Strength and weakness of different types of constitutions : This is a big question for an important document. From my perspective, which is not an expert one.Even though this is one of the greatest documents outlining citizens rights in history, it does have some points where it is both strong and weak.
Elements of Strength of Written Constitutions : –
Both so called written and unwritten constitutions have their elements of strength and weakness. In favor of the enacted 0r written constitution are the advantages of clearness and definiteness. Its provisions being embodied in an instrument prepared ordinarily with great care and deliberation, the likelihood of uncertainty as to its meaning is obviously less than where its prescriptions consist of customs and usages.
Such Constitutions cannot be easily bent and twisted by the legislature or the courts to mean what the demands of the moment may seem to require, and hence the protection they afford and the rights they guarantee are apt to be more secure. The process of alteration being usually more difficult than is the case with ordinary laws, they are more stable and steady and free from the dangers of temporary popular passion.
But the latter advantage often proves an element of weakness. Experience shows that the difficulty of amending rigid constitutions has often prev vented the introduction of needful changes and thereby retarded the healthy growth and progress of the State. It was a saying of Macaulay that the great cause of revolutions is this that while nations move onward, constitutions stand still.
The temptation to violate such a constitution When it is outgrown and no longer suitable to existing conditions sometimes becomes irresistible. on the contrary, too easy facility for producing amendments is provided, there is danger that constitutional changes may be made objects of party struggle for party purposes, and changes will be forced into the written instrument before they have wrought themselves into the constitution of the nation.
Strength of Unwritten Constitutions:-
In favor of unwritten or flexible constitutions, are the elements of elasticity and adaptability. Being alterable With the same ease and facility with which ordinary laws are changed, they are capable of being modified so as to make possible the adjustment of the constitution to new and changing conditions of the society. This facility of alteration not only removes the temptation to disregard the constitution, but also affords a legal means of satisfying popular passion and of minimizing or preventing revolutions by meeting them halfway. In the life of every people there are crises when in-elasticity becomes a danger when the constitution must be altered or it will be violated.
A flexible constitution is capable of being twisted to meet the great emergencies where a rigid constitution would break under such circumstances. As Bryce aptly remarked, they can be stretched or bent so as to meet emergencies without breaking their framework and when the emergency has passed, they slip back into their old form like a tree whose outer branches have been pulled aside to let a vehicle pass. Such a constitution also recovers from shocks without injury where a written constitution would be injured past mending.
Judge Gooley said that of all the-constitutions which may come into existence for the government of the people, the most excellent is obviously that which is the natural outgrowth of the national life, and which, having grown and expanded as the nation has matured, is likely at any particular time to express the prevailing sentiment regarding government and the accepted principles of civil and political liberty. And the least valuable, he added, is that which turns its back upon the national experience, dissevers the national future from the past, and lays the framework of the government in ideal perfection.
One of the weaknesses of a written constitution is that it often represents an attempt to compress into a single document the principles of the political life and growth of the nation for an in definite period of time. It is like an attempt to fit a garment to an individual without taking into consideration his future growth and changes in size. Some written constitutions in the past have, been framed without regard to one of the most important principles in the life of 1the state, namely, that of growth and expansion.
Gladstone once observed that no greater calamity could befall ‘a people than to break utterly with their past, and readers of Burke’s Reflections on the French Revolution will recall his .severe criticism of the French Revolutionists for doing. this very thing. It was partly for this reason that the eighteenth-century French constitutions were short-lived. They were framed as if they were the starting point in the life of the state instead of a mere step, and as if they could be fitted to the nation as a straitjacket to an individual. No historical constitution, said Maine, ever suffered their ludicrous fate. A state with such a constitution, he observed, is at best in the disagreeable position of a British traveler whom a hospitable Chinese entertainer has constrained to eat a dinner with chopsticks.
Defects of Unwritten Constitutions :-
Unwritten constitutions, like those of the rigid type, have elements of weakness. They have been criticized as being unstable and with no guarantee of solidity and permanence. They are, said Bryce, in a state of perpetual flux, like the river of Heraclitus into which a man cannot step twice. They can be altered to meet the temporary fancies of the moment as an ordinary Statute may be, for they have no higher legal authority than other laws and are changed in no different manner.
They have also been criticized as the playthings of judicial tribunals because in the vast storehouse of literary matter out of which their provisions are to be gathered it is easy to find or not to find that which one will. It has been said also that they are unsuited to democracies, and are more adaptable to aristocratic societies. The masses in a democracy are suspicious of, if not hostile to, constitutional prescriptions which have not been formally enacted but which rest mainly upon custom and usage. There is also a popular belief that unwritten constitutions allow a wider discretion tb public of officers than do those of the written type. The masses like, said .Bryce, something plain, simple, and direct, and entertain a suspicion of the arcana imperii of which unwritten constitutions are full.
Judge Jameson, a high authority on the subject of constitutions, thus describes the relative merits of the two types, Considering the excellencies and defects of the two varieties of constitutions, it is not easy to strike a balance between them. For a community whose political training has been carried to a high degree of perfection, in my view an unwritten constitution would, on the whole, be preferable.
In that training two elements would be of vital consequence to the safety of the system first, an accurate understanding of their political rights and duties, generally among the citizens, second, sleepless vigilance to detect violations of the constitution, and the utmost promptness and energy to resist and punish them. Without either of these elements, the usurpations of public functionaries must bring the system to speedy ruin.
But for a community whose training has been imperfect or which is subject to fits of political apathy alternating with those of intense zeal for reform, a written constitution is doubtless the better one. While less flexible to the pressure of the national will, and therefore liable in many of its provisions to become obsolete and oppressive, it is a formidable barrier against usurpation.
Its provisions are so plain that he who transgresses them must generally do so intentionally, and the fact must be so apparent that usurpation would in most cases not be ventured upon, as likely to arouse a dangerous opposition. The superiority of such a constitution in the circumstances supposed follows from the fact that immobility, with its train of possible evils, is less dangerous than movement that is ill-judged or unconstitutional.
Whatever may be the merits and demerits of written and unwritten constitution, it is clear that the popular preference is for the former. Strictly speaking, the British constitution is the only remaining example of the latter class. One after another of the states of Europe have followed America and adopted the written types, while Japan, China, Australia, Persia, Liberia, South Africa, and other countries outside of Europe and America have done likewise and no state which has once tried the written constitution has ever returned to the unwritten type.