LEGAL GLOSSARY 2

1 THE LEGAL ORDER 2

2 PUBLIC LAW AND PRIVATE LAW 2
3 THE SOURCES OF LAW 2
4 THE LEGAL SYSTEMS 2
5 ANTINOMIES 2
6 CRITERIA FOR THE RESOLUTION OF ANTINOMIES (IN THE FIELD OF ENACTED LEGISLATION) 2
7 THE RIGIDITY OF THE CONSTITUTION 2
8 THE CONSTITUTIONAL REVIEW OF LEGISLATION 2
9 PRIMARY LEGISLATION AND THE PRINCIPLE OF LEGALITY 2
10 FORMS OF GOVERNMENT 2

WESTERN CONSTITUTIONALISM 2

1 THE FORGE OF CONSTITUTIONALISM 2

2 CONSTITUTIONALISM IN THE AGE OF THE MODERN REVOLUTIONS 3
2.1 TO 2.5 THE ORIGINS OF CONSTITUTIONALISM IN THE UK 3
2.6 TO 2.10 THE ORIGINS OF CONSTITUTIONALISM IN THE US 5
3 WESTERN CONSTITUTIONAL LAW IN THE 19TH CENTURY 8
3.1 CONSTITUTIONALISM AND THE LIBERAL STATE 8
3.2 THE ENGLISH CONVENTIONAL CONSTITUTION 8
3.3 THE PROGRESS OF AMERICAN CONSTITUTIONAL LAW IN THE 19TH CENTURY 8
3.4 LIBERAL CONSTITUTIONALISM IN THE 19TH CENTURY EUROPE 8
3.5 PUBLIC ADMINISTRATION IN THE LIBERAL STATE 11
3.6 PRINCIPLE OF LEGALITY AND RULE OF LAW 11
4 CONSTITUTIONALISM IN THE AGE OF DEMOCRACY 12
4.1 CONSTITUTIONALISM AND DEMOCRACY AT THE BEGINNING OF THE 20 TH CENTURY 12
4.2 THE EVOLUTION OF THE AMERICAN CONSTITUTION 13
4.3 THE UK BETWEEN TWO WORLD WARS 14
4.4 THE EU CONSTITUTIONS BETWEEN DEMOCRATIZATION AND RATIONALIZATION 14
4.5 THE CENTRALIZED REVIEW OF LEGISLATION 15
4.6 THE WEIMAR CONSTITUTION 16
4.7 TOWARDS THE CATASTROPHE 18
5 CONSTITUTIONAL DEMOCRACY: THE ANGLO-AMERICAN EXPERIENCE 18
5.1 CONSTITUTIONAL DEMOCRACY AFTER THE 2ND WORLD WAR 18
5.2 THE CONSTITUTIONAL ORDERS OF CANADA, AUSTRALIA AND NEW ZEALAND 19
5.3 ENGLISH CONSTITUTIONALISM IN THE 21ST CENTURY 22
5.4 THE US FROM POST-WORLD WAR TWO UNTIL MODERN TIMES 24
6 CONSTITUTIONAL DEMOCRACY: THE EUROPEAN EXPERIENCE 28
6.1 A NEW BEGINNING: CONTEMPORARY CONSTITUTIONALISM IN EUROPE 28
6.2 GENERAL FEATURES 28
6.3 THE ITALIAN CONSTITUTION OF 1948 34
6.4 THE GERMAN BASIC LAW OF 1949 36
6.5 THE FRENCH 5TH REPUBLIC CONSTITUTION OF 1958 40
7 FROM THE OPEN STATE TO THE EU CONSTITUTIONAL SPACE 42
7.1 TOWARD A EUROPEAN CONSTITUTIONAL SPACE 42
7.2 THE EUROPEAN CONVENTION ON HUMAN RIGHTS 45
7.3 THE EU COURT OF STRASBOURG AND THE JUDICIAL DIALOGUE 47
7.4 THE EUROPEAN UNION: HISTORICAL ORIGINS 48
7.5 THE NEW SYSTEM OF THE TREATIES AND THE AMBIVALENT IDENTITY OF THE EU 49
7.6 THE DEMOCRATIC LIFE AND THE EU INSTITUTIONAL FRAMEWORK 49
7.7 SOURCES OF LAW OF THE EU LEGAL ORDER 51
7.8 THE EU COURT OF JUSTICE 53
7.9 THE PROTECTION OF FUNDAMENTAL RIGHTS IN THE EU 53
7.10 THE EU CONSTITUTIONAL SPACE BETWEEN INTEGRATION AND RESISTANCES 54
8 THE WORLDWIDE EXPANSION OF CONSTITUTIONAL DEMOCRACY 55
8.1 TRENDS OF EXPANSION 55
8.2 EXPANSION IN WESTERN EUROPE 55
8.3 DECOLONIZATION AND CONSTITUTIONALISM IN ASIA 57
8.4 DECOLONIZATION AND CONSTITUTIONALISM IN AFRICA 59
8.5 CONSTITUTIONALISM IN LATIN AMERICA 60
8.6 CONSTITUTIONALISM IN EAST-CENTRAL EUROPE 61
8.7 THE TRADITION OF WESTERN CONSTITUTIONALISM IN THE GLOBAL LANDSCAPE 62
LEGAL GLOSSARY
1 THE LEGAL ORDER
Ubi societas ubi ius = there is a strong relationship
between law and society: when a group of men reaches a LEGAL ORDER = set of institutions
certain stability/organization, institutions and norms start to and norms regulating the structure
exist to regulate the relationships among individuals and and rules of a stable group of men
protect shared interests

The connection of institutions and norms in a legal order is circular: institutions are created and
regulated by the norms, but the norms need an institutional system to
grant their respect/effectiveness with the legal use of force → norms are
binding only if respected by people

The Nation State is a legal order born in the Modern Age, substituting
the typical legal orders of the ancient world and Middle Ages: it’s based on territory, people and
sovereignty
2 PUBLIC LAW AND PRIVATE LAW
There are 2 main categories of law:
 Public law = created by the institutions of the State/delegated by the State
 Private law = created by individuals/other legal entities (private organizations with a legal
status, entrusted by the law with the power to create legal acts) to fulfill their own interests
o these acts create rights/duties that bind only those who take part in the act
o they are valid only if compatible with the norms of the State
o the State acknowledges the legal relevance of private law and grants its enforcement

3 THE SOURCES OF LAW

Legally binding norms in a legal order are created by sources of law = any act or fact that the
legal order acknowledges as valid forms of normative productions, it’s the methodology to
create legal norms, what gives validity to a legal norm → there are 2 main categories:
 sources-act = Constitution, statutory law and other sources of enacted legislation [regulations
of the executive branch] → enacted, written in a legal document, follow the specific procedure
provided by the legal order
 sources-fact = customary law, behaviors not formally allowed to create norms, acknowledged
as valid norms ex-post because they are recognized by the people → they can be of any kind
(religion, customs, etc.)
Jurisprudence = set of decisions of the Courts (judicial branch of a legal order) adopted for the
solution of cases (trials for the punishment of crimes and litigations among individuals) brought to
their jurisdiction for the solution of the controversy → it can be limited to the respect of enacted
legislation/other sources of law (Civil law system) or become a source of law itself (Common law
system)
4 THE LEGAL SYSTEMS
In complex societies (like the contemporary one) there are
LEGAL SYSTEM = set and
numerous sources of law: the pluralism in institutions and
methods of organization of
branches of governments leads to pluralism of sources of law,
the sources of law
calling for an organization of their relationships to avoid
normative conflicts
 In ancient societies:
o customary legal systems = tradition played a fundamental political role → customary
law had the main position in a hierarchical organization of the sources of law
 o religious/theocratic legal systems = the authority of religious rules/commands of
religious authorities occupy the highest position
o authoritarian legal system = the political legitimacy depends on the authority of an
individual (emperor, King, dictator, etc.) → the acts come from him, his command is the
leading source of law
 In contemporary States of the western world (where there’s separation of powers and
pluralism of sources of law) the legal systems are more complex, and the main sources of law
represent the will of the people (democratic principle):
o Civil law legal systems = enacted legislation has the main role → Courts are bound by
enacted law, they only have a power of interpretation of the norms
o Common law legal systems = the main source of law is the jurisprudence of the
Courts, according to the rule of the precedent [respect of the previous decisions taken
in similar cases by a superior Court]
5 ANTINOMIES
Normative antinomy = contrast among norms: in contemporary, complex legal systems (based on
a plurality of sources of law) antinomies are frequent (they can happen in a daily basis), and the
states must resolve them in their daily business → there are several criteria for the resolution of
antinomies, and the different legal systems have different methods for the resolutions of antinomies
6 CRITERIA FOR THE RESOLUTION OF ANTINOMIES (in the field of enacted legislation)
Interpretation = resource to avoid antinomies: when facing an antinomy, those who interpret/apply
norms should construct the norms in order to make them consistent one with the other → if the judge
can interpret the provision in more than one way, he should prefer the one not in contrast with the
other norm
There are 3 actual criteria for the resolution of antinomies:
1. Chronology = for sources A and B belonging to the same level of the legal system → the
newer norm is preferred → the newer norm repeals the older norm, which becomes ineffective
(both norms are still valid, but the older one is not applied anymore)
a. some legal systems also allow retroactive repeal = repeal that starts from a certain
point in time (never in criminal legislation)
2. Hierarchy = for sources A and B belonging to different levels of the legal system → the
superior norm is preferred → the inferior norm is declared invalid and annulled (all the effects
are cancelled, even the ones in the past)
3. Competence = in federal/regional legal orders the Constitution establishes specific
competences of the different sources of law → there is a strict separation of competences,
and any breach is declared invalid and annulled
7 THE RIGIDITY OF THE CONSTITUTION
Constitutionalism settled a legal system based on the supremacy of the Constitution:
 in Civil law systems it means that this new source of law has a
super-primary force, binding even the primary legislation
 in Common law systems it means that an enacted source of law
assumes prevalence over the typical system based on the
superiority of the jurisprudence

CONSTITUTION = legal document, outcome of a fundamental political decision/process,

expressing the values and goals of a political community, and regulating:
1. the frame of government, to set the separation of powers among the branches/an
equivalent form of limitation of the political power
2. the fundamental rights of men
A Constitution can be either:
 rigid = amendments can happen only through a special/enhanced proceeding, more
complex than the one used to modify other sources of enacted legislation
 flexible (typical of the 19th cent + UK now) = don’t foresee a special proceeding for the
amendment → it can mean that:
o amendments happen like modifications of primary legislations
o it’s impossible to change any content of the Constitution

Not all provisions of the Constitution can be amended: there is a set of superior principles that
can’t be amended at all = they express the very fundamental values and principles of the
organization of the constitutional order
8 THE CONSTITUTIONAL REVIEW OF LEGISLATION
9 PRIMARY LEGISLATION AND THE PRINCIPLE OF LEGALITY
10 FORMS OF GOVERNMENT

WESTERN CONSTITUTIONALISM
1 THE FORGE OF CONSTITUTIONALISM
Constitutionalism is a creation of the western world: it was born in the
United Kingdom in the 16th century: we can represent it as a tree that
branches out in different directions, assuming different characteristics in
different countries; the roots of Constitutionalism go back to the origins of
the western world’s politics, the Greek πολεις = they all share common
history and goals, but they also diversify and sink new roots
Constitutionalism is an idea difficult to define: it’s a political doctrine created in the UK in the
16th/17th cent, quickly spread in Europe and North America, affirming itself as the main
political doctrine in the Atlantic world; its diffusion was helped by the 3 revolutions of the century,
which transformed Constitutionalism from a minor political ideology to the main political doctrine:
1. English (1689) 2. American (1776) 3. French (1789)
The main goal of Constitutionalism is the limitation/constraint of political power as a reaction to
the ancient ideology (Roman Empire + 1 st Modern Age) of absolutism, where the monarch’s power
had no constraint → Constitutionalism is a reaction against absolutism, it’s the only way to grant
liberty → liberty of men requires limited political power, law is instrumental to the goal of
Constitutionalism
The achievements of the 3 Revolutions were:
 separation of powers = it was divided in legislative, executive and judicial
 written Constitution = it had a superior position over other sources of law
 legal protection of individual rights
The roots of Constitutionalism are:
1. Jusnaturalism = law is written inside the very nature of human beings [Sofocle’s Antigone is an
example = she defies the human law to respect the natural law, which is superior because is
coming from God] → the natural law is more important than the law of men, the law of kings is
inferior to the natural one
a. when the idea of religion as the superior source of law didn’t apply anymore,
Constitutionalism kept the idea of a superior source of law = the Constitution → the law
of the Parliament is inferior to it, they can’t be in contrast
2. Aristotle and Cicero’s mixed government = they thought that the best form of government was
the mixed government: power must be in the hands of all social classes, so that they all have a
role
a. this wasn’t the main political doctrine in the Ancient world, the king was seen as the
representative of God (especially after the spread of Christianism)
b. Aristotle’s Politeia and Cicero’s De Republica influenced Polybius, Machiavelli and the
Modern Age → this lead to the theory of separation of powers and different functions of
the State = legislative, executive and judicial (independent one from the other
3. Contractarianism = there has to be a contract between the people and the governor, who has to
accept his limits → his powers have to be based on justice: this is the basis of modern
Constitutionalism (Constitutions set the limit for political power)

2 CONSTITUTIONALISM IN THE AGE OF THE MODERN REVOLUTIONS

2.1 to 2.5 THE ORIGINS OF CONSTITUTIONALISM IN THE UK
The 2 English Revolutions (the Civil War of 1648 and the Glorious Revolution of 1689) marked
the time when Constitutionalism became the leading political doctrine → in this period John Locke
wrote the 2 treatises on government, where he explained the doctrine of natural rights and constraint
for the government: he affirms that everyone is born free and equal → these rights derive from
nature and not from human law → the government can’t interfere and obstacle these natural rights,
which is why the government has to be constrained
Locke also 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
In England there was never an absolute monarch, thanks to the strong resistance of the Parliament
(the oldest in Europe), which had 2 Houses:
 House of Lords = aristocracy
 House of Commons = commoners + middle class (the rising bourgeoisie)
The Parliament made sure the monarch didn’t gain an absolute power, and kept gaining power itself
till it became the protagonist in the Revolution against the king: the 2 Houses (despite their internal
differences) worked together to achieve a common goal; the middle class started to gain more and
more power: they had no privileges and produced their own wealth with their hard work, becoming
the new class of the bourgeoisie [we use the French term even if the 1st was English!]
The new class valued economic freedom and entrepreneurship, and had a positivistic view of
life, putting the needs and interests of the individual in 1 st place; they believed balance in the market
and in the State was fundamental: men needed to have free will, and the government had to be
balanced and bounded by a compact → Constitutionalism became the doctrine of the
bourgeoisie
The Common Law legal system was born in England in the Middle Ages: this system doesn’t
recognize the political sources of law, but puts in 1 st place the traditions and precedents of the
courts → the English legal system was based on local courts (under the local feudal aristocrat) →
while in other countries the monarch gained all the authority, even in the Modern Age the courts kept
their importance
The king created the common courts to gain control over the feudal aristocracy and to establish his
own authority, but the result was the limitation of his own power: the courts still remain now, and
the precedents of the courts are the main sources of law = their decisions were more important
than the ones made by legislative institutions (like the Parliament)
The English Revolution was almost 1 century earlier than the other 2 (American and French): the
leader of the Parliament Oliver Cromwell obtained the 1st written Constitution (Instrument of
Government) of the Republic of England: it contained a Bill of Rights that explained a set of rights
from the English tradition and affirmed the new leadership of the Parliament, giving guarantees to
its members + affirmed separation of powers
The UK doesn’t have a written Constitution: the Instrument of Government was adopted only for
the Republic, not for the monarchy → the English constitutional rules don’t come from a permanent
document but are born with time, consolidating themselves through time → the English Constitution
developed throughout its historical development (it’s a customary Constitution)
The procedure to change the Constitution is also different (there are no amendments/reforms like
there are for a written one) → there is no special procedure, just slow modification of practices that
reflecy a political/cultural change (a customary Constitution slowly changes with the customs)
 After the Glorious Revolution of 1689, a CONSTITUTIONAL MONARCHY under king
William Orange was born
o the king was bound by the type of government, he shared the executive power
together with a Cabinet of ministers
o the legislative power was in the hands of the Parliament (Commons and Lords)
 The king slowly became more and more marginalized and the Cabinet started seeking the
consent of the Parliament → the UK was becoming a PARLIAMENTARY MONARCHY:
o the ministers were appointed by the king, but he didn’t have that much power over
them
o the leaders of the political parties became more and more important
o the prime minister had the duty to resign if the Parliament lost the confidence in him
(motion of censure)
There is no official date for the transition,
because the English Constitution is
conventional (unwritten, flexible and
customary); in a Parliamentary monarchy, there
is a specific relationship between executive and
legislative branches = relation of confidence
(they are strictly connected); in the 19 th cent the
king was marginalized, having no political role, just a honorific role: he signed the acts without
having any actual decisional power (it’s the Cabinet’s countersignature that counts)
The perfect bicameralism (2 chambers of the Parliament have the same importance and powers)
gradually transformed in a non-perfect bicameralism = the 2 Houses didn’t have the same powers
and importance → the Commons prevailed over the Lords, because their popular election (and the
right to vote was expanding, 65% in 1867) gave them political legitimacy
The Parliament had the legislative function and the relation of confidence with the Cabinet: in
both the Commons prevailed → it was formed based on the results of the elections = the parties who
won controlled the legislative power and their leaders became part of the Cabinet ( majoritarian
system)
assemblary/consociative system majoritary/premiership system
unstable executive stable executive
Cabinet works closely with the Parliament
Cabinet made by different party leaders
(strong leadership)
frequent crisis that lead to a new majority in case of a crisis, the Parliament is re-elected

In England there is premiership and a 2-party system, influenced by the first-past-the-post

