sahano9

DEMOCRACY AND FUNDAMENTAL HUMAN RIGHT

2008-10-21T20:28:00.000-07:00

Berlin, Germany, May 29-31, 1998
I know that this conference is devoted to very important issues, and it is a great honor to address such a diverse and influential and distinguished audience. However, I have been admonished that, while we are dealing with eternal issues, the speeches should not be eternal, so I will try to confine my remarks to about 20 minutes. I promise you I will try to fit in what I have to say within that framework.
The right to freedom of religion is perhaps the oldest human right recognized internationally. In fact, this year is the 350th anniversary of a transnational or international document, the Peace of Westphalia, signed in 1648, which accorded international protections to religious groupings. In the eighteenth century, the right of religious liberty added dynamism to the Commonwealth of Virginia ‘s Bill of Rights of 1776, the Austrian Act of Religious Tolerance of 1781, the Virginia Statute of Religious Liberty of 1786, as well as a Prussian document called the Allgemeines Preussisches Landrecht of 1794.
It seems to me that the elaboration of international and national instruments protecting religious liberty has a long and storied history, but in truth, in the modern era, it is relatively weak. It is relatively weak in part, because international institutions shaped their human rights documents based on grand compromises with governments that were governed by ideologies preaching atheism. Therefore, even the wonderful Article 18, about which Bruce Casino spoke, is not simply a document about freedom of religion. It is a document that is encoded with other rights, including the right to freedom of conscience, thought, and the like. It seems to me that in an international community where religion plays such a central role in civilization, it ought to be accorded its own separate and proper place.
I would prefer to focus my remarks tonight in a way which I think is different from what you will be hearing in the rest of the several day’s convocations, by addressing an equally crucial issue: the nexus between religious belief, religious systems, and the expansion of human liberty and human rights that is occurring at the dawn of the new millennium. Certainly, that nexus is attracting a lot of attention. Over the last year no foreign policy issue related to human rights has achieved greater grass roots attention in the United States than this issue of religious liberty. It is at the root of the Wolfe-Specter bill that passed the US House of Representatives with nearly universal support among Republicans and vastly overwhelming supporting among Democrats, despite vigorous opposition from the Clinton Administration. There is also a growing awareness in the United States of the issue of religious persecution, of how wide spread it is, and how great a problem it is in countries like China, Tibet, Vietnam, and the Sudan.
This growing awareness suggests that in the United States and, I would suspect, throughout the democratic world, the suppression of religious freedom is increasingly viewed as an odious and intolerable violation of basic human rights. Because it has this kind of great resonance, there is great power vested in the people gathered in this room. I believe that the kinds of efforts that have been so successful in the United States can be replicated, because there is a general understanding among most people of good will—whether they are believers or not—of the importance of religious values and their place in a good society.
The nexus of religion and human freedom is also being developed among social and political scientists in the theory of an emerging potential clash of civilizations. A provocative thesis has been advanced by one of the members of the board of Freedom House, Professor Samuel Huntington. This relationship is at the center, as well, of some very serious thinking about economic growth, social progress and social development, and the nexus of religious belief in the work of very talented social scientists such as Francis Fukuyama, in the United States.
I, and many of the scholars in this audience, can, of course, trace the roots and basis for the beliefs in fundamental human rights to religious traditions. However, I would like to focus, instead, on how and where progress is occurring, and in which of the great civilizational expanses there has been, and is, the potential for democratic progress, and progress along the broad range of human rights.
Freedom House, the organization which I head, does a report card on the state of freedom each year. We look at those societies that have the political framework of democracy, that is, free and fair elections. We also examine and evaluate societies as to whether they are free, which means that there is a fairly broad range of rights that are enjoyed by citizens. Frequently, there are abridgments of the rights of minorities and other problems, but there are the mechanisms to solve these problems in a climate of the rule of law. We rate other countries as partly free, in which there are a number of rights, but also other kinds of problems: internal conflicts; sectarian conflicts that erupt into systemic patterns of violence; or societies in which there is an inordinate influence of the military. In addition, we rate societies that are not free, in which the broad range of rights is violated and breached.
It is interesting to look at the way the world is divided in terms of the level of freedom—free societies, partly free societies and unfree societies—within the context of traditional religious beliefs and religious belief systems. The correlation between aspects of religion, civilization, and democratic development, therefore, are the issues that I would like to bring to your attention.
Religions reflect fundamental beliefs and values, but I would argue—and the data show—that religions can rapidly adjust their attitudes toward politics and public policy. One trend is this correlation between political freedom and religious belief. Of the 191 countries that we rate, there are 81 countries that we judge to be free, that is, having a broad range of rights. Seventy-four of these are part of the Judeo-Christian tradition. Only seven free countries are not majority Christian or traditionally Christian. Countries that are outside of that expanse are Mauritius, which has a substantial Christian and Hindu community. There are four countries without a Judeo-Christian tradition, where there is a very strong democratic climate of freedom. These include Taiwan, where of course, nearly half the population is Buddhist; Mongolia, which is traditionally Buddhist; Japan, which observes both Buddhist and Shinto traditions; and Mali, which is the only free predominately Muslim country in the world today.
The correlation between Christianity and freedom at the end of the twentieth century is very strong, according to our data. As I say, 74 of the 81 countries are predominately Christian. Just 11 of the 67 countries, that have the poorest record in terms of political rights and civil liberties, are Christian. By this indicator, predominately Christian countries, at this stage in human development, are about six times more likely to be free and democratic, as they are to be nondemocratic and suffer from serious abridgments in human rights. In the Islamic world, as I said, only one country, Mali, is free. Fourteen are placed at a kind of a middle level, and are rated as partly free, while 28 are not free. Of these 43 Muslim countries, six are electoral democracies: Albania, Bangladesh, Kurdistan, Mali, Pakistan and Turkey. These are countries with a reasonably competitive electoral process, including contending parties, but which have many restrictions, abridgments, and deep problems. Therefore, you could not say that they are fully free societies.
Some of this data may be disturbing to some people. I do not mean it to be offensive to anyone, because some of this data shows how mutable circumstances are, and how rapidly things can change. Just two decades ago, if I had been giving this same speech, I would have drawn an entirely different correlation about the state of affairs in predominately Catholic countries. Today, of the 49 majority Catholic countries, 47 are free and reasonably vibrant democracies. Two decades ago, before the papacy of John Paul II, 21 or 22 of the 44 majority Catholic countries at that time were democracies and free societies.
...What has proven true is that, as trends began to develop in Latin America, they influenced Catholic communities in Central Europe, who shared a common language of beliefs, a common vision of the world, and a common set of religious values. They influenced Catholics mobilizing for change, and inspired them in places like South Korea. There is a kind of harmony and harmonization of trends within these kinds of traditions, which is very important for all of us to understand.
Therefore, when I read the bleak statistics about the state of affairs in Islam, I think it has to be kept within the context that these sets of affairs are mutable, and fundamental change is possible. There are signs in recent years and days, of stirrings of democratic ferment, or at least the possibilities of pressure toward democratic change, and the opening up of democratic transitions in parts of the Islamic world.
Certainly, large segments of the Islamic world are experiencing a rising degree of civic activism. In Indonesia we see that secular Islamic leaders, like Ahmien Rais and Abdurrahman Wahid, who are neither religious leaders nor clerics, have played a crucial role in building an intelligent opposition to the Suharto tyranny, and pressing for liberalization and democratic political reform. In terrorist ravaged Algeria—despite the fact that elections are tainted, not fully free and fair, and dominated in great measure by the military—people have used the political process to register their objections to this butchery, and to use the process of democracy to resolve conflicts among themselves. In the areas governed by the Palestinian self-rule authority, a younger generation, deeply committed to democratic values, is emerging to take the place of veterans of the guerrilla movement that was the PLO. In similar ways, as a different generation has supplanted some of the people who were engaged in the activities of the military wing of the African National Congress, they are rising in prominence and paving a way to a more democratic transition within South Africa.
In Iran, a country in which Shi’ism has have often been equated with radical revolutionary politics, there are growing signs that there could be a return to its original fundamentalist tradition, which also believes in the proper division between the authority of the state and the mosque, the historic Shi’a tradition for over a millennium. It is really over the last 20 or 30 years, partly influenced by nationalist sentiments, that a departure into revolutionary politics has occurred. Newly elected President Mohammad Khatami, while an imperfect leader whose words cannot be taken at face value, is able to assert within the Iranian context, that democracy is one of the great contributions to Western civilization, and that it ought to be a part of Iranian society. This is a trend that deserves watching, and it suggests that, within this broad expanse of the Islamic world, there is some potential for change.
Even in Lebanon, that united country, there is growing pressure and great interest in participating in municipal elections. While it would be naive to say that all these are harbingers of a great shift within this civilization, they certainly bear watching. This is particularly so if we keep in mind that these major landmark shifts toward greater freedom and greater democracy tend to occur within the context of civilizations that speak in a way that transnationally links them to common sets of values.
Since this conference is focused on Europe, and takes place at the intersection where East and West were split, it is worth devoting some attention to the divide that continues to bedevil this new, more unified Europe after the Wall’s fall. The collapse of communism has already had a profound effect on the human liberty of many people. Religious life, it seems to me, is a more vibrant part of many of these societies, particularly in Central and Eastern Europe. Christian democratic movements, for example, have been on the rise in Hungary, Poland, Slovakia, and Romania. They have found a way to speak to the public in ways that maintain cohesiveness among the anticommunist forces. They have been able—with the exception of Slovakia, and possibly, they will succeed in Slovakia as well—to displace the ex-communist or the post-communist political forces within those countries. It is a very important trend, and one in which, in many of these movements, political leaders are motivated by deeply held religious beliefs. Similar trends can be found, to a degree, in the Baltic States, but I think a more complicated situation exists in the former Soviet Union.
While religious values are in ferment, and there is a spiritual hunger among many people in these societies, there is not the same kind of dynamism of religious revival in countries like Russia and Ukraine. I think that, in part, their political difficulties, and their difficulties in making an economic transition, are linked to a kind of spiritual vacuum that still exists. This is why it is particularly disheartening that, rather than injecting a more dynamic and competitive environment—not a Babel, but a dialogue of different religious beliefs and choices—the Russian Duma and the Russian authorities have chosen to impose a very restrictive religious law. The law has not yet been applied in a broadly repressive way, but it has great potential for this. That kind of shortsightedness may be found among many American social scientists, who fail to grasp the harmonic link between democratic values and a sense of the spirit, and even the link between a vibrant market place and a spiritual awakening among people.
Much of the economic progress in Latin America and East Asia in recent years, particularly in Korea, has been accomplished with the dynamic rise of new religious denominations. The belief in a strong market economy has been linked to the growth of evangelical Christianity, which has been in a competitive status with the existing established religions. This has created societies that are more dynamic and, I would argue, more open because of that process.
Having described these trends, let me say that in Washington, and I expect in parts of the West and Western Europe, few policy makers look at the world through the prism of religious influences and religious values. Many, particularly in the media and the policy elite, feel uncomfortable with the voice of religious values in the public square. Somehow they regard it as divisive in America, particularly in our multidenominational and multiethnic setting, but increasingly so in the multiethnic and multireligious settings of Europe. Our media extols the virtues of secularism and would prefer, as I have said, to see religion removed from a place in the public square. The injection of religion and religiously inspired moral values into the political discourse continues to be met with cries of the threats of fundamentalism and renewed calls for the strict separation of church and state. I think that policy makers need a more sophisticated understanding of the role of religion.
In some ways, ironically, fundamentalist religions are the least likely to preach direct engagement in religious life. But, it seems to me, the religious community also has to understand this harmonic relationship between religious values and the democratic global revolution that has been going on for the last two or three decades and which has not yet, I believe, run out of steam. Clearly, many religious groups are only now re-emerging from the yoke of aggressively atheistic states that have held them down in many places. There is an opportunity for the flowering of religious beliefs in large parts of the world that had been cut off both from proselytizing and from internal religious life. Yet, to pursue the expansion of religious life and values requires a democratic context of respect for human rights. It is a difficult thing for religious leaders to handle, but the proper balance of understanding is that their own interests, and their opportunity to preach in an open way, is directly linked to the progress that their societies make toward democratic transition.
In conclusion, I would say that there should also be a concomitant or simultaneous understanding that democracies require religion. They desperately need the injection of moral judgment as a crucial component of the democratic crucible. Without it, you emerge in an antiseptic and immoral world in which democracy becomes the equivalent of license. Effective democracies and truly free societies are strongest when they have citizens who have a strong internal moral compass. This is the best guarantee of keeping the state out of what should be the proper preserve of culture, belief, religion and individual choice.
If the project of expanding democracy and human rights to the far reaches of our increasingly interrelated world is to be successful, it will happen through the cooperation of the very people who are gathered in this room. The great wave of the expansion of democratic liberty and freedom that has occurred since the 1970s is directly related to the positive influences of religious leaders and religious beliefs. Religion has played and will continue to play a central role in the process that is the heart and soul of the human thirst for freedom and dignity.

