summary constitutional law

7/25/2019 Summary Constitutional Law

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Chapter 1

- Narrow meaning of a constitution: a central written document that sets out the

basic rules that apply to socio-political entities such as states.

- Broad meaning of a constitution: a constitution comprises the entire body of

fundamental rules that govern that socio-political entity, be they contained in a central

document or in many documents, be they written down or be they customary rules.

- Rigid amendment procedures: super-majorities in parliament, two parliamentary

readings, new elections in between readings, ratification in the states sub-unites,

referendum.

- Externally sovereignty: if a state can exercise control over its population and

territory without interference from outside

- Internal sovereignty: the original source of public authority within a state, the

source from which all secondary public authority is derived.- Popular sovereignty: all public power is derived from the will of the people and is

exercised through public bodies that are set up by a constitution.

- Absolutism: the idea that royal power cannot be limited, even if the monarch

himself decides to enact a constitution.

- Constitutionalism: the idea that public power, even the power of a monarch,

derives from a constitution, and not from divine or royal sovereignty.

- Constitutional monarchy: a system whereby the office of a monarch is set up, and

constrained, by a constitution. (In UK: Parliament is sovereign, in NL: no one knows)

-Functional separation of powers: legislative, executive and judicial powers

- Institutional separation of powers: the three functions should be allocated with

different organs.

- Personal separation of powers: these organs should be staffed by different

people.

- Checks and balances: to ensure that no single branch accumulates too much

power for itself: executive can veto bills, executive accountable to parliament, judges

check whether legislation stays within the limits of the power attributed to it by the

Constitution, statutes have to pass two chambers of Parliament.

- Democracies:

-Representative or indirect democracy: people determine with regular intervals

the composition of the public bodies that act on their behalf

-Direct democracy: Whereby the people make political choices themselves, such

as in a referendum

-Deliberative democracy: Majority decides for the entire people, but decisions are

brought about via open public discussions where everyone, also minorities, can

participate in.

-Associative democracy: citizens organize themselves in interest groups andbring about decisions in civil self-governance


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Chapter 2

- Functions of a central constitutional document

-Constitute: to establish, a socio-political order. Attributing powers to organs of

public authority and regulating relations between these organs.

- Reasons: US, closer unification.

-Germany: reestablishment in 1949 of republican democratic statehood.

- France: far-reaching institutional overhaul in the late 1950s

- Dutch case: establishment (1814/1815) of a unitary and independent Kingdom after

two decades of French domination

US

- 1776: 13 colonies declared their independence from the British empire

- 1781: formation of a union, governed by the Articles of Confederation.

- 1789: US constitution in force (reason: risen economic and military pressure)

Germany

- 1949 BGB

- 1871 Foundation of the German Empire (based on a treaty)

-Hereditary monarchy tied in personal union to the dynasty of Prussia

-Government headed by a chancellor who was accountable to the emperor

-Representation of the governments of the constituent States at a national level

-Parliament which possessed budgetary powers

-1919 Weimar Republic: Directly elected president as head of state, government

headed by a chancellor that was accountable to the president. However: too many small

political parties, instable succession of governments that were voted out of office,

economic crisis.

- 1933 National Socialists take over, Germany as a dictatorship.

- 1945 Germany split up

-German Democratic Republic: unitary state, constitution, unicameral (Peoples

Chamber), socialist one party regime

-Federal Republic of Germany: no constitution, Grundgesetz (Basic Law)

-1990 GDR acceded to the area of application of the Basic Law (Article 23)

-By Article 146, the adoption of a proper Verfassung instead of the placeholder

Basic Law

- Federal president elected by an electoral college, promulgation of statues,

dissolution of the Bundestag and largely ceremonial tasks.

- Bundestag and Bundesrat must both agree to pass federal statutes. Bundestag can

overrule the Bundesrat unless the constitution provides otherwise.

- To change the constitution both two-third majorities are needed in Bundestag and

rat.

The UK


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- 16th century Wales tied to England

- 1707 Scotland and England united

- 1800 Ireland and England united

- 1922 Ireland gains independence

- UK: constitutional or parliamentary monarchy, the King is the head of state with

limited powers, unitary, however there is devolution.

- Parliament is national legislator

-Directly elected House of Commons, right to initiative, amendment, rejection.

Commons often has more power and can sometimes overwrite the Lords.

-Unelected House of Lords, right to initiative, amendment, rejection

- UK constitution: statutes, case-law and constitutional conventions (unwritten

customs that are not judicially enforceable but still universally observed as being

authoritative)

- Courts should apply statues not to question the validity.

- Parliament is sovereign

- Judges may declare a human-rights violation but must nevertheless apply the

statute, and it is up to Parliament whether or not to change the statute in question.

