Remember

Question 1

What is constitutionalism?

Answer 1

Constitutionalism is a legal limitation of government = government is organized and constrained by a constitution and the rule of law.

• based on the idea that government can and should be limited in its powers
• and that its authority depends on enforcing these limitations.
• under the standard of constitutionalism, governments must be bound by rules themselves
• in order to protect the individual’s rights as well as to promote the common good
• constitutionalism is the opposite of arbitrary power (a government ruled by will instead of law)

> constitutionalism is a political theory concerned with the architectural structure and basic values of the society and the government

Question 2

What is a preamble? And what does it contain?

Answer 2

A preamble introduces a legal act.

Contains

• assumptions/principles that the drafters found important
• nation’s core principles/values,
• historical narratives: country’s political/historical/cultural context.
• country’s sovereignty (the people or god etc.),
• the country’s general idea of religion: references to God or maybe an emphasis on the separation between state and church
• country’s supreme goals = society’s fundamental goals&raquo_space;> universal objectives: advancement of justice, fraternity, and human rights

Question 3

What should you pay attention to in a preamble?

Answer 3

Source of authority? (God, the people, no authority at all)?
Reference to (a) God/religion?
Reference to fundamental values
Reference to important history of the country?
Reference to constitutionalism and democracy as underlying
principles?

Question 4

How does the Constitution organize and limit government power?

Answer 4

it assures

1. spreading of powers (prime minister/president; different houses of legislature; different levels of government)
2. rotation of power: time limits on those in power, to prevent people from gaining too much power
3. strict separation between powers: political institutions (e.g. government) and permanent neutral institutions of the state (e.g. court, police)
4. to constrain power: a set of constitutional rights constrain governmental power (can’t be tortured, can’t be in prison without due process)
5. it expresses the state’s duties: basic human needs for everyone (e.g. education, housing)
6. to protect minorities, e.g. security
7. nation-building function: induce feelings of national unity, express national identity

Question 5

What does a Constitution contain?

Answer 5

1. A preamble
2. The main institutions of government, their tasks, and
   rules/procedures
3. Relationships among institutions and between institutions and the people
4. A distribution of powers over the territory
5. A catalog of protected rights and liberties
6. An amendment formula (‘how to amend the constitution)
7. A relatively independent judiciary with the authority to review executive practices, and
   or laws on constitutional or other grounds

Question 6

What is the preamble’s purpose?

Answer 6

1. to express the constitution’s intention

2. to convince the people to adhere to the constitution and of its importance

Question 7

What is striking about the preamble to the Chinese Constitution?

Answer 7

1. The Chinese Constitution states that it “has supreme legal authority” and “all political
   parties” which, of course, includes the CCP, “must abide by the constitution.”
2. Unusually lengthy preamble that traces the long and glorious history of China and sets forth
   basic goals.
3. The preamble cites major achievements under the CCP in defending the nation against
   foreign aggression and feudal autocracy, developing the economic and social order, and
   improving the living standard of the people. This historical narrative is used to justify the
   legitimacy of the CCP.
4. Ideology driven
5. States that Taiwan is a part of China, whereas other people support Taiwan’s (aim for) independence (thus, again, the Constitution contains strongly partisan content)

Question 8

What are three remarkable characteristics of the Constitution of the People’s Republic of China (PRC)?

Answer 8

1. the Chinese government acts as if they are going to establish a government that appears quite recognizable to Westerners by using a Constitution. However, it is only there to whitewash its autocratic character. The constitution seems to bear no relation to the actual government of China. The constitution is a combination of slogans, rather than law.
2. The Chinese Constitution sets out duties from Article 52 to 56 that every citizen must
   perform.
3. Unlike Western or liberal constitutions, the PRC Constitution prescribes at length the
   economic system and economic policies to be practiced by the government = much emphasis
   on socialism

Question 9

Which elements of the Constitution refer to the authoritarian character of
the People’s Republic of China?

Answer 9

1. The fact that China is a one ­party state; the CCP (Chinese Communist Party) is the holder of 
supreme power (Article 1)

2. The National People’s Congress are given supreme status in the Constitution, but according to Zhang the congress has little power and never disagrees with more powerful organizations (the CCP)
3. No term limit for the President (who is also Secretary General). So, Xi Jinping is now
   ‘president for life’
4. Xi Jinping’s ideas (so the de facto leader) are reflected in the preamble to the
   constitution, so during his lifetime: ‘Xi Jinping Thought on Socialism with Chinese
   Characteristics for a New Era’ (whatever it may mean)

Question 10

What is remarkable about the way human rights were expressed in this
constitution?

Answer 10

1. the Chinese consitution recognizes civil and political rights bu judicial review to see whether the rights are protected is not permitted. Thus there is no constitutional enforcement and the constitution holds little power.
2. Unlike the German constitution (at least not explicitly in the Basic Law), the Chinese includes many socio­-economic and cultural rights
3. Chapter II not only includes rights but also many duties of citizen
4. many articles are in conflict with each other, e.g. Article 40 guarantees the “freedoms and privacy of correspondence,” but at the same time allows to censor people’s correspondence in accordance with procedures prescribed by law to “meet the needs of state security or of investigation into criminal offenses.”

Question 11

Why would the Chinese Constitution claim to protect e.g. Freedom of Religion, when in reality it does not?

