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Comparative Public Law Lesson IV United States of America LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV1.

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Presentation on theme: "Comparative Public Law Lesson IV United States of America LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV1."— Presentation transcript:

1 Comparative Public Law Lesson IV United States of America LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV1

2 2 An historical Constitution A short constitution, extended through time The juridical change of the Constitution Phases 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 Constitution Recent trends: Deregulation; reprise of member states over Federation; limit of Bill of Rights after Sept. 11, 2001

3 LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV3 Territorial Expansion

4 LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV4 Form of State Social rights founded on legislation (absent in constitutioni) Liberal rights founded on jurisprudence (implementation of Bill of Rights) Difficult public role in Economy

5 Federal structure Legislation: Strict division of competences – residual clause in favor of member States The Joker of Commerce Clause (Art. I, sec. 8, par. 3 Const.) Executive power: tendentially dual – separated competences between Federation and member States Change after New Deal: Grants-in-aids and Federal Mandates Judicial power: strict division of competences between federal (federal question cases and diversity cases) and statal judges Complex role of the Senate Federal structure of political parties LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV5

6 Form of Government LUISS G. Carli - De Petris – Diritto Pubblico comparato – Lezione IV6 Checks & Balances Horizontal levelVertical level Divided Government (division of competences ) Federal structure (division between central State and member States)

7 Horizontal constitutional structure LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV7 Legislative power Congress (House of Representatives + Senate) Executive power President «elected by the people» Judicial power Supreme Court and lower courts

8 Present constitutional structure LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV8

9 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 IV9

10 Primaries LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV10 Caucus (10 States) Primaries – open or closed (40 States) Election of partys delegates National convention Presidential candidate

11 LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV11

12 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

13 Risks of Primaries LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV13

14 Available seats in each State LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV14

15 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 IV15 Presidential elections

16 LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV16 Role of Congress House of Representatives 435 members Acording to the amount of population Elected every two years with majority system and «first past the post» Senate 100 members 2 senators each State 1/3 elected every two years with majority and first past the post system

17 LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV17 Congress Legislation: perfect bicameralism Limits to Presidential competences: 1)Command of military forces: declaration of war by Congress 2)Only Senate: confirmation of nominees of public officials and federal judges (including Justices of the Supreme Court) 3)Autorization to ratification of international treaties

18 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 IV18 Presidential powers and limits

19 LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV19 Justice

20 LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV20 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 bills b)Diffuse Review by every federal judge c)Unification of the system: through the role of stare decisis principle and wheight of Supreme Courts decisions d)Dissenting and concurring opinionspossible overruling «If» and «when» to decide: political and institutional sensibility

21 LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV21

22 LUISS G. Carli - De Petris – Comparative Public Law – Lesson IV22 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)


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