Everything and Nothing
Stephen Sedley on the changing constitution
In June last year, the lord chancellor, Lord Irvine, was dismissed in a cabinet reshuffle. It was announced, not to Parliament but by press release, that his office was not to be filled and that his department was to become part of the Department for Constitutional Affairs, headed by a newly appointed minister, Lord Falconer. Of the expected ministry of justice there was no sign. The Home Office, it appeared, would not relinquish its hold on criminal justice. Then it was realised that there were scores of functions which by law only the lord chancellor could perform, and Lord Falconer, wearing a morning coat instead of the splendid black and gold robe, was sworn in as a nightwatchman lord chancellor. The joke went round Whitehall that the legislation enshrining the new dispensation was to consist of a single clause giving press releases from Number Ten the status of primary legislation.
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[*] Constitutions of Europe: Texts Collected by the Council of Europe Venice Commission, edited by the Council of Europe (Brill, 2 vols, 1998 pp., €295, April, 90 04 13932 x).
Letters
Vol. 26 No. 20 · 21 October 2004
From Maurice Vile
Stephen Sedley writes that 'the chief executive of Madison's republic enjoys a power of suspending legislation which it took a civil war in this country to wrest from the crown' (LRB, 7 October). The president of the United States does not have the power to suspend legislation. He has power to veto bills by withholding his assent. But the royal veto was last used by Queen Anne in 1707, long after the Civil War.
Furthermore, it is not true that Montesquieu was the first to advocate the separation of the judicial and political powers of the state. Charles Dallison in The Royalist's Defence of 1648 held that the king must retain the sovereign power of government, but must not have the authority to judge the laws. 'The judges of the realme declare by what law the king governs, and so both king and people [are] regulated by a known law.' Others on all sides of the political spectrum were developing the theory of the separation of powers in the 1640s and 1650s in England, and they wrote more clearly and cogently than Montesquieu did a century later.
Maurice Vile
Canterbury
Vol. 26 No. 21 · 4 November 2004
From Stephen Sedley
Maurice Vile may have misunderstood my point (Letters, 21 October). There is, as he says, a constitutional veto possessed by the president of the US. It is provided by article 1(7) of the Constitution. Its effect is that the bill returns to Congress, where a two-thirds majority will override the veto.
But what I was speaking of when I referred to the presidential power of suspending legislation was the practice, not found in the Constitution but repeatedly acquiesced in by the Supreme Court, of 'impounding' legislation involving public expenditure by capping or postponing it. Justice Felix Frankfurter in 1952 called it 'a systematic, unbroken executive practice, long pursued to the knowledge of Congress and never before questioned'. The constitutional scholar Edwin Corwin had ten years before offered the curious justification that 'the president's very obligation to the law became at times an authorisation to dispense with the law.' The practice was used only as a suspending power until Richard Nixon used it to bring entire programmes of the Democrat-led Congress to a halt – something closer to a dispensing power.
My point was that such a practice can acquire the force of law independently of, and even in defiance of, a written constitution. The continuance of proxy voting in the French chamber of deputies for 35 years after it was banned by the 1958 Constitution is another of many examples.
It is perfectly true that, despite the prohibition of it in the Bill of Rights of 1689, monarchs from time to time exercised a dispensing power over legislation into the early 18th century. But what they were doing was now illegal. The problem was that, unlike the US practice of impounding, it was not justiciable – unless, perhaps, the courts were to have ignored the purported dispensation. It is interesting in this regard that Cromwell's Instrument of Government, 1653, expressly prevented the use of a presidential veto and anticipated the Bill of Rights by forbidding the Protector to dispense with or suspend legislation.
As to Montesquieu, I did not suggest that he was the first to propose the separation of powers. I said that it was he who first helped to make it part of the orthodoxy of democratic theory. As Vile suggests, the flowering of radicalism in the Civil War had thrown up this and other modern ideas long before their time. One finds, for instance, John Warr, whose pamphlets I have edited, writing in 1649 about 'people's rights'. What had changed by the mid-18th century was that these were ideas whose time had come.
Stephen Sedley
London WC1