Answer 11

In the right to freedom of religion, it is stated that the government protects ‘normal’ religious activities. As the government has the power to decide which activities are “normal” and which are “abnormal”, they can decide on what religious practices are outside the sphere of legal protection.

> By claiming the protection of human rights China wants to prevent foreign involve­ment and popular resistance.

Question 12

What is a constitution without constitutionalism (e.g. which the Chinese Constitution is according to Zhang)?

Answer 12

Constitutionalism is based on the idea that government power can and should be organized and limited. Although the Chinese Constitution does give provisions for protecting individual rights and regulating governmental powers does not have the power/binding force to control the practical operation of the state.

Question 13

What is totalitarianism? + example

Answer 13

National ideology
- use of fear to ensure cooperation
- control over all aspects of economy, politics, culture, and 
society
Example:  North Korea

Question 14

What is authoritarianism? + example

Answer 14

• limited degree of political freedom
• government controls political process and individual freedoms
  without constitutional accountability
  Example: Cuba under Fidel Castro
  Example: Belarus

Question 15

What is an absolute monarchy? + example

Answer 15

• monarch is head of state and head of government
• monarch is the only or main source of power
  Example: Saudi Arabia

Question 16

What is a theocracy? + example

Answer 16

• government leaders are church members, legal system based on
  religious law
  Example: Vatican City

Question 17

what is a constitutional monarchy? + example

Answer 17

• Monarch is head of state, may retain certain powers
• Head of government elected by citizens or representatives of
  citizens
  Example: the netherlands

Question 18

What is a representative democracy? + example

Answer 18

• Citizens elect representatives to make decisions for them

Example: Botswana

Question 19

What is a direct democracy? + example

Answer 19

• Citizens vote on decisions directly

Example: Ancient Athens

Question 20

What is an anarchy? + example

Answer 20

• no government
• absence of government and absolute freedom of the individual, regarded as a political ideal.
• a state of disorder due to absence or non-recognition of authority or other controlling systems.
  Example: Christiania (Denmark)

Question 21

Describe the constitutional developments (three phases) in Africa
since many countries became independent.

Answer 21

1. Choice  of  authoritarianism  over 
constitutionalism  in  postcolonial 
Africa
>
2. Crisis of legitimacy for Africa’s 
ruling elites
>
3. Current democratic revival of constitutionalism in Africa

Question 22

After the decolonisation process in Africa, many former colonies
became independent countries. An African scholar H.W.O. Okoth-
Ogendo however, observed that their constitutions have become
‘constitutions without constitutionalism’. Explain what is meant by
this phrase, in general and with a view to developments in Africa up
until today.

Answer 22

Practically all nation states in the world have adopted constitutions in the sense of a written document
which is supreme to other laws, but by far not all states accept the ideal of ‘limited government’, the
rule of law, or a government under the law.
Regarding African countries since independence; ‘constitutions without constitutionalism’ means that
these African countries did indeed have constitutions, so written documents containing the
organisation of the state, some rights and liberties on paper, etc., but the idea of constitutionalism, of
limited government was no longer accepted, soon after independence.

Question 23

Explain how the research in 22 African countries was carried out.

Answer 23

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Question 24

What has been the effect of the Covid pandemic on democratic
attitudes?

Answer 24

The covid pandemic has given governments an excuse to introduce repressive laws or limitations on civil liberties and freedoms, with the danger that some of these measures could be extended beyond the needs of the moment.

Question 25

What has been the effect of China’s development

assistence in Africa for Africans’ democratic commitment?

Answer 25

Africa’s fledgling democracies’ ability to obtain money and other resources from China without the democratic conditions and pressures imposed by Western donors could jeopardize efforts to promote more democratic governance across the continent.

Question 26

What are arguments in favor of discussing the constitutional and political
developments in the African continent as a whole?

Answer 26

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Question 27

What are arguments against discussing the constitutional and political
developments in the African continent as a whole.

Answer 27

1. is inaccurate/incomplete: disregards the cultural, historical, and geographical diversity
2. may reflect a western/colonizers view on Africa which can reinforce African stereotypes

Question 28

Democracy in Africa is increasingly under threat. The developments invoke the prospect of ‘a return to
the gun as an accepted method of regime change’. Describe, in
general terms, what is happening.

Answer 28

1. Election quality is declining - Polls are increasingly rife with intimidation and violence
   > Elections are regular but also regularly manipulated/influenced
   > Coups are seen as the only acceptable tool for political change
2. Term-limits for power positions stated in the constitution are ignored
3. Suppression of the opposition
4. Suppression of freedom of speech: e.g., internet blackout
   > journalists aren’t safe
5. Undermining rights and freedoms
   > e.g. an extralegal attack on the offices of an LGBTQ+ group in Ghana

Question 29

How can you “get away” with curtailing/limiting democracy (Africa)?

Answer 29

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Question 30

According to the authors, there is a deepening of popular
democratic understanding and commitment in Africa. What do they observe?

