CCl Wk 5 Federalism, Fundamental Rights & Associative Rights

Federal state v A Unitary State

Federal state

• Powers constitutionally divided between central government and territorial units.

• Regional autonomy guaranteed by the constitution.

• Regions participate in federal decision-making.

Unitary state

• Central government ultimately controls regional powers.

• Powers can be granted or withdrawn by the centre.

What are the essential characteristics of federalism?

• Constitutional autonomy of territorial units

• Legislative competences for regions

• Participation in federal decisions

• Constitutional protection of regional powers

• Independent arbiter for disputes

Why is federalism considered a territorial concept?

Because power is divided geographically between the central authority and territorial sub-units possessing their own institutions and regulator powers

What is the role of an upper chamber in federal systems

To represent territorial units at the federal level

ex. US senate and German Bundesrat

Why is a constitutional court important in a federal system?

Ensures the supremacy of the constitution, interprets constitutional provisions, and resolves disputes between different levels of government (independent arbiter), thereby maintaining the balance of power.

ex. US supreme court and German Federal constitutional court

Compare integrative and devolutionary federalism

Integrative federalism

• Previously separate units voluntarily unite

• Ex. USA
  

Devolutionary (centrifugal) federalism

• A unitary state transfers substantial powers to regions

• Ex. Belgium

Symmetrical vs Asymmetrical federalism

Symmetrical = all regions possess equal powers

• USA (not incl territories), Germany, Australia

Asymmetrical = some regions enjoy greater autonomy than others

• ex. puerto rico and USA

What is decentralization?

Transfer of powers from the central government to lower levels of government while ultimate authority remains centrally located.

USA:

1. What constitutional model does the United States follow?

2. What powers remain with US states?

3. Why is the US Senate important in federalism?

4. How does the US judiciary reflect federalism?

(1)

Federal system with 50 states, each possessing its own constitution.
(2)

Powers not delegated to the federal government remain with the states.

(3)

US senate:

• Represents states.

• Two senators per state.

• Must approve all federal legislation.

• Cannot be overridden by the House.

(4)

Federal and state court systems operate in parallel.

GERMANY:

1. What constitutional model does Germany follow?

2. What is the Bundesrat?

3. Why is the Bundesrat constitutionally significant?

4. How are legislative competences divided in Germany?

5. What is the relationship between federal and Länder law?

(1)

Federal state composed of 16 Länder (states).

(2)

Chamber representing state governments at the federal level.

(3)

It allows the Länder to participate directly in federal legislation.

(4)

• Exclusive federal competences.

• Concurrent competences.

• Residual powers generally remain with the Länder.

(5)

Federal law has supremacy.

UK, France & Netherlands:

1. Why is the United Kingdom not a federation?

2. What is devolution?

3. How does France organise territorial power?

4. Why is France still considered unitary despite decentralisation?

5. How is the Netherlands territorially organised?

6. What constitutional status do Dutch provinces and municipalities possess?

(1) Regional powers arise from devolution rather than constitutional autonomy.

(2) Transfer of powers from the central authority to territorial units while sovereignty remains with the centre.

(3) As a moderately decentralised unitary state.

(4) Territorial powers derive from statutes adopted by central institutions.

(5) A unitary but decentralised state.

(6) They may regulate their own affairs but remain subordinate to national legislation.

Compare:

1. concentrated review,

2. diffuse review,

3. soft review and

4. no constitutional review.

Concentrated

• Constitutional Court only.

• Germany.

Diffuse

• All courts may review.

• USA.

Soft review

• Courts issue declarations but cannot invalidate legislation.

• UK.

No constitutional review

• Courts cannot review statutes against the constitution.

• Netherlands.

What is a constitutional complaint?

Procedure allowing individuals to challenge violations of constitutional rights before a constitutional court.

German example.

What is the UK's declaration of incompatibility?

Judicial finding that legislation conflicts with human rights without affecting the legislation's validity.

