The Common Law Legal System: Counterweighting Centralization of Political Power, Apuntes de Derecho Comparado

¡Descarga The Common Law Legal System: Counterweighting Centralization of Political Power y más Apuntes en PDF de Derecho Comparado solo en Docsity! 1 LESSON 2. CONSTITUIONALISM IN THE AGE OF THE MODERN REVOLUTIONS TRIGGERING THE CONSTITUTIONAL EXPERIENCE The three revolutions of the Modern Age (England 1689, North America 1776, France 1789) represent the foundation of the western constitutional experience, boosting the transformation of political structures and the adoption of written constitutions and declarations of rights. Although originating from the common tradition of constitutionalism, national experiences gave shape to different constructions. In the actual transposition in legally binding constitutional norms, the common principles and leading ideas of separation of powers and individual rights were forced to bargain with political needs and social structures, undertaking diverging paths. Moreover, constitutionalism starting with the bourgeois revolutions, was exposed to methods of constraints of its revolutionary power. Revolutionary constitutions of the Modern Age are the contact point between the ideological and revolutionary push of constitutionalism and the necessity of conservation of the legal order founded on the constitution. This paradox is still open and problematic for contemporary legal studies THE ORIGINS OF ENGLISH CONSTITUTIONALISM, BETWEEN POLITICAL STRUGGLE AND LEGAL STRUCTURE NO SE HA DADO EN CLASE SOCIETY AND INSTITUTIONS IN ENGLAND England was the first country where the modern doctrine of constitutionalism appeared and took concrete form. The early success and circulation of constitutionalism was possible because of the lasting existence of some important social and institutional features. • Firstly, the ongoing conflict between the Crown and the aristocracy represented the main deterrent to the potential growth of the monarchical powers. • Secondly, the economic growth of a young bourgeoisie, with values and economic interests opposed to the absolutist ones, affirmed its willingness to see its liberties wholly acknowledged. 2 • Thirdly, the existence of an institution such as Parliament, in which the bourgeoisie and the aristocracy were represented, was a counterweight to the king’s authority, and it enabled the two social classes to share power with the king in proposing legislation and granting tax revenues. • Fourthly, the Common law legal system and the role played by the courts was central in setting the boundaries of the political power of the king through the settlement of general principles of Common law, granting individual rights against the government. THE COMMON LAW LEGAL SYSTEM In the beginning of the Middle Ages, this process brought England to the development of a peculiar legal practice based more on local customs than on Roman code and its constructions by the jurists. Moreover, the process also fostered the consolidation of the English rule of law, and the development of a pluralistic system of administration of justice. The spreading of jurisdictional power to the feudal local courts further strengthened the local resistance against the monarch’s claims for a centralized political power throughout the Middle Ages. ARISTOCRATIC RESISTANCE: THE MAGNA CHARTA LIBERTATUM SOLO SABER QUÉ ES However, beginning with the 13th century, we witness the growth of the absolute monarchy, aimed at removing the ancient feudal social structures, and especially the ancient privileges and immunities of aristocracy, with its traditional power of administrating justice in local courts. The endemic conflict between the Crown and the aristocracy was overcome through the adoption of the famous Magna Charta Libertatum of 1215: a document in which the monarch formally assumed the commitment of respecting special guarantees for aristocrats. At the same time, however, in those years the English monarchs achieved the goal of leaving the aristocracy out of the power of administrating justice. THE COMMON LAW LEGAL SYSTEM TO COUNTERWEIGHT THE CENTRALIZATION OF POLITICAL POWER Eventually, as the monarchy strengthened, the Common law legal system began to consolidate, and quickly became a means to counterweight the peril of centralization of political power in the king’s hands. The courts were indeed committed to applying common principles to the entire kingdom. 5 These are the origins and the basis of the judicial review of legislation, the power of the courts that today represents the main legal application of constitutionalism. THE REDISCOVERY OF CONSTITUTIONALISM IN ENGLISH THOUGHT: REPUBLICANISM AND LIBERALISM Throughout the first Modern Age, the ongoing political struggle against absolutism fostered the rediscovery of the ancient doctrines of mixed government, jus naturalism and contractarianism, which together with the idea of the rule of law, contributed to the construction of the theory of modern constitutionalism and prepared the Glorious Revolution of 1689. REPUBLICANISM AND THE REDISCOVERY OF THE ANCIENT THEORIES ON THE BEST FORM OF GOVERNMENT In the 16th century the ancient roots of constitutionalism were collected by a line of thought, shared by several philosophers, that took the name of republicanism. James Harrington was the main representative of this thought: in his book Oceana (1656), Harrington presents the Republic as the best form of government, resuming the ideas of Aristotle and Cicero. JOHN LOCKE THOUGHT ON INDIVIDUAL RIGHTS The second line of thought that supported constitutionalism in England was liberalism. Even though a complete settlement of the doctrine of liberalism was reached only in the 18th century, in the age of the Glorious Revolution we witness the development of all the premises of this doctrine, mainly through John Locke’s work and his reflections on individualism and individual rights. His fundamental political work, The Two Treatises on Government, was written immediately before the Glorious Revolution, and it played an essential role in legitimizing it, especially supporting the doctrine of the separation of powers: Locke is still considered to be the father of this doctrine. However, his contribution to the development of modern constitutionalism was much more than this: indeed, he proposed a new doctrine of natural rights of individuals that the government had to acknowledge and protect. THE BASIS OF LOCKE’S POLITICAL THEORY According to Locke, individuals are born free, in a state of nature in which they live in a condition of whole liberty. They shape the state through a contract among themselves, which clearly defines the goals that the state must pursue: above all, the protection of individual rights, such as life, property and freedom. 