Answer 30

1. Grassroot: people speaking the truth and demanding rights and justice
2. Push back against authoritarian actions and expand the boundaries of democracy and freedom
3. The growing use of social media has been highly important for pro-democracy activists
4. Rise of urbanisation and higher level education
5. Growing attachment to the institutions and demand for democracy

Question 31

Is the German Basic Law a rigid or a flexible constitution? And the UK Constitution?
Explain

Answer 31

German Basic law is a rigid constitution and the UK constitution is a flexible constitution.
Germanyn: constitution is a written document which has been created by its drafters at a particular point in time. Changes in the constitution can only be made via a particular amendment procedure and to a certain extent. The UK however has a flexible constitution: its constitution is based on different documents (statutes, conventions, customs etc.), which have been created over time and thus have been and are being influenced by the historical context of the country. Collectively these documents form the UK constitution. Changes in these documents do not have to go through an extensive amendment procedure and therefore changes can be made more easily and it is called a flexible constitution.

Question 32

What are the differences between a flexible and a rigid constitution?

Answer 32

A rigid constitution is a written constitution, embodied in one document.
- written constitutions are either granted by the ruler or ordained by the people.
- can be described as a creation or product, which is always newly made and set forth.
- the creation of written constitutions is influenced by the history of a country
- written constitutions are often regarded as supreme law. This means firstly that the
constitution has to be obeyed by every individual
- all statutes, institutions and governmental activities have to be in accordance with the
constitution and, in the event of inconsistency, may be declared unconstitutional and thus void
- the constitution can normally only be amended by a special procedure

A flexible constitution is an unwritten constitution that is made up of several laws and customs that are written down in a series of documents.
– unwritten constitutions have developed gradually,
- many different institutions, people as well as legal theory contribute to the development of
unwritten constitutions.
- an unwritten constitution is a process of growth
- unwritten constitutions are not only defined by history, but also embody and mirror history themselves
- unwritten constitutions may, as a rule, be altered or abolished by the lawmaking power at any time and in any of their details.

Question 33

Explain why – despite the lack of a written document labelled a constitution – it is self-evident to speak in terms of the British constitution?

Answer 33

• Britain is unusual in that it has an ‘unwritten’ constitution. Unlike the great majority of countries there is no single legal document that sets out in one place the fundamental laws outlining how the state works.
• In other countries, many of whom have experienced revolution or regime change, it has been necessary to start from scratch or begin from first principles, constructing new state institutions and defining in detail their relations with each other and their citizens.
• By contrast, the British Constitution has evolved over a long period of time, reflecting the relative stability of the British polity. It has never been thought necessary to consolidate the basic building blocks of this order in Britain.
• What Britain has instead is an accumulation of various statutes, conventions, judicial decisions
  and treaties which collectively can be referred to as the British Constitution.
• It is more accurate to refer to Britain’s constitution as an ‘uncodified’ constitution, rather than
  an ‘unwritten’ one.

Question 34

What does constrain Boris Johnson or any other political leader in Britain
with no written constitution?

Answer 34

A lot of it is actually written; it’s not drawn together in any single form. But like any other nation, UK has a lot of statutes, acts of Parliament that bind. And quite a number of conventions as well that constrain, that people comply with. They have no legal force, but they are complied with because they’re seen as morally correct.

Question 35

why is comparing constitutions important?

Answer 35

• Better appreciate and understand our own system and to broaden our world view
• Comparing legal texts (macro-comparison) is only seen as a first, though necessary, step towards in-depth analysis of single features (micro-comparison).
• Can provide helpful material for constitution-building and constitutional engineering
• Creation and development of international organizations

Question 36

What is the difference between a formal and a substantive constitution?

Answer 36

Formal:

• narrow
• sets out the basic rules that apply to the government in question

Substantive:
- broad
- contains all the fundamental rules that organize and govern the social and political entity
- written or unwritten, in one or in many documents
> gives power to public authorities
> regulates relations between public authorities
> regulates relations between public authorities and the individual

Question 37

Urgenda case: the government must cut its greenhouse gas emissions by at least 25% by
the end of 2020 (compared to 1990 levels). Arguments in favour:

Answer 37

1. Positive obligations apply to risks which may materialise in the long term, including to
   future generations.
2. Protection is not limited to specific persons but to society as a whole.
3. 25% reduction target is based on global consensus, internationally accepted standards
   and scientific insights. In doing so, the Court placed great significance on soft law and
   non-binding international instruments in confirming the Netherlands’ responsibility to
   fulfil international commitments.
4. Whilst the ECHR does not specifically contain provisions on the protection of the
   environment, the Court relied upon case law from the European Court of Human Rights
   (ECtHR) interpreting Articles 2 (right to life) and 8 (right to private and family life) to
   encompass risks posed by certain environmental issues which may have direct
   consequences on a person’s life, including natural disasters and hazardous industrial
   activities.

Question 38

Urgenda case: he government must cut its greenhouse gas emissions by at least 25% by
the end of 2020 (compared to 1990 levels). Arguments against:

Answer 38

1. the State rejected the notion that it can be legally obliged to act. In short,
   the State argued that there is no legal obligation on the basis of which it is legally
   bound to reduce greenhouse gas emissions.
2. the State argued that whether and to what extent emissions should be
   reduced is a political question in which the courts should not intervene.

Question 39

The most important characteristics of the British constitution?

