PI Quiz 3
51. Why was a formal Constitution never adopted in Israel? Does this mean that Israel does not have a Constitution?
Declaration of Independence 14 May 1948: Foundation, but never adopted; problem of hierarchy of norms = solution found in "fundamental laws" (Basic Laws); Amendment conditions are written into each law
48. In what ways may the Bundesrat protect the prerogatives of the Länder ?
1) Acting before the Federal Bundestag; 2) Contesting the federal law within 6 months of its adoption; the concurrent powers are used by the federal government under the subsidiarity principle; 3) Defending the residual principle: all domains not granted to the Federal level nor prohibited, are granted to the Lander
43. What are the two conceptual foundations of the Basic Law of Germany (1949)? Are these foundations supraconstitutional? May the Länder have constitutional Courts that protect these values? Do decisions of the Federal Constitutional Court prevail over Länder Constitutional Courts?
1) Preeminince of Human Rights: No constitutional amendment of articles 1 -20 of the Basic Law which guarantee individual rights is possible; 2) Federalism as a boundary to abuse of central executive power: no constitutional amendment of the federal principle is possible Yes. Preeminince of human rights is an exception to the principle of no supraconstitutional constraints in Constitutional law. German parliamentary regime's foundations are the checks on the federal executive branch by the legislative federalism and the supra-constitutional binding force of human rights. Yes. Each Lander has a Constitutional Court with full jurisdiction on State Constitution and Laws. When it concerns federated State law and Court decisions,it is reviewed by Lander Constitutional Courts. Yes. Due to Article 100 (3), if the constitutional court of a Land, in interpreting this Basic Law, proposes to deviate from a decision of the Federal Constitutional Court or of the constitutional court of another Land, it shall obtain a decision from the Federal Constitutional Court.
39. What is the sub judice rule in the U.K.?
A convention according to which Members of Parliament will not criticise judicial decisions (for cases currently before the courts), it is intended to defend the rule of law and citizens' right to fair trial, and will be interpreted as such.
56. What is the aim of consociationalism? What are the 4 principles of consociational democracy?
A power-sharing approach to allow for particular and differentiated representation of the societal divisions for government stability, survival of democracy, avoidance of violence 1) Parity through cross-community power-sharing: arrangements that oblige communities to make public policy jointly; this parity may be legislative or executive 2) Proportionality: allocation of important resources and public offices by reference to the proportions of contending groups in the population 3) Autonomy: by community self-government 4) Veto rights: granted to specific communities on vital issues; the same effect may be gained by imposing super-majority adoption of acts in these vital areas
13. What article grants enumerated powers to the Federal Congress? On top of said enumerated powers, what case of the U.S. Supreme Court held for the first time that the powers granted to Congress were not only those that were enumerated but also those that are implied?
Article I of the Constitution in 1787: specifically enumerated powers granted to the Federal Congress: notably the commerce clause (section 8 of article I) McCulloch v. Maryland (1819): (Can a state government tax a national bank?) Although the federal government (executive power) is one of enumerated powers (having only the powers granted to it), the powers are not limited to those explicitly stated in the Constitution, but also include those powers which are implied in the nature and spirit of the Constitution (necessary and proper clause).
11. What article of the United States Constitution provides that Federal law always prevails over federated State law? Name one case in which the U.S. Supreme Court confirms that federated States have power to act as long as they are not denied such power by the Constitution, federal law, or by their own federated Constitution. What Amendment of the U.S. Constitution explicitly affirms this "delegated powers" principle?
Article VI of the Constitution in 1787: The Federal Constitution and federal laws and treaties made under the authority of the Federal Government are the supreme law of the land. All federated State law must be in conformity. Case: National Federation of Independent Business v. Sebelius (Is a pecuniary obligation placed on any individual that does not subscribe a minimum health plan a fine (state health regulation) or a tax (federal power)?) Xth Amendment adopted in 1791: States are presumed to have power to act unless denied by the Constitution, federal law, or the relevant federated state constitution. Reserved and delegated powers (those not delegated to the States, nor prohibited by the Constitution are reserved to the States or to the people)
60. Why do articles 138-142 of the Constitution of Switzerland imply frequent popular consultation on almost every issue of daily life? Does this direct democracy mechanism reinforce consociationalism?