- Judges must set aside conflicting national statues when EC law has to be applied,

Parliament itself voluntarily decided to join the EC by virtue of the European Communities

Act 1972, and the European doctrines of direct effect and supremacy had by then been

long established as part of EC law.

France- 1789 Third estate (citizenry) proclaimed itself a single National Assembly,

constitutional monachy - Declaration of the rights of men and citizen

- 1792 king decapitation: proclamation of the first republic

- 1793 New constitution

- 1795 New constitution (more conservative)

- 1804 Napoleon crowns himself emperor (New constitution: Code civil)

- 1814 Bourbon monarchy

- 1830 Orleanist July Monarchy

-1848 Revolution: Second Republic

- 1852 Second Empire of Napoleon III

- 1870 Collapse during Franco-Prussian War, proclamation Third Republic

- 1940 German invasion, end of the Third Republic

- 1946 Fourth Republic (Charles de Gaulle removes collaborationist regime in Vichy)

- 1958 New constitution, Charles de Gaulle becomes first Prime-Minister)

- Unitary state with limited decentralization

- Bicameral parliament:

-

National Assembly: directly elected lower chamber.-Senate: upper chamber elected by a body of electors


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- Semipresidential democracy: President is the head of state, exercises leading

executive functions, he appoints the prime-minister as head of the government in a

stricter sense. The president is directly elected and is not accountable to parliament in

the sense of a confidence rule,the prime-minister is accountable and can be voted out of

office by the National Assembly

Chapter 3

- Features of federal systems:

-The presence of smaller territorial entities within the territory of the state

-Supremacy of federal law over sub-national law

-A very strict separation of mutually exclusive competences

-Regulatory powers and separate institutions for the smaller territorial entities that

are autonomous with respect to the central authority

-The representation of the smaller territorial entities at the central level, typically in

an upper chamber of a bicameral parliament

-A clear codification of the entities autonomous regulatory powers and their central-

level representation in a written constitution.

-The participation of the smaller territorial entities in the process when the

constitution is changed

-The presence of an independent arbiter, typically a constitutional court, in case a

competence conflict arises between the centre and the smaller territorial entities.

-Unitary state: provinces receive their powers from the centre (instead directly from

the constitution. In federal states cannot change the position of constituent territories

without involving these territories themselves.

- Asymmetrical federalism: some sub-unites have more powers and autonomy than

others.

- Devolution: the central government gives powers to territorial sub-unites. However;

developed powers can be taken back at any time and, in the UK, neither country is as

such represented in the national capital.

The US

- Congress: bicameral. Lower chamber: the House of Representatives, represents

the people of the US as a whole. Upper house: the Senate, two senators a state.

-Senate consent needed for federal legislation, cannot be overruled by HoR

-Senate gives approval for concluding international treaties

-Senate tries impeachment

-Thus, states have a crucial role in federal lawmaking

- Residuary legislative powers: The constituent states receive all powers that are

not prohibited or delegated to the federal level by the constitution.-Exception:Commerce clause: Congress may regulate commerce with foreign

nations, among several states, Indian tribes.


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-Heart of Atlanta Motel Inc. v. United States (ban on discrimination legal)

-United States v. Lopez (Gun-Free School Zones - too far fetched)

-Exception:Necessary and proper clause: All laws which are necessary and

proper for the execution of the foregoing powers, and all other powers vested by

this Constitution in the government of the US or any department or officer thereof.

-The President and vise-President are elected by electors from the States.

-Each states gets as many electors as they have in the Senate (always two) plus

the number of seats in House of Representatives (at least one).

- Each State has its own court system. Supreme court established by the

Constitution, lower courts are established by federal statute. These courts arent

hierarchical but parallel from each other, each within its own jurisdiction.

- Judges are nominated by the President and Senate

- Constitutional review: Judges can declare Senates legislation unconstitutional.

-

Germany

- 16 Lnder with their own constitution, unicameral government, headed by State

prime-ministers who are accountable to their State parliament. State courts are integrated

into a nation-wide judiciary.

- Exclusive federal competences:Only the federal lawmaker can legislate (Foreign

relations, citizenship and air traffic).

- Concurrent legislation:The States can legislate only when and in as far as the

federal lawmaker has not legislated already. (Public welfare, competition law and roadtraffic).

- Framework legislation:The federal lawmaker can set certain guidelines and

norms while the States remain competent to fill in the details. (Universities and

environment).

- In Germany the federal courts are above the State courts. State courts have to

apply both State and federal law.

The UK

Chapter 3 missing

France

Chapter 3 missing

The Netherlands

Chapter 3 missing

Chapter 4

- Single-member constituency system: the territory is divided into districts and

each district elects one member to parliament (US, UK, ~France)


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- Proportional representation: A partys share of seats roughly reflects its share of

the vote (The Netherlands)

- Mixed-member systems: combination of proportional representation and single-

member constituency systems (Germany)

- Coalition-building can lead to a dilution of voter preferences.

