Constitutional Review PDF

QUESTIONS! 1.The Principle of Separation of Power 1. Definitions and meanings There are 3 branches which are: Legislative, Executive and Judicial power. Montesquieu (coiner of theory & term) noticed the king held all the legislative, executive and judicial power of the state. ➣ He s...

QUESTIONS! 1.The Principle of Separation of Power 1. Definitions and meanings There are 3 branches which are: Legislative, Executive and Judicial power. Montesquieu (coiner of theory & term) noticed the king held all the legislative, executive and judicial power of the state. ➣ He separated the functions the king had: making the laws, enforcement of law, interpreting and applying the law. ➣ Created total institutional separation to the bodies of government for each function: legislative, executive and judicial. ➣ Gave personal/personnel meaning: staff could not overlap between branches. From separation → division of power (implies some kind of relationship amongst them) 2. Separation of Powers and Checks and Balances in USA Three branches of government: 1.​ Legislative -​ Congress: made up of House of Representatives & Senate 2.​ Executive -​ POTUS -​ US Federal Government 3.​ Judicial -​ US Federal Courts -​ SCOTUS Checks and balances: Veto power - Legislative → Executive -​ President needs to sign off all legislation made by congress for it to be official law. -​ President can refuse to sign off on laws (veto power). -​ Congress can override the veto of the president with a super majority of ⅔ in both houses. -​ Pocket veto: congress does not congregate on holidays allowing the president to sit on a bill for more than 10 days, therefore making it invalid. Impeachment - Legislative → Executive -​ Congress can impeach the president to remove him from office under reasonable cause of committing a felony Judge Nominations - Executive → Judicial -​ President nominates justices into the supreme court -​ Needs senate approval Checking whether legislation is compiled with the constitution - Judicial → Legislative -​ Supreme court interprets and sets precedent on laws made -​ Can disagree and deem laws unconstitutional -​ Laws referred back to congress for amendment -​ Role of Vice President - Executive ↔ Legislative -​ Vice president voted alongside president -​ Vice president works in both government and head of senate (legislative) 3. Separation of Powers and Checks and Balances in uk 1.​ Legislative -​ Parliament broken into the House of Commons (lower) and the House of Lords (upper) 2.​ Executive -​ Prime Minister 3.​ Judicial -​ Supreme Court 4.​ Monarchy -​ Head of state with no executive power -​ Signs off on every piece of legislation (a formality) Checks and balances: King-In-Parliament Acts - Legislative → Crown -​ Acts of parliament must be formally approved by king (no veto power) -​ King appoints the PM and members of government Role of MPS - Legislative → Executive -​ Prime Minister elected by parliament (house of commons) -​ Members of government MUST be members of parliament Government’s power and limitations with parliament - Executive → Legislative -​ Government can dissolve the parliament -​ The government needs the parliament’s support to stay in office -​ Removed by vote of no confidence 4. Separation of Powers and Checks and Balances in France Three branches of government: 1.​ Legislative -​ Parliament: National Assembly (lower) and Senate (higher) -​ President & Prime Minister 2.​ Executive -​ Two heads of executive state: President & Prime Minister 3.​ Judicial -​ Supreme Court -​ Constitutional Council ​ Checks and Balance Relations: Powers Appointed by the People → Legislative → Executive -​ People vote for national assembly members and for the President -​ Parliament lower house, national assembly, votes for Prime Minister. Vote of No confidence - Legislative → Executive -​ The Prime Minister can be removed from office by the national assembly at any time as they grant him power and may remove it effectively. No need for explanation. -​ Parliament also goes home not including the president Dissolvement of Parliament - Executive → Legislative -​ President can dissolve parliament whenever he wants -​ Limited to once a year Appointment of members of constitutional council - Executive → Judicial -​ Chosen by the President and members of parliament 2. Parliamentary, Presidential, and Semi-Presidential models -​ Forms of State Forms of State 1.​ Population 2.​ Territory 3.​ Power 1 Addition of all leads to: Unitary States - do not disturbed power into territories. No vertical distribution of power. Regional/Decentralized - In between unitary and federal states, hold qualities of both. Federal countries - power distributed to territories, broken amongst federal and state power. Confederation - more than one state, uniting together with a certain purpose. Individual states retain individual sovereignty -​ Forms of Government 3 forms of government: -​ Parliamentary system -​ Presidential system -​ (hybrid) Semi-pres system -​ Parliamentary model. Definition and features Parliamentary System 1.