Because city states and community states must find consensus, but political equilibrium by negotiation does not exist since it's not a unified nation, therefore federalism is an insufficient compromise. Then a consensus government and not a majoritarian one is needed. To reach consensus in all issues, Swiss took the way of referendum. Yes. The use of referendum is independent in every canton, as well as in the Federal as an entity, and in neither case is referendum limited to any certain domain.
30. Why is the U.K. Constitution considered to be a "growing Constitution"? Have calls to codifying the U.K. Constitution been successful?
Because the constitutional framing of the system has no historical breaking point: constant evolution since the Magna Carta of 1215. Various modifications modified de facto the limits of the Westminster parliamentary system, but did not modify the system. Eg. the adhesion of the UK to the European Union (1973); devolution process; modified certain elections; modified composition of House of Lords and establishment of a Supreme Court (2005); modified public administration (2010) etc. No. There are only parliamentary acts, constitutional convention and rule of law in the UK. There is no codified constitution. Reasons: supremacy of parliament, constitutional evolutions decided Acts of Parliament, prefer progressive adaption than radical change
10. What is the difference between the formation of U.S. federalism and Brazilian federalism?
Brazil: federalism by dislocation, division of a territory that had always been under a unitary system US: federalism by allocation, originally independent states join together to form a federation
28. What is/are the common particularity (ies) of judicial review in Brazil, Germany, and Spain?
Common: maintains both concrete and abstract review by ordinary-diffused-couts; concrete done by ordinary court, and can be taken to the Supreme Federal Tribunal/constitutional court, a posteriori; abstract done by Supreme Federal Tribunal/constitutional court Brazil: ordinary court-->Supreme Federal Tribunal; no filter Germany: federal administrative court and Supreme Courtconstitutional court; abstract (a posteriori); filter Spain: ordinary courtConstitutional Tribunal; concrete (a posteriori), abstract (a priori); filter
42. What is the basic structure doctrine? In what case was this doctrine developed, and how has it been applied to judicial review in India?
Courts can invalidate constitutional amendments on the premise that there are substantive implied limits on a legislature's power to amend the Constitution, aiming to protect minority rights against a majority that would modify the Constitution abusively Supreme Court, Kesavananda Bharati v. State of Kerala case (1973)Confirmed recently in the National judicial appointment Commission (NJAC) case (Oct 2015) Gives the Supreme Court power to judicial review and strike down constitutional amendment enacted by the Parliament which conflict with or seek to alter this "basic structure" of the Constitution
32. What is the result of first past the post elections in the U.K.? Is this representation fair and democratic? What is a hung parliament? In spite of these difficulties, have U.K. citizens modified the first past the post electoral system?
Creates clear majority win between Conservative and Labour Parties (bipartism). Candidates may be elected on a minority vote (the combined votes of the losing candidates being larger than the victor's vote). Therefore, the party representing the most votes in the country may not necessarily be the party with the most MPs. No. This representation favours bigger parties, reflects imperfectly the share of popular vote. Parties may have a large majority of MPs in Parliament, and therefore a strong mandate to govern, but be opposed electorally by a majority of the population Hung parliament is that no particular party has an absolute majority of MPs, and government cannot be formed without coalition. No. Although other electoral systems like AV, SV, and proportional systems are introduced for different elections, the 2011 referendum for changing voting system for MPs to the House of Commons maintained the FPTP system for MPs.
