Political Institutions
Constitutional law and Democracy: concepts, definitions, approaches NOMINAL DEFINITION
" Existing in name only" a. Stipulative - Given a meaning for argument purposes - " For me democracy means" - No true/ false Winston Churchill: " It has been said that democracy is the worst form of government except all the others that have been tried " b. Lexical - " Relating to the words and vocabulary of the language " - Dictionary - Community meaning - Generally accepted Hans Kelsen ( 1838 - 1922 ) - Juridical definition of democracy as a form of law-making - Law-makers and law-subjects
J.Madison, Federalist Paper No. 9
"The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government." Central government's jurisdiction would be confined to "certain enumerated objects only, (this)... leaves to the several States a residuary and inviolable sovereignty over all other objects."( J.Madison, 1788.194). " Idea- States with residuary and invaluable sovereignty
Hans Kelsen
( 1838 - 1922 ) Background: ( Author of the 1920 Austrian Constitution ) - After leaving Austria, met with Sigmund Freud and wrote on psychology and sociology - Legal Theory and Political Philosophy: PURE THEORY OF LAW(1934) Lexical Definition: - Juridical definition of democracy as a form of law-making - Law-makers and law-subjects Judicial Realism: Normativism: Belief in or advocacy of norms, especially with reference to the primacy or desirability of social norms - Norm creation and interpretation: Applying law based on context, Judges give sense to laws - Supreme law, General and Individual Laws (1925) The state Kompentenz-Kometenze - the state is sovereign maintains its competency to determine its own competencies
J. Habermas
( 1929 - ) Public Sphere German Philosopher and Sociologist Communicative Rationality and the Public Sphere Habermas's theoretical system devoted to: reason, emancipation, and rational-critical communication latent in modern institutions + human capacity to deliberate and pursue rational interests.
B. Ackerman
( 1943 - ) quantitative democracy (50+1%) Constitutionalism: constitution ( people's values and will) + mechanisms against constitutional violations
J. Waldon
( 1953 - ) Unanimity by all means = moral integrity Liberal and normative legal positivist
J.Bodin
(1529 - 1596) Sovereignty - indivisible - Sovereignty must be absolute, perpetual and undivided ( the people, aristocracy or monarch ) Dilemma: State Sovereignty OR liberty Lexical Definition Sovereignty 1. State independence 2. The sum of state powers 3. Supreme bearer (body) of state power 4. Ideological meaning of sovereignty
Bodin
(1576) - Sovereignty is indivisible
James Harrington
(1611 - 1677 ) English political philosopher whose major work, The Common-wealth of Oceana (1656), was a restatement of Aristotle's theory of constitutional stability and revolution. Oceana presents Harrington's vision of the ideal state—an aristocracy of limited, balanced powers. Harrington believed that democracy is most stable where a strong middle class exists and that revolution is a consequence of the separation of economic and political power. These beliefs particularly influenced U.S. Pres. Thomas Jefferson's democratic agrarianism and the antitrust policies of Theodore Roosevelt and Woodrow Wilson. Harrington also advocated the division of the country into landholdings of a specified maximum value, a referendum on each law proposed by the legislature, and a complicated scheme of rotation for public officials. His ideas are said to have been partly responsible for such U.S. political developments as written constitutions, bicameral legislatures, and the indirect election of the president.
J.S Mill
(1806-1873) " Tyranny of the Majority " - Privileging freedom over equality - problem of controlling tyrannical elites
Ferdinand Lassalle
(1862) On the Essence of Constitutions - Written Code - Formal Constitution - Real constitution " relation of forces actually existing in the country " Prussian-German jurist, philosopher, socialist, and political activist.
