W Flashcards
(149 cards)
1
Q
Constitution
A
A constitution is a document by the people, limiting the government. Regulates relationships between institutions and between the people and the government.
2
Q
3 dimensions in constitutional law
A
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.
3
Q
Rigid v relatively rigid v flexible
A
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.
4
Q
IMPOSED V SELF MADE CON
A
Self made: Made by the soverign people
Imposed: made by an external actor
5
Q
Proclamatory v Regulatory con
A
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.
6
Q
Sovereignty
A
Sovereignty means having supreme power or authority. The constitution-making process is an expression of the sovereignty, it is entrusted to the constituent assembly.
7
Q
CONSTITUTION MAKING PROCESS
A
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.
8
Q
POPULAR V NATIONAL V ROYAL SOVEREIGNTY
A
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.
9
Q
INTERNAL V EXTERNAL SOVEREIGNTY
A
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.
10
Q
ABSENCE OF SOVEREIGNTY
A
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.
11
Q
Upstream v Downstream constraints of the constitution
A
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).
12
Q
Constituent assemblies
A
body assembled for the purpose of drafting or revising a constitution. rarely self created
13
Q
STATE
A
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.
14
Q
Pure theory of law, Hans Kelsen
A
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
15
Q
Delegation of power
A
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.
16
Q
DECREE
A
A decree is a regulation or secondary legislation.
17
Q
Case Study – The Case of Proclamation
A
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.
18
Q
PREAMBLE
A
Introductory part of the constitution.
19
Q
Marbury v Madison
A
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.
20
Q
West Virginia State Board of Education v. Barnette
A
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.
21
Q
THE UK CONSTITUTION
A
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.
22
Q
Devolved
A
Having had power transferred or delegated to a lower level.
23
Q
Legislative/ parliamentary sovereignty
A
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”.
24
Q
Parliament Act 1911
A
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.
25
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.
26
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.
27
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.
28
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).
29
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.**
30
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.
31
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.
32
quid pro quo
the King was asking for money and the members of parliament (the MPs) in return asked for some favours (petitions).
33
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
34
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.
35
Constitutional supremacy
1. The constitution is codified.
2. 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.
36
3 rules to interpret the law.
1. 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.
2. 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”.
3. 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.
37
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’.
38
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.
39
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.
40
CON AMMENDMENT
proposals to change a constitution, typically enacted by a supermajority of the legislature or through a statewide referendum
41
Supermajority
Any constitutional amendment, whether initiated or referred by the Legislature, must be approved by at least 60% of those voting on the measure.
42
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.
43
simple majority
a majority of 50 percent plus one of those present
44
absolute majority
a resolution passed by 50% plus 1 of everyone enrolled not only present.
45
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).
46
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.
47
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.
48
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.
49
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.
50
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.
51
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.
52
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.
53
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.
54
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.
55
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.
56
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.
57
US LEGISLATIVE POWER
CONGRESS: (senate and house of representatives) vested with all legislative powers (law-making body)
58
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.
59
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.
60
NO CONFIDENCE
In parliamentary systems, a vote showing that a majority does not support the policy of a leader or governing body. not started by a criminal offense
61
UNICAMERAL
Legislative body with a single legislative chamber, one house one body.
62
Bicameral
Legislative body formed by 2 houses and 2 bodies. These 2 were not always equal in the law-making process.
63
Symetrical bicameralism
means that both houses have equal voice
in the law-making process – a DOUBLE majority to pass laws.
64
Asymetrical bicameralism
2 houses do not have the same value in the law-making process.
65
constituencies
a group of voters in a specified area who elect a representative to a legislative body.
mutli-seat constituency: an electoral district or constituency having two or more representatives in a legislative body rather than on
66
Terms of government
2 years: votes fatigue, expensive elections, better reflection of society, pressure to do better
4 years: when do young people vote? long terms changes, easier to fulfill.
6 years: more stability and experience, how to reverse mistakes made?