3. How would you define the presidential regime?
Democratic form of government, in which the PR and Parliament is directly elected by universal suffrage (direct or indirect), so head of State's mandate originates in popular elections. Executive and legislative branches are strictly independent, the president cannot dissolve the lower house so as to provoke new elections, and the parliament cannot vote the president or cabinet members out of office.
1. How would you define the parliamentary regime? Given this definition is a "semi - presidential" regime a parliamentary regime?
Democratic regime, with flexible horizontal separation of powers, in which the Head of State and/or the Head of Government are appointed or recognised by the Parliament and not by direct popular election; the Head of State or the Head of government can dissolve the parliament, and members of parliament can vote the PM and cabinet members out of office for political reasons. Yes. The Head of State has autonomous electoral legitimacy, but it maintains the possibility for the Head of State or government to dissolve the parliament, and the cabinet members remain politically responsible before the parliament (may be forced by parliament to resign collectively).
14. Name two enumerated, and two implied powers granted to the U.S. Congress.
Enumerated powers: raise and support armed forces, control of currency, regulate interstate and foreign commerce Implied powers: establish banks, navigation on state rivers, power to tax
57. What is the name of the collegial executive branch in Switzerland? How many members? Term length? Why is this institution consociational "equitable" representation (how many linguistic representations? How many religious?). Is the President of the Swiss federation (member of the Federal Council) an autonomous function or does he/she merely coordinate within the Federal Council and the Cantons, and represent Switzerland in international relations? What is the name of the collegial executive in Bosnia and Herzegovina? How is it different than the Swiss Federal Council?
Federal Council/Bundesrat: 7 members, 4 years ("directorial" regime) 4 Germanophile, 2 Francophile, 1 Italophile; 4 Protestants, 3 Catholics President is not an autonomous function. Bosnia and Herzegovina: Collective presidency: 1 Bosniak, 1 Croat, 1 Serb; eligibility combines both a territorial and an ethno-national requirement:
23. What are the particularities of the Brazilian Federal District and the municipalities even though they are not federated States? What would Thomas Jefferson have called this innovation?
Federal Districts: has a governor and a legislature; is represented in Congress; is an autonomous member of the Federation Municipalities: members of the federation; legislative, administrative and financial autonomy; have the Constitutional power to supplement not only federal but State legislation; good idea to remember for States struggling to share power Jefferson would have called this "ward republics" (to place most of the functions of government in the ward, a small subdivision of a county or municipality.)
45. How are the prime ministers of Germany, Spain, and Italy elected?
Germany: (federal chancellor) head of the majority party, elected by Bundestag without debate, after proposal of the federal president Spain: (minister-president) nominated by the king, after consultation and the confirmation by lower house Italy: (President of Council) appointed by the president of the republic
44. What are the names of the houses and term lengths of the Parliamentary houses of Germany, Spain, and Italy?
Germany: Bundestag (4 years), Bundesrat (no rigid length) Spain: Congress of Deputies (4 years), Senate (4 years) Italy: Chamber of Deputies (5 years), Senate of the Republic (5 years)
46. What is the particularity of the vote of no-confidence in Germany, Spain, Israel and Belgium? (its name, and how it functions)
Germany: Constructive Vote of No-Confidence. The Bundestag can express its lack of confidence in the Federal Chancellor only by electing a successor with the absolute majority of its members and by requesting the Federal President to dismiss the Federal Chancellor, 48 hours between the motion and the election Spain: Constructive Vote of No-Confidence. The Congress of Deputies may require political responsibility from the Government by means of the adoption by an absolute majority of a motion of censure, must include a candidate to the office of the Presidency of the Government, 5 days Israel: By a vote of no confidence the Knesset did not elect new prime minister but only proposed a formateur: a presumptive nominee charged with seeking to form a new government. The candidate proposed then might or might not secure a positive vote of confidence before becoming prime minister. Belgium: If House of Representatives adopts a motion of no-confidence, proposing a successor to the PM for appointment by the King, or proposes a successor to the PM within three days of the rejection of a motion of confidence, the king appoints the proposes successor as PM.
