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a címek nem mindig lesznek egyértelműek, az egymást követő témák néha nem kapcsolódnak egymáshoz, ez azért van, mert órán sem. a témák közti csapongásokat is remélem, megértitek, nyilván nem én jegyzetelek így, hanem így tartja Lojkó az órát. Britain: no written elector system, based on customs and conventions
parliament is not proportionally representative o “the winner gets the goods” nd o the 2 party is the opposition right now: political revolution: coalition o coalition of the conservative and the liberal party small parties disappear no written constitution conventions o Dicey, Maideland wrote about the British constitution reference o W. Bagehot tried to clarify the constitution in 1867 o the words of the judge (e.g. in a case) may become law, or even a constitutional law o the constitutional court was established in 2009 by the House of Lords o still no law to guarantee human, personal personal rights o the English law (common law) was inherited by the USA, and remained intact it changed completely in Britain in 1972 (GB joins the Common Market) o the British common law originates from Germanic tribes who came to Britain th in the 5 century
no sovereign country before the middle of the XVII. century the idea of building a sovereign system derives from the 30-year war (1618-48) o the state system was born with the peace of Westphalia Montesquieu: the French nation does not live up to the people’s expectations o John Locke: similar ideas before M. the divine power of the king is bullshit it can only be right and made just with a contract o Montesquieu: what should this social contract contain? 3 strict elements
monarch
aristocracy
the commons 3 branches of government (L, E, J)
must be separated
they may be artificially created by revolution, or by historic evolution 3 types of governmental system
well separated by the constitution in England, not in France
constitutional monarchy
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the power of the monarch is closely monitored
republic
despotism
Blackstone (1723-80) o Montesquieu o 4 books on the constitution of England 1. The rights of persons
internal relationships between husband and wife
relationship between the monarchy and the people
relationship between master and servant 2. The rights of things
the common law describes the rights, instead of prohibitions
land belongs to the monarch, you can only buy the use
possessional possessional rights: the land goes back to the crown if there is no heir to it
3. ? tort: anything outside criminal law o the wronged person has to turn to the government for help 4. Prosecution rights (criminal law)
the government is obliged to go after criminals
DeLolme o 1771: The Constitution of England more extensive and stable political freedom influenced the American constitution it applies equally to everyone unique in the time
1820-1901 High Victorian England (after George III.)
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* in 2009 the Supreme Court was established as the highest court today 90% of new laws originate from the House of Commons the members of the Cabinet have to be members of the legislature (a member of one of the Houses) the British system does not necessitate an election for Prime Minister, it can be appointed by the monarch
constitution o either: reflection of the ruling elite o or: expression of the political culture polity: everything that forms a nation Hungary (why?...) o Werbőczy: Tripartitum (1517) customary common law
no written form before 1514 (Dózsa)
was never applied, it was only what he wanted litigants (people who litigate [accuse]) were dissatisfied with the common law
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Constitution of the UK
documents o Magna Charta Libertatum + o European Act on Human Rights o 1679: Habeas Corpus Act definition of situations with people in custody/under arrest/…etc.
