Political Science: An Introduction Michael G. Roskin Robert L. Cord James A. Medeiros Walter S. Jones Chapter 5 Constitutions Copyright @ 2010, 2008, 2005

Political Science: An Introduction

Michael G. RoskinRobert L. Cord

James A. MedeirosWalter S. Jones

Chapter 5

Constitutions

Copyright @ 2010, 2008, 2005 Pearson Education, Inc.

Constitutions

Iraqi Shi’as vote in 2005 for new constitution


Constitutions in the Modern World

Constitution – rules and customs by which a government conducts its affairs

Some constitutions are unwritten, made up of traditions, customs, statutes, and precedents, like Britain’s

Many constitutions also specify individual rights and freedoms

Constitutions supposed to set forth government forms and limits, and balance minority and majority interests

US constitution unusual in brevity and lack of detail

Some constitutions have many requirements that can’t be achieved, especially in poorer countries, such as universal education

Some look good on paper, but used to provide cover for brutal regimes like Stalin’s, which flouted Soviet constitution


The General Nature of Constitutional Law

Constitutions are fundamental, highest law of the land

Often a constitutional court needed to interpret constitutional provisions, an American innovation

Constitutional law interpreted for specific incidents

Judicial activism – willingness of a court, conservative or liberal, to strike down precedents; in US characterized by liberal Warren Court and by conservative Justice Scalia

Judicial restraint – reluctance of a court to strike down laws or make law through broad decisions


Constitutions and Constitutional Government

Constitutions can be similar, but countries’ political culture can cause interpretations to differ, as between the operations of Swedish and Italian governments

Constitutions can essentially be idealistic fictions, as the Soviet Constitution was under Stalin

Constitutionalism – power of government limited; Magna Carta early effort to limit power of state (king)

Magna Carta also seen as tool to create democracy


The Purpose of a Constitution (1) States national ideals – US constitution

proclaimed goal among others of a more perfect union; USSR proclaimed a developed socialist society by its constitution

Formalizes government’s structure – US constitution establishes 3 branches and their functions; specifies checks and balances among the branches

Constitutions outline division of power between central and regional/local governments, especially important for federal systems like the US

Establishes government’s legitimacy – a written constitution allows many nations to recognize a state


The Purpose of a Constitution (2)

Constituent Assembly – a legislature meeting for the first time to write a constitution; often established after overthrow of previous regime to provide legitimacy of rule by new regime--Spanish parliament elected in 1977 became constituent assembly to end Franco system with new constitution; afterwards, it turned itself back into Cortes, Spain’s regular parliament --Afghanistan did same with loya jirga, a traditional body, after Taliban overthrown


What Is a Right?

Jeremy Bentham declared “Right is the child of law;” a right only exists when it’s in statute or in a constitution

US Founding Fathers took “natural rights” as basis for human rights, which can generally be formulated as “freedom from”

Civil rights – come with modern democracy, which needed freedom to speak and vote for citizens; without civil rights, dictatorship looms

Economic rights – relatively new; a socialist idea of 19th century, also advanced by FDR in Great Depression; often expressed as “freedom to,” as in freedom to have a job


Civil Liberties and Civil Rights

After horrors of Nazi concentration camps and Japanese military in World War II, UN adopted Universal Declaration on Human Rights--Symbolic, with no powers of enforcement--But, vicious regimes risk isolation by world community--Declaration patterned after French Declaration of the Rights of Man and Citizen and on American Declaration of Independence and Bill of Rights--Affirms basic civil and human rights no government may arbitrarily take away--Expands to cover economic and cultural rights: to an education, to marry, to live according to one’s culture


Freedom of Expression in the United States (1)

The First Amendment of the Bill of Rights prohibits any law abridging freedom of speech or of the press

In US, we may make antigovernment or anti-religion statements or artwork – we have constitutionally protected right to burn American flag, for example

Europe has prohibitions against such speech, such as denying the Holocaust

Not all speech is protected, e.g., can’t yell “Fire!” in a crowded theater nor spread malicious falsehoods (slander or libel)

US theoretically prohibits obscenity, but impractical to define and enforce, especially over Internet


Freedom of Expression in the United States (2)

Seditious speech that would violently overthrow our government or impede it from its legitimate operations is illegal

But, “seditious speech” has been used to silence critics, as Lincoln did during Civil War

Sedition acts used against pacifists who objected to fighting in World War I, against Communists in 1940s and 1950s due to their revolutionary ideology

McCarran Act barred Communists from working in federal government

Rights are highly context-dependent; after 9/11 Americans readily accepted Patriot Act in panic

Some foreign governments suppress free speech as threat to public order, such as Iran, Egypt, Saudi Arabia


The Pentagon Papers

During Vietnam War, the Defense Department secretly collected information on the war that would contradict the public reports by the government

In 1971, Daniel Ellsberg, working at the Pentagon, released this study to the New York Times

The Nixon administration asked the Supreme Court to block publication by the Times

The Court rejected the government’s suit, emphasizing the necessity for a free and unrestrained press to effectively expose government deception--The Court noted that to grant the government’s

request would be tantamount to “prior restraint,” which would allow the government to censor anythingCopyright @ 2010, 2008, 2005 Pearson Education, Inc.

Free Speech

A vigil across from the White House


Documents

Political Science: An Introduction Michael G. Roskin Robert L. Cord James A. Medeiros Walter S. Jones Chapter 5 Constitutions Copyright @ 2010, 2008, 2005