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elections
should be equal and free, one man one vote. secrecy: people will be able to confidentially vote.
68
Proportional representation
requires that the distribution of seat broadly be
proportional to the distribution of the popular vote among competing political parties
69
Majoritarian system
party or candidate winning more than 50% of the
vote or the simply majority in a constituency is awarded the contested seat. Power of policy making for the first who passed the post
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Mixed/Hybrid system
Mixed/Hybrid system is where half of the representatives are elected by proportional representation and the remainder by a nonproportional formula (majoritarian system)
71
Confidence Rule
Prime Minister ( head of cabinet) more independent from the Crown. In effect, the Prime Minister had become the guide in politics, the Crown lost its status as the Head of Government, reduced to the Head of State.
72
Role of crown or president
It’s core function – formal international representation.
International treaties concluded by Head of State.
Function in society is to be figure heads.
Embody national unity.
73
Ministerial accountability
In British Parlance, the key word is ‘ministerial responsibility’. At first, Ministers were accountable to a Monarch. Later, they became accountable to Parliament.
1. Unicameral: Ministerial accountability is owed to the plenary.
2. Bicameral: accountability is usually owed to the directly elected lower chamber.
74
PrimeMinister RANK
MORE POWER IN REPUBLICS THAN PARLIAMENTARY MONARCHY. Prime ministers in a monarchy are not technically the head of government but the head of the cabinet. It is the monarch who continues to be head of government, if only in a purely formal sense.
75
CHAIN OF ACCOUNTABILITY
government must be accountable to parliament while the parliament is accountable to the citizens.
76
DEMOCRATIC DEFICIT
EU institutions and their decision-making procedures suffer from a lack of democracy and seem inaccessible to the ordinary citizen due to their complexity.
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dissolution of parliament
The dissolution of a legislative assembly is the mandatory simultaneous resignation of all of its members.
if, political deadlock (laws dont satisfy the needs)
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UNITARY STATES
all power is concentrated in central government – government has general authority.
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FEDERAL STATES
power of the government is divided between national government and regional/local authorities. Bicameralism – lower house represents the people, upper house represents federal states.
80
devolved state
Devolution is about the transfer of power by a central government to local or regional administrations.
81
symetrical decentralisation
every state has the same power
82
legal implications of federalism
amendments proposed by congress and approved by states, equality aming states and expression of federalism (minorities excluded, majorities become rulers)
83
Democracies
protect minorities through human rights, must be counter majoritarian and have limited power.
84
RULE BY LAW
– it means that you are a ruler, and you employ the law in order to achieve some rules, and possibly you are not bound by those laws. (PUTIN)
85
retroactive laws
law that looks backward or contemplates the past, affecting acts or facts that existed before the act came into effect
86
RAZ & Bingham on rule of law
: Law should be prospective, open and clear.
law should be stable, clear review power of the courts. limited discretion, no cost.
87
independent judiciary
essential to the protection of the rule of law. judges are not subject to pressure and influence and are free to make impartial decisions based solely on fact and law.
88
lady justice
Justice holds a scale to show the aim to achieve balance – if you have a complaint or a dispute, justice will give you the opportunity to explain your complaint or if you have a dispute, justice will bring both parties and listen to the arguments. With a balance, she will decide which argument is more convincing – she will bring justice with the balance. blindfolded, because it must be impartial.
89
how to achieve independent justice system
The method of appointing judges.
Their security of tenure – how many years are they appointed for?
The way of fixing their salaries (influence judges).
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3 ways to appoint a judge
Appointment by the executive/or the legislature (political branches of the government). The president, the PM, MPs, they are elected by the people, and they are more representative of the population.
Electing judges (ordinary elections) – organizations of campaigns, voting, etc.
Appointment by judicial councils (appointment of judges by judges) – senior judges appoint them; they decide who should fill existing vacancies.
