Constiutions & Constitution design

• Plan for today: Key concepts: Constitutions and constitutional design, Democracy and Constitutionalism, Amending Constitutions, The (horizontal) separation of power: Branches of government, The (vertical) separation of powers: Levels of government
• Picking up from last week: States are modern political organisations that have the monopoly of the legitimate use of force—they fulfill some key functions and present key characteristics
• State capacity is the ability of states to fulfill their key functions—it varies considerably and matters greatly
• Nations are "imagined communities" (Anderson 1983), members of which share a subjectively-felt sense of commonality (a social identity) based on a belief in common origin or ancestry
• Nation-states are states (structural dimension) with predominant single nations (emotional bond)
• Strong national identities can both help and undermine state strength/capacity
• To create and sustain a successful (nation-)state, we must (a) build states, (b) build nations, (c) balance between the positive and negative expressions of strong national identities
• Constitutions

  Fundamental and supreme laws that comprehensively regulate the exercise of political power by establishing the structure of a state, the basis for other laws within a state and the principles of the political community
• Formal meaning of constitution


  The constitution as single, written, physical document
• Substantive meaning of constitution


  The constitution as a body of legal documents, principles and customs with constitutional value (organic laws, case law, customary procedures, etc)
• Constitutions (in the formal sense) generally start with a preamble
• In many cases these include a bill of rights (or reference to it) as well as core principles of the community
• Constitutional Design

  The key features of constitutions that form the basis of the political system. We see variations on three components: the procedural component, the human rights component, and the institutional component
• Horizontal separation of powers

  The separation of powers between branches of government
• Vertical separation of powers


  The separation of powers between levels of government
• Constitutional law


  A branch of public law that regulates the creation and exercise of political power, as well as the highest law in the "hierarchy of norms" (Kelsen)
• Constitutional review


  A form of judicial review by which judges check the validity of a national statute against constitutional law
• All modern democracies are constitutional (in the substantive sense), but not all regimes with a constitution are democratic
• The idea of the modern constitution first took root in social contract theory (Hobbes, Locke, Rousseau)
• The Bill of Rights established in 1689 was one of the first documents to be called "constitution"—it modified an existing, public authority and made consent of Parliament to rule necessary
• The American (1775-83) and French (1789) Revolutions were followed by the first attempts at creating an entirely new order, and thus first examples of modern constitutions
• Constitutions have diffused worldwide, and today act as a strong cultural model—their adoption facilitates international recognition, foreign investment and foreign aid
• Authoritarian regimes can use constitutions in three main ways: with "authoritarian" provisions, by suspending provisions, or by having "dead letter" provisions that are officially kept in place but do not effectively regulate power
• Flexible constitutions


  Constitutions that are easily changed, either procedurally (low threshold for amendment) or in scope (the entire constitution can be amended in principle)
• Rigid constitutions


  Constitutions that are more difficult to change, either procedurally (high threshold of amendment) or in scope (certain provisions might fall outside the scope of potential amendment)
• Most constitutions require at least a qualified ("supra") legislative majority for amendment, and some require a referendum to ratify amendments
• The role of norms and customs in constitutional stability, as well as case law as a pathway to adaptability in rigid systems, are important factors in the degree to which constitutions are amended or capable of adaptation
• The three main branches of government are the legislative power, the executive power, and the judicial power
• Institutional separation of powers

  The institutions that exercise these functions are differentiated into Parliaments, Governments and heads of state, the Court system, etc.
• Personal separation of powers


  The people that exercise these functions within these institutions are differentiated
• Executive power

  The branch of government, or the individual(s) at the top of that branch, that executes or administers policies and laws in a country and represents the State abroad
• Head of Government

  A person forming and coordinating the action of the government, in turn responsible for formulating and implementing policy
• Head of State

  A person with executive functions that is a country's symbolic representative at the domestic and international level
• Presidentialism


  A system of government where the executive is a single, popularly elected president who is both head of state and head of government, with a fixed term and no accountability to the legislature
• Parliamentarism


  A system of government where the executive is a dual executive, with a head of state (monarch or president) distinct from the head of government (prime minister) who is accountable to the legislature
• Semi-Presidentialism

  A system of government with a dual executive, where the head of state (president) is distinct from the head of government (prime minister) who is accountable to the legislature, but the president also has significant powers
• Presidential mandate


  No accountability to Parliament
• Presidential impeachment


  Judicial rather than a political procedure
• Head of government

  Accountable to Parliament
• Form of Executive

  • Presidentialism
  • Parliamentarism
  • Semi-Presidentialism