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					        Constitution –
Constitutionalism – Protecting
       the Constitution

     1. The Constitution
2. Constitutionalism – Rule of
              Law
3. Protecting the Constitution
              1. The Constitution
   describing the terms of power; the fears deriving from
    the previous regimes (András Sajó: Limiting
    Government); the moral sail of the state (Ronald
    Dworkin)
   in dictatorships: only a paper

   the notion of constitution in material sense: the
    position of the state and its citizens – in this sense every
    state has a constitution
   in formal sense: one single written document, the basic
    law (no constitution: UK, Israel, Saudi Arabia)
 historical    background:
     the ‘politea’ of Aristotle – the governance of a
      city state, the form of government
     Cicero’s ‘constitutio’ – the basic norms of a
      community
     the contract theory: the original source of the
      power is the contract between the people and
      the ruler (Ulpianus) – breach of contract ~
      right to resistance, killing the oppressor
      (Magna Charta, Golden Bull; Thomas
      Acquinas)
   the modern constitution – the first form of the
    modern state: absolute monarchy in the 17th
    century → concentration of power → puritan
    revolution → constitutional monarchy ~
    constitutional government

   the development of the American and French
    constitutionalism in the 18th century

   the legal character of the constitution:
    supremacy and its protection by complicated
    amendment procedures – dissolution (Belgian,
    Dutch, Norwegian), referendum (US,
    Switzerland, Australia, France) amendment,
    eternity clauses (Germany)
 2. Constitutionalism – Rule of Law
 constitutionalism answers the question whether
  the given solution of state administration and
  regulation prevents the unreasonable limitation
  on the freedom, the organized dictatorship, i.e.
  the principles of constitutionalism = a system of
  limitations where the freedom of the citizens
  prevails (Sajó)
 its legitimizing basis is the constitution, which is
  acknowledged both by the state institutions and
  the citizens
 The 1789 French Declaration, Art. 16: it is
 not a state governed by rule of law, where
     human rights are not guaranteed,
     there is no separation of powers


 constitutionalism  = beyond the material
 (substantive requirements ~ not
 necessarily by a written const., 1936/1949)
 and the formal notion of const. (also
 without a written constitution, England)
constitutional (rule of law) state (limited
 government) = where the different legal
 principles, institutions and procedures
 prevent the arbitrary activities of the state
 authorities (e.g. U.S. Const. 14th
 Amendment: no one can be deprived of his
 life, liberty or property without a due
 process)
 one of the principles: separation of the
 different branches (legislative,
 executive, judiciary)
     historically two forms:
      - separation of powers: constitutional
       monarchy, presidential      (US – not the
       strongest)
       in principle complete separation; their
       creation is completely independent too;
       5th French republic: half-presidential
       (dual executive)
- division of powers: parlamentarism –
less significant personal separation; no
branch is able to act without the other(s)
19th cent.: beside the king a government
elected by the parliament → doubled
executive branch;
asymmetry in the creation: the executive
power is created by the Parl.; with a vote of
confidence the Parl. may overthrow the
government, but often the Parl. may be
dissolved
Two types of parliamentarism (on the
 basis of the relationship between the
 legislation and execution):

   majority (Westminsterian): two-party system >
    stable government (UK, Australia, New
    Zealand),

   consensual : multi-party system, coalition
    governments (continental Europe)
    3. Protecting the Constitution
   in wide sense: different state institutions (e.g.
    Finland: Parliament)

   in narrower sense: judiciary (constitutional
    adjudication) – ordinary or separate courts
    (constitutional courts)

   against constitutional courts:
       English revolution: absolute parliamentary sovereignty → does
        not exist anymore
       French revolution: sovereignty of the people (Rousseau) → only
        preliminary review
 models    of constitutional adjudication:

     decentralized: „American” or „diffuse” model –
      US. Marbury v. Madison → Argentina,
      Australia, Canada, India, Japan,
      Scandinavian countries, Switzerland

     centralized: „Austrian” or „European” model –
      Germany, Italy, Spain, Portugal, Eastern
      Europe
       Hungarian Constitutional
       Developments after 1989
1.   The 1949 Constitution

2.   „Constitutional Revolution”
           Hungarian Constitutional
           Developments after 1989
1. The 1949 Constitution
 The 1936 Soviet model:
        unity of the state power, but division of labor
         → 4 types of institutions
        citizens’ rights without guarantees


       Sólyom-Committee in 2002: before 1989
        Hungary was not a rule of law state
2. „Constitutional Revolution”
 instead of a new constitution
    comprehensive amendment: Opposition
    and National Roundtable (mutual fears)
 Hungarian parliamentarism: pact (1990)
    – stable government (constructive vote of
    confidence, reducing the numbers of acts
    requiring 2/3 majority); „middle-weak”
    president
 strong constitutional adjudication
       attempts for adopting a new constitution:

         „new reformers” (1990-94)

         restorers (1996)

         current chances

				
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posted:9/30/2012
language:English
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