91
pros and cons of elections of judges
by executive/legislative: democratic legitimacy, chosen by people selected by the government. minorities may be left out
electing judges: more democratic, time consuming and expensive
appointment from judges: more experience, merit and independence, but bias and bad judges.
92
anti-majoritarian
Some topics should not be an issue of the majority. On the contrary, Human rights are the rights of the minorities. In the system we need a counter-majoritarian system to protect the minorities.
93
concentrated system of judiciary review
by Kelsen, he invented this system with the establishment of a constitutional court. This means that there is a specific court to decide on constitutional law matters
94
concentrated system of judiciary review
by Kelsen, he invented this system with the establishment of a constitutional court. This means that there is a specific court to decide on constitutional law matters
95
diffused system of judiciary review
The benefit of this system is the democratisation of the constitution. different judges are discussing constitutional matters, there are more judges participating in the disputes, therefore, there is more democracy.
96
Obergefell v Hodges, 576 U.S.
The Court held that the Due Process Clause of the Fourteenth Amendment guarantees the right to marry as one of the fundamental liberties it protects, and that analysis applies to same-sex couples in the same manner as it does to opposite-sex couples.
97
Riggs v. Palmer
Was Elmer E. Palmer, who murdered his grandfather by poison in order to obtain and enjoy the possession of property left to him bin his grandfather's will and testament, be allowed to obtain and possess the same? No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime.
98
McCulloch v. Maryland
In 1816, Congress chartered The Second Bank of the United States. In 1818, the state of Maryland passed legislation to impose taxes on the bank. James W. McCulloch, the cashier of the Baltimore branch of the bank, refused to pay the tax. The state appeals court held that the Second Bank was unconstitutional because the Constitution did not provide a textual commitment for the federal government to charter a bank.
In a unanimous decision, the Court held that Congress had the power to incorporate the bank and that Maryland could not tax instruments of the national government employed in the execution of constitutional powers.
99
United States v. Lopez
lopez carried a weapon in a school zone.
Gun possession is not an economic activity that has any impact on interstate commerce, whether direct or indirect, so the federal government cannot base a law prohibiting gun possession near schools on the Commerce Clause. lopez carried a weapon in a school zone.
100
South Dakota v. Dole
In 1984, Congress enacted legislation ordering the Secretary of Transportation to withhold five percent of federal highway funds from states that did not adopt a 21-year-old minimum drinking age. South Dakota, a state that permitted persons 19 years of age to purchase alcohol, challenged the law., the Court held that Congress, acting indirectly to encourage uniformity in states' drinking ages, was within constitutional bounds. The Court found that the legislation was in pursuit of "the general welfare," and that the means chosen to do so were reasonable.
101
Plessy v Ferguson
Homer A. Plessy was a “man of mixed race”. His other grandparents were all of European
descent. Yet he was considered for all purposes a “coloured person”. Mr. Plessy bought a first-class train ticket in New Orleans and boarded the whites-only coach of the train. A railway officer asked him vacate that coach and to occupy a seat in the coach for coloured passengers. Mr. Plessy refused to do so, which is why he was immediately arrested and taken off the train. In 1896, the Supreme Court ruled in Plessy v. Ferguson (1896) that separate accommodations based on race was constitutional.
102
content-free (formal) perspective vs content-rich (substantive) perspective of rule of law
The content-free interpretation of the rule of law focuses on the form of the law and the procedures by which the law is made. joseph rax defended this perspective and identified eight basic principles which reflect this approach.
the content-rich interpretation is a more complex and idealistic view of the rule of law. Ronald Dworkin stated that it is good if the state can aim for a content-rich interpretation but difficult to achieve practically, moral and political rights must be recognized by positive law
103
Brown v board of education
hard and dangerous for daughter to get to school, Brown tried to enrol his daughter in the closest neighbourhood school (summer Elementary) his application was rejected because Sumner Elementary was a white-only school. In order to justify his decision, the principal of Sumner Elementary invoked various regulations passed by the Topeka Board of Education, which made it clear that ‘white’ and ‘coloured’ children should attend separate elementary schools. the Supreme Court ruled that separating children in public schools on the basis of race was unconstitutional. It signaled the end of legalized racial segregation in
104
roe v wade
A pregnant single woman (Roe) brought a class action challenging the constitutionality of
the Texas criminal abortion laws, which proscribe procuring or attempting an abortion
except on medical advice for the purpose of saving the mother life.
