Summary Constitutional law
Construction of the course
Lecture 2-3 – Vertical separation of power
Lecture 4-5 – Horizontal separation of power
Lecture 6 – Law of democracy and the electoral systems
Lecture 7-8 – Judicial review
Lectures – Guest lectures
Lecture 9-10 Fundamental rights
Lecture 11-12-13-14 – Global constitutionalism
Lecture 1 – Introduction
What are we going to do?
- Institutions and how they function?
- Rights people have in certain countries (state/government related)
- First take a look at examples of what is happening in the world
o Spain, independence of Catalonia, autonomous regions
o High School Shootings, gun control, Trump
Constitution – Founding (written) document (why founding? Containing ground rules)
What else is special?
- Ground rules: structure of the state
- Black letter law
- Supreme law? (Meaning it is the highest law in a legal order, something in conflict with it
would have to be non-binding) – convention
- England (not the single written document) – do have norms however
o Could be in case law or statutes (for example sovereignty)
o Some parts are however written down
- US (does have a single written document) however they can be based on customary rules for
example have judges deem laws unconstitutional, which is not explicitly stated in the
constitution.
Most common description of a constitution is a written document containing supreme laws:
depending on your constitutional system
o Broad sense: encompasses more than just a document (rules, principles and part of it
in a broad sense)
§ This could be the entire body of fundamental rules, even for example
customary laws
o Narrow sense: is what is exactly written down in the single document
§ This could also be called basic laws or a charter
How do you draft a constitution? Who are the constitution makers? In the case of the US this was
just a small group of people behind closed doors, however these days this is done more
representatively. Iceland is a great example, here the entire population was allowed to send ideas
and input for constitutional provisions. Nowadays, having a representative constituent assembly
does this.
There is also the difference in the establishment of a constitution. It could be a start of a society as
was done in France. So this is called a revolutionary constitution. However, it could also gradually
alter over time. Then we refer to it as an evolutionary constitution. An example of this is the UK,
,since it has over time seen the new changes as the appointment of a prime minister as leader of
cabinet and the devolution of power to Scotland. The Netherlands and the European Union are also
examples of the evolutionary alterations. An important aspect of this is the preamble. These are
often forward and backward looking (SA and Ireland) and do try to incorporate as many people as
possible to give equal priorities.
So what does a constitution do?
- Attributes power to authorities
- Regulates the relationship between public authorities
- Regulates between the public authorities and the individual
This can be divided into two sections: the first two are institutional rules and fundamental rights are
the last one. Constitutionalism is thus the term for a limited government, where the exercise of
power is limited by the constitution and the rule of law. This interest is constitutionalism shifted from
an interest in specific topics (influence of WW2) to general themes. There is also the example of
abusive constitutionalism in which a political leader amends the constitutions merely for its own
power benefits; an example could be Hitler in the Second World War.
Constitutionalism, of course, is the process by which a country enshrines fundamental political,
economic, and civil rights into a written document enforced by an independent, counter-majoritarian
judiciary.
So a country could have a constitution however this does not have to mean that they are a liberal
democracy. This would mean that a country engaged in liberal constitutionalism, which is not always
the case.
In the Western sense we could say constitutions are there for 3 reasons:
1. To set up and maintain an effective state
2. To establish and respect democracy
3. And to abide by the rule of law
4. Could be to set up a national unity
5. Could be a symbol to a newly set up state
Sham constitutions we see in countries that do have a laid out constitutional framework. However, in
practice we see something totally different happening. These are mostly dictatorships such as North
Korea.
Rule of law and rechtstaat as a paradigm (ideal)
- Separation of powers
- Legality:
o Is there a law that says you can do something, there has to be a legal rule at the basis
of everything
- Fundamental rights
o There need to be limitations to what the government can do
- Judicial control
o This is the act of lifting the judiciary in the separation of powers in order to check the
constitutional sense of things enacted by the parliament
- Democracy
Why do we have comparative constitutional law?
1. To appreciate and understand our own system by looking at the other systems.
2. It can help in constitutional engineering and building, this could be for a reform
3. It is crucial for the creation and development of international organizations
, a. For example the EU: TEU, TFEU
However this is criticized by saying that constitutions can’t be compared since there are different
cultures, self-perceptions, populations etc. This is also the main reason why constitutional borrowing
(legal transplants) is criticized. Another issue is judicial interpretation as was done by the court in the
Roper v Simmons case. They considered many criticized the international consensus surrounding
this.