​ Head of state - King or President 2.​ Head of Government - Prime Minister (directly elected by parliament) 3.​ Parliament (gives confidence to the PM, strongest institution) → Monarchy can only be found in a parliamentary system → Prime Ministers are always voted by parliament by the lower house, the legitimate body (elected directly by the people) -​ Presidential Model. Definition and Features Presidential System 1.​ Head of State & Head of Government - President with 2 heads in two branches, is the strongest institution. He is directly elected by the people and accountable to the people. 2.​ Parliament - No confidence in the president, can impeach him. Not the strongest institution, but assertive and independent from the president. → Presidential system people vote twice: for members of representatives houses (senate and house of representatives) and for executive branch (president) -​ Semi- Presidential model. Definition and Features Semi-Presidential System 1.​ Head of State - President (directly elected by the people and held accountable to them) 2.​ Head of Government - Prime Minister (elected by parliament) → Both President and Prime Minister share executive functions → Pople vote twice from executive and legislative → To avoid disagreement between both (cohabitation), they hold elections around the same time so political public opinion does not shift from both elections. 3. Legislative Power -​ Direct and indirect Democracy. Mechanisms of Direct Democracy Two types of democracy: direct/ pure democracy, indirect / representative democracy Direct Democracy: political system that allows the people to decide on every political matter directly Indirect Democracy: political system where people vote for representatives who decide political matters on behalf of the people. → Direct democracy cannot be seen in a modern day government, typically only in small municipalities such as small towns. Indirect democracy utilizes tools from direct democracy: -​ Referendum (require a bill and binary answer) -​ Popular Initiative (petitions, started by the people up) -​ Plebiscite (referendum without binding bill, more for public opinion) -​ Recall (citizens can directly remove a civil officer) -​ Functions of parliaments Functions of legislative branch -​ Making law (not the only law or rule maker) -​ Executive budget (disturbing national wealth) -​ Controlling other branches / checks and balances (electing prime minister, removing prime minister, overturning vetos) -​ Structure of Parliaments. Unicameral and Bicameral. Unicameral: One house which comprises parliament Bicameral: Two house system, two chambers -​ Lower chamber → People’s chamber → democratic chamber -​ Upper Chamber → Territorial chamber (usually) -​ Elements of the electoral system: Constituency, Ballot, and Electoral system Election system -​ Constituency (electoral district) a group of voters in a specified area who elect a representative to a legislative body -​ Ballot ( can both open list or closed party list) -​ Open list -​ Closed / Party List -​ Electoral system - Mathematical formula which translates millions of votes in a region to seats in the parliament -​ Election system of Parliaments. Majoritarian V Proportiional system -​ Majoritarian system. Definition, features, Pros & Cons and examples. Majoritarian system -​ (winning party holds the constituency and seats in parliament) - winner takes all -​ # of candidates who go to the parliament count as constituencies -​ Sometimes the minority vote can win overall -​ Tends to gear towards a two party system -​ Spoiler effect (3rd party running stealing votes from most similar party and guaranteeing win for the opposite party) -​ Gerry meandering -​ DESPITE THIS Stable Government -​ Proportional system. Definition, features, Pros & Cons and examples. Proportional system -​ Percentage of votes a candidate wins is translated to the percentage of seats of parliament -​ “More just” more proportional representation -​ Voting for a closed political party list -​ Electoral threshold (minimum percentage of votes) -​ Easier for vote of no confidence as PM does not win with a majority  -​ Legislative process: Initiative, legislation amendment, and veto 4 Powers the legislative possesses → Initiative power (who can start a bill amendment) Who? -​ Both houses (bicameral system) -​ People’s initiative -​ President/ Prime Minister / Executive -​ States & Regions → Amend Bills Who? -​ Only both houses of parliament -​ No executive → Veto Power -​ Both houses of parliament (sometimes one holds more than the other) -​ Presidents ONLY not prime ministers → Approval -​ Legislative body If both houses hold initiative, amending and veto power it is called a perfect bicameral system If only only holds more power than the other (typically the lower house) -​ Parliaments in the US Legislative branch consists of Congress (house of representatives & senate) House of Representatives is made up of 435 representatives -​ Voted every 2 years -​ Through a majoritarian system -​ States divided in districts and each allotted to one representative -​ Number of districts proportional to population -​ Elections held near midpoint of presidency Senate made up of 100 senators -​ Serve 6 year terms -​ Terms are staggered so ⅓ of the senate is voted for every 2 years -​ Voting for some states opens every 2 years which refreshes senate Both houses hold initiative, amending and veto power over each other (must be in accordance) Only house of representatives can introduce tax bills -​ Parliaments in the uk -​ House of Commons (Lower house) with 650 members -​ Elected by the people through a majoritarian system -​ 5 year terms which is not explicitly stated but by a convention  -​ House of Lords (Upper house) with 804 members -​ Represents the aristocracy & religious elite -​ Lords spiritual: religious members elected by the king -​ Lords temporal: nobility men split into two categories: →Elected by house of commons for life seating: life peers →Hereditary Peers with family rights to a seat (most of the house) →Perfect Bicameralism: Designed that way but is no longer, lower house has more power →Same number of citizens in each constituency as of 2023, making the system more fair → House of Commons can pass bills without lord’s approval → Upper house cannot be dissolved -​ Parliaments in Germany Federal Diet (Bundestag) with 598 members elected every 4 years -​ Voted through mixed system with 2 votes (1st vote majoritarian, 2nd vote proportional with 5% electoral mandate) -​ 299 constituencies because of the majoritarian vote -​ Candidates in first vote can run independently from a party nomination -​ Overhang seats (seats taken from proportional representation to 1st vote) -​ Re-balance seats → extra seats given to other parties due to extra seats to balance percentage allotment Federal Council (Bundesrat) NO election periods -​ Made up of 69 members with no dissolution -​ Ministers and Premiers → Lander representatives divided proportionally on population -​ Vote in blocks (within their lander all representatives must agree) (Not a perfect or symmetrical bicameralism) -​ Parliaments in France -​ National Assembly (Lower house) with 577 deputies elected every 5 years -​ by majoritarian voting system with 2 rounds of voting -​ First round for the candidate, the candidate needs an absolute majority of all cast votes. Approximately 25% of all registered votes (accounts for people who didn’t vote) in the constituency. -​ Second round all candidates that obtained ⅛ of all registered votes enter. Candidate that gets the relative majority wins. -​ If only one candidate makes the cut, the second runner up still proceeds. If no one makes the ⅛ cut, the strongest 2 candidates proceed. If there is a tie, the oldest candidate wins. -​ Senate (Upper house) with 348 seats -​ Senate represents authorities of mainland France and overseas territories and citizens abroad -​ Elected by a group of electors (comprised of councilors and mayors, regional representatives) not by the people -​ Parliaments in Spain (Cortes Generales)  -​ Congress of Deputies (Congreso de los Diputados) -​ 350 deputies elected every four years -​ 50 constitutiones under proportional voting (D’Hont) -​ Senate (Senado) 266 members every four years under a majoratrian vote -​ which represents the territories of spain -​ Two kinds of senators: autonomous and province -​ Province senators voted in each province, number dependent on province NOT population (208 total) -​ Autonomous senators (57) are voted for by autonomous legislature from each province correlated with population size →Both houses can veto each other’s bills →If senate vetos the congreso bills, it goes back to the congreso. Congress can either overturn veto by absolute majority, or wait 2 months and overturn by relative majority. →Imperfect bicameralism system 4. Executive Power 1.​ Origin and evolutions of the government (historically) 2.​ Executive power in the US 1.​ President (POTUS) -​ Elected every 4 year term with one renewal of presidency -​ Electoral college (538 electors) #House of Reps + #Senate + 3 WDC -​ Each state House of representatives + 2 senators = number of votes -​ Powers include executive branch, and federal agencies -​ Appoints the cabinet of secretaries (fixed number 15) with no rule making power 2.​ Vice President -​ Continues term if president is unable to 3.