Social Choice Session 18

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Social Choice Session 18

• Carmen Pasca and John Hey

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The key features of Constitutions

• This lecture is about different constitutions,
  particularly those of the US, France and Italy.
• The universal principles embodied in the
  Constitutions are related with the history, the
  tradition and the culture of each nation.
• These three elements make the difference between
  the fundamental principles on which Constitutions
  are based.
• History has a strong impact on the shape of
  institutions.

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The history

• In the modern sense, and current technical term,
  we talk about Constitution only from a very
  specific historical moment that of the large
  bourgeois liberal revolutions, American and
  French from the late eighteenth century.
• Montesquieu, Rousseau these assume the
  convergence of three basic principles of
  contemporary constitutionalism.
• The democratic principle that the people holds
  the constituent power.
• The liberal principle based on the defence and
  guarantee of rights and Freedoms to people by the
  statements of rights and separation of powers.
• The principle of constitutional supremacy ( the
  constitution is the supreme law).

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The main ideas

• Is important to note that the Constitution
  primarily contains general principles is not
  possible to apply them directly.
• In many written constitutions , only a few
  articles are considered to be self executing .
• The majority require enabling legislation,
  referred to as accomplishment of constitution.
• In the European constitutional tradition, when
  the Constituent assembly drafted the Constitution
  , is made a deliberate choice in attributing to
  it a supra-legislative force, so that ordinary
  legislation could not amend or derogate from it.
• Legislatives acts of parliament in conflict with
  the Constitution are subsequently annulled by the
  Constitutional Court.

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The democratic principle

• The precondition for the appearance of this
  principle was the process of secularisation of
  the State.
• The State became oeuvre humaine and the people
  got the power to decide the social and political
  order it is the people's duty to establish the
  modes and forms of organization of social life.
• This circumstance is the precise determinant of
  the difference between constitutional government
  and other policies adopted by the state since its
  birth in the fifteenth century.

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U Constitution, the Preamble

• We the People of the United States, in Order to
  form a more perfect Union, establish Justice,
  ensure domestic Tranquility, provide for the
  common defence, promote the general Welfare, and
  secure the Blessings of Liberty to ourselves and
  our Posterity, do ordain and establish this
  Constitution for the United States of America."
  Preamble to the Constitution
• The Constitution of the United States of America
  is the supreme law of the United States.
  Empowered with the sovereign authority of the
  people by the framers and the consent of the
  legislatures of the states, it is the source of
  all government powers, and also provides
  important limitations on the government that
  protect the fundamental rights of United States
  citizens.

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Why a Constitution?

• The need for the Constitution grew out of
  problems with the Articles of Confederation,
  which established a "firm league of friendship"
  between the states, and vested most power in a
  Congress of the Confederation.
• A movement to reform the Articles began, and
  invitations to attend a convention in
  Philadelphia to discuss changes to the Articles
  were sent to the state legislatures in 1787.
• In May of that year, delegates from 12 of the 13
  states (Rhode Island sent no representatives)
  convened in Philadelphia to begin the work of
  redesigning government.
• The delegates to the Constitutional Convention
  quickly began work on drafting a new Constitution
  for the United States.

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The Constitutional Convention (1787

• The political process initiated by Convention.
• To separate the power of government into three
  branches, and then to include checks and balances
  on those powers to assure that no one branch of
  government gained supremacy.
• Two plans competed to become the new government
  the Virginia Plan, which apportioned
  representation based on the population of each
  state, and the New Jersey Plan, which gave each
  state an equal vote in Congress.
• The Virginia Plan was supported by the larger
  states, and the New Jersey plan preferred by the
  smaller.
• In the end, they settled on the Great Compromise
  (sometimes called the Connecticut Compromise), in
  which the House of Representatives would
  represent the people as apportioned by
  population the Senate would represent the states
  apportioned equally and the President would be
  elected by the Electoral College. The plan also
  called for an independent judiciary.

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The social contract again...

• The founders also took pains to establish the
  relationship between the states.
• States are required to give "full faith and
  credit" to the laws, records, contracts, and
  judicial proceedings of the other states,
  although Congress may regulate the manner in
  which the states share records, and define the
  scope of this clause. States are barred from
  discriminating against citizens of other states
  in any way, and cannot enact tariffs against one
  another.
• States must also extradite those accused of
  crimes to other states for trial.

