US Constitution: Its Philosophical Underpinnings And Checks ✓ Solved

US Constitution, Its Philosophical Underpinnings and Checks

You have been taught about the US Constitution, its philosophical underpinnings and checks and balances related to the separation of powers. The UK system does not implement separation of powers thoroughly. The system in the United States Constitution has formally separated the legislature from the executive. The South African Constitution has a similar weakness to the UK system in that the President is elected by parliament. However, it has institutions created by Chapter 9 of the Constitution which seek to police the other branches of Government and guard democracy. These include, amongst others, the Public Protector. You have been introduced to both direct constitutional mechanisms for limiting the power of the three primary branches of government and indirect constitutional mechanisms, such as the freedom of the press in the first amendment.

The assignment requires writing an essay divided into two parts. The first part concerns the design of different constitutions, identifying important parts or elements of relevant constitutions, and explaining which elements should be present in a modern constitution and why. The second part concerns judicial review in the UK, USA, and KSA, supported by appropriate court cases. Key issues include identifying the highest court, the categories of laws that can be reviewed, the applicability of human rights instruments, and the role of international or supra-national courts in reviewing laws.

Paper For Above Instructions

Introduction

The study of constitutions forms the bedrock of understanding the frameworks within which governments operate. Constitutions not only provide the legal structure for governance but also embody the philosophical ideals that guide the functioning of a state. This essay explores the essential elements of various constitutions, namely those of the United States, United Kingdom, South Africa, and the Kingdom of Saudi Arabia (KSA). The first part outlines these elements and discusses their significance in constructing a modern constitution. The second part delves into judicial review, examining the highest courts in the UK, USA, and KSA, their authority to review legislative acts, the effectiveness of human rights instruments, and the role of international judicial bodies in this process. The importance of these discussions lies in the necessity to balance governance, protect democracy, and ensure accountability within states.

Part 1: Design of Different Constitutions

Constitutional design is pivotal in establishing the rule of law and protecting individual rights while ensuring government accountability. The constitution of the United States serves as a paradigm for many democracies worldwide. Among its notable features are the Bill of Rights, which enshrines individual liberties, and a comprehensive system of checks and balances designed to prevent the concentration of power in any single government branch. Similarly, the South African Constitution also emphasizes human rights and includes mechanisms to uphold democratic principles through institutions such as the Public Protector, which monitors governmental conduct (Mogoeng, 2016).

The UK constitution, while effective in some respects, lacks a codified framework, leading to ambiguities in the separation of powers. The UK's political system often faces criticism for its parliamentary sovereignty, where the executive branch can exert substantial influence over legislative processes, thus indicating a deficiency in checks and balances (Kean, 2015). On the contrary, the KSA’s constitution lacks a formalized written document, which impacts the establishment of definitive checks against the executive branch. The king's notable powers stem from both Sharia law and royal decrees, limiting the traditional checks found in more codified systems (Alshahrani, 2020).

To create an effective modern constitution, critical elements must include a robust Bill of Rights that encapsulates civil liberties, an independent judiciary equipped with judicial review powers, and clear mechanisms for checks and balances between branches. These elements not only promote individual freedoms but are also vital in maintaining a transparent governance system. The inclusion of independent commissions and bodies further enhances the accountability of state institutions (Hameed, 2019).

Part 2: Judicial Review in the UK, USA, and KSA

Judicial review is a fundamental process that allows courts to assess the legality of legislative and executive actions. In the United States, the Supreme Court stands as the apex judicial authority, established by Article III of the Constitution (Dworkin, 2006). The Supreme Court has the authority to review primary legislation, delegated legislation, and actions by the executive branch. This extensive review capability was solidified in landmark cases such as Marbury v. Madison (1803), which established the principle of judicial review (Klarman, 2016).

In the UK, the highest court is the Supreme Court, which was established in 2009, replacing the House of Lords as the final court of appeal (Murray, 2018). The UK Supreme Court can review delegated or subordinate legislation but faces limitations concerning primary legislation due to parliamentary sovereignty. Notably, the courts have the authority to interpret legislation in line with the Human Rights Act 1998, ensuring adherence to the European Convention on Human Rights.

Conversely, the KSA lacks a clearly defined system of judicial review, as its legal framework draws heavily from Islamic law and the king’s decrees. While there are courts that hear cases, the King remains an unchallenged authority, leaving limited capacity for judicial review against governmental acts or laws (Alhadlaq, 2019).

Concerning human rights instruments, the U.S. courts can utilize the Constitution's provisions to review legislation, while in the UK, the Human Rights Act facilitates judicial evaluation of primary legislation's compatibility with European standards (McGoldrick, 2014). In the KSA, international human rights instruments misalign with domestic laws, posing challenges for judicial review processes.

International and supra-national courts, such as the European Court of Human Rights, provide additional layers of checks on national laws, particularly where human rights standards are at stake. These courts may review domestic legislation to ensure alignment with international obligations, demonstrating the interconnectedness of legal systems (Morris, 2021).

Conclusion

The design of constitutions and the mechanisms of judicial review are critical in enforcing accountability and protecting the rights of citizens. A modern constitution should incorporate robust checks and balances, an unequivocal Bill of Rights, and an empowered judiciary capable of conducting thorough judicial reviews. The comparative analysis of the constitutions of the USA, UK, and KSA highlights the diverse approaches to governance and the significance of codified rights and judicial power. As global society progresses, the continued examination and refinement of constitutional frameworks will be paramount in ensuring that democracy thrives and the rule of law prevails.

References

• Alhadlaq, H. (2019). The Role of the Judiciary in the Kingdom of Saudi Arabia. Journal of Middle Eastern Politics, 14(2), 35-54.
• Alshahrani, S. (2020). Governance in Saudi Arabia: Challenges and Paradigms. Arab Journal of Governance, 7(1), 22-45.
• Dworkin, R. (2006). Justice in Robes. Harvard University Press.
• Hameed, A. (2019). Institutional Safeguards for Democracy in the Constitution of South Africa. South African Political Studies, 42(3), 30-49.
• Kean, K. (2015). Parliamentary Sovereignty and the Judiciary in the United Kingdom. UK Law Review, 22(4), 445-467.
• Klarman, M. J. (2016). From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality. Oxford University Press.
• McGoldrick, D. (2014). The Human Rights Act 1998: A Commentary. Human Rights Law Review, 14(2), 193-208.
• Mogoeng, M. (2016). Transforming the Judiciary: Lessons from South Africa. Judicial Review Quarterly, 3(1), 6-20.
• Morris, R. (2021). International Courts and Domestic Law: The ECHR's Influence on Member States. European Journal of Law, 28(2), 110-125.
• Murray, C. (2018). The Development of the Supreme Court of the United Kingdom. Constitutional Studies, 20(1), 1-23.