Comparative Constitutional Law PDF

LEGAL GLOSSARY 2 1 THE LEGAL ORDER 2 2 PUBLIC LAW AND PRIVATE LAW 2 3 THE SOURCES OF LAW...

LEGAL GLOSSARY 2 1 THE LEGAL ORDER 2 2 PUBLIC LAW AND PRIVATE LAW 2 3 THE SOURCES OF LAW 2 4 THE LEGAL SYSTEMS 2 5 ANTINOMIES 3 6 CRITERIA FOR THE RESOLUTION OF ANTINOMIES (IN THE FIELD OF ENACTED LEGISLATION) 3 7 THE RIGIDITY OF THE CONSTITUTION 4 8 THE CONSTITUTIONAL REVIEW OF LEGISLATION 4 9 PRIMARY LEGISLATION AND THE PRINCIPLE OF LEGALITY 4 10 FORMS OF GOVERNMENT 5 WESTERN CONSTITUTIONALISM 5 1 THE FORGE OF CONSTITUTIONALISM 5 2 CONSTITUTIONALISM IN THE AGE OF THE MODERN REVOLUTIONS 6 2.1 TO 2.5 + 3.2, 4.3 THE ORIGINS OF CONSTITUTIONALISM IN THE UK 6 2.6 TO 2.10 + 3.3 THE ORIGINS OF CONSTITUTIONALISM IN THE US 8 2.13 TO 2.15 THE ORIGINS OF CONSTITUTIONALISM IN FRANCE 12 3 WESTERN CONSTITUTIONAL LAW IN THE 19TH CENTURY 12 3.4 LIBERAL CONSTITUTIONALISM IN THE 19TH CENTURY EUROPE 12 3.5 PUBLIC ADMINISTRATION IN THE LIBERAL STATE 15 3.6 PRINCIPLE OF LEGALITY AND RULE OF LAW 16 4 CONSTITUTIONALISM IN THE AGE OF DEMOCRACY 17 4.1 CONSTITUTIONALISM AND DEMOCRACY AT THE BEGINNING OF THE 20TH CENTURY 17 4.2 THE EVOLUTION OF THE AMERICAN CONSTITUTION 17 4.4 THE EU CONSTITUTIONS BETWEEN DEMOCRATIZATION AND RATIONALIZATION 19 4.5 THE CENTRALIZED REVIEW OF LEGISLATION 20 4.6 THE WEIMAR CONSTITUTION 21 4.7 TOWARDS THE CATASTROPHE 22 5 CONSTITUTIONAL DEMOCRACY: THE ANGLO-AMERICAN EXPERIENCE 23 5.1 CONSTITUTIONAL DEMOCRACY AFTER THE 2ND WORLD WAR 23 5.2 THE CONSTITUTIONAL ORDERS OF CANADA, AUSTRALIA AND NEW ZEALAND 24 5.3 ENGLISH CONSTITUTIONALISM IN THE 21ST CENTURY 27 5.4 THE US FROM POST-WORLD WAR TWO UNTIL MODERN TIMES 29 6 CONSTITUTIONAL DEMOCRACY: THE EUROPEAN EXPERIENCE 32 6.1 A NEW BEGINNING: CONTEMPORARY CONSTITUTIONALISM IN EUROPE 32 6.2 GENERAL FEATURES 33 6.3 THE ITALIAN CONSTITUTION OF 1948 38 6.4 THE GERMAN BASIC LAW OF 1949 40 6.5 THE FRENCH 5TH REPUBLIC CONSTITUTION OF 1958 44 7 FROM THE OPEN STATE TO THE EU CONSTITUTIONAL SPACE 46 7.1 TOWARD A EUROPEAN CONSTITUTIONAL SPACE 46 7.2 THE EUROPEAN CONVENTION ON HUMAN RIGHTS 49 7.3 THE EU COURT OF STRASBOURG AND THE JUDICIAL DIALOGUE 51 7.4 THE EUROPEAN UNION: HISTORICAL ORIGINS 52 7.5 THE NEW SYSTEM OF THE TREATIES AND THE AMBIVALENT IDENTITY OF THE EU 52 7.6 THE DEMOCRATIC LIFE AND THE EU INSTITUTIONAL FRAMEWORK 53 7.7 SOURCES OF LAW OF THE EU LEGAL ORDER 54 7.8 THE EU COURT OF JUSTICE 56 7.9 THE PROTECTION OF FUNDAMENTAL RIGHTS IN THE EU 56 7.10 THE EU CONSTITUTIONAL SPACE BETWEEN INTEGRATION AND RESISTANCES 58 8 THE WORLDWIDE EXPANSION OF CONSTITUTIONAL DEMOCRACY 58 8.1 TRENDS OF EXPANSION 58 8.2 EXPANSION IN WESTERN EUROPE 59 8.3 DECOLONIZATION AND CONSTITUTIONALISM IN ASIA 61 8.4 DECOLONIZATION AND CONSTITUTIONALISM IN AFRICA 63 8.5 CONSTITUTIONALISM IN LATIN AMERICA 63 8.6 CONSTITUTIONALISM IN EAST-CENTRAL EUROPE 64 8.7 THE TRADITION OF WESTERN CONSTITUTIONALISM IN THE GLOBAL LANDSCAPE 66 LEGAL GLOSSARY 1 THE LEGAL ORDER Ubi societas ubi ius = there is a strong relationship between law and society: when a group of men reaches a certain LEGAL ORDER = set of institutions stability/organization, institutions and norms start to exist to and norms regulating the structure regulate the relationships among individuals and protect and rules of a stable group of men shared interests The connection of institutions and norms in a legal order is circular: institutions are created and regulated by the norms, but the norms need an institutional system to grant their respect/effectiveness with the legal use of force → norms are binding only if respected by people The Nation State is a legal order born in the Modern Age, substituting the typical legal orders of the ancient world and Middle Ages: it’s based on territory, people and sovereignty 2 PUBLIC LAW AND PRIVATE LAW There are 2 main categories of law: Public law = created by the institutions of the State/delegated by the State Private law = created by individuals/other legal entities (private organizations with a legal status, entrusted by the law with the power to create legal acts) to fulfill their own interests o these acts create rights/duties that bind only those who take part in the act o they are valid only if compatible with the norms of the State o the State acknowledges the legal relevance of private law and grants its enforcement 3 THE SOURCES OF LAW Legally binding norms in a legal order are created by sources of law = any act or fact that the legal order acknowledges as valid forms of normative productions, it’s the methodology to create legal norms, what gives validity to a legal norm → there are 2 main categories: sources-act = Constitution, statutory law and other sources of enacted legislation [regulations of the executive branch] → enacted, written in a legal document, follow the specific procedure provided by the legal order sources-fact = customary law, behaviors not formally allowed to create norms, acknowledged as valid norms ex-post because they are recognized by the people → they can be of any kind (religion, customs, etc.) Jurisprudence = set of decisions of the Courts (judicial branch of a legal order) adopted for the solution of cases (trials for the punishment of crimes and litigations among individuals) brought to their jurisdiction for the solution of the controversy → it can be limited to the respect of enacted legislation/other sources of law (Civil law) or become a source of law itself (Common law) 4 THE LEGAL SYSTEMS In complex societies (like the contemporary one) there are LEGAL SYSTEM = set and numerous sources of law: the pluralism in institutions and methods of organization branches of governments leads to pluralism of sources of law, of the sources of law calling for an organization of their relationships to avoid normative conflicts In ancient societies: o customary legal systems = tradition played a fundamental political role → customary law had the main position in a hierarchical organization of the sources of law o religious/theocratic legal systems = the authority of religious rules/commands of religious authorities occupy the highest position  o authoritarian legal system = the political legitimacy depends on the authority of an individual (emperor, King, dictator, etc.) → the acts come from him, his command is the leading source of law In contemporary States of the western world (where there’s separation of powers and pluralism of sources of law) the legal systems are more complex, and the main sources of law represent the will of the people (democratic principle): o Civil law legal systems = enacted legislation has the main role → Courts are bound by enacted law, they only have a power of interpretation of the norms o Common law legal systems = the main source of law is the jurisprudence of the Courts, according to the rule of the precedent [respect of the previous decisions taken in similar cases by a superior Court] 5 ANTINOMIES Normative antinomy = contrast among norms: in contemporary, complex legal systems (based on a plurality of sources of law) antinomies are frequent (they can happen in a daily basis), and the states must resolve them in their daily business → there are several criteria for the resolution of antinomies, and the different legal systems have different methods for the resolutions of antinomies 6 CRITERIA FOR THE RESOLUTION OF ANTINOMIES (in the field of enacted legislation) Interpretation = resource to avoid antinomies: when facing an antinomy, those who interpret/apply norms should construct the norms in order to make them consistent one with the other → if the judge can interpret the provision in more than one way, he should prefer the one not in contrast with the other norm There are 3 actual criteria for the resolution of antinomies: 1. Chronology = for sources A and B belonging to the same level of the legal system → the newer norm is preferred → the newer norm repeals the older norm, which becomes ineffective (both norms are still valid, but the older one is not applied anymore) a. some legal systems also allow retroactive repeal = repeal that starts from a certain point in time (never in criminal legislation) 2. Hierarchy = for sources A and B belonging to different levels of the legal system → the superior norm is preferred → the inferior norm is declared invalid and annulled (all the effects are cancelled, even the ones in the past) 3. Competence = in federal/regional legal orders the Constitution establishes specific competences of the different sources of law → there is a strict separation of competences, and any breach is declared invalid and annulled 7 THE RIGIDITY OF THE CONSTITUTION Constitutionalism settled a legal system based on the supremacy of the Constitution: in Civil law systems it means that this new source of law has a super-primary force, binding even the primary legislation in Common law systems it means that an enacted source of law assumes prevalence over the typical system based on the superiority of the jurisprudence CONSTITUTION = legal document, outcome of a fundamental political decision/process, expressing the values and goals of a political community, and regulating: 1. the frame of government, to set the separation of powers among the branches/an equivalent form of limitation of the political power 2. the fundamental rights of men A Constitution can be either: rigid = amendments can happen only through a special/enhanced proceeding, more complex than the one used to modify other sources of enacted legislation flexible (typical of the 19th cent + UK now) = don’t foresee a special proceeding for the amendment → it can mean that: o amendments happen like modifications of primary legislations o it’s impossible to change any content of the Constitution Not all provisions of the Constitution can be amended: there is a set of superior principles that can’t be amended at all = they express the very fundamental values and principles of the organization of the constitutional order + Constitutional Courts and scholars identify unamendable principles not expressly foreseen in the Constitution itself 8 THE CONSTITUTIONAL REVIEW OF LEGISLATION Constitutional review of legislation = method for the assessment of the consistency of primary legislation with the Constitutions (resolves antinomies between legislative norms and constitutional norms) → it can be carried out according to 2 different patterns = judicial review and centralized review (see chapter 4.5) 9 PRIMARY LEGISLATION AND THE PRINCIPLE OF LEGALITY In Civil law systems the sources of law of primary force are: 1. parliamentary statutes (statutory law) 2. regional/member states’ statutes (only in countries with a federal/regional organization) 3. acts of the executive branch with force of law The primary sources of law bind the inferior ones, as well as the activity of the state as a whole: the principle of legality is the constraint of legislation over the state = it means that all acts of the executive and judiciary branches must follow/be consistent with the norms [not exactly like the Common law’s rule of law due to the differences between the 2 systems] The legislative function belongs to the Parliaments, but