Constitutional Law

DEFINITION OF LAW - POSITIVE AND NATURAL LAW

a set of rules that regulate society in order to maintain order and live in peace

• PL: current law applied in your country, enforced by current authorities

• NL: certain moral principles are inherent in human nature and can be understood through reason

CONSTITUENT POWER

people who are involved in the making of the constitution, important because they have the power to ratify.

Constitution is derived from the people, because people are sovereign

CONSTITUTION IN A NARROW SENSE

the document itself (Capital C)

constitution IN A BROAD SENSE

laws that include the electoral code, powers, rights of citizens, responsibilities, obligations, and relationships between the citizens and the powers

WRITTEN CONSTITUTION AND WORKING CONSTITUTION

WR C- the document and the amendments

WO C- constitution that is dynamic, flexible, and adapted

PREAMBLE, EXAMPLES

contains who is the sovereign of the country

“We the people”

“The French People”

“The Spanish Nation”

SOVEREIGN- DEFINITION ORIGIN

sovereignty is the highest power over the citizens who must obey the law, the ultimate power to rule a country- french jurist Jean Bodain

DIMENSIONS OF SOVEREIGNTY

AD Extra- a country can demonstrate they have power internationally 1. People 2. Territory 3. Power

AD Intra: how the country distributes its power within the country, who holds power

PEOPLE ARE SOVERIGN WITHIN THE COUNTRY

ROYAL SOVEREIGNTY

When kings/queens have all the power

When king was sovereign, the people did not have a constitution under ancient regimes

PARLIAMENTARY SOVEREIGNTY

the parliament is the highest source of power, can make any law

Parliament always has the last say- not legally bound by referenda

STATE SOVEREIGNTY

concept that a state has the full right to govern itself without interference from outside authorities

NATIONAL SOVEREIGNTY

the nation has sovereignty, nation can refer to representatives, tries to highlight the representatives rather than the people

if a nation is sovereign, people don’t get the last say, government is not bound by referenda

POPULAR SOVEREIGNTY

the electorate- people would vote for elections and for political decisions, amending the constitution, referendum (Example of when people are sovereign)

ABSENCE OF SOVEREIGNTY

constitution does not say who is the sovereign, but does not mean that there is no sovereignty

Ex. The Netherlands, the sovereign is the people

CONSTITUTION MAKING IN U.S.

• Adopted in 1789 and amended 27 times
•Activists against british parliament whose efforts in fighting for independence led to the creation of the U.S. Constitution to establish a new system of self-governance.
• Continental Congress in Philadelphia
• Ratified by 11 states at first
• 3 Founding documents:
- Declaration of Independence 1776
- US Constitution 1789
- Bill of Rights 1791
• Ratified by state conventions

CONSTITUTION MAKING IN FRANCE

The 15th Constitution in France

DeGaulle wanted the constitution be rewritten to strengthen the executive branch

Debre led a committee to draft the new constitution

the constitution was ratified by the people, which proved its legitimacy

CONSTITUTION MAKING IN GERMANY

drafted by founding fathers and ratified by two-thirds of the members of parliament, specifically the Bundestag and the Bundesrat

May 23rd 1949- The German Basic Law was adopted

Never ratified by the people but still legitimate- drafters claim to represent the people/diversity of the country, the draft is negotiated publicly, and it is socially accepted

CONSTITUTION MAKING IN SPAIN

1978 Spanish Constitution

After Franco died- Juan Carlos brought democracy to spain

established a parliamentary system of government, where the General Courts hold legislative power

Politicians drafted the constitution, and the people ratified it on 6 December- legitimate

CONTENT OF CONSTITUTIONS

1. Preamble

2. Institutional Part- map of powers

3. Dogmatic parts- list of rights and liberties

4. Vertical distribution of power- states, counties

5. Procedural- how the constitution can be amended

KINDS OF AMENDMENTS

- Rigid Amendments: Hard to change, requiring supermajorities, referendums, or multiple steps.

- Example: US Constitution requires 2/3 Congress + 3/4 state ratification.

- Flexible Amendments: Easier to modify, done through ordinary legislative procedures or minimal extra steps.