electoral system = majority system that can be single/double ballot; England is divided in
constituencies with candidates from different parties → the electors can only choose between the
candidates in their constituency, who gets the majority of the votes gets almost the total of the seats
2.6 to 2.10 THE ORIGINS OF CONSTITUTIONALISM IN THE US
Emigration towards North America = phenomenon that started in the 1st half of the 17th cent: most
emigrants are from the UK, but there are 2 classes:
1. The Puritans = religious minority (Calvinists) that was persecuted in England, Scotland and
France (both before and after the institution of the Anglican religion) → they came to North
America on the Mayflower to establish a new community; they mostly went to New England
and developed a New England mind based on the ideas of:
a. religious tolerance = the State must not interfere, there is rigid separation →
understandable since they were coming from persecution and had a necessity for
religious freedom
b. claim for equality = society is made of men all created equal by God → European
aristocracy can’t exist in the new world
c. inherent rights = men are made by God with rights (main point of Jusnaturalism)
The Mayflower was famous for its compact = contract that the Pilgrim fathers signed where
they agreed on common values and mutual protection → these ideas come from the
religious values united with Contractarianism (crucial in Christian and Jewish religion) → it’s a
religious way to see society but also a political view
2. farmers = people who couldn’t buy land in Europe because it was all owned by aristocrats →
they had important political ideas:
a. equality = they affirmed the idea of political equality with universal suffrage (remains
of the English Glorious Revolution)
b. individualism = people reach their goals with their own individual work
The people who moved to North America had a claim for self-government + criticism towards the
English Parliament: they refused the idea of Parliamentary sovereignty (the Parliament had
authority over the colonies, but the colonies couldn’t elect their own representatives in the
Parliament); the colonies had Charters (≠ from the UK, where there was no written Constitution) =
they believed written rules were fundamental
In the colonies there was Common law and there were self-governing assemblies at a municipal
and colonial level → their autonomy and powers were really limited, they were under the veto of the
governor chosen by the UK king (who they accused of being corrupted and acting like a tyrant)
In 1763 the king prohibited further expansion of the colonies’ territories: they wanted to expand
towards the Appalachian mountains (where there were Spanish and French colonies + Native
Americans) → the king wanted to preserve the peace treaties, so he told the colonists to stay on the
East Coast; the colonists wanted to occupy the land and to own all the rights on the territory
(based on John Locke’s ideas), there was a general push towards the West
NO TAXATION WITHOUT REPRESENTATION = the colonists felt like they couldn’t stay under the
UK’s rule if they didn’t have representatives → in 1776 the situation exploded in a Revolution and in
the writing of the Declaration of Independence:
 it contained a catalogue of rights = there are rights that the government can’t touch, because
it only exists to secure men’s rights
 it explained the right of resistance = if the government doesn’t respect their rights, they have
the right to rebel → especially because of the restriction and excessive taxation
A war with the mother country started: the rebels won the war thanks to the support of the French
government (Thomas Jefferson went to Paris to ask for economic help, they accepted because of
their ongoing war with England) → the 13 colonies conquered their independence and united in a
confederation, signing the Articles of Confederation (treaty) and creating a Congress with
representatives from the colonies
The Confederation was an alliance between different countries, there still wasn’t any Union with a
federal government: they were 13 independent states who decided to cooperate (in military,
foreign affairs, etc.)
REVOLUTIONARY DECADE (1776/1787)
Period that led to the enactment of the Federal Constitution [that was actually the 14th of all the
Constitutions written in that period]: at first, the newly independent colonies adopted State
Constitutions = all similar, divided in 2 sections
1) Declaration of Rights
2) Frame of government = rules on the organization of the government, inspired by Cromwell’s
Republic after the 1st English Revolution:
a. theoretically based on separation of powers, but it wasn’t actually established (no
balance) → there was a push towards legislative predominance (they were coming from
a tyranny, valued the self-government assemblies and were critical towards the executive
branch)
b. the executive branch could be remove by the legislative branch and was elected every 1/2
years (legislative protagonism)
In 1783 the Confederation signed the Treaty of Paris = the English crown acknowledged the
colonies’ independence and gave them control over all the English-American territories → they
gained territories beyond the colonies, which they didn’t know how to distribute: they created
another State governed under the Confederation rules (Tennessee = 1 st state outside the 13 colonies
→ this process repeated itself for all the other states); another problem was the division between:
 Northern states = free, their economy was based on small farms and urbanization was
increasing → they put high taxation on foreign products to protect their internal fragile industrial
economy
 Southern states = slavist, their economy was based on plantations where the slaves worked
(huge territories), transported their products to Europe through the Mississippi river → they
needed low taxes to export their products
The Northern states also wanted to end slavery, for humanitarian and economic reasons = they
wanted to end the Southern internal economic system → their conflict exploded later in the Civil War
in 1865; in 1787 the Philadelphia Convention reunited representatives of the colonies/states to
discuss the many problems in the Confederation → there was a further division between:
 small states (Virginia Plan) = they wanted a new Union structured similarly to the
Confederation
 large states (New Jersey Plan) = they wanted a new Union with bigger powers and a strong
executive branch
The Convention managed to reach a compromise with the new revolutionary idea of federalism =
true invention of the delegates (the only example of this before was in the Netherlands), based on the
fragmentation of the unity of the sovereignty of the State → the new Union wasn’t an international
treaty between different countries, but the sovereignty was split between the 13 states
The Federal Government is in equilibrium with the member states → the Congress (federal
legislative assembly) is divided in 2 chambers (= UK) with the same legislative power (they always
need to reach an agreement):
 House of Representatives = elected every 2 years on a national level, every State has a
number of members based on its population
 Senate = represents the interests of the member states, elected/chosen for 1/3 every 2 years
(the max time for a senator in 6 years), it has the power of advice and consent:
o it approves the federal officials appointed by the President, checking their abilities
and suitability for the job (for this they need a normal majority)
o it has the power of ratification of international treaties, checking the executive
branch (for this they need a 2/3 majority)
EARLY REPUBLIC (1787/1828)
In this period the Senate had a really important role (it ended with the election of Andrew Jackson as
President)
Section 8, art. 1 = distribution of legislative competences: the new Union didn’t want to destroy the
already present governments of the 13 States, they created a further government, but they had to
make sure there was no overlapping of competences → all the topics included in the list of
competences are forbidden from the intervention of the federal government (dual federalism)
PRESIDENTIAL GOVERNMENT PARLIAMENTARY GOVERNMENT
relation of confidence between executive and
separation between executive and legislative
legislative
executive power in the hands of the president executive power in the hands of the Cabinet
the people elect the Parliament, which elects the
2 different elections for executive and legislative
President, who chooses the Cabinet
the Parliament has the political responsibility for
the Congress can’t change the President
the Cabinet
Americans strongly believed in separation of powers (from Locke): they criticized the English
transition towards a Parliamentary government, they thought it would corrupt the Constitution;
actually, in the US there are separated institutions with shared powers = it’s not a relation of
confidence, but there is a certain level of cooperation (which doesn’t interfere with the mandate like
in the parliamentary government) → there are many checks and balances through which the
institutions can check each other’s work (balanced Constitution):
1) advice and consent (Congress → President)
2) impeachment (Congress → President) = against ay high official of the federal government, not
about political responsibility, only for specific crimes (bribery, corruption, treason and other high
crimes and misdemeanors)
 a. the House of Representatives approves the indictment, the Senate works as a tribunal and
judges (they can condemn with a 2/3 majority)
b. it can’t be used against wrong political decisions (it could transform the presidential
government into a parliamentary one) → in 1816 Andrew Jackson was impeached, but
accused only for his political decisions, so the Senate couldn’t condemn him
3) presidential veto (President → Congress) = all bills created by the Congress have to be signed
by the President to become an official act: it’s usually a formality, but the president has 10 days to
sign, in which he can send the bill back to the Congress
a. to approve it again as it is, the Congress needs a 2/3 majority (hard to reach with a 2-party
political system)
b. usually, the Congress changes the bill according to the President’s suggestion
c. sometimes they refuse to change it and abandon the proposal altogether
veto is a mean the President has to bargain on legislation with the representatives → they
should follow the presidential guidelines to avoid veto (it’s the symbol of the cooperation
between executive and legislative)

3 WESTERN CONSTITUTIONAL LAW IN THE 19TH CENTURY

3.1 CONSTITUTIONALISM AND THE LIBERAL STATE
3.2 THE ENGLISH CONVENTIONAL CONSTITUTION
3.3 THE PROGRESS OF AMERICAN CONSTITUTIONAL LAW IN THE 19 TH CENTURY
3.4 LIBERAL CONSTITUTIONALISM IN THE 19TH CENTURY EUROPE
The French Revolution is the source of the main values and principles of European
constitutionalism: in the first half of the 19 th cent the pattern of liberal constitutionalism took shape
in Europe and lead to the adoption of several constitutions = outcome of a complex bargaining
process between the growing bourgeoisie (that had risen before the restoration of the Ancien
Regime, and had gotten used to certain liberties and rights) and the monarchies (restored after the
Napoleonic wars)
The constitutions of this period were octroyées constitutions (1st = French Constitution of 1818) =
constitutions granted by the king to the nation → they mirrored the new exigencies of liberal
constitutionalism but confirmed the monarchy in its sovereign position + avoided the radical idea of
a constituent assembly drafting the constitution or the involvement of the people
Another common characteristic is their flexibility (≠ from the US, inspired by the British “Constitution”
and the English constitutional history): constitutions don’t provide a special procedure for their
amendment (written nature connected with the perpetuity/immutability of the document) → it’s a
weakness and an ambivalence, there are no legal guarantees against legislative alterations
The reason for the flexibility wasn’t to make them easy to change frequently, but because the
modification wasn’t even considered at all: for the monarchs the Constitution was an eternal
document supposed to last for centuries → it’s impossible to establish any kind of constitutional
review of legislation, there is a predominance of the Parliament/legislation over other branches and
sources of law [during the French Revolution, the judges were aristocrats and had privileges, so the
Parliament couldn’t accept a superior authority to its law] → legislation = superior source
Main goal of the 19th cent constitutions = protection of individual rights and balance of powers
(inspired by English system and French Declaration of Rights), and so to limit the state’s power and
guarantee a free society → the rights are listed in Declarations/Bills of Rights (included or
separated from the constitutions), they are individual liberties against the state (habeas corpus,
freedom of religion/assembly/association/speech, economic rights, “privacy”, property)
 Reservation to the Statutory Law = main constitutional tool of protection of liberties: it’s a legal
provision that permits the parliamentary statute to provide detailed norms regulating the exercise
of rights, excluding any other source of law (also the executive branch) from the regulation of the
subject; this depends on the deep homogeneity between values/interests of the bourgeoisie with
the delegates of the Parliament; this legal tool is mainly used in Civil Law systems [in Common
Law systems the courts of Common Law grant a set of procedural remedies which protect rights]
In practice, it meant that the Declarations accepted limitations of rights by parliamentary law: they
don’t regulate in detail how the rights are supposed to work (if there should be a limit or not), they
leave this decision to the State → contradiction; the Parliament/Constitution are an achievement
of the bourgeoisie, it made sense for the Parliament to be the one to regulate the rights → trust
towards the Parliament is crucial in 19th cent European constitutionalism

As the bourgeoisie was becoming the leading class, parliaments became the core of the political
power → they represented the wealthy/leading social classes (due to limited suffrage based on
wealth → there was no pluralism in political parties) and achieved the balance of power (overcoming
the will of the king, who wanted to gain control over the society again) through:
 Bicameralism
 Veto power granted to the monarch
 Dualist systems of government = separation between monarchical executive and elective
legislative, but the parliamentary centrality destroyed the stable balance of powers → in many
countries there was a transition towards parliamentary governments (and brought imbalance)
With the French Revolution and Napoleon’s Empire the liberal and democratic principles + French
constitutional structures spread all over Europe, and remained even after the restoration of old
monarchies:
SPAIN PORTUGAL THE NETHERLANDS NORWAY
1812 by the
year 1822 1815, 1848 1814
Cortes
liberal
strongly reduces the
principles principles of liberal
powers of the king
government
constitutional
constitutional monarchy,
form of monarchy with constitutional
then parliamentary constitutional monarchy
government male general monarchy
monarchy
suffrage

BELGIUM ITALY
1831 (independence from the
year 1848/1861
Netherlands in 1831)
Carlo Alberto (king of Piedmont) granted a
who made it National Congress Statute, that became the 1st Italian
Constitution after the unification

monarch rigidly limited, all his acts monarchical constitution similar to the
principles
are countersigned by ministers French and to the Belgian
 Bill of Rights follows liberal tradition
(formal equality, protection of
personal liberty, freedom of religion, individual rights of the liberal tradition
meeting, assembly, opinion, private
property)

constitutional monarchy, then parliamentary

parliamentary government
government in the 1860s
form of dualist government, division between
government relation of confidence between executive (king and Cabinet) and legislative
Cabinet and bicameral parliament (2 chambers, 1 elected and 1 chosen by the
king)
suffrage based on wealth based on wealth

In France King Louis XVIII granted a Constitution in 1818 (octroyée): it established a constitutional
monarchy, the ancient sovereignty of the king (he checks the legislative + has the executive
power), and very limited suffrage based on wealth; in 1830 a new dynasty brought by a new
insurgency (caused by the deep roots of the Revolution and the weakness of monarchical parties)
granted a new Constitution: it had the structure of liberal constitutionalism and consolidated the
alliance between monarchy and bourgeoisie
1848 = key year for the expansion of constitutionalism in Europe: the revolutionary movements
of those years wanted written constitutions consistent with liberal values + had national claims →
they saw constitutions as a common heritage of the political community, that could boost
political participation and legitimize ideological battles for independence and unity of the nation
In Germany (even if there the principles of the Enlightenment had not been so relevant) many
princes granted constitutions + formed a constituent assembly (by universal male suffrage, it
gathered in Frankfurt) to adopt a constitution for a unified German confederation, but the process
of unification was too complicated; in 1871 William I became king of Prussia and appointed Otto von
Bismarck as prime minister: they unified the 25 German states in a confederation (excluding Austria)
under Prussia’s leadership (emperor  king of Prussia), with a Constitution with common features
of liberal constitutionalism:
 System of government = dualist constitutional monarchy
 Executive power shared by emperor and chancellor/prime minister appointed by the emperor
 No relation of confidence between Parliament and chancellor
 Parliament divided in 2 chambers:
o Reichstag = lower chamber, elected
o Reichsrat = upper chamber, delegates of the member states (with a > number of Prussian
delegates → strong relevance in federal politics)
German constitutional history moved in a different direction: the executive became progressively
stronger than the Parliament + had a different concept of individual rights (seen as benefits
acknowledged by the law of the state and moldable according to its interests, ≠ liberties belonging to
the individuals/existing before the state)
In Switzerland the Revolutions of 1848 led to war among the Cantons and ultimately to a
Confederation under a liberal constitution: the Cantons had a strong autonomy + there was a wide
use of the instruments of direct democracy (popular referendums at local and federal levels); it had a
directorial government (already experimented during the French Revolution)
 Directorial Government = has elements from parliamentary and presidential form of
governments:
 Executive appointed by the parliamentary assembly
 Collegiality of the executive body
 Executive cannot be forced to resign by a parliamentary motion of censure
 Executive cannot dissolve the parliament
Today Switzerland is the only country in Europe with this frame of government: the Federal
Council is elected by the Parliament every 4 years (but there is no relation of confidence),
composed by 7 members and acts as Head of State
In France new popular insurgencies established the Second Republic in 1848 with a Republican
Constitution that settled a presidential government → Napoleon III won the elections and
established the Second Empire (he was the grandson of Napoleon I) until 1870 → authoritarianism
(in the government) + liberalism (acknowledges of individual rights); in 1870 Germany defeated
France at Sedan, and it became the Third Republic (Constitution of 1875) = parliamentary
government, president with weak powers, relation of confidence between Parliament and Cabinet
(fully dependent on the changeable majorities of the Houses, fragmentation of small parties led to
frequent changes in the Cabinet → ≠ from England)
3.5 PUBLIC ADMINISTRATION IN THE LIBERAL STATE
The structure of public administration was shaped during the 19 th cent during the evolution of
constitutionalism → each country followed its own path:
 continental Europe = ministerial pattern of administration: public administration structured
on different ministries for different administrative sectors [ex: finance and budget, army,
foreign affairs, home affairs, justice], with a strong division of competences → principles =
impartiality of the administration + idea that civil servants are in the exclusive service of the
nation
o judicial review: it developed only in the 2 nd half of the 19th cent, it was a special judicial
branch → separate and independent from the ordinary one, has the power to review
the acts of the public administration [step towards a > liberal state because it
protects the individuals from the state’s administration, even if the new administrative
courts were composed of former ministers/officials of the state]
 UK = decentralized administrative offices: lighter bureaucratic apparatus (even if there are
ministries like in EU) → many administrative competences are left to the province of local
government
 US = spoils system: administration based on less structured agencies with functions related
to specific tasks/protect a specific and temporary public interest → the duration of the
administrative office is linked with that of the political mandate (they change with
elections and can be removed easily)
In the Anglo-American experience public administration didn’t achieve a special/protected
position in the legal order (like in EU) and the review of its acts remained entrusted to the
judicial branch → no excess of state power over society like in Europe
3.6 PRINCIPLE OF LEGALITY AND RULE OF LAW
PRINCIPLE OF LEGALITY RULE OF LAW
continental Europe UK and US
all functions of the state must follow a previous
norm and be consistent with the law of the state law as protection of individual rights from the
predominance of the parliament: the tradition of rules of Common Law (precedents of
separation of powers is partially weakened, and the courts)
the judicial branch is completely marginalized
limit to the discretionary power of public no predominance of the Parliament over the
 offices:
other branches of government
they have to be organized according to the
in the UK there was a transition towards
provisions established by the law + their activity
parliamentary sovereignty
has to be carried out following previous norms
in the US there was strong criticism towards
outcome of legal values of the Enlightenment
unlimited parliamentary supremacy and the old
condition for legal equality and fair relationship
judges of Common law
public administration - citizens
primacy of the acts of the Parliament over
no monopolization of the system of sources of
any normative act of the executive branch
law by the statutory law
legislation > administration
judges = bouche de la loi/référé législatif→
compelled by written norms, they apply and in the UK the transition towards parliamentary
interpret them based on the textual provisions sovereignty did not affect the key role played
and the aims of the legislator (goal = to limit the by jurisprudence
courts interpretative power that caused
ambiguity in Middle Ages and Ancien Regime)
liberal state = legislative state:
 Constitutional flexibility = Parliaments
can easily alter the constitutions, no
constitutional review of legislation
in the UK the parliament interpreted its role to
 Reservation to the statutory law in
mean codifying the multilayered Common law
protecting the rights of men =
case law → no alteration of the Common law
parliamentary law is the main guarantee
heritage
of individual rights, the Parliament
in the US codifications of law began to appear in
protects them (but only in bourgeoisie’s
many states: the spread of written statutory law
interest)
reduced the role of Common Law
 trend towards codification of civil and
criminal law = propagation of the Code
Napoleon (1804, civil constitution of the
French people)
principle of certainty of law, connected with clarity/understandability of provision, coherence of
legislation and uniqueness of sources of law
statualistic introversion (inconsistent with goals/theoretical premises of constitutionalism) =
consequence of:
 parliamentary predominance
 bourgeoisie’s resistance to the claims of the working class
 stronger protection of the public order against mass movements
 trade unions and political opposition
 more restricted vision of liberties
 development of complex public administration (hierarchical and centralized)

4 CONSTITUTIONALISM IN THE AGE OF DEMOCRACY

4.1 CONSTITUTIONALISM AND DEMOCRACY AT THE BEGINNING OF THE 20 TH CENTURY
In the 20th cent there was a huge transformation: the process of democratization started
[achievement of general suffrage, pluralism, new rights], but it was weak and uneven → the process
of consolidation of the institutional framework of the state was remarkable, but the general
acknowledgment of individual liberties didn’t really resolve the social issues:
 in the US the enlargement of the electoral suffrage was already happening, but the society
remained backwards in many aspects (many contradictions)
o the abolition of slavery didn’t mean the affirmation of the fundamental equality between
all individuals (in the southern states there still was discrimination against black people)
o the development of an industrial capitalistic economy led to monopolization of resources
  in Europe (except UK) constitutionalism remain based on liberal constitutionalism: electoral
suffrage was limited to wealthy people + parliaments didn’t deal with social issues → at the
beginning of the 20th cent the sudden enlargement of suffrage after WW1 led to a quick
and unprepared transition towards democracy
In the 1st half of the 20th century western constitutionalism transitioned from the structure/rights of the
liberal tradition to a new structure consistent with democratic values, based on the exigencies
of new social classes breaking into the political scenario → FROM LIBERAL
CONSTITUTIONALISM TO DEMOCRATIC CONSTITUTIONALISM (new scopes of government,
new fundamental rights, bigger importance to the role of political parties and trade unions) with the
acknowledgement of the role of society (the state must face social differences and inequalities
through economic and legislative tools) and the pluralism of social classes (they have different
claims that the state can’t ignore)
In the US and UK suffrage had progressively increased in the 19 th cent: the impact of democratization
wasn’t dramatic; in the rest of Europe the transition had more radical forms because of political and
economic crises in some countries → the increase of suffrage caused the formation of mass
political parties and mass movements (sometimes radically against constitutionalism itself) [ex =
Labour Party in the UK = federation of Trade Unions of workers]
Constitutionalism (system of rules/constraints on power) and democracy (expression of the power
of the people) got into an open conflict → this imposed the search for new arrangements, and for
forms of rationalization of democratic pressures into the constitutional standards → the results were
either important innovations or the rise of discontent (and the spread of authoritarian responses =
dictatorships in Europe that demolished constitutionalism itself)
4.2 THE EVOLUTION OF THE AMERICAN CONSTITUTION
The US between the Civil War (that ended sectional conflicts/slavery) and WW1 was becoming a
modern nation (thanks to the final westward expansion and the annexation of the last western
territories = California, New Mexico → growth of a modern industrial economy and preeminence of
the US in world economy) but the society didn’t follow this rapid modernization
After the Civil War, the Congress enacted the 13th and the 14th amendments to the Federal
Constitution: the 1st one abolished slavery, the 2 nd one introduced a more general ban on state
legislation, forbidding any state from enacting laws violating individual rights and equality
among men → it provided 3 legal tools (privileges and immunities clause, due process clause,
equal protection clause) to overrule the statement from the case Barron v. Baltimore (1833: the
Federal Bill of Rights bounds only the Federal Government, not the states), but the Supreme Court
refused to apply the Amendment when judging laws that still recognized racial discrimination/other
abridgment of rights [they even allowed racial separation as something ≠ a breach of the principle of
equality]
At the beginning of the 20th cent the Supreme Court changed its view about its own role within the
American political system: it undertook a new approach characterized by its leadership and the
revival of judicial review of legislation (mainly to oppose new trends in social legislation =
measures passed by the Congress in favor of poor classes) to reaffirm the traditional vision of
liberal economy (individual autonomy and state abstention); in the judgment Lochner v. New York
(1905) they declared null an act of the State that introduced a maximum of working hours for bakers
→ working time belongs to individuals, it’s subject to deals and no one can regulate it → The
Lochner Era = new period characterized by a broad use of the judicial review of legislation + the 14 th
Amendment
The due process clause (at first only a guarantee of protection of rights from the state’s violations)
became a way to make the rights acknowledged by constitutional law fundamental and
therefore opposed to state law as paramount law (substantive due process) → incorporation
of fundamental rights = recourse to the due process clause to move an individual right from its
original normative place to the recognition of a greater legal protection [today it’s the main tool for the
constitutional protection of fundamental rights]; the Supreme Court acted in 2 opposite ways:
 it created a system of federal appellate courts to relieve itself from the workload
 was authorized to issue writs of certiorari (order to lower courts to review their ruling in case of
legal error) → it allowed the SC to select the cases (interest only in the major legal issues)
The expansion of the SC’s protagonism wasn’t only a conservative reaction to protect the liberal
tradition, it must be contextualized within the process of legal and economic unification of the
nation (whose turning point was in 1913 with the creation of the Federal Reserve = central federal
bank + the beginning of direct taxation over all citizens) → the result of these improvements
became evident with the election as president of the democratic Franklin Delano Roosevelt in
1932
The economic crisis of 1929 affected the society (mostly the poor/workers) in a tragic way:
Roosevelt had a plan to boost economic growth and fight national poverty, the New Deal = program
of industrial and economic recovery + public intervention in economy and social assistance → the
problem was that many competences were in the state’s hands, so Roosevelt tried to involve the
states in the New Deal with grants in aid = funds granted by the Federal Government under
certain conditions → they had to transpose in their own legislation the federal provisions/regulations
The Supreme Court went against Roosevelt’s plan (they thought it violated economic liberal
principles with the public intervention in the economy) → he threatened to introduce norms for
the removal of judges/addition of new members to the Court (court-packing plan) → the Court
gave up and promised to implement the New Deal, and the competences of the Federal
Government were enlarged (+ the executive could get involved in the legislative process);
Roosevelt was elected 4 times in a row (1932, 1936, 1940, 1944) because of his success and his
bond with the people (he used the radio to enter into the families’ homes)
Roosevelt was able to strengthen the power of the presidency against the Congress and made
some important changes to the American presidency that still have the same features today:
1. In 1921 with the Budget and Accounting Act, the President got the power to introduce federal
budget proposals to the Congress → after WW1’s debt, it needed strong presidential
leadership to control spending; before he only vetoed inappropriate expenses, now he could guide
and prepare the legislative business with the Bureau of the Budget
2. the use of veto power enormously increased (Roosevelt adopted over 400 vetoes): the Congress
was forced to seek bargains with the President’s politics
3. the use of presidential executive orders also increased, introducing substantive legislation =
orders based on its constitutional duties without any specific authorization from the Congress
4. the federal administration increased in terms of officials, competences and budget
4.3 THE UK BETWEEN TWO WORLD WARS
4.4 THE EU CONSTITUTIONS BETWEEN DEMOCRATIZATION AND RATIONALIZATION
Europe after WW1 was really different: people were more aware of their role in politics and society,
a feeling of national community was spreading, and political cultures [socialism and communism]
became known also to lower social classes/trade unions; new political parties took the place of the
small groups of political professionals, thanks to the enlargement of suffrage and the proportional
representation; the transition had different effects on different countries:
 in the ones where constitutional structures were still in force [France, Belgium, Italy] the
impact of mass society was evident in the field of political struggle and political representation
 in the ones where the ancient imperial structure was dissolved by defeat in the war
[Germany, Austria, Hungary, Czechoslovakia] the transition was more evident and led to the
creation of new constitutional structures
The goal was to overcome the limits imposed by the XIX cent European constitutions = give
more stability to the executive branch and stop the excessive predominance of the parliaments →
they had 2 previous experiences as models:
 French Third Republic = negative model: instable, with a fragmented party system
 English parliamentary monarchy = positive model: Cabinet remains solid even with the
relation of confidence, leads the national political agenda; this model was the best but it was also
difficult to follow because of its unwritten status
The rationalization of the parliamentary government went through a process of constitutional
codification of rules and procedures for the election/appointment of the Cabinet, crisis of government
and early dissolution of the Parliament → they introduced many rules = request of an absolute
majority for the vote of confidence + conditions for the proposal/approval of the motion of no
confidence; main goal = strengthening the position of the Cabinet and limiting parliamentary
discretion to remove it
The outcome was ineffective because of government instability and political fragmentation (the
proportional electoral system increased this, every political party had radically different agendas) →
general suffrage and the growth of mass parties brought political instability to all countries, putting
liberal constitutionalism under crisis, leading to distrust in institutions and clearing the way for the
affirmation of authoritarian movements

