Constitutional Law Final

constitution (formal) -

central written document that set out the basic rules that apply the government of socio-political entities, in particular states

Comparative constitutional law -

examines how different constitutions operate, their key differences, and reasons for the variations

State (political) conception of the constitution -

act that constitute a polity, forms a state, involves a constituent (when state is established) and organizational (after state is organized) moment

Legal conception of constitution -

fundamental and supreme law of the state

Constitution (substantive) -

comprises the entire body of fundamental rules that govern that socio-political entity

substantive constitutional dimensions, aspects constitution regulates

• Horizontal: rules regulating the organization and powers of government institutions

• Territorial: relevant in federal or decentralized states, specifying the powers of different levels of government

• Vertical: regulates the relationship between the state and individuals, often rights-based

Vertical Analysis of Constitutions -

 in-depth examination of the principles within a specific constitution

Horizontal Analysis of Constitutions -

broad examination of how different constitutions apply similar principles in varying ways

written constitution -

codified text that is officially published and enacted through established procedures (US & France)

unwritten constitution

not consolidated in a single document; includes statutes, customs, and conventions (UK, Israel)

Codified constitution -

a single, titled, systematic document that regulates constitutional issues (US & France)

what are codified constitutions complemented by?

•  customary laws - unwritten laws pertaining to flexible details that are simply understood

  • Ex: POTUS and VPOTUS will never travel together

Uncodified constitution -

composed of various sources including written laws and customary practices (UK & Israel)

Rigid constitution/entrenched constitution -

 amendments require special procedures, often involving new constituent power (US)

Self-made constitution -

created and confirmed by the sovereign people (adopted through democratic processes) (USA, France)

Imposed constitution -

drafted or enforced by external actors (imposed by foreign powers or authorities)

meant to limit power of current monarch by popular sovereignty but still derived authority from the monarch, who could at any point change or repeal them

Constitution enacted by Tsar Nicholas II of Russia

Virtual (descriptive/proclamatory) constitution -

appears binding but is not effectively applied of enforced, often seen in authoritarian regimes (China)

China’s constitution includes freedom of speech, assembly, and demonstration, yet Tiananmen Square massacre occurred in retaliation of a protest

Regulatory constitutions -

has binding force and regulates the political process effectively, with practical legal effects, constitutions in democratic states (USA)

Why do constitutions have a ‘special status’ within their respective legal orders?

there is a legal hierarchy, constitution - statutes - ordinances

no law can contradict content of the constitution

constitutions derive their special status from the fact they are enacted ‘by the people’

Do all Constitutions have a special status?

no, because flexible constitutions can be amended as easily as ordinary laws can be changed or made

Which are the sources of constitutional law?

written laws, customary laws, judicial decisions, legal acts

characteristics of modern constitutions

• Supreme law: constitutions are the highest legal authority and provide the framework for state governance

• Binding force: binding erga omnes (on everyone), symbolically significant, and foundational

• Textual nature: typically have concise, abstract, and comprehensive content to allow flexibility in legislative application

Sovereignty -

supreme power or authority of a state to govern itself

Popular sovereignty -

idea that leaders and government are created and sustained by consent of the people

Royal sovereignty -

original source of all public authority is the monarch, even if a constitutions exists

External sovereignty -

ability for a country to conduct its own foreign affairs

Internal sovereignty -

original source of public authority within a state

• Popular vs Royal

• Popular vs National

national sovereignty

can only be represented by the nation’s representatives, not the entire nation, in the manner laid out in the constitution

• Proclaimed by French Declaration of the Rights of Man 

• Nation is defined as all Belgians who have ever and will ever live in the future. Thus, the current population is not the nation.

which types of constraints exist in the constitution making process?

upstream constraints - imposed on assembly to make constitution, content and voting procedure

downstream constraints - rules for ratification

why does was the making of the German Basic Law described as ‘irregular’?

• drafted under Allied occupation and with Allied powers’ influence

• drafted on heels of failure of the Weimar Republic and catastrophic actions of Nazis

• drafted during territorial division of Germany that resulted from conclusion of WWII, until German Reunification (1990), Basic Law only applied to West Germany

do the irregularities of the making of German Basic Law weaken its force?

although there was an absence of popular sovereignty during the process of creating German Basic Law, the legitimacy of the Basic Law is derived from the general, widespread, and ongoing acceptance by the citizenry of Germany

How was the process of Iceland’s crowdsourced constitution different from usual process of constitutional drafting and approval?

1. National Forum to decide what should be included

2. Constitution drafters selected from a pool of citizens that did not include professional politicians

3. Use of social media to gather feedback on drafts

4. unprecedented level of transparency

what are the three characteristics of a state?

territory, people, power/sovereignty

why do we study sovereignty in constitutional law?