Here the judges recognize that women should have the right to decide what happens with
their body, and for that reason they have the power to decide whether to proceed with
abortion or not, but the state can impose limits.
105
roe v wade
A pregnant single woman (Roe) brought a class action challenging the constitutionality of
the Texas criminal abortion laws, which proscribe procuring or attempting an abortion
except on medical advice for the purpose of saving the mother life.
Here the judges recognize that women should have the right to decide what happens with
their body, and for that reason they have the power to decide whether to proceed with
abortion or not, but the state can impose limits.
106
DOBBS v JACKSON WOMEN’S HEALTH ORGANIZATION
“except in a medical emergency or in the
case of a severe foetal abnormality, a person shall not intentionally or knowingly perform or
induce an abortion of an unborn human being if the probable gestational age of the unborn
human being has been determined to be greater than fifteen (15) weeks.”
107
wisconsin v. yoder 406 u.s. 205
Under the Free Exercise Clause of the First Amendment, a state law requiring that children attend school past eighth grade violates the parents' constitutional right to direct the religious upbringing of their children.
108
Act prohibiting the concealing of the face in public, French CC 2010-613 DC (2010)
“no one, in a public space, may wear clothing intended to conceal the face.
109
Locke, the 2ND Treatise of Civil government
essay written by locke
People still have the supreme power to remove or alter the legislative if they are not acting on the best wishes of the people.
When any number of people have consented to make one community or government, they are presently incorporated, making one body politic.A man’s nature is being absolutely free.
It is on the basis that Locke says that gives origin to men’s power, end, and its limits.
110
Natural Law as defined by the Encyclopaedia 1755
Natural law refers to laws of morality ascertainable through human reason
People who only listen to their private will are enemies of the human race.
In every individual general will is about the understanding of reason about what a man can demand from his fellow men and vice versa.
Laws should be made for everyone, not for one person.
111
Madison speech proposing the Bill of Right
Presented to the House of Representatives.
Some opposed the bill arguing that presenting such rights would make it seems as if the
government was granting them, rather than granted by Nature.
From natural to written rights.
Madison had to convince the constituent assembly to include the bill of rights: the 10
amendments in the Constitution.
112
Tamanaha on the Rule of Law
why does the Magna Carta (birth of Human Rights limit the power of the government) matter so much after 800 years?
The Magna Carta symbolised protection of the citizens vs the King, but today, it symbolises the protection of the citizens against the state.
113
Political rights
they arose from a person’s location in an organized political system (included the right to vote and
participate in a political system, right to be elected).
114
sauve v canada
Sauvé v Canada (Chief Electoral Officer), [2002] 3 SCR 519 is a leading Supreme Court of Canada decision where the Court held that prisoners have a right to vote under section 3 of the Canadian Charter of Rights and Freedoms
115
R. (on the application of Pearson) v SECRETARY OF STATE FOR THE HOME DEPARTMENT
HIRST v ATTORNEY GENERAL QUEEN’S BENCH DIVISION
The three claimants (P, M and H) were all convicted persons serving periods of imprisonment.P and M
maintained that in relation to discretionary life sentence prisoners who had served their
tariff term, the continued denial of voting rights could not be justified since their continued
detention was a preventative rather than a punitive measure.