How flexible are constitutions?
This depends on whether you have a rigid/entrenched constitution, which is difficult to alter. This
could for example be the implementation of a (super) majority. Could be that both chambers need to
approve, making it harder to succeed. Germany for example does not allow its federal personality
and the human rights to be amended in the future. This is called the eternity principle. So there is a
scope and a procedure when it comes to changing the constitution.
Another major thing in this subject is whether we mean the narrow sense (what is actually written
down) or the broader sense (if society changes does this automatically change the law with it?). In
the second meaning the constitution is seen as a living document. Another thing that established
flexibility is the interpretation and power of judges.
Substantive unconstitutionality could be frustrating for proponents of amendments. For example in
the Colombia case where the President could amend the constitution for a second term but not for a
third, allows us to see that this is really nationally influenced.
Readings: Tushnet chapter 1+2/ Heringa chapter 1
Lecture 2 – Separation of powers: federalism, decentralization and
regionalization
Part I: forms of state and systems of government + the law of democracies
Framework: Rule of Law/Rechtstaat
Main principles
- Legality
- Separation of powers
o Vertical: form of state (various levels of the state à federal, local, central)
o Horizontal: system of government
- Fundamental rights
- Judicial control
- Democracy
When talking of theories/models it is abstract, meaning not always done like that exactly.
The form of a state is what kind of power division is seen within a state. So between who is it divided
and on what kind of levels. This is seen on a vertical level. So there is a switch between the amounts
of powers the entities have. This could be a bottom-up or a top-down approach. In Federalism this is
seen as the territorial power division within the constitutional system. However there are multiple
degrees of federalism. It could go from loose autonomous states to a centralized government. So it
depends on how much power they give to their component regions. For example in Austria this is
milder than in Germany.
Forms of state (discussed in materials) - Characteristics
Unitary states
, This state is characterized by the fact that it can devolve power to regions, however it is in a position
to always take it back. The power thus lies within the central government of the state.
o What is it? Centralized state, which has a central government, can take power away
from smaller units. It decides on the powers of all local/regional institutions.
o Legislators (parliaments in most cases) decide on power divisions
o So they can grant powers, yet can take them away at any time – by changing the law
o We need a constitution where all of this is determined (could be laws, conventions
etc.)
o Example: France (centralized state, however less than before)
o Often there is some form of decentralization: WHY? Some things can be better
solved on a lower level
o China (however weird since it is huge)
o Constitution that creates central government à legislature then decides on the
power division
Federal state
The federal state can be characterized by the fact that regions have their own privileges. This
especially entails their constitutional autonomy, legislative competences and participation in federal
decisions enshrined (protected) in the constitution. It also has the following: Division of territory,
regional autonomy, Federal supremacy (national law prevails over the regional law), regional
representation (they are represented on a federal/national level), codification of prerogatives (their
competences is written down in the constitution), Participation in constitutional amendments (they
can co-decide and are thus not passive), Constitutional court (they have a arbiter that handles
conflicts of power between the central government and region).
o Division of territory
o Central government on one side federal supremacy, autonomous substates on the
other hand
o (Provinces, regions)
o Bound by a constitution (has to be written) – What does it do? It limits power of
federal government and the state governments
o So it creates exclusive powers
o Court for conflicts (constitutional court)
o Bicameralism: representation
§ This however can also be seen in unitary states
o Currently, there are about thirty federal states, including the United States, Canada,
Switzerland, Germany, Austria, Belgium, Australia, South Africa, Nigeria, India,
Indonesia, Malaysia, Mexico, Argentina and Brazil
Powers in federation could be distributed by enumeration of powers and residual competence. Not
everything can be written down so sometimes it is easier to leave some unwritten and appoint those
to the other. This is the Subsidiarity principle: meaning central only does what local is not able to
perform itself.
Confederations
This has the characteristics of a federation however, unlike in a federation the central government is
weaker and the powers are given to the sub-regions. In a federation this is the other way around;
with a strong federal government with limited powers to the sub-states.
o It is a bit like federation in which all substates have full autonomy
o There are autonomous states
o Unanimous decision making
o Articles of confederation: drafted in 1781 that formed the basis of the US
o Nowadays we would call such a document interaction treaty
