Constitutional Law Flashcards
Constitutionalism: Ancient, Modern, ideal of government, ultimate aim
-Ancient- idea of regulating action/rule of the ruler
-Modern- the idea of limited government, where the exercise of public power is governed by a constitution and the rule of law
-ideal of government established by law from exercising arbitrary power
-ultimate aim- protect rights/interests of citizens
Constitutional Law
-Law through which constitutionalism is achieved
-law contained/captured in ‘constitutions’
Narrow understanding
-document or group of closely related documents describing a select collection of legal and non-legal norms that organise social power relations and the degree of freedom within society
-almost exclusively legal documents
-constitution as a text- a specific (set of) written document(s)
-refer to 1 or small related documents
Broad Understanding
-the whole collection of rules which establish and regulate or govern a country or polity
-partly non-legal or extra-legal norms yet effective in regulating societal interactions
-de jure and de facto constitutional and socio-political norms
features of constitutions
-uncodified
-codified
-the amendment is the prescribed mechanism for constitutional change
-rigid: unamendable, referendum, 2/3 parliamentary majority
-flexible: simple majority, based on judicial review
-hybrid: both rigid and flexible elements
-constitutional entrenchment/rigidity allows for stable constitutions
-constitutional supremacy (supreme law of the land)
highlights 1
-constitutionalism is the idea of limiting the powers of government to prevent arbitrary rule
-constitutionalism is achieved through constitutions
-constitutions can refer to a broad or narrow set of laws/legal documents
-constitutional law is the law contained in constitutions
-constitutional law is therefore primary source of the Rule of Law
Constitutional law and sovereignty
-sovereignty is the ultimate power to exercise authority over oneself
-the authority to make a constitution known as Constituent Power
2 dimensions of sovereignty
Internal sovereignty- source of public authority within the state itself
External sovereignty- a state to exercise control over its population and territory without interference from outside
constitutions
symbol of sovereignty-it rests with power of people- it says where internal and external sovereignty starts/end
Sources/Types of sovereignty
Royal- the monarch
Parliamentary- the parliament
National- representative of the nation(s) state (a group of people)
Popular- all the people (referendum)
State/provincial- semi-autonomous sub-units
Pluralistic- shifts between different actors
State
-socio-political entity with its own set of government institutions exercising sovereignty
-also refers to sub-entities such as those in the federal or devolved states
-established based on a compact between the people
county
various countries in a state
nation
multi-ethnic states-> a developing and complicated concept
government
the institutions and actors responsible for managing the state’s affairs
-idea of state is made by different people-> different country bind by different constitutions
-country≠state≠nation-> not always the same-> not applicable for every country
highlights 2
-constitutional law determines the structure and make-up of the state
-constitutional law describes and prescribes the dimension and sources of the state’s sovereignty
-the government exercises the constitutional sovereignty of the state
-the state is not always the same as country or nation
-constitution and state-> C defines/binds what is/isn’t included in the state
-constitutional law-> aim: guarding the rights of citizens by separation of powers
separation of powers
-constitutional separation of state powers does not work the same in all state
-worst scenario= 1 person/1 group of people exercise every power-> anarchy begins
-idea of constitutionalism-> avoiding that 1 person/group has ultimate power
-differences between members, functions, institutions