​ Executive power in the UK 1. Head of State -​ King with only ceremonial functions and No executive power -​ “His Majesty’s Government” popular party -​ “His Majesty’s Opposition” opposing party 2. Head of Government -​ Prime Minister elected every 5 years -​ Leader of most popular party in the commons -​ Must appoint his ministers of parliament 4.​ Executive power in Germany 1. Head of State -​ Federal President elected every 5 years -​ Committee “AD HOC” to appoint the president → members of bundestag and same number of Lander’s delegates (typically famous people) -​ Nominated candidates are typically former presidents -​ First round absolute majority where candidate wins, then second round by absolute if they fail first round, and if not in the second then third round by relative majority -​ Functions include: diplomatic representative, nominates formally the chancellor (PM), no veto power however can refuse to sign a bill which he thinks may violate basic law, can declare emergency, -​ President has choice to dissolve parliament and do new elections or accept 2. Head of Government -​ Chancellor elected every four years: has no veto power but can refer bills to constitutional court however can refuse to sign a bill -​ President approve the prime minister (which needs absolute majority) there is a second round which wins with relative majority. President can call for new election -​ When chancellor calls for early elections (where he can step down before end of term and dissolves parliament), the president can force him to stay in office -​ Bundesregierung - executive government 5.​ Executive power in France 1. Head of State (President) -​ Elected every 5 years and once renewable -​ First round of elections with absolute majority by the people, if there's no majority there is a second round with relative majority with the two strongest candidates -​ Functions: All the formal functions (diplomatic, representing the country internally and externally, signing national and foreign bills), and no veto power but can refer bills to constitutional council -​ executive functions → presides over the executive administration, administrative purpose with weekly meeting of the council of ministers, introduce bills to parliament, 2. Head of Government (Prime Minister) -​ Head of government and elected every 5 years -​ Cohabitation with two heads of government: 1986, 1993, and 1997 heavy disagreements from different parties → leads to elections for prime minister and president held within the same month 6.​ Executive power in Spain 1. Head of State -​ King and monarchy -​ Symbolic position of power and Rrpresents spain foreignly  2. Head of Government -​ Prime Minister called the Presidente -​ Elected by the congress (lower house) with an absolute majority vote and second round is relative with cool off period -​ President can be removed by the parliament through the vote of no confidence -​ No fixed term Rule of no confidence: → motion of censure (the general one initiated by the parliament) and must offer a new candidate instead (makes the motion constructive) → question of confidence (initiated by the prime minister) typically before implementing a big decision, and if voted against they must leave the parliament 5. Vertical Distribution of Power 1.​ Horizontal and vertical distribution of power Horizontal goes from legislative -> executive -> judicial 1st level of vertical distribution → Federation (Federal) (L, E, J) 2nd level of vertical distribution → State level (Regional) (L, E) 3rd level of vertical distribution → Local level (mainly executive) (E,) 2.​ Forms of state Forms of State 4.​ Population 5.​ Territory 6.​ Power 1 Addition of all leads to: Unitary States - do not disturbed power into territories. No vertical distribution of power. Regional/Decentralized - In between unitary and federal states, hold qualities of both. Federal countries - power distributed to territories, broken amongst federal and state power. Confederation - more than one state, uniting together with a certain purpose. Individual states retain individual sovereignty 3.​ Unitary state features Unitary countries (only has a horizontal distribution of power and are centralized) Features of unitary countries -​ Devolution: (delegate power down in unitary) giving political power to second level powers, some amount of political power granted by the central power  -​ All regions are under central government control 4.​ Federal state features Federal countries: (distributed of vertical power) -​ Recognized in the constitution -​ States have autonomy and their own legislative, executive -​ Constitutional normally imposes a minimum standard of equality amongst the states with regards to the federal government -​ Prevalence clause where federal laws preside over state laws -​ Disagreements regulated by the supreme court or constitutional court -​ States have participation in the federal level -​ Typically more subject to conflict: positive conflicts (want to be competent and require more power) or negative conflicts (no one wants takes action or competence and fight over who should be) 5.