DEMOCRACY

2008-10-21T20:10:00.000-07:00

Democracy is a form of government in which the supreme power is held completely by the people under a free electoral system. It is derived from the Greek δημοκρατία ([dimokratia] (help·info)), "popular government"[1] which was coined from δήμος (dēmos), "people" and κράτος (kratos), "rule, strength" in the middle of the 5th-4th century BC to denote the political systems then existing in some Greek city-states, notably Athens following a popular uprising in 508 BC.[2] In this form, there were no defined human rights or legal restraints upon the actions of assembly, making it the first instance of "illiberal democracy."[3]
In political theory, democracy describes a small number of related forms of government and also a political philosophy. Even though there is no universally accepted definition of 'democracy',[4] there are two principles that any definition of democracy includes. The first principle is that all members of the society have equal access to power and the second that all members enjoy universally recognized freedoms and liberties.[5][6][7]
There are several varieties of democracy, some of which provide better representation and more freedoms for their citizens than others.[8][9] However, if any democracy is not carefully legislated to avoid an uneven distribution of political power with balances such as the separation of powers, then a branch of the system of rule is able to accumulate power in a way that is harmful to democracy itself.[10][11][12] The "majority rule" is often described as a characteristic feature of democracy, but without responsible government it is possible for the rights of a minority to be abused by the "tyranny of the majority". An essential process in representative democracies are competitive elections, that are fair both substantively[13] and procedurally[14]. Furthermore, freedom of political expression, freedom of speech and freedom of the press are essential so that citizens are informed and able to vote in their personal interests.[15][16]
Popular sovereignty is common but not a universal motivating philosophy for establishing a democracy. In some countries, democracy is based on the philosophical principle of equal rights. Many people use the term "democracy" as shorthand for liberal democracy, which may include additional elements such as political pluralism, equality before the law, the right to petition elected officials for redress of grievances, due process, civil liberties, human rights, and elements of civil society outside the government. In the United States, separation of powers is often cited as a supporting attribute, but in other countries, such as the United Kingdom, the dominant philosophy is parliamentary sovereignty (though in practice judicial independence is generally maintained). In other cases, "democracy" is used to mean direct democracy. Though the term "democracy" is typically used in the context of a political state, the principles are also applicable to private organizations and other groups.
Democracy has its origins in ancient Greece [17][18]. However other cultures have significantly contributed to the evolution of democracy such as the American Indians ( Weatherford 1990) Ancient Rome [17], Europe[17], and North and South America.[19] Democracy has been called the "last form of government" and has spread considerably across the globe.[20] Suffrage has been expanded in many jurisdictions over time from relatively narrow groups (such as wealthy men of a particular ethnic group), but still remains a controversial issue with regard to disputed territories, areas with significant immigration, and countries that exclude certain demographic groups.
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Feudalism
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Ochlocracy
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v • d • e
Contents[hide]
1 Forms of democracy
1.1 Representative
1.1.1 Parliamentary democracy
1.1.2 Liberal democracy
1.2 Constitutional democracy
1.3 Direct Democracy
1.4 Socialist Democracy
1.5 Anarchist Democracy
1.6 Iroquois Democracy
1.7 Sortition
1.8 Consensus democracy
1.9 Interactive Democracy
2 History
2.1 Ancient origins
2.2 Middle Ages
2.3 18th and 19th centuries
2.4 20th century
3 Theory
3.1 Aristotle
3.2 Conceptions
3.3 Democracy and republic
3.4 Constitutional monarchs and upper chambers
4 Supranational democracy
5 Non-government democracy
6 Criticisms
6.1 Mob rule
6.2 Moral decay
6.3 Political instability
6.4 Short termism
6.5 Slow response
6.6 Association with Americanisation, consumerism and elitism
6.7 Conflicts between groups
6.8 Social, religious and political segregation
7 See also
8 Notes
9 References
10 Further reading
11 External links
//

[edit] Forms of democracy
Main article: Democracy (varieties)
See also: List of types of democracy

[edit] Representative
Representative democracy involves the selection of government officials by the people being represented. The most common mechanisms involve election of the candidate with a majority or a plurality of the votes.
Representatives may be elected or become diplomatic representatives by a particular district (or constituency), or represent the entire electorate proportionally proportional systems, with some using a combination of the two. Some representative democracies also incorporate elements of direct democracy, such as referendums. A characteristic of representative democracy is that while the representatives are elected by the people to act in their interest, they retain the freedom to exercise their own judgment as how best to do so.

[edit] Parliamentary democracy
Parliamentary democracy where government is appointed by parliamentary representatives as opposed to a 'presidential rule' by decree dictatorship. Under a parliamentary democracy, government is exercised by delegation to an executive ministry and subject to ongoing review, checks and balances by the legislative parliament elected by the people.[21][22][23][24][25][26][27][28]

[edit] Liberal democracy
A Liberal democracy is a representative democracy in which the ability of the elected representatives to exercise decision-making power is subject to the rule of law, and usually moderated by a constitution that emphasizes the protection of the rights and freedoms of individuals, and which places constraints on the leaders and on the extent to which the will of the majority can be exercised against the rights of minorities (see civil liberties).

[edit] Constitutional democracy
See: Constitutional democracy

[edit] Direct Democracy
Direct democracy is a political system where the citizens participate in the decision-making personally, contrary to relying on intermediaries or representatives. The supporters of direct democracy argue that democracy is more than merely a procedural issue (i.e., voting).[29] Most direct democracies to date have been weak forms, relatively small communities, usually city-states. However, some see the extensive use of referendums, as in California, as akin to direct democracy in a very large polity with more than 20 million in California, 1898-1998 (2000) (ISBN 0-8047-3821-1). In Switzerland, five million voters decide on national referendums and initiatives two to four times a year; direct democratic instruments are also well established at the cantonal and communal level. Vermont towns have been known for their yearly town meetings, held every March to decide on local issues.

[edit] Socialist Democracy
Socialist thought has several different views on democracy. Social democracy, democratic socialism, and the dictatorship of the proletariat (usually exercised through Soviet democracy) are some examples. Many democratic socialists and social democrats believe in a form of participatory democracy and workplace democracy combined with a representative democracy.
Within Marxist orthodoxy there is a hostility to what is commonly called "liberal democracy", which they simply refer to as parliamentary democracy because of its often centralized nature. Because of their desire to eliminate the political elitism they see in capitalism, Marxists, Leninists and Trotskyists believe in direct democracy implemented though a system of communes (which are sometimes called soviets). This system ultimately manifests itself as council democracy and begins with workplace democracy. (See Democracy in Marxism)

[edit] Anarchist Democracy
The only form of democracy considered acceptable to many anarchists is direct democracy. Some anarchists oppose direct democracy while others favour it. Pierre-Joseph Proudhon argued that the only acceptable form of direct democracy is one in which it is recognized that majority decisions are not binding on the minority, even when unanimous.[30] However, anarcho-communist Murray Bookchin criticized individualist anarchists for opposing democracy,[31] and says "majority rule" is consistent with anarchism.[32] Some anarcho-communists oppose the majoritarian nature of direct democracy, feeling that it can impede individual liberty and opt in favour of a non-majoritarian form of consensus democracy, similar to Proudhon's position on direct democracy.[33]

[edit] Iroquois Democracy
Iroquois society had a form of participatory democracy and representative democracy.[34] Iroquois government and law was discussed by Benjamin Franklin[34] and Thomas Jefferson.[35] Though some disagree[36], some scholars regard it to have influenced the formation of American representative democracy.[35]

[edit] Sortition
Sometimes called "democracy without elections", sortition is the process of choosing decision makers via a random process. The intention is that those chosen will be representative of the opinions and interests of the people at large, and be more fair and impartial than an elected official. The technique was in widespread use in Athenian Democracy and is still used in modern jury selection. It is not universally agreed that sortition should be considered "democracy" due to the lack of actual elections[citation needed].

[edit] Consensus democracy
Consensus democracy requires varying degrees of consensus rather than just a mere democratic majority. It typically attempts to protect minority rights from domination by majority rule.

[edit] Interactive Democracy
Interactive Democracy seeks to utilise information technology to involve voters in law making. It provides a system for proposing new laws, prioritising proposals, clarifying them through parliament and validating them through referendum.

[edit] History
Main article: History of democracy

Since World War II, democracy has gained widespread acceptance. This map displays the official self identification made by world governments with regard to democracy, as of March 2008. It shows the de jure status of democracy in the world Governments self identified as democratic Governments not self identified as democratic.

This graph shows Freedom House's evaluation of the number of nations in the different categories given above for the period for which there are surveys, 1972-2005

This is one attempted measurement of democracy called the Polity IV data series. This map shows the data presented in the polity IV data series report as of 2003. The lightest countries get a perfect score of 10, while the darkest countries (Saudi Arabia and Qatar), considered the least democratic, score -10.

Number of nations 1800-2003 scoring 8 or higher on Polity IV scale, another widely used measure of democracy.

Democracy Index as published in January, 2007. The palest blue countries get a score above 9.5 out of 10 (with Sweden being the most democratic country at 9.88), while the black countries score below 2 (with North Korea being the least democratic at 1.03).

Political ratings of countries according to Freedom House’s Freedom in the World survey, 2008:
Free, electoral democracies Partially free, electoral democracies
Partially free, not electoral democracies Not free, not electoral democracies

[edit] Ancient origins
The term democracy first appeared in ancient Greek political and philosophical thought. The philosopher Plato contrasted democracy, the system of "rule by the governed", with the alternative systems of monarchy (rule by one individual), oligarchy (rule by a small élite class) and timocracy.[37] Although Athenian democracy is today considered by many to have been a form of direct democracy, originally it had two distinguishing features: firstly the allotment (selection by lot) of ordinary citizens to government offices and courts,[38] and secondarily the assembly of all the citizens. All the male Athenian citizens were eligible to speak and vote in the Assembly, which set the laws of the city-state, but neither political rights, nor citizenship, were granted to women, slaves, or poor. Of the 250,000 inhabitants only some 30,000 on average were citizens. Of those 30,000 perhaps 5,000 might regularly attend one or more meetings of the popular Assembly. Most of the officers and magistrates of Athenian government were allotted; only the generals (strategoi) and a few other officers were elected.[2]
The island of Arwad, settled in the early 2nd millennium BC by the Phoenicians, has been cited[39] as one of the first known examples of a democracy in the world. In Arwad, the people, rather than a monarch, are described as sovereign. In Greek, Arwad was known as Arado or Arados. Vaishali in what is now Bihar, India is also one of the first governments in the world to have elements of what we would today consider democracy, similar to those found in ancient Greece (although it was not a monarchy, ancient Vaishali is perhaps better described as an oligarchy). A similar proto-democracy or ogligarchy existed temporarily among the Medes in the 6th century BC, but which came to an end after the Achaemenid Emperor Darius the Great declared that the best monarchy was better than the best ogligarchy or best democracy.[40]
Even though the Roman Republic contributed significantly into certain aspects of democracy, such as Laws, it never became a democracy. The Romans had elections for choosing representatives, but again women, slaves, and the large foreign population were excluded. Also the votes of the wealthy were given more weight and almost all high officials, such as being member of Senate, come from a few wealthy and noble families.[41]
A serious claim for early democratic institutions comes from the independent "republics" of India, sanghas and ganas, which existed as early as the sixth century BCE and persisted in some areas until the fourth century CE. The evidence is scattered and no pure historical source exists for that period. In addition, Diodorus (a Greek historian at the time of Alexander the Great's excursion of India), without offering any detail, mentions that independent and democratic states existed in India.[42] However, modern scholars note that the word democracy at the third century BC had been degraded and could mean any autonomous state no matter how oligarchic it was.[43][44].

