficient and effective than Congress due to Commons
dominance, parliamentary sovereignty, and strong party discipline. In the UK, bills
progress faster, and the annual budget is less likely to face prolonged debate. Conversely,
the U.S. legislative process is slower, with both chambers needing agreement. While
Westminster is more efficient, Congress is seen as more effective in thoroughly scrutinizing
fiscal issues. In times of crisis, both legislatures can swiftly pass emergency legislation,
evident in responses to the COVID-19 pandemic and security measures post-9/11 and 7/7
bombings.

Legislators as viewed by the voters

Congress consistently has low approval ratings, with the last rating above 50% dating back
to 2003. In October 2020, the approval stood at 19%, indicating widespread disapproval. In
contrast, there are no distinct approval figures for the UK Parliament, reflecting the
traditional intertwining of parliament and government in British perception.

Conclusions
Both legislatures have their strengths and weaknesses. Parliament’s key strengths include:

✓ the ability to question members of the executive directly

✓ a range of parties are represented in the chamber
✓ government can implement its policies with relative ease

But critics would argue that:

 it does not provide an effective enough check on the executive especially over fiscal policy
 the second chamber is weak
 its committees remain either dominated by party, in the case of public bill committees, or
relatively toothless, e.g. select committees

Congress’s main strengths include:

✓ a strong and established committee system

✓ two powerful chambers, which reduces the chance of one-party dominance over the executive
✓ several important checks on the executive, such as the veto override and, ultimately,
impeachment

Its detractors would argue that:

 Congress is too often a ‘bastion of negation’, namely very effective at stopping things happening
 Congress has in recent decades become overly partisan, and this has reduced the objectivity of
its committees. Republican-controlled committees investigate Democrat executives with
partisan rigour, and the roles are reversed when there is a Republican in the White House and
Democrats control one or both congressional chambers.

Theoretical approaches to comparing the constitutional arrangements

Comparing the constitutions
Structural theory demonstrates a number of key comparisons in the nature of the two countries’
constitutions:

❖ The US Constitution is codified and the British Constitution is uncodified, meaning that the
contents of the US Constitution are more accessible and better known.
❖ Fusion of powers in the UK contrasts with a separation of powers in the USA, although both
terms need qualifying. Neither constitution completely embodies each principle.
❖ There is a federal arrangement in the USA while the UK has a predominantly unitary structure
though with a growing role for devolved assemblies.

Rational theory demonstrates several key comparisons in the nature of the constitutions:

❖ The key role of the US Supreme Court makes it a major focus for pressure groups and lobbyists.
In the UK, the traditional focus for lobbying is parliament.
❖ In both constitutions, the leaders often have to spend time persuading fellow party members to
support their bills and policies, although this is more usual in the USA.
❖ Federalism in the USA means that state governments are a major focus for lobbying. In the UK,
the devolved assemblies are increasingly becoming targets for pressure groups, but post-Brexit
the EU is far less of a target.

Cultural theory demonstrates several key comparisons in the nature of the constitutions:

❖ There is a deep-rooted attachment to states’ rights in the USA, in contrast to the traditional
emphasis on parliamentary dominance in the UK.
❖ The British Constitution is a product of evolution and gradual change. The US Constitution,
however, is the product of revolution, and was created largely in one go at the 1787
Constitutional Convention in Philadelphia.
❖ The British Constitution retains traditional residual elements of aristocratic and church power,
especially in the Lords. The US Constitution contains some terms from the classical republican
world, such as Senate.

Comparing devolution and federalism

Structural theory demonstrates two key comparisons between devolution and federalism in both
countries:

➢ The US Constitution's Tenth Amendment solidifies federalism, granting each state significant
law-making powers. In the UK, devolution is established through parliamentary statute and is
not constitutionally entrenched.
➢ Federalism applies uniformly across the nation, whereas devolution does not — it only applies
to parts of the UK and devolved powers remain relatively limited.

Rational theory demonstrates several key comparisons between devolution and federalism:
 ➢ In the USA, state elections are significant affairs and often fiercely contested both between and
within the two main parties.
➢ US pressure groups focus much of their activity on state legislatures but also state supreme
courts. In the UK, parliament and Whitehall remain the focus of lobbying.
➢ In the UK, devolved regions, notably with parties like the SNP and Sinn Féin, see success in
assembly elections as crucial steps toward achieving full independence. In contrast, secession
has not been a viable option for US states since 1865.

Cultural theory demonstrates a notable comparison between devolution and federalism:

States' rights are ingrained in US political history, evident in a strong affinity for state-based
institutions where state governors often have higher approval ratings than presidents and
Congress. In the UK, leaders of regional assemblies, though relatively new to the political stage,
have gained prominence and significance in recent years.

Comparing the legislatures

Structural theory demonstrates several key comparisons between the two countries’ legislatures:

❖ Both chambers of Congress wield substantial concurrent powers, especially over legislation,
requiring approval from both. Powerful committees, such as those in the House initiating
impeachment, contribute to their influence. In the UK, the Commons holds dominance since the
1911 Parliament Act, limiting the Lords' powers, rendering them unable to veto legislation.
❖ In the UK, the executive is within the legislature, with all members of the prime minister's
cabinet required to be in Parliament and directly accountable to it. In the USA, the executive is
entirely separate, and no member of the cabinet can simultaneously be in Congress.
❖ In the USA, more power lies with the 50 states, meaning Congress is not the only important
political arena. While the situation is changing in the UK, Westminster still dominates most areas
of political life, especially over issues such as Brexit and the budget.

Rational theory demonstrates two key comparisons between the legislatures:

❖ In both nations, two political parties have dominated political affairs. Yet third parties are more
significant in Westminster and indeed held the balance of power between 2010 and 2015, and
again from 2017 to 2019.
❖ Party discipline is traditionally stronger in the UK, reducing the need for party leaders to
persuade MPs to follow the party line. A leader with a solid majority can often ignore internal
dissent. However, recent experiences have somewhat challenged this assumption. In the US,
presidents still seek bipartisan support for challenging legislation or nominations.

Cultural theory demonstrates two key comparisons between the legislatures:

❖ Parliament and Congress each have long-standing traditions, but Parliament is often seen as
more laden with arguably outdated practices like the Queen's Speech and an antiquated voting
system. While Congress also has enduring traditions and constitutional requirements, it is
generally perceived as less dominated by ancient rituals, yet it has developed its own, such as
the Senate filibuster.
❖ In the UK, the debating floor of the Commons, especially during events like PMQs, is a
cornerstone of political theatre. However, direct questioning of ministers or the president is not
possible in Congress due to the separation of personnel. Moreover, the debating floors of
Congress generally lack the dramatic and overtly adversarial nature seen in the Commons.