Midterm questions

1. Legislative review
Legislative review means any review or proposed review of existing or proposed legislation
whether state or federal.

2. Marbury v. Madison
Marbury v. Madison, 5 u.s. 137, was a landmark u.s. supreme court case that established the
principle of judicial review in the united states, meaning that american courts have the power to
strike down laws and statutes that they find to violate the constitution of the united states.

3. Criteria for resolution of antinomy

• Chronology- for sources a and b belonging to the same level of the legal system
• Hierarchy- for sources a and b belonging to different levels of the legal system
• Competence=in federal regional legal orders the constitution establishes specific
competences of the different sources of law

4. Repeal and annulment

Annul is to formally revoke the validity of while repeal is to cancel or invalidate a norm.

5. Checks and balances

A system of provisions that mitigated the the rigidity of the principle of separation of powers.
Two other fundamental tools of checks and balances are impeachment and veto power.

6. Procedure of impeachment
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.

7. Presidential and parliamentary forms of government

Presidential government- the presidential government is established for the first time in the
federal constitution of the united states of america. It is based on a rigid separation between the
legislative and the 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.

Parliamentary government- the parliamentary government appeared in the united kingdom

during the 19th century as a transfor- mation of the constitutional monarchy settled by the
glorious revolution and then spread throughout europe. Contrary to a presidential govern- ment,
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).
 8. Differences between judicial review and centralized review of legislation
In the judicial review system all the courts are entitled to review the legislation and to refuse the
application of unconstitutional provisions to the case they are judging, in the centralized review
system, the judges have only the power to issue the constitutional question to a spe- cialized
court, whose decision, though, has general effects, overwhelming the validity of the norm.

9. Pocket veto
The pocket veto is an absolute veto that cannot be overridden. The veto becomes effective when
the president fails to sign a bill after congress has adjourned and is unable to override the veto

10. Veto power in the US, presidential veto

Another instrument of checks and balances provided by the american constitution is the
presidential veto on the bills passed by congress. Veto power is a check upon vicious legislation,
a means of moderation of political decisions and a tool for the protection of the constitution
against parliamentary statutes. Absolute veto power was rejected, but a qualified veto power was
recognized: it is if the president were to veto a bill passed by congress, congress could over-ride
the presidential veto with a two thirds majority in both houses. In such a case, the president
would be compelled to sign the bill.

11. What is a rigid constitution

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
an enhanced stability, and makes the constitution the superior source of the legal system.

12. What are reconstructed amendments

Reconstruction amendments were the first major constitutional transformations since the federal
bill of rights, and represent still today the founda- tion of the constitutional tools for the
protection of funda- mental rights in the united states.

13. France constitutionalism

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.

14. Constituent power in france

The constituent power of the nation is the people’s right to shape the constitutional structure of
the state according to their values and interests. According to the main theorist of this doctrine,
emmauel joseph sieyès, constituent power belongs to the nation as a whole, and especially to the
bourgeoisie and the third estate, which were the actual leading social classes in france.
15. Origins of american constitutionalism
The famous compact of the mayflower was igned by the pilgrim fathers in their vessel, before
landing in america. This 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
 16. Philadelphia convention
The constitutional convention took place in philadelphia from may 25 to september 17, 1787.
Although the convention was intended to revise the league of states and first system of
government under the articles of confederation,the intention from the outset of many of its
proponents, chief among them james madison of virginia and alexander hamilton of new york,
was to create a new frame of government rather than fix the existing one.

17. Debate taken place at the philadelphia convention

The major debates were over representation in congress, the powers of the president, how to
elect the president (electoral college), slave trade, and a bill of rights.

18. Difference between legal order and legal system

Legal order ia a set of institutions and norms regulating the structure and rules of a stable group
of men while legal system is a set and methods of organization of the sources of law.

19. Basic concepts of ancient constitutionalism

: constitutionalism is identified as a political doctrine that first appeared in england during the
17th century, and quickly spread throughout north america and western europe. It has striven to
achieve the goal of limiting political power through-
• The adoption of a written constitution
• The separation of powers of the state
• The legal protection of a wide range of individual rights.

