Comparative Public Law

Lesson IV

United States of America

LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV 1

LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV 2

An historical Constitution A “short” constitution, extended through timeThe “juridical” change of the ConstitutionPhases of the constitutional history in the USA:a)1787- Civil War: Overcome of Federal Government over member States;b)Civil War– New Deal: Success of Liberal Constitution;c)From New Deal to now: from Liberal to (social)democratic ConstitutionRecent trends: Deregulation; reprise of member states over Federation; limit of Bill of Rights after Sept. 11, 2001

LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV 3

Territorial Expansion

LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV 4

Form of StateSocial rights founded on legislation (absent in constitutioni)

Liberal rights founded on jurisprudence (“implementation” of Bill of Rights)

Difficult public role in Economy

Federal structureLegislation: Strict division of competences – residual clause in

favor of member StatesThe “Joker” of Commerce Clause (Art. I, sec. 8, par. 3 Const.)Executive power: tendentially dual – separated competences

between Federation and member StatesChange after New Deal: Grants-in-aids and Federal MandatesJudicial power: strict division of competences between

federal (federal question cases and diversity cases) and statal judges

Complex role of the SenateFederal structure of political parties

LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV 5

Form of Government

LUISS G. Carli - De Petris – Diritto Pubblico comparato – Lezione IV 6

Checks & Balances

Horizontal level Vertical level

Divided Government(division of

competences )

Federal structure(division between central

State and member States)

Horizontal constitutional structure

LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV 7

Legislative power

Congress(House of Representatives

+ Senate)

Executive power

President «elected by the people»

Judicial powerSupreme Court and lower

courts

Present constitutional structure

LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV 8

Electoral systems•General male suffrage since 1820

•Gradual change from indirect to direct vote

•Senate election: from the state parliaments to direct popular vote (XVII Amendment, 1913)

•Presidential election: “Big electors” declaring in advance their preference factual direct popular elections

•Selction of candidates for president

1) Caucus made by members of state parliaments

2) National Conventions of parties delegates

3) Primary elections (open or closed)

LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV 9

Primaries

LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV 10

Caucus(10 States)

Primaries – open or closed(40 States)

Election of party’s delegates

National conventionPresidential candidate

LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV 11

Presidential elections

LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV 12

Electoral body

Big Electors(n. representatives + senators for each State)

Tuesday after 1° Monday in November

Electoral constituency(following January)

President and Vicepresident

elected

Risks of Primaries

LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV 13

Available seats in each State

LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV 14

•Requested active role of voters (traditionally low participation)

•“Winner catch all” system: risk of inequalities

•Possible to obtain the majority of the big electors without the majority of the votes

•Crucial role of financial fundings in the electoral campaign

•Central strategy: wher to spend the available funds

•Crucial role of the «hung» States

LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV 15

Presidential elections

LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV 16

Role of Congress

House of Representative

s

435 membersAcording to the amount of

populationElected every two years

with majority system and «first past the post»

Senate

100 members2 senators each State

1/3 elected every two years with majority and first past

the post system

LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV 17

Congress

• Legislation: perfect bicameralism• Limits to Presidential competences:1)Command of military forces: declaration of war by Congress2)Only Senate: confirmation of nominees of public officials and federal judges (including Justices of the Supreme Court) 3)Autorization to ratification of international treaties

• Executive power shared with Secretaries of departments (submitted to the President)

• Depending from Congress for passing national budget plans →crucial for implementation of Presidential program

• Command of military forces• Counterpower over Congress : within 10 days

presidential authorization for enforcement of passed bills . Presidential Veto: bill to be passed with 2/3 majoirity

• Speech on the State of the Union• Legislative power to the Congress

LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV 18

Presidential powers and limits

LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV 19

Justice

LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV 20

Judicial Review

• Judicial Review: “conquered” by the Supreme Court – Marbury vs. Madison, 1803• Judicial Review: a)It is not possible to cancel, but only to put aside uncostitutional billsb)Diffuse Review by every federal judge c)Unification of the system: through the role of stare decisis principle and wheight of Supreme Court’s decisionsd)Dissenting and concurring opinions→possible overruling•«If» and «when» to decide: political and institutional sensibility

LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV 21

LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV 22

Freedoms• Central role of Supreme Court in protection of liberties• Intentioned abstention of S.C. in protection of social rights: defended by legislation• Relevant initiatives:a)Political rights (against Gerrymandering and discipline of electoral campaigns)b)Free speech (fairness doctrine for an equal television communication)c)Privacy (extended until Right to Abortion)d)Processual Warranties (Miranda v. Arizona, 1966)