W Flashcards
Constitution
A constitution is a document by the people, limiting the government. Regulates relationships between institutions and between the people and the government.
3 dimensions in constitutional law
Horizontal: rules regulating main organs of the government
Territorial: Identify and limit different territories and powers.
Vertical: Regulates relationship between the citizen and the state.
Rigid v relatively rigid v flexible
rigid constitution: cannot be changed in the same manner as ordinary laws, requires breaking constitutional order.
relatively rigid:which provides for an amendment process subject to numerous conditions stricter than those applicable to ordinary legislation.
flexible constitution:is one that is amended by ordinary legislative procedure.
IMPOSED V SELF MADE CON
Self made: Made by the soverign people
Imposed: made by an external actor
Proclamatory v Regulatory con
A proclamatory term is called the constitution which although formally appearing to be valid and indulging normatively is in fact not applicable or applied only to a certain degree.
A regulatory produces legal effects.
Sovereignty
Sovereignty means having supreme power or authority. The constitution-making process is an expression of the sovereignty, it is entrusted to the constituent assembly.
CONSTITUTION MAKING PROCESS
The constitution making process is a very political process. A process such as this one is pure because it is not constrained by the law, as it pre-exists the legal framework.
POPULAR V NATIONAL V ROYAL SOVEREIGNTY
Popular sovereignty: Power of the people and citizens of a country.
National: Power of the nationals of the country even if they dont live in the country.
Royal: Supreme power of the monarch in a country.
INTERNAL V EXTERNAL SOVEREIGNTY
Internal sovereignty refers to absolute authority within one’s own territory, whereas external sovereignty refers to the ability of the state to act independently and autonomously in the face of external forces.
An example of this is the State of New York, which has “internal” sovereignty over its territory, but its “external” sovereignty is in the United States of America. It is the United States, and not New York, that is the independent State.
ABSENCE OF SOVEREIGNTY
The constitutional law of the Netherlands does not occupy itself with the question of sovereignty because it avoids determining what sovereignty means and where it resides.
Upstream v Downstream constraints of the constitution
Upstream constraints: Imposed on the assembly before it starts to deliberate – it’s about the content of the
constitution, about what will be within the constitution.
Downstream constraints: Created by the need for ratification of the document the assembly produces (about the process of how the constitution will be ratified).
Constituent assemblies
body assembled for the purpose of drafting or revising a constitution. rarely self created
STATE
Modern institution, needs to have 3 Ps:
Place, specific territory.
People, Specific population.
Power, personal power.
All states have the same value and have no power to intervene in the internal affairs of another state.
Pure theory of law, Hans Kelsen
Essentially legal positivsm, laws are accepted and recognized because they were made by superiors.
1st level: Sovereignty makes the constitution.
2nd level: Primary legislation made by parilament, controlled by the constitution
3rd level: Secondary legislation made by administrative organs
Delegation of power
It is common for the law makers (parliaments) to delegate, some details of legislation to the executive – this is what we call delegation of power.
DECREE
A decree is a regulation or secondary legislation.
Case Study – The Case of Proclamation
an English constitutional law case during the reign of King James I (1603–1625) which defined some limitations on the Royal Prerogative at that time. Principally, it established that the Monarch could make laws only through Parliament.
PREAMBLE
Introductory part of the constitution.
Marbury v Madison
A justice of the peace is a judge whose task is to decide small and local disputes. A few weeks before leaving office, Adam’s cabinet appointed William Marbury as “justice of the peace” for the country of Washington, in the District of Columbia.
The Judiciary Act of 1789 – a statute passed by the first US Congress – seemed to contradict the Constitution. This Act gave Marbury the power to bring his case directly to the Supreme Court, BUT Article III of the Constitution didn’t allow the Supreme Court to decide this type of case directly. Rather, a lower court had to decide the case first.
Original Jurisdiction – take the claim straight to the supreme court. Appellate Jurisdiction – we start from the bottom, with the first court, then we appeal, judges with more experience then supreme court.
FIRST PRINCIPLE OF THE IMPORTANCE OF THE CONSTITUTION – THE CONSTITUTION IS
SUPREME.