the executive branch can carry out normative activity (creating secondary sources of law + acts with force of law in case of emergency or under delegation of the Parliament); traditionally, primary sources of law contained general and abstract principles → now it is not always like this, it’s common for them to take the shape of detailed norms 10 FORMS OF GOVERNMENT Form of government = set of relationships existing among the branches of government and the institutions sharing the political power in a specific legal order (executive  legislative) → the classification of the main forms of government in western constitutional law is: presidential = established in the US (Federal Constitution, 1787), based on a rigid separation between legislative and executive → they don’t have tools for interfering one with the other + they derive their political legitimacy from different sources (dualist form of government) → they are elected by the people with different, independent, elections parliamentary = established in the UK, based on the cooperation between legislative and executive → the source of political legitimacy is the same = popular election of the Parliament, on the basis of which the Head of State (monarch/president) appoints the Cabinet (prime minister + ministers) that leads the executive branch o the relationship executive  legislative is called relation of confidence [the majority of the Parliament approves the appointment of the Cabinet with a vote of confidence, and can force it to resign with a motion of no confidence] semi-presidential = has elements of both the previous forms → the President of the Republic is directly elected by the people (presidential), but he shares the executive with the Cabinet who he appoints following the parliamentary elections (there is the relation of confidence) WESTERN CONSTITUTIONALISM 1 THE FORGE OF CONSTITUTIONALISM Constitutionalism is a creation of the western world: it was born in the United Kingdom in the 16th century: we can represent it as a tree that branches out in different directions, assuming different characteristics in different countries; the roots of Constitutionalism go back to the origins of the western world’s politics, the Greek πολεις = they all share common history and goals, but they also diversify and sink new roots Constitutionalism is an idea difficult to define: it’s a political doctrine created in the UK in the 16th/17th cent, quickly spread in Europe and North America, affirming itself as the main political doctrine in the Atlantic world; its diffusion was helped by the 3 revolutions of the century, which transformed Constitutionalism from a minor political ideology to the main political doctrine: 1. English (1689) 2. American (1776) 3. French (1789) The main goal of Constitutionalism is the limitation/constraint of political power as a reaction to the ancient ideology (Roman Empire + 1st Modern Age) of absolutism, where the monarch’s power had no constraint → Constitutionalism is a reaction against absolutism, it’s the only way to grant liberty → liberty of men requires limited political power, law is instrumental to the goal of Constitutionalism The achievements of the 3 Revolutions were: separation of powers = it was divided in legislative, executive and judicial written Constitution = it had a superior position over other sources of law legal protection of individual rights The roots of Constitutionalism are: 1. Jusnaturalism (from a religious vision of the world) = law is written inside the very nature of human beings [Sofocle’s Antigone is an example = she defies the human law to respect the natural law, which is superior because is coming from God] → the natural law is more important than the law of men, the law of kings is inferior to the natural one  a. when the idea of religion as the superior source of law didn’t apply anymore, Constitutionalism kept the idea of a superior source of law = the Constitution → the law of the Parliament is inferior to it, they can’t be in contrast 2. Aristotle and Cicero’s mixed government = they thought that the best form of government was the mixed government: power must be in the hands of all social classes, so that they all have a role a. this wasn’t the main political doctrine in the Ancient world, the king was seen as the representative of God (especially after the spread of Christianism) b. Aristotle’s Politika and Cicero’s De Republica influenced Polybius, Machiavelli and the Modern Age → this lead to the theory of separation of powers and different functions of the State = legislative, executive and judicial (independent one from the other 3. Contractarianism (from secular vision of the world) = there has to be a contract between the people and the governor, who has to accept his limits → his powers have to be based on justice: this is the basis of modern Constitutionalism (Constitutions set the limit for political power) Modern Constitutionalism was born together with the Nation State: the Peace of Westphalia (1648) marked its acknowledgment → a Nation State is based on: territory = identifies where the State has its authority and where not people = the ones who live within the State’s boundaries sovereignty = the State has absolute sovereignty on its territory, it doesn’t allow any other authority within its boundaries 2 CONSTITUTIONALISM IN THE AGE OF THE MODERN REVOLUTIONS 2.1 to 2.5 + 3.2, 4.3 THE ORIGINS OF CONSTITUTIONALISM IN THE UK The 2 English Revolutions (the Civil War of 1648 and the Glorious Revolution of 1689) marked the time when Constitutionalism became the leading political doctrine → in this period John Locke wrote the 2 treatises on government, where he explained the doctrine of natural rights and constraint for the government: he affirms that everyone is born free and equal → these rights derive from nature and not from human law → the government can’t interfere and obstacle these natural rights, which is why the government has to be constrained Locke also talked about the ideas of life, liberty and property = the goal of the government should be to protect the rights of individuals, and if it doesn’t comply with its role, the people have the right to take the power back the rights he talks about are called negative rights (of 1st generation) = they are respected only if the State doesn’t interfere with them (if it does, it means this freedom has to be limited) → property, freedom of religion, speech and assembly later, with the process of democratization, positive rights (of 2nd generation) will appear = the State must intervene to protect them → right to education, right to health In England there was never an absolute monarch, thanks to the strong resistance of the Parliament (the oldest in Europe), which had 2 Houses: House of Lords = aristocracy House of Commons = commoners + middle class (the rising bourgeoisie) The Parliament made sure the monarch didn’t gain an absolute power, and kept gaining power itself till it became the protagonist in the Revolution against the king: the 2 Houses (despite their internal differences) worked together to achieve a common goal; the middle class started to gain more and more power: they had no privileges and produced their own wealth with their hard work, becoming the new class of the bourgeoisie [we use the French term even if the 1st was English!] The new class valued economic freedom and entrepreneurship, and had a positivistic view of life, putting the needs and interests of the individual in 1st place; they believed balance in the market and in the State was fundamental: men needed to have free will, and the government had to be balanced and bounded by a compact → Constitutionalism became the doctrine of the bourgeoisie The Common Law legal system was born in England in the Middle Ages: this system doesn’t recognize the political sources of law, but puts in 1st place the traditions and precedents of the courts → the English legal system was based on local courts (under the local feudal aristocrat) → while in other countries the monarch gained all the authority, even in the Modern Age the courts kept their importance The king created the common courts to gain control over the feudal aristocracy and to establish his own authority, but the result was the limitation of his own power: the courts still remain now, and the precedents of the courts are the main sources of law = their decisions were more important than the ones made by legislative institutions (like the Parliament) The English Revolution was almost 1 century earlier than the other 2 (American and French): the leader of the Parliament Oliver Cromwell obtained the 1st written Constitution (Instrument of Government) of the Republic of England; the result of the 2nd Revolution was the Bill of Rights, that explained a set of rights from the English tradition and affirmed the new leadership of the Parliament, giving guarantees to its members + affirmed separation of powers The UK doesn’t have a written Constitution: the Instrument of Government was adopted only for the Republic, not for the monarchy → the English constitutional rules don’t come from a permanent document but are born with time, consolidating themselves through time → the English Constitution developed throughout its historical development (it’s a customary Constitution) The procedure to change the Constitution is also different (there are no amendments/reforms like there are for a written one) → there is no special procedure, just slow modification of practices that reflecy a political/cultural change (a customary Constitution slowly changes with the customs) After the Glorious Revolution of 1689, a CONSTITUTIONAL MONARCHY under king William Orange was born o the king was bound by the type of government, he shared the executive power together with a Cabinet of ministers o the legislative power was in the hands of the Parliament (Commons and Lords) The king slowly became more and more marginalized and the Cabinet started seeking the consent of the Parliament → the UK was becoming a PARLIAMENTARY MONARCHY: o the ministers were appointed by the king, but he didn’t have that much power over them o the leaders of the political parties became more and more important o the prime minister had the duty to resign if the Parliament lost the confidence in him (motion of censure) There is no official date for the transition, because the English Constitution is conventional (unwritten, flexible and customary); in a Parliamentary monarchy, there is a specific relationship between executive and legislative branches = relation of confidence (they are strictly connected); in the 19th cent the king was marginalized, having no political role, just a honorific role: he signed the acts without having any actual decisional power (it’s the Cabinet’s countersignature that counts) The perfect bicameralism (2 chambers of the Parliament have the same importance and powers) gradually transformed in a non-perfect bicameralism = the 2 Houses didn’t have the same powers and importance → the Commons prevailed over the Lords, because their popular election (and the right to vote was expanding, 65% in 1867) gave