Carre de Malberg
(1920) : Three Meanings 1. Supreme character of state power 2. Whole range of state powers (attributes) 3. The power of highest organ of state authority ( ex. Parliament Extra 4th: The entity that is being called sovereign ( people, nation maintains: King Kelsen (1925) The state Kompentenz-Kometenze - the state is sovereign maintains its competency to determine its own competencies
Ronald Dworkin
(1931-2013) American Philosopher Law's Empire: Theory of law as integrity // judges interpret the law in terms of consistent moral principles, especially justice and fairness
A.Lijphart
(1999) "Patterns of Democracy" 1. Majoritarian Democracies - Represents the interests of the Majority of people - Concentrate power 2. Consensus Democracy - Represents the interests of as Many people as possible _DISPERSE POWER
Mechanist constitutionalism and the traditional separation of powers
(Harrington and Montesqueu)
European (Kelsenian) model
- Centralized and concentrated - Abstract (+ concrete possible) - By action - Erga ones effect (absolute authority) - A priori (+ a posteriori possible) - Administrative and financial autonomy
US Model Judicial Review
- Decentralized: Federal and state courts all levels - Concrete (common law) - By exception - Inter parties effect (between parties) - A posteriori
President in the USA
- Elected ( 4 years, max 2 terms) - Controls the executive branch of the federal government and appoints the administration - a powerful player in the law-making process (signing, vetoing Congress legislation) - Congress may override a presidential veto (2/3 majority in each house) -President's election: based on an Electoral College System (individual states)
French and American Revolutions
- Establish new political system // Differed fundamentally from old one // - Legitimate rule + Legal framework // BEFORE rulers called to power // - Constitution: emanating from sovereign people ( constituent power ) - Limited government of elected representatives // Safegaurding individual freedom ( fundamental rights) // Separation of powers //
Canadian Provincial System
- Lieutenant Governor - Premier - Cabinet - Ministeries - Municipalities Legislative Assemblies
Factors determining the choice of form of state
- National, historical, cultural idententities - Practical devision ( local governments, constituency -IF heterogenous communities that are historically bound together --> best protected by separation of central-local and unitary state ( Spani, UK) -IF societies founded on necessary geographical association -> federal state (U.S, Germany)
Unitary State
- One legal order ( political and constitutional unity + administrative diversity - Absence of full transfer of attributes of state sovereignty Two possible types: DECONCENTRATION FRANCE Before 1982 France - totally centralized state, deconcentrated only for practical (administrative) reasons, prefects - appointed by state Since 1982 France: delegation of more administrative power, but ex-post control on prefects (burkini) DECENTRALIZATION: ( devolution ) and de sure separation of central and local power ( further administrative diversity (autonomy) : Spain, UK )
Different political systems
- Presidential System ('classical' US model) (Emerging democracies - Latin America) - Westminster Model (UK) - Constrained Parliamentarism (Germany) - Semi-presidentialism (France) - Super-presidentialism (Russia)
Three Principles of U.S Indian Law
- Territorial Sovereignty: Tribal authority on Indian land is organic and is not granted by the respective states - Plenary Power Doctrine: Congress, and not the Executive Branch, has ultimate authority with regard to matters affecting the Indian tribes: Federal courts give greater deference to Congress on Indian matters than on other subjects Trust Relationship: The federal government has a "duty to protect" the tribes, implying (courts have found) the necessary legislative and executive authorities to effect that duty
Judicial Branch headed by the Supreme Court
- an appellate court - structure // Chief Justice and 8 Associate Justices - Life tenure- // Presidential nominees and confirmed by a Senate majority // - US Constitution - no explicit judicial review - BUT the power of the Supreme Court to overturn unconstitutional laws - a well-established precedent
Constitutional law and Democracy: concepts, definitions, approaches Democratic Criteria vs. Democratic Practice
1. Current Democratic Rhetoric "More Democracy" - Representative Democracy: More electoral choices, Accountability - Direct Democracy: Unmediated Participation -Advocacy Democracy: Citizens or public interest groups participate directly in policy-making Complex Problems // Lack of time for deliberation// enlightened understanding // Lack of expert knowledge on policies 2. More or Less Democracy? - The wave of illiberal democracies - Authoritarian Tendencies
Fundamental rights and the separation of powers SEPARATION OF POWERS
1. Doctrine of Separation of Powers Montesquieu, The Spirit of the Laws (1750) - Power stops power (negative thesis) - Tripartite division of power A. Two Traditional Rules 1.) Specialization ( one body fully in charge of a specific power) 2.) Independence ( total independence and separation ) B. Critical Remarks Sovereignty - Indivisible J.Bodin (1529 - 1596) - Sovereignty must be absolute, perpetual and undivided ( the people, aristocracy or monarch ) Lexical Definition Sovereignty 1. State independence 2. The sum of state powers 3. Supreme bearer (body) of state power 4. Ideological meaning of sovereignty
Federal Systems
1. Federalism by dislocation: From unitary state to looser central control ( Belgium ) 2. Federalism by allocation: USA: From confederation to federal states
Fundamental rights and the separation of powers FUNDAMENTAL RIGHTS