Patterns of Parliamentary Government: within parliamentary government, there are 2 main

patterns = majoritarian democracy and assembly democracy → both based on the relation of
confidence between the parliament and the executive, but they have a different form of political
system, different interactions between political actors and different outcomes in terms of
institutional stability:
 Majoritarian pattern = English parliamentary government: the Cabinet is stable and leads
the parliamentary majority (of the Commons) in an effective manner → usually connected to
a 2-party system/2-coalition party system and to a majority/plurality electoral system
 Assembly pattern = 19th cent European parliamentary governments: supremacy of the
parliaments over the executive and instability of the Cabinet, which is incapable to lead the
parliamentary majority → usually connected to a multi-party/fragmented system and to a
proportional representation electoral system

2-party/2-
majority/plurality majoritarian
coalition party
electoral system
system pattern

proportional multi-party/
assembly
representation fragmented
electoral system system pattern

4.5 THE CENTRALIZED REVIEW OF LEGISLATION

Constitutional review of legislation first appeared in Europe with the Austrian and
Czechoslovakian Constitutions of 1920 → it came from the US (Marbury v. Madison, 1803) but it had
never been accepted in Europe for many reasons:
 the UK didn’t need it because of the unwritten status of their constitution
 in countries with flexible constitutions [Italy with the Statuto Albertino] it was difficult to affirm
the principle of hierarchy between constitutional and legislative levels
 in countries with rigid constitutions [France] there was distrust in the judicial branch/courts,
and refusal to assign them power that could annul the decision of the legislative body → there
were proceedings for the amendment of the constitution, but in fact the rigidity had no legal
guarantee
The demands for constitutional innovations came after WW1, when the constitutions shifted from
flexible to rigid:
 the Czechoslovakian Constitutional Court could receive appeals from the highest political
institutions of the nation and review even primary legislation
 the Austrian Constitution established a federal state and gave legislative functions to the
member states (Länder), dividing competences between the Federal Government and the states
with a specialized court with members from both parties that could receive appeals from the
states and the Federal Government against legislation adopted without a constitutional title
of competence → it could annul unconstitutional statutes
The constitutional review had to be extended to all other parliamentary statutes: to do this, the
Austrian Constitution was amended in 1929 and established the incidenter proceeding = the judge
must ask the Constitutional Court whenever there is a question of constitutionality of a norm during a
process, activating the constitutional review by the CC → the effect of the ruling of the CC is general
and consists in the annulment of the unconstitutional provisions

The Jurisdiction of the Centralized Constitutional Courts: the centralized review of

legislation is the main system of constitutional review currently applied in the world and in almost
all European countries; the constitutions regulate the composition, jurisdiction and effect of the
rulings of the Constitutional Court → they usually perform many functions to guarantee the
constitution, the main one is the constitutional review of legislation, which can happen through
different methods:
a) Incidenter appeal = a judge appeals to the CC during a case whenever he has a doubt about
the constitutionality of a norm, explaining his reasons/the relevance of the norm in his case [it
means the judge must apply it in the case he is solving] → it can require a long time if the
norms require interpretation, to understand the intention of the legislator
b) Direct appeal (existed already in the Austrian Constitution) = power of different political actors
to appeal to the CC whenever they find a norm unconstitutional → it ensures the respect of
competences:
i. by the government and the regions/member states = happens in countries where there
is a constitutional distribution of legislative competences
ii. by political minorities in the parliament = in some constitutions political minorities can
challenge the constitutionality of a norm passed by the parliament
iii. by the main political institutions = some constitutions allow it for specific institutions
[president of the republic, president of the chamber of the parliament, etc]
c) automatic control = some constitutions (for specific cases/subjects/conditions) foresee that
the CC assesses the constitutionality of a norm right after it has been passed by the parliament
Individual appeals by citizens are allowed in some countries as a last resort if the state is
violating fundamental rights (not typical, different, special)
JUDICIAL REVIEW CENTRALIZED REVIEW
all the courts can review the legislation a specialized court reviews the legislation
Constitutional Court = outside of the judiciary branch,
the courts are the ones belonging to the
special political court that affirms state interests and
judiciary branch [who judge on criminal
resolve disputes balancing individual rights with political
matters, etc.]
ends
distrust in the judicial branch typical of the European
general trust in the judicial branch
framework
 judges appointed with a political process [in Austria
they were elected ½ by the lower House, ½ by the
judges are the ones that normally upper House of the Parliament → hybrid nature], limited
belong to courts through specific conditions [knowledge of law]
the CC has political sensibility = they know the
political consequences of the review of legislation
effect related only to the specific case general effect → the CC has monopoly
result = non-application of the provision result = annulment of the provision
4.6 THE WEIMAR CONSTITUTION
The German Constitution of 1919 (Weimar Constitution, from the city where it was drafted) is the
best example of the passage to the new democratic constitutionalism: it aimed at assuring social
inclusion of the masses and organizing social pluralism; German was fragmented after WW1
and new social classes were claiming recognition of their rights (following the example of the
Bolshevik Constitution in Russia made by the Communist Party) → 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)

Typologies of Constitutional Rights: The different typologies of constitutional rights can be

classified based on their content
a) Individual liberties (rights of 1st generation) [civil rights and economic rights] = liberties that
require state abstention
b) Collective liberties [of association] = liberty to act with other people for a common interest
c) Political rights [to vote] = individuals’ power to take part in the community’s political
decisions
d) Social rights (rights of 2nd generation) [education, welfare] = services that require an active
intervention of the state
e) Legal powers [right to strike] = power of individuals granted by legal protection
Other rights exist [about property, credit, family, criminal procedures] but some don’t have a
constitutional status, they are regulated by primary legislation [civil codes and codes of criminal
procedure] and constitutions only acknowledge them with general principles
The principle of equality of men was transformed from formal equality (liberal tradition) to
substantive equality = law must overcome inequalities and promote equal standards of life
(not only that citizens are all equal in front of the law): this approach led to the discontent of the
conservative classes that supported the Empire and were against the new trends of the period (Age
of Weimar = period of innovation and new trends in fashion, arts, literature, theatre, architecture,
etc + of recognition of the role of women), in contradiction to the traditions of the German society
→ the antagonism of conservative classes destabilized the fragile roots of the young Republic
The Weimar Constitution brought innovation to the frame of government, creating a mixed pattern
between the parliamentary and presidential forms of government, which established a conflicting
dialect between the Reichstag and the President (that acted as a check against the excesses of
the Parliament and the political parties, cit. Max Weber and Hugo Preuss):
 the President of the Republic was elected directly by the people and he had many
competences (especially in cases of emergency, art. 48) and powers
o to appoint the chancellor without the need for the vote of confidence from the Reichstag
o to call the people to referendum on parliamentary statutes he didn’t agree with
  the Reichstag (1st chamber, elected by the people) had mainly the following powers:
o to replace the chancellor with a vote of censure
o to promote a popular vote to adopt an early removal of the President (but if the people
confirmed him, it would be automatically dissolved)
With the 1st President Ebert (loyal to the new system), the frame of government worked well, but the
electoral proportional system deepened the fragmentation of the political system, and political
parties stopped the cooperative approach they had while drafting the Constitution → this added on to
the ongoing economic and social crisis (due to the WW1 debts and war reparations for the defeat,
that caused inflation, unemployment, poverty and social hatred); General Hindenburg (conservative
aristocrat) won the elections in 1925: he was against the Republic and pushed the government
towards its presidential dimension (by appointing chancellors loyal to him) → the Reichstag was
weak and couldn’t resist
The years 1925-29 were a period of economic and cultural growth thanks to the support of the
strong American economy: the crisis of 1929 affected Germany more than any other country, and
social conflict reached a peak → Adolf Hitler’s Nazi Party started to grow and win votes (38% in
1932, 43% in 1933), and Hitler was made chancellor → he convinced the President to take all the
power from the Parliament, obtained the direct legislative power through decrees, dissolved all
other political parties → the Weimar Constitution collapsed
4.7 TOWARDS THE CATASTROPHE
The reason for the failure of liberal-democratic constitutions adopted between the 2 World Wars is
mainly that the innovations (universal suffrage, new social rights, etc) were adopted too suddenly
with respect to the features of the XIX cent society (static and conservative): the economic conditions
of the masses caused the rise of social tensions, strikes and protests and were represented only by
the new mass parties → the constitutions that wanted to affirm stability failed at achieving their
goal
In Italy the crisis of the system occurred in 1922: the Fascist party led by Benito Mussolini (former
exponent of socialism, knew how to mobilize, manipulate, and control the masses + answered the
claims of the conservative and anti-socialist bourgeoisie) promoted ideals of nationalism,
militarism, repulsion towards liberal constitutionalism and the pluralistic party system →
Mussolini was invited by the king to form a coalition Cabinet, and he began repression against the
pluralistic party system with persecutions/assassinations of political opponents, adopting laws
suspending constitutional rights from the Statuto Albertino
In 1923 he adopted a new electoral law that established a 1-party government, and in 1924 the
Fascist Party got >60% of the vote → Mussolini formed a Cabinet only of his party and started to
transform the system completely: the Chamber of Deputies was substituted with the Chamber of
Fasci e Corporazioni (assembly that followed the rules of corporative systems and only represented
industrial /professional corporations), and in 1939 (influenced by the Nazi regime) he enacted racial
laws → jurists and scholars opposed little resistance;
Italian fascism was imitated in other countries, with movements that had similar positions
(anticommunism, nationalism, opposition to the institutions/liberal constitutionalism,
establishing their place as authoritarian regimes, restriction of the fundamental rights of the citizens):
 in Hungary the authoritarian admiral Horthy conquered power in 1920
 in Portugal Salazar established a regime in 1932
 in Spain General Francisco Franco led a military revolt and overthrew the new democratic
republic in 1936
In the period end of WW1-1930s the process of democratization in the western world made huge
advances [universal suffrage of males, involvement of the masses in politics, growth of mass political
parties, new social rights] but it also provoked imbalances in society, creating resentment of
conservative classes → the institutions of constitutionalism were pushed too hard towards
transformation and most of them collapsed, leaving room for authoritarian regimes

5 CONSTITUTIONAL DEMOCRACY: THE ANGLO-AMERICAN EXPERIENCE

5.1 CONSTITUTIONAL DEMOCRACY AFTER THE 2ND WORLD WAR
The UK and US didn’t go through many difficulties after WW2: their victory against Nazi-Fascism
marked their military supremacy and confirmed their political/institutional model, but the rapid
transformation of society + the major political shifts (centralization of powers, growth of the
government and of the budget, the personalization of politics) provoked many tensions:
 in the US: in the 1950s-60s the Supreme Court started to enhance the protection of rights
and legal equality and going against conservative legislation widespread in American society;
legislative reforms quickly followed to answer the quests of the African American civil rights
movement
 in the UK: these years mark a big transformation in the British Colonial Empire (that had
expanded mostly in the Victorian Age, 1837-1901, assuring its economic leadership in the
world) → before WW2 the British colonies had started to become independent from the mother
country, triggering the beginning of a decolonization process
o the colonies of North America = Ontario, Québec, New Brunswick and Nova Scotia
(that had obtained limited forms of self-governance in 1848/1855) formed the
autonomous federation of Canada in 1867 (one dominion under the name of Canada)
o the Australian colonies were federated in an autonomous dominion in 1901
o New Zealand became a dominion in 1907

At the Imperial Conference in 1926, Britain and its dominions agreed that they were autonomous
communities with equal status, not subordinated one to another, united by common allegiance to the
Crown, and freely associated as members of the British Commonwealth of Nations (cit. Balfour
declaration) → all the dominions were granted full autonomy (1931, Statute of Westminster) with a
precise institutional structure:
 Queen of England = Head of State
 National Parliament = in charge of the legislative function
 Every dominion has a governor general appointed by the Queen under proposal of the local
Cabinet = formally in charge of the executive function
 Jurisdictional function distributed among the states (following the Common Law tradition)
WW2 caused another change in the structure of the Commonwealth, spreading a new trend of
decolonization: its biggest consequence was the independence of India in 1947 (before still part of
the Empire), that entered the Commonwealth without acknowledging the Queen as Head of State
→ the issue was resolved at the Commonwealth prime ministers’ meeting (London, April 1949) with
the London declaration → India accepted the British sovereign as a symbol of the free association
of its independent member nations, and, as such, head of the Commonwealth = purely symbolic
position, and became a Republic in January 1950
The London declaration marked the beginning of the modern Commonwealth of Nations: today
there are 54 independent members [Canada, Australia, New Zealand, realms in the Caribbean and
in the Pacific that have Queen Elizabeth II as Head of State and a governor general] and it’s
organized like an international organization with different countries equal in status, that co-operate for
common values and goals [promotion of democracy, human rights, good governance, rule of law,
individual liberty, egalitarianism, free trade, multilateralism, world peace]; even if the English model
influences deeply the others, it’s not a one-way process → legal institutions from other
Commonwealth countries influence the UK as well
5.2 THE CONSTITUTIONAL ORDERS OF CANADA, AUSTRALIA AND NEW ZEALAND
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 = main countries
with stabilized political/constitutional systems belonging to the Commonwealth
CANADA
In 1867 the UK Parliament passed the British North America Act: the English Crown Colonies of
North American Canada (Ontario and Québec), New Brunswick and Nova Scotia joined into a
confederation and were granted the status of self-dominion within the British Empire; in 1931 there
was the recognition of full autonomy with the Statute of Westminister; in 1982 the British Parliament
approved the Canada Act that completed the process of emancipation from the motherland
Canada Act, Art. 1, par. 1 = the supreme law of the country consists of 3 main constitutional
sources:
1. The British North America Act of 1867
2. Its subsequent amendments
3. The Canadian Constitution Act (attached to the Canada Act, part B) + the Charter of Rights
and Freedoms
The Canada Act provided for the patriation of the Canadian Constitution: it established a
domestic amending procedure (they don’t need an act of the British Parliament to amend it) →
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)
Despite the supremacy of the constitutional sources + the use of judicial review of legislation, there
is still the English idea of parliamentary sovereignty: section 33 of the Charter of Rights and
Freedoms provides for a special notwithstanding clause (clause dérogatoire) = clause that allows
the Parliament to override judicial review of legislation → the federal Parliament/the provinces’
legislative assemblies can pass a law that is inconsistent with the Charter for a 5-year term
(result of a compromise with the provinces afraid of the Supreme Court’s jurisprudence; only invoked
in a few cases and more often in Québec)
Canada adopted a parliamentary government inspired by the UK model: the Queen with her
governor general and the Privy Council of the King is formally the chief executive, but in reality the
prime minister (appointed by the governor, is the leader of the majority party that has the confidence
of the House of Commons) holds the executive power
Canada is a federal state composed of 10 provinces and 3 territories: the British influence makes
it a very atypical federal system = it has a powerfully centralistic bias:
 The Federal Parliament has general and residual powers (in the US they are of the states)
 The Federal Government has the power of disallowance (it can strike provincial laws out) and
to appoint provincial governors
 Canada lacks a Senate like the American one: the upper chamber of the Parliament isn’t
elective and each province has a certain number of representatives (like in the US), but they
are appointed by the prime minister and don’t have an electoral connection with they’re
province
There has been an expansion of provincial powers: some of the Federation’s powers have been
weakened with constitutional conventions and practices, but also a co-operative federalism
emerged (thanks to intergovernmental agencies that regulate areas of common interest, giving
flexibility to the system); the Supreme Court (court of last resort since 1949) had a crucial role in
shaping Canadian federalism:
 it consists of 9 justices (3 from Québec because it has Civil Law)
  the office of Chief of Justice is to be held in turn by an anglophone and a francophone
 it hears appeals of decisions from courts of appeal (provincial/territorial courts that review
decisions of the lower courts) and answers constitutional questions raised by the Federal
Government
 it assures that federal and provincial laws respect the Constitution, but it has a restrictive
interpretation of the federation’s legislative competences → works in favor of provincial
autonomies
Québec is different from the other provinces: they speak French and have a Civil Law system →
there have been many claims for independence (which raised the question: is secession via
referendum constitutionally legitimate?), and the Supreme Court in 1998 ruled that unilateral
secession is not lawful, it requires constitutional amending (in case of popular vote claiming
independence, federal Parliament has a duty to negotiate) → since 2006 Québec is a nation within
unified Canada
AUSTRALIA
Australia gained independence in 1901 with the Commonwealth of Australia Constitution Act
(passed by the British Parliament), approved in a referendum by all the former colonies; the
Australian Commonwealth has a federal framework (proclaimed in the preamble of the Constitution
→ indicates that the decision to join in a Federal Commonwealth under the UK is made by the
population)
The Act has a preamble + 9 parts (the last includes the constitutional document); the Constitution is
rigid and has an amending procedure (art. 128) that strongly balances democratic and federal
principles → it consists of many steps:
1. an absolute majority of both chambers of the Parliament approves the proposal
2. between 60 days and 6 months after the approval, the proposal is ratified by the majority of
the people (majority of electors in each state/territory, majority of territorial entities, majority of
people entitled to vote within the entire Federation)
This complicated procedure insured that only a few amendments have been approved to
safeguard the federal structure and its peculiar feature (combination of English legal tradition +
US/Canada Federalism); for constitutional review, there is judicial review of legislation (American
model) with the High Court of Australia = highest court of the country, since 1901; the system of
government is inspired by the British parliamentary model:
 Queen of England = Head of State and formal holder of the executive power with a governor
 The prime minister (even if he only exists by constitutional convention, not according to the
Constitution) → he has the substantive executive power (with his Cabinet), he’s the leader of
the majority party in the House of Representatives (and needs their confidence to govern)
 There are 2 chambers that share the legislative power:
o House of Representatives = elected in single-member constituencies with an alternative
vote system every 3 years
 it has the exclusive initiative on financial bills
 only one that has the vote of confidence
o Senate = represents the territorial entities on an equal basis (12 each) → crucial for the
smaller states that saw this as a protection against the bigger ones
 a new state/territory doesn’t have as many senators as original states [the 2 new
territories, the Australian Capital Territory and the Northern Territory have 2 senators
each]
 senators are elected for 6 years (renewable in midterm elections every 3 years)
 has the power to return to the House of Reps a bill that it doesn’t agree to pass
 The Alternative Vote System in Australia: alternative/transferable vote = special kind of
majority election (≠ from the English first past the post and French double-ballot systems), used in
Australia for the election of members of the House of Representatives:
 In single-member constituencies, the electors rank the candidates in order of preference
 During the scrutiny, the votes are distributed at the top choice candidates: a candidate must
earn a majority (≠ only a plurality) of votes to be elected
 If no candidate earns a majority, the last of the ranking is excluded and its votes are
redistributed according to the 2nd choice of the electors (this is repeated until someone
reaches a majority)
This system allows the people to vote in a single round and avoid the difficulties that the British
system has (where a candidate can be elected even with a small plurality of votes)

The Australian Commonwealth is a federal state made of 6 original states and 2 territories: the
Federal Parliament has an exclusive legislative competence on some subjects (art. 51), the states
have residual competences (unspecified and unrestricted); Australian federalism has developed on
cooperative basis with joint institutional meetings for federal and territorial governments (Council
of Australian Governments)
NEW ZEALAND
The UK gained sovereignty on New Zealand in 1840 with the Treaty of Waitangi (English Crown +
Maori tribes) = considered the founding constitutional law of the country, but there is debate about
its interpretation

Indigenous Peoples Rights: The interpretation of the Treaty of Waitangi is controversial

because the English and Maori versions of the Treaty give different meanings to crucial
words → property in Maori language has a broader meaning than in English (since 1980, New
Zealand courts have held that it can include even intangible goods = language and culture,
collective assets for the Maori people)