them political legitimacy The Parliament had the legislative function and the relation of confidence with the Cabinet: in both the Commons prevailed → it was formed based on the results of the elections = the parties who won controlled the legislative power and their leaders became part of the Cabinet (majoritarian system) assembly/consociative system majoritarian/premiership system unstable executive stable executive Cabinet works closely with the Parliament Cabinet made by different party leaders (strong leadership) frequent crisis that lead to a new majority in case of a crisis, the Parliament is re-elected In England there is premiership and a 2-party system, influenced by the first-past-the-post electoral system = majority system that can be single/double ballot; England is divided in constituencies with candidates from different parties → the electors can only choose between the candidates in their constituency, who gets the majority of the votes gets almost the total of the seats 2.6 to 2.10 + 3.3 THE ORIGINS OF CONSTITUTIONALISM IN THE US Emigration towards North America = phenomenon that started in the 1st half of the 17th cent: most emigrants are from the UK, but there are 2 classes: 1. The Puritans = religious minority (Calvinists) that was persecuted in England, Scotland and France (both before and after the institution of the Anglican religion) → they came to North America on the Mayflower to establish a new community; they mostly went to New England and developed a New England mind based on the ideas of: a. religious tolerance = the State must not interfere, there is rigid separation → understandable since they were coming from persecution and had a necessity for religious freedom b. claim for equality = society is made of men all created equal by God → European aristocracy can’t exist in the new world c. inherent rights = men are made by God with rights (main point of Jusnaturalism) The Mayflower was famous for its compact = contract that the Pilgrim fathers signed where they agreed on common values and mutual protection → these ideas come from the religious values united with Contractarianism (crucial in Christian and Jewish religion) → it’s a religious way to see society but also a political view 2. farmers = people who couldn’t buy land in Europe because it was all owned by aristocrats → they had important political ideas: d. equality = they affirmed the idea of political equality with universal suffrage (remains of the English Glorious Revolution) e. individualism = people reach their goals with their own individual work The people who moved to North America had a claim for self-government + criticism towards the English Parliament: they refused the idea of Parliamentary sovereignty (the Parliament had authority over the colonies, but the colonies couldn’t elect their own representatives in the Parliament); the colonies had Charters (≠ from the UK, where there was no written Constitution) = they believed written rules were fundamental In the colonies there was Common law and there were self-governing assemblies at a municipal and colonial level → their autonomy and powers were really limited, they were under the veto of the governor chosen by the UK king (who they accused of being corrupted and acting like a tyrant) In 1763 the king prohibited further expansion of the colonies’ territories: they wanted to expand towards the Appalachian Mountains (where there were Spanish and French colonies + Native Americans) → the king wanted to preserve the peace treaties, so he told the colonists to stay on the East Coast; the colonists wanted to occupy the land and to own all the rights on the territory (based on John Locke’s ideas), there was a general push towards the West NO TAXATION WITHOUT REPRESENTATION = the colonists felt like they couldn’t stay under the UK’s rule if they didn’t have representatives → in 1776 the situation exploded in a Revolution and in the writing of the Declaration of Independence: it contained a catalogue of rights = there are rights that the government can’t touch, because it only exists to secure men’s rights it explained the right of resistance = if the government doesn’t respect their rights, they have the right to rebel → especially because of the restriction and excessive taxation A war with the mother country started: the rebels won the war thanks to the support of the French government (Thomas Jefferson went to Paris to ask for economic help, they accepted because of their ongoing war with England) → the 13 colonies conquered their independence and united in a confederation, signing the Articles of Confederation (treaty) and creating a Congress with representatives from the colonies The Confederation was an alliance between different countries, there still wasn’t any Union with a federal government: they were 13 independent states who decided to cooperate (in military, foreign affairs, etc.) REVOLUTIONARY DECADE (1776/1787) Period that led to the enactment of the Federal Constitution [that was actually the 14th of all the Constitutions written in that period] → at first, the newly independent colonies adopted State Constitutions = all similar, divided in 2 sections: 1) Declaration of Rights 2) Frame of government = rules on the organization of the government, inspired by Cromwell’s Republic after the 1st English Revolution: a. theoretically based on separation of powers, but it wasn’t actually established (no balance) → there was a push towards legislative predominance (they were coming from a tyranny, valued the self-government assemblies and were critical towards the executive branch) b. the executive branch could be removed by the legislative branch and was elected every 1/2 years (legislative protagonism) In 1783 the Confederation signed the Treaty of Paris = the English crown acknowledged the colonies’ independence and gave them control over all the English-American territories → they gained territories beyond the colonies, which they didn’t know how to distribute: they created another State governed under the Confederation rules (Tennessee = 1st state outside the 13 colonies → this process repeated itself for all the other states); another problem was the division between: Northern states = free, their economy was based on small farms and urbanization was increasing → they put high taxation on foreign products to protect their internal fragile industrial economy Southern states = slavist, their economy was based on plantations where the slaves worked (huge territories), transported their products to Europe through the Mississippi river → they needed low taxes to export their products The Northern states also wanted to end slavery, for humanitarian and economic reasons = they wanted to end the Southern internal economic system → their conflict exploded later in the Civil War in 1865; in 1787 the Philadelphia Convention reunited representatives of the colonies/states to discuss the many problems in the Confederation → there was a further division between: small states (Virginia Plan) = they wanted a new Union structured similarly to the Confederation large states (New Jersey Plan) = they wanted a new Union with bigger powers and a strong executive branch The Convention managed to reach a compromise with the new revolutionary idea of federalism = true invention of the delegates (the only example of this before was in the Netherlands), based on the fragmentation of the unity of the sovereignty of the State → the new Union wasn’t an international treaty between different countries, but the sovereignty was split between the 13 states The Federal Government is in equilibrium with the member states → the Congress (federal legislative assembly) is divided in 2 chambers (= UK) with the same legislative power (they always need to reach an agreement): House of Representatives = elected every 2 years on a national level, every State has a number of members based on its population Senate = represents the interests of the member states, elected/chosen for 1/3 every 2 years (the max time for a senator in 6 years), it has the power of advice and consent: o it approves the federal officials appointed by the President, checking their abilities and suitability for the job (for this they need a normal majority) o it has the power of ratification of international treaties, checking the executive branch (for this they need a 2/3 majority) The President holds the executive power: he is elected every 4 years with a vice president, through an indirect election (citizens elect presidential electors who elect the President); the federal judiciary branch has competences in the application of federal statutes and cases between citizens of different states → the Supreme Court is the highest institution EARLY REPUBLIC (1787/1828) In this period the Senate had a really important role (ends with the election of Andrew Jackson as President); Section 8, art. 1 = distribution of legislative competences: the new Union didn’t want to destroy the already present governments of the 13 States, they created a further government, but they had to make sure there was no overlapping of competences (dual federalism) The federal competences listed in art. 1 sect. 8 aren’t exclusive competences [they don’t impede states regulations in those fields], but the Federal Government can’t regulate any subject not listed there → the states have the right to decide whether and how to regulate the subject; the states can regulate the subjects listed, but in case of conflict between state and federal regulation, federal law preempts state law, which is considered void (federal preemption) In 1804, the Supreme Court introduced the judicial review of legislation in the judgment Marbury v. Madison by Chief Justice John Marshall = any legislative act contrary to the Constitution is void, and all courts have the duty to assess the constitutionality of a norm (see chapter 4.5) PRESIDENTIAL GOVERNMENT PARLIAMENTARY GOVERNMENT relation of confidence between executive and separation between executive and legislative legislative executive power in the hands of the president executive power in the hands of the Cabinet the people elect the Parliament, which elects the 2 different elections for executive and legislative President, who chooses the Cabinet the Parliament has the political responsibility for the Congress can’t change the President the Cabinet Americans strongly believed in separation of powers (from Locke): they criticized the English transition towards a Parliamentary government, they thought it would corrupt the Constitution; actually, in the US there are separated institutions with shared powers = it’s not a relation of confidence, but there is a certain level of cooperation (which doesn’t interfere with the mandate like in the parliamentary government) → there are many checks and balances through which the institutions can check each other’s work (balanced Constitution): 1) advice and consent (Congress → President) 2) impeachment (Congress → President) = against ay high official of the federal government, not about political responsibility, only for specific crimes (bribery, corruption, treason