Constitution-making process is expression of sovereignty, made by sovereign

• Most constitutions derive claim to authority from popular sovereignty

• Constitution-making gives power shape

Why is the Peace of Westphalia relevant to the subject of sovereignty?

series of peace treaties ending the European wars of religion

• Birth of the nation state and idea of nations

• Ended first ‘global’ war which lasted 30 years in Europe

• Two characteristics:

  • All states are equal

  • No state has power to interfere with another state’s sovereignty

  • Concept of external sovereignty was born

When was the idea of the nation/nation state created?

Peace of Westphalia (1648)

Example of a self created constituent assembly?

Constitutional Conference in US in 1787

Example of an external actor created constituent assembly?

Constitutional Conference created Continental Congress

If during the constitution-making process instructions are not followed, formal procedures are distorted, and constraints are circumvented, is that constitution valid?

only if it is continuously accepted by the people

what is the legal force of a constitution within their respective legal orders

According to hierarchical status, promulgation of ordinary laws and ordinances must comply with form and manner of text in the constitution, and not contradict text of the constitution

• However, this only exists in regulatory constitutions

• if a law contradicts const, it is void

What does the idea of constitutional supremacy create?

• Limited government

  • Absolute power lies with people, limited power applies to elected officials and civil servants

• Effective government

  • One text or authority that distributes power and is referred to

Constitutionalism

constitution binds government agents

what legal effect does a preamble hold?

Proclamatory constitutions/constitutional provisions do not have legal effect but in nepal amendments cannot contradict premable

What happens when a law passed by parliament contradicts the constitution?

the law is void, usually determined in high/supreme court

Marbury vs. Madison, 1803

William Marbury - justice of the peace (judge of small, local disputes) for Washington, DC.

James Madison - President Jefferson’s newly appointed Secretary of State

Madison refused to deliver the document needed in order for Marbury to take his position

Marbury sued Madison in Supreme Court and requested that Madison deliver Marbury’s commission

Original jurisdiction - go straight to the supreme court, reserved for VIPs of government

Appellate jurisdiction - start from first instance court, work up to supreme court

Contradicting laws about whether or not Marbury qualified for original jurisdiction

• One article did not include judges (art. 3, sec. 2)

• One act did 

Because the constitution said no, the act was void

Marbury was not able to access original jurisdiction

West Virginia State Board of Education v. Barnette, 1943

West Virginia - passed statute requiring students to recite pledge of allegiance or be expelled

Walter Barnette - Jehovah’s Witness whose children were expelled for refusing to salute the flag because they believe saluting flag would be sacrilegious

Barnette argued the statute was an unconstitutional denial of religious freedom and thus invalid under the First Amendment

• “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Barnette won

parliamentary sovereignty -

Parliament has right to make or make any law, no person or body is recognized by law as having right to override or set aside the legislation of Parliament

What are the Primary Rules?

1. Literal Rule (plain meaning rule)

   1. If words of statue are unambiguous, can do nothing but take the words in ordinary sense

      1. Don't take elevator when there's a fire

2. Golden Rule

   1. Could construe statute by departing from literal meaning of words if you would be following it to avoid absurd consequences

      1. You can take elevator if there is a fire a mile away 

3. Teleological Rule

   1. We do not go by liberal meaning of words or grammatical structure of sentence, we go by design or purpose which lies behind it

      1. Don’t sell tomatoes when it's illegal to sell vegetables on Sundays

does the UK have a constitution?

Constitutional order has evolved over time, consisting of:

• Various statutes; Magna Carta, Bill of Rights, etc

• Judicial decisions; European Communities Act 1972, Scotland Act 1998

• Royal Prerogative, which is now exercised on advice of PM and Ministers of the Crown

• Conventions, rules of constitutional practice that are regarded as binding in operation but not in law

• European and international law influences

What does the ‘principle of legislative supremacy mean’? Is it compatible
with the principle of ‘constitutional supremacy’?

legislative supremacy - codified constitution without courts review

• Sovereignty of Parliament is unrestrained because of nonexistent constitutional court

• Legislative supremacy is a fundamental principle of UK constitutional law

• Incompatible with principle of 'constitutional supremacy’

What does the ‘codification of the UK constitution’ mean exactly?

rewriting of legal customs, statutes, acts, ordinances into one centralized document

would require separation of powers, foreign to UK

three arguments in favor of codification of UK constitution

1. Would enable everyone to know rules and institutions that govern direct ministers, civil servants, and parliamentarians