6 In Locke’s view the foundation of the government through a compact is not intended to annul the right of the people to control the government’s behavior and decide the political ends. On the contrary, the people continue to maintain the power to oversee the legitimacy of the acts of the government and their consistency with the wellness of the people and the protection of their freedom. The people retain the power to control the rationality of the government and the correctness of the relationships among the several branches of it. From Locke’s perspective, the government rests upon and depends on the consent of the people, and the people always have the power to resist a corrupt government that goes beyond the limits of its functions, as defined by the compact. Consequently, he admits and justifies resistance as a means of assuring the protection of the fundamental rights of men. LOCKE’S THEORY ON INDIVIDUAL RIGHTS AND GOVERNMENT Locke is, therefore, not only the creator of a new theory of individual rights, consistent with the values and interests of the bourgeoisie and the doctrine of liberal individualism, but is also the author of a perfect synthesis among contractarianism (the idea of a social compact establishing the political community and political institutions, and the stress on the consent of the people and the right to create a new government whenever it breaks the conditions of the compact), jus naturalism (the idea of «a law antecedent and paramount to all positive laws of men») and the modern claims for individual liberties. From this perspective, he has always been considered the main author of modern constitutionalism. THE FIRST AND THE SECOND ENGLISH REVOLUTION: THE SETTLEMENT OF THE CONSTITUTIONAL MONARCHY FROM THE FIRST ENGLISH REVOLUTION TO THE REPUBLIC The previously mentioned alliance between Parliament and the courts, and the modern doctrine of constitutionalism widespread in English society, led to the two revolutions. Although both relevant, only the second, the Glorious Revolution of 1689, did fully achieve its objectives. The Civil War that brought on the first Revolution was an attempt of Parliament and the courts to resist the settlement of an absolute monarchy. At the end of the Civil War (1648), Oliver Cromwell, the general of the New Model Army allied to Parliament, became the Chief of the Republic of the Commonwealth of England, which lasted until 1660, the year in which the monarchy was restored (Hill 1961). The first revolution is relevant for two main reasons. 7 • Firstly, it improved republican thought. • Secondly, it broadened the approach of radical democratic movements believing in the equality of men and proposing a constitution based upon popular sovereignty. Then, Cromwell gave to England its first written constitution, the Instrument of Government: a Constitution that represented one of the models to be adopted by the Founding Fathers in America. The Instrument of Government acknowledged a moderate form of separation of powers, entrusting Parliament with the power to legislate and conferring the executive power to a Lord Protector – a charge covered by the same Cromwell. After Cromwell’s death, however, the monarchy was soon restored and the Instrument of Government ceased to exist. THE GLORIOUS REVOLUTION OF 1689 AND THE CONVENTION PARLIAMENT The second “Glorious” Revolution of 1689 was triggered by the attempts of the king to enlarge his powers over Parliament and by his threat to restore the Catholic religion in England. Parliament decided to rebel against the Crown and changed the royal dynasty, granting the throne to William of Orange. The theory of John Locke served as the political legitimacy for the deposition of the king and for the establishment of a new deal between the Crown and Parliament. One of the most considerable institutional innovations that marked this watershed moment of the constitutional history of England was the establishment of the Convention Parliament, in January 1689. The assembly, called by William of Orange, debated the features of the new pattern of government and argued over who should assume the Crown after the abdication of James II. The Convention transferred the Crowns of England, Scotland and Ireland to William III. However, the main result of its works was the drawing up of the Declaration of Rights. This document contained a list of the wrongs committed by the former King, followed by thirteen clauses clarifying the limits of royal power and authority. Although the acceptance of the Declaration was not a condition of the acceptance of the Crown by William III, the latter swore to govern according to «the statutes in Parliament agreed on», thus ending the absolute monarchy. Thereafter, the king dissolved the Convention and called a new Parliament, which approved the Crown and Parliament Recognition Act of 1689 in order to regularize the acts of the Convention Parliament. As for the Declaration of Rights, its statements were later enacted in an Act of Parliament, the Bill of Rights, approved in December 1689. The importance of the Convention Parliament lies in the fact that it represented the first example of a representative constituent assembly in Europe, entitled to draft the new constitutional framework of England after the end of the absolute monarchy. Indeed, the Convention Parliament would be taken as a 10 The Magna Charta stated that: «No freeman shall be taken or imprisoned, or be disseized of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land». Nonetheless, habeas corpus originated before the Magna Charta, having its roots in a set of writs that the courts already employed during the 12th century to hold custodians and guards accountable before justice. The original common law writ was based on the king’s mercy and grace, grounded in a judge’s order to a jailer to assess whether a person was lawfully detained. The procedure for issuing a writ of habeas corpus was firstly codified in the Habeas Corpus Act of 1679. Although further Habeas Corpus acts were later passed by Parliament, this Act is still nowadays referred to as one of the most important statutes in the history of the United Kingdom. The importance of habeas corpus in English constitutional history lies also in the fact that this method of judicial review of custody and imprisonment has gradually been connected to the concept of “due process of law” that refers to the right of anyone to a fair and judicial trial before an independent judge. However, its general relevance has to be considered from a different standpoint: the Bill of Rights inaugurated the tradition of constitutionalism to grant a constitutional guarantee to individual rights through the elaboration of a written