Constitutional Law Midterm L1-3 and L6

Substantive def of constitutions + example

body of laws, rules and customs that establishes the organs of a state, and how those organs relate to other/the citizens = the SUBSTANCE of the constitution

—> Art 16 DRMC: division of power to prevent abuses, guarantee of rights to secure individual liberties

Procedural def of constitutions

body of laws enacted by some higher body different from the ordinary legislative authority = the PROCEDURE of how the constitution is made

—> Constitutional norms exact a superior force & regulate ordinary laws in that they proceed from a superior authority

—> processes for passing Statutes vs Amendments are distinct

how to amend rigid constitutions (US & France examples)

US: art. 5, 2/3 congress & 3/4 states

France: 3/5 supermajority in Congress or Referendum

how to amend flexible constitutions (UK example)

uncodified, proceeds from same authority which make the ordinary laws

—> King-in-Parliament = assent of House of Commons, Lords, & Royal assent

—> most important acts not formally distinguished from others (1998 Human Rights Act, incorporated ECHR rights into UK law)

Art. 5 of the US Constitution

amendment procedure

UK Parliamentary sovereignty + key implication

Parliament has the right to make or unmake any law whatsoever —> no-one is recognized as having the right to override Parliamentary legislation

—> Implication: by virtue of SUPREMACY, no UK parliament is bound by its predecessor, relatively easy to pass a new act

Constitutionalism

practice & method whereby limits on governmental powers are established and maintained, rests on a dichotomy between public/private spheres (private spheres are shielded from govt)

—> provides mechanisms to circumscribe power through legal bounds: usually includes judicial review to limit other branches

2 core legal tenets behind constitutionalism

1. Constitutional law can only be created by norms adopted under more stringent formal requirements than ordinary laws (unlike UK!)

2. Constitutional law translates important political and moral norms into legal ones

how did constitutionalism originate?

US & French revolutions

Liberalism

doctrine which emerged in 17th ce, arguing for limitations of powers of govt first through the law and ultimately through the Constitution, in order to protect individual rights

Constitutionalism and liberalism

Constitutionalism maintains liberalism by upholding the public/private dichotomy, judicial review to limit other branches

—> Dobbs dissent: “No liberal democracy grants untrammeled power to democratic majorities… We believe in a Constitution that puts some issues off limits to majority rule”

—> Some rights should be out of reach even for democratic majorities

Rule of law

govt itself is bound by the law, people have knowledge of when and how govt powers are exercised

—> Laws are public, general, clear, provide for legal certainty; laws are not retrospective; govt actions can be reviewed by courts to check their consistency with the law

= Formal, procedural requirements

How does constitutionalism enforce the rule of law?

by insisting on the supremacy of the Constitution & protecting the fundamental rights listed therein

Tension between constitutionalism and democracy

Will of elected representatives can be stricken down by unelected Courts on grounds of their inconsistency with the Constitution = Bickel’s counter-majoritarian difficulty

—> HOWEVER history shows majoritarianism, if unchecked, can become a monolithic power = Tocqueville’s tyranny of the majority = must be prevented through Constitutional review

How does constitutionalism prevent tyranny of the majority?

Constitutionalism prevents abuses and bars majorities from suppressing claims of minorities (Habermas: “Human rights do not compete with popular sovereignty”)

—> Laws are subject to the Constitution as they are the product of a TEMPORARY political majority, which may infringe upon Constitutional rights that are intended to ENDURE

—> Justice Brennan: “It’s the very purpose of our Constitution to declare certain values transcendent, beyond the reach of temporary political majorities”

SCOTUS 3 levels of scrutiny (from most deferential to most exacting)

1. Rational basis (chances of govt losing = law declared unconstitutional = ~15%)

2. Intermediate scrutiny (~50%)

3. Strict scrutiny (~85%)

Example of FR amendment overturning Constitutional Council interpretation

1999 amendment: overturned 1982 CC ruling that held a statute mandating >25% of women in elections unconstitutional = now constitutional