47. How what is the difference between the relationship between the Federal Government of Germany and the Länder governments, and the relationship between the Spanish government and the governments of the autonomous communities, such as Catalonia?
Germany: The sharing of lists on legislative matters between federal state and lander in Budesratcooperative federalism. The Länder participate obligatorily through the Bundesrat in examining legislation. Does not vote the law (except in « state of legislative emergency », but may veto federal laws contrary to Länder constitutional powers. Spain: Unity of the "nation" but autonomy of the nationalities. No power-sharing mechanisms: no special voting status at the central levelPure majoritarian regionalism: different legislative and executive statutes of autonomous communities and autonomous cities, but no regional constitution and no autonomous court system
15. In what case did the U.S. Supreme Court consider that article I section 8 U.S. Congress the power to regulate commerce between the federated states including navigation on state rivers and any other activity touching even indirectly commercial activities?
Gibbons v. Ogden (1824): (Can a state issue a monopoly to a private company (Ogden) if said monopoly would affect federal government's power to regulate interstate commerce?) the interpretation of commerce here is very large: commerce is not just buying and selling, but includes all commercial intercourse
5. What three compromises enabled the adoption of the Federal Constitution, transforming the Confederation of the 13 colonies into a Federation with two clear legal orders?
Great Compromise (5 July 1787): HR representation proportional to population; Senate= equal number Three-Fifths Compromise (12 July 1787): 3/5 of slaves would count for the representation of the lower house, but importing of slaves could be outlawed by 1808 Commerce Compromise (29 August 1787): permitting Congress to tax imports but not exports
12. What amendment of the U.S. Constitution explicitly limits federated states powers to legislate in certain areas concerning human rights? What are these areas? In one of these areas, the federal law is also limited by the Vth amendment . What is the case of the U.S. Supreme Court which holds that federal law may not treat same- sex marriages differently than heterosexual marriages? In what case was this holding generalized, and therefore applicable to federated states?
In 1868 federated states powers are explicitly limited by the XIVth amendment: obligatory citizenship for former slaves; due process; equal protection must be respected by federated states United States v. Windsor (26 June 2013): The Court held that the Constitution prevented the federal government from treating access to courts by state-sanctioned heterosexual marriages differently than state-sanctioned same-sex marriages, and that such differentiation "demean[ed] the couple, whose moral and sexual choices the Constitution protects". Obergefell et al v. Hodges (June 26, 2015): Under article VI and the XIVth amendment, federated State law must also follow this holding.
37. The House of Lords is no longer a judicial institution since 2009, but before that in what case did the House of Lords rule that if there are gaps in legislation, the judge has no competence to fill in the gaps (separation of powers). What is the highest court in the U.K. today?
In St Mellons Rural District Council v. Newport Corporation (1952), the House of Lords affirmed that if there are gaps in legislation, the judge has no competence to fill in the gaps. The House of Lords is replaced by the Supreme Court.
38. Without contesting the principle of parliamentary sovereignty, and therefore the absence of judicial review in the UK, what case considered that that there are limits to parliamentary sovereignty where constitutional fundamentals were at risk (introduction a weak form of judicial review)? Has the BREXIT referendum changed this principle?
Jackson case (2005) No. Government lawyers argued that royal prerogative were a legitimate way to give effect"to the will of the people" who voted by a clear majority to leave the European Union in the referendum, while three high court judges denied. The Supreme Court decided that, the decision will be legal, not political. Supreme Court confirms that parliament must authorise. In essence, this is judicial review of the organisation and implementation of a referendum. So the parliamentary sovereignty is re-emphasised.
40. Define legislative federalism and executive federalism, and give one example of each. Is the actual prime minister of India in favor of legislative or of executive federalism? What could explain this tendancy?