[edit] Middle Ages
During the Middle Ages, there were various systems involving elections or assemblies, although often only involving a minority of the population, such as the election of Uthman in the Rashidun Caliphate, the election of Gopala in Bengal, the Polish-Lithuanian Commonwealth, the Althing in Iceland, certain medieval Italian city-states such as Venice, the tuatha system in early medieval Ireland, the Veche in Novgorod and Pskov Republics of medieval Russia, Scandinavian Things, The States in Tyrol and Switzerland and the autonomous merchant city of Sakai in the 16th century in Japan. However, participation was often restricted to a minority, and so may be better classified as oligarchy. Most regions in medieval Europe were ruled by clergy or feudal lords.
The Parliament of England had its roots in the restrictions on the power of kings written into Magna Carta. The first elected parliament was De Montfort's Parliament in England in 1265. However only a small minority actually had a voice; Parliament was elected by only a few percent of the population (less than 3% in 1780.[45]), and the system had problematic features such as rotten boroughs. The power to call parliament was at the pleasure of the monarch (usually when he or she needed funds). After the Glorious Revolution of 1688, the English Bill of Rights was enacted in 1689, which codified certain rights and increased the influence of the Parliament.[45] The franchise was slowly increased and the Parliament gradually gained more power until the monarch became largely a figurehead.[46]
Democracy was also seen to a certain extent in bands and tribes such as the Iroquois Confederacy. However, in the Iroquois Confederacy only the males of certain clans could be leaders and some clans were excluded. Only the oldest females from the same clans could choose and remove the leaders. This excluded most of the population. An interesting detail is that there should be consensus among the leaders, not majority support decided by voting, when making decisions.[47][48] Band societies, such as the Bushmen, which usually number 20-50 people in the band often do not have leaders and make decisions based on consensus among the majority. In Melanesia, farming village communities have traditionally been egalitarian and lacking in a rigid, authoritarian hierarchy. Although a "Big man" or "Big woman" could gain influence, that influence was conditional on a continued demonstration of leadership skills, and on the willingness of the community. Every person was expected to share in communal duties, and entitled to participate in communal decisions. However, strong social pressure encouraged conformity and discouraged individualism.[49]

[edit] 18th and 19th centuries
Although not described as a democracy by the founding fathers, the United States founders shared a commitment to the principle of natural freedom and equality.[50] The United States Constitution, adopted in 1788, provided for an elected government and protected civil rights and liberties. However, in the colonial period before 1776, only adult white male property owners could vote; enslaved Africans, free black people and women were not extended the franchise. On the American frontier, democracy became a way of life, with widespread social, economic and political equality.[51] However the frontier did not produce much democracy in Canada, Australia or Russia. By the 1840s almost all property restrictions were ended and nearly all white adult male citizens could vote; and turnout averaged 60-80% in frequent elections for local, state and national officials. The system gradually evolved, from Jeffersonian Democracy to Jacksonian Democracy and beyond. In Reconstruction after the Civil War (late 1860s) the newly freed slaves became citizens with (in the case of men) a nominal right to vote.
In 1789, Revolutionary France adopted the Declaration of the Rights of Man and of the Citizen and, although short-lived, the National Convention was elected by all males.[52]
Liberal democracies were few and often short-lived before the late nineteenth century. Various nations and territories have claimed to be the first with universal suffrage.

[edit] 20th century
20th century transitions to liberal democracy have come in successive "waves of democracy," variously resulting from wars, revolutions, decolonization, and economic circumstances. World War I and the dissolution of the Ottoman and Austro-Hungarian empires resulted in the creation of new nation-states in Europe, most of them at least nominally democratic. In the 1920s democracy flourished, but the Great Depression brought disenchantment, and most of the countries of Europe, Latin America, and Asia turned to strong-man rule or dictatorships. Fascism and dictatorships flourished in Nazi Germany, Italy, Spain and Portugal, as well as nondemocratic regimes in the Baltics, the Balkans, Brazil, Cuba, China, and Japan, among others.[53]
World War II brought a definitive reversal of this trend in western Europe. The successful democratization of the American, British, and French sectors of occupied Germany (disputed[54]), Austria, Italy, and the occupied Japan served as a model for the later theory of regime change. However, most of Eastern Europe, including the Soviet sector of Germany was forced into the non-democratic Soviet bloc. The war was followed by decolonization, and again most of the new independent states had nominally democratic constitutions. India, however emerged as the world's largest democracy and continues to be so.[55] In the decades following World War II, most western democratic nations had mixed economies and developed a welfare state, reflecting a general consensus among their electorates and political parties. In the 1950s and 1960s, economic growth was high in both the western and Communist countries; it later declined in the state-controlled economies. By 1960, the vast majority of nation-states were nominally democracies, although the majority of the world's populations lived in nations that experienced sham elections, and other forms of subterfuge (particularly in Communist nations and the former colonies.)
A subsequent wave of democratization brought substantial gains toward true liberal democracy for many nations. Spain, Portugal (1974), and several of the military dictatorships in South America returned to civilian rule in the late 1970s and early 1980s (Argentina in 1983, Bolivia, Uruguay in 1984, Brazil in 1985, and Chile in the early 1990s). This was followed by nations in East and South Asia by the mid- to late 1980s. Economic malaise in the 1980s, along with resentment of communist oppression, contributed to the collapse of the Soviet Union, the associated end of the Cold War, and the democratization and liberalization of the former Eastern bloc countries. The most successful of the new democracies were those geographically and culturally closest to western Europe, and they are now members or candidate members of the European Union[citation needed] . The liberal trend spread to some nations in Africa in the 1990s, most prominently in South Africa. Some recent examples of attempts of liberalization include the Indonesian Revolution of 1998, the Bulldozer Revolution in Yugoslavia, the Rose Revolution in Georgia, the Orange Revolution in Ukraine, the Cedar Revolution in Lebanon, and the Tulip Revolution in Kyrgyzstan.
Currently, there are 123 countries that are democratic, and the trend is increasing[56] (up from 40 in 1972)[citation needed]. As such, it has been speculated that this trend may continue in the future to the point where liberal democratic nation-states become the universal standard form of human society. This prediction forms the core of Francis Fukayama's "End of History" controversial theory. These theories are criticized by those who fear an evolution of liberal democracies to Post-democracy, and other who points out the high number of illiberal democracies.

[edit] Theory

[edit] Aristotle
Aristotle contrasted rule by the many (democracy/polity), with rule by the few (oligarchy/aristocracy), and with rule by a single person (tyranny/monarchy or today autocracy). He also thought that there was a good and a bad variant of each system (he considered democracy to be the degenerate counterpart to polity).[57][58]
For Aristotle the underlying principle of democracy is freedom, since only in a democracy the citizens can have a share in freedom. In essence, he argues that this is what every democracy should make its aim. There are two main aspects of freedom: being ruled and ruling in turn, since everyone is equal according to number, not merit, and to be able to live as one pleases.
“
But one factor of liberty is to govern and be governed in turn; for the popular principle of justice is to have equality according to number, not worth, and if this is the principle of justice prevailing, the multitude must of necessity be sovereign and the decision of the majority must be final and must constitute justice, for they say that each of the citizens ought to have an equal share; so that it results that in democracies the poor are more powerful than the rich, because there are more of them and whatever is decided by the majority is sovereign. This then is one mark of liberty which all democrats set down as a principle of the constitution. And one is for a man to live as he likes; for they say that this is the function of liberty, inasmuch as to live not as one likes is the life of a man that is a slave. This is the second principle of democracy, and from it has come the claim not to be governed, preferably not by anybody, or failing that, to govern and be governed in turns; and this is the way in which the second principle contributes to equalitarian liberty.[5]
”

[edit] Conceptions
Among political theorists, there are many contending conceptions of democracy.
Aggregative democracy uses democratic processes to solicit citizens’ preferences and then aggregate them together to determine what social policies society should adopt. Therefore, proponents of this view hold that democratic participation should primarily focus on voting, where the policy with the most votes gets implemented. There are different variants of this:
Under minimalism, democracy is a system of government in which citizens give teams of political leaders the right to rule in periodic elections. According to this minimalist conception, citizens cannot and should not “rule” because, for example, on most issues, most of the time, they have no clear views or their views are not well-founded. Joseph Schumpeter articulated this view most famously in his book Capitalism, Socialism, and Democracy.[59] Contemporary proponents of minimalism include William H. Riker, Adam Przeworski, Richard Posner.
Direct democracy, on the other hand, holds that citizens should participate directly, not through their representatives, in making laws and policies. Proponents of direct democracy offer varied reasons to support this view. Political activity can be valuable in itself, it socializes and educates citizens, and popular participation can check powerful elites. Most importantly, citizens do not really rule themselves unless they directly decide laws and policies.
Governments will tend to produce laws and policies that are close to the views of the median voter – with half to his left and the other half to his right. This is not actually a desirable outcome as it represents the action of self-interested and somewhat unaccountable political elites competing for votes. Downs suggests that ideological political parties are necessary to act as a mediating broker between individual and governments.Anthony Downs laid out this view in his 1957 book An Economic Theory of Democracy.[60]
Robert A. Dahl argues that the fundamental democratic principle is that, when it comes to binding collective decisions, each person in a political community is entitled to have his/her interests be given equal consideration (not necessarily that all people are equally satisfied by the collective decision). He uses the term polyarchy to refer to societies in which there exists a certain set of institutions and procedures which are perceived as leading to such democracy. First and foremost among these institutions is the regular occurrence of free and open elections which are used to select representatives who then manage all or most of the public policy of the society. However, these polyarchic procedures may not create a full democracy if, for example, poverty prevents political participation.[61] Some see a problem with the wealthy having more influence and therefore argue for reforms like campaign finance reform. Some may see it as a problem that the majority of the voters decide policy, as opposed to majority rule of the entire population. This can be used as an argument for making political participation mandatory, like compulsory voting or for making it more patient (non-compulsory) by simply refusing power to the government until the full majority feels inclined to speak their minds.
Deliberative democracy is based on the notion that democracy is government by discussion. Deliberative democrats contend that laws and policies should be based upon reasons that all citizens can accept. The political arena should be one in which leaders and citizens make arguments, listen, and change their minds.
Radical democracy is based on the idea that there are hierarchical and oppressive power relations that exist in society. Democracy's role is to make visible and challenge those relations by allowing for difference, dissent and antagonisms in decision making processes.

[edit] Democracy and republic
Main article: Republicanism
In contemporary usage, the term democracy refers to a government chosen by the people, whether it is direct or representative.[62] The term republic has many different meanings, but today often refers to a representative democracy with an elected head of state, such as a president, serving for a limited term, in contrast to states with a hereditary monarch as a head of state, even if these states also are representative democracies with an elected or appointed head of government such as a prime minister.[63]
The Founding Fathers of the United States rarely praised and often criticized democracy, which in their time tended to specifically mean direct democracy; James Madison argued, especially in The Federalist No. 10, that what distinguished a democracy from a republic was that the former became weaker as it got larger and suffered more violently from the effects of faction, whereas a republic could get stronger as it got larger and combats faction by its very structure. What was critical to American values, John Adams insisted,[64] was that the government be "bound by fixed laws, which the people have a voice in making, and a right to defend." Also, as Benjamin Franklin was exiting after writing the U.S. constitution, a woman asked him Sir, what have you given us?. He replied A republic ma'am, if you can keep it[65]

[edit] Constitutional monarchs and upper chambers
Initially after the American and French revolutions the question was open whether a democracy, in order to restrain unchecked majority rule, should have an elitist upper chamber, the members perhaps appointed meritorious experts or having lifetime tenures, or should have a constitutional monarch with limited but real powers. Some countries (as Britain, the Netherlands, Belgium, Scandinavian countries and Japan) turned powerful monarchs into constitutional monarchs with limited or, often gradually, merely symbolic roles. Often the monarchy was abolished along with the aristocratic system (as in the U.S., France, China, Russia, Germany, Austria, Hungary, Italy, Greece and Egypt). Many nations had elite upper houses of legislatures which often had lifetime tenure, but eventually these senates lost power (as in Britain) or else became elective and remained powerful (as in the United States).

[edit] Supranational democracy
Qualified majority voting (QMV) is designed by the Treaty of Rome to be the principal method of reaching decisions in the European Council of Ministers. This system allocates votes to member states in part according to their population, but heavily weighted in favour of the smaller states. This might be seen as a form of representative democracy, but representatives to the Council might be appointed rather than directly elected. Some might consider the "individuals" being democratically represented to be states rather than people, as with many other international organizations.
European Parliament members are democratically directly elected on the basis of universal suffrage, may be seen as an example of a supranational democratic institution.

[edit] Non-government democracy
Aside from the public sphere, similar democratic principles and mechanisms of voting and representation have been used to govern other kinds of communities and organizations.
Many non-governmental organisations decide policy and leadership by voting.
Most trade unions choose their leadership through democratic elections.
Cooperatives are enterprises owned and democratically controlled by their customers or workers.