detention can’t be longer than 48 hours
visitors must have access to the person in custody
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a judge has to specify the charges against the person still valid (amended ( amended version) 1689: Bill of Rights not like the American BoR defines, creates the English Constitutional Monarchy
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function of the monarch and government 1702: Act of Settlement the monarch must be protestant
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the concept of prime minister is the outcome of this Act constitutionally it doesn’t exist (the position of PM)
there is no law for him The Parliament Acts (1832-67, 84-85, 1911-49) strict regulations for election (electors and electables) regulations for the relationship of the parliament and the people, and the Lords and Commons Public Order Acts (1936, 63, 86, 94, 96) these replace common law “common-looking” people could be imprisoned for before 1936, “commonloitering dressing regulations (36) ’96 Act: removes the right to remain silent in court
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if the person in custody still remains silent, the negative answer answer to the court is automatically presumed 1905: Alien Act there was no concept of citizenship in the UK before 1905 this was the outcome of lots of jews j ews immigrating into England from the Russian Empire (refugees) 2011: Fixed Term Parliament Act every government has a 5-year term that has to be served
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Conventions
not to be confused with [common law (principles)]
“gazump” = átbaszás
conventions (not codified) can be binding, like laws, according to Dicey
common law might emerge from conventions
the majority of written constitutions comes from a revolution
conventions + common law = case law o obiter dicta: the incidental comments comments of a judge, which which can be taken taken out of context and used in later cases 5 categories for constitutional conventions by Andrew Herd (Canadian) 1. fundamental conventions almost laws o e.g. the person of the PM is the leader l eader of the winner party, who forms the new government and is Lord of the Treasury o e.g. the supremacy of the Parliament there is no law or power supervising the Parliament nowadays there is, the EU can overwrite British laws e.g. the Parliament cannot bind itself
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no law can limit the freedom of future debates o e.g. the 650 constituencies of the UK (electorate units) 2. Meso-conventions o their details might change
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e.g the Queen’s speech is always written for her Cabinet responsibility
the policies must be supported individually by each member of the Cabinet if a disagreement comes to light, the person in question must resign 3. Semi-conventions o rules prescribing desirable powers o e.g. there should be no coalition governments governments 4. Infra-conventions o rules that support constitutional principle o e.g. all elections take place on a Thursday in the summer 5. usages based on habit or ceremonial symbolism
Commonwealth: the former dependent territories of the UK (NZ, Canada, etc.) what are the grounds for not breaking conventions? (Dicey) o mutual interest conventions used to be of mystical origin has a specific origin
Dicey: that’s bullshit; every convention
the relationship between convention and law o according to Dicey, conventions can overwrite laws
Civil Service
Whitehall: everybody serving the crown (ministries, offices, etc.)
400000+ people belong to the Civil Service
C.S. is a strong convention (not written down)
example: Foreign Office
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SofS = Secretary of State (“miniszter”) PUS: Permanent Undersecretary of State o runs the department as the head, irrespectively of any party, government, or politics Ernest Bevin: Secretary of State for Foreign Affairs from 1945-51 (we needed to know that)
the system of the C.S. cannot be altered
there is no link, no connection between the departments of the office
vertical hierarchy, never horizontal
C.S. of the USA
connection between the departments
direct link to the Secretary
when the presidency changes, everybody goes (no permanent C.S.)
The Cabinet Office
Sir Maurice Hankey o head of Cab. S. at the time of WW I. the prime minister was ousted by the Parliament in 1916 December o Lloyd George follows (because of a desperate WW I. situation) new kind of constitution
Parliamentarians have no use invited 5-6 friends of his to help lead the country, closed sittings of o f Parliament
created a Cabinet Secretariat o head: Sir M. H. took on PM responsibilities, so L.G. didn’t have to worry about those called an election in 1918 after winning the war won (PM can call an election anytime*)
[*this is not valid since 2011] resigned in 1922
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after L.G. resigned, the new government wanted to abolish the Cab. S. not possible, Hankey had too much power and was too popular o in the times of Churchill, Hankey had to go, but the Cab. S. stayed in place it is still active today, and is the th e head of the C.S. (Sir Gus O’Donnell), and a decisive, powerful position SofS used to be properly accountable for their decisions; now they can name civil servants who are responsible (in their opinion) instead the anonymity is lost
The territory of the country
Germany: the constitution describes describes the connection between, between, and the state of the Länder there is no definition for the union of England with Wales o you can say Wales is a principality, but it’s not accurate in 1604 King James was crowned king of Scotland too invented the phrase “Magna Britannia” o union with Scotland o education, religion and law is their own in Scotland, these are not affected by England o Scotland has a First Minister (PM) now o it’s impossible to to define the state of Scotland in the union, as well as that of Ireland and Wales in 1541 the king of England became king of Ireland too o 1800: Ireland incorporated into the Kingdom (UK of England and Ireland) this is when the t he Union Jack was created o 1920: civil war in Ireland: Northern Ireland separated from Ireland N.I. wanted to become a completely independent, independent, sovereign entity
they remained loyal to the crown
even the territorial distribution/state is a convention
devolution: legislating towards the autonomy of the countries in question
1977: West Lothian Question o Scottish, Welsh, N-Irish N-Irish people vote for English stuff, but English people don’t vote for them. Why? Wh y?