and other high crimes and misdemeanors) a. the House of Representatives approves the indictment, the Senate works as a tribunal and judges (they can condemn with a 2/3 majority) b. it can’t be used against wrong political decisions (it could transform the presidential government into a parliamentary one) → in 1816 Andrew Jackson was impeached, but accused only for his political decisions, so the Senate couldn’t condemn him 3) presidential veto (President → Congress) = all bills created by the Congress have to be signed by the President to become an official act: it’s usually a formality, but the president has 10 days to sign, in which he can send the bill back to the Congress a. to approve it again as it is, the Congress needs a 2/3 majority (hard to reach with a 2-party political system) b. usually, the Congress changes the bill according to the President’s suggestion c. sometimes they refuse to change it and abandon the proposal altogether veto is a mean the President has to bargain on legislation with the representatives → they should follow the presidential guidelines to avoid veto (it’s the symbol of the cooperation between executive and legislative) US CONSTITUTIONALISM IN THE 19TH CENTURY The development of the US federalist government during the 19th cent can be divided in 3 phases, based on the 3 different party systems that affirmed themselves: 1. federalists (strong federal government, improvement of the industrial economy and bank system) vs republicans (Thomas Jefferson → small farmers economy, plantation systems and slavery, defended the states’ rights and encouraged the westward expansion) = the Federalist Party was in power till 1800, when Jefferson was elected as president 2. democrats (strengthening of democratic values, transformation of the system with universal suffrage, almost direct election of the president) vs whigs (1828/1861) = long presidency of Andrew Jackson, ends with the election of Lincoln, the secession of the South and the Civil War (1861/1865) 3. democrats vs republicans = still lasting party system, started after the end of the Civil War → 3 important constitutional amendments (foundation of constitutional tools for the protection of fundamental rights in the US): a. 13th = abolition of slavery b. 14th = ban over discriminatory state laws c. 15th = race, color or previous conditions of servitude mustn’t affect a citizen’s right to vote During the 19th cent, a series of cases of the Supreme Court defined the constitutional construction of federal legislative competences [in (1) and (2), the Supreme Court used the broad clauses of the Federal Constitute to attribute to itself/to the Federal Government many competences and power over the states; in (2) and (3), the new Chief Justice and President tried to limit the federal competences to reaffirm states competences]: 1. McCullock v. Maryland (1819) = creation of the Federal Bank of the US (under Chief Justice Marshall → expansion of federal competences) 2. Fletcher v. Peck (1810) = enlargement of the role of the Court to assess legislation + of the power of the Federation to assess the political activity of the states 3. Barron v. Baltimore (1833) = Marshall is forced to recognized that the federal Bill of Rights can’t be applied to the legislation/acts of the states 4. Scott v. Sanford (1857) = Chief Taney (collaborator of president Jackson) stated that the Supreme Court had no power to establish rule over state law on the issue of slavery (still ongoing in southern states) 2.13 to 2.15 THE ORIGINS OF CONSTITUTIONALISM IN FRANCE In France in 1789 a new revolution began: it had a fundamental role in the development of constitutionalism in European countries (this conception of constitutionalism expanded in Belgium, the Netherlands, Italy and Spain); the legal and social structure of the Ancien Regime was really developed: king = only center of power in the nation → absolutism with a central administration, unification of the normative order, effective fiscal leverage, centralized army, regulation of public finance, national commercial strategy General Estates (aristocracy + clergy + third estate) = never called by the king Parliamentary courts = only antagonists of the monarchical power (≠ a parliament but judiciary courts that registered the normative acts of the king) In the 17th/18th cents a new intellectual movement developed = French Enlightenment, based on the prevalence of human reason, liberalism and jusnaturalism → it promoted a new set of principles that can be resumed in the term Etat de droit (rule of law) = set of legal guarantees and rights for the people [legality in criminal matters, impartiality of judges, equality of men, etc.] The intellectual premises + the serious social conditions triggered the Revolution in 1789: it started when the delegates of the bourgeoisie pronounced the Pallacorda Oath = they requested a constitution and transformed the General Estates in a Constituent Assembly, expression of the constituent power of the nation (which belongs to the nation as a whole, especially to the bourgeoisie and 3rd estate → theory of Emmanuel Joseph Sieyès) Principle of representative democracy = the delegates don’t represent their electors but the nation as a whole (≠ representative relationship based on the mandate) → free mandate principle = elected representatives aren’t delegates of specific electors but represent the nation and are free to make their own decisions The biggest result of the Revolution was the Declaration of Rights of Men and Citizen (1789) = catalogue of rights that contained the principles of jusnaturalism, the liberal tradition [life, property, economic enterprise, individual freedom, freedom of expression], and the principle of supremacy of the will of the nation The French Revolutionary Age can be divided in 3 periods: 1. Constitutional monarchy (1789/1792) = Constitution of 1791 aims at balance among different branches (executive power to the king, limited suffrage for the election of the National Assembly) 2. Democratic Republic (1792/1795) = the increasing hatred against the king lead him to escape and the Republic was established under the Girondin Party, then under the Jacobin Party (Robespierre, Danton and Marat) → they started a radical phase of the revolution (called Terror) = cruel fight against the enemies of the Revolution/aristocrats; a new Constitution was adopted in 1793 = democratic, affirmed popular sovereignty, acknowledged individual and social rights, affirmed parliamentary supremacy [it actually never came in force because of the war] 3. Directorial Republic (1795/1799) = on the 9th of Thermidor (27th July 1794) there was a rebellion against Robespierre; in 1795 a new Constitution was enacted (Thermidorian Constitution), created by the bourgeoisie to stop radicalism, confirmed the rights of the Declaration of 1789; based on a stable executive (Cabinet/Directory); it ended when Napoleon Bonaparte took the power with a coup d’etat in 1799 3 WESTERN CONSTITUTIONAL LAW IN THE 19TH CENTURY 3.4 LIBERAL CONSTITUTIONALISM IN THE 19TH CENTURY EUROPE The French Revolution is the source of the main values and principles of European constitutionalism: in the first half of the 19th cent the pattern of liberal constitutionalism took shape in Europe and lead to the adoption of several constitutions = outcome of a complex bargaining process between the  growing bourgeoisie (that had risen before the restoration of the Ancien Regime, and had gotten used to certain liberties and rights) and the monarchies (restored after the Napoleonic wars) The constitutions of this period were octroyées constitutions (1st = French Constitution of 1818) = constitutions granted by the king to the nation → they mirrored the new exigencies of liberal constitutionalism but confirmed the monarchy in its sovereign position + avoided the radical idea of a constituent assembly drafting the constitution or the involvement of the people Another common characteristic is their flexibility (≠ from the US, inspired by the British “Constitution” and the English constitutional history): constitutions don’t provide a special procedure for their amendment (written nature connected with the perpetuity/immutability of the document) → it’s a weakness and an ambivalence, there are no legal guarantees against legislative alterations The reason for the flexibility wasn’t to make them easy to change frequently, but because the modification wasn’t even considered at all: for the monarchs the Constitution was an eternal document supposed to last for centuries → it’s impossible to establish any kind of constitutional review of legislation, there is a predominance of the Parliament/legislation over other branches and sources of law [during the French Revolution, the judges were aristocrats and had privileges, so the Parliament couldn’t accept a superior authority to its law] → legislation = superior source Main goal of the 19th cent constitutions = protection of individual rights and balance of powers (inspired by English system and French Declaration of Rights), and so to limit the state’s power and guarantee a free society → the rights are listed in Declarations/Bills of Rights (included or separated from the constitutions), they are individual liberties against the state (habeas corpus, freedom of religion/assembly/association/speech, economic rights, “privacy”, property) Reservation to the Statutory Law = main constitutional tool of protection of liberties: it’s a legal provision that permits the parliamentary statute to provide detailed norms regulating the exercise of rights, excluding any other source of law (also the executive branch) from the regulation of the subject; this depends on the deep homogeneity between values/interests of the bourgeoisie with the delegates of the Parliament; this legal tool is mainly used in Civil Law systems [in Common Law systems the courts of Common Law grant a set of procedural remedies which protect rights] In practice, it meant that the Declarations accepted limitations of rights by parliamentary law: they don’t regulate in detail how the rights are supposed to work (if there should be a limit or not), they leave this decision to the State → contradiction; the Parliament/Constitution are an achievement of the bourgeoisie, it made sense for the Parliament to be the one to regulate the rights → trust towards the Parliament is crucial in 19th cent European constitutionalism As the bourgeoisie was becoming the leading class, parliaments became the core of the political power → they represented the wealthy/leading social classes (due to limited suffrage based on wealth → there was no pluralism in political parties) and achieved the balance of power (overcoming the will of the king, who wanted to gain control over the society again) through: Bicameralism Veto power granted to the monarch Dualist systems of government = separation between monarchical executive and elective legislative, but the parliamentary centrality destroyed the stable balance of powers → in many countries there was a transition towards parliamentary governments (and brought