Answer 39

Parliamentary sovereignty is commonly regarded as the defining principle of the British Constitution.
This is the ultimate law-making power vested in a democratically elected Parliament to create or abolish any law. The courts cannot overturn or quash primary legislation passed by parliament
> The rule of law – law is derived from a number of sources:
> Statutes are laws passed by Parliament and are generally the highest form of law.
> Conventions are unwritten practices which have developed over time and regulate the business of
governing.
> Common law is law developed by the courts and judges through cases.
> International law.
> The separation of government into executive, legislative, and judicial branches.
> No ‘judicial review’: Judges are bound by Parliament, they are not to second-guess legislation*

Question 40

What are conventions?

Answer 40

> Unwritten rules of constitutional practice, vital to the nation’s politics, the workings of government, but not committed into law or any written form at all.
The very existence of the office of Prime Minister, is purely conventional. So is the rule upon which they are appointed, being whoever commands the confidence of the House of Commons (the majority party leader, or head of a coalition
of parties).
Another important convention is that government ministers must have a seat in Parliament in order to hold office. This is a vital aspect of what is known as the
‘Westminster system of parliamentary government’.

Question 41

Is the principle of parliamentary sovereignty still ‘the very keystone’ of the 21st century British constitution? Explain

Answer 41

Yes, parliamentary sovereignty is often seen as the defining principle of the British Constitution. Under the UK constitution, the ultimate law-making power is vested in a democratically elected Parliament to create or abolish any law. No other person or body can by the law of England override or set aside the legislation of Parliament.

Question 42

What is an argument in favor of and against parliamentary sovereignty?

Answer 42

Positive side; any (part of an) Act of Parliament, which makes a
new law/repeals/modifies an existing law, will be obeyed by the Courts.

Negative side: there is no person or body of persons who can, under the English constitution, make rules which override or derogate from an Act of Parliament, or which (to express the same thing in other words) will be enforced by the Courts in contravention of an Act of Parliament.

Question 43

Two important changes took place during the 20th century which – from a European perspective – changed the British constitution in
a fundamental way.

Answer 43

1. in 1973 the UK joined the European Communities (now EU) – a
   supranational organization, with the European Communities Act 1972. This created a tension between the sovereignty of the EU and the Parliamentary sovereignty in the UK. However, the British point of view has always been that because, in the end, the UK decided whether or not to stay in the EU, so Parliamentary sovereignty was upheld.
2. in 1998 the UK adopted the Human Rights Act which was implemented
   the European Convention on Human Rights into British law. British citizens could now directly invoke Convention law and take their case to the European Court of Human Rights. BUT British courts are not authorized to quash an Act of Parliament on the basis of the HRA 1998, however. They can only issue a ‘declaration of incompatibility and then it’s up to Parliament whether or not to change the law (‘weak’ form of judicial review). So Parliamentary sovereignty is
   upheld under this system, too.

Question 44

What, besides parliamentary sovereignty, are features of the UK constitution?

Answer 44

1. Flexible: as there is no separate amendment procedure, statutes/laws etc. can be changed relatively easily.
2. Not a very strong separation of powers: government is drawn from members of parliament (mostly House of Commoners), to which it is also responsible.
3. use of conventions, which is a set of non-legal rules stating the powers and obligations of the branches of government (especially executive) and their relations with eachother.

Question 45

What is prorogation?

Answer 45

Prorogation marks the end of a parliamentary session (session = 5 parliamentary years). It is the formal name given to the period between the end of a session of Parliament and the State Opening of Parliament that begins the next session. The parliamentary session may also be prorogued before Parliament is dissolved.
»> parliament is temporarily not the sovereign

> Prerogative power is vested legally in the Queen. Her use of that power, however, is governed by the constitutional convention (a political rather than a legal rule) that she should only do so on the advice of her ministers.
In practice, the Queen only uses these powers if this is decided by Government Ministers (who are subject to any restrictions imposed on them by statute, common law or convention).
The problem with prorogation, however, is the absence of any express legal limits
on its exercise, specifically its purpose and duration.

Question 46

Boris Johnson adviced the Queen to use her powers to prorogue parliament for a particular period. This action/advice was seen as very controversial and against the UK constitution, why?

Answer 46

In 2019, the Parliament of the United Kingdom was ordered to be prorogued by Queen Elizabeth II upon the advice of the Conservative prime minister, Boris Johnson. The prorogation of Parliament was going to be effective until the State Opening of Parliament on 14 October 2019. The advice was seen as very controversial because Parliament was to be prorogued for five weeks and reconvene just 17 days before the United Kingdom’s scheduled departure from the European Union on 31 October 2019. Therefore, the move was seen as an unconstitutional attempt by the prime minister to avoid parliamentary scrutiny of the Government’s Brexit plans in the closing stages of the Brexit process. Johnson and his Government defended the prorogation of Parliament as a routine political process that ordinarily follows the selection of a new prime minister and would allow the Government to refocus on a legislative agenda.

Question 47

Boris Johnson adviced the Queen to use her powers to prorogue parliament for a particular period. This advice was deemed unlawful by the Supreme Court, why?

Answer 47

The UK Supreme Court held that the absence of any legal limits on prorogation was not enough to make Johnson’s advice lawful.
> They held that the power was limited by the extent to which it interfered with fundamental constitutional principles, namely parliamentary sovereignty and parliamentary accountability.

Parliamentary Accountability = ministers (prime minister and cabinet) have to explain and provide information on what is happening in their area of responsibility. This principle is important in Westminster’s democracy.

> The prorogation had the effect of frustrating Parliament’s constitutional role, for which there was no justification.

