Экзамен зачет учебный год 2023 / Revision

1. The most important characteristics and underlying principles of American constitutionalism.

American synthesis was a unique blend of intellectual influences and their own inventions:

o Britain taught America the core tradition of constitutionalism

oThe ancient Greek notion of politeia, a plan for a way of life, and the Roman concept of constitutio stand as distant progenitors of the modern construction of

the term.

oA host of medieval and Renaissance thinkers contributed to the constitutional tradition upon which Americans built.

the matters of form, which derive from American practice rather than from foreign theories:

oAmericans put everything of constitutional status in a single written document. Meaning of its principle: The Constitution is thus far more accessible to the average citizen as opposed to an educated elite.

Although over time precise meanings will be buried in Supreme Court cases, the basic principles of the political system are readily available to the populace

o separate sections define the three branches of government, and the legislative branch is discussed first

o there is a preamble, but it does not have constitutional status

oa bill of rights separated from the main body of the constitution but also considered part of it [Americans had a habit of making a bill of rights part of their fundamental law, yet in various ways it was separate from the description of institutions]

institutions outlined in the national Constitution

o the American version of bicameralism [was neither derived from nor justified by the British precedent]

o separation into three branches of government with coordinate powers

o states are mentioned throughout - the state documents define who is eligible to elect congressmen, senators, or the president

o American’s adoption of federalism

o use of different constituencies for electing various public officials and use of different terms of office

o elaborate system of checks

o explicit enumeration of governmental powers o creation of an independent judiciary

theoretical principles, which underlie and tie together the entire US Constitution

oprinciple of a deliberative process (decision-maker’s thoughts and how they led to decision are not subject to revelation or scrutiny)

o federalism

o republicanism

o principle of the extended republic (decentralization) o consent

o liberty

o mixed regime (a government composed of some powers of monarchy, aristocracy, and democracy)

The British were no strangers to liberty, consent, deliberative processes, or mixed regimes, BUT the

Americans, however, pursued these principles with a vengeance that transformed them.

assumptions at variance with those underlying the British political system as it existed in the late eighteenth century

o Americans viewed themselves as a people

They firmly believed that on their own authority they could form themselves into a community, create or replace a government to order their community, select and replace those who hold government office, determine which values bind them as a community.

oThe Americans' rather complete notion of popular sovereignty was also radical in that their concept of “the people” was a broad one. England was the envy of Europe for its liberal institutions, but the least liberal American state in the 1780s, Georgia, enfranchised four or five times the percentage of the population as held the franchise in England.

anthropologists' approach of American constitutionalism [a sub-discipline of the science which specializes in "the cross-cultural study of social ordering"]. They have taught us that ritual precedes myth that practices develop and are then justified. Thus,

we should examine political practices and events out of which constitutional

theorizing arises. But in a developed culture, practice will sometimes flow from

theorizing based upon earlier practices, and the starting point is difficult to determine.

2. The legacy of colonial constitutional experience.

In terms of practical politics, the colonists generally elected their legislatures, and the governors were Crown-appointed.

As in England, the legislature (1) controlled the purse and (2) had effective control of the militia. The governor, on the other hand, did not have an upper house whose members were lords since there was no aristocracy in America. By the middle of the 18th century the legislatures in most colonies had more power than did their respective governors. The colonists had evolved a form of separation of powers – holding several offices at once was generally prohibited (this undercut the patronage system, which formed the basis for Hume's1 analysis and which made Montesquieu's2 analysis less erroneous for American colonial government than it was for England's government).

1David Hume (1711-1776) – An eighteenth-century Scottish philosopher, historian, and social theorist who influenced the development of skepticism and empiricism, two schools of philosophical thought. Hume's economic and political ideas influenced Adam Smith, the Scottish economist and theorist of modern capitalism, and James Madison, the American statesman who helped shape the republican form of government through his work on the U.S. Constitution.

2Montesquieu (1689-1755) – A French philosopher and jurist. An outstanding figure of the early French Enlightenment, he wrote the influential Persian Letters (1721), a veiled attack on the monarchy and the ancien régime, and The Spirit of the Laws (1748), a discourse on government.

of English government, which was unitary, could deal with these states. Their existence was one of those facts that rendered all English models virtually irrelevant.

3. Practical application of European theories and ideas.

Contract theory" of government developed by Locke (1632-1704)

John Locke, an English political philosopher, helped to further develop democratic ideas. In 1690, Locke published the First and Second Treatises on Government. These two books explained Locke's contract theory of government.

Locke wrote that all people had the inalienable or the natural "right to life, liberty, and property" Locke believed that people created government and chose to be governed in order to live in an orderly society. In other words, government arose from an agreement, or contract, between the ruler and the ruled. Thus, a ruler only had power as long as he or she had the consent of the governed. And, as a result, a ruler could not justly deny peoples' basic rights to life, liberty, and property.

John Locke and other philosophers developed a solution to the problems that exist in a place without government. In a state of nature people might feel free to do anything they want to do. However, their rights would not be protected and they would feel insecure. Locke argued that people should agree with one another to give up some of their freedom in exchange for protection and security. They should consent to follow some laws in exchange for the protection that these laws would give them. This agreement is called a social compact or social contract. A social compact is an agreement people make among themselves to create a government to rule them and protect their natural rights. In this agreement the people consent to obey the laws created by that government.

The contract theory expanded by Rousseau (1712-1778)

In his book, The Social Contract, Jean Jacques Rousseau wrote about an ideal society. In this society, people would form a community and make a contract with each other, not with a ruler. People would give up some of their freedom in favor of the needs of the majority. The community would vote on all decisions, and everyone would accept the community decision. When Rousseau wrote The Social Contract, there was not a society in the world with such a system. His vision, however, was shared by American colonists and others.