declaration with legal constitutional norms aimed at protecting them and limiting the powers of the state. THE RIGHTS OF FIRST GENERATION The rights enumerated by the Bill of Rights are called rights of “first generation”, because they appear at the very beginning of western constitutionalism in the main Declarations of Rights of the three revolutions. They protect the so-called “negative liberties”, that are claims for non-intervention of the state for safeguarding the liberty of men. These kinds of liberties are those requested by liberal thought, based on jus naturalism and focused on individual interests. • Ask yourselves what an Englishman, a Frenchman, and a citizen of the United States of America understand today by the word “liberty”. For each of them it is the right to be subjected only to the laws, and not to be arrested, imprisoned, put to death or maltreated in any way by decision of one or more individuals; the right of each person to express his opinion, choose a profession and practice it, dispose of his own property and even to misuse it; the right to come and go without permission, and without explaining what one is doing or why; … 11 If we analyze those rights, which represented in the 18th and the 19th centuries the main liberties recognized by the declaration of rights annexed to the national constitutions, we can assess the profound coherence with the liberal and individual approaches and the strict adherence to their values. According to those approaches, men are born free and with their own rights, which do not depend, and neither are granted by legal provisions. In this respect, the role of the state is to preserve their integrity, avoiding any external interference. PROPERTY RIGHTS AS THE PARADIGM OF THE RIGHTS OF THE FIRST GENERATION NO SE MENCIONA It appears evident that the rationale of those liberties was modelled on the logic of property rights. Indeed, property rights are characterized by the establishment and the delimitation of the space of dominance of individual powers, and they deny any external intrusion. Property rights became thus the paradigm of the set of negative liberties, a role that was further boosted by the key function played by economic liberty in the framework of the rights of the first generation. The rights of the first generation were indeed set up to reflect the claims and the ambitions of bourgeois individualism. In this respect, it is relevant to note that Locke labeled the right of life, of liberty and of property with the all-inclusive term of “property”. According to the bourgeois approach, the individual claims security and protection of his private properties, he demands the right to initiate commercial and economic activities in a regime of a free and unregulated market. Moreover, he calls for guarantees against public authority in cases of criminal trials; he claims liberty of religion, assembly and expression of his own thoughts. Those are the common foundations of the rights of the first generation, which sum up the values and the claims of the legal liberal approach. AMERICAN CONSTITUTIONALISM: FOUNDATIONS Beginning with the second half of the 17th century, due to the religious persecutions in England and in search of economic fortune, several Englishmen emigrated toward the east coast of North America, where England had settled its colonial dominions. The people who emigrated mainly belonged to the Puritan Church, which had been heavily persecuted after the affirmation of Anglicanism in England. They were willing to settle in the colonies a society in which evangelical values of justice and ethics would have been acknowledged. THE RELIGIOUS ROOTS OF AMERICAN CONSTITUTIONALISM 12 The famous Compact of the Mayflower (1620) – signed by the Pilgrim Fathers in their vessel, before landing in America – reflects the religious foundation of the American idea of democracy and community. Moreover, it shows the significance conferred by Puritans to the written constitution as a superior law. All of these ideas would have played a relevant role in American constitutionalism and culture, especially in New England. THE INSTITUTIONAL FRAMEWORK OF THE COLONIES Colonial legal orders presented features destined to influence the progress of American constitutionalism. In all the colonies a written charter existed, providing the form of government of the colony. Although there was not a general model for the administration of the colonies, it is possible to point out three main common patterns in the government of the colonies belonging to the English colonial Empire: • Firstly, the crown colonies or Dominions of the Crown, administered through a governor appointed by the king. • Secondly, the company commercial colonies. Colonies given in concession to private companies and administered by the company according to a charter granted by the king. • Thirdly, the proprietary colonies. Colonies whose land belonged to an individual landowner, who was at the same time the main administrator of the colony. In all the colonies, self-government assemblies, representing the settlers, promptly appeared, even though they did not have effective and actual powers if compared to the powerful governors of the colonies. In some experiences, the colonists gathered in assemblies and decided to adopt a written constitution, anticipating the enactment of the colonial charter. This is what happened, for instance, with the Fundamental Orders of Connecticut (1639), a document considered by many scholars to be the first written constitution of the western world. THE SOCIAL BACKGROUND OF NORTH AMERICA IN THE COLONIAL AGE Colonial American society was not at all comparable to English society, and it completely lacked a bourgeoisie able to link its own economic interests and its vision of society with the doctrine of constitutionalism. However, it is important to note that American colonial society became the scenario of the affirmation of a peculiar kind of constitutionalism, in which religious Puritan grounds, radical liberalism and democracy merged. The existence of written charters regulating the frame of government, and self- governing institutions – together with the religious grounds of American communities, the belief in contractarianism as the basis of government and the connections with English republican thought – 15 The frames of government were designed to provide rules on the relations among the institutions and the branches of the government. Indeed, as a reaction against the excessive power assigned to the governors during the years of the Colonial Empire, the constitutions were rooted in the affirmation of radical democratic principles, which resulted in a peculiar interpretation of the principle of separation of powers. In American state