   1. most rules of government are only understood by political elite

   2. Public trust in ministers, parliamentarians, and civil servants is currently in a state of decline

2. “Unwritten constitution” is outdated, referencing ancient past and unsuited to social and political democracy of 21st century

   1. Process of establishing codified constitution would give people role in determining central principles of constitution

3. A written constitution would promote unity across the United Kingdom

   1. Written constitution would provide rationalization and coherence across currently differing legal systems in Scotland, Wales, and Northern Ireland

three arguments against codification of UK constitution

1. It is evolutionary and flexible in nature, more so than a constitutional document would be

2. There is no real need or support for a written constitution

   1. When greater clarity over political rules is required, ad hoc codification process has already been taking place

   2. Considerable pressures on ministers makes implementation of controversial policies difficult

      1. Opposition in House of Commons, intra-party dissent, ability of House of Lords to hold up legislation of which it disapproves, cooperation of regional governments, and public opinion

   3. would divert time and resources from relevant issues

3. would create litigation in courts, and decisions should be made by elected officials, not unelected judges

   1. increase of politically motivated litigation in courts

Are there any parts of the US constitution which may not be amended?

No amendment made before 1808 could affect the first and fourth clauses of the ninth section of the first article (pertaining to the slave trade and taxation) and no state, without its consent, can be deprived of equal representation in the Senate.

How can the US constitution be amended?

1. Amendments can be proposed by a two-thirds majority in both houses of Congress or by a convention called by two-thirds of state legislatures.

2. The amendment becomes valid once ratified by three-fourths of state legislatures or conventions in three-fourths of the states.

In order to modify an ordinary law, it is normally necessary to have a plurality of the Members of Parliament voting in favour of the amendment (in other words, more votes in favour than against the proposed amendment). would you say that it is harder to amend the constitution or ordinary laws?

harder to amend the constitution:

require much larger majorities (often two-thirds or three-fifths) and more complex procedures, such as approval by multiple legislative chambers, ratification by referenda, or involvement of state legislatures or special commissions

ordinary laws require: typically only a simple majority vote (plurality) in the relevant legislative bodies

simple majority-

more yes than no votes

super majority -

⅔ or ⅗ of the votes

qualified majority

Majority of people, as well as majority of minority voting

rule of law -

absence of arbitrary power and equality before the law (Dicey)

List the different requirements through which constitutions protect themselves against change

1. formal institutional procedure

   1. proposals by certain people or institutions

2. parliamentary procedure

   1. time delays, multiple readings, special voting requirements, sometimes call for intervening elections

3. referendums

4. limitations to amendments

   1. substantive and temporal limitations

Why are constitutions resistant to change?

1. “devices for precommitment or self-binding, created by the body politic in order to protect itself against its own predictable tendency to make unwise decisions”

2. Idea that constitution should be elevated above “ordinary politics”, should be “a framework for political action, not an instrument for it”

3. Most important reasons: political and economic stability and predictability, protection of democratic procedures, protection of political opposition, protection of individual and minority rights and interests, protection of independence of certain institutions, increasing legitimacy of constitutional order

are there any parts of the German constitution which cannot be changed?

Amendments affecting the division of the Federation into Länder (states), the Länder’s participation in legislation, or the basic principles laid down in Articles 1 (human dignity, rights) and 20 (democratic state based on the rule of law) are inadmissible.

how can the German constitution be amended?

Can only be amended by statutes that expressly amend or supplement, amendments require a statute passed by a two-thirds majority (0f every member) in both the Bundestag (federal parliament) and two-thirds (of members present) Bundesrat (the federal council representing the Länder).

are there any parts of the French constitution which cannot be amended

the republican form of government

how can the French constitution be amended?

1. Amendments must be proposed by the President, Prime Minister, or members of Parliament and approved by both houses in identical terms. They are then ratified either by referendum or, if submitted by the President to Congress (a joint session of Parliament), by a three-fifths majority.

   1. Three processes

are there any parts of the Spanish constitution which cannot be amended?

The Constitution cannot be amended during times of war or under states of emergency listed in Article 116

how can the Spanish constitution be amended

amendments must be passed by 3/5 majority in each House. If no agreement is reached, a Joint Commission may draft a proposal, and the amendment can be passed by a two-thirds majority of Congress. Amendments are submitted to a referendum if requested by one-tenth of either House’s members. For major revisions affecting core sections, a two-thirds majority is required, followed by the dissolution of Parliament and the ratification of the new text by the newly elected houses, with ratification by referendum.

substantive limitations on constitutional amendments-

render limited number of provisions or principles unamendable at any given time and circumstance, usually territory, fundamental rights, form of government

temporal limitations on constitutional amendments -

cannot change constitution in certain times, most commonly refer to situations of emergency

safe harbor -

provision of a statute or a regulation that specifies that certain conduct will be deemed not to violate a given rule, during times of uncertainty

what are the innovations of the Spanish constitution?

