Constitutions and Democratic Regimes

Constitutions

• Constitutions play a major part in the states authority.
• They set major principles.
• Origin: Ancient Greece.
• First modern constitutions: Virginia, USA 1700s.
• Classical understanding: tool to limit power, framework of powers, rules of the game.

Types of Constitutions

• Traditional
  • Not only formal, reflects history/values.
  • Creation of political systems, evolved from history.
  • By default, hard to change.
  • Edmund Burke: constitution = political heritage, constitutions can't be destroyed-only amended, constitutions include tradition, partnership between those who are dead and those who aren't (reflection on the French Revolution).
• Modern:
  • Real, not virtual, comes from government.
  • Complex, fundamental law - superior to ordinary law.
  • Most widespread, by design, easy, written

Constitution vs. constitution

• C: Formal documents, designed as a fundamental collection of laws.
• c: More encompassing set of rules, formal and informal, conventions important statues/ judicial decisions.
• James Bryce (1884):
  • Rigid constitution (J. Madison - safeguards against frequent changes)
    • Majority.
    • Changes must be approved through thorough system.
    • Many other players (parliament, state federation, people).
    • Eternal cause.
  • Flexible constitutions (T. Jefferson - each generation changes the constitution)
    • UK.
    • Can be amended multiple times.

Functions of Constitutions

• Values: basic laws (human dignity for example).
• Technicalities: division of institutions, power, processes
• Democracy - power of the people, constitution - limiting the government power (three bosses of constitutions: people, judges, constitution makers)
• Dilemma: are constitutions democratic?

Constitutionalism

• Doctrine, state of mind.
• Purpose: protection, safeguards.
• Methods: limits of the government.
• Since 1700.
• Origin: struggle against absolute state.
• Division of power (Locke).
• Later: not only safeguards against the monarch and government, but also against tyranny
• Constitutionalism without "constitutions"
  • UK, New Zealand
• "Constitutions" without constitutionalism
  • Communist dictatorships

Varieties of Constitutionalism

• Classic, Anglo-Saxon understanding (limit government).
• Recent (happiness, prosperity, welfare).

Separation of Power

• 1770 William Pitt the Elder (British PM).
• 1787 James Madison.
• 1887 John E. Edward
• Separation of Institutions (bi-cameral, dualism).
• Separation of Functions (acts, powers - legislative, etc.).
• Separation of Personnel (One man on institution).
• Checks and balances.

Instruments of Checks and Balances

1. Sword
   • Sanctions, threats.
   • Veto, impeachment, dissolution.
2. Shield
   • Protection.
   • Immunity, wage protection, life appointment
   • Madison dilemma:
     • 3 tools: separation of powers, checks and balances, accountability.
     • Impeachments delegation and accountability.
     • Votes, representatives, government, administrative system

Constitutions and Conflict

• Consensus on major principles and respect to rules.
  • Shared values.
  • Rule of law.
    • Rules are to be obeyed by all.
  • Democratic political culture.
• Well-written constitutions.
  • Relative complex account of “does” and “do nots”.
  • General constitutional provisions.
    • Constitutions can hardly predict all possible situations in the future.
    • Allow for discretion x cookbook.
    • Provide flexibility
• How to solve conflict?
  • Amendments, court, political agreements
  • Consequences: long term gains, long term losses

Democratic Regime Types

1. Parliamentary regimes
2. Presidential regimes
3. Semi-presidential regimes
4. Directional regimes

Two Criteria for Regime Types

• The way the power is separated.
• Relationship between the executive and legislative power

Parliamentary Regimes

• Formal supremacy.
• Selects government.
• Dual executive

Flexible Division of Powers

• Members of the parliament often members of the government.
• Close ties and mutual influence: complete fusion of executive and legislative.
• Parliamentary dissolutions: power tool, safety valve, heads of state, parliament can self dissolve.
• Government resignation: voluntary

Political Reasons for Government Resignation

• Parties in cabinet fail to compromise.

Non-Political Reasons for Government Resignation

• Health reasons, death.