The New Zealand Constitution Act (1846) took effect only in 1853 because the governor Sir
George Grey suspended it for 5 years for his dictatorship; after the Imperial Conference (1907) New
Zealand became a dominion; in 1908, 2 acts of constitutional relevance were passed = Judicature
Act (on powers and role of the judiciary) and Legislature Act (on powers of the Parliament)
New Zealand was influenced by the English constitutional tradition: there is no written
constitution, it has a deeply evolutionary nature → there is only a collection of constitutional
documents (parliamentary statutes, treaties, orders in council, decisions of the courts, constitutional
convention), which grants it a flexible nature → as the UK, there is parliamentary sovereignty
For a long time, judges were not entitled to judicial review of legislation: with the New Zealand
Bill of Rights Act (parliamentary act of 1990, but it goes against parliamentary sovereignty) that
contained a comprehensive catalogue of rights and interpretative principles to apply it:
 Sect. 4: it denied its supremacy over any other legislation = courts can’t annul a law if it’s
against one of the Bill’s provisions
 Sect. 6: if several interpretations are possible, they should choose the one compatible with
the rights protected by the charter (consistent interpretation)
 Sect. 5: the Bill’s binding force is limited = the rights can be subject to reasonable limits
prescribed by law (persistence of parliamentary sovereignty)
 Sect. 7: there is a peculiar mechanism for checking a bill before it enters into force = the
attorney general can appeal to the House of Representatives if any bill is inconsistent with the
rights of the charter, and they can demand its review
The New Zealand Bill of Rights Act maintains features of parliamentary supremacy and prevents the
development of an effective judicial review of legislation (but since 2003 there is the New Zealand
Supreme Court that could lead to a different conclusion)
5.3 ENGLISH CONSTITUTIONALISM IN THE 21ST CENTURY
After WW2 the English system continued to have the same features of majoritarian parliamentary
government: it still had a 2-party system but in some cases third parties were able to affirm
themselves and to give place to Cabinets supported by a parliamentary relative majority and
coalition Cabinets [occurred in the general elections of 2010: the Liberal Party (heir of the Whigs)
obtained seats in the Commons next to the Conservatives and Labour parties → the Cabinet was a
coalition of Conservatives and Liberals]; in the 2015 elections the Conservative Party had the
majority, reconfirming the majoritarian shape of the English government
To grant the coalition agreement, the Parliament passed the Fixed Term Parliament Act (2011) = 1st
attempt at codification of the English government’s practices: it reduced the powers of the prime
minister to decide the early dissolution of the House of Commons → it could happen only in 2 cases:
 Self-dissolution of the House = a majority of 2/3 approves a motion for early dissolution
 If 2 weeks after a vote of no confidence no other cabinet is appointed/obtains the confidence
of the House
Another relevant change was in the House of Lords: with the House of Lords Reform Act (1999)
they changed the methods of composition of the House → the hereditary members and Lords
Spiritual (representatives of the Church) were reduced + they regulated the methods/conditions for
the appointment of other life members
The Human Rights Act (or HRA, 1998) rearranged the traditional human rights’ protection system: it
was enacted to implement the European Convention of Human Rights (ECHR) into the national
legal order → they acknowledged the European Convention for the Protection of Human Rights and
the jurisprudence of the Court of Strasbourg as sources legally binding the courts of Common
Law; the Act brought radical changes in the national traditional constitutional structure: the
new written catalogue of rights entailed a major challenge to the Common Law tradition (because
before the protection of rights was mainly based on the role of Common Law/the courts’ precedents)
Actually, the HRA didn’t go against the role of Common Law courts: they had the power to
interpret domestic law based on the Convention and the Strasbourg Court’s jurisprudence → the
Convention became one of the many constitutional documents that make the English law; the bigger
challenge that the HRA brought is to the doctrine of parliamentary sovereignty (sect. 4): with a
written catalogue of rights, the parliamentary legislation is bound and compelled to respect a
superior law (that also derives its legitimacy from an external source)
If there is an antinomy between the national and conventional law, the courts should issue a
declaration of incompatibility to the Parliament (but only some superior courts can do it): the courts
don’t have the power to annul primary legislation incompatible with the Convention/Strasbourg’s
jurisprudence, they have to defer the issue to the Parliament (which should modify the law to avoid
conflicts, in special cases the ministers are the ones who amend the provision) → this mechanism
entails a form of judicial review of legislation (for a stronger protection of fundamental rights) + it
respects the role of the Parliament (it’s the one which decides to amend the legislation or not) →
this has happened about 25 times, and most times the Parliament has corrected the legislation
 Territorial Framework of the State: There are 3 different ways to distribute political power
between state and local entities (which results in 3 different frameworks):
1. Unitary state [since 1791 with the French Constitution] = based on a strict interpretation of
the principles of unity and indivisibility of the state (vs the political particularism of the
feudal system); characterized by:
a. strong centralization of the branches of government (legislative, executive, judicial) in the
hands of the political institution/central administrative bodies, doesn’t acknowledge the
autonomy of local entities
b. a system of hierarchical restrictions regulates the relationship center-local bodies →
they are bound in the implementation of public functions
c. type of state not very common to the western world (vs the popularity of federal and
regional states), some examples are countries in East-Central Europe (ex URSS) → in
France (where it was in force until the 2000s) a process of decentralization took place
2. Federal state [model of the US] = based on a non-strict interpretation of the principles (...),
but on the acknowledgment of statehood (and in general of the autonomy) to the territorial
entities that compose the federation → it’s a state composed of states
a. based on the division of competences (legislative, administrative and sometimes
judicial) between federation and member states
b. federation and member states ≠ on the same level: the federation has some powers and
prerogatives that guarantee the unity of the federal state

3. Regional state [since 1931 with the Spanish Republican Constitution; adopted by Italy with
its 1948 Constitution, then again by Spain in 1978 with its democratic Constitution] =
intermediate type of state between the unitary and federal
a. Based on the dialectic of the principles (…) + the acknowledgment of autonomies
b. Regions have legislative and administrative functions in specific fields (based on the
division of competences) → they have a political orientation set by regional
executives and assemblies elected by their communities
c. They don’t have the same powers/prerogatives as member states of federal states:
i. they can’t adopt constitutions, only statutes consistent with the national Constitution
ii. they don’t have judicial functions + have specifically identified competences
iii. there is no parliamentary chamber representing regional entities (so they don’t
participate in the legislative process at the state level)
iv. they don’t participate in the constitutional amending procedure (≠ member states)

The UK began the transition from the traditional unitary state at the end of the 20th cent, when
Scotland made a claim for self-government: a process of devolution of competences to Scotland
began with the Scotland Act (1998) = the Scottish Parliament (elected for the 1 st time in 1999) got the
legislative power on some topics + appointed a Cabinet linked to it through a relation of confidence;
other regions followed the Scottish example [Wales, Northern Ireland] and obtained forms of political
autonomy from the Westminster Parliament → they are all different/specific cases, because there
isn’t a homogeneous regionalism in the UK; in 2014 a referendum took place in Scotland about its
full independence (but they voted no, but after Brexit there has been new claims for independence,
since Scotland is more euro-friendly
The Constitutional Reform Act of 2005 (≠ a formal constitutional document, the UK still doesn’t
have a written constitution) established a UK Supreme Court to manage issues on the devolution of
legislative functions (before under the jurisdiction of the Appellate Committee of the House of Lords)
→ it reviews statutory law adopted by the English, Scottish, Welsh and Northern Ireland
parliaments, which can be direct (if the competences of the legislative assembly are violated) or
appellate (if a UK court dealing with a case where the validity of a norm is questioned) → if the
statute is incompatible with the Devolution Act, it will restrict the provision until it’s corrected or
submit its judgment to the court that raised the reference
Since 2009 the Supreme Court exercises the functions of other high courts: it has a final, appellate
jurisdiction in both civil and criminal cases + receives direct appeals on devolution issues → it
has the power to select the cases based on their general public importance; its competences are
typical of a supreme court in the Common Law system, but also of a centralized constitutional court
→ it makes the final decision on questions of compatibility (HRA, sect. 4), which implies a power of
judicial review of legislation, but it can’t annul a legislation if it’s incompatible, only issue a
declaration of incompatibility to the Parliament and restrict the effect of the legislation until it’s
corrected
This judicial review of legislation is called a weak constitutional review: there is an open debate on
whether the SC can actually challenge primary legislation under the HRA and Devolution Acts →
after the case Burden v. UK (2008), there is a possibility that the English law will impose a stronger
judicial review; it’s also interesting to see how the UK was inspired by the constitutional structure
of Commonwealth countries → circulation of legal institutes especially for the transition from a
unitary state to the devolution + for the settlement of a constitutional review of legislation (against the
traditional parliamentary supremacy), inspired by the New Zealand Bill of Rights Act and the
Canadian Charter
5.4 THE US FROM POST-WORLD WAR TWO UNTIL MODERN TIMES
(A) FUNDAMENTAL RIGHTS
In the 1st half of the 20th cent the US society was still conservative + there were inequalities among
people/the states → the abolition of slavery didn’t imply a real equality of white and black people:
southern states’ legislation provided rules of segregation and division [in Plessy v. Ferguson (1896)
it affirmed the doctrine separate but equal, that confirmed segregation of black people]; in 1953 the
new Chief Justice Earl Warren (till 1969) began to strike down this legislation through the
application of the 14th amendment and the equal protection clause:
 Brown v. Board of Education of Topeka (1954): the division of white and black people in school
systems was declared unconstitutional + they imposed equal conditions of all students
 Loving v. Virginia (1967): they struck down state law provisions prohibiting interracial
marriages → the equal protection clause can’t be interpreted as authorizing race-based
distinctions
The approach of the Warren Court raised doubts in the social opinion: the scholar Alexander Bickel
in The Least Dangerous Branch said that this intense use of judicial review could lead to a
counter-majoritarian difficulty = why should the judicial branch check legislative decisions
assumed by representatives of the majority of the people?
The new President Lyndon Johnson introduced new federal legislation, providing a high level of
equality and federal controls over state legislation (Civil Rights Act of 1964); the Warren Court used
different methods to review the legislation, but especially the due process clause of the 14th
Amendment and the incorporation technique:
 Incorporation, Originalism vs Living Constitution: there are 2 different approaches on the
doctrine of incorporation, based on 2 different interpretations of the nature of the Constitution:
1. Originalism = incorporation is applied through a specific test (seeing where the rights
come from and if they belong to the national constitutional tradition, the nation’s
scheme of ordered liberty, the rights must be deeply rooted in the nation’s history and
tradition)
a. the supporters of this doctrine [ex: justices Antonin Scalia and Neil Gorsuch] think the
interpretation of the constitution must be consistent with the original
understandings of the framers
2. Free incorporation = different and more recent approach → the Court incorporates a
fundamental right without a previous test/reference to the national tradition, only on the
basis of moral value/an idea of rational justice [applied in Loving v. Virginia, Roe v.
Wade (1973, right to abortion) and Hobergefell v. Hodges (2015, same-sex marriages)]
a. this theory (also called living constitution theory) is based on the construction of
the constitution considered as a living body open to international law principles
and comparative law standards, that addresses new issues and changes with society
The due process clause has deeply improved the protection of fundamental rights: today almost all
rights protected by the Federal Bill of Rights are incorporated in the due process clause (also the
right to bear arms, protected by the 2nd Amendment and established in 2010 with McDonald v.
Chicago)
(B) ELECTORAL PROCESS
The Supreme Court also improved equality and political transparency in the regulation of the
electoral process (especially at the state level): southern states tried to limit black people’s rights
with literacy tests, tax polls and the practice of gerrymandering

Gerrymandering: practice of state legislatures to draw electoral districts according to voting

predictions, to predetermine the outcomes of legislation; the name (used in the Boston Gazette
for the 1st time) comes from Governor of Massachusetts Elbridge Gerry (that did this in 1812 with
Senate elections to benefit his party, reshaping one of the districts near Boston like a
salamander); its goals are to maximize the effect of the votes received by the candidate and
to minimize the effect of the votes of the opponent, and it’s used by the political party that can
redraw electoral districts in countries where elected politicians can define the boundaries of their
constituencies; it’s effective in non-proportional systems with a single-winner electoral system
[first past the post]
In southern states it’s aimed at dividing black communities in different electoral districts to
reduce their relevance in the elections of the state’s legislative bodies/of the representatives and
senators in Congress; the Voting Rights Act (1965) heavily fought this practice and prohibited many
forms of racial discrimination in states’ legislation + the Supreme Court declared that
gerrymandering was against the equal protection clause (but the practice never stopped, and in
the recent years the Supreme Court has gone against the Act (Shelby County v. Holder, 2013)
because the social conditions for these provisions technically no longer exist)
In 1971 the Congress passed the Federal Election Campaign Act = set of limits to individual
contributions to political campaigns + imposed the duty of disclosure to grant transparency of
private contributions → the Supreme Court at first upheld the Act [Buckley v. Valeo, 1976], but
recently struck down several provisions from it [Citizens United v. FEC, 2010; McCurtcheon v. FEC,
2013]
(C) EVOLUTION OF THE PRESIDENTIAL GOVERNMENT
The long presidency of Roosevelt (elected 4 consecutive times) significantly changed the features of
American presidentialism, completing a process already triggered at the end of the 19 th cent =
strengthening of the role of the President in the government → it went from being the weakest
institution of the Federal Government in the Early Republic to having powers in the legislation and
budgetary process + enlarged the federal administration in several fields/the federal competences
over states’ rights → Roosevelt achieved this because the US was going through a huge crisis,
which convinced the Congress to leave him more and more power
The traditional rigid separation of powers typical of US presidentialism ceased to exist: the
presidential government was a system of separated institutions sharing powers with a growing
role of the president; the system kept changing with the different presidents that succeeded
Roosevelt, alternating phases of balanced dualism, presidential supremacy and congressional
predominance:
1. During Truman’s presidency the Congress (with a new Republican majority) reaffirmed its role
in the government and reduced the President’s functions (return to a more balanced dualism
between executive and legislative)
o a constitutional amendment limited the consecutive presidential terms to 2
o the Congress passed a set of legislations that forced the President to use veto power
several times → dualistic dialectic typical of the presidential system
2. Under Kennedy and Johnson the presidency regained control over the Congress
3. Republican President Richard Nixon had an aggressive vision of the role of the President:
o he used veto power to refuse the application of legislation inconsistent with his political
vision → he used signing statements when signing the bills, refusing to apply the provisions
o he was impeached because of the Watergate scandal (which hadn’t happened since 1868
with Andrew Johnson) and decided to resign
4. After Nixon’s resignation a new phase of congressional predominance began:
o the Congressional Budget and Control Act (1974) returned many powers of public
finance to the Congress
o the use of legislative veto increased = the Congress asked to approve all normative
provisions enacted by the President (which he did because he had legislative delegated
powers) → many presidents contested this + the Supreme Court struck down these
provisions (inconsistent with the original meaning of the legislative process (INS v. Chadha,
1983), but the Congress still uses them
5. With Reagan and democratic Bill Clinton a new season of presidential unilateralism began:
o The Line Item Veto Act (1996) allowed the President to veto single provisions of a bill
(power that governors had in many states) but the Supreme Court struck it down to
protect the original formulation of the Constitution (Clinton v. City of New York, 1998) and
maintain balance between the branches → it ruled that for a similar change of procedure
an amendment would be needed, not only a simple legislation
6. George W. Bush and Barack Obama stopped using veto power (only in a very few cases) and
developed new tools of resistance against the Congress (signing statements, impoundments
= used by Bush, then considered unconstitutional)
7. Trump’s administration was based on dualism between presidency and Congress
 Independent Agencies in the US: the creation/development of independent administrative
agencies in the 20th cent transformed the structure of the American government → they’re self-
governed bodies technically part of the executive branch, but in reality not directly controlled
by the US President; they have rulemaking functions in specific fields with technical complexities
After the Civil War/the growth in industry and business, the Interstate Commerce Commission
(ICC, 1887) was created to ensure fair competition/price control → in 1995 it was divided in
more structured commissions; examples of current federal agencies are the CIA (Central
Intelligence Agency), CPSC (Consumer Product Safety Commission), FCC (Federal
Communications Commission), FEC (Federal Election Commission), FED (Federal Reserve Board
of Governors)
 they don’t answer directly to the President: they are led by a commission/board whose
members are appointed by the President with the approval of the Senate
 they serve for longer than the President, so agencies don’t necessarily follow the political
affiliation of the current President)
 federal statutes also limit the power of the President to remove members
 most agencies are required to have a bipartisan membership (majority + opposition)
 they make their own organizational rules and have the authority to:
o create federal regulations to enforce federal laws passed by the Congress and impose
fines or other civil penalties to whom doesn’t respect them
o conduct investigations and ban/stop deceptive advertising practices/abusive activities
(D) THE DEVELOPMENT OF AMERICAN FEDERALISM AFTER WW2
After WW2 and with Roosevelt’s New Deal, federal legislative competences expanded, also with
the support of the Supreme Court’s development of a more accurate doctrine on the application of
the supremacy clause (art. 6) and the preemption [the federal competences listed in art. 1 sect. 8
are available for state regulation if the Federal Government doesn’t regulate the subject, but if it
does, it preempts state law]; the competences of the Federation increased, as well as the fields of
potential overlapping between state and federal regulations → the Supreme Court stated that
federal law preempts all state regulations if they:
- are in conflict with federal law
- interfere and obstruct the purposes of federal law
- create rules in fields occupied by federal regulation
At the end of the 20th cent the Supreme Court started to adopt a more balanced jurisprudence [the
interstate commerce clause, an important federal tool, passed from a broad interpretation (Wickard v.
Filburn, 1942) to a more balanced one (US v. Alfonso D. Lopez Jr., 1995; US v. Morrison, 2000)];
lately the SC has been involved in conflicts Federation-states: the Patient Protection and
Affordable Care Act passed by the Congress and promoted by Obama reformed the American health
care system by interfering in state competences
The Supreme Court upheld the statute (National Federation of Independent Business v. Sebelius,
2012) but confirmed a more rigid approach in the construction of the interstate commerce clause +
reconsidered the grants in aid system (the fact that the states had to accept certain Congress
regulations as a condition to receive funds was judged coercive and unconstitutional) → in general,
the Supreme Court tried to settle a more balanced construction of the general clauses provided
by art. 1 sect. 8 of the Constitution

6 CONSTITUTIONAL DEMOCRACY: THE EUROPEAN EXPERIENCE

6.1 A NEW BEGINNING: CONTEMPORARY CONSTITUTIONALISM IN EUROPE
WW2 influenced contemporary European constitutionalism → in the Yalta Conference the US,
UK and URSS divided Europe in 2 geopolitical areas, rigidly separated by the Iron Curtain:
  on the east side there were socialist popular democracies influenced and supported by the
Soviet Union, organized according to the communist ideology
 on the west side there were liberal democracies supported by the US and linked in the
NATO (North Atlantic Treaty Organization)

Politics and Constitutions in Socialist Countries: in Eastern Europe a peculiar model of

organization of powers developed, influenced by the ideology of the ruling communist parties,
different from liberal constitutionalism in many fields:
- the idea of human rights
- the role of the state and its relationship with society
- the organization of state power
- the idea of the nature/function of the constitution
The socialist state has a collectivistic, class-based ideology and sees the state as the
representative of universal public interests → it’s an instrument in the hands of the ruling class (the
proletariat), who wants to overcome the state itself and build a society without social classes;
here collective interests prevail over individual rights, which are instrumental to state interests
and can’t be exercised against the goals of the state
The constitutional organization is based on the concentration of power in the communist party +
its leadership over the state/society (principle of democratic centralism); the principle of
separation of powers is substituted by the unity of state power; the supreme body of the state is
theoretically the elected popular assembly, but actually in the hands of the secretary of the
leading party
The principle of socialist legality formally prescribes the respect of the constitution/law, but there
is no judicial review of legislation → the supreme legislative assembly can’t be subject to
judiciary checks, the review of the legislation is carried out by the assembly itself; the idea of
constitution is subject to socialist legality, democratic centralism and collective mastery, it’s
conceived as a collection of general principles of socialism and a list of social goals to be
achieved by the state according to the ideology of the Communist party
Western European countries learned from the war to create stronger forms of limitation of
political power and to introduce constitutional checks upon it: people understood they had to
submit their sovereign power to constitutional constraints to prevent the risks of authoritarian
regimes and resist the violations of fundamental rights
Many structures typical of American constitutionalism (federalism, constitutional rigidity, constitutional
review of legislation) that Europe had refused in the 19 th cent were adopted in the new Constitutions
of France (1946, then 1958), Italy (1948) and Germany (1949), then followed by other countries
(Portugal, Greece, Spain, ex-soviet countries in eastern Europe after 1980); criticism against
nationalism arose and states began to understand the relevance of international relationships
as means for peace and well-being → process of European integration with a system of
supranational organizations developing in the 2 nd half of the century, establishing a unitary
European constitutional space
6.2 GENERAL FEATURES
It’s important to highlight the general directions of western European Constitutions after WW2: they
are all rigid constitutions, which entails a special procedure for constitutional amending
 Patterns of Constitutional Amending Procedures: constitutional amending = procedure
regulated by constitutional law that allows modifications of constitutional provisions (≠ constituent
power, a de facto power to establish a new political/regime) → it’s typical of rigid constitutions (≠
flexible = those adopted in Europe in the 19 th cent, that could be amended like ordinary laws
following the principle of parliamentary sovereignty); constitutional rigidity = feature settled in US
constitutional law and common in post WW2 European constitutions → it entails a particular
and more complex procedure for the amending of the Constitution + the need for a larger
consensus among political groups and within the state community; patterns of constitutional
amending procedures can be distinguished according to different criteria:
A. on the institutions and bodies involved in the procedure:
- ad hoc assembly whose only function is to discuss and approve amendments (≠ a
constituent assembly, which approves an entirely new constitution)
- ordinary legislative assembly
- 2 chambers of the parliament jointly summoned in an assembly (for bicameral systems)
- member states (for federal states) that can participate with
i. the 2nd chamber of the parliament (Germany, USA, Belgium)
ii. legislative assemblies of the state (USA, Canada)
iii. electorate of the state with a referendum (Switzerland, Australia)
B. on the basis of the participation of the electoral body in the procedure:
- the people are involved with a referendum = aimed at enhancing the principle of popular
sovereignty, very diffused in the western world (Italy, Switzerland, France, Spain, Poland)
- the procedure is only in the hands of the parliament (Germany + France in some cases)
C. on the complex procedural requirements related to different phases of the procedure:
- supermajorities = necessary to pass an amendment, they can be 2/3, 3/5 or the absolute
majority (Italy) of the members of the parliament/of the 2 chambers
- double vote of the parliament spaced out by a time interval → ensures a wider reflection
on the proposal
- referendum = used if some procedural conditions are not met [in Italy in case there is no
2/3 majority in each chamber during the second vote]
- automatic dissolution of the parliament = the electoral body is called to indirectly
approve the decision to adopt an amendment made by the dissolved assemblies, the new
parliament ratifies the decision and draft the amendment → this will be approved by a
qualified majority (Spain) and by a referendum (Switzerland)
D. on the basis of whether or not it’s an overall or partial constitutional reform:
- some countries provide more stringent procedures if the amendment involves the entire
constitutional text (Spain, Switzerland, Austria, Romania, the Netherlands)