Question 48

It was also claimed that the prorogation was not subject to judicial review, why?

Answer 48

because it was a political decision

Question 49

why was the prorogation in the end justiciable?

Answer 49

> Prorogation, as a prerogative power, is subjected to judicial review.
Thus, the courts can determine both the existence and extent of a prerogative power, and therefore determine whether the executive’s exercise of it is within its legal limits.
If a power exists, and has been exercised within its legal limits, the courts can also review the lawfulness of that exercise on the grounds of judicial review (para. 35).
In determining the lawfulness of any prorogation, the Court held that the prorogation cannot (severely) interfere with constitutional principles.
However, in this case, the prorogation did conflict with two fundamental constitutional principles: parliamentary sovereignty and parliamentary accountability.
If the consequence of prorogation is in conflict with these principles (without reasonable justification) then it can be held unlawful.
This, the Court said, was a legal standard that concerned the limits or extent of the prorogation power, but one which nevertheless had to be determined on the facts.??

Question 50

How could the introduction of an interpretation bill endanger the separation of powers?

Answer 50

Interpretation bill would make it possible for the government to dismiss rulings from judicial reviews that he and his ministers disagree with

1. this would make the English courts overtly and dangerously political
   2.

Question 51

With this judgment, the UK Supreme Court gives expression to a ‘new’ constitutional principle (when compared to Dicey’s constitution). Which principle is this and what are the consequences of this principle for the courts (according to the SC)?

Answer 51

1. Parliamentary sovereignty:
   Old principle: that Parliament can make laws which everyone must obey: this would be undermined if the executive could, through the use of the prerogative, prevent Parliament from exercising its power to make laws for as long as it pleased.

New principle: although the core of that principle is the rule that Acts of Parliament are the highest form of law in the UK — meaning that everyone, including the Government and the courts, must obey such law — the Supreme Court observed that other implications come from the principle. The idea of parliamentary sovereignty would not mean anything if Parliament could be prevented from enacting legislation by an executive capable of suspending Parliament for any reason and for any length of time. Therefore, the UKSC stated, prorogation is subjected to judicial review. This has not been stated before and thus this ruling expresses a new constitutional principle.

2. Parliamentary accountability:

Old principle: the idea that Prime Minister and Cabinet are collectively responsible and accountable to Parliament

New principle: the Court invoked the principle that the Government is accountable to Parliament, even while Parliament is prorogued. Thus, it would be inconsistent with this principle if the executive could evade scrutiny whenever it pleased by having an unconstrained ability to prorogate Parliament.

Question 52

In other constitutional democracies, which principle is more common? What are the political consequences of using this principle (e.g. France & Germany)?

Answer 52

Ministerial accountability (responsibility).

E.g., the French government is accountable to the National Assembly: if the National Assembly rejects a Parliament Member’s policy and votes on no confidence, s/he must resign.
E.g., The German Chancellor (and his/her federal gov.) is accountable to the Bundestag (German Parliament), meaning that they have to justify their actions before it and may face a sanction.

Question 53

Argue why this judgment is part of the UK Constitution, from 24 September 2019 on.

Answer 53

Even though the case is a ‘one off’ (SC), the SC sets constitutional standards for the future.
> This case sets out
- the PM’s prerogative powers and their limits
- The role of the courts in regard to prerogative powers
- The constitutional position of Parliament (sovereignty and accountability).

Question 54

What are The Federalist Papers and why are they generally considered one of the ‘founding documents of the US Constitution?

Answer 54

The Federalist Papers is a collection of 85 articles and essays written by Alexander Hamilton, James Madison, and John Jay.
> The authors intended to influence the voters to endorse the Constitution.
> With the Constitution needing approval from nine of thirteen states, the press was overwhelmed with essays about the controversial document.
> The authors argued that the system, as proposed by the constitution, would unify the states and empower the federal government to act effectively in the national interest.

Question 55

One of the most important ideas in The Federalist Papers no. 51 is the phrase “Ambition must be made to counteract ambition”. What is the meaning of this phrase and in what way has it been expressed in the US Constitution?

Answer 55

Ambition is the drive to attain something (power, money, status, etc). Similarly, in Government terms, ambition can be driving the official to be in Government. Madison was worried that human nature is selfish/bad (if man were angels we would not need Government) and therefore, humans need to be protected from each other through control. This is expressed in the US Constitution, through checks and balances, which oughts to carefully separate and regulate powers from different branches. In this system of checks and balances, every power is balanced by countervailing power.

Question 56

What were the main arguments of the President to sustain his view that he was authorized to seize the steel mills?

Answer 56

Under the aggregate of his constitutional powers as the Nation’s Chief Executive and the Commander-in-Chief:

• in case of national emergency, the president is authorized to give an executive order when it is in national interest
• this could be argued to be the case because of participation in Korean war, for which the steel of the mills were needed

Question 57

What are the arguments against Truman’s executive order to seize private property (steel mills)?

Answer 57

1. he is not authorized to do so because it is part of the executive branch (Congress) and they (Constitutional Congress) did not authorize him to give this order
2. Truman could also not give the order under the aggregate of his constitutional powers as the Nation’s Chief Executive and the Commander-in-Chief because the US was not a national emergency as the (participation in the) Korean war did not pose an immediate threat. Thus it was not necessary to extend the president’s constitutional powers.

