Учебное пособие на английском языке
Для студентов юридического факультета
Институт международного права и экономики имени А.С. Грибоедова
кафедрой иностранных языков
С о с т а в и т е л ь – доц. Е.В. Дольникова
Конституционное право. Constitutional Law: Учебное пособие на английском языке. – М.: ИМПЭ им. А. С. Грибоедова, 2008. – 16 с.
Подготовлено на кафедре иностранных языков.
© Дольникова Е.В., 2008
Constitutional law is the study of foundational or basic law of nation states and other political organizations. Constitutions are the framework* for government* and may limit* or define the authority and procedure of political bodies* to execute new laws and regulations*.
Types of constitutions
Not all nation states* have codified constitutions*, though all such states have a jus commune*, or law of the land*, that may consist of a variety of imperative and consensual rules*. These may include customary law*, conventions*, statutory law*, judge made law* or international rules and norms*.
Functions of constitutions
State and legal structure
Constitutional laws may often be considered second order rulemaking* or rules about making rules to exercise power*. It goverens* the relationships between the judiciary, the legislature and the executive with the bodies under its authority*. One of the key tasks of constitutions within this context is to indicate hierarchies* and relationships of power. For example, in a unitary state, the constitution will vest ultimate authority* in one central administration and legislature, and judiciary, though there is often a delegation of power or authority* to local or municipal authorities. When a constitution establishes a federal state, it will identify* the several levels of government coexisting with exclusive or shared areas of jurisdiction* over lawmaking, application and enforcement.
Main articles: Human rights and Human rights law
Human rights or civil liberties* form a crucial part of a country’s constitution and govern the rights of the individual against the state*. Most jurisdictions, like the United States and France, have a single codified constitution, with a Bill of Rights. A recent example is the Charter of Fundamental Rights of the European Union which was intended to be included in the Treaty establishing a Constitution for Europe, that failed to be ratified. Perhaps the most important example is the Universal Declaration of Human Rights under the UN Charter. These are intended to ensure basic political, social and economic standards that a nation state, or intergovernmental body is obliged to* provide its citizens with.
3) государственное устройство; 4) правительство
2) наделять полными (окончательными) полномочиями
Text 2. THE US CONSTITUTION
The United Sates Constitution is the supreme law* of the United States of America. It provides the framework* for the organization of the United States Government. The document outlines the three main branches of the government. The legislative branch is embodied* in the bicameral* Congress. The executive branch is headed by the President. The judicial branch is headed by the nine-member Supreme Court. Besides providing for the organization of these branches, the Constitution carefully outlines which powers each branch may exercise. It also reserves numerous rights for the individual states, and thus establishes the United States’ federal system of government.
The United States Constitution was adopted on September 17, 1787, by the Constitutional Convention in Philadelphia, Pennsylvania, and later ratified by conventions in each state in the name of ‘the People’; it has since been amended twenty-seven times, the first ten amendments* being known as the Bill of Rights. The Constitution has a central place in United States law and political culture. The U.S.Constitution is the oldest federal constitution of any existing nation. The handwritten, or ‘engrossed’*, original document is on display at the National Archives and Records Administration in Washington, D.C. The United States Constitution has 4,543 words, including the signatures*.
Text 3. THE BASIS OF THE AMERICAN CONSTITUTION
The Constitution of the United States is the central instrument of American government and the supreme law of the land. For 200 years, it has guided the evolution of governmental institutions and has provided the basis for political stability, individual freedom, economic growth and social progress.
The American Constitution is the world’s oldest written constitution in force, one that has served as the model for a number of other constitutions around the world. The Constitution owes its staying power to its simplicity and flexibility*. Originally designed to provide a framework for governing four million people in 13 very different colonies along the Atlantic coast, its basic provisions were so soundly conceived that, with only 26 amendments, it now serves the needs of more than 240 million people in 50 even more diverse states.
The Constitution and the federal government thus stand at the peak of a govermental pyramid which includes local and state jurisdictions. In the U.S.system, each level of government has a large degree of autonomy* with certain powers reserved particularly to itself. Disputes between different jurisdictions are resolved by the courts. However, there are questions involving the national interest which require the cooperation of all levels of government simultaneously, and the Constitution makes provision for this as well. American public schools are largely administered by local jurisdictions, adhering to* statewide standards. But the federal government also aids the schools, since literacy and educational attainment is a matter of vital national interest, and it enforces uniform standards* designed to further equal educational opportunity. In other areas, such as housing, health and welfare, there is a similar partnership between the various levels of government.
No product of human society is perfect. Despite its many amendments, the Constitution of the United States probably still contains flaws which will become evident in future periods of stress. But two centuries of growth and unrivaled prosperity have proven the foresight of the 55 men who worked through the summer of 1787 to lay the foundation of American government.