OPENNESS AND RIGHTS

Principle of OPENNESS: European Constitutions open themselves to international law and
international organizations to maintain peace and social stability: they acknowledge the special
legal force of international law within the national legal order → this led to the creation of European
Communities, whose legal order obtained primacy over the legal order of the member states
Constitutions have the goal of a stronger and deeper protection of individual rights: they adopted
long catalogues of individual rights/fundamental rights (definition that follows the new approach of
international law), + social rights and the right of substantive equality of men → constitutions
express values and goals that all social classes should share, designing a European welfare state
(progressive tax system, social assistance, state regulation of economic activities, public investments
in general services)
SOCIAL PLURALISM AND POLITICAL PARTIES
Many European constitutions acknowledge the role of social organizations (churches, political
parties, trade unions) and guarantee social pluralism: it’s the state’s responsibility to protect social,
linguistic and religious minorities → this leads to a more precise definition of the role of political
parties in the constitution (≠ elements of destabilization of the political unity of the nation), since they
were becoming the predominant political actors:
 the Italian and French Constitutions only formally acknowledge the role of political parties in
shaping the national political orientation
 in Germany the political party is part of the institutional framework: the Basic Law
establishes their structure, methods, the power of judicial authority to dissolve the anti-
constitutional ones
 most European constitutions regulate political parties with provisions
Political parties influence the political agenda and the selection of the political class, but there still is
the free parliamentary mandate = imperative mandate is banned, so the members of the Parliament
are free from their groups/parties and can’t be restricted by party directives → representative
democracy (typical structure since the French Revolution, independent of the electoral system) is
based on the principles of free mandate + independence of the parliamentary assemblies;
European Constitutions (≠ German) recognize a partial role of direct democracy: many introduce
referendums in several procedures [revision of the constitution, ratification/abrogation of provisions]

The Parliaments in European Contemporary Constitutions – Organization and Functions:

contemporary European Parliaments are structured based on 2 main patterns:
 Monocameralism (1 parliamentary chamber) = born with the French revolution according to
the idea of unity and indivisibility of national sovereignty, adopted in some democratic
constitutions (Denmark, Sweden, Greece, Portugal, Norway) → more efficient
 Bicameralism (2 parliamentary chambers) = born as aristocracy + bourgeoisie, now is a
means of reflection and cooling of political majorities, but also to represent member states of
federal states (Germany, Austria, Switzerland); maintained in most densely populated
countries; the 2nd chamber is elected by the people (Italy), by territorial entities (France, the
Netherlands), have a mixed composition (Spain), are appointed by the monarch with the
proposal of the prime minister (UK); there are 2 types of bicameralism:
o Symmetric/perfect bicameralism = the 2 chambers share the same powers/functions
[persists in some federal (Switzerland) and non-federal countries (Italy)]
o Asymmetric bicameralism = the 2 chambers have different powers/functions (largely
prevalent) → the 2nd chamber doesn’t participate in the relation of confidence with the
executive and in the vote of no confidence, have restricted legislative competences (while
the 1st has often the last world in the approval of bills)
The Parliaments are formed by different inner bodies that hold organize the work and the
parliamentary functions:
 president of the legislative assembly (Speaker of the House in the Anglo-American
tradition) = presides over the sittings, guarantees the observance of the rules of procedure
and the efficiency of parliamentary work, decides on the work program; super partes body
that acts in an impartial way and doesn’t intervene in the matters discussed
 parliamentary groups = main political bodies, expression of political parties, have
important functions and guarantee the discipline of their members as to how they vote and
carry out their functions
 committees = can be standing (always there, specialized for subject matters that
correspond to the competences of the ministries) or special (temporary, deal with specific
affairs [committees of inquiry]); some bicameral systems have bicameral committees with
member of the 2 chambers that work together if conciliation is necessary
 The most significant functions of contemporary parliaments are:
a) the relationship of confidence with the executive (parliamentary and semi-presidential
governments) = main channel through which the 2 branches agree on general political
orientations and how to make it effective; the cabinet is responsible before the parliament for
its action and can always be removed by the parliament with a motion of no confidence, or
can even call itself a question of confidence (if its stability is at stake)
- a few constitutions provide for an initial vote of confidence (Germany, Italy, Spain,
some in Central and Eastern Europe)
- in others it’s just presumed (France, UK, Portugal, Austria, Scandinavian countries)
b) the legislative function = most important, characterizes parliaments (also called legislative
assemblies); bills can be submitted by members of the parliament, the cabinet, by a number of
people (popular initiative), territorial entities, other bodies; the legislative procedure is based
on a double examination:
- the bill is assigned by the president to the relevant committee
- the bill is submitted to the House to be debated and voted on
- in perfect bicameralism the bill has to be voted by the 2 chambers, with 2 solutions in
cases of conflict:
i. the lower chamber prevails over the upper chamber (more common)
ii. a conciliation committee is established to reach a compromise (Germany, France)
c) the control function = examining and challenging the work of the cabinet, to make its political
responsibility effective even when its stability is not a stake → there are a variety of
procedures:
- written and time-addressed questions to government ministers
- parliamentary debates
- investigative activities carried out by the committees = core of parliamentary control →
they are technically specialized and can analyze the spending, administration and policy
of each ministry; right of inquiry = carried out by special committees with a certain
autonomy, entrusted with quasi-judicial investigative tools

THE RATIONALIZATION OF THE FRAME OF GOVERNMENT

Post WW2 Constitutions also deepen the tools of rationalization of the frame of government to
ensure institutional stability: this path began after WW1 but without success, then resumed after
WW2 with more effective methods, different for each country (majoritarian democracy, assembly
democracy, etc) → a result is the enlargement of the normative functions of the executive branch
= element of rationalization that began between the 2 WWs because of several factors:
- growing complexity of contemporary societies + broadening of the commitments of the
states
- difficulty for parliaments to debate and lay down complex/detailed legislation
- growing relevance of techniques in legislative regulation
The sharing of legislative competences led to a major transformation in the classical system of
sources of law: the new executive bills are new sources of law with primary force of law
juxtaposed with the parliamentary statutory law (decrees of cabinets on delegation of the
parliament/in case of emergency) → this strengthened the majorities in the definition of the national
political agenda, reshaping the traditional separation of powers based on the balance among
branches → today there are new methods of constraint on the political power:
i. control by the parliamentary opposition iv. independence of the judiciary branch
ii. well-structured public opinion v. constitutional review of legislation
iii. territorial decentralization of powers (usually centralized)
THE JUDICIARY BRANCH
The independence of the judiciary branch is strengthened: it transforms from being one of the
branches of public administration (subject to law and to directives of the executive) to having a set of
guarantees that strengthened its independence → ensured through new effective means:
i. organizational = the judicial branch is protected from the executive, with autonomous bodies,
has the power to appoint magistrates and check upon them [in Italy there is the Superior
Council of the Judiciary = members elected by the Parliament and by the judges, carries out
all the competences related to the judges usually belonging to the ministry of justice → the
executive is excluded from any activity related to the judiciary]
ii. functional = magistrates have the duty to prosecute any crime without any political direction
There are differences in the organization of the judicial branch in different legal orders:
- having separate careers for judges entrusted with adjudicating functions and public prosecutors
- composition/functions of the bodies that give jurisdiction and guarantee the autonomy of the
branch
- regulation of the obligation to initiate criminal proceedings/criminal law trials
THE INDEPENDENT AGENCIES
In post WW2 European states there was also the settlement of independent administrative
agencies (following the example of the US government) → they:
 concentrate administrative, regulatory, and quasi-jurisdictional functions (against the
traditional separation of powers)
 distance important political decisions from political responsibility and democratic control
 limit the political power of the government (strengthening the separation of powers)
 their activity is always submitted to judicial review
THE CENTRALIZED CONSTITUTIONAL REVIEW OF LEGISLATION
Another trend was the affirmation of a centralized constitutional review of the legislation (1st
established in Czechoslovakia and Austria, after WW2 in Italy and Germany, then even France and
many other countries) → nonetheless, in some countries traditional parliamentary sovereignty still
resists (the Netherlands = no constitutional court, judicial review is forbidden; Sweden, Norway and
Denmark = no constitutional courts, judicial review is possible but rare)
 Composition and Functions of the Constitutional Courts: the constitutional courts are
composed considering the political sensibility of their functions → they are elected/appointed by:
- completely/partially by parliaments under the review of the courts → in countries (Germany)
where they all derive from the parliament, a qualified majority (absolute or 2/3) is required to
involve the opposition in electing a body that has guarantee functions
- the Head of State (Italy, France) or the Cabinet (Spain)
- the Superior Council of the Judiciary (Spain) or by the supreme ordinary and administrative
courts of the judicial branch (Italy)
They have other functions beside the constitutional review of legislation:
- judgments on
o conflicts arising from allocation of powers of the state/regions (Italy, Germany, Spain)
o appeal against decisions made by the parliament on the check of the credentials of its
members (Germany, France)
o admissibility of referendums (Italy)
o charges against the President of the Republic/ministers for high treason or serious
misdemeanors against the constitution (Italy, France)
o constitutionality of political parties (Germany)
o direct complaints of individuals of violations of rights guaranteed by the constitution
committed by legislative/administrative/judicial acts (Germany, Spain, Switzerland,
Belgium, most countries of Central/Eastern Europe) → Scandinavia has Ombudsman =
special body that can appeal to the constitutional court
- supervision of the regularity of parliamentary/presidential elections + judging of related
complaints (France, Germany, Austria, Portugal)
- decisions on whether the conditions for the maintenance of emergency powers still apply
(France)

There is a more effective territorial decentralization of powers (in the form of

regionalism/federalism) → today constitutions acknowledge legislative power to local entities (not
common in the 19th and beginning of the 20th cent)
 Local Independentism in Europe: in recent years secessionists movements have developed in
both non-European countries (Canada) and European countries, representing a serious threat to
the unity of the states, all resulting in different outcomes:
 UK = Scottish claims for autonomy have led to the process of devolution, which reduced the
claims for independence
 Spain = claims for independence arose in 2 different regions:
o in the Basque Region with ETA (pro-independence group) = the Basque community
gained autonomy with the democratic Constitution of 1978, but ETA started
violence/terrorism (bombing, assassinations, kidnappings) that continued until 2011
o in Catalonia since 2010 = strong nationalism and independentism after the Spanish
Constitutional Coury ruled some provisions of the Catalan Statute of Autonomy as
unconstitutional:
 in 2014 the people voted in a referendum (that became a non-binding consultation) for
statehood and independence, which started the process in 2015
 in October 2017 they held another referendum (even if deemed unconstitutional by the
CC) and the majority still voted for independence
 the Catalan Parliament declared the independence of Catalonia from Spain
 the Spanish government dismissed the Catalan government using art. 155 of the
Spanish Constitution, imposing direct rule from the national government
 in the new elections of December 2017, pro-independence parties retained control of
the Parliament, but anti-independence parties also strengthened
 Belgium = conflicts arose between 2 communities: French in Wallonia (historically
predominant) and Flemish in Flanders (rising demographically/economically in the last cents)
o a series of constitutional reforms led to a progressive consensual separation until the
establishment of a federal state (1993) composed by 3 regions (Flanders, Wallonia,
Brussels, with socio-economical competences) and 3 communities (Flemish, French,
German, with cultural and linguistic competences)
o all the substate authorities have their own representative governments and institutions
(stronger than the federal ones) → the Federal Parliament was based upon rigid electoral
mechanisms that recognized the different representation of all the different
communities
o the Court of Arbitration solved conflicts over the distribution of competences among the
regions/communities/Federal Government → it became a CC in 2007
o in 2014 the competences of the communities were further enlarged, but analysts foresee
that Belgium is destined to face further erosive processes
6.3 THE ITALIAN CONSTITUTION OF 1948
After WW2 the Italian parties that fought against Fascism (catholic-democrats, socialists,
communists) wanted to overcome the Statuto Albertino and the structure of the liberal state: on
June 2nd of 1946 they called a referendum for the people to choose between monarchy and
republic → they chose the Republic and elected a Constituent Assembly [from now in the notes
called CA] that would draft the new Republican Constitution (ended in December 1947, came in force
January 1st of 1948 and is still in force, apart from some amendments) → there was no referendum
to approve the Constitution (there was one in France)
The 1st part of the Constitution is dedicated to general principles and fundamental rights, following
the trend of 20th cent European Constitutionalism = introduction of a wide set of fundamental rights
(traditional negative liberties + social rights) → art. 3 provides for the principle of equality of men
(formal but also substantive); the Constitution prefers the protection of the public good and
social needs to the traditional liberal vision → there are limits to individual economic rights/right of
property
  the weakness of this new catalogue of social rights is the fact that it lacks an actual
practical program that can be enforced by courts → there aren’t proper sets of legal tools to
ensure their protection and enforcement
 the regulation of traditional liberties has innovative tools = enhanced reservation to the
statutory law (the matter to be regulated is still attributed to parliamentary statutes, but the
Constitution defines the goals to be followed by the statutory regulation → the legislator must
draft the legislation following constitutional limits and goals)
THE ITALIAN PARLIAMENTARY GOVERNMENT
Italy has a symmetric/perfect bicameral system [both Houses have the same powers (uncommon
in contemporary constitutionalism → potential deadlocks are more likely, problems about the
relation of confidence can arise and provoke the instability of the Cabinet)] and a parliamentary
government → the CA wanted a rationalized form of government with a strong executive, but the
divisions between parties led to a weak compromise → Italy has a low rationalized parliamentary
government:
 the President of the Republic appoints the Cabinet (prime minister + ministers) according
to the outcome of the general elections
 the Cabinet must receive the confidence of both chambers of the Parliament (art. 94)
 the Parliament can always remove the confidence and force it to resign
 parliamentary dissolution occurs only if it’s not possible to appoint a new Cabinet
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
THE PRESIDENT OF THE REPUBLIC
The role of the President of the Republic is significant to overcome the weakness of the Cabinet: he
is elected with a qualified majority in the Parliament and plays a relevant role (even if the key
political leaders have been prime ministers rather than presidents) → the CA assigned him a limited
role (restricted with the method of the ministerial countersignature) but the first presidents were
able to practically extend their own political powers → its functions have a broad normative
definition, which was useful to control the political agenda in case of weak majorities (by supporting
the Cabinet) or strong majorities (using their constitutional prerogatives) → today he as relevant
powers in:
 checking the parliamentary legislation = he can return a bill to the Houses
 checking the normative acts of the Cabinet
 nominations to the Cabinet
 solutions to crises of government
 appointing 5 members of the Constitutional Court
The economic crisis/weakness of the recent years has further aggrandized his powers: normally he
should play a minor role in politics, but his role isn’t completely defined by the Constitution, the
scope of its actual powers depends on the effectiveness/stability of political parties
ITALIAN REGIONALISM
One of the major innovations of the CA are the regions = territorial entities not legally existent
before, instituted to answer to the claims for recognition of a stronger territorial political
autonomy (after many years of centralization with the Statuto Albertino/Fascism) → the Constitution
acknowledges 2 types of regions:
 special = 5 regions with peculiar conditions of economy, language and regional identity →
governed according to a special statute (amendment → art. 138), their autonomy is higher
 ordinary = 15 regions that at first had few/weak powers → the constitutional reform of 2001
(which was contested by many → conflicts of competences between the different levels of
government) increased regional powers → today they have almost the same competences as
special regions:
o full legislative competence in subjects not reserved to the state (art. 117) → their legislation
is not inferior to state legislation, only submitted to the Constitution/international treaties
o have limited power of self-government
o adopt a regional statute that provides the frame of government + the organization of the
administration within the region
o share administrative powers with municipalities and the state
o have limited tax power

THE CONSTITUTIONAL AMENDING PROCEDURE

The Italian Constitution is rigid: art. 138 provides the procedure for amending the Constitution:
 each of the 2 chambers of Parliament votes twice
 the 2nd must pass with at least an absolute majority (50%+1 of the number of qualified voters):
o if they reach a majority of 2/3, the amendment is approved
o if they reach an absolute majority, they can call for a referendum for the ratification of the act