Forced Government Resignation

• Obligatory confidence vote, vote of no confidence

Types of No Confidence

1. Standards - destructive
2. Constructive
   • Protection of government.
   • Opposition finds it harder to kick government out: opposition is limited

• Investiture vote: a formal voting, compulsory in many countries- expresses the vote of confidence in the cabinet, election of the chancellor.
• Negative parliamentarism: government is not obliged to win majority (1. no formal voting, 2. government takes cabinet in all cases - regardless of the vote).
• Rationalized parliamentarism: when the executive is weak

Two Ways to Strengthen the Executive

1. Strengthening prime minister
2. Crucial party system

Presidentialism

• Popularly elected.
• Chief of the executive - head of state.
• Fixed of the term of office.
• Can't dissolve or be dissolved.
• Divided government.
  • Executive faces opposing parliamentary majority.
  • Some are presidential (USA), semi-presidential (cohabitation), parliamentary (Denmark)

Semipresidential Regime

• Origin: France, other ex: Germany, Finland
• Common features of constitutionalism: dual executive, government responsible to parliament
• Common features of presidentialism: strong presidents, government is at least partially responsible
• Some scholars disagree on how to define semi presidentialism
  • President formal powers, constitutional practice, informal president, relationship to parliamentary majority

Conceptualization

• Introduced by Maurice Duverger
  • President elected by universal suffrage.
  • Possesses quite considerable powers

Giovanni Sartori (1994)

• “Dual authority” of the executive.
• Popularly elected president.
• Dual authority conditioned by 3 factors:
  1. President independent from parliament, but he is not entitled to govern alone, and his will must be conveyed and processed via his government
  2. Government is independent of the president. It is subject to no-confidence vote and needs parliamentary support
  3. Dual authority of executive allows for different balances and also for shifting prevalence of power within the executive

Robert Elgie (1999)

• Post-Duvergerian tradition
  1. Popularly elected fixed term president
  2. President exists alongside a prime-minister and cabinet
  3. PM and cabinet responsible to parliament

Shugart and Carey (1992)

• Two subtypes of semi-presidentialism
  1. Premier-presidentialism:
     • Prime minister and cabinet are collectively responsible solely to the legislature
  2. President-parliamentarism
     • Prime minister and cabinet are collectively responsible to the legislature and the president
     • Although both types originally intended as an alternative to the term semipresidentialism, the authors (and others) have now accepted them as sub-types

Heads of States

• Who is the head of state?
  • Public official.
  • Sovereign of state.
  • Monarchs, presidents.
  • One individual is usually the head of state

Roles of Heads of State

• Symbolic: embodies state, traditions, values, notary duties, formal

Power of Heads of State

• Decision making, real political power
• Competences vs power: competences are set by the constitution, power is set by numeral factors

Sources of Power

1. Legal: mostly constitutional
   • Formal.
   • Mode of election
2. Beyond constitution:
   • Partisanship.
   • Relationship with the parliament.
   • Party system.
   • Tradition.
   • Charisma and personal ambitions.
   • Crisis role.
   • Public attitude

Formal Competences

1. Area:
   • Legislative.
   • Non-legislative
2. Degree of constrains
   • Independent
   • Shared
   • Continued

Formal Powers

1. Legislative
   • Veto.
   • Referring bills.
   • Addressing the parliament.
   • Referenda.
   • International treaties.
   • Legislative initiative
2. Non-legislative
   • Governmental functions.
   • Chairing cabinet.
   • Parliamentary dissolution.
   • Appointment judges
   • Parliamentary regimes: head of state is irrelevant
   • Semi-presidential, presidential: popularly election necessary for definition, formal powers

How Heads of State Get Into Office

1. Hereditary principle: heritage
2. Election
   • Popular (direct, indirect).
   • Parliament.
   • Special election body.
   • Or all combined
3. Re-election: especially relevant for presidential regimes
   • Real practices varies:
     • No limit.
     • Limits by convention.
     • Legal limitations (max.2-3 terms).
     • Strict limitations (max. 1 term)