Example US amendment overturning SC interpretation

13th & 14th amendments overturned Dred Scott (1857)

Stare decisis according to Breyer’s dissent in Dobbs

Things decided should stay decided, stare decisis is the “foundation stone of the rule of law… A doctrine of judicial modesty and humility”

functional & institutional separation of powers

Divides public authority into 3 dif functions, which should be allocated to different organs (institutions)

new dynamic of SoP given rise of political parties FR

emergence of majoritarian govts, majority/opposition divide: victorious party controls both exec & maj. of one or both Houses of Parliament

—> is there truly SoP when legislature hardly checks exec if from the same party? Loyalty to party > political institution

SoP between legislative and exec civil vs common law (regarding legislative power)

Legislative power to exec: civil = clear dichotomy between scope of “statutes” and “regulation” (art. 34-37 FR) common = deny legislative power to exec but permit delegation

UK confidence

govt relies on the confidence of the HoC for its continuation in office, PM can request a dissolution at a time of their choosing within 5 years of the last general election

FR confidence

PR can dissolve the lower House (art. 12) while the lower House can vote down the govt… under stringent conditions (art. 49§2)

monist vs dualist

Monist: the head of state is deprived of Constitutional prerogatives permitting them to act autonomously = govt is only accountable to Parliament

Dualist: govt is accountable to both Parliament (lower house) AND the head of state (France)

—> why the lower house? Because it is directly elected.

Defining feature of parliamentary systems

govt is accountable to parliament

purpose of a vote of no confidence

necessary restriction on parliamentary power, can end governmental instability (FR, Ger, Ita), makes sure the govt is backed by a Parliamentary majority as occurs after laying out the agenda

why does the cabinet most frequently enjoy a parliamentary majority?

In France, electoral system reform 2000: ministers elected same rounds as pres (every 5 years usually)

Parliament has the power to… (parliamentary scrutiny)

ask questions (oral, written), organize hearings and meetings, organize debates w/ ministers, conduct formal inquiries

—> e.g. UK: Every Wednesday, questions to the PM, every day (except Fridays) 50 min devoted to questions to other ministers

Pres vs parl system SoP

Stricter in Pres, but in Pres no branch of govt can overthrow another… BUT many CHECKS upon other branches

Pres vs parl legislation

Pres: Congress initiates and passes

Parl: Govt initiates legislation

Accountability in presidential systems

Exec is unaccountable to Parliament (unlike parl) BUT Congress can impeach & remove Pres for “treason, bribery, or other high crimes & misdemeanors) (Art 2 sec. 4), Congressional oversight, e.g. House judiciary committee investigating jan 6

Presidential veto

art. 1 sec 7, Hamilton & Madison viewed it as an indispensable guarantee against Congressional abuses

—> Pres has 10 days to veto, however can be overridden by a 2/3 maj in both houses (only 4% of pres veto were overridden)

—> Line item veto ruled unconstitutional in Clinton v. NY 1998, no cherrypicking as Pres would acquire too much power

congressional checks on exec US

• public policies suggested by the exec need to be funded by Congress

• PR has appointment power w/ advise & consent of the Senate, e.g. Obama Merrick Garland, Congress refused

• Congressional investigations: house jan 6 committee

• impeachment and removal (political BUT criminal, dif from accountability)

judiciary checks on other branches examples

• non delegation doctrine / major question doctrine = abt devolution of power, Courts presume Congress doesn’t delegate to exec agencies issues of major political or economic significance

• judicial review of statutes (Marbury v Madison —> before this, justices could review state statutes, but unsure abt federal, then yes)

Illiberal democracy (Zakaria)

electoral democracy, Zakaria: “a democratically elected regime… routinely ignoring constitutional limits on their power and depriving their citizens of basic rights and freedom” (antithetical to constitutional liberalism)

Constitutional liberalism (Zakaria)

“a defense of the individual’s right to life and property, and freedom of religion and speech. To secure these rights, it emphasizes checks on the power of each branch of govt, equality under the law, impartial courts & tribunals and separation of church & state.”