Art. 139 establish the absolute limit to change the Republican form of the state = result of the
referendum of 1946, fundamental source of legitimacy of the new constitutional order [Italy has no
eternity clause like Germany, it’s achieved through interpretation] → there is a wide debate about the
fact that the existence of further limits to constitutional revision [fundamental rights of men] → the
Constitutional Court has suggested this, but in reality there is no consolidated doctrine
THE CONSTITUTIONAL REVIEW OF LEGISLATION
There is also a form of constitutional review of legislation = it’s centralized and performed by the
Constitutional Court:
 composed of 15 judges elected by the Parliament, the President of the Republic and the superior
courts of the judicial branch (they elect 5 each); the Court can be appealed in 2 ways:
o incidenter appeal = for judges during a trial
o direct appeal = for Cabinet/regions if a state/regional law breaks the division of
competences
 today it also has other functions:
o it resolves disputes between branches of government/between state and regions
o it establishes whether a popular referendum to abrogate a statute is possible
o it judges the impeachment of the President of the Republic in case of indictment for high
treason/attempts to overthrow the Constitution
o its role has significantly increased during the years
o it was able to strike down legislation coming from Fascism = inconsistent with the new
liberal-democratic values of the Constitution
o it affirmed that the general principles/programmatic norms of the Constitution should be
considered as effective rules
 with the passage of time, it enlarged its tools through the application of
o interpretative judgements to push the national courts to normative construction more
consistent with the Constitution
o manipulative judgments = adding/reformulating parts of the legislative provisions to make
them consistent with the Constitution (replacing the role of the legislator)
6.4 THE GERMAN BASIC LAW OF 1949
The Constitution of the Federal Republic of Germany was drafted in Bonn in 1949, with the
influence of the allied western forces (UK, US and France) that were controlling the area after WW2
→ the process started with the Nuremberg trial = 1st example of a criminal international trial, used to
condemn participants to Nazism/the guilty of the cruelties of the war
Federalism = mean to avoid any risk of totalitarian rebirth (according to the US): it wasn’t only a
mean of unification while granting autonomy, but it granted the separation of powers/fragmentation
that would avoid any authoritarian relapse in the future → it was a natural method of resistance
against centralization of power
The Laender (member states) played a fundamental role in enacting the Constitution → there was no
Constituent Assembly but a Parlamentarischer Rat composed of representatives of the Laender and
ratified by the latter (similar process to the US one) → the Parlamentarischer Rat called the
Constitution (in German Verfassung) = Grundgesetz (Basic Law) and not Constitution because it
was applied only to West Germany (East Germany formed the Democratic Republic under the
influence of the Soviet Union)
At first it was a provisional constitution, to be rewritten after the reunification of Germany, but when
that happened in 1990, they simply extended the Grundgesetz to East Germany and the eastern
Laender were incorporated in the western federal government; the main aim of the Basic Law is to
avoid the same mistakes of the Weimar Constitution (fragility, direct election of the president by
the people allowed Nazism to conquer and seize power) → to reach this goal, the new Federal State
had the following characteristics:
 a strong central government led by a chancellor elected by the Bundestag
 a strongly rationalized parliamentary government tied in the relation of confidence with the
chancellor → grants the stability of the chancellor/his leadership
 the President of the Republic has a weak role and limited powers to avoid any risk of
personalization of the power in his figure → his powers to early dissolve the Bundestag are
limited
 it established a militant democracy = effective protection of democracy through the control of the
constitutionality of political parties + regulation of the freedom of expression (art. 19/21)
 it was organized resuming some historical features of German federalism (from the Empire’s
Constitution) = the Laender are directly involved at the central level through the upper
chamber (Bundesrat)
 it provided a rigid catalogue of fundamental rights with the principle of human dignity as the
axiological premise of the Constitution
 it established centralized constitutional review of legislation
 art. 79 established the eternity clause = it’s not possible to modify the federal structure of the
state/the principle of cooperation Laender-Bundestaat (state) in the legislative process
 it had liberal-democratic principles (art. 20 and art. 1)
THE FEDERAL PARLIAMENT
The federal Parliament is made of 2 chambers:
1) Bundestag (lower chamber) = directly elected by the people
o It has the relation of confidence with the chancellor = regulated by rigid rules, deeply
codified, produces more effective rules of rationalization [constructive no-confidence vote]
2) Bundesrat (upper chamber) = not elected but composed of delegates of the executive
branches of the Laender, the votes of each Land must be cast as a unit
o not all Laender have the same number of delegates (it depends on the population, 3 to
6)
 o it doesn’t take part in the relation of confidence with the chancellor (except in case of
legislative emergency)
o it plays a central role in legislation (if the matter has a regional interest, in amendments
of the Constitution = approved by both chambers with a 2/3 majority)
o very pragmatic House, they take into consideration the administrative consequences of any
legislative provision
THE ROLE OF THE CHANCELLOR
The chancellor’s role and election have special characteristics:
 he’s the sole addressee of parliamentary confidence
 he is superior to the ministers: he appoints them and can remove them (≠ from the typical
power of parliamentary government → normally the political responsibility of the Cabinet is
collective)
 the relation of confidence begins after the election with a qualified majority vote in the Bundestag
 after the general elections of the Bundestag he is elected within 14 days by an absolute
majority
o if it can’t be achieved, they can elect it with a simple majority
 in this case the President of the Republic can decide to dissolve the Bundestag and
call for new elections, if he thinks that the new chancellor could have a too fragile
confidence (form of dissolution that hasn’t played a big role in the German experience)
 he has a strong leadership due to the limitation of the Bundestag’s power to remove him
through the vote of no confidence → there is the constructive vote of no confidence:
o prevents the Bundestag from removing a Cabinet without having a new stable majority
supporting a new chancellor → the potential crisis has to be resolved in advance by the
political parties themselves
o the motion must include the name of the substitute candidate to be elected as chancellor
o it needs an absolute majority
o in practice, it has worked on very limited occasions (main in 1982 = the social-democrat
leader Schmidt was removed in favor of Christian-democrat Helmut Khol), but has a high
level of effectiveness → it avoided many crises of government and long periods of power
vacuums
 if he loses the actual support of the Cabinet, it becomes difficult to carry on his agenda (he
needs the approval of the legislative branch for statutes, budgetary processes, ratifications of
international agreements, etc) → to overcome the mistrust he can propose a question of
confidence to the Bundestag, to obtain refusal and then dissolve the Bundestag:
o the Bundestag is forced to either approve it with an absolute majority, or reach a
constructive vote of no-confidence and elect (with an absolute majority and within 21 days) a
new chancellor
o if the chamber can’t elect a new chancellor, the ex-chancellor has 2 options:
 ask the President to dissolve the Bundestag and call for new general elections (has
happened before in German history)
 if the country is in a situation of emergency, ask the President to declare a state of
legislative emergency (which never happened) → the Cabinet governs only with the
support of the Bundesrat (that gains all the legislative power), for a period of max 6
months (after which the Bundestag is dissolved)
THE ROLE OF POLITICAL PARTIES
The political scenario is based on strong political parties able to realize solid coalitions based on
a clear coalition agreement → they allow the existence of political majorities that can reach an
absolute majority required for the vote of confidence to the chancellor → there are 2 main reasons:
  the electoral system establishes threshold clauses that exclude small political parties (<5%
of the votes) from the Bundestag and avoid political fragmentation
 the exclusion of Communist and Neo-Nazi parties by the Constitutional Court stabilized the
political system
FUNDAMENTAL RIGHTS
The Basic Law acknowledges and protects fundamental rights (1st generation liberties more than
the social rights that the Weimar Constitution had acknowledged):
- Art. 1 = principle of inviolability of human dignity (not only a fundamental right but the premise
of the constitutional state) → human dignity ≠ human liberty: in cases of conflicts with other rights
it can be balanced, it entails the possibility of limitation of self-determination of men and other
individual liberties in cases of conflict → source of all individual rights encompassed by art. 79
- Art. 2 = right of free development of - Art. 6 = protection of family and marriage
personality, physical integrity and life - Art. 12 = right to work
- Art. 3 = principle of equality - Art. 14 = right to property
- Art. 18 = freedom of expression, the press, teaching, assembly and association: it authorizes the
Constitutional Court to limit those rights in case of people abusing them as means of
overthrowing free democratic basic order (mirrors the idea of militant democracy)
- Art. 20 = Germany is a social federal state: the interpretation of this clause is problematic, some
think that the social state is irreconcilable with the liberal state, others (the CC also) see this as a
rule/duty for the state to guarantee social assistance (affirmed in 2010 in the jurisprudence on
the Existenzminimum)
- Art. 21 = regulation of political parties: citizens can create/take part in any political party, as long
as they’re not anti-system → they have to be consistent with the principle of democracy in
their goals and in how they behave, and can be judged and dissolved by the CC if dangerous
for the stability of the state/liberal-democratic principles of the Constitution (it happened in 1952
and 1956, with Neo-Nazi and Communist parties)
The rights of the Basic Law weren’t common in Germany before: the tradition was of communitarian
rights (Hegel) = rights of the community, not of men as they are born → only with the Basic Law a
jusnaturalistic vision was reached: the paradox is that these rights must find a natural limit, because
they can’t be misused to destroy the liberal democracy system → abuse of rights is prohibited (for
individuals and political parties)
THE FEDERAL STRUCTURE OF THE TERRITORY
The federal territorial structure is regulated in art. 20 of the Basic Law, that also establishes that it
can’t be modified, even with a constitutional amendment → this structure depends on 2 factors:
- the federal tradition of German constitutionalism
- the idea of federalism as a tool of separation of powers to avoid totalitarian regimes
The 2nd point shows the American influence, but German federalism is different from the US one
(dual federalism): there is no rigid separation of competences between the Federal Government and
the states, but it’s inspired by the principle of institutional subsidiarity → it’s a cooperative
federalism (Bund and Laender cooperate):
 administrative federalism = the administrative functions are always in the hands of the Laender
→ the cooperation Bund-Laender is necessary and the Bundesrat has to coordinate the process
of enforcing federal statutes in the local administration
 The Basic Law also discusses federal and local legislative competences (1 st Constitution to have
this kind of competences distribution):
o art. 70 states that the Laender can legislate if that topic isn’t in the hands of the federation
according to the Basic Law
 o art. 73 lists the Federal Government’s competences and the matters belonging to the
Laender
o art. 72 = konkurrierende Gesetzgebung (concurring legislation clause/subsidiarity
principle): the Federal Government can legislate in topics belonging to the Laender if unitary
regulation is necessary
Before the Constitutional Court didn’t review the legislation: the Bundestag had the right to adopt
federal statutes according to art. 72, and there wasn’t a real check about the principle of
subsidiarity → the constitutional reform of federalism in 2006 to prevent an excessive reduction in
local legislative functions = now the CC assesses the validity of the use of the subsidiarity clause
by the Bund; German federalism has moved towards a unitary federal state = there’s cooperation
and solidarity between the branches, achieved with tools like the Finanzausgleich (system of revenue
sharing and grants in aid between Bund and Laender)

Cooperative Federalism: German cooperative federalism is the outcome of

 the Bundesrat = upper chamber of the Parliament, has delegates of the executive
branches of the Laender → important functions in federal legislation and constitutional
amendments
 organization of the administrative functions = they generally belong to the Laender even if
the legislation on the topic is federal
 the subsidiarity principle = entails a mobility of legislative competences
 equalization of public finance = creates a solidarity among the Laender
THE CONSTITUTIONAL REVIEW OF LEGISLATION
Germany has centralized constitutional review of legislation → the Court can be appealed to in 2
different ways (similar to Italy):
 incidenter appeal = by a judge during a process
 direct appeal = from the Bund or the Laender + the Verfassungsbeschwerde = direct
appeal to the CC by individuals whose fundamental rights have been injured (only after trying
all the other methods) → can be used for any activity of the state (administrative, judicial or
legislative acts) and has been relevant in recent years
The German Constitutional Court is one of the most appreciated and prestigious in Europe → it
has a fundamental role and powers not common to other CCs [modifying the retroactive effect of
annulment of the statutory provisions] + other competences (similar to other CCs):
 resolves conflicts among institutions and branches of government/between Bund and Laender
 functions related to the abuses of fundamental rights
 reviews the constitutionality of political parties
6.5 THE FRENCH 5TH REPUBLIC CONSTITUTION OF 1958
After WW2 the French system wanted to replace the weak Constitution of the 3rd Republic to
guarantee a more stable institutional system: they adopted the Constitution of the 4th Republic in
1946 = close to the former constitution, settled a parliamentary system of government with weak tools
of rationalization → it wasn’t able to govern the fragmented French political system, and caused
instabilities for more than 10 years
[Recap: the Constitutions of the Republic of France were enacted in 1793 (1 st), 1848 (2nd), 1875 (3rd),
1946 (4th) and 1958 (5th)]
In 1958 the crisis exploded in Algeria (colonial dominion where a war for independence had started
in 1954): the institutions asked General de Gaulle (military French hero, retired since the end of
WW2 but still respected by the people) to assume leadership of the Cabinet → he accepted in
exchange for a general reform of the Constitution, that was drafted by the Cabinet and ratified by
the people through a referendum → his goal was to drastically reduce parliamentary powers
[Parliament = National Assembly + Senate]
THE SEMI-PRESIDENTIAL GOVERNMENT
The Constitution of the 5th Republic (1958, still in force today) modified several features of French
constitutionalism:
 there is 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 → still in force and used by the Constitutional Council
 it established a semi-presidential government = mixed form that includes features of
parliamentary + presidential system (similar to the one of the Weimar Constitution)
 the President of the Republic is elected (for 7 years at first, for 5 years after the reform of
2000) by a special body of delegates of national/local assemblies
o in 1962 De Gaulle proposed a direct popular election to strengthen the connection
President-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)
o his powers don’t need the ministerial countersignature and include:
 dissolution of the National Assembly (power not easy to use, if he acts against a stable
majority he will lose the elector’s support)
 carrying out extraordinary measures in case of national emergency (art. 16)
 appointing the prime minister [from now in the notes PM] and ministers (but it must also
receive the confidence of the National Assembly: he appoints the prime minister
following the results of the general elections and the parliamentary majority/coalitions)
 executive regulations are sources of law of secondary level
President and Cabinet share the executive power (they say the French executive has two heads,
which has created problems in time) and the outcome depends on political contingencies:
a. the political party of the President holds the majority in the National Assembly: he controls
the executive and is predominant in settling the political agenda, leads the executive business
b. the political party of the President isn’t the one that holds the majority: he can’t control the
executive, presidential powers are limited and the Cabinet gains control over politics → it’s
defined cohabitation between the President and the prime minister, which has happened in a
few cases during French history
 during the socialist presidency of Mitterand there
was a Gaulliste executive led by PM Chirac
 during the presidency of Chirac there was a
socialist Cabinet led by PM Jospin
 today these cases are hardly possible because
of the reform of 2000 that modified the term of
the presidential mandate → the elections of the
Assembly and of the President take place one
right after the other
De Gaulle’s main goal was to diminish the role/powers of the parliamentary assembly (before
central and untouchable) and to put the national political orientation in the hands of the President
and the Cabinet = he had a huge support by the people and managed to reach his goal through a
series of constitutional innovations:
a) there is no preliminary vote of confidence by the Assembly to the Cabinet + the vote of no
confidence needs an absolute majority of the House + the executive can introduce a
question of confidence to a bill (which doesn’t lead him to resign like in the parliamentary
government, but brings the automatic passage of the bill unless the Assembly asks to discuss it)
 b) the principle of supremacy of the law over executive regulation is radically transformed: there is
a separation of competences between statutory law and regulations, reviewed by the
Constitutional Council
c) the principle of parliamentary autonomy in planning its own agenda is rejected: the executive
plans the works of the Parliament and has the power to stop the emendatory power of single
members of the Assembly = blocked vote (it forces the Assembly to vote on the bill as a whole,
without discussing the amendments proposed to it)
d) parliamentary standing orders are submitted to automatic preliminary review by the
Constitutional Council, with binding effects

THE CONSTITUTIONAL REVIEW OF LEGISLATION

The Constitution of the 4th Republic had confirmed parliamentary supremacy, and the lack of
constitutional review: another main feature of the 1958 Constitution was the establishment of an
effective centralized constitutional review of legislation: the creation of the Constitutional
Council (Conseil Constitutionnel) changed the tradition of parliamentary law as the primary source of
law and the impossibility for judicial authority to annul it in any case → at first the CC seemed
destined to play only a weak role:
 it was organized like a political body that only gave advice to the Parliament instead than
adopting actual judgements
 it had 9 members appointed by political entities (the President of the Republic, the President
of the Senate and the President of the National Assembly → 3 each) and selected among legal
experts or political men
 former Presidents of the Republic were lifelong members
 its decisions didn’t take the usual form of a judgement
 there was only direct appeal, the judges didn’t take part in any way to the process → political
dimension of the review
 the appeal could happen only before the promulgation by the President (15 days after it was
approved by the Parliament)
Today the situation is different, and the role of the Council is similar to the one of other European
constitutional courts → the improvement is a result of several steps and constitutional
amendments:
1) enlargement of the constitutional parameters in 1964 = the Council can do constitutional
review on provisions regarding the fundamental rights of the Declaration of 1789 (it’s considered
as part of the Constitution) → it established the bloc de constitutionalité = review of
parliamentary laws that don’t abide by a larger constitutional parameter
2) enlargement of the subjects that can appeal to the CC in 1974 = before this power belonged
only to the President of the Republic, the prime minister, the president of the Assembly and the
president of the Senate (all representatives of the majority) → now it belongs also to 60
members of the National Assembly + 60 members of the Senate (grants the parliamentary
opposition/political minorities the power to go against laws passed by the majority)
3) introduction of the incidenter appeal in 2008 = type of appeal that before was inconsistent
with the French constitutional tradition (acts signed by the President are untouchable) → now it
can be raised only via preliminary advice by the Supreme Court of Cassation or the Council
of State (supreme courts of the French judicial system)
4) introduction of a first form of regionalism within the state in 2003 = the limited forms of
administrative decentralization gave place to a new regional level that today overlaps with local
authorities → it has administrative and legislative powers, but still continues to be weak
 (similar to the regionalism in Italy before the 2001 reform) → it has a asymmetric organization
based on 2 different levels:
a. metropolitan regions
b. regions d’Outre-mer = stronger powers and competences

7 FROM THE OPEN STATE TO THE EU CONSTITUTIONAL SPACE

7.1 TOWARD A EUROPEAN CONSTITUTIONAL SPACE
European constitutionalism post WW2 is characterized by openness to international cooperation:
WW2 is the watershed between:
CLASSIC PATTERN OF INTERNATIONAL CONTEMPORARY INTERNATIONAL
LAW COMMUNITY
1648, Peace of Westphalia and Nation State post WW2, with the decolonization process
composed of a larger number of states from all
system of international law with a limited number the continents of the world = heterogeneous
of states sharing common values cultural/social conditions and conflicting values
and interests
aims to create a system of cooperation
method of mere coexistence, instrument in the
among the states, goals = to grant peace,
hands of the states to grant their own goals
stability, economic growth, justice and respect
and interests
for human rights
war was the best method to solve conflicts war cannot be a solution to conflicts
multilateral international treaties have a
sources of international law are based on
dominant position + are acknowledged in the
customs generally acknowledged
same national constitutions
international organizations have a proper and
autonomous role in the international scenario,
international agencies lacked legal control over
and directly influence the state’s legal order
the states
→ the United Nations Organization has the
biggest role
creates legally binding sources of law → the UN
all obligations coming from international law had
Statute adopted in San Francisco (1945)
to be ratified and transposed to national law
provides proper normative sources and
through national sources of law
institutions [International Court of Justice]
treaties were made for mutual interest, so states
international organizations can compel states
were Lords of the Treaty (they could leave
to follow certain common goals
whenever they wanted)
rights are constitutional/fundamental rights rights are general human rights = they belong
created within the state to individuals simply because they’re human
 Fundamental Rights in the UN’s Universal Declaration of Human Rights: the General
Assembly of the UN adopted the Universal Declaration of Human Rights on December 10th
1948 → it transformed international law and the international community; it includes:
 civil/political rights = right to life, liberty, privacy, free speech, etc.
 economic/social rights = right to health, education, social security, etc.
Its concepts are rooted in the 2 WW and particularly in WW2 (memory of the atrocities committed
by the Nazis against basic human rights), aiming at demolishing the link between individual
rights and state citizenship to enhance the role of international law in the protection of rights (not
only jurisdiction of the states); it affirms that human dignity is the foundation of freedom, justice
and peace in the world → the human rights recognized are universal and fundamental = to be
enjoyed by all human beings no matter their ethnicity, religion economical/personal/social status
The Declaration is not a treaty and doesn’t entail any obligation for the countries (only ethical,
because many countries had doubts about the human rights culture, seen as too western-world-
centered + gave too much importance to individual rights rather than social rights/related to the
community’s welfare), it’s an expression of fundamental values/principles shared by all
members of the international community; either way, it’s fundamental because:
 it influenced the development of international law
 according to some it became binding as part of a customary international law
 it influenced constitutional/statutory provisions on the protection of human rights in
many countries
 it was the basis for other international treaties adopted during the 2nd half of the 20th cent,
aimed at promoting the development of human rights = ECHR (European Convention on
Human Rights), Charter of Fundamental Rights of the European Union (that has legal
value since the Lisbon Treaty), American Convention on Human Rights, African Charter
on Human and People’s Rights, UN’s International Covenants on Civil and Political Rights +
Economic, Social and Cultural Rights, Geneva Convention (1951, rights of refugees and
asylum seekers)
In the same period many international organizations with different aims (political, economic,
military, etc.) and geopolitical scopes were created:

 Organization for Economic Cooperation and Development (1948)

 Council of Europe (1949)
 European Coal and Steel Community (1951)
 International Atomic Energy Agency (1957)
 the 2 military alliances protagonists of the Cold War:
o NATO (North Atlantic Treaty Organization, 1949) = led by the US
o Warsaw Pact (1955) = led by the Soviet Union

Even if this process was globally widespread, in the European continent it achieved its peak: they
were aware of the negative role of nationalism (that caused the failure of the Society of Nations and
WW2) → their effort to overcome the traditional impermeability of national legal orders took 2
directions:

 Constitutional openness to international law: evident in the same post WW2 Constitutions,
that opened their national legal orders to legal sources of international law like
a. International customs
b. International conventions and multilateral treaties
c. Norms provided by supranational organizations
 States accepted limitations of state sovereignty and acknowledged that international law
could automatically bind their legal orders and be integrated into them

 Creation of a European community of states for cooperation in several matters: during the
totalitarian regimes in Germany/Italy some politicians and theorists argued that the closure
and impenetrability of nation states was one of the main causes of international conflicts → the
first project for the united states of Europe was drafted by Italian anti-fascists Spinelli, Rossi
and Colorni during their exile in Ventotene → after the war states started to develop a series
of reciprocal international relationships:
o Establishment of the Council of Europe in 1949 (12 states of Western Europe + Turkey)
to promote democracy and respect for fundamental rights as part of the European identity;
with the Treaty of Rome (1950) the Council of Europe adopted the ECHR = European
Convention for the protection of Human Rights
o Between 1952 and 1957, Schumann (France), Adenauer (Germany) and De Gasperi
(Italy) started to strengthen their cooperation in economic activities and the political
solidarity among them → they launched the European economic integration process
(that led to the creation of the EU)
The 2 new supranational organizations (Council of Europe and European Union) play a role
completely different from other international organizations: they represent the establishment of a
supranational legal order (consistent with the very goal of western constitutionalism) and play an
important role in opening up national legal orders and overcome their limits; they are 2 institutions
with limited links (apart from the fact that many countries belong to both, but many belong only to
one)
7.2 THE EUROPEAN CONVENTION ON HUMAN RIGHTS
The European Convention on the protection of Human Rights (ECHR) was adopted in 1950 with
the Treaty of Rome by the Council of Europe: they aimed at enhancing democracy and protecting
fundamental rights → for this reason they also established the European Court of Human Rights
(ECtHR) in Strasbourg
The ECHR gathers individual/collective rights forged during the historical development of
western constitutionalism + follows the path of the UN’s Universal Declaration of Rights that set the
dignity of human beings as the axiological premise for other rights; the Convention also affirms
limits to specific rights and a set of public interests that justify the intervention of public authority in
limiting fundamental rights to preserve democracy and security
The Court of Strasbourg has limited the discretion of the single states in limiting fundamental rights:
it often established a consensus standard among the states (model to which they had to confirm) or
recognized a margin of appreciation to the states on the implementation/effective protection of those
rights → in recent years it has promoted improvements in the protection/diffusion of rights:
 principle of secularism/religious neutrality
 rights of homosexual/transsexual people (recognition of other models of family)
 right to a fair trail
 preservation of rights to people facing trials/incarceration (against cruel/humiliating actions)
 protection of political pluralism and freedom of the press
In the 1990’s the ECHR legal order transitioned from a typical international organization to acquiring
a quasi-constitutional nature, mainly because of:
i. the eastward expansion of the ECHR legal space after the fall of communism = when
transitioning to a liberal-democratic structure, they took the Convention’s provisions and the case
law of the Court of Strasbourg, giving them special acknowledgement in their new
constitutions (many even directly, putting it at the top of the national hierarchy of sources of law)
 as a binding source of law [the EU put the acceptance of the Convention as a condition to join
the Union]

ii. the adoption of the additional Protocol n. 11 in 1994 = it gave the possibility of individual
applications to the Court of Strasbourg (people could go against the states violating the
fundamental rights protected by the Convention) → the jurisprudence of the Court of Strasbourg
gained constitutional relevance and started to touch also each individual citizen
The Convention has a more/less relevant position in the national legal orders depending on the
states (but incomparable to any other international agreements, it is deeply integrated within the
national legal orders) → there are 2 patterns of integration of the Convention:
 Incorporation (monism) = the Convention is incorporated in the national legal order through
specific constitutional/statutory provisions or through jurisprudence, depending on the country →
it’s legally binding and is applied as a national legislation (even if not formally mentioned in the
state’s Constitution/primary legislation):
o Central-eastern European countries (ex-communist) = it has constitutional nature/supra-
legislative status in the domestic legal system → national authorities act and make decisions
according to the provisions of the Convention
o Netherlands (strong openness) = superior to the national constitutional law + the provisions
of the Convention/decisions of the Court of Strasbourg are binding law and directly
implemented within the state (also by ordinary judges)
o Austria = the Constitution recognizes the constitutional nature of the ECHR
o France = it has supremacy over statutory law, is applied directly by all courts → the
Constitutional Council incorporates it into the bloc de constitutionalité
o Belgium = they follow the jurisprudence of the Court (no explicit constitutional recognition)
o UK = at first it had vague force in the national legal order (dualism = only for the state, not
for the citizens and courts) → it’s directly applicable and incorporated in the enacted sources
of law since the Human Rights Act (1998, transition to monism) → it raised issues mainly
because it changed the traditional parliamentary sovereignty and the Common law’s
structure of legal sources:
 Sect. 2: the courts must consider the Strasbourg Court’s jurisprudence
 Sect. 3: if it’s possible, primary and subordinate legislation must be read and given
effect in a way which is compatible with the Convention rights
 principle of consistent interpretation = the rights have to be interpreted by the courts of
Common Law following the HRA + consistently with the ECHR provisions and the Court
of Strasbourg’s precedents
 at first the courts adopted a full mirror theory = the national courts would be bound by
the precedents of the Strasbourg → then the Supreme Court (since 2008) affirmed [R.
v. Horncastle, 2009] the necessity of respecting the principles of Common Law even
if they are in contrast with the jurisprudence of Strasbourg
 Sect. 4: in case of an irresolvable antinomy between national legislation and European
rules, the courts must issue a declaration of incompatibility to Parliament (1st form of
review of legislation in the UK, but weak → hybrid solution, between dualism and
monism) = the Parliament should amend the legislation to make it consistent with the
Convention, but it always has the last word in cases that would change too
radically the national legal traditions/values → this system has always worked,
except for the Hirst case
 The Hirst Saga: In 2005 the European Court was judging the Hirst case, concerning the right to
vote of citizens imprisoned in the UK → English laws banned voting for prisoners
(Representation of the People Act, 1983), but the Court found it in contrast with Art. 3 Protocol 1
ECHR (individual right to vote) → it generated a conflict:
 the UK Government thought the ban was reasonable and fell within the margin of
appreciation of the state
 the majority Court saw the ban as an indiscriminate denial regardless of the specific
situation, and affirmed that the matter was outside the margin of appreciation of the state
 5 judges of the Court stressed the highly political nature of the prisoner voting issue, and
that the UK should get a wide notion of margin of appreciation
 National courts issued a declaration of incompatibility of the Representation of the
People Act (1983) with the HRA
The European Court in the judgement Greens and M.T. v. UK (2010) affirmed that the UK had to
amend its own legislation in order to comply with the previous judgment (in Hirst) → the
Parliament didn’t agree and confirmed the legislation because they believed it should be a matter
for democratically elected