1. Madison and the Bill of Rights Was not added to the U.S Constitution for three years. Prior to the American Revolution: 13 colonies worked together through a provisional government: Continental Congress 1781: Articles of Confederation Ratified as the first true government but... a. Congress had no power to make the states comply to their laws b. government could not raise funds, regulate revolutions, or enforce foreign treaties May 1787: Constitutional Convention to reform and create a stronger FEDERAL government (except Rhode Island) a. State Representation b. Taxation power c. How to elect the president FINAL DRAFT NEEDED TO BE APPROVED: Ratification Alexander Hamilton // James Madison // John Jay --> Federalist Papers Federalists vs. Anti - Federalists and protecting people from the state and absolute power in the central government Madison felt that people's rights were already guaranteed through the democratic process --> Extra Provisions // Misinterpretation // Cautious addition of specific provisions FEDERALISTS NEEDED TO COMPROMISE Meeting of First United States Congress --> DECEMBER 15 1791 : Amendments 2. Legal Reasoning on Fundamental Rights a. Legal Positivism (H.L.A.Hart) - Legality is determined by social facts alone, not by morality
Constitutions and Constitutionalism Constitutional Supremacy: opposing views
1. Mechanical ( Formalist ) understanding - Supremacy of constitutional law lies exclusively in requirement of super-majority (a number that is much more than half of a total, especially in a vote) for amendment 2. Carl Schmitt (1928) - Constitution = Law of the Laws - Special quality: a fundamental decision of people ( forma dn nature of its unity ) ( By contrast - amendments are made more difficult because of its special quality )
Fundamental rights and the separation of powers CRITICAL REMARKS TO THE NULLITY OF JUDICIAL POWER
1. The nullity of judicial power The judges must be " no more than the mouth that pronounces the words of the law, mere passive beings, incapable of moderating wither its force or rigor." 2. Judicial Realism Normativism ( A. Merl, H. Kelson ): Belief in or advocacy of norms, especially with reference to the primacy or desirability of social norms - Norm creation and interpretation: Applying law based on context, Judges give sense to laws - Supreme law, General and Individual Laws
Jeremy Bentham
1748 - 1832 - Positive Law: Rejects natural ( moral ) law - Social Facts: Reason for action and law - Law: An assemblage of signs and community meanings, not a natural/moral value Empiricist methodology: Knowledge derives from experiences and experiences are formed through the sense : Observation, experience, induction
UK devolution UK Parliamentary Sovereignty - Unitary State
1997 New Devolution - Sovereignty nit divided, but resolved ( elected regional assemblies) Asymmetric Autonomy - Scottish, Welsh and Northern Ireland Parliments- more autonomy that English regions 2014: Scott 'No' in independence referendum: more powers Scottish parliment 2015: Conservative government more devolution
Federal States in the US Constitution (Section 10)
1: No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money... 2: No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress. 3: No State shall, without the Consent of Congress [...] enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
A priori
A priori is a term of logic used to denote that when one generally accepted truth is shown to be a cause, another particular effect must necessarily follow
Political System
A set of norms, procedures, practices, that refer to the functioning of a political regime The result of the INTERACTION between the NOMINAL (theoretical, constitutional principles) and the REAL political practice - Voting right: universal or not - Electoral system: representativeness or effectiveness - Political Pluralism (recognition and affirmation of diversity within a political body, which permits the peaceful coexistence of different interests, convictions and lifestyles.) : Polarization, consensus-seeking - Historical legacies - External Influence (international intervention: OSCE, UN demands for annulment of election results or resignation of authoritarian leaders) - MASS MEDIA - 4TH BRANCH OF STATE POWER? - Corruption
Constitutions and Constitutionalism French constitutional culture: instability, legicentrisme, human rights
A. French Constitutional Culture PARADOX: Change of constitutional paradigm happened in 1791, it took 200 years for democracy to be embedded in constitutional practice [ Constitutional Projects engendered political instability ] 1. Constitutional supremacy and Constitutional Amendments a. Tension between constitutional rigidity and popular sovereignty/ people's will Title VII: Of the revision of Constitutional Decrees 2. When three consecutive legislatures have expressed a uniform wish for the amendment of some constitutional article, there shall be occasion of the requested revision 3. neither the ensuing legislature nor the one thereafter may propose the reform of any constitutional article B. The History of French Constitutional Revisions - Rigid norms, lack of practical implementation - Experts' constitutional projects, far from people's needs - Lack of popular conscience about constitution ( contract to the USA ) 2. Legicentrisme: The doctrine of the supremacy of Law in French constitutional culture --> The law is the sole expression of sovereignty, having supreme authority in the national order. There is, therefore, no legal constitution at the top of the legal order A. Law Above the Constitution - In France - Law has always had a special place -- No control over it - Law structure the society more than constitution can do (because they fail!) Ferdinand Lassalle (1862) On the Essence of Constitutions - Written Code - Formal Constitution - Real constitution " relation of forces actually existing in the country " French real constitution - Sub-constitutional legal codes - Code Civil (1804) - Les Grands Corps (administrative laws) -Traite de droit politique electoral et parlementaire ( by Eugene Pierre) Legicentrisme as opposite to constitutionalism B. Hostility to constitutional review FRENCH MODEL - POLITICAL, NOT JUDICIAL GUARANTEE OF CONSTITUTION Special Bodies - Constitutional Jury (Sieyes) or Council - Legislative Body: Senate - Conservateur (N. Bonaparte) - Executive Body - Royal Veto (1791) IV. Human Rights and French Constitutional Values 1. Declaration of Human and Civic Rights 26 August 1789 - The ground stone of French Constitutional Spirit - Inspired the universal Declaration of Human Rights - All French constitutional projects - unquestionably comply with [ Liberte, Egalite, Fraternite ] 2. Second Generation of Human Rights ' Social Enrichment' Preamble of 1946 Constitution - Social rights complementing DHR 1789 - Social Security, public education, asylum rights, right to protect, family rights etc.