Text 4. THE AMERICAN SYSTEM OF GOVERNMENT
The governmental systems in the United States – federal, state, county, and local – are quite easy to understand. They are quite easy to understand, that is, if you grew up with them and studied them in school. One foreign expert complained, for example, that the complexity* of just the cities’ political and governmental structure is ‘almost unbelievable’. The ‘real Chicago’, he explained, ‘spreads over 2 states, 6 counties*, 10 towns, 30 cities, 49 townships, and 110 villages. Overlaid upon this complex pattern are 235 tax districts and more than 400 school districts’.
There are, however, several basic principles which are found at all levels of American government. One of these is the ‘one person, one vote’ principle which says that legislators* are elected from geographical districts directly by the voters*. Under this principle, all election districts must have about the same number of residents*.
Another fundamental principle of American government is that because of the system of checks and balances*, compromise in politics is a matter of necessity, not choice. For example, the House of Representatives controls spending and finance, so the President must have its agreement for his proposals* and programs. He cannot declare war, either the approval of Congress. In foreign affairs, he is also strongly limited. Any treaty must first be approved by the Senate. If there is no approval, there’s no treaty. The rule is ‘the President proposes*, but Congress disposes’. What a President wants to do, therefore, is often a different thing from what a President is able to do.
5) голосование; 6) избирательный бюллетень
voter – 1) избиратель; лицо, имеющее право голоса; 2) голосующий, участник голосования
4. resident – постоянный житель; резидент
5. to propose – предлагать
proposal – 1) предложение; представление, рекомендация; 2) законодательное предложение, законопроект
6. complexity – сложность
7. checks and balances – система сдержек и противовесов
Text 5. CONGRESS
Congress, the legislative branch of the federal government, is made up of the Senate and the House of Representatives. There are 100 Senators, two from each state. One third of the Senators are elected every two years for six-year term of office. The Senators represent all of the people in a state and their interests.
The House has 435 members. They are elected every two years for two-year terms. They represent the population of ‘congressional districts*’ into which each state is divided. The number of Representatives from each state is based upon* its population. For instance, California, the state with the largest population, has 52 Representatives, while Delaware has only one.
Almost all elections in the United States follow the ‘winner-takes-all’ principle: the candidate who wins the largest number of votes in a Congressional district is the winner.
Congress makes all laws, and each house of Congress has the power to introduce legislation*. Each can also vote against legislation passed* by the other. Because legislation only becomes law if both houses agree, compromise between them is necessary. Congress decides upon taxes* and how money is spent. In addition, it regulates commerce* among the states and with foreign countries. It also sets rules for the naturalization of foreign citizens*.
Text 6. THE PRESIDENCY
Term of office:
Elected by the people, through the electoral college, to a four-year term; limited to two terms.
$200,000 plus $50,000 allowance for expenses, and up to $100,000 tax-free for travel and official entertainment.
January 20, following the November general election.
Native-born American citizen, at least 35 years old and at least 14 years a resident of the United States.
To protect the Constitution and enforce the laws made by the Congress.
To recommend legislation to the Congress;
to call special sessions of the Congress;
to deliver messages to the Congress;
to veto bills;
to appoint federal judges;
to appoint heads of federal departments and agen cies and other principal federal officials;
to appoint representatives to foreign countries;
to carry on official business with foreign nations;
to exercise the function of commander-in-chief of the armed forces;
to grant pardons for offenses against the United States.
Text 7. US ELECTIONS
The Constitution requires the president to be a native-born* American citizen at 35 years of age. Candidates for the presidency are chosen by political parties several months before the presidential election, which is held every four years (in years divisible evently by four) on the first Tuesday after the first Monday in November.
The method of electing the president is peculiar* to the American system. Although the names of the candidates appear on the ballots*, technically the people of each state do not vote directly for the president (and vice president). Instead, they select a slate of presidential electors, equal to the number of senators and representatives each state has in Congress. The candidate with the highest number of votes in each state wins all the electoral votes of that state.
The electors* of all 50 states and the District of Columbia – a total of 538 persons – compose what is known as the Electoral College. Under the terms of the Constitution, the College never meets as a body*. Instead, the electors gather in the state capitals shortly after the election and cast their votes for the candidate with the largest number of popular votes in their respective states. To be successful, a candidate for the presidency must receive 270 votes. The Constitution stipulates* that if no candidate has a majority, the decision shall be made by the House of Representatives with all members from a state voting as a unit. In this event, each state and the District of Columbia would be alloted* one vote only.