[this turns into something totally unrelated to the previous topic]
the judiciary in the UK
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1867: Reform Act (or Representation of the People Act) o “ordinary people” “ordinary people” received the right to t o vote
functions of the HoC (according to Bagehot) o electoral chain o expressive function: reflects the view of the t he nation
The current British government
79 – 79 – 97: 97: Margaret Thatcher
June 2010: formation of the Coalition
Nick Clegg: leader of the liberal democrats o 13% on the 2010 elections David Cameron: leader of the conservatives o 38% on the 2010 elections
coalition
Nick agreed to the coalition with 2 conditions: changes to the electoral law o introduction of a referendum on the AV system (Alternative Vote) instead of the FPTP system (First Past The Post) if someone gets more than 50% of the votes within a constituency, the winner only gets the percent of the people that actually voted e.g. if 10000 people are eligible to vote and 5000 actually go to vote, and 51% of them vote for the same party, then the party will only get 2500 25% of the votes fixed term parliaments 5 years only the second was passed
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USA st
1 colony: Virginia
the 13 colonies were separate entities
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later they had assemblies
160 years of self-governing through common law and British conventions Americans decided to create a written constitution instead of continuing with common law because the values of the new era had to be expressed o leaves law-creation in the hands of the public does not limit the 3 powers may seem separated, but they are immensely drawn together by economic forces 1787: Philadelphia Convention: final form of the constitution o Washington as president it was known at the time of the t he creation of the constitution that it would be interpreted in many ways and amended because it is so short some of the core elements of the American constitution are unwritten (e.g. the electoral system)
conventions
early constitution of the USA o each of the 13 states were very different o it was debated to what extent should they be united minimalists “won”: very loose confederation between the states o in terms of economy, the confederation failed they decided to call a convention Phil. conv. Thermidorial constitution Alexander Hamilton and James Madison decided to create a journal The Federalist contained their ideas about the government Alexis de Tocqueville one of the greatest commentators on the American constitution at the time he traveled through America to do research on the prison system
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ended up doing research on the government (1830s) o 2 volume book: Democracy in America many criminals moved to the south good soil extensive farming slave labor the people of the south wanted to stay out of the federal government’s business and remain individual north: immigrants equal political system (equal rights, opportunities, … etc.) north south northern territories became more dominant with the industrial revolution the northern people changed the constitution
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some core practices are not included in the constitution
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the constitution didn’t say anything about the president and its relation to the department of state Washington appointed state secretaries to arrange meetings with the departments G.W. created the first Cabinet every president has to assemble their own cabinet the electoral college members should vote for the candidate with the most votes received just a convention, not written down they are supervised by the Supreme Court the committee system that forms the Congress is also unwritten
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The Constitution (part 1.)
vague can be interpreted in many ways, history shapes it
the Senate is elected for 6 years, 2people/state
everyone has the right to vote for the members of Congress
1821: Monroe Doctrine: as long as the th e USA exists, Europeans cannot come to America with the purpose of colonization at the end of George Washington’s pr esidency, esidency, he wrote a Farewell Address: a promise never to get involved with European business o Wilson incorporated this into his presidency at the time of WW I. no war in Europe
Presidency
the president is the representative of a party in Britain, not so much in the USA the president has to be a US-born citizen and at least 35 years old, at least 14 lived in the US before his election o no limit for this in the UK “administrative head of the nation” “commander and chief of the military” o the highest ranking officer
can convene Congress on special occasions
power to veto legislation
appoints members of the Cabinet
power to make treaties with foreign powers
power to grant amnesty
inherent powers (not stated in the written constitution, but the spirit of it allows allows “free” interpretation for the president) o e.g. at the time of the Civil War, Lincoln ordered more soldiers than what the congressional congressional ceiling allowed (700000 instead if 250000) o starting of the Vietnam war was completely unconstitutional, because JFK didn’t didn’t ask Congress power to persuade
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The Constitution of the United States
legislature members elect senators
the Supreme Court has power to override legislature
only 1/3 of the Senate is reelected every 2 years
changed in an amendment in 1913
people elect the members of the House of Representatives o in proportion to the population of each state
435
Article 2: Powers of the president (previous section) specific, detailed rules for impeachment (of certain office-holders) o the Senate is the court for the person accused 2/3 of the Senate is needed to approve of the sentence Article 3: Supreme Court Article 4: justification for slavery o superseded by Amendment 13 in 1864 o physical servitude (“indenture (“in denture servitude”) servitude” ) remained as a lawful punishment
Article 5: on amendments
Article 6: ?