Legislative federalism: upper house is comprised of representatives of federated states, and there is direct state participation in federal legislative matters eg. US, Germany Executive federalism: is based on a principle of centralised control of federated state government, there is no equal representation and no direct state participation of federated states in federal legislative matters eg. India He favours flexible, cooperative federalism, granting more participation powers to Union Stateslegislative federalism. He was former chief minister of Gujarat (a federated state).
27. In what case does the U.S. Supreme Court interpret the first amendment to mean that religion is a private matter for the individual, the family, and the institutions of private choice, clear lines must be drawn between to avoid government involvement? What is the name of this clause? In what case does the U.S. Supreme Court say that governmental interference will be measured by a principle of coherence?
Lemon v. Kurtzman (1971): Free establishment clause, the law must have a legitimate secular purpose, must not have the primary effect of either advancing or inhibiting religion (unconstitutional: act allowed the Superintendent of Public Schools to reimburse Catholic private schools for the salaries of teachers who taught there) Holt v Hobbs (2015): the Court insists on the principle of coherence, held that a Muslim prisoner must be able to keep his beard in spite of security risks, unless all other inmates were obliged to cut their hair short
4. What influences of Locke, Hobbes, and Montesquieu may be seen in the United States' Declaration of Independence?
Locke: inalienable rights (life, liberty, pursuit of happiness); good and rational men give up their rights to the community for security Hobbes: governments derive their just powers from the consent of the governed; necessary to give up individual rights to achieve security Montesquieu: immutable right of the governed to alter or abolish a government having imposed a "long train of abuses and usurpations"
29. What is the difference between a majoritarian and a rationalized (structured) parliamentary regime? Name two of each type of regimes.
Majoritarian: A majority government with the head of state/government are appointed or recognised by the parliament. Government is responsible before the parliament and the crown. Avoiding abuse of majority through counter-majoritarian methods (Common law or at least weak judicial review, shadow cabinets, self-restraint). Monarchy Westminster parliamentary regime (the UK), republic parliamentary regime (India) Rationalised: The governing majority is composed of several rather than one political representation. Harmonisation of political programme before head of government investiture. The head of state/government is directly elected by the people; the presidential function is reinforced, generally by universal direct suffrage, and other autonomous powers. Disciplines and efficient legislation without whips and shadow cabinets. President-parliamentary regime (Russia), premier-presidential regime (Algeria)
22. What is gerrymandering? How does the U.S. Supreme Court limit gerrymandering in the Baker v. Carr case?
Manipulate the geographical boundaries of voting districts so as to favour one party. US Supreme Court, Baker v. Carr (1962): redistricting must follow the one-person-one-vote principle by creating congressional districts with equal populations.
17. In the presidential regime of the United States, may the president take autonomous decrees without a constitutional basis? What article of the Constitution contains the rule on this question, and what is the leading case of the Supreme Court on this question?
No. All presidential decrees must have a constitutional basis Article II of the Constitution and amendments XII, XX, XXII, XXV U.S. Supreme Court, Youngstown Sheet and Tube Co. (1952): power of the president must stem from the Constitution or from an Act of Congress
18. Since one of the checks on the power of the U.S. President is the possibility of impeachment, may the President also be tried for acts incumbent to his functions? What is the leading case of the U.S. Supreme Court on this question?
No. Executive privilege and immunities: the President cannot be tried for acts incumbent to his functions. U.S. Supreme Court, US v. Nixon (1974)
8. Is the United States a semi-direct democracy at the federal level? Explain why or why not.
No. It is a new form of popular sovereignty, without any direct democracy mechanisms at the federal level (Preamble of the Constitution), so US federal regime is therefore purely representative (national sovereignty) in spite of its basis on popular sovereignty. Only some federated states have admitted semi-direct democracy.
50. Does the distribution of seats in the Spanish parliament show greater dispersion in spite of the proportional list electoral system?
No. The lists are closed and rests are distributed with the highest mean system (limited proportional system using the d'Hondt method); a 3% minimum threshold, so electors may not choose individual candidates in or alter the order of such lists this method favors the larger parties.