Impeachment

1. Strict rule: through either:
   • Parliamentary mode.
   • Plebiscitary.
   • Judicial: constitutional court, special court
2. Easy procedure (no confidence vote)
3. Impossible (monarchies, dictatorships)

Non-Partisan Heads of State

1. Strict non partian role: monarchies
2. Non partian role set by convention (through tradition, e.g., France, Portugal)
3. Non partian role by constitution (Romania)
4. Clear partian role (USA)

• Partian role meaning: biased

General Trends Since 1800

1. Democratization of heads of state. from monarchies to republics from indirect to direct elections
2. Cutting formal competences
3. From pompous to civilian character

Constitutional Conventions

• Inviable rule.
• Help us understand the different constitutional practices.
• “Similar rules”.
• Symptoms of the quality of democracy

Constitutional Conventions: Definitions

1. Albert Ven Dicey
   • Constitutional law vs constitutional ethics.
   • Not enforced by courts
2. Jennings
   • Precedence of practice.
   • Actors believe that they are bound by obligatory rule.
   • Reasons of practice
3. Non-legal rule regulation behaviour
   • Long term.
   • Consensus

Three Approaches to Constitutional Conventions

1. Conservative: based on repeated behaviour, long term consensus, opinio juris
2. Liberal: anything non written what repeats, ceremonies
3. Principal: reflects principally, my rise quickly, working of the constitutional system

Conceptual Problems with Constitutional Conventions

• Mostly unwritten (but can have formal agreements, cabinet manuals).
• Binding but il/legitimate
• Breaches generally not enforced by courts
• Yet can be ignored, recognized, employed, enforced

How Do Conventions Emerge?

1. Precedent
2. Agreements: doctrine, conventions
3. Declarations

Solidity of the Conventions

• Always need to be followed.
• Exceptionally and legitimately broken (Wilson).
• Exceptionally broken: Australian constitutional crisis 1975.
• Repeatedly broken

Enforcement and Sanctions

1. Non-legal
   • Executed by the public opinion, political criticism, media.
   • Loss of political reason
2. Legal
   • Confiscation of conventions.
   • Courts: recognition, employment, enforcement

Legal Sanctions Examples

• Belgium: abortion bill 1990
• The Netherlands: 2010 government formation
• Luxembourg: Grand Duke Henri: euthanasia bill

Are All Conventions Equal?

• Dicey (1885):
  • ‘Some of these maxims are never violated, and are universally admitted to be inviolable. Others, on the other hand, have nothing but a slight amount of custom in their favour, and are of disputable validity’
• Andrew Heard (1989):
  1. Fundamental conventions
  2. Meso-conventions
  3. Semi-conventions
  4. Infra-conventions

In Relation to the Constitutional Context

1. Imperative: secundum et intra (consolidated interpretation of the constitution)
2. Creative: praeter constitutionem (in line with the constitution)
3. Counter constitutional (countra consititutionem)

Varying in Relevance

• Traditional constitutional
• Traditional democracies
• New democracies

Examples

UK

• Monarch: royal assent, dissolving HC, impartiality, absence of the cabinet meetings
• Cabinet: collective and individual responsibility, no confidence vote, largest party gets PM

USA

• Executive order
• State of the union assets
• Max 2 terms

In the Face of Democracy

• Clarity of ruled limits arbitrariness
• Reflects context x usually limits the scope of powers
• Make working of the system smoother
• Increase its predictability

US Political Systems

Key Features

• Presidential system
• Strict separation of powers
• Rigid constitution
• Bicameralism
• Federalism
• Two parties

Constitution

• 1787 ratification 27 amendments
• Rigid character
• Checks and balances

Separation of Powers

1. Executive
   • President: chief executive + head of state
   • Ministers: advisors and executors of his decision
2. Legislature
   • Congress
3. Judiciary
   • Supreme court
   • Federal courts
   • Everyone is elected for fixed term
   • No dooms day devices

Election of the President

1. Dilemma 1:
   • Strong head of state
   • Fear of president dictatorships
2. Dilemma 2:
   • Parliamentary elections - contradicts the principles of strict separation
   • Direct elections - no experience whatsoever, fear of populism
3. Dilemma 3: balance of powers between large and small states