Article 7: 9 states are enough to ratify the Constitution
1795: Bill of Rights: 10 amendments o individual human rights o Amendment 1: freedom of speech, religion, press, assembly, and petition to government o Amendment 2: the right to bear arms o Amendment 3: ? o Amendment 4: right to privacy against searches and seizures without specific reason o Amendment 5: protection against false trial o Amendment 6: protocol of jury trials (valid trial, jury, j ury, defense, etc.) o Amendment 7: protection against double jeopardy once found not guilty, you cannot be tried again (unless there is new significant evidence) o Amendment 8: no excessive bail or unusual punishment (torture) o Amendment 9: certain privileges cannot override certain rights or laws o Amendment 10: states can make their own laws if it doesn’t collide with federal law o Amendment +1: an accused person cannot be forced to be witness in their own case
Examples for overlaps within the US government
Congress can create departments of state
who is in charge of legislature about “new” thing? (e.g. the radio in the 1910s and 20s)
Congress can overwrite executive regulations
C.S. consists of 3 million people
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FBI and CIA created by Congress o executive agencies blacks and native Americans were discriminated in the army, in terms of employment, in hospitals until 1967 it wasn’t clear if the constitution allowed this or not o you know these things based on former judicial cases
America’s external influence/foreign policy
until the end of WW II., American diplomats were not trained in diplomacy o the diplomatic corps was made up of rich men (not experts of foreign policy) they didn’t need foreign policy o o diplomacy started developing at the beginning of the Cold War USA wanted to prevent Marxist revolution in the late 70s in Nicaragua and end the Samosa dictatorship, because it would be “somehow harmful to the USA” o Reagan authorized channeling secret secret funds to Honduran guerillas to overthrow the Nicaraguan dictatorship against the constitution revealed scandal 1961: Bay of Pigs o Batista (fascist leader) in power, overthrown by Che, Fidel, etc. this bothered the USA, because the communist state wasn’t a “client” to their country
USA invaded the Bay of Pigs o the Cubans called in Soviet and other militia invaders killed/captured Congress did nothing to prevent further decisions like this
1964: Gulf of Tonkin (Vietnam) o until 64, the Vietnam war was more like a conflict than an actual war o Congress wouldn’t declare war, so Johnson sent a massive army to Vietnam on August 4 (50000 soldiers), putting the blame on a small incident between the USS Maddox and some Vietnamese ships (August 2) in 2005, NAVY records were declassified August 4 never even happened (on that day Johnson referred to his power to retaliate to a direct attack against the US) 1973: War Powers Act o presidents would not be allowed to send troops like this Nixon vetoed this
to other countries
Congress voted Nixon’s veto a way to sidestep this act: it allows military presence for 60 days, which used to work, but today it is not n ot possible (too expensive to move and come back, requires more money and time)
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the State Department responsible for foreign policy is now much better certain offices may become strong if allowed by presidents (offices in charge of foreign policy) o e.g. Henry Kissinger, National Security Advisor to Nixon
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e.g. Caspar Weinberger, Secretary of Defense of Reagan e.g. Leon Panetta, Chief of Staff of Bill Clinton Cli nton
now the State Department is the head of foreign policy, consisting of other offices responsible for this
LEGEND HoL: House of Lords HoC: House of Commons C.S.: Civil Service Cab. S.: Cabinet Secretariat L, E, J: Legislature, Executive, Judiciary WW: World War USA: United Stated of America (duh)
