constitutionalism Flashcards
constitutionalism
Constitutionalism is the principle that government authority is derived from and limited by a fundamental set of laws or a constitution, ensuring the protection of individual rights and the rule of law.
principles of enlightened natural law thinking
— People’s sovereignty
— Limited government
— Fundamental rights for all citizens
— Separation of powers
— Rule of law
driving forces behind constitutionalism
- The French revolution has a strong influence
- The rising bourgeoisie becomes a central player in demanding a new political order
- Constitutions put an end to absolute monarchy and ensure participation of the bourgeoisie
→ The state should not only act in the interest of its subjects, but the subjects themselves should also be involved in state affairs. - The monarch is bound to the constitution and rule of law
rule of law
- legal equality
- legal accountability of leaders
- independence of judiciary and judicial control
fundamental rights
- Subjective and enforceable rights in the Kremsier draft of 1849
- Subjective rights with a weak enforceability in the Basic Law (Staatsgrundgesetz) of 1867
→ the decision did not lead to a cassation but was only declaratory, administrative bodies not bound to it - Constitutional review of laws by the judiciary was not possible
- Courts were only entitled to control whether a law was properly promulgated
early constitutionalism
- Imposed by the monarch
- Weak and not justiciable fundamental rights
- Autonomous but ultimately controlled by the monarch
- Two chambers: one for nobles and monarch appointees, one representing the people
- Absolut veto
high constitutionalism
- Given by a constituent assembly
- Granted and justiciable fundamental rigths
- Independent judiciary
- Often two chambers: one for regions, one for the people
- Suspensive veto
- Possible
issued unilaterally by the monarch
= constitutional octroi
joint enactment by the monarch and the people’s representatives
= constitutional compact
evolution of Austrian constitutionalism
- Pillersdorf Constitution (1848)
- Kremsier Draft (1848/49)
- Octroyed March Constitution (1849)
- Sylvester Patents (1851)
- October Diploma (1860)
- February Patent (1861)
- December Constitution (1867)
revolution of 1848
- March Revolution: Civil uprising for Democracy, Fundamental Rights & Constitution,
→ Under the pressure of events the Emperor grants “Pillersdorf Constitution” and transformed Austria into a constitutional monarchy! - May Riots: protest against inadequate “Pillersdorf’s” constitution, storm petition
- June 1848: First elections → July 1848 Reichstag convenes
- (Viennese) October Revolution: Workers and citizens rise against imperial army that wants to move into rebellious Hungary
- October 31, 1848: Imperial troops storm the Inner City, end of the revolution in Vienna and the Alpine countries
- December 2nd: Emperor Ferdinand abdicates in favour of Franz Joseph
- March 1849: Reichstag dissolved, Octroyed March Constitution proclaimed
Pillersdorf Constitution (1848)
— two chambers parliament: one Senate, one Chamber of Deputies (elected, “Reichstag”).
— creation of monocratically organized ministries, on which top stands a single person (minister) who – other than the emperor – was (politically) accountable.
— legislation was carried out jointly by the Parliament (Reichtstag) and the monarch.
— monarch had to sign every bill, in order that the bill could become a law, so he had an absolute veto right (= no bill can be become law against the will of the monarch)
Kremsier Draft
- 1848/49
- high constitutionalist,
- sovereignty of the people, broad protection of fundamental rights
- suspensives veto
- came never into effect
Octroyed March Constitution
- imposed by monarch in 1849
- early constitutionalist, much weaker then the Kremsier Draft
- never implemented
Sylvester Patent
- 1851
- reinstating autocratic rule and dissolving any earlier constitutional reforms
- centralising power
October Diploma (1860) and February Patent (1861)
- after military defeat at Solferino and Magneta
- re-establishment of representative bodies
- House of Lord, (nobles, clergy, individuals appointed by Empreror) and House of Deputies (delegates of Diets)
- still absolute veto
December Constitution of 1867
- result of Austro-Hungarian Compromise
- Basic Laws (Staatsgrundgesetze)
- bicameral system: House of Representatives & House of Lords: legislation required consent of both
- absolute veto of monarch
Basic Laws (Staatsgrundgesetze)
- Basic State Law on the General Rights of Citizens
- Basic State Law on the establishment of a Reichsgericht (Imperial Court)
- Basic State Law on judicial power
- Basic State Law on the exercise of governmental and executive power
Constitutionalism in England
- No written constitution
- Sources of constitutional law are Acts of Parliament, case law and conventions on how the constitutional bodies conduct
- basis is the Bill of Rights
- initial idea that courts could review legislation according to “common sense and reason” was discarded
judicial review in the US
= any court can decide on the validity of a statutory law, established in the landmark Marbury v. Madison case in 1803
→ review and potentially strike down laws that conflict with the Constitution