The presidential term of four years begins on January 20 (it was changed from March by the 20th Amendment, ratified in 1933) following a November election. The president starts his or her official duties with an inauguration ceremony, traditionally held on the steps of the U.S.Capitol, where Congress meets. The president publicly takes an oath of office, which is traditionally administered by the chief justice of the United States. The words are prescribed in Article II of the Constitution.
The oath-taking ceremony* is usually followed by an inaugural address in which the new president outlines the policies and plans of his or her administration.
Text 8. PRESIDENTIAL POWERS
Part 1. Presidential powers
The office of President of the United States is one of the most powerful in the world. The president, the Constitution says, must ‘take care that the laws be faithfully executed’*. To carry out this responsibility*, her or she presides over the executive branch of the federal government – a vast organization numbering several million people – and in addition has important legislative and judicial powers.
Despite the Constitutional provision that ‘all legislative powers’* shall be vested in the Congress, the president, as the chief formulator of public policy, has a major legislative role. The president can veto any bill* passed by Congress and, unless two-thirds in each house vote to override the veto*, the bill does not become law. Much of the legislation dealth with by Congress is drafted at the initiative of the executive branch*. In an annual and special messages to Congress, the president may propose legislation he or she believes is necessary. If Congress should adjourn* without acting on those proposals, the president has the power to call it into special session. But beyond all this, the president, as head of a political party and as principal executive officer of the U.S.government, is in a position to influence public opinion and thereby to influence the course of legislation in Congress. To improve their working relationships with Congress presidents in recent years have set up a Congressional Liaison Office* in the White House. Presidential aides* keep abreast of all important legislative activities and try to persuade senators and representatives of both parties to support administration policies.
Part 2. Judicial powers
Among the president’s constitutional powers is that of appointing important public officials*;
presidential nomination of federal judges, including members of the Supreme Court, is subject to confirmation by the Senate. Another significant power is that of granting a full or conditional pardon* to anyone convicted of breaking a federal law* – except in a case of impeachment. The pardoning power has come to embrace the power* to shorten prison terms and reduce fines*.
Within the executive branch itself, the president has broad powers to manage national affairs and the workings of the federal government*. The president can issue rules, regulations and instructions called executive orders, which have the binding force of law upon federal agencies. As commander-in-chief of the armed forces of the United States, the president may also all into federal service the state units of the National Guard*. In times of war or national emergency, the Congress may grant the president even broader powers to manage the national economy and protect the security of the United States.
The president chooses the heads of all executive departments and agencies, together with hundreds of other high-ranking* federal officials. The large majority of federal workers, however, are selected through the Civil Service system*, in which appointment and promotion are based on ability and experience*.
Text 9. THE PRESIDENT
The President of the United States is elected every four years to a four-year term of office, with no more than two full terms allowed. As is true with Senators and Representarives, the President is elected* directly by the voters (through state electors*). In other words, the political party with the most Senators and Representatives does not choose the President. This means thatr the President can be from one party, and the majority of those in the House of Representatives or Senate (or both) from another. This is not uncommon.
Thus, although one of the parties may win a majority in the midterm elections* (those held every two years), the President remains President, even though his party (or, of course, in the future, her party) may not have a majority in either house. Such a result could easily hurt his ability to get legislation through Congress, which must pass all laws, but this is not necessarily so. In any case, the President’s policies must be approved by the House of Representatives and the Senate before they can become law. In domestic* as well as in foreign policy*, the President can seldom count upon the automatic support of Congress, even when his own party has a majority in both the Senate and the House. Therefore he must be able to convince members of Congress, the Representatives and Senators, of his point of view. He must bargain and compromise*. This is a major difference between the American system and those in which the nation’s leader represents the majority party or parties, that is, parliamentary systems.
Within the executive branch, there are a number of executive departments*. Currently these are the departments of State, Treasure, Defense, Justice, Interior, Agriculture*, Commerce, Labor, Health and Human Services, Housing and Urban Development, Transportation, Energy, Education, and Veterans Affairs. Each department is established by law, and, as their names indicate, each is responsible for a specific area. The head of each department is appointed by the President. These appointments, however, must be approved by the Senate. None of these Secretaries, as the department heads are usually called, can also be serving in Congress or in another part of the government. Each is directly responsible to the President and only serves as long as the President wants him or her to. They can best be seen, therefore, as Presidential assistants and advisers. When they meet together, they are termed ‘the President’s Cabinet’.