constitutions, parliaments were the very core of the political system, and executive branches were submitted in several aspects to legislatures. This brought a lack of balance and stability among the institutions and determined a general distrust for parliamentary sovereignty. b) The Declaration of Rights: the influence of the English Bill of Rights The Declarations of Rights were drafted according to the pattern of the Declaration of Independence and the English Bill of Rights; they enshrined the rights to life, liberty and property, the habeas corpus rights, the right to a fair trial consistent with due process of law, freedom of religion and press. In the same Declarations, it is also possible to find the affirmation of the equality of men, their right to a democratic and representative government, based on regular elections and separation of powers. At the same time, the American Declarations of Rights represented relevant progress compared to the English Bill of Rights. They proposed a universal doctrine of individual rights, preexisting and superior to the law of the state, linked to the natural liberty of men and to the contractarian origin of the state. THE WESTWARD EXPANSION OF THE UNION The second step regards the beginning of the settlement of legal order of the western frontier. The victory of the War of Independence and the signature of the Treaty of Paris (1783) allowed the United States to extend its dominion to the Mississippi River, thus doubling the territory of the Union. This meant the extension of the American legal order over the land owned by the Indian tribes. The institutional order of the territories was provided by the Northwest Ordinance of 1787, which organized the government and the settlement of the territories northwest of the Ohio River and provided the procedures through which the people of the western territories could achieve statehood and join the Union, on equal footing with the founding states. THE CRISIS OF THE ARTICLES OF CONFEDERATION AND THE CALLING OF THE PHILADELPHIA CONVENTION The third step is the crisis of the Articles of Confederation as a system through which to ensure union and cooperation among the thirteen states. The conflicts arising among northern and southern states, among small and large states, among coastal and landlocked states, led to a crisis of the Union, with the risk of 16 breaking the Union itself. To avoid this risk, a Congress convoking the delegates of the thirteen states was called; they met in Philadelphia in the summer of 1787. THE PHILADELPHIA CONVENTION At the time of their meeting in Philadelphia, the delegates of the thirteen states were divided by several factors. THE MAIN CLEAVAGES ARISING FROM PHILADELPHIA CONVENTION A first division was between the largest and the smallest states of the Union. • The largest states were calling for a stronger Union: they (mainly Virginia and New York) were arguing that the Confederation was a weak institution, not able to pursue American interests in international politics- There was a need to strengthen the competences of the Union, reduce the competences of the states, and prevent the states from legislating conflicting interests of the Union. • The smallest states, they feared that by taking measures aimed at reinforcing the Union, this would strengthen the role played by the largest states. The leading roles of Virginia and New York could have given these states control over all American politics, thus limiting the autonomy of the smallest states. A second divide was between the northern and the southern states. • The New England states shared an economic system based on maritime trade, fishing, small farms and a young and fragile industry. • Southern states, instead, had an economy based on the plantation system: huge lands owned by rich men, using slaves as the main force of work. Slavery was one of the elements of opposition between the New England mindset, believing in the equality of men, and the southern vision. However, there was also an economic issue: slavery allowed plantations, and plantations allowed the immense production of tobacco, cotton, wheat and corn. This huge production relied on exportation to European markets, and therefore required low tariffs on imported goods in order to foster international trade. Contrary to the southern states, the north was characterized by a young industrial system, requiring protection from importation from Europe; therefore they supported the adoption of high tariffs on imported goods, in order to reduce prices of American goods in internal markets. 17 VIRGINIA PLAN VS NEW JERSEY PLAN: THE CONSTITUTION OF 1787 AS A COMPROMISE The largest states arrived in Philadelphia with a plan for the constitution, drafted by Madison, delegate of Virginia. The Virginia Plan provided a strong Federal Government, holding several legislative competences and entrusted with the power to nullify state laws. According to this plan, the federal legislature should have been bicameral, and elected according to the population of the states, a solution that would have put the control of the legislature in the hands of the largest states. In opposition to this plan, the New Jersey Plan, drafted by the delegates of the smallest states, proposed to maintain the structure of the Congress of the Confederation, articulated in a single House composed of a single delegate for each member state, independently from its respective population. Despite these contrasts, the delegates who gathered in Philadelphia were able to achieve a compromise and adopt a constitution, which was approved by the Convention on the 17th of September 1787. THE FEDERAL CONSTITUTION AMERICAN FEDERALISM The Constitution of Philadelphia aimed to strengthen cohesion among the states through the creation of a new Federal Government of the Union, with its proper institutions elected by the people and a wide set of legislative, executive and judiciary competences. The Federal Government substituted the weak structure of the Confederation system established in 1776: entrusted with very limited competences, the Confederation was allowed to assume decisions only on the basis of a broad consensus among the states; the new federal structure, instead, assigned to the Union many more powers. The United States Constitution frame of government. Mainly inspired by the principle of separation of powers, the Federal Government was aimed at granting the independence of the executive branch from the other branches and at avoiding legislative encroachments, which had affected political life in the thirteen states in the years immediately following the Revolution. THE HOUSE OF REPRESENTATIVES Legislative power rests in the Congress, which is divided into two chambers. Representatives elected by the citizens every two years compose the lower chamber, called the House of Representatives. 