- Example: UK Constitution can be changed by parliamentary acts with simple majority

REQUIREMENTS THAT YOU CAN FIND IN THE RIGID PROCEDURES ( SUPERMAJORITIES, REFERENDUM…)

1. Supermajorities: Requires a higher-than-usual majority in legislative bodies.

2. 2 parliamentary readings of amendment with new elections between readings- amendment bill: parliament votes to pass the bill twice, can call for dissolution of the parliament

3. Ratification: of the bill by referendum (people) AND regions

4. Time Delays/cool off period: time for reflection/deliberation between lawmakers

ETERNITY CLAUSES

parts of the constitution that cannot be amended

KIND OF MAJORITIES

1. Relative Majority- only requires more yes than no’s to win

2. Absolute Majority- requires 50% of the people, +1 more vote

3. Supermajority- anything more than 50% 2/3, 3/5, 3/4

4. Unanimity- 100%

TYPES OF VOTES/BALLOTS

CONSEQUENCES OF CASTING THE DIFFERENT TYPE OF VOTES

Valid: submitted by eligible voter, free from errors, follows the voting process

Blank: way for voters to participate in the election without endorsing any candidate or option

• expression of discontent, do not contribute to election, impacts turnout stats, assess public sentiment

Void: doesn’t count

• Doesn’t count, wasted vote, voter discontent, compromises election integrity

CONSTITUTIONAL AMENDMENT PROCEDURE IN US

1. Initiative: U.S. Congress- 2/3 both houses and 2/3 of the states

2. Process: ¾ of all states, 2/3 HOR, 2/3 Senate (double supermajority)

3. Limitations: no referendum, and no eternity clauses in U.S. Con, entire constitution can be amended

CONSTITUTIONAL AMENDMENT PROCEDURE IN UK

Flexible System:

• Parliamentary Sovereignty: Parliament can amend or repeal laws, including constitutional ones, by passing an Act of Parliament

• Legislative Process: Most amendments are made through ordinary legislation.

• Referendums: While not legally binding, referendums can be used for significant constitutional changes

• Conventions: Political practices can evolve, influencing constitutional arrangements without formal amendments.

• Judicial Interpretation: Courts can interpret laws, impacting how constitutional principles are applied.

Limitations: public approval,

CONSTITUTIONAL AMENDMENT PROCEDURE IN GERMANY

Initiative: any public institution in the country

Process: 2/3 of the members of parliament

• Bundestag: 736 Seats

• Bundesrat: 69 Seats

Limitations:

1. Protect the territorial division in Länder

2. Participation of Länder in Federal legislation

3. Germany is a federal, social, legal, republican state

4. Article 1-18: Fundamental rights

CONSTITUTIONAL AMENDMENT PROCEDURE IN FRANCE

1. Initiative: President upon any recommendation of the Prime Minister or any Member of Parliament

2. Process:

   1. MoP Request: absolute majority in both houses and referendum

   2. PM Request: 3/5 majority of 2 houses in joint session

3. Limitations:

   1. Material: the government will always be republic

   2. Temporal: no amendment can be made when the integrity of national territory is in jeopardy

CONSTITUTIONAL AMENDMENT PROCEDURE IN SPAIN

Initiative: Government, Congress, Senate, and Parliaments of the autonomous communities

Process: Ordinary and Extraordinary procedures

1. Ordinary:

   - 1st round 3/5 majority of both houses

   - IF NOT- 2nd vote: 2/3 of congress and absolute majority in the senate

   - Referendum if requested by 10% of one house

2. Extraordinary: The entire Constitution, Preliminary Chapter, Fundamental Rights, The Crown

   - 2/3 majority in both houses

   - dissolution of parliament

   - New Elections

   - 2/3 Majority newly elected parliament

   - Referendum

Limitations: No material limitations, Temporal- war time/ state of emergency

CONSTITUTIONAL SUPREMACY: NOTION

Nobody is above the constitution, no rule is above the the constitution

• Limited Government: Constitutional supremacy ensures that the government's power is limited and that it operates within the bounds set by the constitution.

• Effectiveness: It ensures that the constitution is effective in protecting individual rights and limiting government power.

• Fundamental Law: It establishes the constitution as the fundamental law of the land, serving as the foundation for all other laws.

Consequences

1. Parliament cannot pass laws that violate the constitution: This restriction ensures that all laws are in accordance with the constitution's principles.

2. Laws that contradict the constitution are declared unconstitutional: Such laws are removed from the legal system, upholding the supremacy of the constitution.

PARLIAMENTARY SUPREMACY: NOTION

Acts of Parliament are the highest law of the land.
Thus, there is no public authority that may invalidate Acts of Parliament.

Consequences

the balance of power between Parliament and other branches of government, as well as the protection of fundamental rights.

• For example, in a system with constitutional supremacy, a court can strike down a law passed by Parliament if it violates the constitution. However, in a system with parliamentary supremacy, the courts have no such power.
  

SOURCES OF UK CONSTITUTIONAL LAW

1. Statutes- made by parliament

2. Customary rules- deals with relationship between king and parliament, i.e. king’s duties

3. Case law- legal precedents established by judges through court decisions

ADVANTAGES AND DISADVANTAGES OF THE UK CONSTITUTION

• Flexible: can evolve and adapt to reflect societal change

• Parliamentary supremacy means that the parliament can enact and amend laws quickly

• Lack of clarity, difficult to ascertain responsibilities and constitutional rights, disputes about interpretation of unwritten conventions

• Weak protection of fundamental rights