Fukuyama’s erosion of liberalism

Liberal institutions which limit the exec are eroded, causing democracy to become under attack —> electoral outcomes can be manipulated through gerrymandering, strict voter laws, or false charges of electoral fraud

Hungarian illiberal democracy (ECHR GC Baka v. Hungary)

Urban SAID in 2014 speech that he was seeking to build an “illiberal democracy” in the heart of the EU, esp lack of impartial courts & tribunals

—> ECHR GC Baka v. Hungary: former SC of Hungary pres prematurely revoked due to public expression of legislative reforms affecting the judiciary = violation of right of access to court and freedom of speech

Polish illiberal democracy (ECHR Zurek v. Poland)

Judge Zurek,spokesperson for National council of the judiciary, criticized changes to the judiciary by legislative & exec = prematurely removed from office and targeted by a campaign to silence him = lack of impartial/independent courts and tribunals

gap between rulers and governed?

Increasing over time: 2022 FR Pres election very low turnout, abstention rate in general for FR elections is increasing

crisis of representative democracy + 3 main critiques

govt is not representative of the governed. critiques include:

1. representative mostly come from upper social class: e.g. SCOTUS

2. more and more politics and profession, lack of reaching out to civil society

3. underrepresentation of women, but getting better in france, Amendment 1999: Statutes shall promote equal access by women and men to elective offices and posts

   1. —> June 2000 statute imposed parity for candidates for municipal/regional/European elections, j financial penalty if not met in legislative elections

how do elections promote representativity?

• held at regular intervals to ensure Parliament keeps reflecting popular preferences

• devolves power to the ppl AND holds former rulers accountable = reelection

• election systems can either focus on representativity (through proportional representation) or stability (majoritarian system)

FPTP System

• constituencies elect one lawmaker each, no. of seats = no. of constituencies (e.g.HoR)

• designed to usher in clear majorities

• likely to lead to (de facto) 2 party due to winner-takes-all effect

• e.g. US, UK

Absolute majority system

• candidates w/ 1/8 of registered voters in 1st round can run

• if no absolute majority in 1st round, 2nd round is held, can win 2nd round w/ relative majorities when there 2+ candidates

• ensures multi party representation, but favors emergence of a majority

• lower house is not as multiparty representative as proportional system as parties are incentivized to make coalitions & trade offs

• e.g. FR

Proportional system

• favors multi party representation in Parliament, 10% of votes = 10% of seats (in lower house)

• drawback: voters don’t have say over specific preferred individual candidate as they vote for party

• e.g. Israel: list system, Germany: 2 ballots = leads to overhang seats

main electoral / representativity critiques: US

some majoritarian systems emphasize efficiency & stability at the expense of representation

—> Senate is undemocratic: Wyoming (0.5M) has j as many Senators as CA (40M), conceivable at founding but no longer justified

—> Senate filibuster (60 senators to vote a bill into law) permits a minority of Senators to block the will of the majority, delays vote on legislation

Electoral college needs to be reformed, causes PR to win in swing states (2000 FL Gore Nader Bush), winner takes all system means PR can be elected while losing popular vote

main electoral / representativity critiques: FR

ever increasing low voter turnout = widening gap between rulers / governed

—> Proportional rep is insufficient under majoritarian system, parties stress discrepancy between their score in 1st round of PR election & their no. of seats in parliament

—> too stringent referendum: 1/10 registered voters backed by 1/5 of lawmakers, last referendum was in 2005

—> lack of ministerial accountability (ministers treated better than ave citizen in trial)

citizens’ convention

mini publics, experts can help citizens in the deliberative process, proposals then either voted into law by Parliament, submitted to referendum, incorporated in decree, exec action, or dropped

—> FR Citizens’ convention on climate change, 150 citizens made 149 recommendations, some passed into law (e.g. environmental crimes) but others dropped, envisioned referendum wasn’t held

how to improve FR referendum process?

lower threshold, 1/5 of lawmakers is ok but 1/10 of registered voters (~4.7M) is too stringent, 1M now envisioned

how to improve FR struggle between majoritarian system / proportionality rep?