[edit] Criticisms

Please help improve this article or section by expanding it. Further information might be found on the talk page or at requests for expansion. (October 2008)

[edit] Mob rule
Plato's the Republic presents a critical view of democracy through the narration of Socrates: "Democracy, which is a charming form of government, full of variety and disorder, and dispensing a sort of equality to equals and unequaled alike."[66] Assuming that the Republic was intended to be a serious critique of the political thought in Athens, Plato argues that only aristocracy is a just form of government, believing that a majority is too irrational to make decisions for the entire populace, thus degrading to mob rule.
The Founding Fathers of the United States intended to address this criticism by combining democracy with republicanism. A constitution would limit the powers of what a simple majority can accomplish.[67] However, anarchists and other critics of large governments find this to be a poor solution, as there is nothing inherent in a constitution that will prevent democratic abuses.

[edit] Moral decay
Traditional Asian cultures, in particular that of Confucian and Islamic thought believe that democracy results in the people's distrust and disrespect of governments or religious sanctity. The distrust and disrespect pervades to all parts of society whenever and wherever there is seniority and juniority, for example between a parent and a child, a teacher and a student. This in turn is suggested to be the cause of frequent divorces, teenage crimes, vandalism, hooliganism and low education attainment in Western societies, in particular the United States. It is argued (also by some psychologists) that moral decay occurs when there is no longer a respectable leader (or God as in the case of Islam) who sets high moral standards and when a politically free environment creates excessive individuality.
Further, Islamists argue that only an Islamic republic is truly compatible with the will of God.[68]

[edit] Political instability
More recently, democracy is criticised for not offering enough political stability. As governments are frequently elected on and off there tends to be frequent changes in the policies of democratic countries both domestically and internationally. Even if a political party maintains power, vociferous, headline grabbing protests and harsh criticism from the mass media are often enough to force sudden, unexpected political change. Frequent policy changes with regard to business and immigration are likely to deter investment and so hinder economic growth. For this reason, many people have put forward the idea that democracy is undesirable for a developing country in which economic growth and the reduction of poverty are top priority.

[edit] Short termism

[edit] Slow response

[edit] Association with Americanisation, consumerism and elitism

[edit] Conflicts between groups
Conflicts between people with different opinions and interests can arise. Whenever this occurs, democracy tends to support a referendum or vote in which the majority's wish is carried out. Critics therefore, argue the accountability of making decisions based on this.

[edit] Social, religious and political segregation

[edit] See also
List of types of democracy
Parliamentary democracy
Community of Democracies
Democracy Index
Democratic Peace Theory
Democratization
Direct democracy
E-democracy
Election
Foucault/Habermas debate
Freedom deficit
Freedom House, Freedom in the World report
Liberal democracy
Majority rule
Media democracy
Netocracy
Poll
Polyarchy
Sociocracy
Sortition
Democracy subversion
Voting

[edit] Notes
The United Nations has declared 15 September as the International Day of Democracy.[69]

[edit] References
^ Demokratia, Henry George Liddell, Robert Scott, "A Greek-English Lexicon", at Perseus
^ a b Democracy is people who rule the government directly.BBC History of democracy
^ The Future of Freedom: Illiberal Democracy at Home and Abroad, Fareed Zakaria, (W.W. Norton & Company; 2003) ISBN 0-393-04764-4
^ Liberty and justice for some at Economist.com
^ a b Aristotle, Politics.1317b
^ R. Alan Dahl, I. Shapiro, J. A. Cheibub, The Democracy Sourcebook, MIT Press 2003, ISBN 0262541475, Google Books link
^ M. Hénaff, T. B. Strong, Public Space and Democracy, University of Minnesota Press, ISBN 0816633878
^ G. F. Gaus, C. Kukathas, Handbook of Political Theory, SAGE, 2004, p. 143-145, ISBN 0761967877, Google Books link
^ The Judge in a Democracy, Princeton University Press, 2006, p. 26, ISBN 069112017X, Google Books link
^ A. Barak, The Judge in a Democracy, Princeton University Press, 2006, p. 40, ISBN 069112017X, Google Books link
^ T. R. Williamson, Problems in American Democracy, Kessinger Publishing, 2004, p. 36, ISBN 1419143166, Google Books link
^ U. K. Preuss, "Perspectives of Democracy and the Rule of Law." Journal of Law and Society, 18:3 (1991). pp. 353-364
^ Substantively fairness means equality among all citizens in all respects i.e. equality in chances, in starting point etc.
^ Procedural fairness means that the rules of the elections are clear and set in advance
^ A. Barak,The Judge in a Democracy, Princeton University Press, 2006, p. 27, ISBN 069112017X, Google Books link
^ H. Kelsen, Ethics, Vol. 66, No. 1, Part 2: Foundations of Democracy (Oct., 1955), pp. 1-101
^ a b c John Dunn, Democracy: the unfinished journey 508 BC - 1993 AD, Oxford University Press, 1994, ISBN 0198279345
^ Kurt A. Raaflaub, Josiah Ober, Robert W. Wallace, Origin of Democracy in Ancient Greece, University of California Press, 2007, ISBN 0520245628, Google Books link
^ Weatherford, J. McIver (1988). Indian givers: how the Indians of the America transformed the world. New York: Fawcett Columbine, 117 - 150. ISBN 0-449-90496-2.
^ "The Global Trend" chart on Freedom in the World 2007: Freedom Stagnation Amid Pushback Against Democracy published by Freedom House
^ Keen, Benjamin, A History of Latin America. Boston: Houghton Mifflin, 1980.
^ Kuykendall, Ralph, Hawaii: A History. New York: Prentice Hall, 1948.
^ Mahan, Alfred Thayer, "The United States Looking Outward," in The Interest of America in Sea Power. New York: Harper & Bros., 1897.
^ Brown, Charles H., The Correspondents' War. New York: Charles Scribners' Sons, 1967.
^ Taussig, Capt. J. K., "Experiences during the Boxer Rebellion," in Quarterdeck and Fo'c'sle. Chicago: Rand McNally & Company, 1963
^ Hegemony Or Survival, Noam Chomsky Black Rose Books ISBN 0-8050-7400-7
^ Deterring Democracy, Noam Chomsky Black Rose Books ISBN 0374523495
^ Class Warfare, Noam Chomsky Black Rose Books ISBN 1-5675-1092-2
^ Article on direct democracy by Imraan Buccus
^ Pierre-Joseph Proudhon. General Idea of the Revolution See also commentary by Graham, Robert. The General Idea of Proudhon's Revolution
^ Bookchin, Murray. Communalism: The Democratic Dimensions of Social Anarchism. Anarchism, Marxism and the Future of the Left: Interviews and Essays, 1993-1998, AK Press 1999, p. 155
^ Bookchin, Murray. Social Anarchism or Lifestyle Anarchism: An Unbridgeable Chasm
^ Graeber, David and Grubacic, Andrej. Anarchism, Or The Revolutionary Movement Of The Twenty-first Century
^ a b Iroquois Contributions to Modern Democracy and Communism. Bagley, Carol L.; Ruckman, Jo Ann. American Indian Culture and Research Journal, v7 n2 p53-72 1983
^ a b Native American Societies and the Evolution of Democracy in America, 1600-1800 Bruce E. Johansen Ethnohistory, Vol. 37, No. 3 (Summer, 1990), pp. 279-290
^ Political Theory and the Rights of Indigenous Peoples By Duncan Ivison, Paul Patton, Will Sanders. Page 237
^ Political Analysis in Plato's Republic at the Stanford Encyclopedia of Philosophy
^ Aristotle Book 6
^ Bernal, p. 359
^ Snell, Daniel C. (2001), Flight and Freedom in the Ancient Near East, Brill Publishers, p. 18, ISBN 9004120106
^ ANCIENT ROME FROM THE EARLIEST TIMES DOWN TO 476 A.D
^ Dio. 2.39
^ Larsen, J. A. O., Demokratia, Classical Philology, Vol. 68, No. 1 (Jan., 1973), p. 45-46
^ de Sainte Croix G. E. M., The Class Struggle in the Ancient Greek World, Ithaca, 1981
^ a b The National Archives Exhibitions & Learning online Citizenship Struggle for democracy
^ The National Archives Exhibitions & Learning online Citizenship Rise of Parliament
^ Activity Four
^ Omdirigeringsmeddelande
^ "Melanesia Historical and Geographical: the Solomon Islands and the New Hebrides", Southern Cross n°1, London: 1950
^ Jacqueline Newmyer, "Present from the start: John Adams and America", Oxonian Review of Books, 2005, vol 4 issue 2
^ Ray Allen Billington, America's Frontier Heritage (1974) 117-158. ISBN 0826303102
^ The French Revolution II
^ AGE OF DICTATORS: TOTALITARIANISM IN THE INTER-WAR PERIOD
^ Did the United States Create Democracy in Germany?: The Independent Review: The Independent Institute
^ BBC NEWS World South Asia Country profiles Country profile: India
^ freedomhouse.org: Tables and Charts
^ Aristotle, The Politics
^ [http://www.iep.utm.edu/a/aristotl.htm Aristotle (384-322 BCE): General Introduction Internet Encyclopedia of Philosophy
^ Joseph Schumpeter, (1950). Capitalism, Socialism, and Democracy. Harper Perennial. ISBN 0-06-133008-6.
^ Anthony Downs, (1957). An Economic Theory of Democracy. Harpercollins College. ISBN 0-06-041750-1.
^ Dahl, Robert, (1989). Democracy and its Critics. New Haven: Yale University Press. ISBN 0300049382
^ democracy - Definition from the Merriam-Webster Online Dictionary
^ republic - Definition from the Merriam-Webster Online Dictionary
^ Novanglus, no. 7, 6 Mar. 1775
^ Republican Government: Introduction
^ Plato, the Republic of Plato (London: J.M Dent & Sons LTD.; New York: E.P. Dutton & Co. Inc.), 558-C.
^ James Madison, Federalist No. 10
^ Abdul Qadir Bin Abdul Aziz, The Criticism of Democracy and the Illustration of its Reality
^ GENERAL ASSEMBLY DECLARES 15 SEPTEMBER INTERNATIONAL DAY OF DEMOCRACY; ALSO ELECTS 18 MEMBERS TO ECONOMIC AND SOCIAL COUNCIL

FORMS OF GOVERNMENT

2008-10-21T20:07:00.000-07:00

A form of government is a term that refers to the set of political institutions by which a government of a state is organized in order to exert its powers over a Community politics.[1] Synonyms include "regime type" and "system of government". This definition holds valid even if the government is unsuccessful in exerting its power. Regardless of its qualities, a failed government is still a form of government. Churches, corporations, clubs, and other sub-national entities also have "government" forms, but in this article only the organization of states is discussed.
Nineteen states in the world do not explicitly name their government forms in their official names (the official name of Jamaica, for instance, is simply "Jamaica"), but most have an official name which identifies their form of government, or at least the form of government toward which they are striving:
Australia, the Bahamas, and Dominica are each officially a commonwealth.
Luxembourg is a grand duchy.
The United Arab Emirates is a collection of Muslim states, each an emirate in its own right.
Russia, Switzerland, and Saint Kitts and Nevis are each a federation.
Libya is a jamahiriya
There are 33 kingdoms in the world, but only 18 named as such. The other 15 are known as realms. Jordan is specifically titled the "Hashemite Kingdom of Jordan," while Britain is formally the United Kingdom of Great Britain and Northern Ireland.
Andorra, Liechtenstein, and Monaco are each a principality.
The word "republic" is used by 132 nations in their official names. Many specify a type of republic: China is titled a "people's republic; North Korea a "democratic people's republic"; Egypt and Syria "Arab republics"; Guyana a "cooperative republic"; Algeria is a "democratic and popular republic," Vietnam a "socialist republic," Sri Lanka a "democratic socialist republic.
States which wish to emphasize that their provinces have a fair amount of autonomy from the central government may specifically state this: Germany and Nigeria are each a federal republic, Ethiopia is a federal democratic republic, the Comoros is a federal Islamic republic, and Brazil is a federative republic.
The sometimes utilized name Former Yugoslav Republic of Macedonia emphasizes this nation's separateness from the neighboring Greek region of the same name. Government ideology is also a common signifier appended to "republic". Besides the Comoros, four other nations specifically dictate that they are Islamic republics. Asian nations influenced by Maoism may emphasize their belief system by specifying the People as a whole in their official names: Laos is a people's democratic republic, and Bangladesh and China are people's republics. Vietnam is a socialist republic. Finally, Tanzania emphasizes the cohesion of its state as a united republic.
Eleven nations simply refer to themselves as states, but a handful specify what kind of state. Micronesia is made up of federated states, Papua New Guinea and Samoa emphasize that they are independent states, while the United States of America and the United Mexican States are made up of constituent states.
Brunei and Oman are sultanates.
Burma simply states that it is a union.