20. Constitutionalism
: constitutionalism is the legal outcome of philosophical doctrines of the modern age -
jusnaturalism, contractarianism, and liberalism – with which it shares not only theoretical
premises, but also political goals which is to fight monarchical absolutism and to transform the
political, legal and economic structures of the ancien régime.

21. Impeachment in england

: originated in england during the age of limited monarchy, impeachment was a trial carried out
by the chambers of parliament for crimes committed by the ministers of the crown. However,
impeachment lost its role it was substituted by the emergence of the relation of confidence
between parliament and ministers, and the political responsibility of the ministers for their
actions.

22. President of the usa

President of the united states is elected for a term of four years, together with a vice president,
poised to substitute for him in the case of an early interruption of the presidential term. The
president is not only the chief of the state, but also the leader of the executive branch, and
therefore is entrusted with the power to appoint the officials of the federal government (under the
advice and consent of the senate), and to lead the federal administration.

23. Division in philadelphia convention

The delegates of the thirteen states were divided by several factors. A first division was between
the largest and the smallest states of the union. The largest states were calling for a stronger
union: they were arguing that the confederation was a weak institution. As for the smallest states,
they feared that by taking measures aimed at reinforcing the union, this would strengthen the role
played by the largest states.

A second division was between the northern and the southern states. The northern 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 and slavery was one of the elements
of opposition between the new england mindset, believing in the equality of men.

The largest states arrived in philadelphia with a plan for the constitution, drafted by james
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. In opposition
to this plan, the new jersey plan, soon drafted by the delegates of the smallest states, proposed to
maintain the structure of the congress of the confederation, articu- lated 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.

24. Elements of french constitutionalism

• Kind of rights found in the revolutionary period

• Different forms of government
• English electoral system
• American constitutionalism
• Main features of semi-presidential form of government
• Difference between french and english rights (declaration, bill)
• Evolution of president's role in the usa

25. Negative rights

Locke talked about the ideas of life, liberty and property = the goal of the government should be
to protect the rights of individuals, and if it doesn’t comply with its role, the people have the
right to take the power back
• the rights he talks about are called negative rights (of 1st generation) = they are respected
only if the state doesn’t interfere with them (if it does, it means this freedom has to be limited)
→ property, freedom of religion, speech and assembly
• later, with the process of democratization, positive rights (of 2nd generation) will appear
= the state must intervene to protect them → right to education, right to health
Final exam

Weimar:
Watershed from liberal to democratic constitutionalism
Bundestag:
Lower chamber of the parliament
1. Origins of the german basic law:
• Who drafted it?
Drafted in bonn in 1949 by laender and western allied forces (member states)
His role was fundamental.
• The structure
It followed the structure of the us that believed in the relevance of federalism to avoid the
rebirth of totalitarian regimes.
• Territorial framework
The aim for the new constitution was to avoid political weakness and instability, that
characterized the weimar constitution and led to the affirmation of the nazi regime. The
unification of germany took place in 1990 and the constitution simply got extended to the
eastern part.
• German federalism
The basic law establishes a centralized government led by a chancellor the bundestag. The
german parliament is strong and rationalized in contrast to the constitution, which is aimed
to grant stability to the leadership to the chancellor. The creator of the constitution provided
a weak role for the president of the republic.
• Militant democracy
Learning from the weimar, the bundestag establishes an effective protection of militant
democracy through the control of constitutionalism of the political parties and detailed
regulations of freedom of expression.