Constitutions and Constitutionalism MODERN CONSTITUTIONALISM
A. Functional Characteristics 1. The constitution - a set of legal norms (political will), no philosophical construct 2. Regulation implies limitation: The establishment and the exercise of public power, no mere modification of old power 3.) The regulation is comprehensive 4.) Constitutional law is higher law. It enjoys primacy of all other laws and legal acts emanating from government 5.) The people are the only legitimate source of power - pouvoir constituant - pouvoir constitue B. Hierarchy of Norms - Ordinary versus Constitutional Law - Supra-Constitutional norms
Political systems and the forms of state Political regimes, political systems and forms of government
A. Political Regime A set of theoretical (nominal) rules framing the specific implementation of the principle of the separation of powers Step 1: Defining the possessor - Who holds the power -> form of government Ex. Direct or representative democracy Step 2: Political Regime - Representative Democracy: (Presidential Regime) - Strict separation of powers - (Parliamentary Regime) -Balance of powers- [ When asked by a lady, ' well, doctor, what have we got, a Republic or a monarchy?:] A republic, if you can keep it (Benjamin Franklin) ]
Fundamental rights and the separation of powers INSTITUTIONAL ARRANGEMENTS OF SEPARATION OF POWER
A. Specialization Legislative - law Making ( supreme body ) Executive - pure implementation, not interpretation Judiciary - Simply apply the law, check: yes/no B. Balanced Constitutionalism - Liberal Approach ( e.g English Philosophers ) - Balance of Power - Avoid power being too obtrusive and preserving liberty - Sharing law-making power ( co-legislating) : Bi-cameralism, Monarch + house represent + house of lords/ senate
From Ancient Greece to contemporary democratic concepts DIRECT DEMOCRACY
Ancient Greece - Citizens - members of (sovereign assembly ) Criticism: - no constitutional rights protected citizens against government interference - Small Scale
Vertical Separation of Powers Sovereignty and State
Bodin (1576) - Sovereignty is indivisible
Types of Federalism
COOPERATIVE AND LEGISLATIVE FEDERALISM - Local and federal entities adopt legislation within federal parliament (USA, Germany) EXECUTIVE FEDERALISM - Party representation at local and federal levels ( India )
Carl Schmitt
Conservative German jurist and political theorist (1928) - Constitution = Law of the Laws - Special quality: a fundamental decision of people ( forma dn nature of its unity ) ( By contrast - amendments are made more difficult because of its special quality ) CONSTITUTION VS CONSTITUTIONAL LAW Constitution - A fundamental decision - Can only be amended by the holder go constituent power (the people) Constitutional Law - concretizes the fundamental decision, adds provisions - Open to amendments Ex. Supra-constitutional norms (non-amendable) - Germany: Rule of law, federal structure, social state
Fundamental rights and the separation of powers FUNDAMENTAL RIGHTS (Conceptual Diversity) // (Contemporary Challenges)
Contemporary Challenges Declaration of the Fundamental Freedoms in the Digital Age - Draft declaration in December 2011 - Wanted to assert that Fundamental Freedoms do not change due to technological advancements FREEDOM OF EXPRESSION ( Religion, Association ) The right to receive and impart information and its relationship to technology // Agree and affirm that Fundamental Freedoms continue in the Digital Age CHALLENGES TO PRESERVE FREEDOMS IN THE DIGITAL AGE ex. Government of Kazakstan who blocked blogging portal Live Journal since bloggers were advocating extremism // Disproportionate response through media Internet and Social Networks in Azerbaijan // Russia // Belarus : Restrictions on Internets and Persecutions of Bloggers --> Targeting people Consolidation of Opposition Movements and Organization of Public Campaigns through Media + Denouncing Corruption Central Asia // Intimidation // Monitering // Harassing bloggers CHALLENGES ON HOW STATES WANT TO REGULATE INTERNET AND THE PRIVATE SECTOR
US Federal System
Controversy state-national relations and sovereignty - Madison on US constitution and its federalism 1. Popular Sovereignty (republic) - will of states' people 2. People's sovereignty divided: central and local governments To resolved the division boundary ( Supreme court) FEDERAL SOVEREIGNTY VESTED IN FEDERAL CONSTITUTION ( unitary central government) FEDERALISM DESCRIBES The ATTRIBUTES OF SOVEREIGNTY (powers) AND NOT SOVEREIGNTY ITSELF
Direct Democracy
DEFINITION could be defined as an almost genuine form of democracy, characterized by active popular participation - allows people to express their opinions, which are then translated into policies. - Can directly and indirectly affect policy-making FUNDAMENTAL TOOLS - Town meetings ( as it occurred in Greece ) - Ballot measure or proposition: citizens can vote yes or no, in order to approve a new law or to abrogate an old one - Initiative: by collecting a given number of signatures, citizen can suggest new laws to the representatives - Referendum: a law that has already been approved by the legislature is voted on by the citizens; a "compulsory referendum" has a binding result - Legislative measure: also called "advisory measure", as its result can be non-binding; the legislature may decide to use it when it wants to have an idea of the public opinion Examples of Direct Democracy: Ancient Greece and Switzerland POSITIVE AND NEGATIVE ASPECTS 1. The role of the majority 2. Lack of expertise 3. Communication between politicians and citizens