52. Why is the Israeli Supreme Court United Mizrahi Bank v. Migdal case a "constitutional moment" for Israel?
Ordinary law of 1993 on debt recuperation that banks claimed were contrary to their property rights protected by Art 3 of the Basic law on human dignity. Problem: Art 3 may be amended by simple majority, therefore under Supreme Court Bergman decision, the Basic law would have been "amended" by the ordinary law of 1933. The SC reversed, and considered that laws announced as Basic Laws, whatever their process of amendment may be, are hierarchically superior, and must be followed: therefore the right to property had been infringed in the United Mizrahi Bank case. It introduced judicial review, with judges as the "voice of the people" to guarantee the basic laws
62. What would you conclude about the efficiency of separation of power in parliamentary regimes, in semi-parliamentary regimes, and in presidential regimes?
Parliamentary regimes: Not very effective since it's flexible. Institutional self-restraint inherence is needed to maintain effective separation of powers. Semi-presidential regimes: Effective separation of legislative and executive powers. Presidential regimes: Effective with strict separation of power
2. Is France a premier - presidential parliamentary regime (monist)? Why?
Premier-presidentialism is a form of semi-presidentialism where the prime minister and cabinet are collectively responsible solely to the legislature. France is only theoretically premier-presidential, because Constitution of 1958 does provide for a monist parliamentary system, but customary practice of revocation of prime ministers by the president has led to a dualist system since 1962.
20. What are the term lengths of the U.S. Representatives? Senators? President? How do these staggered elections create a sort of "automatic" dissolution mechanism creating "cohabitation" of Republican/Democrat parties after nearly every midterm election?
Representatives: 2 years; Senators: 6 years; President: 4 years Due to different length of terms, in midterm election, if the previous majority party is not satisfying, it will be "automatic" dissolved, as the majority party in congress will alter. One or both of the houses of Congress may often be controlled by one major party while the presidency is held by the other ("cohabitation")
26. In what case does the U.S. Supreme Court interpret the first amendment of the U.S. constitution to mean governmental obligation of neutrality in the face of religious differences? What is the name of this clause?
Sherbert v. Verner (1963): the Supreme Court held that the Free Exercise Clause of the First Amendment required the government to demonstrate both a compelling interest, and that the law in question was narrowly tailored before it denied unemployment compensation to someone who was fired because her job requirements substantially conflicted with her religion.
16. Early Supreme Court decisions confirmed that the Xth amendment shielded Federal law from intruding on any federated state government activities if said regulation affected a "traditional government function". This criteria being ambiguous, the Supreme Court replaced this "government function" test by a new test, and this method was confirmed in 2012. What are the names of the cases, and what is the test that determines whether or not the Federal State may take legislation that applies to the federated states without violating the Xth amendment?
Supreme Court, National League of Cities, 1976 held that federal Congress is limited by the Xth amendment in that it may not exercise its authority over State and local governments and agencies, if such regulation affects a "traditional government function" Decision overruled in Garcia v. San Antonio Metropolitan Transit Authority (1985) and a balancing test proposed between Federal and State interests. Method confirmed in Arizona v. United States (2012) (federal governments authority to regulate immigration) A balancing test is any judicial test in which the jurists weigh the importance of multiple factors in a legal case, contrary to the bright-line tests.
59. Is a vote of no-confidence possible against the Swiss Federal Council; against the Belgium Prime Minister and his/her cabinet? Is this vote of no-confidence identical to that used in Spain and Germany?
Swiss: No Belgium: Yes. If House of Representatives adopts a motion of no-confidence, proposing a successor to the PM for appointment by the King, or proposes a successor to the PM within three days of the rejection of a motion of confidence, the king appoints the proposes successor as PM. Not identical. In Spain and Germany, a new candidate should be presented before the vote of no-confidence. In Belgium, the successor can be presented either before the vote or with 3 days of rejection
58. What are the names of the houses of parliament and term lengths of the Parliaments of Switzerland, Belgium, and Bosnia?