2. Semi-presidential government in france

After the ww2, france decided to get a new constitution that would replace the one of the
third republic, which establishes the semi-presidential system.
This is a mixed form of gov that includes both parliamentary and presidential systems which
can be compared to weimar.
At first, the president was elected by a group of delegates, later on 1962 the popular election
was introduced to strength the connection between the people and the president. The
president has powers to dissolve the national assembly and take extreme measures in case of
national emergency. The cabinet must receive the confidence of national assembly. The
president and the cabinet share the same executive power
• Cohabitation
It’s a dual executive branch. This happens when the president and the prime minister don’t
share the same political line. This is rare because the prime minister is elected after the after
the president, so they often share the same political line.
 3. Canada's constitution
It’s an adopted parliamentary gov inspired by the western model. Along with nz and
australia, are the main countries with stabilized political and constitutional systems
belonging to the commonwealth.
According to art1 of the canada act, the supreme law consists of 3 constitutional sources:
• British north america act of 1867
• The subsequent amendments
• The canadian constitution act (which includes the charted of rights and freedom)
The canada act provided for the patriation of the canadian constitution: it established a
domestic amending procedure, they must be enacted according to part 5 of the constitution
act (that provides 5 amending formulas, it requires unanimous consent of all the provinces
in case of some special amendments)

4. Eu sources of law
The number one source of law is the european treaties, but their main features of their legal
order is that its entrusted with the power to produce norms and acts through the constitution.
Under these primary sources, there are secondary set of legislations which are divided in
binding and non binding;
• The non-binding are recommendations and opinions, and their effectiveness shouldn’t
be underappreciated, this is mostly because the states of the eu pursue acts through
non binding agreements. If the states don’t adapt, the acts eventually become
binding
• The binding sources are regulations are from directives. They have direct effect and
are immediately applied to the legal order of the member states.

5. Is it a federation or an international organization?

It’s an international organization made up by 28 member states, governed by principled and
representative democracy. It has characteristics of federation, but it works compound with
all its states through representative democracy so there is no subunits within the org.

6. Is eu interested in protecting human rights

The universal declaration of human rights was adopted by the general assembly of the
united nations on 10th december 1948. This transformed international laws and the
international community which include:
It includes both civil and political rights (such as the right to life, liberty, privacy and free
speech),
Economic and social rights (such as the right to health, education and social security).
This concept was rooted after the atrocities committed in the ww2 against human rights.
Their aim was to demolish the link between individual rights and state citizenship, in
order to enhance the role of international law in the protection of the rights recognized
within. The guarantee and protection of the rights of individuals ceased to be considered
exclusively as part of the domestic jurisdiction of the states.
This declaration was fundamental because it influenced the development of international
law and constitutional provisions on the protection if human rights in many countries
It was he base for the other international treaties adopted during the 2nd half of the 20th
century that were aimed to promote the development of human rights (like the echr-
european convention of human rights)

7. Institutional framework of the eu

The treaties define it as an union of international + constitutional structure and procedure.
The lisbon treaty added basic tools of direct democracy and a structured set of relationships
among the member states’ parliaments and the eu → the goal was to shape a democratic life
of the union and overcome the original democratic deficit:

8. Can the court of justice annul the acts of the union, when does it happen?
The court of justice of the european union (based in luxembourg) is the judicial branch of
the eu → it’s composed of the general court and the court of justice relation between the
treaties and the sources of law decisions issued by the court of justice are binding for the
referring national court + all the national authorities of the member state → ecj can only
annul eu legislation (not the national one), so it forces states’ judiciary branches to
annulment/non-application of domestic regulations

9. Brazilian constitution
The brazilian constitution (1988) is based on the goal of eradicating poverty and social
inequalities through the catalogue of rights, this is broad and gives prevalence to
social/workers’ rights, it has direct protections.

Brazil is a federal state based on cooperative federalism: there are many concurrent
matters between the states and the federation + the federal senate mirrors the us model
(same number of representatives for each state) + there is a federal supremacy clause =
explains when the federal intervention is admissible in matters falling within the states’
competences; brazil has a presidential government:
The president and vice president are directly elected by popular vote (for 4 years)
There is a 2-round electoral system = if no candidate achieves an absolute majority in the
1st round, a 2nd round of voting is held
The relationship president-parliament is regulated by instruments that follow the us
model = impeachment, presidential veto, senate’s power to approve appointments by the
president, president’s power to initiate legislation, possibility of delegating normative
powers to the executive → the president participates in the legislative function