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Making amendments

• The founders also specified a process by which
  the Constitution may be amended, and since its
  ratification, the Constitution has been amended
  27 times.
• In order to prevent arbitrary changes, the
  process for making amendments is quite onerous.
• In modern times, amendments have traditionally
  specified a timeframe in which this must be
  accomplished, usually a period of several years.
  Additionally, the Constitution specifies that no
  amendment can deny a state equal representation
  in the Senate without that state's consent.

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The Convention

• The Convention got down to the work of actually
  setting the Constitution to paper. It is written
  in the hand of a delegate from Pennsylvania,
  Governor Morris, whose job allowed him some reign
  over the actual punctuation of a few clauses in
  the Constitution.
• He is also credited with the famous preamble,
  quoted at the top of this page.
• On September 1787, 39 of the 55 delegates signed
  the new document, with many of those who refused
  to sign objecting to the lack of a bill of
  rights.
• At least one delegate refused to sign because the
  Constitution codified and protected slavery and
  the slave trade.

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The Bill of Rights

• One of the principal points of contention between
  the Federalists and Anti-Federalists was the lack
  of an enumeration of basic civil rights in the
  Constitution.
• Many Federalists argued, as in Federalist No. 84,
  that the people surrendered no rights in adopting
  the Constitution. In several states, however, the
  ratification debate in some states hinged on the
  adoption of a bill of rights. The solution was
  known as the Massachusetts Compromise, in which
  four states ratified the Constitution but at the
  same time sent recommendations for amendments to
  the Congress.
• The solution was known as the Massachusetts
  Compromise, in which four states ratified the
  Constitution but at the same time sent
  recommendations for amendments to the Congress.

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The sources of the Bill of Rights

• Based on the Virginia Declaration of Rights, the
  English Bill of Rights, the writings of the
  Enlightenment, and the rights defined in the
  Magna Carta, the Bill of Rights contains rights
  that many today consider to be fundamental to
  America.
• The First Amendment provides that Congress make
  no law respecting an establishment of religion or
  prohibiting its free exercise. It protects
  freedom of speech, the press, assembly, and the
  right to petition the Government for a redress of
  grievances.
• The Second Amendment gives citizens the right to
  bear arms.
• The Third Amendment prohibits the government from
  quartering troops in private homes, a major
  grievance during the American Revolution.

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The Amendments

• The Fourth Amendment protects citizens from
  unreasonable search and seizure. The government
  may not conduct any searches without a warrant,
  and such warrants must be issued by a judge and
  based on probable cause.
• The Fifth Amendment provides that citizens not be
  subject to criminal prosecution and punishment
  without due process. Citizens may not be tried on
  the same set of facts twice, and are protected
  from self-incrimination (the right to remain
  silent). The amendment also establishes the power
  of eminent domain, ensuring that private property
  is not seized for public use without just
  compensation.

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The Amendments

• The Sixth Amendment assures the right to a speedy
  trial by a jury of one's peers, to be informed of
  the crimes with which they are charged, and to
  confront the witnesses brought by the government.
  The amendment also provides the accused the right
  to compel testimony from witnesses, and to legal
  representation.
• The Seventh Amendment provides that civil cases
  also be tried by jury.
• The Eighth Amendment prohibits excessive bail,
  excessive fines, and cruel and unusual
  punishments.
• The Ninth Amendment states that the list of
  rights enumerated in the Constitution is not
  exhaustive, and that the people retain all rights
  not enumerated.
• The Tenth Amendment assigns all powers not
  delegated to the United States, or prohibited to
  the states, to either the states or to the
  people.

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The Italian Constitution

• Italy is a democratic Republic based on labour.
• The Italian Constitution was enacted by the
  Constituent Assembly on 22 December 1947 with 453
  votes in favor and 62 against.
• The text, which was since been amended 14 times .
• The Constituent Assembly was elected by universal
  suffrage on 2 June 1946, at the same time as a
  referendum on the abolition of the monarchy.
• The constitution came in force on 1 January 1948
  , on century after the Statuto Albertino.

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The Italian way

• The Italian Constitution is born on with an
  historic compromise between three political
  forces after the collapse of fascism communists,
  socialists and christian-democrats.
• The labour represents the symbol of the ideology
  of the three political forces.
• Labour as a core value has been formulated by the
  communists and socialists.
• Fascist ideology also focused on labour as the
  foundation of society.

