Borrowing Constitutional Designs: Constitutional Law in Weimar Germany and the French Fifth Republic

Borrowing Constitutional Designs
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Write a review Rate this item: 1 2 3 4 5. Preview this item Preview this item. Drawing on rich case studies of two of the most important countries for European politics in the twentieth century - Weimar Germany and the French Fifth Republic - Cindy Skach offers the first theoretically focused, and historically grounded, analysis of semi-presidentialism and democracy. She demonstrates that constitutional choice matters, because under certain conditions, semi-presidentialism structures incentives that make democratic consolidation difficult or that actually contribute to democratic collapse.

She offers a new theory of constitutional design, integrating insights from law and the social sciences. In doing so, she challenges both democratic theory and democratic practice. Read more Show all links. Allow this favorite library to be seen by others Keep this favorite library private. Find a copy in the library Finding libraries that hold this item Princeton, N.

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Questions the hasty adoption of semi-presidentialism by several democracies. Drawing on case studies of two countries for European politics in the twentieth century - Weimar Germany and the French Fifth Republic - this book offers a theoretically focused, and historically grounded, analysis of semi-presidentialism and democracy. Reviews Editorial reviews. Publisher Synopsis "Cindy Skach has produced a compelling and important book. User-contributed reviews Add a review and share your thoughts with other readers. Be the first. Add a review and share your thoughts with other readers.

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Democracy -- Germany -- History. Democracy -- France -- History. Histoire constitutionnelle. Please follow the detailed Help center instructions to transfer the files to supported eReaders. More related to the constitution. See more. Constitutional democracy is more fragile and less 'natural' than autocracy. While this may sound surprising to complacent democrats, more and more people find autocracy attractive, because they were never forced to understand or imagine what despotism is.

Generations who have lived in stable democracies with the promise that their enviable world will become the global 'normal' find government rule without constitutionalism difficult to conceive.

Book review – Cindy Skach, Borrowing Constitutional Designs

It is difficult, but never too late, to. Michael Burgess. In Search of the Federal Spirit examines federal theory in the context of the new federal models that have sprung into existence since the end of the Cold War. It utilises the federal spirit as a conceptual lens through which to explore the revival of federalism in the post-Cold War era - especially in the s - and it seeks to place the emergence of these new models in the theoretical context of federal state formation. By examining the approaches of five major contributors to the nature and meaning of federalism - Kenneth Wheare, William Livingston, William Riker, Carl Friedrich, and Daniel Elazar - the book identifies several different expressions of the federal spirit that together constitute its basic political values and principles rooted in liberal democracy.

The book explains how and why the federal spirit can survive and prosper only in conditions of liberal democracy which allow these federal values and principles to be freely expressed. In this way the book will connect the five distinctive approaches to understanding federalism and their peculiar interpretation of the federal spirit to the emergence of the new models. This chain of reasoning leads us to look not only at federal state formation based upon formal federal constitutions but also to include the evolution of federal political systems that are an integral part of the post-Cold War revival of federalism.

The logic of the argument based upon the federal spirit leads not only to a revisionist framework of analysis to explain the key conditions of future federal state formation but it also prompts a major reconsideration of the conventional conceptual framework of analysis in federalism and the proposal of a new classification of "federal democracies". Confirmation of the firm links between federalism and liberal democracy is further underlined by a detailed examination of the conceptual relationships between civil society, political culture, and liberal democratic constitutionalism.

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Find a copy in the library Finding libraries that hold this item The statistics show that premier-presidential constitutions can fail and also that president- parliamentary constitutions can succeed. Reviews Editorial reviews. In short, semi-presidentialism has been introduced in countries where any institutional arrangement is likely to have had difficulty succeeding. Click on the cover image above to read some pages of this book!

The federal spirit is shown to be multidimensional in its properties and the book concludes with three cases studies of Ethiopia, Bosnia-Herzegovina, and Iraq that establish federalism as essentially a way of thinking - a mindset - about creating political stability in deeply divided societies by creating federations.

Yaniv Roznai. Can constitutional amendments be unconstitutional? The problem of 'unconstitutional constitutional amendments' has become one of the most widely debated issues in comparative constitutional theory, constitutional design, and constitutional adjudication. This book describes and analyses the increasing tendency in global constitutionalism to substantively limit formal changes to constitutions.

The challenges of constitutional unamendability to constitutional theory become even more complex when constitutional courts enforce such limitations through substantive judicial review of amendments, often resulting in the declaration that these constitutional amendments are 'unconstitutional'. Combining historical comparisons, constitutional theory, and a wide comparative study, Yaniv Roznai sets out to explain what the nature of amendment power is, what its limitations are, and what the role of constitutional courts is and should be when enforcing limitations on constitutional amendments.

Writing Democracy: The Norwegian Constitution Book 2. The Norwegian Constitution is the oldest functioning constitution in Europe. Its bicentenary in has inspired the analyses in this volume, where contributors focus on the Constitution as a text to explore new ways of analyzing democratic development.