20 impeachment lost its role, substituted by the emergence of the relation of confidence between Parliament and ministers, and the political responsibility of the ministers for their actions. The Framers of the American Constitution decided to confirm the possibility of impeachment of President, Vice President and other high officials of the Federal Government. The delegates in Philadelphia decided to acknowledge an impeachment on «treason, bribery, and other high crimes and misdemeanors». While treason and bribery are typical crimes, misdemeanors are a kind of activity not exactly defined, and open to several constructions. Regarding the procedure, the Constitution provides that the House approves the indictment, with an absolute majority, and the Senate judges. For the conviction, the Senate must reach a two thirds majority. In cases of conviction, the official is removed from his charge and can be judged by the courts for his crime. Impeachment, indeed, is not a criminal trial, but rather a judgment of the public opinion upon crimes committed by federal officials. THE PRESIDENTIAL VETO Another instrument of checks and balances provided by the American Constitution is the presidential veto on the bills passed by Congress. Absolute veto power was rejected, but a qualified veto power was recognized: if the President were to veto a bill passed by Congress, Congress could override the presidential veto with a two thirds majority in both Houses. In such a case, the President would be compelled to sign the bill. LEGAL TOOLS AND KEYWORDS: PATTERNS OF GOVERNMENT According to the regulation provided by: A. The constitutions B. The relevant normative acts C. The evolution of the political practice It is possible to classify the systems of government in the environment of western constitutionalism. The classification of systems of government is based on the set of relationships existing among the branches of government and the institutions sharing political power in a specific legal order. Therefore, the classification of governments mainly focuses on the relations existing between the legislative and the executive branches. • The presidential government, established for the first time in the Federal Constitution of the United States of America (1878), is based on a rigid separation between the legislative and the 21 executive branches: not only do they not have tools for interfering with each other, but they also derive their political legitimacy from different sources (dualist government). Indeed, both branches are elected by the people with different, independent elections. • The parliamentary government appeared in the UK during the 19th century as a transformation of the constitutional monarchy settled by the Glorious Revolution. It is based on the cooperation between the legislative and the executive branches. Both branches draw the source of their political legitimacy from the popular election of the parliament (monistic government). Indeed, based on the parliamentary elections, the Head of the State (the monarch or the president of the republic) appoints the Cabinet (composed of the prime minister and the ministers). The Cabinet leads the executive branch. The relationship between the legislative and the executive branches is called “relation of confidence”: the majority of the parliament approves the appointment of the Cabinet with a vote of confidence, and in case of political conflicts, it can pass a motion of no confidence, which forces the Cabinet to resign. • The semi-presidential government presents elements of both patterns introduced above. Indeed, the president of the republic is directly elected by the people, as in a presidential government; however, the executive function mainly belongs to a Cabinet of ministers, who are appointed by the president following the outcome of parliamentary elections, because of the need for a relationship of confidence with the parliament. THE JUDICIAL BRANCH During the Philadelphia Convention, the organizing of judicial power of the Union received little consideration. Moreover, this lack of attention was based on the Founding Fathers’ perception that since the federal level was overlapping with the judicial system of the states, the federal courts were destined to play just a residual role. For all of those reasons, the organizing of the federal courts was not regulated in the Constitution but reserved for a successive federal statute to be approved. Nonetheless, the Constitution directly regulates the jurisdiction of the federal judiciary branch and the establishment of a Federal Supreme Court. THE JURISDICTION OF THE FEDERAL JUDICIARY BRANCH The jurisdiction of the federal judiciary branch was defined by the Constitution itself to avoid risks of overlapping with states’ judiciary systems: the federal courts had competence over the cases related to the application of the Federal Constitution, a federal statute or a treaty made by the United States, as well 22 as in cases arising among citizens of different states of the Union (so-called diversity jurisdiction). In any other matter, the jurisdiction belonged to the states’ judiciary branches. THE COMPOSITION AND THE ORGANIZATION OF THE SUPREME COURT • The members of the Supreme Court stay in charge «during good behavior» – a clause that meant a life-long tenure, but it also included the possibility of removal in case of impeachment. • In the beginning, according to the Judiciary Act, the Court was composed of six judges, but starting from the second half of the 19th century, the number changed to nine (eight associate justices plus the Chief Justice). • Their appointment are determined by President, as with any other federal judge and official, but in this case the advice and consent of the Senate is strict. • The decisions of the Court are determined by a majority of judges, and dissenting, as well as concurring, opinions can be delivered. THE JURISDICTION OF THE SUPREME COURT In all these cases falling within federal jurisdiction, the Supreme Court received appeals from the federal courts to be organized under the federal statute (appellate jurisdiction). Furthermore, the Supreme Court also had a competence involving cases arising among the states of the Union, foreign states and ambassadors, and cases in which the United States were party. All these special cases gave life to the so- called “original jurisdiction” of the Supreme Court, which the Supreme Court judged directly. THE STRUCTURE OF AMERICAN FEDERALISM According to the constitutional culture of the Framers and to the constitutional practice of the period, the key issue regarding federalism and setting the relationships between the member states and the Federal Government was the method of distribution of the legislative competences. After having considered the organization of the Congress, the Constitution takes into account the legislative competences of the Congress, separating them from the legislative competences left to the states. In Section 8, indeed, we find a list of matters falling within the competences of federal legislation, while a final clause states that all the matters not enumerated in this section, nor in other provisions of the Constitution, are in the realm of the states’ legislative competences. 