Contents[hide]
1 Attributes of government
2 Other empirical and conceptual problems
3 See also
4 References
5 Further reading
6 External links
//

[edit] Attributes of government
Beyond official typologies it is important to think about regime types by looking at the general attributes of the forms of government [2]:
Traditional/premodern (clan/kinship-based, chiefdom) or modern (bureaucracies)
Personalistic or impersonal
Autocracy (totalitarianism or authoritarianism), oligarchy, or democracy
Elective or hereditary
Direct or indirect elections (United States Electoral College)
Secular, state religion with religious toleration, theocratic
Republic or monarchy
Constitutional monarchy or absolute monarchy
Majority government or coalition government
Single-member district or proportional representation
Party system: Non-partisan, single-party; dominant-party; two-party; multi-party
Separation of powers (executive, legislative, or judicial) or no separation of powers
Parliamentary, presidential, or semi-presidential
Single or multiple executive (Switzerland has seven executives of the Swiss Federal Council, France has a dual executive of the Prime Minister and President; the United States has a single executive, the President)
Composition of the legislative power (rubber stamp or active)
Unicameralism or bicameralism (much more rarely, tricameralism and tetracameralism)
Number of coalitions or party-appointed legislators in assemblies
Confederation, federation, or unitary
Voting system:
Plurality ("first past the post")
Majoritarian (50 percent plus one), including two-round (runoff) elections
Supermajoritarian (from 55 to 75 percent) - Senate cloture rules, entrenched clauses, absolute majorities
Unanimity - (100 percent) - corporate governance for board of directors
Type of economic system
Prevalent ideologies and cultures
Strong institutional capacity or weak capacity
Legitimate or illegitimate (Communist Romania)
De facto (effective control) or De jure (nominal control) of government
Sovereign, semi-sovereign, not sovereign

[edit] Other empirical and conceptual problems
On the surface, identifying a form of government appears to be easy. Most would say that the United States is a democratic republic while the former Soviet Union was a totalitarian state. However, as Kopstein and Lichbach (2005:4) argue, defining regimes is tricky. Defining a form of government is especially problematic when trying to identify those elements that are essential to that form. There appears to be a disparity between being able to identify a form of government and identifying the necessary characteristics of that form. For example, in trying to identify the essential characteristics of a democracy, one might say "elections." However, both citizens of the former Soviet Union and citizens of the United States voted for candidates to public office in their respective states. The problem with such a comparison is that most people are not likely to accept it because it does not comport with their sense of reality. Since most people are not going to accept an evaluation that makes the former Soviet Union as democratic as the United States, the usefulness of the concept is undermined. In political science, it has long been a goal to create a typology or taxonomy of polities, as typologies of political systems are not obvious [3]. It is especially important in the political science fields of comparative politics and international relations. One important example of a book which attempts to do so is Robert Dahl's Polyarchy (Yale University Press (1971)).
One approach is to further elaborate on the nature of the characteristics found within each regime. In the example of the US and the Soviet Union, both did conduct elections, and yet one important difference between these two regimes is that the USSR had a single-party system, with all other parties being outlawed. In contrast, the United States effectively has a bipartisan system with political parties being regulated, but not forbidden. A system generally seen as a representative democracy (for instance Canada, India and the United States) may also include measures providing for: a degree of direct democracy in the form of referendums and for deliberative democracy in the form of the extensive processes required for constitutional amendment.
Another complication is that a number of political systems originate as socio-economic movements and are then carried into governments by specific parties naming themselves after those movements. Experience with those movements in power, and the strong ties they may have to particular forms of government, can cause them to be considered as forms of government in themselves. Some examples are as follows:
Perhaps the most widely cited example of such a phenomenon is the communist movement. This is an example of where the resulting political systems may diverge from the original socio-economic ideologies from which they developed. This may mean that adherents of the ideologies are actually opposed to the political systems commonly associated with them. For example, activists describing themselves as Trotskyists or communists are often opposed to the communist states of the 20th century.
Islamism is also often included on a list of movements that have deep implications for the form of government. Indeed, many nations in the Islamic world use the term Islamic in the name of the state. However, these governments in practice exploit a range of different mechanisms of power (for example debt and appeals to nationalism). This means that there is no single form of government that could be described as “Islamic” government. Islam as a political movement is therefore better seen as a loose grouping of related political practices rather than a single, coherent political movement.
The basic principles of many other popular movements have deep implications for the form of government those movements support and would introduce if they came to power. For example, bioregional democracy is a pillar of green politics.

THE SUPREMACY OF THE CONSTITUTION IN FEDERATIONS

2008-10-21T20:00:00.001-07:00

Disquiet
Thursday, August 16, 2007

Latifah Mat Zin: Reaffirming The Supremacy Of The Constitution (II)
The Politicisation Of The ConstitutionMay 13th, 1969I will start by conceding that the terms of the Federal Constitution from its outset were the result of a political compromise struck between the various prime movers of the Merdeka initiative. In that way, it could be said that the Constitution was politicized from the very beginning.Having said that, it must be borne in mind that the Constitution that was put in place in 1957 was sufficiently comprehensive and even handed so as to provide protection for all Malayans, and with the entry of Sabah and Sarawak into the Federation, all Malaysians. For this reason, for the purpose of the discussion herein I will take the position that the Constitution was not politicized until 1988 and after. This is explained in the next section.Questions may be asked about the events of May 13th 1969. These events clearly had an impact on the national psyche where the issue of race relations was concerned. The steps taken to ostensibly deal with the situation have been described as having amounted, in effect, to steps in aid of a ‘regime change’ (Kua Kia Soong, May 13: Declassified Documents On The Malaysian Riot Of 1969). Positions taken, policies and legislative measures introduced in the aftermath of May 13th clearly laid foundation for, and gave life to, the ‘ketuanan Melayu’ mindset in a way that hindsight allows us to see may not have been the best way to move forward. If nothing else, it entrenched communitarian politics and fueled the supremacist agenda of the UMNO.That being said, the Constitution itself was not amended in a way so as to shift the constitutional compact achieved in 1957.1988The events of 1987 and 1988 however tell a different story. I had previously written here (Back To Basics) of how the period between 1987 and 1988 seriously damaged this nation. The analysis has relevance to this discussion as it was during this period that the Mahathir Administration politicized the Constitution.Article 121(1)Where the Constitution was concerned, two key events have to be underscored. The first was the amendment to Article 121(1) of the Constitution. The amendment purported to remove the entrenched right to judicial review. It did this by deleting the constitutional declaration that the judicial power of the Federation vested in the Judiciary and substituting in its place a declaration that the jurisdiction and power of the High Court was as vested by Federal law. Put another way, the amendment purported to yoke and suborn the Judiciary to Parliament. Constitutional supremacy as we knew it became Parliamentary Supremacy.This did not bode well as it encroached into the very essence of the Malaysian democratic framework, premised on the separation of powers and the independence of the Judiciary that entail and required. More so for the fact that the Barisan Nasional had, and still has, control of two-thirds of Parliament. This meant that laws ousting the jurisdiction and power of the Courts to inquire into particular areas of Executive function could be, and were in fact, created. For instance, the Internal Security Act has a provision (section 8B) that impedes the right of review over the decision of the Minister concerned to detain a person other than on technical grounds. What this means is, and this is the approach that has been taken by the Malaysian courts, that the decision by the Minister to detain someone in preventive detention is for all purposes and intents beyond challenge.Through this, the Executive, and as such the Barisan Nasional, and more particularly UMNO, immunized itself from effective and meaningful supervision. The foundations for arbitrary government were laid.(It should be noted however that though the Federal Court in Sugumar Balakrishnan gave effect to the notion of Parliamentary Supremacy, the Court of Appeal in Kok Wah Kuan more recently concluded that the Judiciary retains the jurisdiction to grant judicial review notwithstanding the amendment)A121(1A)The recently controversial Article 121(1A) was introduced at the same time in response to concerns raised by some quarters that the High Court was interfering with the affairs of the syariah courts.As I have said before, this provision in itself does not present any real problems. It merely states that what is within the jurisdiction of the syariah courts are not within the jurisdiction of the civil High Court. This is equally true of matters within the jurisdiction of the sessions or magistrates courts, or the native courts in East Malaysia.These courts are courts other than the ‘superior’ courts, a term used to described the judicial system created by the Constitution comprising of the High Court of West Malaysia, the High Court of Sabah and Sarawak, the Court of Appeal and the Federal Court. The other courts envisaged by the Constitution, including the subordinate courts (sessions and magistrates) are created through enacted law and not the Constitution directly. For this reason, the Constitution refers to the subordinate courts as ‘inferior courts’. Courts throughout the common law world have used this term to refer to courts of a similar nature. In Malaysia, the native court and the Industrial Court have been judicially referred to as ‘inferior courts’.The syariah courts stand on the same footing. They are created by the State Assembly, and Parliament where the Federal Territories are concerned, through enacted law. They are not created by the Constitution.One of the principal features of an inferior court is that it is subject to the supervisory powers of the High Court. This is more usually effected through a process known as judicial review. In judicial review, the general rule is that the supervising court is concerned with the process by which the inferior court came to its decision and not with the merits of the decision (other than where the merits are compromised by the compromising of the process by the inferior court. In testing the process, the High Court more usually considers whether the inferior court had the jurisdiction to make a decision over the matter in issue, gave all parties concerned an adequate right to be heard, other aspects of fairness were ensured, that all relevant factors were taken into consideration, that no irrelevant factors were taken into consideration, and that the decision was not unreasonable.Article 121(1A) did not oust the power of the High Court to carry out this supervisory process, if called upon to do so. More significantly, Article 121(1A) did not oust the jurisdiction of the High Court. It merely declared the state of play between the civil courts and the syariah courts. This means that Article 121(1A) was not intended to oust the jurisdiction of the High Court over matters of an ‘Islamic’ nature. Neither was it intended to provide a means by which matters in the syariah court were to be ‘shielded’ from supervisory scrutiny. The same questions were to be asked, starting with whether the matter in issue was one within the jurisdiction of the syariah court and could be decided in the way the syariah court was going to or did.As an illustration, consider the hypothetical situation of a non-muslim being convicted of an offence by the syariah court. This is clearly outside the jurisdiction of the syariah court as the syariah court only has jurisdiction over “persons professing the religion of Islam” (more on this later in this series). Article 121(1A) would no impede the exercise of the High Court’s power of judicial review to ensure that the conviction was quashed and the sentence not effected.In light of this, it is critical to appreciate how the jurisdiction of the syariah court is determined. For this purpose, it is necessary to understand what law is applied in Malaysia and how that law is made. Put very simply, the law that is applied in this country is enacted law.Being a Federal system, the legislature comprises of both the federal legislature, Parliament, and the state legislatures, the State Assemblies. There is a division of the areas in which the federal and state legislatures are empowered to make law. These areas are enumerated in a Federal List, a State List and a Concurrent List (matters which both legislatures can make law on certain conditions) which appear in the 9th Schedule to the Constitution.This means that unless and until law is made by Parliament or any of the State Assemblies, there is no law. This principle cuts across the board and includes within its ambit Islamic law, which is contained in the State List (Item 1). As such, it does not matter that a particular principle of Islamic law exists by virtue of the Al-Quran, the Hadith or the scholarly works of jurists, until such principle is codified into law by the legislature in a constitutional manner the principle is not applicable as law.Amongst the laws pertaining to matters of Islam that the State Assembly may make are laws providing for the constitution, Organisation and procedure of Syariah courts. Item 1 of the State List provides that these courts shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in Item 1. This translates into the jurisdiction of the syariah courts being created and vested by laws made in respect of matters contained in Item 1. A corollary to this is that until and unless such law is made, vesting the syariah courts with jurisdiction, there is no jurisdiction. Until jurisdiction is so vested, there is no question of the separation of jurisdiction contemplated under Article 121(1A) applying.The foregoing analysis is not controversial. Aspects of this analysis featured in several key decisions of the Supreme Court in the period before 1999, in particular those in the cases of Dalip Kaur, Habibullah, Tang Sung Moi and Sukma Dharmawan. These decisions mapped out the landscape admirably and with sufficient clarity so as to have given adequate guidance for future cases.The question that arises is in light of these decision and the settled principles relevant to issues arising out of the harmonizing of the syariah and civil court jurisdictions, what happened? The next part of this segment addresses this.MIS
Posted by Malik Imtiaz Sarwar at 1:10 PM
Labels: A121(1A), Federal Constitution, Islam, Judiciary, jurisdiction of courts, Latifah Mat Zin, Lina Joy, Malaysia