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The structure of Italian Constitution and Articles

• The constitution is composed of 139 articles and
  arranged into free main parts
• Fundamental Principles (art.1-12) Part 1
  concerning Rights and Duties of Citizens (art.
  13-54)
• Part II Organization of the Republic (art.
  55-139)followed by Transitory and Final
  Provisions.
• Articles 13-28 are the Italian equivalent of a
  bill of rights in common law jurisdictions.
• Power is divided among the executive , the
  legislative and juridical branches the
  Constitution establishes the balancing and
  interaction of these branches, rather the rigid
  separation.

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The Constitutional Articles

• Article 1. ( Form of State)
• Italy is a democratic republic based on labour.
• The sovereignty belongs to the people who
  exercise it in the forms and limits of the
  constitution.
• Article 2. ( Human Rights)
• The republic recognizes and guarantees the
  inviolable human rights.
• Examples of Economic Relations articles-
  Labor, Wage, Equality of Woman at Work,
  Welfare, Trade Unions, Right to Strike,
  Property.
• Examples of the Political Rights Voting
  Rights, Political Parties, Petitions,
  Public Offices.
• Article 7 recognizes the special status given to
  the Catholic Church by the Lateran Treaty in
  1929. That status was modified by a new agreement
  between church and state in 1984.
• Article 8 establishes the liberty of all
  religions before the law ,

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The French Constitution, the preamble

• Liberté, Egalité, Fraternité which are the
  values of the French Revolution.
•  Déclaration des droits de lhomme et du
  citoyen  is based on provisions concerning the
  rights of three categories of people the "rights
  of men" (the French, foreigners or enemies),
  which reproduce provisions of the law, "the
  rights of citizens" (French citizens ) ,which
  recall or strengthen civil liberties and "rights
  of the Society (the Nation).
• The Declaration sets out the principles of
  society, based on the new legitimacy.
• Each article condemns the institutions and
  practices of the Ancien Regime (absolutist,
  centralized administration).

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The revisions process

• The French Constitution has undergone several
  reforms up to the 1958 Constitution.
• Fifth Republic, system of government in France
  from 1958.
• Under the constitution crafted by Charles Gaulle
  with the help of Michel Debré, executive power
  was increased at the expense of the National
  Assembly.
• The current Constitution of France was adopted on
  4 October 1958.
• It is typically called the Constitution of the
  Fifth Republic.
• Today, the Constitution is as far from the 1958
  text than is the France of the early twenty-first
  century compared to the middle of last century.

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The French Constitution

• The current Constitution of France was adopted on
  4 October 1958. It is typically called the
  Constitution of the Fifth Republic.
• It sets out a semi-presidential regime, which
  ushered in a balance of power between the
  President and the Parliament based on the same
  legitimacy of universal suffrage.
• France is a secular republic the institutions of
  governance of France are defined by the
  Constitution, more specifically by the current
  constitution, being that of the Fifth Republic.
• The Constitution has been modified several times
  since the start of the Fifth Republic, most
  recently in July 2008, when the French "Congress"
  (A joint convention of the two chambers of
  Parliament) approved - by 1 vote over the 60
  majority required constitutional changes
  proposed by President Sarkozy.

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The review process

• The right to reform the basic text belongs to the
  people
• Any legislation is the product of a political
  context, a balance of power dictated by economic
  and social conditions, sometimes by outside
  influences.
• Supreme law that establishes rules for the
  nation, it can be amended only by a special
  procedure that makes any constitutional reform
  surrounded by a strong political act in a certain
  solemnity.
• This is why almost all the constitutions of the
  republican history accurately codify the rules of
  the review. The text of the October 4, 1958 falls
  within this line a title, Title XVI "revision "
  and an article on 89, were specially devoted to
  this theme.
• No review can undermine the territorial integrity
  or the republican form of government

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French Republic according to the Constitution.

• France is an indivisible, secular, democratic and
  social Republic.
• It ensure the equality before the law for all
  citizens without distinction of origin, race or
  religion.
• It respects all beliefs.
• Its organization is decentralized.
• The law favours equal access for women and men to
  electoral mandates and elective functions, as
  well as professional and social responsibilities.
  
• Declaration of the Rights of Man and of the
  Citizen from 1789 and establishes France as a
  secular and democratic republic, deriving its
  sovereignty from the people.

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The Principles of the French Constitution

• The French Republic has one explicit principle
  and one only, set forth in the fifth line of
  article 2 of the Constitution and directly
  borrowed from Lincoln "Government of the people,
  by the people.
• But no matter how well expressed and how
  inspiring, this principle is the one the Republic
  has espoused, without in fact always showing an
  equally effective concern for its implementation.
  