25 From the perspective of the legal system, the constitution is superior to the other sources of law because of its rigidity. Constitutional rigidity means that amendment of the constitution can happen only through a special, enhanced, proceeding, more complex than the proceeding followed for the passage of the other sources of enacted legislation. The complexity of this proceeding gives to the constitution greater stability and makes the constitution the superior source of the legal system. Aimed to granting and confirming the extraordinary and fundamental relevance of the constitution within the legal framework, the outcome of constitutional rigidity will be that of transforming the same structure of the sources of law, establishing a formal hierarchy between constitutional law and parliamentary statutory law. Moreover, in rigid constitutions not all the provisions of the constitution can be amended: there is a set of superior principles of the constitution that cannot be amended at all. Usually, constitutions expressly foresee this set of principles, expressing the very fundamental values and principles of the organization of the constitutional order. THE RATIFICATION PROCESS AND THE BILL OF RIGHTS Once adopted in Philadelphia, the Constitution was not immediately enforced. Indeed, it had to be ratified by the thirteen states, with a majority of two thirds of the states. THE PROCESS OF RATIFICATION OF FEDERAL CONSTITUTION. THE FEDERALIST PAPERS. The ratification debate took place at the beginning of 1788, and it reached a critical point in 1789, when the state of New York decided to call a popular vote on the ratification. The vote of New York was necessary for the final ratification. In the state, the people were divided between federalist and anti-federalist approaches. To convince people to approve the Constitution, Madison, Hamilton and Jay wrote a comprehensive body of essays aimed at explaining the Constitution: those essays were collected in a book, The Federalist Papers, that is today considered the main text for the interpretation of the American Constitution. Madison, Hamilton and Jay shared a common vision of the function of constitutional law, a system of instruments for the guarantee of individual liberties against the abuses committed by the government. According to the Federalist Papers, a democratic government could not be conceived as a valid political system if a method for the protection of individual and minority rights against the risk of tyranny by the majority was lacking. 26 The Madisonian conception of the constitution must be contextualized in the specific framework of the American debate on the ratification. To push the people to vote for the ratification, the Federalist Party needed to demonstrate the limited competences of the Federal Government; at the same time, the Federalist Papers expressed a shared concern arising from the colonial experience as well as from the radical democracy experimented in after independence. THE ADOPTION OF THE FIRST TEN AMENDMENTS TO THE CONSTITUTION Since the anti-federalists criticized the lack of a declaration of rights in the Federal Constitution, Congress met once again in 1789 and enacted a Bill of Rights, which was attached to the Constitution as its first ten amendments. The Federal Bill of Rights, drafted based on the Virginia Declaration of Rights, affirms rights such as freedom of speech, the right to bear arms, personal liberty and other immunities of the people in criminal prosecutions, and other rights and liberties already acknowledged by the states’ Bills of Rights. A last amendment reaffirmed the principle that no federal legislation could have been enacted in matters not enlisted in sect. 8 art. 1 of the Constitution. This strategy was successful, and the Constitution was approved by the people of New York, and therefore came into force in 1791. George Washington was elected as the first President of the United States. THE SETTLEMENT OF THE JUDICIAL REVIEW OF LEGISLATION The first years of constitutional practice were very importance for the construction of many provisions of the constitutional text. A first achievement concerns the settlement of the judicial review of legislation. THE IDEA OF COMMON LAW AS A SUPERIOR LAW IN AMERICAN LEGAL THOUGHT Beginning with the colonial legal order, American legal thought was linked to the idea of Common law as a superior law. The courts of the colonial legal orders tried to apply Common law principles as limits to the laws passed by English Parliament and colonial assemblies, as well as to the orders enacted by the governors. After independence, judicial review of legislation was adopted by the courts of the states’ legal orders. Here, the states’ declarations of rights provided the provisions to be applied as norms superior to the laws passed by the legislative bodies. In Philadelphia, state delegates did not openly discuss the power of the federal courts to carry out such judicial review of legislation, but it was commonly adopted by the courts of all the states, and it was commonly acknowledged by American legal thought that it is the area of the judicial branch to declare null and void a law that does not abide the constitution. Indeed, while in English legal order the principles of Common law were not written, but only declared by the courts, in American constitutional tradition the 27 written constitutions and declarations of rights provided a wide field of norms thought to be superior to ordinary legislation, because of their nature of fundamental law of the political community. THE SUPREMACY OF THE CONSTITUTION AS A CONSEQUENCE OF ITS RIGIDITY + CASE MARBURY V. MADISON The supremacy of the constitution compared to ordinary legislation is not only an outcome of legal history, it also depends on the rigidity of the constitution, as provided by article 5 of the Constitution. Due to its rigidity, the supremacy of the Constitution over ordinary legislation is not only a theory, but also a binding norm. The doctrine of hierarchical supremacy of the constitution, and the power of the judiciary branch to carry out judicial review of legislation, declaring null all the laws