The flexible constitution places constitutional law and ordinary law on the same level in the sense that both are enacted in the same way and both proceed from the same source. If the constitutional law can be amended, repealed or altered by the same procedure as the ordinary law, the constitution is flexible.
It does not matter whether the constitution is primarily written or consists largely of conventions. What is essential to determine is, how the constitutional law and statutory law stand to one another.
Do they stand at par with one another or are some sanctity, some superiority, attached to the constitutional law? And what is the procedure required for altering or amending the constitutional law?
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If the constitutional law and the ordinary law emanate from the same source and both go through the same procedure in passing and amending them, then, the constitution is flexible.
It means that there is no difference between the constitution-making authority and the ordinary law-making authority. Parliament in Britain is sovereign and by sovereignty of Parliament Dicey means:
1. There is no law which Parliament cannot make;
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2. There is no law which Parliament cannot unmake; and
3. There is under the English Constitution no marked or clear distinction between laws which are fundamental or constitutional and laws which are not.
Constitutional changes in Britain can be made by Parliament in the same way as it may pass a law prohibiting drinking.
A law aiming to effect constitutional changes and the ordinary law are both subject to the same legislative procedure, that is, a bill must be read three times in each House of Parliament and after having been approved by both Houses, it becomes law on being formally assented to by the King.
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The courts have no authority to nullify any enactment of Parliament. It means no special sanctity is attached to the constitutional law, and the constitutional and statutory laws stand at par with one another.
Flexible constitutions were almost the only kind known to the ancient world. The position is now reversed. The only surviving example of a flexible constitution and unwritten, too, is Britain.
Austria-Hungary had also an unwritten and flexible constitution before World War I. The Constitution of Italy down to 1928 was flexible, though written. Similarly, the first constitution of the Irish Free State (1922-37) was written and it provided for two methods of amendment, but it “became, in practice, flexible.”
The rigid constitution possesses a special and higher status, standing above the ordinary law and alterable by a procedure different from the one used in the case of ordinary law, thus, making it difficult to change. The object is to emphasise that the constitutional law embodies the will of the sovereign and it should not be alterable by the ordinary, legislative process.
A rigid constitution interposes a barrier to statutory encroachments. The powers of the legislature are limited by the constitution itself. If the statutory law conflicts with or is not in conformity to the constitutional law, it is ultra vires or unconstitutional and cannot become operative.
But who shall say what a particular clause of the constitution means or whether this or that statute is consonant with it? Legislatures cannot be entrusted with such a power, because the object is to devise means against legislative encroachments.
The courts then become the guardians of the constitution. They fix its meaning they set bounds to the competence of the legislature under it and annul what, in their opinion, goes beyond the constitution. This method of securing rigidity is called judicial control or judicial review.
The distinction between rigid and flexible constitution is a real one and it found its full expression when for eighteen years Congress of the United States found itself without power to levy income-tax, and when, by decisions of the Supreme Court, Roosevelt’s New Deal was torn to pieces.
Britain affords a sharp contrast. There ordinary statutes may override any decision of the highest court. And what Parliament has enacted, the courts interpret and apply unless parliament has otherwise provided.