What are the disadvantages of a codified constitution?

  1. FLEXIBILITY
  • Entrenched rights make it hard to react quickly in crises.
  • No changes could be made after the 2012 Sandy Hook school shooting which killed 28 people because of the entrenched 2nd amendment right to bear arms.
  • After the 1996 Dunblane shootings, the UK Gov were able to quickly pass legislation banning certain guns because the laws were unentrenched.
  • UK gov quickly reacted to the Northern Rock Banking Crisis with the Banking (Special Provisions) Act 2008.
  • US, has only been amended 17 times since Bill of Rights 1791 – If amendment process is too difficult then many new and modern amendments often are never able to get through the legislative branch.
  1. STRONG CHECKS AND BALANCES CAN LEAD TO GRIDLOCK
  • Some argue that UK does not need a codified const and with that comes stronger checks and balances on branches of govt – because the already present political constraints on the govt’s power are arguably just as effective as legal limits.
  • Problem w/ gridlock: all debates grind to a halt + nothing happens w/in the govt.
  • Political limits on exec power in UK can be argued to be as effective as constitutional limits:
  • Official Opposition means the threat of defeat should make the govts limit the use of its considerable power in order to get re-elected.
  • Backbench MPs mean a govt w/ a large majority may be defeated by its own MPs if it strays too far from its manifesto commitments.
  1. CODIFIED CONSTITUTIONS CAN POLITICISE THE JUDICIARY
  • Many argue that current uncodified const strikes a good balance between UK judges and elected officials – because people have elected executive branch + so are far more likely to recognize its legitimacy – the same is not true for judicial branch, so should have less power overall.
  • Benefits of existing relationship: The judicial branch can help to keep the politicians in check and help to enforce these unwritten conventions.
  • The importance of a less important + politicized judiciary = anonymity and non-partisanship is protected in this branch, whereas the other two and saturated by this. E.g. Aug 2019, PM Boris Johnson tried to prorogue parl. – the judiciary branch stopped him, however, ultimately the power is in the hands of the elected officials – good because they are elected = accountable to voters and judiciary is not – useful as it works only to implement law.