-Quorum: The minimum number of members that have to be present at the vote for

it to be valid.

- Absolute majority: The majority of the members of the parliament rather than a

majority of votes cast. (e.g. 51 votes when the parliament consists of 100 seats)

- Bicameralism: The feature whereby a parliament is not a single assembly but

comprises two assemblies next to each others.

- Second chamber may reflect a stats federal character. (Often functions as a

counterweight to the first chamber)

-

Several rights of chambers of parliament: initiative, amendment, veto, censure

The US

- House of Representatives: Fixed amount of seats (435), distribution based on

proportionality (minimum of 1 seat per state), state-wide elections prohibited, instead

constituencies are used, gerrymandering, to win a district plurality of votes is needed you

get the entire district.

- Senate: Fixed amount of seats a state (2, total of 100), senators elected by the

population of their states, one third of the senate is re-elected once every two years:

gradual change.- Both chambers have the right to initiate (exception: tax bills only for the House)

- Bills must be approved by both chambers (both have absolute veto).

- Both chambers have the right to amendment to proposed bills.

- President can also veto bills made by Congress (both chambers together)

- Congress can overrule the veto by voting with a two-thrids majority of members

present.

- President can neither sign nor veto: pocket veto; the bill becomes a law after ten

days. A pocket veto can stop the bill if Congress has adjourned within ten working days

after its adoption.

-

France

- Bicameral:

-National Assembly, lower chamber, elected directly, 577 seats, Departements are

divided into territorial unites which are worth one parliamentarian. Use of Run-off

voting

-Senate: change: offices from 9 to 6 years. Half is re-elected once every threeyears. Upper chamber. Represents the French territorial subdivisions as well as

French citizens living abroad.


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Philosophers

Rousseau (source Wikipedia)

- Uncorrupted state of nature (However, men are good only in a negative sence,

insofar as they are self-sufficient and thus not subject to the vices of political society. In

fact, Rousseaus natural man is virtually identical to a solitary chimpanzee or other ape.)

- Primitive condition without law or morality, which left human beings for the benefits

and necessity of cooperation.

- Amour de soi, positive self-love, representinmg the desire for self-preservation and

the human power of reason

- Amour-propre is artificial and encourages man to compare himself to others,

creating unwarranted fear and allowing men to take pleasure in the pain or weakness of

others.

- The passage from the state of nature to the civil state produces a very remarkable

change in man, by substituting justice for instinct in his conduct and giving his actions the

morality they had formerly lacked. Man listen to his reason before listening to his

inclinations. Although, in this state, he deprives himself of some advantages which he got

from nature, he gets in return ennobled feelings, stimulated abilities, extended ideas,

uplifted soul. The stupid and unimaginative animal is made into an intelligent being and a

man.

- 1762The Social Contractone of the most influential works of political philosophy.

The people go into a contract with the state, abandoning their claims of natural right. Thesubmission to the authority of the general will of the people as a whole guarantees

individuals against being subordinated to the wills of others and also ensures that they

obey themselves because they are, collectively, the authors of the law.

- France could not meet Rousseaus criterion for an ideal state because it was too

big, his ideal government was that of the city state, of which Geneva, was a model.

- General will (volont gnrale) already established by Diderot and Montesquieu

(although Rousseau got famous for it as well). The common interest embodied in legal

tradition was transcending peoples private and particular interest at any particular time.

Pouvoir constituant (translation from German wikipedia)

- According to this democratic legality principle, the people as a sovereign have the

constituant power, the pouvoir constituant, the people create (gibt) and support the

constitution. The constitution constitutes the power of the government, the pouvoir

constitu.

- The people as pouvoir constituant create (gibt sich) a constitution. Consequently

first there comes into existance a pouvoir constitu, the drawed up state power. This

[state power] does not exists outside the constitution and is unconditionally bound by it[the constitution]. A competence for constitutional amendment has the government only

a far as it has been given explicit authority by the people.


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- The pouvoir constituant not only transcends the state (and the Constitution), but

also predates them and it lies with the people as they are the sovereign.

- With the pouvoir constitu is meant the bodies and instances that have been put

into place by the pouvoir constituant at the creation of the constitution. In [freiheitlich]

democratic constitutional states, the constituent powers goal is to limit the powers of the

constitutional state by principle of the separation of powers, dividing the state into

legislative, executive and judicial powers.

- Conclusion: pouvoir constituant is the people, pouvoir constitu is the state power /

power of the government.

- Although the pouvoir constituant, thus the people as a whole, are outside the legal

order. People as individuals are in the legal order, thus, bound by the constitution.