 Interpretation (dualism = less rigid pattern) = the Convention and the jurisprudence of the Court
of Strasbourg play a key role in the interpretation of internal law, they must be interpreted
consistently with the Convention and Strasbourg’s jurisprudence:
o Spain and Portugal = the Convention has a primary role, it’s conceived as an interpretative
parameter for fundamental rights → rights/liberties recognized by the Constitution must be
interpreted consistently with the Convention
o Germany = the Constitutional Court emphasizes the value of the Convention as an
interpretative tool supporting the lecture of the national catalogue of fundamental rights (but
the national law prevails in case of irresolvable conflict)
o Italy (between dualism and monism) = the twin rulings 348 and 349 (2007) acknowledged to
the ECHR the value of an interposed parameter between statutory law and the Constitution
→ the judge has the duty to interpret national law consistently with the Convention (if there is
a conflict, the judges should treat it as a breach of the Constitution) → the Italian CC
obtained 3 main goals:
 It acknowledged to the ECHR a supra-legislative status in the domestic legal system
lawmakers
 It retained its monopoly of scrutiny over legislation, preventing the power of judicial
review of legislation from being extended to ordinary judges
 It preserved the Constitution itself and
the preeminence of superior
principles over the ECHR (it has sub-
constitutional status and it’s
hierarchically subordinate to the
Constitution) → applied for the first time
in 2012 (decision n. 264)

7.3 THE EU COURT OF STRASBOURG AND THE JUDICIAL DIALOGUE

(1) In all the countries that were part the Convention there have been both problems/conflicts and
interactions/dialogical practices among the case law of the courts (meant as the Court of
Strasbourg, the European superior courts, the national courts and other supranational courts) →
each court learns from the others new techniques and concepts
(2) The dialogue among the courts leads to the use of comparative reasoning [when a court’s legal
reasoning considers also foreign countries’ legal contexts and the jurisprudence of other courts] =
this has been critiqued by some scholars (who called it a sign of a juristocracy, an undemocratic
power linked to rationalistic values not connected with people’s choices)
Actually, despite the critiques to (1) and (2), they are becoming more and more widespread: judicial
training is based on a comparative approach + national constitutional courts meet regularly to share
their experience on legal problems → there is an actual circulation of jurisprudence and the
diffusion of legal interpretative tools/legal concepts from one state to another → some examples
are:
 the notion of human dignity is used by constitutional courts in countries where the notion itself
isn’t even in the Constitution
 the proportionality principle (determination of the acceptable limitation of constitutionally
protected rights) = born in Germany in the 19 th cent as a method of review of the acts of the
public administration (Rechtstaat), with the Basic Law it became a principle for the review of
legislation: the goal is to assess the merit of the legislative provision and retrace the steps of
the legislator → doing so, it can determine
o the admissibility of the legislation within the framework of the constitution
o the proportion between ends and means + the possibility to use less intrusive means
o the comparison between cost and benefits of the measure + balancing the interests at
stake
This principle has spread a lot in judicial review and in comparative law (Barak says we live in the
age of proportionality), and mostly happens without any textual constitutional basis (it’s based on
common concepts and legal tools/techniques spread around the world) → it happens even in the US,
as well as Canada and South Africa; it represents the end of the closed legal system of the states
→ national legal systems participate in wider and greater legal processes
National law is full of common legal traditions, attached to history and legal culture → the courts have
to deal with it: the highest and constitutional courts of a state can request a
non-binding/advisory opinion to the Court of Strasbourg (Protocol n. 16 to the Convention) on
questions of principle related to the correct interpretation of the Convention
7.4 THE EUROPEAN UNION: HISTORICAL ORIGINS
The process of European integration was originally based on economic goals and went through
several steps:
1. in 1952, 6 countries (Belgium, the Netherlands, Luxemburg, France, Germany and Italy)
established the ECSC (European Coal and Steel Community = sector that had caused political
struggle between France and Germany)
2. In 1957 the Treaty of Rome gave birth to the Euratom (European Atomic Energy Community)
and the ECC (European Economic Community) = the latter would play a stronger role, its goal
was to create a common market (of goods, services, capital, etc.) and encourage the free
movement of persons through more pervasive legal instruments that could prevail over
internal provisions of member states → economic cooperation as leverage for peace
3. Since then, there has been a process of growth and reinforcement of European integration,
up to gaining 28 member states (today 27 since Brexit) → the communities were reorganized,
their institutional organization was rationalized and their competences were enlarged
4. the Treaty of Maastricht (1992) organized the 3 communities in a single/common institutional
framework = the European Community became the European Union
5. the Lisbon Treaty (2007) abolished all the communities except Euratom and merged them into
a unique institution = the European Union → led to the question = Is the EU a constitutional
 system, a federation of states?
7.5 THE NEW SYSTEM OF THE TREATIES AND THE AMBIVALENT IDENTITY OF THE EU
The European treaties are the 1st source of EU law (primary legislation): they aren’t a constitution
but set the general framework for the organization of the EU → in 2001 there was an attempt to enact
a European constitution (Constitutional Treaty), but some of the states that decided to ratify it with a
referendum rejected it (the Netherlands and France) in 2005
The Lisbon Treaty reorganized a new system of treaties (without referencing to constitutional
vocabulary) based on 3 fundamental Treaties of the Union, that have the same force of primary law:
 TEU (Treaty of the European Union) = provides basic norms and principles of EU law
 TFEU (Treaty on the functioning of the European Union) = contains specific provisions on the
Union institutions, competences, and procedures
 Charter of Fundamental Rights (or Charter of Nice)
The new system was much clearer/rational, and influenced the transition of the EU legal order from
the concept of international law toward a constitutional law identity → this is supported by 5
elements:
i. principle of primacy and direct effect of EU law
ii. increasing role of the European Parliament in EU institutional framework
iii. growing competences of the EU, due to the jurisprudence of the Court of Justice
iv. monetary unification
v. development of a common policy in public finance led by the European Central Bank
(intended to replace the national central banks and national autonomy in budgetary policies)
Is European integration a federalizing process? The outcome of the process of integration is not
foreseeable, and it’s different from many federal experiences in constitutional history → the main
ambivalence is that many aspects are still consistent with the international law paradigm = for
the revision/modification of treaties, the procedure requires unanimity (confirming the states as lords
of the treaties) + the states have the power to withdraw from the Union (the UK is the 1st one) → in
constitutional history, the federal state was settled with the removal of these elements
7.6 THE DEMOCRATIC LIFE AND THE EU INSTITUTIONAL FRAMEWORK
The treaties define the institutional framework of the Union = international + constitutional
structures and procedures → the Lisbon Treaty added basic tools of direct democracy + a more
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:
 at the origins, the states’ governments were the only relevant actors, and the Parliament
wasn’t an elective institution (composed of delegates of national parliaments)
 since 1979 the Parliament is elected by citizens of the member states, and its weaknesses
were progressively overcome to reach a balance with the other bodies
The European party system is made of national political parties organized in political
families/groups that share a common vision of EU politics: before the Lisbon Treaty, they weren’t
regulated specifically → Reg. no. 1141/2014 established a complex regulation = European political
parties have a European legal personality and respect the EU’s values + there was a new
registration procedure, an authority for EU political parties with significant powers, a new procedure
for funding, detailed controls and sanctions for misuses and abuses
The treaties settled a pluralist democratic model = the representative bodies co-exist with other
democratic channels [European citizens’ legislative initiative = proposal signed by 1 million EU
citizens for at least ¼ of the member states, prior an evaluation by the Commission]; the institutional
framework of the EU is composed by the following bodies:
  European Council = leading political body
o Composed of the Heads of State/executives of member states
o Meets every 6 months and defines the EU’s overall political direction and priorities
o Is involved in the procedure for the revision of the treaties
o It elects 2 important roles:
 its own president = elected every 2 and ½ years (renewable once) and can’t
simultaneously hold a national office (it’s an additional member
 the High Representative for Foreign Affairs and Security Policy = appointed for
a 5-year term, charged with carrying out the EU’s foreign and security policies
o doesn’t have the legislative function
 European Parliament = holds the legislative power
o Directly elected by the population of member states (with the seats allocated according
to national quota = based on the size of the population) → the election procedure is left to
the member states (so it’s not uniform)
 Council of Ministers = holds the legislative power
o Composed of 1 representative per member state at the ministerial level
o Represents the member states’ governments within the EU institutional framework
o Its composition may vary depending on the topic to be discussed [Foreign Affairs,
Agriculture, Education, etc.]
o It works as a supranational institution as well as an international conference of
sovereign states → it mirrors the same structure of the EU
o it deliberates according to a complex system of majorities (art. 16 (3) TEU) = qualified
majority in terms of number states/of populations represented (unanimity is required only in
residual and exceptional cases = foreign affairs, security policy, fiscal policy, etc)
o it represents the national interests in the dialectic with pro-European institutions
(supporting a more integrated union) → it could be compared to the role of the upper
chambers in federal systems
 European Commission (Brussels) = executive institution of the EU (≠ from the executive
branch of member states → it doesn’t execute legislation but is the engine of the EU) → it
addresses, monitors and supervise the legislative/judicial/administrative implementation of EU
policies by the states’ authorities
o Composed of 1 commissioner per member state
o Has the power of legislative initiative (but limited)
o The president assigns specific competences to the commissioners and can remove them
or change their competences
o At the beginning it had a more general/central role (ensuring the achievement of the goals
of the treaties), now its role is reduced to:
 Proposing EU legislation to Parliament and Council
 Duty to execute European policies
 Overseeing the application of EU law by member states and European institutions
o Has a set of limited administrative functions, but they are mainly left to the member states

The new system of treaties (to speed up the process of European integration) intervened in 2 areas:
 legislative procedure = art. 294 TFEU identifies the co-decision procedure as the standard
legislative procedure to be followed for adopting EU legislation → Parliament and Council act
on equal footing on the proposal made by the Commission
 relationship of the Parliament with the Commission = the European Parliament is the only
one directly elected, so it’s the one that shapes the composition of the European Commission
→ art. 17 TEU affirms that the Parliament elects the president of the Commission with an
absolute majority:
1. the European Council appoints the candidate after the Parliament’s elections
 2. the Parliament confirms the candidate (if not, a new candidate has to be proposed within 1
month and the procedure restarts)
3. the European Council + the newly elected president adopt a list of candidate commissioners
based on proposals of the member states
4. the Parliament votes the Commission as a collegial body and approves it with a qualified
majority
The very complex procedure assures the central role of the relationship of confidence between
Parliament and Commission → the European Commission is collectively accountable before the
Parliament (in case of a motion of censure of the Parliament against the Commission, the latter has
to resign as a whole)
7.7 SOURCES OF LAW OF THE EU LEGAL ORDER
The EU legal order is ≠ from any other international organization because it produces normative
acts through its institutions = primary sources of law (treaties signed by member states, sort of
constitutional regulation of the EU) + secondary legislation that can be:
 non-binding (typical of international organizations) = advises, recommendations and
opinions: they still have a huge effect, because the EU can make them binding if the states do
not adapt to them → attempt to harmonize and lead the states to adopt certain provisions
without immediately forcing them → respects the states’ autonomy
 binding (art. 288 TFEU)
o regulations = general, regard all the states and have direct effect: they immediately bind
the member states’ legal orders and must be directly enforced by all the administrative and
judicial institutions in the states → they include detailed provisions to be directly and
autonomously applied without any further normative act (specific and directly applicable)
→ they bind citizens directly
o decisions = have direct effect, but can be limited to a specific group of states (can be
adopted instead of regulations depending on the field of competence)
o directives (less intrusive) = can be general or limited to individual/groups of states, but
they don’t provide norms with direct effect → they bind the states’ institutions to reach
goals within a specific deadline, implemented with the adoption of national legislation (they
bind the state but not the state’s legal order → they can also be passed on to the regions to
be regulated)
 self-executing directives = providing sufficiently detailed goals to be directly applied
 if the state doesn’t transpose a directive in its legal order, the EU can open an
infringement procedure = infliction of sanctions against member states for not
respecting EU obligations
The norms provided by the binding sources of law of the EU are superior to internal norms (even if
those are adopted by primary legislation): in case of antinomies between national provisions and EU
provisions with direct effect, the latter prevail binding prior and future legislation → the principle of
primacy of European (primary/secondary) law over national law was affirmed by the European
Court of Justice in the case Costa v. Enel (1964)
 the Member States have limited their
sovereign rights and have created a body
of law which binds both their nationals and
themselves
 the law stemming from the Treaty could
not be overridden by domestical legal
provisions without being deprived of its
 character as a Community law and without the legal basis of the Community being called into
question
In this case we can’t speak of hierarchy (it considers the validity of a norm, it can be used only within
a system): EU laws and national laws don’t form a unitary system, they are 2 different systems
integrated one with the other → the primacy criterion is the one to be used = states should apply
the EU legislation and put aside/ignore the national legislation
The Court of Justice basically affirmed that the conflict between national legislation and European
directly applicable norms should be resolved directly by the national courts (without raising a
question of constitutionality) → not all national constitutional courts accepted this doctrine:
 the Spanish Constitution affirmed that no trial can happen in absence of the accused, but EU
law said that a state has to deliver a citizen to his/her country in case of a trial → Italy was
starting a trial when the accused was in Spain, and Spain was torn between breaking EU law
or going against its own Constitution → the ECJ said that their constitution didn’t matter
and that they should respect EU law
 the Italian CC accepted it after several resistance (Judgement n. 170/84), but affirmed that in
case of violation of a superior principle the judges can’t apply the European norm and must
trigger the process of constitutional review (counter-limits doctrine = sustained by the
Czech, Polish and English courts)
 the German CC affirmed the counter-limits doctrine in the form of a review on the violation
of German constitutional identity + 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 → resistance/serious threat to the building of a European
constitutional space
In the field of non-exclusive EU competences, the intervention of the EU works based on the
principle of subsidiarity = competences should be exercised by the smaller level of government
(closer to the people), but if needed the higher level can intervene [regulations and directives have to
be used when needed, ex. to harmonize] → if the Union doesn’t intervene, the states’ legislation is
allowed to regulate the topic, but national legislation is preempted in case of adoption of a relevant
European regulation (similar to the preemption model in US law)
This principle should limit the process of continuous growth of EU competences, but the Court of
Justice refused to apply it as a parameter of its judicial review → because of this, the states
(through their national parliaments) must supervise the legislative proceedings of the EU → if EU
goes beyond the borders of its competence, they can raise an early warning = it forces the
Commission to re-examine the bill and explain its position with detailed motivation → this requires a
certain threshold and has different effects based on the number of parliaments that joined it, so it has
worked only in 3 cases, about the following proposals:
1. for the regulation of the right to strike of workers
2. for the creation of the EU public procurement office
3. for a revision of the posted workers directive
7.8 THE EU 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:
 It’s composed of:
o 1 judge per country, appointed by national governments for 6 years (renewable)
o 11 Advocates General = they assist the Court presenting independent non-binding opinions
on the cases
  The Court can sit as:
o a full Court = in particular cases prescribed by its Statute/in a case of exceptional importance
o in a Grand Chamber of 15 judges = when a party requests it/in other complex cases
o in Chambers of 3/5 judges
 It deals with:
o 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)
 this is used also to determine whether a national law/practice is compatible with EU law
→ courts have began to use this only recently, because it was hard to accept a binding
ruling by another judicial authority
 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
o certain actions for annulment of acts of the Union/appeals (raised even by individuals)
o legal disputes between national governments and EU institutions
o 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
 Expulsion is not a possibility even in infringement procedures
 the Court has the power of suspension (art. 7 mechanism, since the Lisbon Treaty) =
not used for several years, in 2017 the Court has considered to use it against Poland
(who went against the rule of law) and Hungary
7.9 THE PROTECTION OF FUNDAMENTAL RIGHTS IN THE EU
The original EU treaties didn’t expressly reference to human rights/their protection by the Union
→ during the 1990s, the EU started to develop its own sources of fundamental rights and its own
methods of protection because national constitutional courts were criticizing this lack in EU law
→ there are 3 sources of fundamental rights in the EU’s experience:
A. common constitutional traditions to the member states, pointed out by the jurisprudence of the
ECJ through a comparative reasoning based on the constitutions of the member states
(problematic because it’s strongly dependent on the cultural perspectives of the judges) → a more
precise doctrine was affirmed in a series of cases and judgements, where the Court aimed at
balancing economic liberties and the fundamental rights of men:
o Stauder (1969) = the Court discovered fundamental human rights enshrined in the general
principle of European law
o Internationale Handelgesellshaft (1970) = even if the fundamental rights in the states’
constitutions are not a source of EU law, the general principles of EU law grant an analogous
guarantee → EU principles are inspired by the constitutional traditions of the Member States
o Nold (1973) = international treaties for the protection of human rights signed by the Member
States can supply guidelines that should be followed within the framework of EU law
o Schmidberger (2003) = Austria had authorized a demonstration by an association that
interrupted traffic on the highway for >30 hours, limiting companies’ rights of free movement
of goods → the company Schmidberger sued the Austrian judicial authorities, but according to
national courts no law had been violated, so they asked to the ECJ
 can a member state be condemned to pay damages under EU law for having
respected its own constitution and allowed a practice of a fundamental right? →
there was the need to reconcile the protection of fundamental rights in the Community
with those arising from a fundamental freedom from the Treaty
 o Omega (2004) = the city of Bonn (Germany) had forbidden the Omega company from
launching a product (laserdrome = war game) because it threatened the public order and
promoted violence → the Court raised preliminary reference to the ECJ, also because the
product was distributed in other member states → the ECJ agreed with the German courts
(human dignity = constitutional tradition common to the constitutions of the member
states)
B. European Convention on Human Rights = charter adopted by a different international
organization, but it’s a source of general principles of EU law → art. 6 of the TEU acknowledges
the provisions of the ECHR and the constitutional traditions common to member states as
general principles of European law
o the TEU foresaw the path for the accession of the EU to the Convention (which would
make the latter binding on EU’s institutions + give the Court of Strasbourg power of judicial
review over EU acts = it would be a strong tool of cooperation in the European legal space)
o the ECJ saw this as a threat, so in Opinion n. 2/2013 (December 2014) it rejected the draft
of the Protocol for the accession (regression in the path towards a European legal space)
C. 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
o Art. 51 = the provisions of the Charter are addressed to the Union + to member states only
when they’re implementing EU law → it’s hard to understand when to actually apply it:
 In Akeberg Fransson (2013) the ECJ stated that the Charter is the shadow of EU law
= it can be applied only to direct the interpretation of EU law and to define the conditions
of its validity
 In Siragusa (2014) the ECJ explained more accurately the strict construction of art.
51 = to determine whether national legislation involves the implementation of EU law,
they should analyze:
o whether that legislation is intended to implement a provision of EU law
o the nature of that legislation and whether it pursues objectives other than those
covered by EU law
o if it’s capable/indirectly affecting EU law
o whether there are specific rules of EU law on the matter/capable of affecting it

 In the case of the Data Retention Directive (2014) the ECJ was called by 2 preliminary
references, because the directive compelled the providers to retain certain data on the
internet, which was against the fundamental rights of privacy/protection of personal
data granted by the Charter → the directive was annulled, following the typical scheme
of review of legislation by a constitutional court
7.10 THE EU CONSTITUTIONAL SPACE BETWEEN INTEGRATION AND RESISTANCES
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:
 primacy and direct effect of its sources of law
 binding effect of the ECJ’s rulings
 unification of financial policies + adoption of a single currency
 development of democratic procedures
 growth of a system of protection of fundamental rights
There are several resistances to the process of European integration:
  national courts  excessive deficit of democracy in EU
 nationalist political parties institutions
 linguistic pluralism  lack of a social policy in the EU
 role of national cultures/political interests  lack of a power of direct taxation