that do not respect the constitution, were clearly stated by the Supreme Court of the United States in 1804. In the famous judgment Marbury v. Madison, Chief Justice John Marshall stated that the courts have the duty to apply the law always considering the Constitution as a superior, paramount, law. THE CASE MARBURY V. MADISON (IMPORTANTE) The constitution is either a superior supreme law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. Certainly, all those who have framed written constitutions contemplate them as forming the fundamental and supreme law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void. Therefore, this case is undoubtedly one of the main milestones of constitutionalism. Since it is the first occasion in which, in a clear manner, a Supreme Court, affirms the supremacy of the Constitution over the law, determining the inapplication of the latter as unconstitutional. JUDICIAL REVIEW OF THE LEGISLATION It is important to stress that Marshall did not affirm that judicial review of legislation was a power belonging solely to the Supreme Court. Even if in the judicial system of the United States the Supreme 30 (double degree of judgment). The penalty is not only aimed at punishing the guilty, rather it also has the function of re-educating the guilty in the common values. • The stress on the principle of equality of men is aimed at avoiding any legal discrimination due to personal conditions. • The principle of legal certainty requires clear and general rules, understandable by the people. The codification of private and criminal law answered this task. Obviously, a revolution so deep and broad such as the French Revolution could not depend only on intellectual premises. There were serious social causes pushing the people against the Ancient Régime and monarchical absolutism: lower classes in the cities and land workers in the countryside were squashed by the local nobility and the fiscal impositions of the clergy; at the same time, the young commercial bourgeoisie was unsatisfied with the fiscal policy of the Crown and, more in general, with the limited liberties enjoyed by individuals. However, the intellectual preparation of the French Revolution within the framework of the Enlightenment made it possible to make people aware that economic claims weren’t single issues, but elements of social issues, all depending on the national constitutional structure. FROM THE PALLACORDA OATH TO THE DECLARATION OF RIGHTS (IMPORTANTE) THE CALLING OF THE GENERAL ESTATES As of the 17th century, the king no longer convened the General Estates – the ancient Assembly representative of the three estates of the kingdom: aristocracy, clergy, and third estate. The latter included almost the entire French population: the middle class, the peasantry, the artisans. After such a long period, King Louis XVI was compelled to convene the Assembly due to the crisis in public finances and the need to reform the tax system. The calling of the elections of the General Estates triggered a public debate among the people. Writing a list of their desires for the future organization of the nation (the so-called Cahiers de tolerances) the people learned through books and journals the constitutional structure of England and the facts of the American Revolution, as well as the political beliefs of the legal Enlightenment. At the time of the inauguration of the General Estates, the expectations of the majority of the nation for radical reforms were high. The king immediately understood that the aim of the delegates of the General Estates was not limited to the approval of the economic requests of the Crown but looked at general reforms of the institutions. Therefore, he began to oppose the meetings of the General Estates. Due to 31 the resistances of the king to authorize regular meetings, the delegates of the bourgeoisie met in the Pallacorda room and swore to stay united until the establishment of a constitution. THE PALLACORDA OATH It is generally considered to have been the beginning of the Revolution. The General Estates were indeed dissolved, and the new Assembly was called the National Constituent Assembly. In a few days, most of the aristocracy and the clergy joined the third estate in this new Assembly. THE TRANSFORMATION OF THE GENERAL ESTATES IN THE CONSTITUENT ASSEMBLY The transformation of the General Estates in the Constituent Assembly was not only a tactical move made by the delegates of the third estate to react to the king’s attempts to stop the work of the General Estates. Behind the dissolution of the General Estates, there was also a precise doctrine: the essential power of the nation, consisting of the people’s right to shape the constitutional structure of the state according to their values and interests. THE RISE OF THE MODERN REPRESENTATIVE GOVERNMENT The duty to lead this process was in the hands of the delegates of the third estate. To make this revolution possible, the delegates should have acted, in the Assembly, independently from the mandate received by their electors, as delegates of the nation as a whole. The new relationship took the name of political representation: it was the means through which the Constituent Assembly was able to carry out its role in leading the Revolution, and, since that moment, it became the basic doctrine of the pattern of representative democracy. LEGAL TOOLS AND KEYWORDS: REPRESENTATIVE GOVERNMENT Representative government is the main method through which the Moderns govern themselves. Its functioning is founded on the conferral of a representative mandate by the citizens to a group of people who are elected by means of free elections. Their duty is to represent citizens and make laws on their behalf within the representative assembly. Nonetheless, the representative relationship is based on the free mandate principle, according to which, each member of the parliamentary assembly is not a delegate of the specific electors who voted for him/her, but instead represents the nation. At the time of the revolutions, and throughout most of the 19th century, representative government was based on the principle of limited suffrage, according to which the right to vote and to be elected was submitted to several restrictions on census, property ownership and gender. 