imbalance) With the French Revolution and Napoleon’s Empire the liberal and democratic principles + French constitutional structures spread all over Europe, and remained even after the restoration of old monarchies:  SPAIN PORTUGAL THE NETHERLANDS NORWAY 1812 by the year 1822 1815, 1848 1814 Cortes liberal principles strongly reduces the principles liberal of government powers of the king constitutional constitutional monarchy, form of monarchy with constitutional then parliamentary constitutional monarchy government male general monarchy monarchy suffrage BELGIUM ITALY 1831 (independence from the year 1848/1861 Netherlands in 1831) Carlo Alberto (king of Piedmont) granted a who made it National Congress Statute, that became the 1st Italian Constitution after the unification monarch rigidly limited, all his acts are monarchical constitution similar to the French countersigned by ministers and to the Belgian principles Bill of Rights follows liberal tradition (formal equality, protection of personal individual rights of the liberal tradition liberty, freedom of religion, meeting, assembly, opinion, private property) constitutional monarchy, then parliamentary parliamentary government government in the 1860s form of government dualist government, division between executive relation of confidence between Cabinet (king and Cabinet) and legislative (2 chambers, and bicameral parliament 1 elected and 1 chosen by the king) suffrage based on wealth based on wealth In France King Louis XVIII granted a Constitution in 1818 (octroyée): it established a constitutional monarchy, the ancient sovereignty of the king (he checks the legislative + has the executive power), and very limited suffrage based on wealth; in 1830 a new dynasty brought by a new insurgency (caused by the deep roots of the Revolution and the weakness of monarchical parties) granted a new Constitution: it had the structure of liberal constitutionalism and consolidated the alliance between monarchy and bourgeoisie 1848 = key year for the expansion of constitutionalism in Europe: the revolutionary movements of those years wanted written constitutions consistent with liberal values + had national claims → they saw constitutions as a common heritage of the political community, that could boost political participation and legitimize ideological battles for independence and unity of the nation In Germany (even if there the principles of the Enlightenment had not been so relevant) many princes granted constitutions + formed a constituent assembly (by universal male suffrage, it gathered in Frankfurt) to adopt a constitution for a unified German confederation, but the process of unification was too complicated; in 1871 William I became king of Prussia and appointed Otto von Bismarck as prime minister: they unified the 25 German states in a confederation (excluding Austria) under Prussia’s leadership (emperor  king of Prussia), with a Constitution with common features of liberal constitutionalism:  System of government = dualist constitutional monarchy Executive power shared by emperor and chancellor/prime minister appointed by the emperor No relation of confidence between Parliament and chancellor Parliament divided in 2 chambers: o Reichstag = lower chamber, elected o Reichsrat = upper chamber, delegates of the member states (with a > number of Prussian delegates → strong relevance in federal politics) German constitutional history moved in a different direction: the executive became progressively stronger than the Parliament + had a different concept of individual rights (seen as benefits acknowledged by the law of the state and moldable according to its interests, ≠ liberties belonging to the individuals/existing before the state) In Switzerland the Revolutions of 1848 led to war among the Cantons and ultimately to a Confederation under a liberal constitution: the Cantons had a strong autonomy + there was a wide use of the instruments of direct democracy (popular referendums at local and federal levels); it had a directorial government (already experimented during the French Revolution) Directorial Government = has elements from parliamentary and presidential form of governments: Executive appointed by the parliamentary assembly Collegiality of the executive body Executive cannot be forced to resign by a parliamentary motion of censure Executive cannot dissolve the parliament Today Switzerland is the only country in Europe with this frame of government: the Federal Council is elected by the Parliament every 4 years (but there is no relation of confidence), composed by 7 members and acts as Head of State In France new popular insurgencies established the Second Republic in 1848 with a Republican Constitution that settled a presidential government → Napoleon III won the elections and established the Second Empire (he was the grandson of Napoleon I) until 1870 → authoritarianism (in the government) + liberalism (acknowledges of individual rights); in 1870 Germany defeated France at Sedan, and it became the Third Republic (Constitution of 1875) = parliamentary government, president with weak powers, relation of confidence between Parliament and Cabinet (fully dependent on the changeable majorities of the Houses, fragmentation of small parties led to frequent changes in the Cabinet → ≠ from England) 3.5 PUBLIC ADMINISTRATION IN THE LIBERAL STATE The structure of public administration was shaped during the 19th cent during the evolution of constitutionalism → each country followed its own path: continental Europe = ministerial pattern of administration: public administration structured on different ministries for different administrative sectors [ex: finance and budget, army, foreign affairs, home affairs, justice], with a strong division of competences → principles = impartiality of the administration + idea that civil servants are in the exclusive service of the nation o judicial review: it developed only in the 2nd half of the 19th cent, it was a special judicial branch → separate and independent from the ordinary one, has the power to review the acts of the public administration [step towards a > liberal state because it protects the individuals from the state’s administration, even if the new administrative courts were composed of former ministers/officials of the state] UK = decentralized administrative offices: lighter bureaucratic apparatus (even if there are ministries like in EU) → many administrative competences are left to the province of local government  US = spoils system: administration based on less structured agencies with functions related to specific tasks/protect a specific and temporary public interest → the duration of the administrative office is linked with that of the political mandate (they change with elections and can be removed easily) In the Anglo-American experience public administration didn’t achieve a special/protected position in the legal order (like in EU) and the review of its acts remained entrusted to the judicial branch → no excess of state power over society like in Europe 3.6 PRINCIPLE OF LEGALITY AND RULE OF LAW PRINCIPLE OF LEGALITY RULE OF LAW continental Europe UK and US law as protection of individual rights using the all functions of the state must follow a previous tradition of rules of Common Law (precedents of norm and be consistent with the law of the state the courts) → in the administration of justice and enforcement of the law, the king is bound by law predominance of the parliament: the separation of powers is partially weakened, and the judicial branch is completely marginalized no predominance of the Parliament over the limit to the discretionary power of public other branches of government offices: in the UK there was a transition towards they have to be organized according to the parliamentary sovereignty provisions established by the law + their activity in the US there was strong criticism towards has to be carried out following previous norms unlimited parliamentary supremacy and the old outcome of legal values of the Enlightenment judges of Common law condition for legal equality and fair relationship public administration - citizens primacy of the acts of the Parliament over no monopolization of the system of sources of any normative act of the executive branch law by the statutory law legislation > administration judges = bouche de la loi/référé législatif→ compelled by written norms, they apply and in the UK the transition towards parliamentary interpret them based on the textual provisions sovereignty did not affect the key role played and the aims of the legislator (goal = to limit the by jurisprudence courts interpretative power that caused ambiguity in Middle Ages and Ancien Regime) liberal state = legislative state: Constitutional flexibility = Parliaments can easily alter the constitutions, no constitutional review of legislation in the UK the parliament interpreted its role to Reservation to the statutory law in mean codifying the multilayered Common law protecting the rights of men = case law → no alteration of the Common law parliamentary law is the main guarantee of heritage individual rights, the Parliament protects in the US codifications of law began to appear in them (but only in bourgeoisie’s interest) many states: the spread of written statutory law trend towards codification of civil and reduced the role of Common Law criminal law = propagation of the Code Napoleon (1804, civil constitution of the French people) principle of certainty of law, connected with clarity/understandability of provision, coherence of legislation and uniqueness of sources of law statualistic introversion (inconsistent with goals/theoretical premises of constitutionalism) = consequence of: parliamentary predominance bourgeoisie’s resistance to the claims of the working class stronger protection of the public order against mass movements  trade unions and political opposition more restricted vision of liberties development of complex public administration (hierarchical and centralized) 4 CONSTITUTIONALISM IN THE AGE OF DEMOCRACY 4.1 CONSTITUTIONALISM AND DEMOCRACY AT THE BEGINNING OF THE 20TH CENTURY In the 20th cent there was a huge transformation: the process of democratization started [achievement of general suffrage, pluralism, new rights], but it was weak and uneven → the process of consolidation of the institutional framework of the state was remarkable, but the general acknowledgment of individual liberties didn’t really resolve the social issues: in the US the enlargement of the electoral suffrage was already happening, but the society remained backwards in many aspects (many contradictions) o the abolition of slavery didn’t mean the affirmation of the fundamental equality between all individuals (in the southern states there still was discrimination against black people) o the development of an industrial capitalistic economy led to monopolization of resources in Europe (except UK) constitutionalism remain based on liberal constitutionalism: electoral suffrage was limited to wealthy people + parliaments didn’t deal with social issues → at the beginning of the 20th cent the