Devolution
Decisions on the issues that affect you will be made locally without the need for government permission Decisions about - health care services - where/ how to best grow local businesses - how to support young people in the work force Devolving Power--> Local decision making --> Help build stronger communities + more direct involvement
South Africa
Degrees of Supremacy of Constitutional Authority // Fundamental Rights: Far-Reaching explicit binding
Canada
Degrees of Supremacy of Constitutional Authority // Fundamental Rights: No binding judicial Power
SWITZERLAND
Direct Democracy [ In a country with democracy people can participate directly in politics ] Everyone can decide directly how the state, the cantons and the communities are organized - Landsgemeinde: Oldest form of Direct Democracy TWO LAST CANTONS - Appenzell Inner Rhodes - Glarus Residents entitled to vote gather in the Spring to vote on Laws etc. In the whole of Switzerland people vote on average 4 times a year on various issues concerning community, canton, whole of country National Parliament: Job is to adjust laws so that they comply with international law and accords // Different opinions on what is feasible - 246 Members of Elected every 4 years - 2 Chambers: House of Representatives (Represents people), Senate (Represents Cantons) [ Allows smaller cantons to have more weight] Referendums : How people overturn laws made by Parliament 50,000 signatures within 100 days → Then people vote on it PEOPLE'S INITIATIVE Enables citizens to make alterations to the Swiss Constitution 100,000 citizen signatures must be collected in 18 months PROS AND CONS Pro, Citizens can participate in many decisions on different proposals Con, Makes decisions making slower : Many political actors involved making it unclear who is responsible for what POLARIZED VOTES // November 2009 People's Initiative ban on Minarets in Switzerland // People's Initiative Deportation Law// Parliament's interpretation of the Law to add in the Constitution Ranked 14th in the Democracy Barometer - Highlights the criteria that define democracy Switzerland - Lack of Constitutional Court - Non-Transparent Party Financing - Weak participation in public votes [ only 2/5 people cast votes ] Switzerland unique for their direct democracy --> People decide // Contributes to the Swiss national identity that unites the various religions, languages and cultures in the country
England
ENGLAND: Constituent power - absent ( Parliamentary Sovereignty ) => Fundamental Laws, but not supreme
Vertical Separation of Powers Conceptual underpinnings: linguistic inconsistency
Example: Romanian Constitution Art. 1 " Romanian state is sovereign, unitary and indivisible National State" - It refers to the overall organization of Romanian people BUT Inconsistency with Art 136 " The State budget... and the local budgets of communes, towns and counties" - State as a political unit of central branch of authority exercising public functions within a territory (1920) : Three Meanings 1. Supreme character of state power 2. Whole range of state powers (attributes) 3. The power of highest organ of state authority ( ex. Parliament_
Checks and Balances USA
Executive Branch (Checks Legislative) - Authority to call special sessions of Congress - President is Commander in Chief - Power to veto bills Executive Branch (Checks Judicial) - Grant reprieves and pardons -Appoints judges to fill vacancies in the court Judicial Branch (Checks Legislative) - Interpret Laws - Determine Constitutionality - Serve for life Judicial Branch (Checks Executive) - Interpret laws and Presidential actions - Judges appointed by the President - Serve for life Legislative (Checks Judicial) -Power to institute new courts - Authority to impeach - Approve Judicial appointments made by President Legislative (Checks Executive) - Approve presidential appointments - Authority to bring impeachment hearings - Power to override presidential vetos - Central appropriations - Ratify trades - Declare war
Presidential Impeachment Brazil
Executive rights of Congress: Chamber of Deputies - To authorize, by 2/3 of its members, legal proceeding to be initiated against the President and the Vice-President of the Republic and the Ministers of State Federal Senate - To effect the legal proceeding and trial of the President and Vice-President of the Republic for crime of malversation, and the Ministers of State and the Commanders of the Navy, the Army, and the Air Force for
Case Study Quebec
Independence and separatist issues in 2018 Provincial elections CAQ: Right Wing Party dressing themselves up as a left wing party Important beyond the sovereign federalist debate CAQ Union National - Equality or Independence Francois Legué dealing with problems like loan from Quebec City ( Liberals reacting and leaving his to the "drivers set?" People in campaigns who are not looking at issues as close as political analysis's
"Democracy is against nature"
J.J Rousseau "If we take the term in the strict sense, there never has been a real democracy, and there never will be. It is against natural order for the many to govern and the few to be governed. It is unimaginable that the people should remain continually assembled to devote their time to public affairs. and it is clear that they cannot set up commissions for that purpose without the form of administration being changed" The Social Contract 1762