4 comments:
Anonymous said...
Hi MIS,How come no one is talking about http://thestar.com.my/news/story.asp?file=/2007/8/15/courts/18593150&sec=courtsDon't you think it is wrong for Syariah court to seize jurisdiction even though it maybe by consent?How could syariah court disolve a marriagiage which is not even it regognised to exist in the first place?LittleBird
August 17, 2007 12:25:00 PM MYT
Weng Tchung said...
Dear MIS:Just thought I'd direct your attention to the sub-paragraph A121(1A).The paragraph ends with 'The Mahatir' and seems to be accidentally left incomplete . Just thought I'd let you know.Regards,Weng
August 22, 2007 1:12:00 AM MYT
Malik Imtiaz Sarwar said...
Sorry for the delay in responding, I have been away. Thanks for the feed-back, Weng. Have made the correction.Little Bird, I think the syariah court got it wrong. This is one of the issues in the pending Subashini appeal. There are provisions in the state enactments that allow for 'confirmation' of divorces by the syariah courts. Some have argued that this gives power to dissolve civil marriages where one party converts to Islam. This was in fact argued on behalf of the Respondent in Subashini's case. My view is that only the civil court can dissolve the marriage seeing as how it was registered under civil law. This view not only makes legal sense but is also supported by the language of the provisions ('confirm' as opposed to 'dissolve' etc).Additionally, as was declared by the Federal Court in Latifah Mat Zin, non-muslims cannot be made the subject of proceedings in the syariah court. The divorce would have have to be granted 'inter-partes' (as between two parties). The Husband was not within jurisdiction.I can't blame the parties for taking the course they did, it got them a quick solution. As a lawyer though, I have to say that I do not think the syariah court has the jurisdiction and power to have granted the order.MIS
August 27, 2007 11:26:00 AM MYT
Anonymous said...
dear malik, may be time to consider (1)article 161E of the FC in relation to the high court sabah and sarawak and (2) to correct the historical error that the two states join malaysia. there was no malaysia then. how can they joined a non-existing entity. the three components of malaya, singapore and sabah together with sarawak formed yes formed a new nation called malaysia
May 21, 2008 3:53:00 PM MYT
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THE DOCTRINE OF CHECKS AND BALANCES

2008-10-21T19:37:00.000-07:00

Separation of powers is a political doctrine under which the executive, legislative and judicial branches of government are kept distinct, to prevent abuse of power. This US form of separation of powers is widely known as "checks and balances."
The principle of separation of powers traces its origins at least as far back as Aristotle's time. During the Age of Enlightenment, several philosophers, such as John Locke and James Harrington, advocated the principle in their writings, whereas others, such as Thomas Hobbes strongly opposed it. Montesquieu was one of the foremost supporters of separating the legislature, the executive and the judiciary. His writings considerably influenced the opinions of the framers of the United States Constitution.
Strict separation of powers did not operate in Britain, a country whose political structure served in most instances as a model for the government created by the US Constitution. In the UK, the King-in-Parliament (the King acting with the consent of the House of Lords and House of Commons) was the supreme lawmaking authority. The executive branch acted in the name of the King - it was known as "His Majesty's Government" - as did the judiciary. The King's Ministers were in most cases members of one of the two Houses of Parliament, and the Government needed to sustain a majority in the House of Commons. One minister, the Lord Chancellor, was at the same time the sole judge in the Court of Chancery and the presiding officer in the House of Lords. Thus, one may conclude that the three branches of British government often violated the strict principle of separation of powers, even though there were many occasions when the different branches of the government disagreed with each other.
Some US states did not observe a strict separation of powers in the 18th century. In New Jersey, the Governor also functioned as a member of the state's highest court and as the presiding officer of one house of the Legislature. The President of Delaware was a member of the Court of Appeals; the presiding officers of the two houses of the state legislature also served in the executive department as Vice Presidents. In both Delaware and Pennsylvania, members of the executive council served at the same time as judges. On the other hand, many southern states explicitly required separation of powers. Maryland, Virginia, North Carolina and Georgia all kept the branches of government "separate and distinct."
Contents[hide]
1 Separation of powers in the United States
1.1 Legislative power
1.2 Executive power
1.3 Judicial power
2 Checks and balances
2.1 Legislative
2.2 Executive
2.3 Judicial
3 Equality of the branches
4 Views on separation of powers
5 Recent Developments: Judicial Independence
6 See also
7 References
8 External links
//

[edit] Separation of powers in the United States

[edit] Legislative power

Congress has the sole power to legislate for the United States. Under the nondelegation doctrine, Congress may not delegate its lawmaking responsibilities to any other agency. In this vein, the Supreme Court held in the 1998 case Clinton v. City of New York that Congress could not delegate a "line-item veto" to the President, by which he was empowered to selectively nullify certain provisions of a bill before signing it. The Constitution Article I, Section 8; (and especially the necessary and proper clause as summation) gives all the Power to Congress. Congress has the exclusive power to legislate, to make laws and in addition to the enumerated powers it has all other powers vested in the government by the Constitution.
The President has the responsibility to preserve, protect and defend the Constitution and the Laws of the United States in much the same way as a vassal takes an oath of allegiance to his liege lord. He is delegated authority by and with the advice and consent of the Senate, but the Congress can never give its power away.
Where Congress does not make so great and sweeping a delegation of its authority, the Supreme Court has been less stringent. One of the earliest cases involving the exact limits of non-delegation was Wayman v. Southard (1825). Congress had delegated to the courts the power to prescribe judicial procedure; it was contended that Congress had thereby unconstitutionally clothed the judiciary with legislative powers. While Chief Justice John Marshall conceded that the determination of rules of procedure was a legislative function, he distinguished between "important" subjects and mere details. Marshall wrote that "a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details."
Marshall's words and future court decisions gave Congress much latitude in delegating powers. It was not until the 1930s that the Supreme Court held a delegation of authority unconstitutional. In a case involving the creation of the National Recovery Administration called A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), Congress could not authorize the President to formulate codes of "fair competition." It was held that Congress must set some standards governing the actions of executive officers. The Court, however, has deemed that phrases such as "just and reasonable," "public interest" and "public convenience" suffice.

[edit] Executive power

Executive power is vested in the President. The principal responsibility of the President is to "take care that the laws be faithfully executed." By using these words, the Constitution does not require the President to personally enforce the law; rather, officers subordinate to the President may perform such duties. It has been held that the Constitution, by empowering him to ensure the faithfull execution of laws , permits the President to terminate the appointment of an executive officer. Congress may not itself terminate such appointments, except by impeachment, or restrict the President's power to do the same. Nevertheless, the President's control does not extend to non-executive agencies. It was held that bodies such as the War Claims Commission, the Interstate Commerce Commission and the Federal Trade Commission—all quasi-judicial or three-legislative entities—were not subject to the President's whims.
Congress may not unilaterally restrain executive officials in the performance of their duties. In INS v. Chadha (1983), the Supreme Court struck down a law which authorized either House or Congress to veto an executive decision made by the Attorney General. Further rulings clarified the case; even both Houses acting together cannot veto executive rulings. Nevertheless, legislation may prescribe regulations governing executive officers. Legislation differs from a unilateral congressional veto in that the latter is not presented to the President for his approval (see checks and balances below).

[edit] Judicial power

See also: Article I and Article III tribunals and Jurisdiction stripping
Judicial power — the power to decide cases and controversies—is vested in the Supreme Court and inferior courts established by Congress. The judges must be appointed by the President with the advice and consent of the Senate, hold office for life and receive compensations that may not be diminished during their continuance in office. If a court's judges do not have such attributes, the court may not exercise the judicial power of the United States. Courts exercising the judicial power are called "constitutional courts."
Congress may create "legislative courts," which frequently take the form of quasi-judicial agencies or commissions whose members do not have the same security of tenure or compensation as the constitutional court judges. Legislative courts may not exercise the judicial power of the United States. In Murray's Lessee v. Hoboken Land & Improvement Co. (1856), the Supreme Court held that a legislative court may not decide "a suit at the common law, or in equity, or admiralty," as such a suit is inherently judicial. Legislative courts may only adjudicate "public rights" questions (cases between the government and an individual involving political determinations).

[edit] Checks and balances
Separation of powers is not absolute; it is instead qualified by the doctrine of checks and balances. James Madison wrote that the three branches "should not be so far separated as to have no constitutional control over each other." The system of checks and balances is designed to allow each branch to restrain abuse by each other branch.
Legislative
Executive
Judicial
Writes and enacts laws
Enacts taxes, authorizes borrowing, and sets the budget
Has sole power to declare war
May start investigations, especially against the executive branch
Often appoints the heads of the executive branch
Sometimes appoints judges
Ratifies treaties
May veto laws
May refuse to spend money allocated for certain purposes
Wages war (has operational command of the military)
Makes decrees or declarations (for example, declaring a state of emergency) and promulgates lawful regulations and executive orders
Often appoints judges
Has power to grant pardons to convicted criminals
Determines which laws apply to any given case
Determines whether a law is unconstitutional
Has sole power to interpret the law and to apply it to particular disputes
May nullify laws that conflict with a more important law or constitution
Determines the disposition of prisoners
Has power to compel testimony and the production of evidence
Enforces uniform policies in a top-down fashion via the appeals process, but gives discretion in individual cases to low-level judges. (The amount of discretion depends upon the standard of review, determined by the type of case in question.)
Polices its own members
Is frequently immune to arbitrary dismissal by other branches

[edit] Legislative
The Senate has the power to try impeachments. The compensation of executive officials and judges is determined by Congress, but Congress may not increase or diminish the compensation of a President, or diminish the compensation of a judge, during his term in office.

[edit] Executive
The President exercises a check over Congress through his power to veto bills, but Congress may override any veto except for a pocket veto by a two-thirds majority in each house. When the two houses of Congress cannot agree on a date for adjournment, the President may settle the dispute. Either house or both houses may be called into emergency session by the President. Finally, the Vice President serves as President of the Senate.
The President, as noted above, appoints judges with the Senate's advice and consent. He also has the power to issue pardons and reprieves. Such pardons are not subject to confirmation by either the House of Representatives or the Senate, or even to acceptance by the recipient.
The President is the civilian Commander in Chief of the Army and Navy of the United States. However, it is the Congress that has the power to raise, fund and maintain the armed forces, and to prescribe the laws and regulations under which the armed forces operate, such as the Uniform Code of Military Justice. Congress also has the sole power to declare war, and requires that all Generals and Admirals appointed by the President be confirmed by a majority vote of the Senate before they can assume their office.

[edit] Judicial
Courts check both the executive branch and the legislative branch through judicial review. This concept is not written into the Constitution, but was envisioned by many of the Constitution's Framers (for example, the Federalist Papers mention it). The Supreme Court established a precedent for judicial review in Marbury v. Madison. There were protests by some at this decision, borne chiefly of political expediency, but political realities in the particular case paradoxically restrained opposing views from asserting themselves. For this reason, precedent alone established the principle that a court may strike down a law it deems unconstitutional.
A common misperception is that the Supreme Court is the only court that may determine constitutionality; the power is exercised even by the inferior courts. But only Supreme Court decisions are binding across the nation. Decisions of a Court of Appeals, for instance, are binding only in the circuit over which the court has jurisdiction.
The power to review the constitutionality of laws may be limited by Congress, which has the power to set the jurisdiction of the courts. The only constitutional limit on Congress' power to set the jurisdiction of the judiciary relates to the Supreme Court; the Supreme Court may exercise only appellate jurisdiction except in cases involving states and cases affecting foreign ambassadors, ministers or consuls.
The Chief Justice presides in the Senate during a President's impeachment trial. The rules of the Senate, however, generally do not grant much authority to the presiding officer. Thus, the Chief Justice's role in this regard is a limited one.