Question 58

What were President Nixon’s main claims to safeguard certain information and what is the Supreme Court’s response to these claims?

Answer 58

1. The doctrine of separation of powers prevented the Supreme Court from hearing this case at all. They asserted that because the judicial and executive branches are separate, each with its own functions, the judicial branch should not be allowed to interfere with the functioning of the executive branch.
2. The Court should find the president was entitled to absolute executive
   privilege. This meant that he could not be forced to reveal any of his confidential communications unless he chose to.
   > the president needed honest advice from his advisors, and these advisors might be
   uncomfortable giving advice if they knew that it could become public.
   > these confidential communications were essential for the president to carry out the duties assigned to the executive branch by the Constitution.

Question 59

What were arguments given by the Court against absolute privilege of the president?

Answer 59

1. The case raised a constitutional question, and therefore clearly fell within the functions of the judicial branch as the interpreter of the Constitution. To support this ruling, the justices cited the Court’s decision in Marbury v. Madison, in which the Court declared that it is the duty of the judicial department to say what the law is.
2. The Court acknowledged the validity of these interests and that the president was
   entitled to a degree of executive privilege. This privilege was not determined to be absolute. In this case, the interest of President Nixon in keeping his communications secret conflicted with the interests of the judicial branch in providing a full and fair trial. A fair trial required full disclosure of all facts and relevant information. No need to protect the military, diplomatic, or sensitive national security secrets.

Question 60

What historical events took place in the 2nd, 3rd, 4rd and 5th Republic of France?

Answer 60

2nd:
- universal male suffrage,
- Napoleon III
- Franco Prussian war

3rd:
- WWII deeply divided France
- Charles de Gaule

4rd:
- 24 governments in 12 years > France is a hot mess
- struggle with colonies

5th:

• president is a powerful figure
• till present

Question 61

What is bicameralism and why do we have it?

Answer 61

Bicameralism is a type of legislature, one divided into two separate assemblies, chambers, or houses, known as a bicameral legislature.

E.g. The French Parliament is the bicameral legislature of the French Republic, consisting of the Senate and the National Assembly.

> The founders established the Senate and the National assembly as a bicameral legislature as a check against tyranny. They feared that in a unicameral legislature one governmental body would become too strong. This bicameral system distributes power within two houses that check and balance one another rather than concentrating authority in a single body.

Question 62

In what respects is the French government system different from the parliamentary and presidential system of government?

Answer 62

France has a semi-presidential system:

> executive power is vested in two institutions (dual executive)
it has a directly elected President who exercises many executive functions, and who is accountable to the people (which is the same in a presidential system but different from a parliamentary system in which the head of the executive is not directly elected but stays in office because they enjoy the confidence of parliament.)
it has a Prime Minister, who also holds executive power, and is accountable to parliament (in France the Prime minister is appointed by the president, with approval of assembly).
The president is popularly elected;
The president has considerable constitutional authority;
There exists also a prime minister and cabinet, subject to the confidence of the assembly majority.

Question 63

The amendment to the French Constitution in 2000 has contributed to strengthening the position of the president. Explain.

Answer 63

The system used to create a possibility of competition between the president and the PM. The term for the president used to be seven years, that for the National Assembly five years. This could have the result that the president was from a different political colour than the parliamentary majority, meaning that the president had to appoint a PM from another political party (‘co-habitation’).

Since 2000, the term for both the President and the National Assembly is five years and elections are being held in the same period, so the situation of co-habitation has become less likely. This way, the position of the president was strengthened.

Question 64

What are the advantages of dividing the role of head of state and head of government (semi-presidential system)?

Answer 64

> executive power is vested in two institutions: a president and parliament, each with an autonomous source of legitimacy which contributes to the ideal of the separation of powers
Dual executive can allow for a degree of power sharing between competing forces…
The system of the Fifth Republic has created political stability after the instability of the Fourth Republic, so apparently semi-presidentialism works in France
Direct election of a fixed-term president can provide the system with political stability and legitimacy, even if the parliament is highly fractionalized and governments are unstable

Question 65

What are the disadvantages of dividing the role of head of state and head of government (semi-presidential system)?

Answer 65

> Can confuse the public what is what
No clearly defined partner for foreign matters/uncertainty about who held executive power
The direct election of the president may encourage the personalization of the political process and it may encourage the president to disregard the rule of law because s/he feels above the normal political process
Potential for “cohabitation,” meaning the situation where the president is from one political force and the prime minister is from another. What proponents see as an advantage of semi-presidentialism, namely executive power-sharing, critics see as a distinct weakness when it manifests itself as a divided executive.
Even though semi-presidentialism has been adopted by a large number of (democratic) countries, there is a widespread academic consensus against semi-presidentialism.

Question 66

What is typical for a presidential system?

Answer 66

1. president directly elected by the people
2. personal executive
3. government not accountable to parliament but to the people (+ fixed term for the president)
4. parliament cannot dismiss the government/president if it is dissatisfied with its performance

Question 67

What is typical for a parliamentary system?

Answer 67

1. the head of the government is not directly elected but stays in office because they enjoy the confidence of parliament
2. however, the prime minister represents the majority party therefore, people are indirectly represented through parliamentary elections
3. collective executive (cabinet government)
4. government accountable to parliament >
5. parliament can dismiss the government

Question 68

What kind of decision is this, with a view to the authority of the 
Conseil Constitutionnel (ban on wearing face-concealing clothing)?