116
Guidelines on Elections adopted by the Venice Commission at its 51st PlenarySession
**Universal** Suffrage: means that all human beings have the right to vote and to stand for election, this right is however subject to certain conditions; age, nationality, residence, deprivation of the right to vote,
**Equal **Suffrage: equal voting rights, each voter has in principle one vote
**Free** Suffrage: freedom of voters to form individual opinions, neutrality
**Secret** Suffrage: duty of secrecy, that the voter doesn't have to disclose who they voted for
**Direct **Suffrage: means that the votes must be cast ballots directly
Frequency of Elections: Elections must be held at regular intervals;
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social rights (status postitivus)
deal witt the material bases of human well-being and include the rights to a job under decent working conditions and to subsistence. Nature of social rights – social rights have a status positivus because the constitution
imposes a positive obligation on the state to build schools, hospitals, create programs to
support the welfare of the people. (allocation of money is a big issue)
118
SOOBRAMONEY v. MINISTER OF HEALTH ZACC 17
Suffering from a terminal illness and in need for renal dialysis to prolong his life, Soobramoney brought a constitutional application seeking an order for the hospital to provide him with access to dialysis treatment. The High Court dismissed his application. wasnt seen as an emergency but rather long term, The Court declared that it could not interfere with decisions taken in good faith by political organs and medical authorities as to how to allocate budgets and decide on priorities.
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GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA & ORS v. GROOTBOOM & ORS ZACC 19
A community of squatters, evicted from an informal settlement in Wallacedene had set up minimal shelters of plastic and other materials at a sports centre adjacent to Wallacedene community centre.. The Court ordered that the various governments “devise, fund, implement and supervise measures to provide relief to those in desperate need.”
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Equality
When we compare the same right of different countries in the class for example.
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Substantive equality
equal opportunities for disadvantaged and marginalized people and groups in society. equal job, equal pau.
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formal equality
when we treat equal cases equally.
123
Nocturnal Employment Case (1992)
A supervisor in a cake factory was fined for employing women to wrap cakes at night in violation of a statute basically forbidding the employment of women as blue-collar workers (manual labor workers) during the night.
The ban on night work for women … offends Article 3 (3)
Under this provision no one may be disadvantaged or favoured on the basis of sex.
the rule was unconstitutional
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GRUTTER v. BOLLINGER 539 U.S. 306 (2003)
The University of Michigan Law School (Law School), one of the Nation’s top law schools, follows an official admissions policy that seeks to achieve student body diversity.When the Law School denied admission to petitioner Grutter, a white Michigan resident
with a 3.8 GPA and 161 LSAT score, she filed this suit, alleging that respondents had discriminated against her on the basis of race. The decision permitted the use of racial preference in student admissions to promote student diversity.
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quota system
a method of setting a limit on how much of something a country or company is allowed to have
(minimum of 30% women)
in education too, USA black people opportunities to study at their good schools, they will have better chances in life and the gap between white people and
black people will narrow. In some schools they said that a minimum of 10% of the students had to be black – the purpose here is to revert discrimination.
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Obgerfell v hodges
Due Process Clause of the Fourteenth Amendment guarantees the right to marry as one of the fundamental liberties it protects, and that analysis applies to same-sex couples in the same manner as it does to opposite-sex couple
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1st amendment
The First Amendment provides that Congress makes no law respecting an establishment of religion or prohibiting its free exercise. It protects freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances.
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The State Action Model
– protection against the government. If you were criticizing the King or the Government, you faced repercussions back in the day. So, initially, rights were born to protect us from the government, which is why they initially made this law. our rights have force, and they protect us against the government.
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The autonomy of private entities
the right of Adidas to decide who they associate with and what speech is associated with their brand
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Constitutional rights, indirect horizontal effect
have indirect horizontal effect because they influence, but do not directly govern or control, private law disputes between individuals.
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Horizontal effect
ability of legal requirements meant to apply only to public bodies to impact private rights.
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basic law- freedom of speech
This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers
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Absolute rights
These rights can never be interfered with in any circumstance
the right to life, dignity, freedom from slavery and torrture.
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limited rights
these rights can only be limited in clearly defined and finite
situations.