[edit] Equality of the branches
The Constitution does not explicitly indicate the pre-eminence of any particular branch of government, and on the contrary, James Madison wrote in Federalist 51, regarding the ability of each branch to defend itself from actions by the others, that "it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates."
One may accurately claim that the judiciary has historically been the weakest of the three branches. Its power to exercise judicial review—its sole meaningful check on the other two branches—was itself doubted by many. In fact, the Court exercised its power to strike down an unconstitutional Act of Congress only twice prior to the Civil War: in Marbury v. Madison (1803) and Dred Scott v. Sandford (1857). While the Supreme Court has since then made more extensive use of judicial review, it cannot be said to have as much political power as either Congress or the President.
The first six Presidents of the United States did not make extensive use of the veto power: George Washington only vetoed two bills, James Monroe one, and John Adams, Thomas Jefferson and John Quincy Adams none. James Madison, a firm believer in a strong executive, vetoed seven bills. None of the first six Presidents, however, used the veto to direct national policy. It was Andrew Jackson, the seventh President, who was the first to use the veto as a political weapon. During his two terms in office, he vetoed twelve bills—more than all of his predecessors combined. Furthermore, he defied the Supreme Court in enforcing the policy of Indian removal; he famously said, "John Marshall has made his decision. Now let him enforce it!"
Some of Jackson's successors made no use of the veto power, while others used it intermittently. It was only after the Civil War that Presidents began to use the power to truly counterbalance Congress. Andrew Johnson's struggles with Congress are particularly notable. Johnson, a Democrat, vetoed several Reconstruction bills passed by the "Radical Republicans." Congress, however, managed to override fifteen of Johnson's twenty-nine vetoes. Furthermore, it attempted to curb the power of the Presidency by passing the Tenure of Office Act. The Act required Senate approval for the dismissal of senior Cabinet officials. When Johnson deliberately violated the Act, which he felt was unconstitutional (Supreme Court decisions later vindicated such a position), the House of Representatives impeached him; he was acquitted in the Senate by one vote.

Grover Cleveland worked to restore power to the Presidency after Andrew Johnson's impeachment.
Johnson's impeachment was perceived to have done great damage to the Presidency, which came to be almost subordinate to Congress. Some believed that the President would become a mere figurehead, with the Speaker of the House of Representatives becoming a de facto Prime Minister. Grover Cleveland, the first Democratic President following Johnson, attempted to restore the power of his office. During his first term, he vetoed over four hundred bills—twice as many bills as his twenty-one predecessors combined. He also began to suspend bureaucrats who were appointed as a result of the patronage system, replacing them with more "deserving" individuals. The Senate, however, refused to confirm many new nominations, instead demanding that Cleveland turn over the confidential records relating to the suspensions. Cleveland steadfastly refused, asserting, "These suspensions are my executive acts ... I am not responsible to the Senate, and I am unwilling to submit my actions to them for judgment." Cleveland's popular support forced the Senate to back down and confirm the nominees. Furthermore, Congress finally repealed the controversial Tenure of Office Act that had been passed during the Johnson Administration. Thus, Cleveland's Administration marked the end of Presidential subordination.
Several twentieth-century Presidents have attempted to greatly expand the power of the Presidency. Theodore Roosevelt, for instance, claimed that the President was permitted to do whatever was not explicitly prohibited by the law—in direct contrast to his immediate successor, William Howard Taft. Franklin Delano Roosevelt held considerable power during the Great Depression. Congress had granted Franklin Roosevelt sweeping authority; in Panama Refining v. Ryan, the Court for the first time struck down a Congressional delegation of power as violative of the doctrine of separation of powers. The aforementioned Schechter Poultry Corp. v. United States, another separation of powers case, was also decided during Franklin Roosevelt's Presidency. In response to many unfavorable Supreme Court decisions, Roosevelt introduced a “Court Packing” plan, under which more seats would be added to the Supreme Court for the President to fill. Such a plan (which was defeated in Congress) would have seriously undermined the judiciary's independence and power.
Richard Nixon—whose Presidency is sometimes described as "Imperial" (see Imperial Presidency)—used national security as a basis for his expansion of power. He asserted, for example, that "the inherent power of the President to safeguard the security of the nation" authorized him to order a wiretap without a judge's warrant. Nixon also asserted that "executive privilege" shielded him from all legislative oversight; furthermore, he impounded federal funds (that is to say, he refused to spend money that Congress had appropriated for government programs). In the specific cases aforementioned, however, the Supreme Court ruled against Nixon, especially since a criminal investigation was ongoing as to the Watergate tapes, even though they acknowledged the general need for executive privilege. Since then, Nixon's successors have sometimes asserted that they may act in the interests of national security or that executive privilege shields them from Congressional oversight. Though such claims have in general been more limited than Nixon's, one may still conclude that the Presidency's power has been greatly augmented since the eighteenth and nineteenth centuries.
The rise of the presidency was also aided by the rise of a modern media establishment. In an era of limited attention spans and shortened time for television news, it was easier for journalists to focus on the actions of one centralized, decisive figure—the President—than on the actions of a loose, decentralized, milling chamber of equals, like the Senate or House.[citation needed]

[edit] Views on separation of powers
The division of powers in the United States has often been criticized as promoting inefficiency; when different parties hold Congress and the Presidency, a lack of co-operation may deadlock the legislative process. English author Walter Bagehot famously criticized the U.S. system on these grounds in his 1867 book The English Constitution, specifically noting the events during the administration of Andrew Johnson. Several individuals have proposed that a parliamentary system—in which the same party or coalition of parties controls both the executive and the legislature—would function more efficiently. Advocates of a parliamentary system have included President Woodrow Wilson. In comparing the English parliamentary system with the American system, Bagehot wrote:
"The English Constitution, in a word, is framed on the principle of choosing a single sovereign authority, and making it good: the American, upon the principle of having many sovereign authorities, and hoping that the multitude may atone for their inferiority."
Many political scientists believe that separation of powers is a decisive factor in what they see as a limited degree of American exceptionalism. In particular, John Kingdon made this argument, claiming that separation of powers contributed to the development of a unique political structure in the United States. He attributes the unusually large number of interest groups active in the United States, in part, to the separation of powers; it gives groups more places to try to influence, and creates more potential group activity. He also cites its complexity as one of the reasons for lower citizen participation.

[edit] Recent Developments: Judicial Independence
Separation of powers has again become a current issue of some controversy concerning debates about Judicial independence and political efforts to increase the accountability of judges for the quality of their work, avoiding conflicts of interest, and charges that some judges allegedly disregard procedural rules, statutes, and higher court precedents.
It is said on one side of this debate that separation of powers means that powers are shared among different branches. That is, no one branch may act unilaterally on issues (other than perhaps minor questions) but must obtain some form of agreement across branches. That is, it is argued that "checks and balances" apply to the Judicial Branch as well as to the other branches.
It is said on the other side of this debate that separation of powers means that the Judiciary is independent and untouchable within the Judiciaries' sphere. In this view, separation of powers means that the Judiciary alone holds all powers relative to the Judicial function and the Legislative and Executive Branches may not interfere in any aspect of the Judicial Branch.
An example of the first view is the regulation of attorneys and judges, and the establishment of rules for the conduct of the courts, by the Congress and in the states the legislatures. Although in practice these matters are delegated to the Supreme Court, the Congress holds these powers and delegates them to the Supreme Court only for convenience in light of the Supreme Court's expertise, but can withdraw that delegation at any time.
An example of the second view at the State level is found in the view of the Florida Supreme Court that only the Florida Supreme Court may license and regulate attorneys appearing before the courts of Florida and only the Florida Supreme Court may set rules for procedures in the Florida courts. The State of New Hampshire also follows this system.

[edit] See also
Constitution of the Roman Republic
Commander-in-Chief
Fourth branch of government
Signing statement
The Imperial Presidency
Unitary executive theory

SEPERATION OF POWER

2008-10-21T19:32:00.000-07:00

Separation of Powers
Understanding that a government's role is to protect individual rights, but acknowledging that governments have historically been the major violators of these rights, a number of measures have been derived to reduce this likelihood. The concept of Separation of Powers is one such measure.
The premise behind the Separation of Powers is that when a single person or group has a large amount of power, they can become dangerous to citizens. The Separation of Power is a method of removing the amount of power in any group's hands, making it more difficult to abuse.
The US government has a partial Separation of Powers. It distinguishes between three groups. The Executive, the Legislative, and the Judicial. They are distinguished by the kind of power they wield. The Legislative branch has the ability to enact laws. The Executive branch has the ability to see those laws enforced. The Judicial branch has the ability to decide the guilt of a party, allowing punishment.
If a single group shared all three powers, they would have unlimited power. They could specify any law, arresting the 'criminal', and then decide that they are guilty. Through the Separation of Powers, though, no group can have more than one of these powers. Only through the combined use of all three can the government use force. By requiring the consent of all three branches, it increases the likelihood that the government will not initiate violent force.
There are many different ways to separate the powers of a government. The US, for instance, requires those that declare war to be different from those that execute the war. Only by combining the two can a war be declared. Also, the Legislative branch is further broken into two, each with separate responsibilities and powers. By any number of possible separations, a government can be made safer for its citizens.

THE DOCTRINE OF THE SEPERATION OF POWER

2008-10-21T18:41:00.000-07:00

Separation of powers, a term ascribed to French Enlightenment political philosopher Baron de Montesquieu,[1][2] is a model for the governance of democratic states, having its origins in an ancient idea of mixed government. The model is also known as trias politica. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the uncodified Constitution of the Roman Republic. Under this model, the state is divided into branches or estates, each with separate and independent powers and areas of responsibility. The normal division of estates is into an executive, a legislature, and a judiciary.
Proponents of separation of powers believe that it protects liberty and democracy, avoiding tyranny. Opponents of separation of powers question whether it indeed does protect liberty, pointing out that it may slow down the process of governing (through gridlock and other means), promote excesses of executive power and unaccountability, and tend to marginalize the legislature.[3]
Parliamentary democracies do not have distinct separation of powers. The executive (often a prime minister) and the Cabinet ("government") are drawn from the legislature (parliament). This is the principle of responsible government. However, although the legislative and executive branches are connected, in parliamentary systems there is usually a independent judiciary.
No democratic system exists with an absolute separation of powers or an absolute lack of separation of powers. Nonetheless, some systems are clearly founded on the principle of separation of powers, while others are clearly based on a fusion of powers.
Contents[hide]
1 Origins in the Constitution of the Roman Republic
2 Montesquieu's tripartite system
3 Separation of powers vs. fusion of powers
4 Other branches
4.1 Auditory
4.2 Civil examination
4.3 Data
4.4 Electoral
4.5 The people
4.6 Independent executive agencies
4.6.1 External links
4.7 The press
4.7.1 The press around the world
5 Various models around the world
5.1 Australia: three branches
5.2 People's Republic of China
5.3 Costa Rica: five branches
5.4 European Union
5.5 France
5.6 Germany: six branches
5.7 Taiwan (Republic of China): five branches
5.8 United Kingdom
5.9 United States: three branches
5.9.1 Checks and balances
5.9.2 Maintaining balance
5.9.3 State and local governments
5.10 Venezuela: five branches
6 Criticisms
7 Related restraint-of-power concepts
8 See also
9 Notes
10 References
11 External links
//

[edit] Origins in the Constitution of the Roman Republic
The government of the Roman Republic divided power into three independent branches: the senate, the Legislative Branch, and the Executive Branch. The Senate made military and foreign policy, and directed domestic policy. It also issued orders to executive branch officials, which were usually obeyed. The Senate was not a legislative body and it did not pass laws. The Legislative Branch had two primary functions. First, it elected all executive officials. Election to such office usually meant automatic membership in the senate (senate terms were for life). The second major function of the legislative branch was to pass domestic laws. These legislative assemblies were not bodies of elected representatives. Rather, they were bodies of citizens, participating in a direct-democracy legislative system. The laws (Latin: lex) passed by these assemblies were called plebiscites, the modern equivalent of popular referendums. Members of the Executive Branch commanded the military, enforced the laws, and acted as high judges. A network of checks and balances existed between the three branches. This system of checks and balances was designed to prevent the accumulation of too much power into the hands of an individual.