more proportionality rep, 20% suggested, 1 nationwide “constituency” making up 20% of seats

how to improve FR ministerial accountability?

suppress the Court of Justice of the Republic, Ministers should face same judges as ave ppl, not Court comprising a maj. of MPs

recall vs autonomy of reps

Recall: US, allowed in 19 states + DC, citizens can remove & replace official before end of term if not acting in citizen’s interest, gather petition, not the same as impeachment

Autonomy: FR, Ger, Ita, each elected rep is free to vote according to his judgment, “not a spokesman for his electors, but trustee” (E. Burke)

—> Art. 27 of FR C: autonomy of officials, recall would be unconstitutional (national sovereignty > local interest)

CC Decision of July 1971, Freedom of Association

Preamble of 5th rep refers to preamble of 4th rep = Preamble became legally binding, before then “not judicable” = allows CC to interpret Preamble and adapt it to contemporary times

CC Decision July 2018

Recognized constitutional value of the principle of fraternity = 1st time CC recognized a word of French motto as constitutionally valuable

CC Decision Jan 2020

Charter for the Environment = constitutional value

CC Decision Oct 2021

An inherent principle of France’s constitutional identity supersedes EU law —> EU directive can’t be transposed into FR law if inconsistent w/ such principle (ongoing debate)

2 ways to establish a new constitutional order 😆

1. through a constitutional convention, e.g. US 1787, but BoR added later, 1791

2. by a constitutional amendment which authorizes the drafting of a new text, not as much legitimacy as a convention

FR example from 4th to 5th rep, how to establish a new constitutional order?

Amendment passed by Parliament authorizing drafting of new C, included formal and substantive requirements

• formal: govt advised by advisory committee, Council of State, final draft retained by Council of Ministers will be put to a vote = referendum

• substantive: must comply w/ fundamental principles: universal suffrage = source of power, working division leg/exec, independent judiciary, accountability of govt to parliament, sovereignty of the ppl through referendums for example

4th to 5th FR Rep, what did Council of State advise for final draft?

amended the draft to extend the enumerated powers of the legislative (art. 34) in order to curb exec pre-eminence over Parliament

—> followed by 27 aug 1958: Debré’s address to the Council of State about this surprising article

—> art. 34 resembles 10th amendment US… if not mentioned in art. 34 its for exec, if its not mentioned in art. 1 sec 8 US, its for states

novelty of the 5th rep

clear primacy of the exec, no longer unlimited realm of statutes (art. 34), creation of a CC (also checks compatibility of treaties FR is abt to ratify w/ C, often amends C to ratify treaty), rationalization of parliament

continuity of the 5th rep

(BEFORE 1962 DG UNIV SUFFRAGE REFERENDUM) Parliamentary regime, NA can overthrow the govt (art. 49) but stringent conditions, 2 headed exec, embracing FR C history through constitutional block

CC July 16 1971

CC held all texts mentioned in Preamble to the 5th are legally binding

Constitutional block

1. articles of 1958 constitution

2. DRMC

3. political, economic and social principles necessary to our times (preamble to the 1956 constitution)

4. FPALR (fundamental principles)

5. Charter for the environment of 2004

Legal effects of DRMC as part of the Constitutional order

judicial review

• ex ante: after vote of law but prior to its promulgation

• ex post: only if the outcome of the case rests on constitutional issue

QPC Sep 6 2019

struck down statute as inconsistent w/ art 8 of DRMC

QPC May 24 2019

CC discovered a new principle of Constitutional value = principle of necessity of punishment (only necessary, not more than that)

preamble 1946

political, economic and social principles (14 articles) = 2nd generation of rights as entitles citizens to benefits from the State

how to discover a FPALR?

