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TOPIC 10. CONSTITUTIONAL LAW OF THE UNITED STATES (II)
1) SEPARATION OF POWERS /CHECKS AND BALANCES DOCTRINE:
ORIGINS
Origins of the doctrine of separation of powers move us to England in the Glorious revolution and its aftermath (1688):
• John Locke (1632-1704): Two Treatises of Government (1689)
distinguishing between 2 branches: The legislative and the executive.
• William Blackstone (1723-1780): Commentaries on the Laws of
England (1765-1769)
Montesquieu (1689-1755): The Spirit of the Laws (1748). Even though being French he would describe the system in England and his idea of separation of powers would reflect what he has observed in the British system.
• Identifies the three functions (and powers) of the Government:
Legislative, executive and judicial.
• Introduces the idea of checks and balances: The interrelationship
among powers. There are some relations between the branches. Actually what it has to be avoid is concentrating the 3 powers in the same hands.
• Conceives the judicial power as the weakest power. Judges are
laymen (no professionals and then they can’t do more apart from saying what law says): ‘ judges are no more than the mouth that pronounces the words of the law ’.
2) SEPARATION OF POWERS IN CONTINENTAL EUROPE
French revolution (1789-1799) moves to make an alternative reading of Montesquieu who had established distinct and strict separated powers without connections.
Rousseau had influence in distinguishing powers after revolution and in the creation of a new country.
▲ Supremacy of the Assembly (legislative power). Goes from the
idea that the higher power would be the legislative power because it was the seat of general will. Since this general will was in the assembly the assembly would be the highest power.
▲ The judicial power was the weakest power. The Old Regime gave
heritage to judicial power because there was a bad conception of judges and they had no power to interpret law (Référé Legislatif). Furthermore there was lack of judicial control of the legislative (no judicial review) and executive power (the administrative courts). If there was no checks and balances it was difficult to put a brake into the powerful branch, and that could explain why in the France after revolution the legislative made a constitution with which many people went to guillotine.
This situation explains the old French constitutionalism (and European constitutionalism): a political Constitution, a formalistic separation of powers doctrine, the superiority of the legislative power and the judicial power in its weakest position.
RESHAPING THE SEPARATION OF POWERS DOCTRINE IN EUROPE: POST-II WORLD WAR CONSTITUTIONALISM
The idea of legislative not being fair every time provoked that people needed a judicial review putting limits to the legislator in the sense to protect fundamental rights.
Stress points that change the old views:
• Weakening the superiority of the legislative power:
• A normative Constitution.
• Taking seriously fundamental rights.
• Enhancing the executive power and making a powerful executive
power in order the other branches respected the domain of the executive power, making sure it had enough power.
4) SEPARATION OF POWERS AND SYSTEMS OF GOVERNMENT
The basic choice between the parliamentary and presidential systems of government
PRESIDENTIALISM: U.S. AS A MODEL
Separationist model : Electoral separation between the legislative and executive powers. They separate the election of the president and the election of the legislative power. This fact has consequences:
• Different source of legitimacy of both powers (different elections).
Both powers are directly legitimated.
• Direct democratic legitimacy of both powers.
• Different temporal mandates: different majorities.
• No powers of removal.
• The President cannot dissolve the Parliament
• The Parliament cannot dismiss the President: The impeachment
exception. This exception is when the president commits a type of offense against the public powers ( traición ) can get out of office. It needs qualified majorities in the house of representatives and in the senate.
Functional interrelationship
• President’s prerogatives in the legislative process: initiative and veto
power
• Congress’s prerogatives in the executive process: appointments,
hearings, oversight committees, budget approval
PARLAMENTARISM: SPAIN AS A MODEL
The election of the legislative and executive powers:
▲ Confusion: Both powers have the same source of legitimacy. Out
from one election come the executive and the legislative. The legitimacy of the Government or the executive is an indirect legitimacy (comes from the legitimacy of the Parliament).
Close ties between the two powers:
• Maintaining parliamentary confidence. The government needs the
confidence of the legislative. There is dependency of both powers. If the government loses the confidence of parliament non-confidence vote
• Head of Government/ Government has prerogatives:
• Dissolution of the Parliament and call for elections
• Vote of confidence ( cuestión de confianza )
• Legislative initiative
• Budget privileges
• Parliament prerogatives:
• Dismissal of the government: non-confidence vote/
motion ( moción de censura ).
• Hearings, committees, questions, requests of information