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This volume examines the framing of the Norwegian Constitution, its transformations, and its interpretations during the last two centuries. By synthesizing knowledge from different realms - law, social sciences, and the humanities — Writing Democracy provides a model for examining the distinct textual qualities of constitutional documents.

Constitutional Theory. Carl Schmitt. Schmitt is considered by many to be one of the most original—and, because of his collaboration with the Nazi party, controversial—political thinkers of the twentieth century.

In Constitutional Theory, Schmitt provides a highly distinctive and provocative interpretation of the Weimar Constitution. At the center of this interpretation lies his famous argument that the legitimacy of a constitution depends on a sovereign decision of the people.

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In addition to being subject to long-standing debate among legal and political theorists in Western Europe and the United States, this theory of constitution-making as decision has profoundly influenced constitutional theorists and designers in Asia, Latin America, and Eastern Europe. Similar ebooks. America's Constitution: A Biography.

The President of the Republic may not make an appointment when the sum of the negative votes in each committee represents at least three-fifths of the votes cast by the two committees. He no longer possesses the power to grant collective or group pardons. The Vedel Report of recommended that the emergency powers provision be retained, but that additional safeguards be added to prevent its abuse. The primary goal of the Constitution was to empower the president and Government to act promptly, efficiently, and firmly to determine and effectuate the national interest.

This necessarily involved the expansion of the sphere of executive responsibility and the facilitation of executive action, as well as the curtailment of parliamentary power, all of which the Constitution duly accomplished. The critical inflexion points were the constitutional amendment of on the direct election of the president and the presidential election of , the first presidential election after the resignation of General de Gaulle and his withdrawal from political life. In his famous press conference of January 31, , President de Gaulle clearly expressed his view that the president was the supreme power in the nation.

Over time, the president has become more and more involved and dominant in party politics.

Weimar Germany's constitution

Strange as it may seem to the American observer, the Constitution as originally adopted accords to the Government the dominant position in organizing the work of the houses of Parliament. During two weeks of sittings out of four, priority shall be given, in the order determined by the Government, to the consideration of texts and to debates which it requests to be included on the agenda. In addition, the consideration of Finance Bills, Social Security Financing Bills and, subject to the provisions of the following paragraph, texts transmitted by the other House at least six weeks previously, as well as bills concerning a state of emergency and requests for authorization referred to in article 35, shall, upon Government request, be included on the agenda with priority.

During one week of sittings out of four, priority shall be given, in the order determined by each House, to the monitoring of Government action and to the assessment of public policies. One day of sitting per month shall be given to an agenda determined by each House upon the initiative of the opposition groups in the relevant House, as well as upon that of the minority groups. During at least one sitting per week, including during the extraordinary sittings provided for in article 29, priority shall be given to questions from Members of Parliament and to answers from the Government.

Another significant amendment enhancing the power of Parliament is the change made to article 49 3. As adopted in , article 49 3 allowed the Government to enact legislation by the devious route of turning the vote on its bill into a vote of confidence. According to that article before its amendment in :. The article 49 3 procedure can now be used only for finance bills and social security financing bills and one other bill per session.

Article 45 2 now reads:. It shall assess public policies. New article provides for the assistance of the Cour des comptes to Parliament :. The accounts of public administrations shall be lawful and faithful. They shall provide a true and fair view of the result of the management, assets and financial situation of the said public administrations. Thanks to new article , Parliament may now adopt resolutions. Its ability to do so had previously been limited by a decision of the Constitutional Council holding that the responsibility of the Government could only be raised pursuant to the conditions and procedures of articles 49 and 50, and that resolutions calling for the implementation or disapproval of certain policies were in effect challenges to the government.

The Houses of Parliament may adopt resolutions according to the conditions determined by the Institutional Act. Any draft resolution, whose adoption or rejection would be considered by the Government as an issue of confidence, or which contained an injunction to the Government, shall be inadmissible and may not be included on the agenda. The amendments also significantly increase the involvement of Parliament in European policy and in foreign and defense policy.

Article , as amended, now provides:. In the manner laid down by the rules of procedure of each House, European resolutions may be passed, even if Parliament is not in session, on the drafts or proposals referred to in the preceding paragraph, as well as on any document issuing from a European Union Institution.

The Government shall inform Parliament of its decision to have the armed forces intervene abroad, at the latest three days after the beginning of said intervention. It shall detail the objectives of the said intervention. This information may give rise to a debate, which shall not be followed by a vote. Where the said intervention shall exceed four months, the Government shall submit the extension to Parliament for authorization. It may ask the National Assembly to make the final decision.

If Parliament is not sitting at the end of the four-month period, it shall express its decision at the opening of the following session.