Limited Government suggested by Montesquieu (1689-1755)

In his book on government, The Spirit of Laws, Baron de Montesquieu developed practical suggestions for creating democratic governments. He stated that the best way to ensure that the government protects the natural rights of citizens is to limit its powers. And the best way to limit government's powers is to divide government's basic powers among a number of authorities.

By dividing powers between different branches or parts of the government, no one authority would have too much power. Montesquieu referred to this as a system of checks and balances.

Sir William Blackstone (1723-1780)

William Blackstone was a British jurist and legal scholar, whose work Commentaries on

the Laws of England (which was published from 1765 to 1769) was used for more than a century as the foundation of all legal education in Great Britain and the United States. Blackstone was born in London on July 10, 1723. He received his education at the University of Oxford.

of two or more smaller political communities, which, after formation of the union, are no longer sovereign but do retain a significant degree of autonomy.

The smaller political communities that are members of the larger federal union possess and exercise a substantial amount of home rule, but, at the same time, are bound by the constitution and constitutionally valid laws of the national government.

The distinguishing features of federalism place the federation somewhere in between the high level of centralization that characterizes the unitary state and the thoroughgoing (complete) decentralization that defines the confederation.

American government is conducted in accordance with and within the limits set by the fundamental law of the Constitution.

•Under the Constitution, restrictions on the discretionary authority of public officers and institutions are clearly recognized and regularly enforced. In short, the Constitution effectively limits the power of government.

•The U.S. Constitution not only limits the authority of the U.S. central government, it also limits the authority of the states and their local subdivisions. The authority of a state and its local communities is further limited by its own state constitution.

•The US Constitution obviously has the supremacy and take precedence over all other laws, such as ordinary acts of Congress and the state legislatures, and over all decisions and actions of the executive bodies of the US and the states.

6.Republican government.

•The United States of America is a republic. It means that there are no inherited offices in the government. Every office in the government is elected (directly or indirectly) or appointed according to law. No government office is occupied by a hereditary monarch or titled nobleman.

•Article I, Sections 9, 10 of the U.S. Constitution prohibits both the national government and the states from granting or officially recognizing titles of nobility.

•Article IV, Section 4 of the U.S. Constitution obligates the national government to guarantee each state a republican form of government.

•These constitutional provisions were intended to enhance the republican character of American government.

•The American system of government is a constitutional republic – a political regime in which the features of constitutionalism and republicanism are combined.

•Alexander Hamilton wrote in his Federalist Paper No. 84 that the greatest security to liberty and republicanism was the establishment of the writ of habeas corpus. Federal habeas corpus is a procedure under which a court may review the legality of an individual's incarceration. It is most often invoked after conviction and the exhaustion of the ordinary means of appeal. The right of habeas corpus is not a right against unlawful arrest, but rather a right to be released from imprisonment after such arrest.

•Article I, Section 9 of the Constitution states, “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

7.Separation of powers. The system of checks and balances.

•Constitution divides the national government into three separate branches – legislative, executive, and judicial. The three branches of the national government are institutionally separate from and largely independent of one another.

•The U.S. Constitution (1) grants certain powers to the national government and (2) allocates these powers among the three branches of the government.

•Each governmental branch is given its own set of powers; each branch has its own separate constitutional grant of authority.

• Powers of governmental branches

oCongress. The powers of Congress are mainly legislative in character – (primarily lawmaking powers).

oThe President. The powers of the President are primarily executive. (Presidential power is mainly authority to enforce, or carry out, the laws.)

oThe U.S. Courts. The powers of the U.S. Supreme Court and the other federal courts are judicial. (Judicial authority is the power of the courts to interpret, or construe, the law). -> courts have power to decide

(1)the meaning and intent of the law

(2)how the law is to be applied in particular cases.

•Under the U.S. Constitution, each of the three branches of the national government has some authority to check and control the decisions and actions of the other branches.

•Each branch of government has the right

oto participate in the primary activities or functions of the other branches and, in so doing,

oto withhold consent, cooperation, and support in the areas where it shares decision-making authority with the other branches, delay and block the actions of the other branches, and thereby check and restrain the other branches.

•So one governmental branch can prevent the other branches from usurping its own powers and force them to stay within the limits of their constitutional powers.

8.Strict legislative bicameralism.

Bicameralism was hardly an American innovation, but the American version was neither

derived from nor justified by the British precedent.

Each of the two houses of Congress has the power of absolute veto over legislation favoured by the other house. The consent of a majority in each chamber is required for passage of a legislative bill by Congress. This makes the system of checks and balances a system in which

four major governmental entities check and restrain one another and are interdependent

and the four principal organs of the national government are mutually dependent, i.e., dependent upon one another.

Each of these major institutions of the central government, for effectiveness and success in the performance of its primary functions, is dependent upon the consent, cooperation,

and support of the other governmental institutions.

• bicameralism (Congress consists of the House of Representatives and the Senate)

—-> Article I, Section 1

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

•Houses are two separate legal entities and have the power of absolute veto over each other’s legislation

9.Balanced government

•Balanced government is the consequence of combining separation of powers, checks and balances, and strict legislative bicameralism. One very important way in which the U.S. Constitution limits the authority of the national government is by dividing and distributing its powers among several separate and largely independent governmental organs. These governmental institutions reflect varying and competing interests and therefore have strong incentives to counteract and check one another. In counteracting and checking each other, the principal organs of government maintain a balance, of power in the government.