Switzerland: National Council, Council of States (4 years) Belgium: House of Representatives, Senate (4 years) Bosnia: House of Representatives, House of Peoples (4 years)
49. How does the Additional member system electoral system participate to the de facto majoritarian government in Germany?
The AMS allows for greater structuration of coalitions, by allowing each voter to have two votes on the same ballot. 50% of the members of the legislature will be elected through the FPTP system (first vote), and 50% of the legislature will be elected through proportional systems (second vote). Majoritarian is maintained by the FPTP; a threshold of 5%; in practice the voters use their first and second vote in the same way
35. What is the role of the Crown in the U.K. majoritarian parliamentary regime? What is the role of "the Palace"? Is the role of the Indian president similar?
The Crown: Constitutional veto of laws (never used); Legitimate power of dissolution of HC (never refused); Formation of government (appointment of Prime Minister upon advice of "the Palace ")continuity of the state "The Palace": Political advisors Yes. All of the executive authorities vested in the president are, in practice, exercised by the government of Indiahead of state
61. What limits did the European Court of Human Rights originally place on distinctions in treatment which are founded on an objective assessment of essentially different factual circumstances (such as linguistic, religious, or ethnic representation in divided States)? How has its position evolved in the Sejdic and Finci v. Bosnia and Herzegovina Case?
The ECHR does not prohibit distinctions in constitutional treatment if 1) they are founded on an objective assessment of essentially different factual circumstances; 2) based on public interest; 3) strike a fair balance between the protection of the interests of the community and respect of individual rights Power sharing provisions of the Constitution are challenged before the ECHR: contesting the electoral rules concerning the collective presidency by minority citizens; ECHR overruled the Belgian Linguistics case, or at least set it aside, and condemned the BiH electoral law so as to ensure representational rights.
19. May the President of the U .S. initiate legislation? May the President block legislation voted by Congress? If so, is there any way Congress may push legislation through in spite of presidential refusal? May the President block only part of a law (one line for example)? What U.S. Supreme Court decision rules on this point?
The President cannot initiate legislation, but has veto power (and pocket veto). The veto may be overidden by a 2/3 vote of Senate and House A line item veto (partial veto) act was passed by Congress in 1996 and signed into law by President Clinton. Clinton v. New York City (1998): the Supreme Court ruled the line-item veto violated the « presentment clause » (article I section 7 which outlines how a bill may become law, and only allows the president to sign or to send the bill back to Congress).
25. How is judicial review (constitutional review) accomplished in the United States? What is the case that develops the method and the limits to judicial review in the United States? (what courts review? What do they review? When?)
The Supreme Court can interpret the constitutionality of a law only if an individual brings legal charges against that law to a lower court and appeals the case to the US Supreme Court. Supreme Court, Marbury v. Madison (1803): done by ordinary courts, the Federal Supreme Court is the final interpreter of the US Constitution; decides what government activity is permissible on any level (State or National) under the Constitution; only concrete and only a posteriori
24. What is a filibuster? May representatives filibuster in the House of Representatives? The Senate?
The filibuster is a delaying tactic that is still part of the rules of the Senate. It is used by a single Senator or group of Senators to stop or delay action on a piece of legislation, that debate may not be stopped unless those taking up the debate allow it to be stopped. The HR, as a much larger body, limited this rule very early on. The Senate, in 1917, adopted a rule allowing a filibuster to be stopped by a 2/3 vote; in 1975 this was changed to 3/5, which still holds today.
36. Since the government sits in Parliament and members of government are part of parliament in the UK, how can there be a separation of powers conforming to the democratic principle?