West Virginia State Board of Education v. Barnette
Barnette was a Jehovah’s Witness and was the father of children that did not want to salute the flag. the board of education made it compulsory for public schools to salute the flag and pledge allegiance by extending the right arm. A child got expelled for the refusal to salute the flag. The Jehovah’s witnesses are unincorporated body teaching that the obligation imposed by the law of God is superior to that of laws enacted by temporal government.
RULING: 1ST amendment rights, no law prohibiting its free exercise, ruling in favor of the Jehova witness.
THE UK CONSTITUTION
The UK does not have a codified constitution, as there is no existing document that establishes, describes, or regulates the structures of the state. The constitutional order in the UK consists of various institutions, statutes, judicial decisions, principles, and practices, which are understood as being of constitutional nature.
Devolved
Having had power transferred or delegated to a lower level.
Legislative/ parliamentary sovereignty
The principle of Parliamentary sovereignty means neither more nor less than this, namely that Parliament … has … the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law … as having a right to override or set aside the
legislation of Parliament”.
Parliament Act 1911
The Parliament Bill sought to remove the power of the House of Lords to reject money bills, and to replace the Lords’ veto over other public bills with the power of delay. In addition, it was proposed to reduce the maximum duration of a Parliament from seven years to five.
Jackson v Attorney General
The appellants in this 2005 case sought to argue that the Hunting Act 2004 was not an Act of Parliament and therefore had no legal effect. Hunting Act 2004 was lawfully passed it was valid law.
Upholds the legality of the Parliament Acts 1911 and 1949, limiting the House of Lords’ legislative powers.
Human Rights Act 1998
The Human Rights Act is a UK law passed in 1998. It lets you defend your rights in UK courts and compels public organisations – including the Government, police and local councils – to treat everyone equally, with fairness, dignity and respect.
Legislative supremacy and the EU
The European Court of Justice considers that when
there is a conflict between European law and domestic law of a country, European law PREVAILS.
SEPARATION OF POWERS IN UK
Recognizable legislative, executive and judicial bodies but there are overlaps of personnel and funtion between the bodies (not much of a separation).
RULE OF LAW: DICEY
The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. NO ONE IS ABOVE THE LAW.
ROYAL PREGORATIVE
Name given to the legal powers, duties and privileges possesed at common law by the crown.
The appointment and dismissal of ministers, the granting of passports and the ratification of treaties.
DISTRIBUTION OF ADMINISTRATIVE POWERS
UK GOV: Prime Minister, cabinet and the central government departments of state. The Queen appoints the Prime Minister and chooses the leader of the majority party in the House of Commons. While the role of the cabinet and its individual ministers has diminished. The Cabinet (consists of the most senior ministers) used to be the body which determined the general policy decisions of the government. Whereas Cabinet Committees and Sub-Committees have multiplied and become more influential in creating government strategies and decisions.
quid pro quo
the King was asking for money and the members of parliament (the MPs) in return asked for some favours (petitions).
Making of legal order in UK
1215: magna carta
1628: the bill of rights (regulates the relation between institutions and the crown)
1707: act of union (territory)
1998: human rights act
Legislative Supremacy
the constitution is NOT codified and there is NO constitutional review.
ADVANTAGE – people that are representing the interests of the people. The law-making
relies on elected representatives.
DRAWBACK – having the rule of the majority, not that that represents the people. If you
were a minority, you were oppressed.
Constitutional supremacy
- The constitution is codified.
- There is constitutional review.
Pro: Limits the power of parliaments.
Cons: There is no flexibility
Constitutional supremacy only means that all law-making and conduct must be consistent with the Constitution, including amending the Constitution.
3 rules to interpret the law.
- The literal rule (the plain meaning rule) – we take the law as it is. If the words of the statute are in themselves precise and unambiguous.
- The golden rule – could interpret a statute by departing from the literal meaning of the words, if the literal rule produces an absurdity.. “IN CASE OF FIRE DO NOT USE THE LIFT”.
- Teleological rule – all it means is that we do not go by the literal meaning of the words . We go by the design or purpose which lies behind it.
Arguments for and against a written constitution in the UK
The main advantage of a codified constitution is that it provides clear rules and Acts. It doesn’t give priority to the sovereignty of the people and discourages participation in the political process. It is a form of national identity.
On the other hand, the disadvantages of a written constitution are that it is rigid. The British system of government and its unwritten constitution work well – ‘if it ain’t broke don’t fix it’.