sudden enlargement of suffrage after WW1 led to a quick and unprepared transition towards democracy In the 1st half of the 20th century western constitutionalism transitioned from the structure/rights of the liberal tradition to a new structure consistent with democratic values, based on the exigencies of new social classes breaking into the political scenario → FROM LIBERAL CONSTITUTIONALISM TO DEMOCRATIC CONSTITUTIONALISM (new scopes of government, new fundamental rights, bigger importance to the role of political parties and trade unions) with the acknowledgement of the role of society (the state must face social differences and inequalities through economic and legislative tools) and the pluralism of social classes (they have different claims that the state can’t ignore) In the US and UK suffrage had progressively increased in the 19th cent: the impact of democratization wasn’t dramatic; in the rest of Europe the transition had more radical forms because of political and economic crises in some countries → the increase of suffrage caused the formation of mass political parties and mass movements (sometimes radically against constitutionalism itself) [ex = Labour Party in the UK = federation of Trade Unions of workers] Constitutionalism (system of rules/constraints on power) and democracy (expression of the power of the people) got into an open conflict → this imposed the search for new arrangements, and for forms of rationalization of democratic pressures into the constitutional standards → the results were either important innovations or the rise of discontent (and the spread of authoritarian responses = dictatorships in Europe that demolished constitutionalism itself) 4.2 THE EVOLUTION OF THE AMERICAN CONSTITUTION The US between the Civil War (that ended sectional conflicts/slavery) and WW1 was becoming a modern nation (thanks to the final westward expansion and the annexation of the last western territories = California, New Mexico → growth of a modern industrial economy and preeminence of the US in world economy) but the society didn’t follow this rapid modernization After the Civil War, the Congress enacted the 13th and the 14th amendments to the Federal Constitution: the 1st one abolished slavery, the 2nd one introduced a more general ban on state legislation, forbidding any state from enacting laws violating individual rights and equality among men → it provided 3 legal tools (privileges and immunities clause, due process clause, equal protection clause) to overrule the statement from the case Barron v. Baltimore (1833: the Federal Bill of Rights bounds only the Federal Government, not the states), but the Supreme Court refused to apply the Amendment when judging laws that still recognized racial discrimination/other abridgment of rights [they even allowed racial separation as something ≠ a breach of the principle of equality] At the beginning of the 20th cent the Supreme Court changed its view about its own role within the American political system: it undertook a new approach characterized by its leadership and the revival of judicial review of legislation (mainly to oppose new trends in social legislation = measures passed by the Congress in favor of poor classes) to reaffirm the traditional vision of liberal economy (individual autonomy and state abstention); in the judgment Lochner v. New York (1905) they declared null an act of the State that introduced a maximum of working hours for bakers → working time belongs to individuals, it’s subject to deals and no one can regulate it → The Lochner Era = new period characterized by a broad use of the judicial review of legislation + the 14 th Amendment The due process clause (at first only a guarantee of protection of rights from the state’s violations) became a way to make the rights acknowledged by constitutional law fundamental and therefore opposed to state law as paramount law (substantive due process) → incorporation of fundamental rights = recourse to the due process clause to move an individual right from its original normative place to the recognition of a greater legal protection [today it’s the main tool for the constitutional protection of fundamental rights]; the Supreme Court acted in 2 opposite ways: it created a system of federal appellate courts to relieve itself from the workload was authorized to issue writs of certiorari (order to lower courts to review their ruling in case of legal error) → it allowed the SC to select the cases (interest only in the major legal issues) The expansion of the SC’s protagonism wasn’t only a conservative reaction to protect the liberal tradition, it must be contextualized within the process of legal and economic unification of the nation (whose turning point was in 1913 with the creation of the Federal Reserve = central federal bank + the beginning of direct taxation over all citizens) → the result of these improvements became evident with the election as president of the democratic Franklin Delano Roosevelt in 1932 The economic crisis of 1929 affected the society (mostly the poor/workers) in a tragic way: Roosevelt had a plan to boost economic growth and fight national poverty, the New Deal = program of industrial and economic recovery + public intervention in economy and social assistance → the problem was that many competences were in the state’s hands, so Roosevelt tried to involve the states in the New Deal with grants in aid = funds granted by the Federal Government under certain conditions → they had to transpose in their own legislation the federal provisions/regulations The Supreme Court went against Roosevelt’s plan (they thought it violated economic liberal principles with the public intervention in the economy) → he threatened to introduce norms for the removal of judges/addition of new members to the Court (court-packing plan) → the Court gave up and promised to implement the New Deal, and the competences of the Federal Government were enlarged (+ the executive could get involved in the legislative process); Roosevelt was elected 4 times in a row (1932, 1936, 1940, 1944) because of his success and his bond with the people (he used the radio to enter into the families’ homes) Roosevelt was able to strengthen the power of the presidency against the Congress and made some important changes to the American presidency that still have the same features today: 1. In 1921 with the Budget and Accounting Act, the President got the power to introduce federal budget proposals to the Congress → after WW1’s debt, it needed strong presidential leadership to control spending; before he only vetoed inappropriate expenses, now he could guide and prepare the legislative business with the Bureau of the Budget 2. the use of veto power enormously increased (Roosevelt adopted over 400 vetoes): the Congress was forced to seek bargains with the President’s politics 3. the use of presidential executive orders also increased, introducing substantive legislation = orders based on its constitutional duties without any specific authorization from the Congress 4. the federal administration increased in terms of officials, competences and budget 4.4 THE EU CONSTITUTIONS BETWEEN DEMOCRATIZATION AND RATIONALIZATION Europe after WW1 was really different: people were more aware of their role in politics and society, a feeling of national community was spreading, and political cultures [socialism and communism] became known also to lower social classes/trade unions; new political parties took the place of the small groups of political professionals, thanks to the enlargement of suffrage and the proportional representation; the transition had different effects on different countries: in the ones where constitutional structures were still in force [France, Belgium, Italy] the impact of mass society was evident in the field of political struggle and political representation in the ones where the ancient imperial structure was dissolved by defeat in the war [Germany, Austria, Hungary, Czechoslovakia] the transition was more evident and led to the creation of new constitutional structures The goal was to overcome the limits imposed by the XIX cent European constitutions = give more stability to the executive branch and stop the excessive predominance of the parliaments → they had 2 previous experiences as models: French Third Republic = negative model: instable, with a fragmented party system English parliamentary monarchy = positive model: Cabinet remains solid even with the relation of confidence, leads the national political agenda; this model was the best but it was also difficult to follow because of its unwritten status The rationalization of the parliamentary government went through a process of constitutional codification of rules and procedures for the election/appointment of the Cabinet, crisis of government and early dissolution of the Parliament → they introduced many rules = request of an absolute majority for the vote of confidence + conditions for the proposal/approval of the motion of no confidence; main goal = strengthening the position of the Cabinet and limiting parliamentary discretion to remove it The outcome was ineffective because of government instability and political fragmentation (the proportional electoral system increased this, every political party had radically different agendas) → general suffrage and the growth of mass parties brought political instability to all countries, putting liberal constitutionalism under crisis, leading to distrust in institutions and clearing the way for the affirmation of authoritarian movements Patterns of Parliamentary Government: within parliamentary government, there are 2 main patterns = majoritarian democracy and assembly democracy → both based on the relation of confidence between the parliament and the executive, but they have a different form of political system, different interactions between political actors and different outcomes in terms of institutional stability: Majoritarian pattern = English parliamentary government: the Cabinet is stable and leads the parliamentary majority (of the Commons) in an effective manner → usually connected to a 2-party system/2-coalition party system and to a majority/plurality electoral system Assembly pattern = 19th cent European parliamentary governments: supremacy of the parliaments over the executive and instability of the Cabinet, which is incapable to lead the parliamentary majority → usually connected to a multi-party/fragmented system and to a proportional representation electoral system  2-party/2- majority/plurality majoritarian coalition party electoral system pattern system proportional multi- assembly representation party/fragme electoral system nted system pattern 4.5 THE CENTRALIZED REVIEW OF LEGISLATION Constitutional review of legislation first appeared in Europe with the Austrian and Czechoslovakian Constitutions of 1920 → it came from the US (Marbury v. Madison, 1803) but it had never been accepted in Europe for many reasons: the UK didn’t need it because of the unwritten status of their constitution in countries with flexible constitutions [Italy with the Statuto Albertino] it was