Electoral College

• A group of best and honorable citizens, true elites:
  • Alexander Hamilton: electors as “most likely to possess the information and discernment” necessary to choose the chief executive
  • BUT: electors discretion is replaced ny electors commitment to the parties

PRO

• Working principal
• Stability
• Reflects federalism
• Successful candidates must receive a nation wide support

CON

• Plurality is over
• Too much focus on swing states
• Little motivation in safe states
• Faithless electors: can never change the result of the elections
• Low popular vote can win presidency

Party Perspective

• Nominal struggle (Primaries and caucuses)
• Struggle between Democrats and republicans

Primaries

• Candidates seek support from their own party
• Competition for delegates
• Each can nominate a party candidate for office

Caucus

• Older system
• Party member meetings
• Debates
• Strong power by party bosses
• Electing the delegates

Super Tuesday

• Primaries held in several states
• Term used since 1976
• States try to increase their importance for primaries by setting the date of the primaries

National Convention

• Final say in the party candidates for president
• Preparation of delegates
• Usually: clear victor prior the NC

Electoral College

• 538 members
• Voters elect electors
• Electors elect president
• 270 electors needed to win
• First Tuesday in November (general election)

Campaigning

• States with many electors.
• Safe states vs swing states.
• Battleground states (Arizona, Wisconsin, Michigan, Ohio, Florida, Georgia, etc.)

Presidential Rights

• 2 terms in office
• Natural born American
• At least 35
• At least in the US for 14 years

Presidential Powers

• Symbolic: official head of state, ceremonies, reprieves and pardons
• Appointments: shared with senate, mostly ethical restrictions, recalling of judges
• Legislative: generator of legislative changes, state of the Union address, legislative veto
• Foreign policy: gives congress information of ths state of the nation, periodically, joins meetings in both chambers, introduces new bills
• Executive: foreign policy. international treaties, commander in chief
  • Military: consults before troops fro war, reports, notifies congress, uses military action only up to 60 days
  • Executive orders: presidential degrees, legislative pieces, set by convention, counter balance: supreme court, congress

Executive Powers

• Federal departments, administration of federal law, advisers(cabinet), staff
• Independent agencies: NASA, Postal office, CIA, environment protection, etc
• Vice President: almost no specific powers - presides of joint sessions, informal powers - often on diplomatic missions

Congress

• Systematic bicameralism
• House of Representatives: 2 year terms
• Senate: 6 year term
• Plurality vote
• Single member districts

Powers of Congress

• Legislative
• Financial (budget, fees, tariffs, et.)
• Forering policy
• Military (declare war)
• Appointments (president)
• Impeachments ( remove president, origin in England, either by house of representatives or senate)

Impeachment Examples

• Andrew Johnson (1868)
• Bill Clinton (1998-1999)
• Acquitted by Senate
• R. Nixon (1974)
• D. Trump (2020 and 2021)
• Acquitted by Senate

Federalism

• States establish prior to federal institutions
• Bottom up
• Division of powers given by a list of powers
• Residual powers for states

Party System

• Bipartisan (causes: electoral system, presidential elections, costly, regional differences)
• Democrats vs republicans
• Localism, pragmatism, little disputes

UK System

Features

• Parliamentary regime
• Flexible separation of powers
• Traditional constitution
• Regional state, bipartisan

Constitution

• Uncodified, flexible, instrument of government (legislative: parliament)
• Sources of constitution: statute law, common law, royal prerogatives, conventions, eu law
• Experts: Erskin May, Walter Bagehot, Albert Venn Dicey

Constitutional Major Features

1. Parliamentary sovereignty
   • The parliament is an absolute sovereign of legislative.
   • Court cant overrule its legislation.
   • No parliament can pass a law that a new parliament can overrule
2. Parliamentary regime
   • 'The efficient secret of the English Constitution may be described as the close union, the nearly complete fusion, of the executive and legislative powers“
   • Dooms day devices: no confidence vote, dissolution
3. Unitary state, Monarchy and its function:
   • Represents monarchy.
   • Symbol of authority.
   • Provides stability.
   • Symbol of UK unity

What Does a Monarch Do?