A declaration of incompatibility
UK constitutional law is a declaration issued by a United Kingdom judge that a statute is incompatible with the European Convention of Human Rights under the Human Rights Act 1998 section 4.
The declaration of incompatibility states that the law is still valid, it still exists, but for X situation, it is declared as incompatible.
Special laws
European communities act 1972
european court was higher than the parliament (UK was not happy)
Solution: they left the European union.
Human rights act 1998
did not make sense because every parliament could change it (entrenchment)
How to make sure this law can survive change? The future parliament wants to unmake the human rights act with an express repeal. (people will know and they will have political repercussions) And, declaration of incompatability.
CON AMMENDMENT
proposals to change a constitution, typically enacted by a supermajority of the legislature or through a statewide referendum
Supermajority
Any constitutional amendment, whether initiated or referred by the Legislature, must be approved by at least 60% of those voting on the measure.
Ammend USA con
An amendment may be proposed by a two-thirds vote of both Houses of Congress, or, if two-thirds of the States request one, by a convention called for that purpose. The amendment must then be ratified by three-fourths of the State legislatures, or three-fourths of conventions called in each State for ratification.
simple majority
a majority of 50 percent plus one of those present
absolute majority
a resolution passed by 50% plus 1 of everyone enrolled not only present.
TYPICAL AMENDMENT PROCEDURES FOR RIGID CONSTITUTIONS:
The requirement for super-majorities in parliament (Germany and Portugal) – 2/3s or 3/3s.
Two parliamentary readings of the amendment and new elections in between readings (Netherlands and Sweden).
Ratification of the amendment in the state’s component territorial sub-units (US, India sometimes).
A referendum (Australia and France usually).
Principle of separation of powers.
Concept from Montesquieu, The main idea is that there should be separations within institutions so power cannot be concentrated into one place.
The executive branch carries out and enforces laws.
The legislative branch has a role of making new laws.
The role of the judiciary is to determine disputes between individuals, or between institutions.
Partial separation of powers.
Madison, when he read Montesquieu, he claimed that he applied the partial separation of powers. A system of checks and balances among the institutions exist. He says that the branches should not be separate.
The rule of institutions
we do not want 3 separate institutions without attachments, we want a minimum interaction because it creates a mutual control. When we have this mutual
control, then we make sure that no institution will abuse their power because we are not governed by angels.
Checks and balances
a system that allows each branch of a government to amend or veto acts of another branch so as to prevent any one branch from exerting too much power.
Presidential model
In a presidential system, the head of state & government is directly or indirectly elected by a group of citizens and is not responsible to the legislature, and the legislature cannot dismiss the president except in extraordinary cases.
semi presidential model
A semi-presidential republic, is a republic in which a president exists alongside a prime minister and a cabinet, with the latter two being responsible to the legislature of the state.
Parliamentary system
Parliamentary systems usually have a head of government and a head of state. The head of government is the prime minister, who has the real power. The head of state often is an elected (either popularly or through parliament) president or, in the case of a constitutional monarchy, hereditary.
Impeachment
In the US you remove the president from office through IMPEACHMENT. For impeachment we need evidence that the president committed a crime.
House impeaches and senate approves.
Differences between parliamentary and semi-presidential
In both systems we have a PM, and a president. However, we cannot have a monarchical regime in semi-presidential systems because the president is elected by the people.
IN PARLIAMENTARY: can inherit seat, through the crown
1 executive figure: PM
President: does not have the power to remove head of government
IN SEMI: 2 Executive figures, always a republic, double accountability, head of government is accountable to parliament and the president.
COHABITATION
In the semi-presidential system, is when the president is in party A and the prime minister in party B DIFFERENT PARTIES. President is in charge of external affairs. prime minister is in charge of internal affairs.
Presidential v Parliamentary systems
- Parliamentary: can have monarchy, PM depends on parliament and only needed majority to remove
- Presidential: cannot have a monarchy, Mandate of their own, impeachment to remove.
US LEGISLATIVE POWER
CONGRESS: (senate and house of representatives) vested with all legislative powers (law-making body)
Parliament
Representative body, indirect democracy have a task to make laws, pass legislation, exercise legislative power, but on top of that, that parliament also has to monitor the action of the executive. Executive can also come up with laws and is required to participate.
How to pass laws
most of the cases we require the signature of the president, the king, in order to make the law an act of parliament.