There is only functional, no organic separation of powers, ie fusion of executive and legislative powers. A system promotes efficiency more than concerns about tyranny Informal checks (conventions of the constitution), political self-restraint (party discipline), rights protected by the common law. Whips (opposition whips) and shadow cabinets ensure both majoritarian efficiency and government accountability.
34. What is the office of the Whip in the U.K. House of Commons and in India's Lok Sabha? What is the role of the shadow cabinet in these same States?
UK&India: Whips and opposition whips are appointed by each party; secretive role. The primary role of the Chief Whip is to get the government's business through Parliament, and in particular to secure the Government's majority in votes on its legislative and policy programs, by the management of MPs' attendance in votes and the persuasion of recalcitrant MPs to vote with the government. UK: The shadow cabinet is made up of frontbench MPs and Members of the Lords from the second largest party, or official Opposition party. The opposition party appoints an MP to "shadow" each of the members of the Cabinet, to question every government actions and to be ready to take the jobs in the next election. No shadow cabinet in India.
33. What are the two houses of parliament in the U.K. and how long are their terms? Are they equal (do they have the same functions)? What are the two houses of parliament in India and how long are their terms? Are they equal?
UK: House of Commons (5 years); House of Lords (life peers; by-election in case of vacancy) Not equal. HC consider and propose new laws, and can scrutinise government policies; HL adopts legislation with the HC, but cannot block legislation adopted in final reading by the HC. India: Lok Sabha (5 years), Rajya Sabha (staggered 6-year terms, with 1/3 of members retiring every 2 years) In the sphere of ordinary law-making the Rajya Sabha enjoys equal powers with the Lok Sabha. An ordinary bill can be introduced in the Rajya Sabha and it cannot become a law unless passed by it. However, it is relatively weak in the financial sphere.
41. Does the Indian Constitution prohibit discrimination on the grounds of caste? What about personal laws? In what case did the Supreme Court of India limit the reach of personal laws, considering that basic human rights may not be decided only by referral to religious community rules?
Yes. Article 15 C prohibits discrimination on grounds of caste. But in practice, persistent discrimination Personal laws (personal property, inheritance, family law) controlled only by the major religions. Judicial review is done by the Supreme Court, but no state scrutiny or review of these laws as regards the fundamental rights guaranteed by the Constitution of 1950 Latifi v. Union of India (2001): "Solution to societal problems of universal magnitude pertaining to horizons of basic human rights, culture, dignity and decency of life...should be invariably left to be decided on considerations other than religion or religious faith of beliefs or national, sectarian, racial or communal constraints".
21. In the U.S. presidential system, are financial contributions by corporations (companies) to electoral campaigns unlimited? What did the U.S. Supreme Court rule on this question? (what is its reasoning and in what case)
Yes. Citizens United v. the FEC (2010): the Supreme Court held that corporations contributions must be allowed to contribute to campaigns, even by using advertisement and by spending unlimited amounts (this is an expression of their right to freedom of expression in democracy)
31. Is the U.K. a unitary State in spite of large devolution mechanisms? Explain why.
Yes. Despite Scotland, Wales and North Ireland's autonomy on legislative, executive matters, they have some but not complete judiciary. Further legislative and executive devolution has been accepted since the failed referendum for the independence of Scotland, but there is still only one legal order with sovereignty in the UK parliament as regards the competences of Scottish parliament.
9. Why does the actual number of federated States in the Brazilian Federation show the continuity of the structure of representation in Brazil? How many States? What were these regions called before the creation of the Federation in 1891? How is the government of the old structure (before 1891) illustrate the actual functioning of the Brazilian Federation? (more centralized or decentralized?)
these regions called before the creation of the Federation in 1891? How is the government of the old structure (before 1891) illustrate the actual functioning of the Brazilian Federation? (more centralized or decentralized?) Because there were the 22 old provinces, with their one national congress (Senate; Chamber of deputies) and municipal council with no powers 22 federated states, old provinces Federal government was weak and the country was therefore dominated by the governors of two powerful States. More decentralised