• Total revision of the constitution is permitted in constitution

  • If total revision is voted on, there are elections  for new government because Cortes is immediately dissolved, if the party that is against the revision wins, it does not take place

• They empower minority to trigger referendum

autocracy -

government when legislative organ is a single individual, hereditary monarch or dictator in power, because of a revolution

democracy -

government when legislative organ is an assembly of entire population or parliament elected by people

statutes -

acts + primary legislation, general norms

ordinances -

executive law + secondary legislation, general norms issued by administrative authority, may elaborate or replace statutes

power of UK parliament over monarchy?

parliamnet has power to decide who will be king, they only allowed Protestant relatives to inherit the throne after King James of Scotland/England spent lots of money of war in France for religious reasons

unicameral system -

one legislative house, requires a supermajority of parliamentary votes

bicameral system -

two legislative houses, require separate approvals by both chambers of legislature

why should the constitution be more flexible?

1. democracy in traditional sense

2. improvement in decision-making procedures

3. adjustment to transformations in society

4. adjustments to international cooperation

5. flexibility and efficiency in decision making

6. ensuring, adjusting or reconfirming fundamental rights

what are the three ‘sorts of power’ into which montesquieu divides the government?

1. legislative

   1. enacts temporary or perpetual laws, as well as amends or abrogates those that have already been enacted

2. executive

   1. in respect to things dependent on the law of nations

3. judicial

   1. executive in regard to matters dependent on civil law

what happens when legislative and executive are united?

same monarch or senate can enact tyrannical laws and execute them in a tyrannical way

what happens when legislative and judiciary powers are united?

life and liberty would be exposed to arbitrary control

what happens when judiciary and executive powers are united?

judge may act with violence and oppression

how do the powers of government control each other?

1. legislative controls executive by creating laws executive must enforce

2. executive controls legislative by voting for or against laws

3. courts control judiciary by striking down acts or laws

4. executive controls judiciary by pardoning criminals

how does madison propose to ensure that the separation of powers between the different branches of government is effective?

1. members of each branch should

   1. have as little agency as possible in the appointment of the members of others

   2. not be reliant on each other for income, or they could be pressured out of fear of losing their income

2. giving administers of each department necessary constitutional means and personal motives to resist the concentration of the powers

what does “the power surrendered by the people is first divided between two distinct governments and then allotted to the three branches of government?” mean?

federalism, federal gov has three branches and each state has their own three branches

meaning of ‘legislative’, ‘executive’, and ‘judicial’ functions

1. legislative - makes laws

2. executive - enforces laws

3. judicial - interprets and applies laws in cases of conflict

difference between ‘functional/institutional’ and ‘personal’ dimensions of separation of powers

1. functional - legislative makes laws, executive enforces laws, judicial interprets and applies laws in cases of conflict

2. institutional - these three functions should be allocated with different organs

3. personal - different organs should be actually staffed by different people

presidential model

president as head of state and head of executive republic

parliamentarian model

prime minister as head of the executive but president or king as head of state

hybrid/semi-presidential model

president as head of the state and prime minister as head of the executive

president commands external affairs, PM commands internal affairs

essential difference between ‘parliamentary’ and ‘presidential’ systems

whether the head of the executive is elected with his own mandate, or enjoys the tolerance of parliament

is the vote of no-confidence the same as impeachment?

1. no, impeachment requires a serious crime

   1. ‘serious crimes’ are not outlined in constitution, so deciding what is serious is up to judiciary

2. vote of no-confidence can be held for any or no reason

who has more power? president or PM?

1. president

   1. own mandate, does not rely on parliament’s tolerance

   2. harder to remove from power

   3. has more independence

2. PM

   1. if they control majority of parliament, they can exercise full executive and legislative power

why is France considered to have a ‘hybrid’ or ‘semi-presidential’ system

has both directly elected president who exercises many executive functions and who is accountable only to the people and a PM who also holds executive power, and is accountable to parliament (although appointed by President)

what are the types and notions of sovereignty

types: internal and external

notions: popular and royal

is presidentialism inherently more prone to democratic breakdown than parliamentarianism

yes, lacks parliamentarian’s confidence vote

presidentialism aggravates relationship between executive and legislative

what are the 2 or 3 main tasks of parliaments?

1. legislation

   1. making decisions that bind citizens on the citizen’s behalf, including the budget

2. control

   1. scrutinizing, on behalf of the citizens, other government institutions

what task does parliament perform in parliamentary system but not in presidential?

elect head of executive and decide if they stay in power