1. Heritage head of state
2. Both executive and legislative power
3. King can do no wrong

Cabinet Manual

• UK parliamentary democracy
• Entitled to be informed and consulted + advice, encourage and warn ministers
• Royal assets
• Reserve the power to dismiss PM

Royal Prerogatives (2004)

• To appoint a Prime Minister of her [his] own choosing (1963)
• To dismiss a Prime Minister and his or her Government on the Monarch's own authority (1834, William IV)
• To summon and prorogue parliament
• To command the Armed Forces
• To dismiss and appoint Ministers
• To refuse the royal assent (1707/8)
• The power to declare War and Peace
• The power to deploy the Armed Forces overseas
• The power to ratify and make treaties
• Queen speech: annually, part of state opening of the parliament
• Monarch is only symbolic, does not share opinion

Legislative Powers of the Monarch

1. Part of the parliament
2. No legislative initiative
3. Royal assets (kings do not sign bills - until 1967 lords but then reform and now all)
4. Queens consent
5. Monarch can attend cabinet meeting

Executive Branch

• Monarch
• Government + cabinet (ministers, secretaries, other important persons)

Prime Minister

• Most powerful
• Origin: 1721
• First Walpoles: modern departure from politics

Cabinet in 1700

• Cabinet selected by the king
• Cabinet responsible to the king
• Ministers responsible for their own resor

Modern Cabinet

• Industrial revolution
• Electoral reforms
• Rise of parties
• Biased decision making

Prime Minister in 1800

• Not from the king
• Come from party and king support

Prime Minister and Parliament

• Originally from the House of Lords.
• Since 1900s from the House of Commons.
• Ministers selected increasingly form HC.
• Only one fifth of the government members from HL.
• Small pool of ministers

Parliament

• Legis, genitive case of lex
• Lactor: a person who proposes
• BICAMERAL

Functions of Parliament

• Consent bills
• Control cabinet
• Take care of their voters

House of Lords

• Heritage
• Life
• Spiritual
• Independent or minor party members
• Reform 1911: bad reputation (block modernization), limitations on budget, looses power
• Salisbury convention: HL shall not oppose any government legislation
• After WW2: declining importance further reforms
• 1958 (reduced the people)
• 1963 (now women can also participate)
• 1998 complex reform
  • Abolition of hereditary peers
  • Transient HL
  • HL entirely appointed by chambers
• 1999 - no heritage peers anymore
• 2014
  • Allows members to retire or resign whilst keeping the title
  • Allows to exclude members who do crime

House of Commons

• Support cabinet
• Originally irregular
• Dissolution: by law, conventions and royal prerogative
  • Originally large discretion of PM
  • 1950: debate on kings planned response to a sight majority of new elected labour
  • Lascelles Principles - monarch can refuse if vital, viable and capable of doing its job
  • Act of the parliament 2011: fixed term of the parliament. no confidence and ⅔ majority in favour of early elections are exceptions
  • Parliament act 2022: caused by dissolution, no statutory restrictions on when the PM can request a dissolution
  • Speakers: since 137; keeps law and order of the debates
  • Must be impartiality
  • Originally: little restrictions on the rules of elections - nomination and needst 50%

Powers of Parliament

• Originally weak.
• After 1688 took upper hand.
• Middle of the 19th century - golden era.
• Then gradual decline.
• Peak of power: 1832 reform act.
• Decline: industrialization - pressure to change - both commons were weakened
• Lost two functions: elective to voters and legislative to cabinet
• Differentiation of the society.
• Greater complexity.
• Rise of cabinet (legislative power, details laws - parliament rather legitimates)

France System

• 1789 modern political and constitutional developments
• Constitution by design
• 16 constitutional text
• Since 1958 semi - presidential system

Major Constitutional Texts

• 1791 constitutional monarchy
• 1792 1st republic
• 1830 parliamentary monarchy
• 1848 2nd republic
• 1875 3rd republic
• 1946 4th republic
• 1958 5th republic