Criticism against the limits of the institutional frame of the EU are widely agreed on, but they should
push for a constitutional reform of the EU (not defend the past) → western constitutionalism has
always had a cosmopolitan/universal tendency:
 universality/naturality of human rights founded on rules of reason
 proclamation of the equality of men and goal of spreading democracy
 pursuit of social rights and social justice
These have always been beliefs/goals of the tradition of western constitutionalism, despite the
specific national paths: the process of globalization and the crisis of the nation state represent
both a challenge and an opportunity for western constitutionalism

8 THE WORLDWIDE EXPANSION OF CONSTITUTIONAL DEMOCRACY

8.1 TRENDS OF EXPANSION
After WW2, several waves of democratization spread democratic forms/procedures around the
world, at the same time as the processes of decolonization and economic growth, defeat of
communism and acceptance of capitalism → the spread of legal concepts, institutions and
models from the western constitutional tradition led to the settlement of constitutional structures
outside the Atlantic space → comparative legal studies allowed the circulation of constitutional
culture/techniques, contributing to shape a global constitutional κοινὴ) → the results were different
depending on the countries’ culture and history:
 in some, it merged with peculiar legal traditions: it created forms of legal syncretism
 in others, the political/social conditions hampered the expansion of western constitutionalism:
where secularism, pluralism and fundamental rights are not guaranteed, the transplant gave
life to fake constitutional experiences (and old/new forms of authoritarianism)
This is why a solid/consistent doctrine of constitutionalism (strictly linked with its original values)
must be kept in mind to understand and assess contemporary political processes on a global
scale; the expansion of western constitutionalism reached:
 Western Europe = countries where there were still authoritarian regimes post WW2
 Asia and Africa = where constitutionalism spread together with decolonization and
independence
 Latin America = where constitutionalism took its roots in the 19 th cent, creating its own
tradition
 East-Central Europe = where the fall of communism led to authoritarian regression in many
countries
8.2 EXPANSION IN WESTERN EUROPE
Some western European states hadn’t reached liberal-democratic orders after WW2: during the Cold
War, a new wave of democratization involved 3 European states = Greece (1975), Portugal
(1976) and Spain (1978) → from authoritarian regimes to adopting liberal-democratic constitutions
GREECE
The monarchy was defeated, and a military dictatorship was established at the beginning of 1967,
at the same time as the military crisis in Cyprus: the dictatorship fell and the Constituent Assembly
drafted a new republican Constitution (adopted in 1975):
 inspired by the German, Italian and French constitutions + had a high level of rationalization
of the government
  starts with a Declaration of Rights = extremely detailed and elaborate, regulates specific
elements of these rights (unusual) → emulates the Italian and German ones in the general
clauses and normative construction
 establishes a parliamentary system: at first the President of the Republic had relevant
powers, but they were reduced in 1986 with a constitutional reform (boosted by the Greek
Socialist Party)
 classical pattern of parliamentary government = dialectic Parliament-Cabinet + relevant
leading role of the prime minister (that depends on the homogeneity of the parliamentary
majority coalition)
 unicameral Parliament = votes the confidence to the Cabinet with a detailed procedure
regulated in specific phases [consultation stage, appointment, etc.] → strong formalization
and rationalization of phases that usually are characterized by political uncertainty, to
constrain the political parties to following settled constitutional procedures
 the President of the Republic is elected by the parliamentary Assembly with a qualified
majority → he has incisive powers, most of which he can exercise without the ministerial
countersignature:
o to dissolve the Assembly
o to adopt ordinances in exceptional cases
o to send bills back to the chamber for new deliberations

PORTUGAL
The long authoritarian regime collapsed in 1974 with the Carnation Revolution (democratic and
socialist values) and they adopted a new Constitution (1976):
 starts with a Declaration of Rights = includes traditional liberal rights + rights of 2 nd generation
and social rights
 establishes a semi-presidential government:
o Cabinet and President share the executive
o the Cabinet receives the confidence of the House
o the President is directly elected by the people (for 5 years), but has way less powers than
the French President → his role is to counterbalance the Cabinet/the majority in Parliament
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]
 Spanish regionalism ≠ Italian Regionalism : any autonomous community can be
spontaneously established, achieving a higher level of legislative autonomy and negotiating
with the central government → not homogeneous division but asymmetry
 autonomous communities have statutes that provide regional frames of government where
different degrees of autonomy/self-government are acknowledged
 a process of re-symmetrization has taken place due to recognition of wide powers to all the
autonomous communities
 their statutes are similar to the statutes of special regions in Italy and to the German Laender
(they regulate additional rights and duties of the citizens + introduce new innovative rights)
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):
 art. 10.2 affirms that Spanish legislation is open to the influences of international law: the
rights/liberties recognized have to be in conformity with international treaties and the
Universal Declaration of Human Rights (1st time it’s specifically mentioned in a constitution)
The Constitutional Court guarantees the centralized constitutional review (follows the Italian and
German models) with:
 direct appeal = conflicts between the state and autonomous communities
 incidenter proceeding = by judges during processes
 recurso de amparo = right of individuals to appeal directly for fundamental rights protection
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
 the Congress elects the Cabinet and has the constructive no-confidence vote (they
can withdraw the confidence only if a positive majority supports a new candidate)
o Senate = represents local autonomies
 the king has only limited/formal powers (his power to dissolve the Congress is strictly regulated)
 another factor for internal stability is the consolidated 2-party system = guarantees:
o the alternation of powers between socialist and popular parties
o the existence of an absolute majority in the Congress
o the formation of stable cabinets led by only 1 party
 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]
o 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)
8.3 DECOLONIZATION AND CONSTITUTIONALISM IN ASIA
The decolonization processes in Asia (and Africa) intensified post WW2: the independence from
colonial powers led to the adoption of constitutional documents (modeled on the ones of the formal
colonial powers) → learning and adaptation of the typical features of western constitutionalism
In some countries a form of denial of western constitutionalism emerged because of the
completely different cultural environment + because the same processes of national unification
were imposed by external forces as artificial constructions → tribal and local conflict arose + in
many countries authoritarian regimes affirmed themselves with military governments, 1-party
systems, presidential regimes (authoritarian) or fragile democratic regimes
In Islamic countries the overlap of civil powers + religious ones (and the religious authority)
created a political culture not welcoming for democratic procedures and constitutional structures as
they were intended in the secular western world → the interpretation of individual rights is based on
different principles, and the political systems are fragile and susceptible to undemocratic retreat →
there still is distance between western and Islamic political traditions
Other countries followed the socialist pattern during the Cold War: most of them have not yet
completed their transition to liberal-democratic values; the main countries where constitutional
democratic system have consolidated are Japan, Israel, and India
JAPAN
Since its defeat in WW2, Japan has had a stable democracy → they adopted a rigid Constitution
(1947) strongly influenced by the American doctrine (principle of separation of powers):
 bicameral parliament = elected, has the legislative power
 Cabinet = the executive power, linked to the legislative assemblies by the relationship of
confidence
 the emperor loses his divine prerogatives, becoming a symbol of the state/unity of the people
 it acknowledges/guarantees fundamental rights + the principle of equality
 it establishes a system of judicial review with a preeminent role of the Supreme Court (which
has discretionary jurisdiction since the end of the 1990s = it can select the cases it handles)
 it affirms the permanent renunciation of war/the use of threat or force to settle international
disputes → a constitutional provision dismantled the military force
ISRAEL
A resolution of the UN (1947) established the independent State of Israel (territory of the former
province of the British colonial Empire of Palestine) = it triggered a huge movement of immigration
of Jewish people toward Israel
They adopted a Declaration of Independence (1948) that foresaw the adoption of a written
Constitution by a Constituent Assembly → the process was interrupted by Ben Gourion (leader of
the Republican Party) who refused the adoption of a written/rigid constitution because:
 it would impose constraints over the will of the people expressed through democratic
procedure/the majority rule
 it would freeze a system that was still changing due to immigration
 the religious grounds were against a secular paramount law
 the British experience showed how it’s possible to establish a liberal-democratic state
without a written and rigid constitution
The Constituent Assembly was dissolved, and the text was never approved → the constitutional law
of Israel consists of several basic laws regulating single parts of the constitutional structure of the
state:
 they are hierarchically on the top of the system of sources of law, but they don’t have a rigid
nature and can be altered by the Parliament with a normal majority
 the system of government is a parliamentary republic
 the Knesset (Parliament) is monocameral
 the electoral system is proportional = fragmented multi-party system
 strong leadership of the prime minister (emerged throughout the years as a reaction to the
crisis)
 it follows the Common law system = originally the protection of fundamental rights was in the
hands of the courts, but in the 1990s two basic laws were adopted = they represent a
catalogue of rights to be protected by the courts, acting as paramount law:
o for the protection of Human Dignity and Liberty (1992)
o on the regulation of Freedom of Occupation (1994)

INDIA
At the beginning of the 20 th cent, the British Government had started to give more autonomy to the
colonial provinces → in 1946 it recognized full independence: in December 1946 the Constituent
Assembly started to draft a Constitution = initially federal, for all the ex-British provinces, but they
realized it was impossible to reconcile the 2 areas (Hinduism vs Islam) → they divided in India
and Pakistan after 2 years of civil war
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:
 35 local authorities guarantee autonomy to territorial concentrated cultural identities
 the powers of the Federation and the states are balanced
 the federal government follows the UK model of parliamentary government with a bicameral
structure:
o lower House is directly elected and has > power, provides the confidence to the
Cabinet (with a preeminent role of the premier)
o upper House (US model) is composed of states’ representatives, is renewed every 3
years for 1/3 of its membership
 the President of the Union is elected by a wide electoral college composed of members from
the 2 Houses, he has only coordinating powers (except emergency powers in cases of
national crisis) and is the guarantor of the Indian Constitution
 the party system is highly fragmented, but the institutions have been able to grant political
stability thanks to the major role of the Congress Party (the one with most consensus) and its
leaders [Nehru and Indira Gandhi]
 the Congress Party was defeated when Indira Gandhi tried to enhance the powers of the
premier (because of the deep connection of the people to the values of the parliamentary
democracy)
 the fragmentation degenerated in recent years (also because of the lack of charismatic
leaders) and led to the Cabinets based on wide political coalitions → the narrow uninominal
colleges favored the affirmation of candidates that represented the regional parties’ interest
(worked in a different way from the UK first past the post)
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:
 property rights are subordinated to all the other goals of the welfare state
 ethnic/cultural/linguistic/religious pluralism is protected: there are 15 official languages, 6
main religions and 100+ minor religions
the Federal Supreme Court reviews the legislation (judicial review), protecting federalism and
fundamental rights:
a) its precedents are binding for other courts (Common law system)
b) it can declare voidance of federal/state statutes
c) its jurisdiction involves cases of conflict of competences between the Federation and the
States
d) it can be reached through direct appeal for the protection of fundamental rights (German and
Spanish models)
8.4 DECOLONIZATION AND CONSTITUTIONALISM IN AFRICA
In Africa there were many challenges for the spread of constitutionalism (similar to Asia) = inequality,
tribal conflicts, the artificiality of state-building processes → the settlement of constitutional
structures happened with recommendations/guidance of former colonial powers, but democratic
forms and subjects were weak in many countries (personalization/concentration of powers in the
hands of 1 person/military élites)
South Africa is one of the countries where democratic life is more consolidated, because the
constitutional process was more autonomous and independent from the control of western countries;
Apartheid ended in 1990 and Nelson Mandela’s political movement established a democratic
system based on peaceful cohabitation of different ethnic groups → crimes committed during
Apartheid were forgiven by the Truth and Reconciliation Commission, to boost an ethnic/social
process of pacification
The constitutional catalogue of rights pursues substantive equality to promote economic growth
of the black population with innovative rights [right to housing, proactive actions in favor of
disadvantaged groups, etc.]; the Constitutional Court assured the enforcement of rights, adopting
legal decisions and boosting important social reforms [decision against patent rights on AIDS
medications → fundamental human right to health over intellectual property rights]
The system of government is a directorial government:
 parliamentary assembly = directly elected by the people, elects the President
 President = head of state and head of the executive, has the same powers as if he was
directly elected → not responsible before/can’t be removed by the assembly (no relationship of
confidence)
 Cabinet = composed by several ministers from the parliamentary majority of the President and
the political opposition → any party with at least 20% has to be represented in the Cabinet
(assures pacification among different ethnic groups)
8.5 CONSTITUTIONALISM IN LATIN AMERICA
The diffusion of constitutionalism in South America had already started in the 19th cent, with the
independence from colonial powers:
 on one side, constitutions mirrored western models = rigid, based on the principle of separation
of powers, assuring protection of rights, establishing systems of government (US presidential
model)
 on the other, they developed a proper constitutional tradition, only partially following the US
model, boosted by the influence of popular movements fighting for independence against
colonial powers → bolivarism (Simon Bolivar, led the struggle in Venezuela, Bolivia, Colombia
and Peru) established its distance from US constitutionalism → it:
o affirmed an immediate/broad recognition of equality (claimed the abolition of slavery)
o refused federalism = preeminent role of the central state
o recognized extensive powers to the president = directly elected, has an immediate
representative relationship with the citizens
o supported a different vision of democracy = involving popular actions to check the
delegates
o enforced individual guarantees via direct individual/collective appeal to the courts

Until the end of the 20 th cent, in many countries the social and economic unbalances didn’t allow the
consolidation of constitutional structures, resulting in weakly rooted democratic systems and huge
powers to the president that allowed authoritarian degenerations → today the state of democratic
emergency (which attributes special powers to the president and to executive branch) and the right of
resistance (against any potential authoritarian degeneration) are regulated
Today many states in Latin America own consolidated democratic systems, with pluralistic party
systems and effective constitutional protections of individual rights → the political stability
allowed a solid national economy and a bigger role in the international scenario → 2 examples are
Mexico and Brazil
MEXICO
The Mexican Constitution (1917) was adopted after a revolution by workers/poor classes against
dictatorship, religion in politics and the large landowners → it follows many aspects of the US model,
but is also inspired by other political values (ideology of the revolution):
  it’s a federal state with a presidential government
 the catalogue of rights affirms social rights and rights of workers
 it’s the 1st Constitution to establish the recurso de amparo (then adopted by other Latin
American countries and even by Spain) = direct individual appeal to the Supreme Court or
constitutional court, claiming the violation of fundamental rights by an act of the state
BRAZIL
The Brazilian Constitution (1988) is based on the goal of eradicating poverty and social
inequalities: the catalogue of rights is broad and gives prevalence to social/workers’ rights, it has
direct safeguards [warrant for collective security, habeas corpus, habeas data, writ of injunction]; the
2nd part of the Constitution has detailed norms regarding many areas (mainly work life = unusual); the
constitutional review follows a hybrid method:
 judicial review = all courts can declare a provision unconstitutional (non-application), but the
Supreme Court’s decisions don’t bind inferior courts (Civil Law, not Common Law)
o this inconsistency is diminished by the power of case selection of the Supreme Court
(comparable to the US writ of certiorari)
 centralized review = the Supreme Court has the discretionary power to annul
unconstitutional provisions with a general effect (the decision depends on the relevance of
the topic, if it goes beyond the single case, and on the necessity to settle disputes)
o the direct action of unconstitutionality allows several institutions/associations to
directly invoke the Court’s review of a statutory provision
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 1 st
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
8.6 CONSTITUTIONALISM IN EAST-CENTRAL EUROPE
The fall of the Berlin wall (1989) marked the end of communism in East-Central Europe: states
that were under the Soviet Union started to plan new liberal-democratic governments, with the
support of European international organization (EU and Council of Europe) → these states can
be divided in 4 main areas depending on their characteristics and the outcome of the transition

(1) EAST-CENTRAL EUROPEAN COUNTRIES

In East-Central European Countries there was a rapid/effective re-establishment of democratic
conditions and the affirmation of the principles of liberal constitutionalism:
 East Germany reunited with West Germany and adopted the 1949 Basic Law
 Other states followed the traditional processes with constituent assemblies that drafted
constitutions following western models to some extent:
o they protected individual rights [economic liberties, free market economy, etc.] + new
rights
 o they gave importance to international law (that often acquired a supra-legislative force) →
they specifically referred to the ECHR and adhered to the EU’s values
o the main western models used were French semi-presidentialism (Poland, Romania) and
German rationalized parliamentarism (Hungary)
In recent years Poland and Hungary reformed some of the traditional guarantees of
constitutional models, threatening the independence of the constitutional court and the judicial
branch, introducing limits to the freedom of press → the EU condemned the reforms and adopted
the mechanism of art. 7 TEU against Poland (nuclear option = instrument used if a country
seriously/persistently breaches the fundamental principles of the EU)
(2) BALKANS
In the Balkans the transition process awakened internal divisions, giving rise to nationalisms and
ethnic conflicts (before frozen by communism/the Cold War) → Yugoslavia divided in different
states:
 Croatia, Slovenia and Serbia = willing to embrace the democratic constitutional model and
become members of the EU
 Bosnia-Herzegovina, Montenegro and Kosovo = profound internal divisions that threatened
their same maintenance
o In Bosnia the Constitution is the outcome of the Dayton Agreements that ended the war (it
was attached to the Peace Treaty); here 3 different ethnic groups (Bosnians, Serbians and
Croats) live together, and the system involves all of them in the national decision-making
(3) BALTIC REPUBLICS
The Baltic Republics of Lithuania, Estonia and Latvia were under a strong Soviet influence, but the
transition from communism led to the re-establishment of liberal constitutions already in place
during the 1920s → a big problem was the conviction of participants in communist regimes’
crimes and the exclusion from political participation of who held key positions in the communist
institutions (at first supported even by the Council of Europe, now reconsidered)
The systems oscillate between presidential and semi-presidential governments (depending on the
personality of the president): the President of the Republic is directly elected, which has caused the
emergence of some authoritarian interpretation of political life → because of this, the process of
democratization can’t be considered effectively concluded
(4) EX-SOVIET UNION
In Russia and other minor states, the adoption of new constitutions didn’t guarantee the
establishment of durable/stable democracies + the choice of presidential governments often hid the
option for authoritarian governments (because of military crises and secessionist threats)
The Russian Constitution (1993) established a semi-presidential government:
 the Cabinet is legitimized by the confidence relationship with the Duma (parliamentary
assembly)
 the President is directly elected by popular vote, he has a stronger position and powers:
o he can emanate decrees with the same legal force of laws (without the need for
parliamentary delegation or any emergency state)
o he has substantial control over the executive = he appoints the members of the Cabinet

Putin was elected president twice, then got appointed as prime minister, continuing to control the
country until he was elected as president again → based on interpretation of the Russian
government as a presidential one; Russia has a problem of concentration of powers that goes
against the principle of separation of powers
8.7 THE TRADITION OF WESTERN CONSTITUTIONALISM IN THE GLOBAL LANDSCAPE
The process of expansion of democratic forms and constitutional structures around the world after
WW2 represents a fundamental step ahead in the civilization of humanity → the diffusion of this
model has supported equality, human rights and the limitation of political oligarchy; however,
the generalization of constitutional forms in heterogeneous contexts can lead to identifying
constitutional democracy with its formal/procedural features → constitutional democracy is the
outcome of a historical process triggered by political/social values and goals
Constitutional democracy can’t be defined simply by formalist requirements (rigid constitution,
parliamentary structures, constitutional courts, etc.), but it is a complex and balanced system of
political, social and legal conditions based on:
a) elections of political charges = frequent, regular, free and available for checks by international
organizations → the right to vote must be spread equally
b) freedom of speech (for individuals and groups) = keystone of democracy →
journalism/media must be protected
c) political pluralism/the right of political opposition = essential features → minority political
parties must be protected and a fair political competition has to be granted
d) separation of powers = granted through the independence of the judiciary branch from the
executive
e) rule of law/principle of legality = fundamental, avoids arbitrary decisions of the
administration and submits it under the reign of law
f) effective remedies to protect individual rights = binding procedural requirements
g) constitutional review of legislation = checks the validity of parliamentary laws
h) equality = protected and granted in its formal (equal consideration by law and non-
discrimination) and substantial dimension (social rights and welfare state)
i) free market and economic rights = protected if they don’t encroach on rules of competition
and public interest → public intervention in economy is possible, but individual
entrepreneurship is a constitutional right
These principles can be used to identify the core features of constitutional democracy, but not as
a guideline for future constitutional forms [also, having a constitution doesn’t mean there is
constitutionalism]: today many international organizations and NGOs are driving emerging
countries toward the settlement of constitutional structures (but in conflict with the traditions of
the countries, making the attempts unsuccessful) → in many countries democracy is just a façade for
anti-democratic regimes (autocracies, soft-autocracies, semi-democracies)
Today, stable constitutional democracies face several threats:
 the enlargement of the powers of the executive
 the personalization of politics by the media (which should be neutral, but isn’t)
 the criticism of the public opinion
 the principle of equality is not actually achieved
 the process of globalization is putting states’ constitutionalism under pressure (they are
weak and unable to react to global crises) and supranational organizations are criticized for
their excessive bureaucratic nature (+ they don’t fully match democratic standards)
 recent economic crises have deepened inequalities among social classes and global
phenomena [migration] are managed with difficulty
Considering all the challenges, imbalances and weaknesses of constitutional democracy, one could
doubt its effectiveness and capability to resist threats: actually, if placed in its historical context,
constitutional democracy has proved to be the most suitable form of government for tackling
contemporary global challenges and preserving a high degree of human liberty and social justice →
it’s a heritage to save and a commitment to fulfill daily
Constitutionalism is a cosmopolitan idea, born already with a comparative approach and beyond
national borders: rights of the first Declarations of Rights belonged to individuals because they were
human, not only because they were citizens of that country