Constitutions The Master Institution January 31 st, 2006

Constitutions what do they do?  outline the formal rules for collective political decision-making (process)  place formal limits on the spheres subject to collective decision-making (outcomes)

Constitutions – Main Elements outline the various political institutions and relationships among them  relationship between different branches of government (executive, legislature, judiciary)  including different orders of government (e.g. federalism) prescribe the rights of citizens  outline the spheres subject to collective decision-making prescribe a method of adjudication of disputes about the constitution  outline the role of the Courts

Constitutions and Political Power formally outline solidified relationships of power  are shaped by political and historical context are never neutral  advantage some political interests and disadvantage other political interests  recognize certain types of political claims while ignoring others  “Some issues are organized into politics, while other issues are organized out of politics.” E.E. Schattschneider three examples  US, France, Canada

The American Constitution What is the main thrust of the American Constitution?  protecting against the tyrannical use of power by government  how – limit what government can do!  legal prohibitions on government action  fragmenting government power

The American Constitution function of the Constitution – fragmenting and limiting power of government  creates the three branches of government at the federal level  creates the two orders of government (federal government and state governments)  limits governments in their relationships with citizens

Freedoms & Rights negative vs. positive freedoms  negative freedoms  things that government must not do  do not require government action (rather stipulates how government must not act)  positive freedoms  things that governments must do in order for people to exercise their freeom  requires government action

The American Bill of Rights focuses exclusively on negative freedoms  “Congress shall make no law...” [1st Amendment]  “the right...to keep and bear arms shall not be infringed” [2 nd amendment]  “the right of the people...against unreasonalbe searches and seizures, shall not be violated” [4 th amendment]  “No person shall...be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use, without just compensation.” [5 th amendement]

The American Constitution why limited government?  belief that security of property was synonymous with individual liberty  concern that the landless masses would use the government to confiscate the wealth of the land- owners  emphasis on securing the rights of property  esp. Amendments 2 through 5

Preamble to the 1946 French Constitution “guarantees women equal rights to those of men in all spheres” “All men may defend their rights and interests through union action and may belong to the union of their choice.” “All workers shall...participate in the collective determination of their conditions of work and in the management of the work place.” “The right to strike shall be excersised within the framework of the laws governing it.” “All property and all enterprises that have or that may acquire the character of a public service or de facto monopoly shall become the property of society.”

Preamble to the 1946 French Constitution “Each person has the duty to work and the right to employment.” “The Nation....shall guarantee to all...protection of their health, material security, rest and leisure. All people who...are incapable of working, shall have the right to receive suitable means of existence from society.” “The Nation guarantees equal access for children and adults to instruction, vocational training and culture. The provision of free, public and secular education at all levels is a duty of the state.”

The Canadian Constitution BNA Act, 1867  themes:  parliamentary sovereignty i.e. no bill of rights limiting power of gov’t  peace, order and good government (s.91 Constitution Act)

The Canadian Charter of Rights and Freedoms (1982) preamble: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law...” enumerated rights  fundamental freedoms  democratic rights  legal rights  equality rights  language rights and minority language education rights  mobility rights

Limits on the Canadian Charter of Rights and Freedoms Section 1: reasonable limits  rights are guaranteed “subject only to such reasonable limits...as can be demonstrably justified in a free and democratic society.” Section 33: Notwithstanding Clause  application  does not apply to democratic rights, mobility rights, minority language education rights

The Canadian Constitution Act (1982) equalization and regional disparities (Schedule B, Part III)  “...the government of Canada and the provincial governments, are committed to  promoting equal opportunities for the well- being of Canadians;  further economic development to reduce disparity in opportunities;  providing essential public services of reasonable quality to all Canadians  “...the Government of Canada [is] committed to...”  to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation.

The Canadian Constitution Act (1982) issues organized into constitutional politics  linguistic issues  territorial/regional issues

Constitutions and Political Power American Constitution,  focuses on negative freedoms (limits ability of collectivity to use the state to pursue general welfare)  protects property and organizes property-based political claims into politics French Constitution, 1946  focuses on positive freedoms (e.g. general welfare)  recognizes class politics and organizes them into politics Canadian Constitution, 1982  encompasses both negative and positive freedoms  limited protection of the rights of individuals in relation to governments  organizes linguistic and territorial/regional issues into politics

Constitutions and Political Power no constitution is neutral! political institutions (including constitutions) represent solidified relationships of power all political institutions privilege certain interests and disadvantage other interests

Constitutions and Models of Democracy constitutions embody different mixes of the various models of democracy

MODELS OF DEMOCRACY Individual Rights/Limited Gov’t General Welfare High Mass Participation Low Mass Participation French Constitution, 1946 Canadian Constitution, 1867 Canadian Constitution, 1982