​ Types of federal states → integrative v. devolutionary → symmetrical v. asymmetrical -​ Integrative Federalism: a unification of separate territories into one country -​ Devolutionary Federalism: a unified state but slowly diverging because of diversity division between regions -​ Symmetrical Federalism: Same type and number of competences: criminal, education and housing laws etc. -​ Asymmetrical Federalism: Some regions hold more power and competences than others 6. Rights and Liberties 1.​ Historical evolution of rights and liberties Historical evolution → International Level 1.​ Magna Carta 1215 2.​ Golden Bull 1222 3.​ Virginia Declaration of Rights 1776 -​ Included both civil and political rights which was copied by the french 4.​ French Declaration of the Rights of Man and of the Citizen 1789 5.​ UDHR 1948 -​ UN declaration of human rights (not legally binding but holds power in diplomatic relationships) -​ Signed in paris following the second world war 6.​ ECHR 1950  -​ European convention of human rights 2.​ Right and liberties in the national constitutions -​ France → All Constitutions -​ UK → 1215 Magna Carta, 1687 Bill of Rights, 1998 HR Act -​ US → 1-X Amendments -​ Germany → Arts. 1-18 Basic Law -​ Spain → Arts. 14-29 SC 3.​ Levels of protection of rights -​ International/Global -​ UDHR not legally binding -​ Regional -​ American Declaration, ECHR, etc -​ To some extent are legally binding to the states -National - Recognized in the national or federal constitution -State -​ State constitution -​ AC statutes 4.​ Ground of rights: human dignity Most important fundamental right is human dignity → where an individual is worthy of respect 5.​ Functions/dimensions of rights -​ Positive → mandate: askes the government (education, public health, subsidy if loss of job) -​ Negative → shield: typically rights against the government (ex. First amendment) Some rights can be both positive and negative such as private property 6.​ First generation of rights First generation of rights (associated with blue) Civil and political rights -Negative rights: shield against government power -Right to: property, life, religion, vote, due process -Virginia declaration of rights / french declaration 7.​ Second generation of rights Second generation of rights (associated with red) Social rights -Positive rights: mandate for the government power -Right to: housing, jobs, public healthcare, public education, subsidies -‘Social state’ -After WW2 -The more socialist a government is the more social policies will be implemented (sometimes legally binding) 8.​ Third generation of rights Third Generation of rights (associated with green) New generation → Collective rights -Positive rights: a mandate for the government power -Right to: animal protection, environmental protection, minorities and ethnic groups protection, gender equality -21st century -Non-binding and subject to debate 9.​ Equality and Equity Equality -​ Classic notion - justice -​ Judgement of equality (what is fair) → 2 subjects / individuals → Tertium comparationis Equity -​ Affirmative action -​ Positive discrimination -​ Minorities -​ Majorities?? 7. Constitutional Adjudication 1.​ Definition and origin (Protection of the constitution against unconstitutional law) -​ So the constitution could not be abused against and  2.​ Diffuse Model Diffuse model of constitutional review → Applied in the US and some latin american countries -​ More than one court protecting the constitution when they are deciding cases -​ Any judge can perform this function of protection -​ Supreme court deems new law unconstitutional (against constitution) and goes to the congress to amend the law -​ OR supreme court can deem a constitutional mandate unconstitutional and go to the constitutional power to amend the constitution -​ Can we call an institution that is not voted in by the people to mandate the legislative? Ongoing debate ^ 3.​ Centralized Model Centralized Model of constitutional review Mainly civil law countries → constitutional court AD HOC made to protect the constitution -​ Comprised of Centralized control -​ The Constitutional court can make a bill ‘null or void’ which means it no longer exists. Contrast to common law where the bill is unused and amended -​ One institution to protect and judges hold no role -​ Ex Nunc → meaning the void effects are effective immediately from this date however previous rulings still stand (more common) -​ Ex Tunc → (also called retroactivity) meaning the void effects are applied and to all previous cases to be overturned