1. republican statute

2. enacted prior to oct 27, 1946

3. with continuous application

4. not very changeable

what realms for FPALR? + examples

Fundamental liberties, national sovereignty, organization of political power

—> freedom of association, rights of defense

rights classified by relation w the State

1. status negativus: State can’t infringe on your liberty (freedom of speech)

2. status activus: you can take part in the functioning of the State (voting, jury)

3. Status positivus: you are entittled to benefits from the State (education, employment)

FR vs public liberties

Public liberties: j about natural persons

FR: relationship between natural persons and legal entities

how to amend FR constitution 😃 😆

1. MP bill or govt bill

2. assent of both houses on the same wording

3. Referendum OR Maj congrès of 3/5 (only if its the govt’s bill!!)

= if govt bill, PR can choose between referendum and vote in congrès, if parliament bill, MUST BE A REFERENDUM

FR amendment nov 6 1962

PR elected by Universal suffrage (absolute maj through 2 rounds) = greater legitimacy

FR amendment 1974

60 MPs can refer a DC to the CC (power for the opposition!)

CC DC Jan 15 1975

right to abortion, it’s not for the CC to check whether a statute is in compliance w/ a treaty

—> role of Cour de Cassation & Conseil d’État

2008 referendum FR

modernization of the institutions of the 5th, almost half of articles were modified

French constitutional history: drawing from 3rd rep

major statutes: freedom of speech, assembly, the press, association, secularism (laïcité) that became either FPALR or Constitutional provision

French constitutional history: drawing from 4th rep

2nd generation of rights = political, socioeconomic principles necessary to our times (e.g. unions, right to strike, asylum, gender equality)

Define diarchy

majority of MPs in NA align w/ PR; most frequent scenario, esp since 2000 amendment which reduced PR mandate 7 - 5 years = reduce risk of cohabitation

2000 Constitutional Amendment FR

referendum, pres 7 year term —> 5 years, PR election held prior to legislative = reinforces primacy of the PR by weakening counter power of the legislative, legislative elections held 6 weeks after PR elections

—> MPs feel they owe their electoral mandate to PR campaign, unquestioned legitimacy of PR, PR can impose his agenda

Periods of cohabitation

1. 1986-88: PR Mitterrand, PM Chirac

   1. Chirac seen as subordinated to PR, 88: Chirac refused to become PM another time

2. 1993-95: PR Mitterrand, PM Balladur

   1. Balladur very talented and popular among the ppl, compelled Mitterrand to appoint

3. 1997-2002: PR Chirac, PM Jospin

   1. after Chirac decision to dissolve parliament backfired, longest period

De Gaulle & his PMs

1. Debré: drafter of the C (59-62)

2. Pompidou: super loyal to DG, heir of DG (62-68)

3. Couve de Murville: technocrat, civil servant (68-69)

Pompidou’s POV on PR-PM relationship

PR: determines strategic objectives of national policy & oversees their implementation

PM: carries out these policies and is accountable to the NA

Why did Valéry Giscard D’Estaing (VGE) appointed Chirac as PM 74-76?

VGE partly elected thanks to Chirac support = reward, HOWEVER Chirac was 1st PM to dispose of his role, he resigned during a press conference (without the knowledge of VGE!!!)

—> conflict of ego between PM and PR

—> Pompidou said “Chirac is a bulldozer” = rising star of the right

1988 PR election FR

After 1st cohabitation 86-88 Mitterrand/Chirac, as PM Chirac was seen as subordinate to PR —> 88 he refused to ever become PM again

This election pitted the serving PM and PR against one another!

But Mitterrand won lol

In general… what kind of PM do PR appoint?

Depends on political context! Will choose one w/ lighter or heavier political weight…

Lighter political weight: poss. as a reward for loyalty (Hollande & Ayrault) technocrats/civil servants —> PM may have key expertise in one field: VGE & Barre: VGE didn’t second guess Barre’s economic decisions, called him “the best French economist”

Heavier political weight: Oftentimes mayors, respected, but avoid too big political power as they could threaten PR / cause instability (unless a lot of public pressure for example)

3rd cohabitation

caused by 1997: Chirac dissolved NA, backfired and the right lost, 97-02 PM Lionel Jospin whom Chirac was compelled to appoint, longest period as 5 years in which PR had minority in NA

—> 2000 amendment: Jospin & Chirac agreed on a new time table for elections

Relationship between Sarkozy and Fillon (2007-12)

Fillon was Sarkozy’s only PM, interesting diarchy: Sarkozy said “the PM is a collaborator (in English, associate = implying hierarchy). I am the boss” BUT Fillon ok w/ this statement: “the PR defines the policies and I am responsible for implementing them.”