It is a mechanism under the Human Rights Act 1998 that allows courts to indicate that a piece of legislation is inconsistent with the European Convention on Human Rights, prompting Parliament to consider amendments.

What is France's preliminary question on constitutionality?

Procedure allowing constitutional review of legislation through referral to the Constitutional Council.

Why is the Netherlands often described as having no constitutional review but still strong rights protection?

Courts may apply international human rights treaties directly.

What role does the ECHR play?

• Supranational human-rights court.

• Issues binding judgments.

• Awards just satisfaction.

• Supervises compliance through the Committee of Ministers.

What are positive obligations under the ECHR?

States must actively protect rights and make them effective in practice.

What are relative rights?

Rights that may be restricted under specified conditions.

What are the three ECHR requirements for restricting a right?

• Prescribed by law.

  • Legal basis.

  • Accessibility.

  • Foreseeability.

• Legitimate aim.

• Necessary in a democratic society.

  • Proportionality.

  • Subsidiarity.

Compare margin of appreciation, effectiveness, and prism effect.

Margin of appreciation

• States receive discretion.

• Especially on morally controversial issues.

Principle of effectiveness

• Rights must be practical and effective.

Prism effect

• Rights are interpreted in conjunction with one another - allows for flexibility

What does the ECtHR mean by a "living instrument"?

The Convention must be interpreted in light of present-day conditions.

Why are assembly and association rights important in democracy?

They enable:

• Political participation.

• Minority representation.

• Political mobilisation.

• Public debate.

Why are assembly and association rights controversial?

They also protect extremist and anti-democratic groups.

Compare freedom of assembly and freedom of association.

Assembly

• Temporary collective gathering.

Association

• Organised and continuing collective organisation.

Protected in:

Netherlands → Constitution.

Germany → Constitution.

USA → First Amendment.

France → Constitutional traditions and statutes.

ECHR → Article 11.

Compare the three philosophies on banning political parties.

Militant democracy > The idea that democratic systems may prohibit movements seeking to abolish democracy itself.

• Germany, ECtHR.

• Democracy may defend itself.

• Only the Constitutional court may Ban

Institutional democracy >

• Netherlands, France.

• Public-order model.The ban on political parties based on ideological grounds. All actions must reflect a commitment to freedom and democratic principles.

• Executive and Judiciary may ban

Liberal democracy

• USA.

• Extremely high threshold.

• No dedicated Ban procedure

What is the Brandenburg rule?

US doctrine requiring incitement of imminent unlawful action before speech may be restricted.It protects speech unless it is likely to produce imminent lawless action.

It makes banning political parties difficult in the United States due to strong First Amendment protections and the Brandenburg standard.

Compare human-rights protection in the US, Germany, UK, France and Netherlands.

US

• Bill of Rights.

• Strong judicial review.

Germany

• Chapter I Basic Law.

• Human dignity central.

UK

• Human Rights Act.

• No entrenched bill of rights.

France

• Rights derive largely from constitutional bloc and historical declarations.

Netherlands

• Constitutional rights exist but constitutional review prohibited.

Compare originalism and dynamic interpretation.

Originalism

• Constitution interpreted according to framers' intentions.

Dynamic interpretation

• Constitutional meaning adapts to modern conditions.

GERMANY:

1. Why is human dignity central in Germany?

2. What is Germany's Eternity Clause?

(1) Article 1 forms the foundation of all constitutional-rights interpretation.

(2) Article 79(3), preventing amendment of fundamental constitutional principles.

Why does Germany permit party bans while the United States largely does not?

Germany adopts militant democracy because of historical experiences with democratic self-destruction. The United States adopts a liberal-democratic model emphasising free expression and political competition.

Why does the Netherlands prohibit constitutional review but still maintain rights protection?

Rights protection is largely achieved through international treaties, particularly the ECHR, rather than constitutional adjudication.