32 The people of Paris were the other protagonists of the French Revolution. The delegates of the third estate immediately began to meet among themselves and with the people of Paris in clubs and public places, to debate the political issues on the stage. An impulsive revolutionary public opinion was triggered, and clubs, newspapers, political parties and popular movements started to influence and lead the Revolution. Through demonstrations and insurgencies against the monarchy, popular movements supported the Assembly: The Storming of the Bastille marked this alliance between the people and the Assembly and forced the king to accept the establishment of a constitution. THE DECLARATION OF RIGHTS OF MAN AND CITIZEN The first act of the National Constituent Assembly was the abolishment of the feudal privileges of the aristocracy. Then, it passed the most famous document of the history of French constitutionalism: the Declaration of Rights of Man and Citizen (1789), a list of rights close to the declarations adopted by the American states after independence. Aimed to be the preamble for the new constitution, the Declaration acknowledges the basic principles of jus naturalism. The rights acknowledged in this text are those of the liberal tradition: life, property, economic enterprise, individual freedom (habeas corpus), freedom of expression. At the same time, the Declaration states the supremacy of the will of the nation as expressed by the statutes of the Assembly. The liberties enshrined in the Declaration would always be shaped and limited by statutory law. French revolutionary constitutionalism is linked to Rousseau’s vision of the law: the law is the deliberation of the social body, the expression of the nation’s will; it is therefore unlimited and superior to any other source of power. ART. 16 OF THE DECLARATION According to art. 16 of the Declaration, those societies in which the protection of rights and the separation of powers are not granted, do not have any constitution. With this statement, the term “constitution” changes its meaning: it is no longer a term used to describe the fundamental structure and the fundamental laws of a country or a society, suitable to all kinds of governments. The meaning of the constitution becomes stricter. CONSTITUTIONAL HISTORY OF THE FRENCH REVOLUTION (IMPORTANTE) Starting from the enactment of the Declaration, we can divide the revolutionary age into three periods, depending on political predominance, constitutional principles and structures of government: they are 35 Here, the catalogue of rights goes back to the principles of 1789. Parliament was divided into two chambers. The system of government was established to secure the stability of the executive branch: the Cabinet, called the Directory, was elected by Parliament; it lasted for a fixed term and could not be removed by Parliament. The Directorial regime went on for several months, also prosecuting the war against the monarchies with relevant successes. However, the weakness of the Thermidorians was in the lack of support by the people, because of their intent to restore privileges, such as limited suffrage, of the wealthy bourgeoisie. This is the reason why the people did not help the assemblies when Napoleon Bonaparte went back to Paris after his military triumphs as the Commander General of French Army, and, with a coup d’état, dissolved the Directorial government. WESTERN CONSTITUTIONAL PATHS: CONVERGENCE OR DIVERGENCE? It is now possible to compare French, English and American constitutional experiences. SEPARATION OF POWERS AND ACKNOWLEDGEMENT OF INDIVIDUAL RIGHTS We can see at least two ideas, common to all three constitutional traditions: the doctrine of the separation of powers and the acknowledgment of individual rights that have to be protected by the state. • In English constitutionalism these two key principles had been clearly acknowledged and laid down by the Glorious Revolution and the Bill of Rights. • In the United States of America, individual rights were immediately acknowledged by the Declaration of Independence, the several Declarations of Rights attached to the states’ constitutions, as well as by the Federal Bill of Rights, adopted as the first ten amendments to the Constitution. Regarding the separation of powers, if we examine the records of the Federal Convention of Philadelphia, we see that it represented the point of reference for its works, and the outcome, the presidential government provided by the Constitution, was the best application of this principle. • These two principles are basic also in French constitutionalism: we can see this point in the famous article 16 of the Declaration of Rights of Man and Citizen, the most important act adopted at the very beginning of the Revolution. THE FUNCTIONS OF THE CONSTITUTION 36 Moving from the commonalities, we now consider the differences between French constitutionalism and the Anglo-American tradition. • While the American constitutional tradition is characterized by the search of means aimed at limiting and checking political power – such as division of powers, checks and balances, rigidity of the Constitution, judicial review of legislation – • French constitutionalism established a constitution whose main purpose was to represent and support the will of the nation, expressed through the statutory laws adopted by the representative assemblies of the parliament. THE RELATIONSHIP BETWEEN STATUTORY LAW AND THE CONSTITUTION This key purpose of the French Revolution led to two consequences: the supremacy of the legislative body over the other branches of the government; and the supremacy of parliamentary legislation over other sources of law. So, regarding the relationship between statutory law and the constitution, while in America the Constitution played the role of supreme law, enabling the courts to review unconstitutional legislation, in France this technique was not admitted. In French revolutionary culture, although the constitution was considered the main legal source of the national legal order, it was not conceived as superior law able to annul any incompatible parliamentary legislation. The reasons were strictly related: firstly, to general mistrust toward the judicial branch; secondly, to the idea that parliamentary law represented the prevalent source of the will of the nation; and, finally, to the lack of a clear doctrine expounding the risks connected with the excessive powers of the majority. THE ABSOLUTE PECULIARITY OF ENGLISH TRADITION: THE LACK OF A WRITTEN CONSTITUTION AND THE PRINCIPLE THE RULE OF LAW From this perspective, English tradition is not comparable to any of the other two experiences. It is true that the lack of a written constitution avoided any kind of constitutional review of legislation, as in France, and allowed the affirmation of the doctrine of parliamentary sovereignty. However, the supremacy of the law proper of the French experience differs from the English principle of the “rule of law”, because the latter does not mean the supremacy of the statutory law, but also involves the jurisprudence of the courts of Common law and the principles of Common law, which represent a legal tradition, suitable to act as a constraint over the parliament.