Answer 68

1. it is an ex ante decision, so decided by the CC before the law was promulgated, in order to test the constitutionality of the law and thus its legitimacy.
2. The President of the National Assembly and the President of the Senate have referred for review by the Constitutional Council the Act prohibiting the concealing of the face in
   public.

Question 69

How did WWII influence organization and regulation of political power in France?

Answer 69

France changed from “constitution as politics” into “constitution as law.” État legal + État de droit
> Étal legal = state rule through democratically enacted laws but requires legislators to be democratically elected;
- consistent with revolutionary France’s profound mistrust of judges, the État légal leaves no room for constitutional adjudication;
- constitutional objectives and constraints are political

> 20th century: état legal was not adequate to meet the demands of constitutional democracy.

• to remedy this deficiency the État de droit was invoked to supplement the État légal.
• it was the État de droit’s task to transform constitutional guarantees (that were only political) into legal guarantees.

> similar approach as that of Germany in the Verfassungsstaat: in État de droit, politics remains the exclusive source of lawmaking, though this lawmaking is limited by the constitution as law. (= constrains powers)

Question 70

How did WWII influence the organization and regulation of political power in Germany?

Answer 70

After WWII Germany changed from the Rechstaat (state rule through law/positivist law/law separate from politics in which there was little room for constitutional challenges to legislation) into the Verfassungsstaat (Verfassungsstaat = state rule through constitution (after adoption of the Basic Law)

After WWII (in Verfassungsstaat):

• Constitutional court has an expansive role – positive legislator
• Rechtstaat as a system failed because it did not take into account politics at all (and only referred to positivist law) and there was little room to challenge the laws in the constitution.
• This way, Nazis were able to use the constitution as a tool to achieve their goals (constitutionalization of the political)
• the new system (verfassungsstaat) puts more emphasis on the ideals of a constitution and democracy rather than what is literally said in laws/statutes.
• However, giving more room to interpret constitutional issues can lead to numerous splits over constitutional norms and values which can lead to a politicization of the constitution.

Question 71

In what respects is judicial review in Europe different from that of the US, according to Rosenfeld?

Answer 71

Europe

• Ex-ante (future-looking, assumptions & predictions)
• Constitutional provisions (e.g., privacy) tend to be general and vague and less focus on precedent (than in USA)
• German Basic Law and the French constitution empower their constitutional courts to determine constitutional questions
• Originalism is virtually nonexistent.
• Constitutions are not an almost sacred text and thus more room to challenge the constitution

USA

• Older and more entrenched.
• A posteriori: based on reasoning from known facts or past events rather than by making assumptions or predictions. Need to case to bring the matter to the court.
• More focus on precedent.
• Constitution is actually silent, and the act is largely rooted in Marbury v Madison (challenges to the court’s authority)
• Originalism (looking to the intent of the framers to resolve interpretive issues).

Question 72

Why is the US Supreme Court more vulnerable to the attack that it’s a political institution, than the German Bundesverfassungsgericht or the French Conseil Constitutionnel?

Answer 72

The supreme court’s authoritativeness can be questioned because the court lacks a clear mandate from the constitution.

Question 73

What is meant by ‘the countermajoritarian problem’?

Answer 73

The ‘countermajoritarian problem’ involves the difficulties that come with the legitimacy (of the institution) of judicial review: when unelected judges use the power of judicial review to nullify the actions of elected executives or legislators, they
act contrary to “majority will” as expressed by representative institutions. If one believes that democratic majoritarianism is a very great political value, then this feature of judicial review is problematic.

Question 74

How can a country be considered democratic if a group of non-elected judges has the faculty to strike down laws that have been adopted by a majority of the elected representatives of the people?

Answer 74

Another democratic value is the protection of individual rights. If a majority decision creates severe injustices for particular groups of people/individuals/minorities then it may be preferable to have a judge deem a certain application of the law as invalid even if it had been adopted by a majority of the elected representatives of the people.

Question 75

Which factors may have contributed to the differences between the German and American attitudes toward constitutional adjudication?

Answer 75

1. in Germany constitutional amendments are easier made than in the US
2. the fact that the appointment process in the US is far more partisan
3. constitutional adjudication is fundamentally entrenched in the German Constitution, whereas it is only accepted on the basis of judge-made law in the US

Question 76

What is judicial interpretation?

Answer 76

It refers to how a judge interprets laws. Different judges interpret the laws of their state or the country in different ways.

Question 77

What are the main positions in the debate over ‘constitutional interpretation’/what are the options in interpreting the constitution?

Answer 77

1. Textualism: focuses on the plain meaning of the text of a legal document.
2. Original Meaning: whereas textualist approaches to constitutional interpretation focus solely on the text of the document, originalist approaches consider the meaning of the Constitution as understood by at least some segment of the population at the time, their original meaning. They try to restore the understanding of the ratifiers

> > > Neither textualists or originalists refer to its purpose

3. Judicial Precedent – look to prior decisions on questions of law*
4. Moral Reasoning/Natural Law Theorist: This approach argues that certain moral concepts or ideals underlie some terms in the text of the Constitution
5. A pragmatist - would consider the consequences of various outcomes and aim to provide a solution that would lead to the least negative impact

Question 78

Most countries in the world have adopted a written constitution. Give three reasons for framing a constitution (and refer to historical examples).