Institutional reasons for unchallenged PR legitimacy

• 1962 amendment: direct universal suffrage, art. 11

• 2000 amendment: 7-5 years = MPs elected 6 weeks after PR, sense that MPs owe their election to PR

Implication of PR unquestioned legitimacy

PR can impose his agenda & views on PM in contradiction w/ art. 20: “the Govt shall determine and conduct the policy of the Nation.”

—> DETERMINE is no longer true, instead the PR determines and the PM implements!

Implementation of PR agenda by PM

PM/Govt tasked w/ drafting bills and preparing decrees = implementing the agenda determine by PR based on the platform on which he ran and won

—> however did the PM co-author the PR agenda w/ PR??? If so, PM has more authority towards PR, e.g. Fillon & Sarkozy = whole term, formed a team, Fillon came up with almost every proposal (technical experience vs Sarkozy political experience)

Reserved area of the PR

Under this doctrine, the PR must limit the exercise of his powers to foreign affairs, defense, and overseas territory issues (term coined by Chaban-Delmas)

—> DG: PR is the “man of the nation” (1964 press conference) vs PM “complex and meritorious role”, PR is hindered by most important questions: foreign affairs, defense, and constitutional issues… INTERNAL matters for PM (Sarkozy & Macron should intervene less as lose energy & primacy)

—> Unless exception requires PR, i.e. political crisis = art. 16

PR primacy depending on preexisting relationship w/ PM

to some extent… esp if PM was already a noteworthy politician prior to appointment, or if PM was slightly out of line w/ PR (e.g. social-liberal Roccard vs socialist Mitterrand)

How can PR convey a message through appointment of PM? examples 74-76 VGE/Chirac, 2014-16 Hollande/Valls

By appointing a seasoned PM & new govt to solve a political crisis, or adopt a new political stance during term = however loses unchallenged primacy (e.g. 74-76 VGE appointed rising star Chirac, compelled due to Chirac’s support BUT contention between 2 strong figures, or 2014-16 Hollande appointed Valls due to shift in course of economic policies, Valls polling better than Hollande = Hollande could piggyback his momentum)

In cohabitation, PR becomes what depending on political context

either leader or member of the opposition, dependent on if he’s running for reelection: if yes, PM = leader of opp., if no, PM = just a member of opp.

PR vs PM powers during cohabitation

• National issues devolved to PM: Mitterrand, in contradiction w/ art. 13 (no choice bruh) refused to sign ordinances passed in the council of ministers

• PR retains prerogatives w/o countersignature = art. 5 and all listed in art. 19

How does PR solicit other powers

Debré said “but for art. 16 the PR has no other power than to solicit another power”

• art. 8: solicits the Govt (appoints PM, and other members of govt on rec from PM)

• art. 11 & 12: solicits the will of the people (11 through referendum for institutional reforms, 12 dissolves NA & holds general election)

• art. 18: solicits the Congress (since 2008, can take the floor debate w/o vote)

• art. 56: solicits the CC (appoints 3 members of the CC, including its Pres)

PR tasked w/ safeguarding national authority

in times of crisis, e.g. 1986 unrest following death of a student led to massive demonstrations = case of national authority, PR solved it

—> PR remains responsible for overseeing & deciding whether to suggest Constitutional amendment (art. 89) as evidenced by 2000, and also referendum (art. 11)

Art. 20 FR C

“The Govt shall determine and conduct the policy of the Nation” = only true in cohabitation, otherwise PR determines, govt implements… but PM is head of maj in NA… CC and senate can check the PM as opposition can easily refer a question to CC, senate may be controlled my party dif from NA maj.