Bi-cameralism
LEGISLATURE The principle of a two-house legislature. Divides legislators into two separate assemblies, chambers or houses. Often, the members of the two chambers are elected or selected by different methods, which vary from country to country. This can often lead to the two chambers having very different compositions of members. Bicameralism is distinguished from unicameralism, in which all members deliberate and vote as a single group, and from some legislatures that have three or more separate assemblies, chambers, or houses. Spectrum of Imperfect - Perfect bicameralism
Quebec and Canadian federal system
Legislative - Parliament: Split into Senate and House of Commons Executive: - Sovereign - Governor General - Prime Minister: Prime Minister's Office, Cabinet, Pivy Council Office, and ministries Judicial: Supreme Court: Federal court and Tax court
Horizontal Separation
Lijphart's Dimension 1: Executive-Parites MAJORITARIAN DEMOCRACIES - Concentration of executive power - Executive dominates the legislature - Two parties - Majoritarian or First-past-the-post electoral system - Pluralist interest group system, adversarial CONSENSUS DEMOCRACIES - Executive power-sharing in coalition governments - Executive-legislative balance - Multi-party system - Proportional representation electoral system - Corporatist interest groups, compromise-seeking
Vertical Separation of Power
Lijphart's Dimension 2: Federal-Unity MAJORITARIAN DEMOCRACIES - Unitary and centralized government - Unicameral legislate or weak bicameralism -Flexible constitution - Legislature final arbiter on constitutionality of legislation - Central banks politically dependent on the executive CONSENSUS DEMOCRACIES - Federal/ decentralized government - Strong bicameralism in legislature - Rigid constitution (amendment by extraordinary majority) - Strong and independent judicial review; constitutional court - Independent central banks
Constitutional law and Democracy: concepts, definitions, approaches REAL DEFINITION
Lincoln " Government of the people, by the people, for the people"
FRENCH MODEL
POLITICAL, NOT JUDICIAL GUARANTEE OF CONSTITUTION Special Bodies - Constitutional Jury (Sieyes) or Council - Legislative Body: Senate - Conservateur (N. Bonaparte) - Executive Body - Royal Veto (1791)
Horizontal Separation of Power: Presidential versus Parliamentary System
PRESIDENTIAL - Clear Separation of Power (US) - President = executive - Parliament / assembly = legislative - Nature of Executive is the President who is the head of government and head of state - The President is directly elected - President responsible to constitution - President cannot dismiss legislature - Legislature: supreme (impeachment) - President is directly responsible - President appoints heads of departments (personal choice) - President is sole executive decision-maker - Strict separation: No members of the legislature in cabinet and vice versa PARLIAMENTARY - Fuzzy separation power between executive and legislative branches - Prime Minister (PM) = head of government - Monarch/President = head of state (Executive) - Prime minister is executive who is chosen by parliament and appointed by hear of state - Government responsible to the Parliament - PM may dissolve parliament (threat and coercion power) - Parliament is supreme, but no domination, mutual dependence - Government: indirectly responsible - Prime Minister appoints ministers Collective Body ( collective cabinet and ministerial responsibility) Prime minister-'first among equal' - Ministers accountable both to Parliament and electorate
Constitutions and Constitutionalism
Pre-Modern State and Society 1. Public Order and Public opinion - Public order presumed to be given by God --> State's duty -- enforce pre-established order 2. Lack of an object capable of being regulated in the form of a constitution - No autonomous political sphere and public power 3. Lack of distinct public and private spheres - Modern age: Concentration of public power in hands of state -> Need to tame it in the interest of individual freedom 4. Principle of Territoriality - Not Respected - Control of a given territory, external dominance
USA
Presidentialism 1. President - US: Law-making and Presidential Veto 2. Congress 3. Checks and Balances
The Limits of Federalism
Pros - Inhibits self-interest majority (tyranny), separation of powers - United in diversity (no uniformity) // Suitable for geographically large states // Heterogeneous communities in states which are geographically less fragile // - Practices pragmatism - Political Stability - Keeps government closer to the people Cons - Promotes inequality among states (resources) - Prevents creation of natural policy // Local interests: veto of delay policy-making // - Citizens' ignorance: who does what. ( federal, national), low election turnout - Not suitable for heterogeneous communities in geographically fragile states
PRINCIPLES AND VALUES Dworkin and Alexy
Reconciliation of principles and law Principles - a 'weight' dimension, not all or nothing Principles and values - Cornerstone of Constitutionalism BUT - Major concern: potential abuse by judges since INTERPRETATION : SUBJECTIVE
A posteriori
Relating to or denoting reasoning or knowledge which proceeds from observations or experiences to the deduction of probable causes. Describes a method of reasoning from given, express observations or experiments to reach and formulate general principles from them. This is also called inductive reasoning.