difficult to affirm the principle of hierarchy between constitutional and legislative levels in countries with rigid constitutions [France] there was distrust in the judicial branch/courts, and refusal to assign them power that could annul the decision of the legislative body → there were proceedings for the amendment of the constitution, but in fact the rigidity had no legal guarantee The demands for constitutional innovations came after WW1, when the constitutions shifted from flexible to rigid: the Czechoslovakian Constitutional Court could receive appeals from the highest political institutions of the nation and review even primary legislation the Austrian Constitution established a federal state and gave legislative functions to the member states (Länder), dividing competences between the Federal Government and the states with a specialized court with members from both parties that could receive appeals from the states and the Federal Government against legislation adopted without a constitutional title of competence → it could annul unconstitutional statutes The constitutional review had to be extended to all other parliamentary statutes: to do this, the Austrian Constitution was amended in 1929 and established the incidenter proceeding = the judge must ask the Constitutional Court whenever there is a question of constitutionality of a norm during a process, activating the constitutional review by the CC → the effect of the ruling of the CC is general and consists in the annulment of the unconstitutional provisions The Jurisdiction of the Centralized Constitutional Courts: the centralized review of legislation is the main system of constitutional review currently applied in the world and in almost all European countries; the constitutions regulate the composition, jurisdiction and effect of the rulings of the Constitutional Court → they usually perform many functions to guarantee the constitution, the main one is the constitutional review of legislation, which can happen through different methods: a) Incidenter appeal = a judge appeals to the CC during a case whenever he has a doubt about the constitutionality of a norm, explaining his reasons/the relevance of the norm in his case [it means the judge must apply it in the case he is solving] → it can require a long time if the norms require interpretation, to understand the intention of the legislator b) Direct appeal (existed already in the Austrian Constitution) = power of different political actors to appeal to the CC whenever they find a norm unconstitutional → it ensures the respect of competences:  i. by the government and the regions/member states = happens in countries where there is a constitutional distribution of legislative competences ii. by political minorities in the parliament = in some constitutions political minorities can challenge the constitutionality of a norm passed by the parliament iii. by the main political institutions = some constitutions allow it for specific institutions [president of the republic, president of the chamber of the parliament, etc] c) automatic control = some constitutions (for specific cases/subjects/conditions) foresee that the CC assesses the constitutionality of a norm right after it has been passed by the parliament Individual appeals by citizens are allowed in some countries as a last resort if the state is violating fundamental rights (not typical, different, special) JUDICIAL REVIEW CENTRALIZED REVIEW established in Marbury v. Madison in established in Austria and Czechoslovakia in the 20th the US (1804) cent all the courts can review the legislation a specialized court reviews the legislation Constitutional Court = outside of the judiciary branch, the courts are the ones belonging to the special political court that affirms state interests and judiciary branch [who judge on criminal resolve disputes balancing individual rights with political matters, etc.] ends distrust in the judicial branch typical of the European general trust in the judicial branch framework judges appointed with a political process [in Austria they were elected ½ by the lower House, ½ by the upper judges are the ones that normally House of the Parliament → hybrid nature], limited belong to courts through specific conditions [knowledge of law] the CC has political sensibility = they know the political consequences of the review of legislation effect related only to the specific case general effect → the CC has monopoly result = non-application of the provision result = annulment of the provision 4.6 THE WEIMAR CONSTITUTION The German Constitution of 1919 (Weimar Constitution, from the city where it was drafted) is the best example of the passage to the new democratic constitutionalism: it aimed at assuring social inclusion of the masses and organizing social pluralism; German was fragmented after WW1 and new social classes were claiming recognition of their rights (following the example of the Bolshevik Constitution in Russia made by the Communist Party) → mass political parties assumed political leadership supporting a provisional government and the Constituent Assembly The Constitution acknowledged social rights = imposed state intervention to achieve social goals and the improvement of individual/collective welfare [right to education, health, work, dignity in work relations, etc] → not rights of the liberal traditions (negative liberties of the bourgeoisie), replaced by a project of social inclusion of the masses; there was a new idea of private property (before it was a paramount liberty protected from any external interference) = it’s protected as long as it doesn’t affect public good (it can be expropriated by the state if necessary) Typologies of Constitutional Rights: The different typologies of constitutional rights can be classified based on their content a) Individual liberties (rights of 1st generation) [civil rights and economic rights] = liberties that require state abstention b) Collective liberties [of association] = liberty to act with other people for a common interest c) Political rights [to vote] = individuals’ power to take part in the community’s political decisions  d) Social rights (rights of 2nd generation) [education, welfare] = services that require an active intervention of the state e) Legal powers [right to strike] = power of individuals granted by legal protection Other rights exist [about property, credit, family, criminal procedures] but some don’t have a constitutional status, they are regulated by primary legislation [civil codes and codes of criminal procedure] and constitutions only acknowledge them with general principles The principle of equality of men was transformed from formal equality (liberal tradition) to substantive equality = law must overcome inequalities and promote equal standards of life (not only that citizens are all equal in front of the law): this approach led to the discontent of the conservative classes that supported the Empire and were against the new trends of the period (Age of Weimar = period of innovation and new trends in fashion, arts, literature, theatre, architecture, etc + of recognition of the role of women), in contradiction to the traditions of the German society → the antagonism of conservative classes destabilized the fragile roots of the young Republic The Weimar Constitution brought innovation to the frame of government, creating a mixed pattern between the parliamentary and presidential forms of government, which established a conflicting dialect between the Reichstag and the President (that acted as a check against the excesses of the Parliament and the political parties, cit. Max Weber and Hugo Preuss): the President of the Republic was elected directly by the people and he had many competences (especially in cases of emergency, art. 48) and powers o to appoint the chancellor without the need for the vote of confidence from the Reichstag o to call the people to referendum on parliamentary statutes he didn’t agree with the Reichstag (1st chamber, elected by the people) had mainly the following powers: o to replace the chancellor with a vote of censure o to promote a popular vote to adopt an early removal of the President (but if the people confirmed him, it would be automatically dissolved) With the 1st President Ebert (loyal to the new system), the frame of government worked well, but the electoral proportional system deepened the fragmentation of the political system, and political parties stopped the cooperative approach they had while drafting the Constitution → this added on to the ongoing economic and social crisis (due to the WW1 debts and war reparations for the defeat, that caused inflation, unemployment, poverty and social hatred); General Hindenburg (conservative aristocrat) won the elections in 1925: he was against the Republic and pushed the government towards its presidential dimension (by appointing chancellors loyal to him) → the Reichstag was weak and couldn’t resist The years 1925-29 were a period of economic and cultural growth thanks to the support of the strong American economy: the crisis of 1929 affected Germany more than any other country, and social conflict reached a peak → Adolf Hitler’s Nazi Party started to grow and win votes (38% in 1932, 43% in 1933), and Hitler was made chancellor → he convinced the President to take all the power from the Parliament, obtained the direct legislative power through decrees, dissolved all other political parties → the Weimar Constitution collapsed 4.7 TOWARDS THE CATASTROPHE The reason for the failure of liberal-democratic constitutions adopted between the 2 World Wars is mainly that the innovations (universal suffrage, new social rights, etc) were adopted too suddenly with respect to the features of the XIX cent society (static and conservative): the economic conditions of the masses caused the rise of social tensions, strikes and protests and were represented only by the new mass parties → the constitutions that wanted to affirm stability failed at achieving their goal In Italy the crisis of the system occurred in 1922: the Fascist party led by Benito Mussolini (former exponent of socialism, knew how to mobilize, manipulate, and control the masses + answered the claims of the conservative and anti-socialist bourgeoisie) promoted ideals of nationalism, militarism, repulsion towards liberal constitutionalism and the pluralistic party system → Mussolini was invited by the king to form a coalition Cabinet, and he began repression against the pluralistic party system with persecutions/assassinations of political opponents, adopting laws suspending constitutional rights from the Statuto Albertino In 1923 he adopted a new electoral law that established a 1-party government, and in 1924 the Fascist Party got >60% of the vote → Mussolini formed a Cabinet only of his party and started to transform the system completely: the Chamber of Deputies was substituted with the Chamber of Fasci e Corporazioni (assembly that followed the rules of corporative systems and only represented industrial /professional corporations), and in 1939 (influenced by the Nazi regime) he enacted