Answer 78

1. To set up and maintain an effective state
2. To establish and respect democracy
3. To abide by the rule of law

Question 79

Originalism vs. Living document

Answer 79

Originalism:
1. focus on the original meaning to the authors or people at the time that the constitution was written
2. focus on the intention of the authors
> people ratified a particular constitution (with particular meanings), therefore the original meaning is more important (than e.g. the contemporary meaning).

Living document:
1. current meaning of what is stated in the constitution is different and more important than when it was created (its original meaning)
> societal developments create new issues, which lead to changes in laws/morals/customs. It is therefore logical that the constitution develops simultaneously.

Question 80

how to defend originalist position»

Answer 80

1. Judges shouldn’t make laws; their qualifications are not those of political philosophers (like the drafters of the constitution)
2. constitutional law does not evolve: amendments should come from the people, not the Supreme Court (when the constitution was drafted, people agreed to a particular constitution with a particular meaning, therefore its meaning cannot be changed by contemporary judges)
3. Certain matters should be insured against the risk of change, except through the majorities that constitutional amendment requires

Question 81

Arguments against the originalist position»

Answer 81

1. It is illogical and undesirable to subject contemporary people to the views and philosophies of long-dead white males who had no understanding of the needs and values of the world today.
2. We need laws to remain relevant
3. The idea of a living document offers more hope to minority groups - in many instances without the court’s use of a living instrument approach groups would be denied of any protection: homosexuals, prisoners, migrants…
4. Law must also now be applied in relation to things that did not exist when the constitution was drafted such as CCTV, IVF, the internet, various medical advances.

However: Congress does have the power to pass any law that is required to meet the needs of changed times and circumstances.

Question 82

What is federalism?

Answer 82

Federalism is a type of government in which the power is divided between the national government and other governmental units. It contrasts with a unitary government, in which a central authority holds the power.

Question 83

What are the advantages of federalism?

Answer 83

1. Reduce the concentration of power
2. The exit of colonial powers also left multi-ethnic states that required creative solutions to combine self-rule and shared rule.
   » More specifically, federal arrangements can support minority nations in achieving (more) self-determination and the preservation of their culture, language, or religion.
3. Federalism gives states autonomy and this way freedom to try out different ideas and programs, which is why states are sometimes called “laboratories of
   democracy.”

Question 84

What is the margin of appreciation?

Answer 84

The margin of appreciation is a self-imposed mechanism of judicial restraint on the European Convention on Human Rights:
> The term “margin of appreciation” refers to the room for interpretation that the Strasbourg organs are willing to give national authorities, in fulfilling their obligations under the European Convention on Human Rights.
> The margin may be “wide” or “narrow” - a wide margin results in more discretion given
to a state, and a narrow margin results in less discretion.
> Frequently invoked when it is hard to identify consistent European conceptions of the extent of rights or restrictions. A lack of consensus among Member States suggests to the ECtHR that the matter is best left to individual states.

Question 85

What is a militant democracy?

Answer 85

This concept refers to the means of safeguarding the democratic system from political extremism/movements that try to undermine democratic values or democracy in its entirety.

Question 86

What is the difference between the principle-based and process-based approaches of judicial review?

Answer 86

Principle-based means interpreting the constitution with regard to certain principles that are enshrined within it (such as equality, freedom, etc.) and process-based means that a judge interprets the constitution with regards to safeguarding the democratic process

Question 87

What are the main characteristics of ‘international fascism’?

Answer 87

> Hatred towards communism
Anti-semitism (apart from Italy)
Hostility to freemasons, pacifists, similar international organizations
Leadership principle
Abolition of democracy and its institutions
References to a general house-cleaning
Nationalism
Its adherents are the depressed middle classes, some sections of the intelligentsia,
youth

Question 88

Which causes are generally thought to have triggered

international fascism, causes which Loewenstein rejects?

Answer 88

Nationally frustrated nations (e.g. economic pressure)

Question 89

What makes fascism fundamentally different from democracy, according to Loewenstein?

Answer 89

> Fascism simply wants to rule
Leadership, order, and discipline (fascism) are presented in contrast to parliamentary corruption, chaos, selfishness
General discontent is focussed on scapegoats (Jewish population, bankers, freemasons)
Propaganda is used in an unprecedented way
Different sections of the people are played off against one another
Emotionalism
Organising itself as a paramilitary corps, a party militia

Question 90

How does a MILITANT democracy cause a loss of democratic principles?

Answer 90

1. fundamental principle of democracy is that different political views and ideas can be expressed. If people/parties who do not value democracy can be disbanded, they would take away certain fundamental rights (freedom of association) which is against democratic principles.
2. additionally, the representation of the people is an important democratic value, thus it can be seen as undemocratic if the opinion of the majority is disregarded because it is in conflict with democratic values.

Question 91

What is legal pluralism? Example?

Answer 91

> When two or more legal systems coexist in the same social field
When the law does not come from the state there may be negative
externalities:
• unconcerned with basic human rights
• embrace overtly patriarchal ideals
• significant bias toward powerful individuals and families
• nonstate ““judicial” elites are neither independent nor impartial
• the relationship between state and nonstate justice is often unclear