Head of stateis the generic term for the individual or collective office that serves as the

chief public representative of amonarchy,republic,federation,commonwealthor other

kind ofstate. His or her role generally includes personifying the continuity and legitimacy of

the state and exercising the political powers, functions and duties granted to the head of

state in the country'sconstitutionand laws. Innation statesthe head of state is often

thought of as the official "leader" of the nation.

- The head of state should embody "the spirit of the nation

- Exercising political powers, functions and duties

-Personifying the continuity and legitimacy of the state-thenon-executivehead of state system, in which the head of state does not hold

any executive power and mainly plays a symbolic role on behalf of the state;

-theparliamentary system, in which the head of state possesses executive power

but the exercise of this power is done on the advice of a cabinet;

-thepresidential system, in which the head of state is also thehead of government

and actively exercises executive power; and

-thesemi-presidential system, in which the head of state shares exercise with a

head of government.

-

Head of governmentis the chief officer of theexecutivebranch of agovernment, often

presiding over acabinet. In aparliamentary system, the head of government is often styled

Prime Minister,President of the Government,Premier, etc. Inpresidentialrepublicsor

monarchies, the head of government may be the same person as thehead of state, who is

often called respectively apresidentor amonarch.

Insemi-presidential systems, the Head of Government may answer to both the Head of

State and the legislative power (such as parliament).-

- France: Head of State = President & Head of Government = Prime minister
http://en.wikipedia.org/wiki/Monarchyhttp://en.wikipedia.org/wiki/Republichttp://en.wikipedia.org/wiki/Federationhttp://en.wikipedia.org/wiki/Commonwealthhttp://en.wikipedia.org/wiki/Commonwealthhttp://en.wikipedia.org/wiki/Sovereign_statehttp://en.wikipedia.org/wiki/Constitutionhttp://en.wikipedia.org/wiki/Nation_stateshttp://en.wikipedia.org/wiki/Parliamentary_systemhttp://en.wikipedia.org/wiki/Presidential_systemhttp://en.wikipedia.org/wiki/Head_of_governmenthttp://en.wikipedia.org/wiki/Semi-presidential_systemhttp://en.wikipedia.org/wiki/Executive_(government)http://en.wikipedia.org/wiki/Governmenthttp://en.wikipedia.org/wiki/Cabinet_(government)http://en.wikipedia.org/wiki/Parliamentary_systemhttp://en.wikipedia.org/wiki/Prime_Ministerhttp://en.wikipedia.org/wiki/President_of_the_Governmenthttp://en.wikipedia.org/wiki/Premierhttp://en.wikipedia.org/wiki/Presidential_systemshttp://en.wikipedia.org/wiki/Republichttp://en.wikipedia.org/wiki/Republichttp://en.wikipedia.org/wiki/Monarchieshttp://en.wikipedia.org/wiki/Head_of_statehttp://en.wikipedia.org/wiki/Presidenthttp://en.wikipedia.org/wiki/Monarchhttp://en.wikipedia.org/wiki/Semi-presidential_systemhttp://en.wikipedia.org/wiki/Republichttp://en.wikipedia.org/wiki/Federationhttp://en.wikipedia.org/wiki/Commonwealthhttp://en.wikipedia.org/wiki/Sovereign_statehttp://en.wikipedia.org/wiki/Constitutionhttp://en.wikipedia.org/wiki/Nation_stateshttp://en.wikipedia.org/wiki/Parliamentary_systemhttp://en.wikipedia.org/wiki/Presidential_systemhttp://en.wikipedia.org/wiki/Head_of_governmenthttp://en.wikipedia.org/wiki/Semi-presidential_systemhttp://en.wikipedia.org/wiki/Executive_(government)http://en.wikipedia.org/wiki/Governmenthttp://en.wikipedia.org/wiki/Cabinet_(government)http://en.wikipedia.org/wiki/Parliamentary_systemhttp://en.wikipedia.org/wiki/Prime_Ministerhttp://en.wikipedia.org/wiki/President_of_the_Governmenthttp://en.wikipedia.org/wiki/Premierhttp://en.wikipedia.org/wiki/Presidential_systemshttp://en.wikipedia.org/wiki/Republichttp://en.wikipedia.org/wiki/Monarchieshttp://en.wikipedia.org/wiki/Head_of_statehttp://en.wikipedia.org/wiki/Presidenthttp://en.wikipedia.org/wiki/Monarchhttp://en.wikipedia.org/wiki/Semi-presidential_systemhttp://en.wikipedia.org/wiki/Monarchy


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- The United Kingdom: Head of State = Monarch & Head of Government = Prime

minister

- The United States: President is both

- Germany: Head of Government = Chancellor & Head of State = President

- The Netherlands: Head of State = Queen.

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