racial laws → jurists and scholars opposed little resistance; Italian fascism was imitated in other countries, with movements that had similar positions (anticommunism, nationalism, opposition to the institutions/liberal constitutionalism, establishing their place as authoritarian regimes, restriction of the fundamental rights of the citizens): in Hungary the authoritarian admiral Horthy conquered power in 1920 in Portugal Salazar established a regime in 1932 in Spain General Francisco Franco led a military revolt and overthrew the new democratic republic in 1936 In the period end of WW1-1930s the process of democratization in the western world made huge advances [universal suffrage of males, involvement of the masses in politics, growth of mass political parties, new social rights] but it also provoked imbalances in society, creating resentment of conservative classes → the institutions of constitutionalism were pushed too hard towards transformation and most of them collapsed, leaving room for authoritarian regimes 5 CONSTITUTIONAL DEMOCRACY: THE ANGLO-AMERICAN EXPERIENCE 5.1 CONSTITUTIONAL DEMOCRACY AFTER THE 2ND WORLD WAR The UK and US didn’t go through many difficulties after WW2: their victory against Nazi-Fascism marked their military supremacy and confirmed their political/institutional model, but the rapid transformation of society + the major political shifts (centralization of powers, growth of the government and of the budget, the personalization of politics) provoked many tensions: in the US: in the 1950s-60s the Supreme Court started to enhance the protection of rights and legal equality and going against conservative legislation widespread in American society; legislative reforms quickly followed to answer the quests of the African American civil rights movement in the UK: these years mark a big transformation in the British Colonial Empire (that had expanded mostly in the Victorian Age, 1837-1901, assuring its economic leadership in the world) → before WW2 the British colonies had started to become independent from the mother country, triggering the beginning of a decolonization process o the colonies of North America = Ontario, Québec, New Brunswick and Nova Scotia (that had obtained limited forms of self-governance in 1848/1855) formed the autonomous federation of Canada in 1867 (one dominion under the name of Canada) o the Australian colonies were federated in an autonomous dominion in 1901 o New Zealand became a dominion in 1907 At the Imperial Conference in 1926, Britain and its dominions agreed that they were autonomous communities with equal status, not subordinated one to another, united by common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations (cit. Balfour declaration) → all the dominions were granted full autonomy (1931, Statute of Westminster) with a precise institutional structure:  Queen of England = Head of State National Parliament = in charge of the legislative function Every dominion has a governor general appointed by the Queen under proposal of the local Cabinet = formally in charge of the executive function Jurisdictional function distributed among the states (following the Common Law tradition) WW2 caused another change in the structure of the Commonwealth, spreading a new trend of decolonization: its biggest consequence was the independence of India in 1947 (before still part of the Empire), that entered the Commonwealth without acknowledging the Queen as Head of State → the issue was resolved at the Commonwealth prime ministers’ meeting (London, April 1949) with the London declaration → India accepted the British sovereign as a symbol of the free association of its independent member nations, and, as such, head of the Commonwealth = purely symbolic position, and became a Republic in January 1950 The London declaration marked the beginning of the modern Commonwealth of Nations: today there are 54 independent members [Canada, Australia, New Zealand, realms in the Caribbean and in the Pacific that have Queen Elizabeth II as Head of State and a governor general] and it’s organized like an international organization with different countries equal in status, that co-operate for common values and goals [promotion of democracy, human rights, good governance, rule of law, individual liberty, egalitarianism, free trade, multilateralism, world peace]; even if the English model influences deeply the others, it’s not a one-way process → legal institutions from other Commonwealth countries influence the UK as well 5.2 THE CONSTITUTIONAL ORDERS OF CANADA, AUSTRALIA AND NEW ZEALAND With the creation of the Commonwealth, English law and constitutional structures were adopted in the recent independent states → they promoted the tradition of western constitutionalism mostly because of the institutional link with the UK; Canada, Australia and New Zealand = main countries with stabilized political/constitutional systems belonging to the Commonwealth CANADA In 1867 the UK Parliament passed the British North America Act: the English Crown Colonies of North American Canada (Ontario and Québec), New Brunswick and Nova Scotia joined into a confederation and were granted the status of self-dominion within the British Empire; in 1931 there was the recognition of full autonomy with the Statute of Westminister; in 1982 the British Parliament approved the Canada Act that completed the process of emancipation from the motherland Canada Act, Art. 1, par. 1 = the supreme law of the country consists of 3 main constitutional sources: 1. The British North America Act of 1867 2. Its subsequent amendments 3. The Canadian Constitution Act (attached to the Canada Act, part B) + the Charter of Rights and Freedoms The Canada Act provided for the patriation of the Canadian Constitution: it established a domestic amending procedure (they don’t need an act of the British Parliament to amend it) → they must be enacted according to Part 5 of the Constitution Act (that provides 5 amending formulas, it requires unanimous consent of all the provinces in case of some special amendments) Despite the supremacy of the constitutional sources + the use of judicial review of legislation, there is still the English idea of parliamentary sovereignty: section 33 of the Charter of Rights and Freedoms provides for a special notwithstanding clause (clause dérogatoire) = clause that allows the Parliament to override judicial review of legislation → the federal Parliament/the provinces’ legislative assemblies can pass a law that is inconsistent with the Charter for a 5-year term (result of a compromise with the provinces afraid of the Supreme Court’s jurisprudence; only invoked in a few cases and more often in Québec) Canada adopted a parliamentary government inspired by the UK model: the Queen with her governor general and the Privy Council of the King is formally the chief executive, but in reality the prime minister (appointed by the governor, is the leader of the majority party that has the confidence of the House of Commons) holds the executive power Canada is a federal state composed of 10 provinces and 3 territories: the British influence makes it a very atypical federal system = it has a powerfully centralistic bias: The Federal Parliament has general and residual powers (in the US they are of the states) The Federal Government has the power of disallowance (it can strike provincial laws out) and to appoint provincial governors Canada lacks a Senate like the American one: the upper chamber of the Parliament isn’t elective and each province has a certain number of representatives (like in the US), but they are appointed by the prime minister and don’t have an electoral connection with they’re province There has been an expansion of provincial powers: some of the Federation’s powers have been weakened with constitutional conventions and practices, but also a co-operative federalism emerged (thanks to intergovernmental agencies that regulate areas of common interest, giving flexibility to the system); the Supreme Court (court of last resort since 1949) had a crucial role in shaping Canadian federalism: it consists of 9 justices (3 from Québec because it has Civil Law) the office of Chief of Justice is to be held in turn by an anglophone and a francophone it hears appeals of decisions from courts of appeal (provincial/territorial courts that review decisions of the lower courts) and answers constitutional questions raised by the Federal Government it assures that federal and provincial laws respect the Constitution, but it has a restrictive interpretation of the federation’s legislative competences → works in favor of provincial autonomies Québec is different from the other provinces: they speak French and have a Civil Law system → there have been many claims for independence (which raised the question: is secession via referendum constitutionally legitimate?), and the Supreme Court in 1998 ruled that unilateral secession is not lawful, it requires constitutional amending (in case of popular vote claiming independence, federal Parliament has a duty to negotiate) → since 2006 Québec is a nation within unified Canada AUSTRALIA Australia gained independence in 1901 with the Commonwealth of Australia Constitution Act (passed by the British Parliament), approved in a referendum by all the former colonies; the Australian Commonwealth has a federal framework (proclaimed in the preamble of the Constitution → indicates that the decision to join in a Federal Commonwealth under the UK is made by the population) The Act has a preamble + 9 parts (the last includes the constitutional document); the Constitution is rigid and has an amending procedure (art. 128) that strongly balances democratic and federal principles → it consists of many steps: 1. an absolute majority of both chambers of the Parliament approves the proposal 2. between 60 days and 6 months after the approval, the proposal is ratified by the majority of the people (majority of electors in each state/territory, majority of territorial entities, majority of people entitled to vote within the entire Federation) This complicated procedure insured that only a few amendments have been approved to safeguard the federal structure and its peculiar feature (combination of English legal tradition + US/Canada Federalism); for constitutional review, there is judicial review of legislation (American model) with the High Court of Australia = highest court of the country, since 1901; the system of government is inspired by the British parliamentary model: Queen of England = Head of State and formal holder of the executive power with a governor The prime minister (even if he only exists by constitutional convention, not according to the Constitution) → he has the substantive executive power (with his Cabinet), he’s the leader of the majority party in the House of Representatives (and needs their confidence to govern) There are 2 chambers that share the legislative power: o House of Representatives = elected in single-member constituencies with an alternative vote system every 3 years ▪ it has the exclusive initiative on financial bills ▪ only one that has the v