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Qualified rights
rights which may be interfered with in order to protect the rights of another or the wider public interest.
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BUNDESVERFASSUNGSGERICHT (Federal Constitutional Court), SECOND SENATE, DECISION oF MARCH 1994
The issue before the Court was whether the penal provisions of the Intoxicating Substances Act are compatible with the Basic Law (german constitution) to the extent that they impose punishment on the
various forms of illegal dealing with Cannabis products
The imposition of penalties on illegal dealings with Cannabis products is not a violation of Article 2 para 2 sentence 1 of the Basic Law. (basic law protects individuals against inteventions by state against his wellbeing. The person argued that the law that criminalizes the possession and selling of drugs, is a
violation of the constitution. However, a problem is that when people start with soft drugs, you tend to move to
harder drugs.
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Proportionality test
core idea of proportionality analysis is that it provides a structured form of analysis.Consider a statute challenged as unconstitutional
a legal method used by courts, typically constitutional courts, to decide hard cases, which are cases where two or more legitimate rights collide
LEGITIMACY OF THE AIM/GOAL.
SUITABILITY AND NECESSITY OF THE MEASURE.
BALANCE BETWEEN PURPOSE AND HARM.
In essence, they must decide whether interference with a person's rights is justified
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Balancing test
A “balancing test” is defined as a subjective test with which a court weighs competing interests. For instance, a court would weigh the interest between an inmate's liberty interest and the government's interest in public safety, to decide which interest prevails.
"too open ended"
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3 different tests
after testing if a limitation is constitutional using balancing test,
1st level. rational basis review: the challenged law must be related to a legitimate government interest (need of good reason).
2nd level: intermediate scrutiny The government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest.
3rd level: STRICT SCRUTINY (The government must show that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest
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HOWE v. BROWN, 319 F. Supp. 862 (N.D. Ohio 1970)
The Plaintiffs, who lived in the State of Ohio for less than one year brought an action to because they were prevented from voting in the forthcoming
elections. At issue is whether Article V, Section 1 of the Ohio State Constitution, which provide a one-year residency requirement for voting and registering to vote in state elections, are in violation of the Constitution of the United States. Rationality test.We find that the one-year residency requirement is not
unreasonable, and that it is rationally related to promoting a legitimate state interest.
Legitimate state interests that could be promoted by such a requirement are: ensuring that
those who vote for state and local representatives are familiar with the political candidates
and issues, by having been given maximum exposure to the problems of the locality through
the media of local communication.
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FEDERAL CONSTITUTIONAL COURT (FIRST SENATE) 15 January 1958
To get to the federal constitutional court, fundamental rights have to be at stake, guards the constitution. Makes sure that laws and regulations are coherent to the constitution.
Guy made movie, then it was thought to be offensive ideas, **constitutional court can be utilized when basic right in the constitution is infrindged. ** right to freedom of speech ends when it vulnerates the rights of another.
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legitimacy
in the context of government, implies a general degree of respect and confidence in public authorities, without necessarily accepting every decision
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Accountability
Is an important aspect of legitimacy. it requires public authorities to explain and justify their actions
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The final set of reforms (Hartz IV)
implemented on January 1, 2005, entailed a major restructuring of the unemployment and social assistance system that considerably reduced the size and duration of unemployment benefits and made them conditional on tighter rules for job search and acceptance.
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primary v secondary legislation
Primary legislation is the general term used to describe the main laws passed by the legislative bodies of the UK, including the UK Parliament.
Secondary legislation is law created by ministers (or other bodies) under powers given to them by an Act of Parliament. It is used to fill in the details of Acts (primary legislation).
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veto power
a constitutional right to reject a decision or proposal made by a lawmaking body.
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super majority
3/4 of the of the voters in favor
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how to circumvent eternity clause
if you amend the amendment procedure and remove the eternity clause, then you can do whatever you want.
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eternity clause
constitutional principles that are immune from amendment