Key Features

• Strong executive
• Bicameral parliament
• Direct democracy

Presidential Power

• Source of power: constitutional settings
• Two major powers: independent and shared

Independent Powers of the President

• Appoints PM
• Referendum power (constitutional issues, recommendations)
• Right to appeal to the constitutional council
• Communications with parliament
• Dismissing government: de jure vs de facto power
  • Government accountability only national assembly
  • If PM lacks presidential support he might not stay in office for long
• Dissolution of national assembly
  • Minor restrictions: after consulting with the PM, only once a year
  • Importance: resides in existence of the power, not in actual usage
• Special Powers:
  • Ensures respect to constitution
  • Ensures right function of public authorities
  • Guarantees national independence
  • President has right to reject PM nominees

Shared Power with PM

• Sign decrees
• Appointments of high officials
• Foreign policy
• Commander in chief
• Armed forces interventions abroad
• Electoral system
  • 1848 direct elections
  • Republican tradition: indirect elections
  • 1962 de Gaulle reform: constitutional referendums
  • 7 year term - now 2 year term
• Constitutional Convention:
  • PM resigned with the end of the presidential term.
  • PM resigned if president asks him to.
  • President has free hand on selecting ministers.
  • Presidential elections are placed earlier than parliamentary elections

Referendum

• Traditional instrument
• Sometimes a tool in hands of dictators
• Test a peoples trust to the president (de Gaulle)
• Called by president, parliamentary approval needed
• Government: PM+ministres conducts policies
• Negative rules in governmental formation
• No confidence vote
• Council of ministers
  • Narrow body
  • Presided over by the president
  • Meets on a weekly basis
  • Agenda decided jointly
• Constitutional council
  • Supervision of elections
  • Interpretation of the constitution
  • Assess organic bills
• Parties
  • Bipolar multipartism
  • Two major blocks of parties
    1. Left : socialists and communists (or radical left)
    2. Right: various right-wing, gaullist parties
    • Change: 2017 En Marche !
    • Broad centrist-movement

Germany System

• Basic Law
  • 1949 provisional constitution
  • Reaction to WR (1919-33): powerful president, presidential candidates, deep economic crisis
  • Human rights and democratic values, rigid constitution
  • Partial continuity from the pre nazi era federal president
    • No commander in chief
    • Symbolic head of state
    • No degree of power
    • Countersignature
    • Representation
    • Appoints/dismisses judges
    • Gov formation: Bundestag elects the Chancellor
    • Gov defeat: confidence vote - president may dissolve the Bundestag upon proposal
    • 5 year term - elected by members of the Bundestag
    • Rights to veto, yet does not use this power

Chancellor

• Elected by absolute majority
• Determines and responsible for the general guidelines of policy
• Rechlinien: policies, ministers conduct their affairs, majority decides
• Confidence vote: absolute majority, if chancellor defeated - president may resolve the Bundestag - only 5 - calls early elections
• Legislative power: Bundestag
  • Formal
  • Legal
  • Unicameralism
  • 4 year term
  • Neither automatic dissolution, nor self dissolution
  • Parliamentary factions; 5% of vote
  • Committees: membership reflects the relative strength of various groups
• Bundesrat
  • Administrative federation
  • Non parliamentary body with second chamber function
  • Permanent representation of states government
  • 69 members
  • Imperative mandates
  • Executive representatives
  • State representatives vote

Federation

• 13 states and 3 free cities
• Division of powers between federation and Länder
  • Federation: foreign affairs, citizenship, currency, custom area
  • Länder: civil law, criminal law, any laws which are not exceeded by the federal
• Federal Constitutional Court
  • Interpretation of the basic law in the event of disputes
  • 16 members
• Electoral system
  • Mixed member proportional system
  • 598 seats
  • Each vote 2 votes
  • Split ticketing
  • 5% legal threshold
• Party system
  • Traditional: CDU; SPD, FDP
  • Newcomers: Grüne, Linke, AFD