Some Presidents have relied quite a bit on their Cabinets for advice, and some very little.
elector – выборщик, член коллегии выборщиков (президента и вице-президента)
Department of State – госдепартамент
Department of Treasure – министерство финансов
Department of Defense – министерство обороны
Department of Justice – министерство юстиции
Department of Interior – министерство внутренних дел
Department of Agriculture – министерство сельского хозяйства
Text 10. THE FEDERAL JUDICIARY
The third branch of government, in addition to the legislative* (Congress) and executive* (President) branches, is the federal judiciary*. Its main instrument is the Supreme Court*, which watches over the other two branches. It determines whether or not their laws and acts are in accordance with the Constitution. Congress has the power to fix the number of judges sitting on the Court, but it cannot change the power given to the Supreme Court by the Constitution itself. The Supreme Court consists of a chief justice* and eight associate justices*. They are nominated by the President* but must be approved by the Senate. Once approved, they hold office as Supreme Court justices for life*. A decision of the Supreme Court cannot be appealed to any other court. Neither the President nor Congress can change their decisions. In addition to the Supreme Court, Congress has established 11 federal courts of appeal* and, below them, 91 federal district courts*.
The Supreme Court has direct jurisdiction* in only two kinds of cases: those involving foreign diplomats and those in which a state is a party*. All other cases which reach the Court are appeals from lower courts. The Supreme Court chooses which of these it will hear*. Most of the cases involve the interpretation of the Constitution. The Supreme Court also has the ‘power of judicial review*’, that is, it has the right to declare laws and actions of the federal state, and local governments unconstitutional. While not stated in the Constitution, this power was established over time.
Text 11. THE MECHANISM OF ELECTIONS
An election is a decision making process where a population chooses an individual to hold official offices. This is the usual mechanism by which modern democracy fills offices in the legislature, sometimes in the executive* and judiciary*, and for regional and local government. This is also typically the case in a wide range of other private and business organizations, from clubs to voluntary* associations and corporations. However, as Montesquieu points out in Book II, Chapter 2 of ‘The Spirit of Law’, in the case of elections in either a republic or a democracy, voters alternate* between being the rules of the country as well as being the subjects of the government, with the act of voting being the sovereign (or ruling) capacity*, in which the people act as ‘masters’ selecting their government ‘servants’. Rather, the unique characteristics of democracies and republics is the recognition that the only legitimate source of power for government ‘of the people, by the people, and for the people’ is the consent of the governed – the people themselves.
The universal acceptance of elections as a tool for selecting representatives in modern democracies is in contrast with the practice in the democratic archetype*, ancient Athens, where elections were considered an oligarchic institution and where most political offices were filled using sortition*, also known as allotment*, where officeholders are chosen by lot.
Electoral reform described the process of introducing fair electoral systems where they are not in place, or improving the fairness or effectiveness of existing systems. Psephology is the study of results and other statistics relating to elections (especially with a view to predicting future results).
Text 12. DEFINITIONS OF THE DEMOCRATIC ELECTION
In normative political philosophy*, the authority of the government in democracies derives solely from the consent of the governed. The principal mechanism for translating that consent into governmental authority is the holding of elections. It is agreed that elections should be free and fair.
There is a broad consensus* as to what kind of elections can be considered free and fair. Jeane Kirkpatrick, scholar and former United States ambassador to the United Nations, has offered this definition: ‘Democratic elections are not merely symbolic… They are competitive*, periodic, inclusive, definitive elections in which the chief decision-makers in a government are selected by citizens who enjoy broad freedom to criticize government, to publish their criticism and to present alternatives’.
Democracy Watch (International) website, further defines fair democratic elections as, ‘Elections in which great care is taken to prevent any explicit or hidden structural bias towards any one candidate, aside from those beneficial biases* that naturally result from an electorate that is equally well informed abouit the various assets and liabilities* of each candidate’. This was more formally stated in 2000 by Chief Justice Murray Greeson of the High Court of Australia as ‘The democratic and lawful means of securing change, if change be necessary, is an expression of the will of an informed electorate’.
While the requirement of free and fair election is easily observable, the requirement of an informed electorate is difficult to achieve. Only a small part of the electorate will be able to know the candidates on a personal level and thus the information of the electotate will be incomplete. Thus, the rest of the electorate has to rely on third party information* and official programs of the respective candidates. The latter is especially unreliable*, since there is only a moral but no legislative obligations to keep them in modern democracies. The party with the most immediate interest in having structural biases is the government conducting the election. One possible result is the ‘show’ elections described below.
Some other scholars argue that elections are at most secondary to a functioning democracy. They argue that the rule of law* is more important. An example would be pre-unification Hong Kong which was ruled by an unelected* British governor but was generally considered to be a free and open society due to* its strong legal institutions.
Wade E.C.S., Bradley A.W. Constitutional and Administrative Law / 10th edition by A.W. Bradley. – London; New-York: Longman, 1985.
Shroeder Richard C. An Outline of American Government. – United States Information Agency, 1990.
Keenan Denis, Riches Sarah. Business Law / 5th ed. – Harlow, England: Financial Times, Pitman Publishers Pearson Education Limited, 1998.
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