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Since the Government and the National Assembly are controlled by the same political party or a coalition of parties with the same basic political orientation, the opposition party in Parliament must be able to play a significant role in the work of the Parliament if Parliament itself is to be much more than a mere rubberstamp for the Government and to play a significant political role, especially in overseeing the operation of the Government. According to the Balladur Report :. All of the preceding proposals pursue the same objective: the emancipation of the Parliament.

That will be attained only if the prerogatives accorded to it benefit all parliamentarians, and not solely those who support the action of the Government. The thinking of the Commission on this question has been guided by one constant concern: to recognize a more important role for the opposition, allowing it also to play a more responsible role, removed from the sterility of general criticisms which cast discredit on political discourse. They shall recognize that opposition groups in the House concerned, as well as minority groups, have specific rights. Parliament should better reflect the views of the people.

To this end, the Balladur Report proposed adding an element of proportionality about seats to elections for the National Assembly. This proposal, along with a proposal to better balance the size of Senate districts, was not accepted. The amendments did include, however, an addition to article 25, which requires an independent commission to publicly evaluate legislation to delimit electoral districts and the distribution of seats for the National Assembly.

Article 25 3 reads:. The Balladur Report also proposed enhancing the role and representativeness of the Economic and Social Council.

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The Economic and Social Council, now called the Economic, Social and Environmental Council ESEC after the amendments, was conceived as a consultative body composed of representatives of the economic and social activities of French society. The ESEC can now be seized by Parliament as well as by petition before the amendments, it could be seized only by the Government. To increase direct democracy, the Constitution was amended to allow a referendum to be held on the initiative of citizens. In order to not undercut parliamentary authority, however, the support of one-fifth of parliamentarians was made necessary.

Concern for the independence of the judiciary from the influence of the executive authority, [] and also for its competence, [] led to the amendment of article 65 of the Constitution dealing with the High Council of the Judiciary. Each section of the High Council is responsible for making recommendations on appointments judicial or prosecutorial and for handling disciplinary matters.

These appointments are specifically made subject to the article 13 5 appointment procedure. An important addition to article 65 is the provision allowing a litigant to refer a complaint to the High Council. Fundamental Rights []. Perhaps the amendment that will ultimately have the most long term significance is new article , which provides:.

Parliament enacted the institutional act to implement article in November , [] and the Constitutional Council held that the act conformed to the Constitution in early December. Article represents a radical change in French constitutional law, as it allows for a judicial authority to find an act of Parliament unconstitutional even though that act has already entered into force. The Constitutional Council as originally conceived in had a limited number of tasks: principally overseeing the regularity of referenda [] and presidential elections, [] deciding National Assembly and Senate election disputes, [] deciding whether an international agreement contains anything contrary to the Constitution in which case the agreement could not be ratified or approved until the Constitution was amended , [] passing on the constitutionality of institutional acts and the standing rules of the houses of Parliament, [] and passing on the constitutionality of any act of Parliament if referred to the Council by certain designated officials the president of the Republic, the prime minister, the president of the National Assembly or Senate , or after a amendment sixty senators or sixty deputies.

Madison , [] decided that it could review parliamentary enactments for their conformity to substantive provisions of the Constitution not just provisions dealing with allocation of competence between the executive and legislative branches or those dealing with matters of legislative procedure. In that decision, the Council also held that the preamble to the Constitution was positive law, containing provisions of constitutional status valeur constitutionnelle that it could apply in assessing the constitutionality of legislation.

In recognition of the original intent underlying review of laws by the Constitutional Council, which was to assure that Parliament did not encroach on the sphere of executive rule-making competence or its procedural prerogatives in the legislative process, the Constitution as originally adopted provided that ordinary laws could be referred to the Council by only four officials: the president of the Republic, the prime minister, the president of the Senate, and the president of the National Assembly. In the Constitution was amended to allow sixty deputies or sixty senators to refer enacted laws but before their promulgation and entry into force to the Council.

But, and it is important to stress, Council review took place, and was constitutionally required to take place, before the law entered into force. The addition of article to the Constitution in is revolutionary in two respects: first, it allows an individual litigant to raise a question of constitutionality before the Constitutional Council albeit indirectly ; and second, it allows the Constitutional Council to rule on the constitutionality of a law already in force and to invalidate it. Article 62 2 prescribes the legal effect of a declaration of unconstitutionality pursuant to article The institutional act to implement article [] provides that a litigant in the ordinary court system or in the administrative court system may request the court to refer a question of the constitutionality of a law in force to the Constitutional Council.

Such referral can be made only by the highest court in each system: the Council of State for the administrative court system or the Court of Cassation for the ordinary judicial system. The hearing shall be open to the public The Defender of Rights replaces the Mediator of the Republic, an office which did not have constitutional status. Article provides:. Referral may be made to the Defender of Rights, in the manner determined by an Institutional Act, by every person who considers his rights to have been infringed by the operation of a public service or of a body mentioned in the first paragraph.

He may act without referral.

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The Defender of Rights is appointed for a non-renewable six-year term by the president of the Republic, subject to the article 13 5 appointment procedure.