Hart - Dworkin Debate
Relationship between legality and morality Dworkin - Ultimately legality is determined by moral facts as well
Impeachment of Dilma Rousseff
Return of Democracy in Brazil 30 years ago Members of Congress voted on impeaching the president Impeachment in the Senate 12 years end to workers party in Brazil Working class worried that the impeachment of President would be dangerous for the development of Brazil Divided : No quick fix to country's economic and social divides
Checks and Balances
SHORT TERM: Autonomy Principle (Constitutional or Supreme Court) Principle of Participation (bicameralism) LONG TERM: Long-term checks on abusive central governments More deliberate democracy
Spanish asymmetric devolution
SPANISH CONSTITUTION PRELIMINARY TITLE Section 1 (2) National sovereignty belongs to the Spanish people, from whom all state powers emanate. Section 2 The Constitution is based on the indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards; it recognizes and guarantees the right to self-government of the nationalities and regions of which it is composed and the solidarity among them all. - Regions = autonomous (historical identity) - Specified fields for local legislative powers - Delegation of some administrative and judicial power from center to regions ( Catalonia, the Basque Country, Galicia, and Andalucia- granted more autonomy (historic communities) than the other Spanish regions ' Cafe para todos': Their resistance to standardize demolition and grant equal powers to all regions - Central government maintains sovereignty ( ex. Catalonia)
Federalism: Sovereignty in a Federal State The Doctrine of 'dual sovereignty'
Sovereignty of the state - The entity which entails indivisible government that retains competence over its competencies Sovereignty in the State - The attribution of state competencies to various branches of public authority ( Vertical separation of powers ) ex. State level, federal level, sublocal, etc
'Cafe para todos'
Spanish resistance to standardize demolition and grant equal powers to all regions
Germany
Supra-constitutional norms (non-amendable) - Germany: Rule of law, federal structure, social state
Quantitative and conceptual issues of the tripartition of powers
The 'Positivist' legal approach
E.J Sieyes
The Spirit of French Constitutionalism (1748-1836) French Constitution (1791) largely incorporated Sieyes approach to the nation naturally constituted, and government, pouvoir constituant ad pouvoir constitué Sieyes Approach: [ French Constitution 1791 ]
Montesquieu
The Spirit of the Laws (1750) - Power stops power (negative thesis) - Tripartite division of power " When legislative power is united with executive power..., there is no liberty. Nor is there liberty when the power of judging is not separate from the legislative power and from executive power. " Montesqueu (Book XI) 1.) Judicial system with our professional judges, but juries - Laws - clear and explicit --> Do not require professional knowledge in the juries 2. Due Process: The legal requirement that the state must respect all legal rights that are owed to a person. Due process balances the power of law of the land and protects the individual person from it.
Sovereignty in the State
The attribution of state competencies to various branches of public authority (vertical separation) - State level - Federal level - Sub-Local Level
Legicentrisme
The doctrine of the supremacy of Law in French constitutional culture The law is the sole expression of sovereignty, having supreme authority in the national legal order. There is, therefore, no legal constitution at the top of the legal order Legicentrisme as opposite to constitutionalism
Native American sovereignty and the Constitution
US Constitution on Native American tribes: ■ Article I, Section 2, Clause 3 "Representatives and direct Taxes shall be apportioned among the several States ... excluding Indians not taxed." ■ Article I, Section 8: "Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes" - it determines that Indian tribes were separate from the federal government, the states, and foreign nations; ■ The 14th Amendment, Section 2: amends the apportionment of representatives in Article I, Section 2 above
Madison's View on National Sovereignty
US Supreme Court interpreted Madison's statement as illustrating the limits of Federal Power If sovereignty means unlimited capacity to determine one's competency -> dual sovereignty - logically and practically impossible If it is understood as each entity may exercise discretionary power within its own jurisdiction, based on the attributes of sovereignty, then it is possible and actual
French constitutional thoughts and their influence on modern constitutionalism
[ The Spirit of French Constitutionalism ] E.J Sieyes: French Constitution (1791) largely incorporated Sieyes approach to the nation - Naturally constituted, a d government, pouvoir Constituant and pouvoir constitue [ Declaration of Human and Civic Rights 26 August 1789] Sieyes Approach: [ French Constitution 1791 ] - Title III. Of Public Powers 1. Sovereignty is one, indivisible, inalienable, and imprescriptible. It appertains to the nation; no section of the people nor any individual may assume the exercise thereof 2. The nation, from which alone all powers emanate, may exercise such powers only by delegation. The French Constitution is representative; the representatives are the legislative body and the King."