10. Weimar’s constitution

It’s the best example of the passage to the new democratic constitutionalism: it aimed at
assuring social inclusion of the masses and organizing social pluralism;
Mass political parties assumed political leadership supporting a provisional government
and the constituent assembly
The constitution acknowledged social rights = imposed state intervention to achieve
social goals and the improvement of individual/collective welfare [right to education,
health, work, dignity in work relations, etc] → not rights of the liberal traditions (negative
liberties of the bourgeoisie), replaced by a project of social inclusion of the masses; there
was a new idea of private property (before it was a paramount liberty protected from any
external interference) = it’s protected as long as it doesn’t affect public good (it can be
expropriated by the state if necessary)

11. Charter of nice

Charter of fundamental rights of the european union = adopted in nice (2000) to codify
the rights already existing/protected by the ecj (resulting from a. And b.) → the lisbon treaty
formally incorporated it into the eu treaties (according to art. 6 teu, it has their same legal
force) and today it’s applied by states’ courts and by the ecj

12. Conflict eu/national law

The eu legal order has the features of an international law organization + of a
constitutional supranational organization, but the historical development of the process
of integration follows a direction towards federal/constitutional integration:

13. Indian constitution

The constitution of the federal union of india was adopted in 1949: the open and highly
dynamic federal structure had the aim to preserve the unity of a huge population with
social, ethnic, linguistic and religious differences
The constitution affirms that the basic principles of the legal order are democracy and
socialism: the latter is intended as the support of the welfare state (not of
socialism/communism) and social equality → it aims at abolishing the indian rigid caste
system; the catalogue of fundamental rights affirms the principle of equality (formal +
substantive) and the protection of social rights:

14. Court of justice

The court of justice of the european union (based in luxembourg) is the judicial branch
of the eu → it’s composed of the general court and the court of justice (ecj) = main judicial
authority, has strengthened the competences of the union and process of european
integration and it deals with:
Requests for preliminary ruling lodged by national courts (to interpret eu law) = main
function (art. 267 tfeu) → if a national court is in doubt about the correct
interpretation/validity of eu law, they can ask the ecj for clarification (preliminary
reference)
Certain actions for annulment of acts of the union/appeals (raised even by individuals)
Legal disputes between national governments and eu institutions
Infringement procedures = if a national government doesn’t comply with eu laws more
than once, it will be brought before the court and may result in a fine

15. Spain
The dictator francisco franco died in 1975, and there was a transition phase till 1978 with
the re-establishment of democracy and the adoption of the constitution → the king (who
played an important role in supporting democracy) remained, with a marginalized role in
the newly established system
An important aim was to reconcile the maintenance of the nation state with the
recognition of local autonomies [mainly basque region, catalonia, galicia = oppressed for
a long time under the dictatorship, now awakening]

It’s one of the most advanced models in protecting language pluralism (art. 3) = castilian
is the official language, but other spanish languages can be official in self-governing
communities → in all communities that have another language, their statutes/laws provide
a double language regime = two official languages that can be used for everything
The catalogue of fundamental rights mentions traditional liberties (1st/2nd generation) +
new rights (developed by autonomous communities’ statutes):
Spain has a rationalized parliamentary government (model of the german basic law),
aimed at a high degree of institutional stability:
• The cortes generales (parliament) consist of 2 chambers
o Congress of deputies = elected, votes the confidence to the executive
o Senate = represents local autonomies
• The king has only limited/formal powers (his power to dissolve the congress is
strictly regulated)
• The electoral system is proportional, with narrow constituencies (reduces political
fragmentation)
• Parties can be declared unconstitutional and dissolved [batasuna party, that
supported the terroristic basque group eta]
• The recent crisis of the 2 traditional parties and the affirmation of new political
movements led to the dismissal of the 2-party system (forming stable majorities is >
difficult
Court of justice