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A Constitution must guarantee rights

• The preamble to the Constitution of 4 October
  1958 explicitly refers to two previous texts, to
  which the French people solemnly proclaim their
  attachment the 1789 Declaration of the Rights of
  Man and the Citizen, and the preamble to the 1946
  Constitution.
• Liberty and equality are enshrined, being both
  affirmed generally and in some instances spelled
  out, and enriched, in the light of experience,
  with the principle of human dignity, reflected
  and consolidated by economic and social rights,
  exercised collectively as well as individually.

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The common ideals

• By virtue of these principles and that of the
  self-determination of peoples, the Republic
  offers to the overseas territories which have
  expressed the will to adhere to them new
  institutions founded on the common ideal of
  liberty, equality and fraternity and conceived
  for the purpose of their democratic development.
• The fraternity emboded the idea of solidarity
  through all french citizens.

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The Constitution must also provide for the
separation of powers.

• But if, as article 16 of the 1789 Declaration
  says, a Constitution must guarantee rights, it
  must also, faithful to Montesquieu, organize the
  separation of powers.
• And those powers have first to be shaped before
  they can be distinguished.
• The executive has two heads.
• This is troubling for the foreign observer, as it
  sometimes is for the French citizen himself, who
  does not always understand the logic of the
  relationship between President and Prime Minister

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Three major characteristics of French
Constitution.

• Three major characteristics
• Basically, it guarantees the functioning of a
  system which has three major characteristics
• The governed choose the governors, since the
  outcome of an election leads directly and
  immediately to the handing over of power to the
  winner(s).
• The governors have the means of governing, since
  rationalized parliamentarianism ensures the
  stability and power of the majority bloc
• The governors are effectively answerable to the
  governed, since the latter always have an
  alternative solution, at the next election, if
  they are dissatisfied with the outgoing majority.

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Conclusion France

• The French Constitution is based on republican
  universalism.
• This principle represent the republican ideology.
• The French Republic is the universal value
  because it prone the universal values ( Liberté,
  Egalité, Fraternité) inside the Republic
• These principles are universal because these
  values ??are adopted and applied by all French
  citizens irrespective of race and religion.
• That is why in France we distinguish between
  nationality and citizenship.
• The subjective conception of nationality based on
  the freely expressed a common future and not on
  criteria of language, religion, ethnic or
  geographic origins.

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Conclusion France

• Une langue, un people, un état.
• Nationality is acquired by "birthrightor droit
  du sang.
• Nationality is acquired by jus soli.
• By the procedure of naturalization.
• From the legal point of vue, the nationality is
  a necessary condition but not sufficient, to
  acquire the citizenship.
• It should also enjoy his civil and political
  rights.
• Child who obtained French nationality, becomes
  french citizen no until 18 age, age of acquiring
  the right to vote.

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Conclusion Italy

• The Italian Constiution is more recent than
  french constitution
• From theory to practice of the Italian
  Constitution, there is a gap...
• The 1947 constitution to introduce a
  parliamentary system seems fairly stable but by
  its rigidity and the voting system establishes
  what she may suffer abuses.
• In fact, its passage was difficult until the turn
  of 1993.
• The monopoly of power, the political sclerosis,
  the mani pulite.
• The historical influence on the organization of
  the Italian power
• Italy has known throughout its history that two
  different constitutions
• ,

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Conclusion US

• The US Constitution is the most brief and
  pragmatic Constitution in the world .
• The Philadelphia Convention ( 1787) was the
  compromise between federalistes and
  anti-federalists.
• 1787-1789 the Constitution was adopted.
• The final result of this Convention was the
  Constitution, which proposed one system with the
  powers was shared between federal government and
  the States of Confederation.
• The national government is divided in three
  branchs (Congress, President and Courts).
• The Bill of Rights is the guarentee of the
  freedoms ( religion, expression, the freedom of
  the press).

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Conclusion US

• It is later than thirteen years for his
  application, eleven years for his writing, eleven
  years for his writing the Declaration of
  Independence that created the U.S.
• The preamble of the US constitution mark the
  difference with the other original Constitutions.
• The Constitution is divided on articles and
  sections (27 amendements until now).
• The type of Constitution federal
• The federal power, the separation of powers, the
  shared responsabilities between federated states
  and the federal state.
• The major characteristic of the US Constitution
  is the will to protect citizens against any abuse
  of power!