Herbert Lionel Adolphus Hart
a. Legal Positivism (H.L.A.Hart) - Legality is determined by social facts alone, not by morality ( Hart's conception of law had parallels to the Pure Theory of Law formulated by Austrian legal philosopher Hans Kelsen, though Hart rejected several distinctive features of Kelsen's theory. ) Differences between Hart and Kelsen: Hart was defending the British version of positive law theory Kelsen defending Continental version of positive law theory
Judicial Review
process under which executive or legislative actions are subject to review by the judiciary. ... Judicial review is one of the checks and balances in the separation of powers: the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority. Strong - Supremacy of constitution - Independent - Firm Rules - USA, Europe (Kelsenian Model) Weak - Weak/no constitution - Politicized - No firm rules - UK, Scandinavia
Federalism
- The choice of a federal system is a question of constitutional or national identity - Key advantage: Greater sense of autonomy BUT challenge: two legal orders (delegation of constitutional powers) -> raises major questions on the necessity of a unitary central government - the common necessity.(geographic necessity) of having a federal state should be greater that the degree of heterogeneity //Challenge of highly heterogenous states that chose to be unitary states: Spain, Italy, China - "Dual" or shared "sovereignty" in federal state between central and local givernments
Constitutional Democracy
A political hybrid: government of people + constitutionalism MONIST DEMOCRACY DUALIST DEMOCRACY DELIBERATIVE DEMOCRACY REPRESENTATIVE DEMOCRACY
Constitutions and Constitutionalism
Ancient versus modern constitutions and constitutionalism 1. From Ancient Greece to French and American Revolutions Pre-Modern Constitution - Constitution - A DESCRIPTIVE TERM - Neither constitutive force, nor complete regulation of government - Constitution lacked supremacy ENGLAND: Constituent power - absent ( Parliamentary Sovereignty ) => Fundamental Laws, but not supreme
Constitutional Liability of the President in Brazil
Article 85, Sect.III:« Those acts of the President of the Republic which attempt on the Federal Constitution and especially on the following, are crimes of malversation: I - the existence of the Union; II - the free exercise of Legislative, Judicial, constitutional Powers of the units of the Federation; III - the exercise of political, individual and social rights; IV - the internal security of the country... » Article 86, Sect.III «... he shall be submitted to trial before the Supreme Federal Court for common criminal offenses or before the Federal Senate for crimes of malversation. »
Constitutional law and Democracy: concepts, definitions, approaches Democratic Criteria
DAHL'S DEMOCRATIC CRITERIA Based on representative democracy 1. INCLUSION: Full rights of citizenship to all adults 2. POLITICAL EQUALITY: equal and effective opportunity to participate in policy-making 3. ENLIGHTENED UNDERSTANDING: learning about relevant policy alternatives and consequences 4. CONTROL OF AGENDA: Matters on public agenda: How? 5. EFFECTIVE PARTICIPATION: All citizens have the opportunity to make their views know to other citizens
Constitutional law and Democracy: concepts, definitions, approaches LANGUAGE
Descriptive Prescriptive ( normative ) Emotive - Neutral/descriptive appearance vs normative/prescriptive meaning
Congress Brazil
National Congress - Chamber of Deputies ( Directly Elected (PR)) - Federal Senate ( 3 members from each federal state (26+Brasilia) (8 years term)
Fundamental rights and the separation of powers
Separation of powers and fundamental rights - major constitutional mechanisms Fundamental Rights - the heart of contemporary constitutionalism
Constitution 1791 ( France )
Sieyes Approach: [ French Constitution 1791 ] - Title III. Of Public Powers 1. Sovereignty is one, indivisible, inalienable, and imprescriptible. It appertains to the nation; no section of the people nor any individual may assume the exercise thereof 2. The nation, from which alone all powers emanate, may exercise such powers only by delegation. The French Constitution is representative; the representatives are the legislative body and the King."
Brazil President
Similar to the US model - Head of state and government - Directly elected (4 years, two terms) - Appoints and dismisses judges in the Supreme Court (with Senate approval) - Veto bills (partial or full) - Appoints ministers and bureaucrats
Sovereignty of the State
The entity which entails indivisible government that retains competence over its competencies
Constitutions and Constitutionalism Constitution: higher or ordinary law?
Theory: Supreme Law ( Constitutionalism) Practice: Lack of supremacy of different degrees - Exercise of public authority - vulnerable to evade constitutional control IF constitution is not supreme - Ex. FUNDAMENTAL RIGHTS // South Africa : far-reaching explicit binding // Canada: no finding judicial power
Interpreting Madison's view on national sovereignty
US Supreme Court interpreted Madison's statement as illustrating the limits of Federal power