16. What is a question of confidence

It is a principle generally acknowledged that the cabinet itself has the power to call into
question the confidence relationship, by asking for a question of confidence when the
approval of a law or measure considered as fundamental for the cabinet’s policy is at stake

17. Indian constitution

The constitution of the federal union of india was adopted in 1949. The open and highly
dynamic federal structure of the union the aim to preserve the unity of a huge population
with social, ethnic, linguistic and religious differences.
• The structure is the powers of the federation and the states are balanced
The federal government follows the uk model of parliamentary government with abicameral
structure where in : the lower house is directly elected, and has power to provides the
confidence to the cabinet. While the upper house (us model) is composed of states’
representatives and is renewed every 3 years for 1/3 of its membership.
 18. Parliament in the 5th republic
In 1958 the crisis exploded in algeria. The institutions asked general de gaulle who is a
military french hero, retired since the end of ww2 but still respected by the people, to
assume leadership of the cabinet and his goal was to drastically reduce parliamentary
powers [parliament = national assembly + senate].

19. Creation of the commonwealth

With the creation of the commonwealth, english law and constitutional structures were
adopted in the recent independent states. They promoted the tradition of western
constitutionalism mostly because of the institutional link with the uk. Canada, australia and
new zealand are the main countries with stabilized political/constitutional systems
belonging to the commonwealth.

20. Preliminary references

The main function of the court is to judge preliminary references by the national courts. If a
national court is in doubt about the correct interpretation or the valid- ity of eu law, it can
ask the ecj for clarification, raising a preliminary reference. The same mechanism can be
used to determine whether a national law or practice is compatible with eu law.

21. Counter limits doctrine

In italian constitutional court, counter limits is done in case of violation of a superior
principle, the judges can’t apply the european norm and must trigger the process of
constitutional review.
In german constitutional court, counter-limits doctrine is affirmed as a form of a review on
the violation of german constitutional identity and also affirmed the ultra vires control = the
national cc should verify if the eu norms are adopted consistently with the treaties and
within the competences of the union.

DE SANCTIS QUESTIONS

1. German form of government

It is federalism. It is a means to avoid any risk of totalitarian rebirth. It wasn’t only a mean
of unification while granting autonomy, but it granted the separation of powers and
fragmentation that would avoid any authoritarian relapse in the future. It was also a natural
method of resistance against centralization of power.

2. Majority required for the election of the chancellor

He is elected within 14 days by an absolute majority. If it can’t be achieved, they can elect it
with a simple majority.
 3. Legislative emergency
A state of legislative emergency is when the cabinet governs only with the support of the
bundesrat who gains all the legislative power for a period of maximum 6 months.

4. France’s 5th republic

The constitution of the 5th republic established a semi-presidential government , a mixed
form that includes features of parliamentary and presidential system. In 1962, de gaulle
proposed a direct popular election to strengthen the connection of the president and the
people. The amendment was approved with a popular referendum using art. 11 = the
president could call referendums on legislation, but only on primary legislation, not on
constitutional amendments. (he forced the system to approve this method) there was also no
catalogue of fundamental rights = it doesn’t reject fundamental rights but acknowledges the
declaration of rights of 1789 as a legal source in the preamble of the constitution.

5. Do we (italians) have the relation of confidence between the cabinet and

executive?
In the italian parliamentary government, the president of the republic appoints the cabinet
(prime minister + ministers) according to the outcome of the general election.
The cabinet must receive the confidence of both chambers of the parliament however, the
relationship of confidence in italy has always been politically unstable because of the
fragmentation of the political system and the weakness of the majority coalitions. Attempts
to reform the system of government (2006 and 2016) have failed after being approved by
the parliament but rejected in popular referendums.

6. Counter limits doctrine

In italian constitutional court, counter limits is done in case of violation of a superior
principle, the judges can’t apply the european norm and must trigger the process of
constitutional review.
In german constitutional court, counter-limits doctrine is affirmed as a form of a review on
the violation of german constitutional identity and also affirmed the ultra vires control = the
national cc should verify if the eu norms are adopted consistently with the treaties and
within the competences of the union.