[edit] Montesquieu's tripartite system

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Montesquieu described division of political power among an executive, a legislature, and a judiciary. He based this model on the British constitutional system, in which he perceived a separation of powers among the monarch, Parliament, and the courts of law. Subsequent writers have noted that this was misleading, because Great Britain had a very closely connected legislature and executive, with further links to the judiciary (though combined with judicial independence). But in Montesquieu's time, the political connection between Britain's Parliament and the monarch's Ministry was not as close as it would later become.
Montesquieu did specify that "the independence of the judiciary has to be real, and not apparent merely".[4] "The judiciary was generally seen as the most important of powers, independent and unchecked", and also considered the least dangerous.[4] Some politicians decry judicial action against them as a "criminalization" of their behavior, but such "criminalization" may be seen as a response to corruption, collusion, or abuse of power by these politicians.[5]

[edit] Separation of powers vs. fusion of powers
In democratic systems of governance, a continuum exists between "Presidential government" and "Parliamentary government". "Separation of powers" is a feature more inherent to presidential systems, whereas "fusion of powers" is characteristic of parliamentary ones. "Mixed systems" fall somewhere in between, usually near the midpoint; the most notable example of a mixed system is France's (current) Fifth Republic.
In fusion of powers, one estate (invariably the elected legislature) is supreme, and the other estates are subservient to it. In separation of powers, each estate is largely (although not necessarily entirely) independent of the others. Independent in this context means either that selection of each estate happens independently of the other estates or at least that each estate is not beholden to any of the others for its continued existence.
Accordingly, in a fusion of powers system such as that of the United Kingdom, first described as such by Walter Bagehot, the people elect the legislature, which in turn "creates" the executive. As Professor Cheryl Saunders writes, "...the intermixture of institutions [in the UK] is such that it is almost impossible to describe it as a separation of powers."[6] In a separation of powers, the national legislature does not select the person or persons[7] of the executive; instead, the executive is chosen by other means (direct popular election, electoral college selection, etc.) In a parliamentary system, when the term of the legislature ends, so too may the tenure of the executive selected by that legislature. Although in a presidential system the executive's term may or may not coincide with the legislature's, their selection is technically independent of the legislature. However, when the executive's party controls the legislature, the executive often reaps the benefits of what is, in effect, a "fusion of powers". Such situations may thwart the constitutional goal or normal popular perception that the legislature is the more democratic branch or the one "closer to the people", reducing it to a virtual "consultative assembly", politically or procedurally unable—or unwilling—to hold the executive accountable in the event of blatant, even boldly admitted, "high crimes and misdemeanors."

[edit] Other branches

[edit] Auditory
With the title Comptroller General, Auditor General or Comptroller and Auditor General, the European Union's Court of Auditors and Taiwan's Control Yuan are individual or bodies of independent ombudsmen. They are often independent of the other branches of government.
Their purpose is to audit government expenditure and general activity.

[edit] Civil examination
Sun Yat Sen proposed a branch of government based on the Imperial examination system used in China. The "Examination Yuan" (Traditional Chinese: 考試院; pinyin: Kǎoshì Yuàn), as it is called in Taiwan, is in charge of validating the qualification of civil servants. This structure has been implemented in the Republic of China.

[edit] Data
In Germany, as in the rest of the EU, there is a notion of data protection. In Germany it is represented by its own commissioners. Additionally there is the BStU dealing with the Stasi archives and the German Federal Archives, each providing access to data only in accordance with special laws.

[edit] Electoral
Costa Rica's Supreme Elections Tribunal is a branch of government that manages elections. Similar independent institutions exist in many other democratic countries, however they are not seen as a branch of government. In many countries, these are known as Electoral Commissions.

[edit] The people
Many philosophers and political scientists believe that democratic governments are created and constitutions exist to serve the people. The people have their own system of checks and balances by electing the legislative and executive branches. The government also draws its power directly from the people. Without the people, there is no government, just as without the legislative branch, there can be no judicial branch.
In the Constitution of Venezuela, the "citizen's power" is a formal branch of government, though it acts like auditors' branches in other jurisdictions.
See also:
Direct democracy
Initiative
Referendum
Recall election

[edit] Independent executive agencies
The federal executive of the United States is a very large bureaucracy, and due to civil service rules, most middle- and low-level government workers do not change when a new President is elected. (New high-level officials are usually appointed and must be confirmed by the Senate.) Moreover, semi-independent agencies (such as the Federal Reserve or the Federal Communications Commission) may be created within the executive by the legislature. These agencies exercise legally defined regulatory powers. High-level regulators are appointed by the President and confirmed by the legislature; they must follow the law and certain lawful executive orders. But they often sit for long, fixed terms and enjoy reasonable independence from other policy makers. Because of its importance to modern governance, the regulatory bureaucracy of the executive is sometimes referred to as a "fourth" branch of government.
This separation is even more pronounced in the United Kingdom. The separation was a prominent element of the Yes Minister comedy television series.

[edit] External links
U.S. contractors becoming a fourth branch of government by Scott Shane and Ron Nixon
The Fifth Branch of Government by Joe Wortham

[edit] The press
The press has been described as a "fourth power" because of its considerable influence over public opinion (which in turn affects the outcome of elections), as well as its indirect influence in the branches of government by, for example, its support or criticism of pending legislation or policy changes. It has never, however, been a formal branch of government; nor have political philosophers suggested that it become one.
The press is also sometimes referred to as the Fourth Estate, a term of French origin, which is not related to the modern three-branch system of government.
Originally, the First Amendment of the United States Constitution explicitly guaranteed freedom of the press only against interference by the federal government. Later this right was extended by the United States Supreme Court in the Incorporation Cases to cover state and local governments.
Traditionally, the press has been the "voice of the people", keeping government somewhat in check. Examples of this were the Watergate scandal, where two Washington Post reporters exposed corruption and coverup at the highest levels of government, or the Adscam (Sponsorship scandal) which was uncovered by the press in Canada. This exposure caused the resignation, firing, or prosecution of many officials.
There exist situations where the press can affect public opinion in ways that are contrary to the spirit of separation of powers. One of the most compelling of these situations is when the state controls the content and distribution of the information disseminated by the press. However, even if the press is immune to censorship and compulsion from the government, the controlling entity of a press association or media outlet must almost always edit, and may editorialize, providing opportunities to affect public opinion in ways that may contradict public interest. In all cases, the "voice of the people" (as perceived by some) is modified by the opinions of those producing the stories.

[edit] The press around the world
Main articles: Freedom of the press and public broadcasting
Freedom of the reporting media is generally considered to be essential for the perpetuation of democratic governments, and it is found in all strong democracies, regardless of the organizational principle of the "branches" of government.
Many governments financially support public broadcasting in some way, but in strong democracies these media outlets can enjoy wide editorial latitude.
An independent press acts as a powerful check on all forms of government by providing information about governmental activities to the public. There are weighty arguments to suggest that the press is the external 4th branch which continuously scrutinizes a government's operations, with David Blunkett's two resignations as both Home Secretary(2004) and Secretary of State for Work and Pensions (2005) as particular examples.

[edit] Various models around the world
Constitutions with a high degree of separation of powers are found worldwide. The UK system is distinguished by a particular entwining of powers. India's democratic system also offers a clear separation of power under Lok Sabha (lower house of parliament), Rajya Sabha (upper house of Parliament), and the President of India, who overlooks independent governing branches such as the Election commission and the Judiciary. Under the Indian constitution, just as in the British system, the Prime Minister is a head of the governing party and functions through a selected group of ministers. In Italy the powers are completely separated, even if Council of Ministers need the vote of confidence from both chambers of Parliament, that's however formed by a wide number of members (almost 1,000).
Countries with little separation of power include New Zealand and Canada. Canada makes limited use of separation of powers in practice, although in theory it distinguishes between branches of government.
Complete separation-of-powers systems are almost always presidential, although theoretically this need not be the case. There are a few historical exceptions, such as the Directoire system of revolutionary France. Switzerland offers an example of non-Presidential separation of powers today: It is run by a seven-man executive branch, the Federal Council. However, some might argue that Switzerland does not have a strong separation of powers system, as the Federal Council is appointed by parliament (but not dependent on parliament), and the judiciary has no power of review.

[edit] Australia: three branches
Main article: Separation of powers in Australia

[edit] People's Republic of China
Main article: Government of the People's Republic of China

[edit] Costa Rica: five branches
After eight years of social conflict, the question of who would lead Costa Rica and which transformational model the State would use was decided by who killed the president. A constituent assembly followed and drew up a new constitution, approved in 1949. This document was an edit of the constitution of 1871, as the constituent assembly rejected more radical corporatist ideas proposed by the ruling junta. Nonetheless, the new constitution increased centralization of power at the expense of municipalities and eliminated provincial government altogether.
It established the three supreme powers as the legislature, executive, and judicial branches, but also created two other autonomous state organs that have equivalent power but not equivalent rank. The first is the Supreme Elections Tribunal (electoral branch) which controls elections and makes unique, unappealable decisions on their outcomes.
The second is the office of the Comptroller General (auditory branch), an autonomous and independent organ nominally subordinate to the unicameral legislative assembly. All budgets of ministries and municipalities must pass through this agency, including the execution of budget items such as contracting for routine operations. The Comptroller also provides financial vigilance over government offices and office holders, and routinely brings actions to remove mayors for malfeasance, firmly establishing this organization as the fifth branch of the Republic.

[edit] European Union
The branches of the European Union are slightly mixed due to the complex nature of the EU's design. There are five institutions of the European Union. The functioning of the EU is split into intergovernmental and supranational spheres (see three pillars of the European Union). In intergovernmental matters, most power is concentrated in the Council of the European Union - giving it the characteristics of an normal international organization. Here, all power at EU level is in one branch. In the latter there are four main actors. The European Commission acts as an independent executive which is appointed by the Council. The European Parliament is one half of the legislative branch and is directly elected. The Council itself acts both as the second half of the legislative branch and also holds some executive functions (some of which are exercised by the related European Council in practice). The European Court of Justice acts as the independent judicial branch, interpreting EU law and treaties. The remaining institution, the European Court of Auditors, is an independent auditory authority (due to the sensitive nature of fraud in the EU).
European Commission - executive
European Parliament - legislative
Council of the European Union - legislative and executive
European Court of Justice - judicial
European Court of Auditors - auditory

[edit] France
Main article: Government of France

[edit] Germany: six branches
The six main bodies enshrined in the Basic Law for the Federal Republic of Germany are:
Federal President (Bundespräsident)
Federal Cabinet (Bundesregierung) - executive
Federal Diet (Bundestag) & Federal Council (Bundesrat) - legislative
Federal Assembly (Bundesversammlung) - presidential electoral college
Federal Constitutional Court (Bundesverfassungsgericht)
There is also a judicial branch made up of five supreme courts, state (Länder / Bundesländer) based courts beneath them, and a rarely used senate of the supreme courts.

[edit] Taiwan (Republic of China): five branches
Some countries take the doctrine further than the three-branch system. The politics of Taiwan, for example, has five branches: the Executive Yuan, Legislative Yuan, Judicial Yuan, Control Yuan (auditory branch), and Examination Yuan.
Due in part to the Republic's youth, the relationship between its executive and legislative branches are poorly defined. An example of the problems this causes is the near complete political paralysis that results when the president, who has neither the power to veto nor the ability to dissolve the legislature and call new elections, cannot negotiate with the legislature when his party is in the minority. [2]

[edit] United Kingdom

This section may require cleanup to meet Wikipedia's quality standards.Please improve this article if you can. (April 2007)
Although the principle of separation of power plays a role in the United Kingdom's constitutional doctrine, the UK constitution is often described as having "a weak separation of powers". For example, in the United Kingdom, the executive forms a subset of the legislature, as does—to a lesser extent—the judiciary. The Prime Minister, the chief executive, must by convention be a Member of the House of Commons and can effectively be removed from office by a simple majority vote. Furthermore, while the courts in Britain are undoubtedly amongst the most independent in the world, the Law Lords, who are the final arbiters of judicial disputes in the UK, sit simultaneously in the House of Lords, the upper house of the legislature, although this arrangement will cease in 2009 when the Supreme Court of the United Kingdom comes into existence. Furthermore, because of the existence of Parliamentary sovereignty, while the theory of separation of powers may be studied in Britain, a system such as that of the UK is more accurately described as a "fusion of powers."
The development of the British constitution, which is not written down in one document, is based on this fusion in the person of the Monarch, who has a formal role to play in the legislature (Parliament, which is where legal and political sovereignty lies, is the Crown-in-Parliament, and is summoned and dissolved by the Queen who must give her Royal Assent to all Bills so that they become Acts), the executive (the Queen appoints all ministers of Her Majesty's Government, who govern in the name of the Crown) and the judiciary (the Queen, as the fount of justice, appoints all senior judges, and all public prosecutions are brought in her name).
The British legal system is based on common law traditions which requires:
Police or regulators cannot initiate complaints under criminal law but can only investigate (prosecution is mostly reserved for the Crown Prosecution Service), which prevents selective enforcement, e.g. the 'fishing expedition' which is often specifically forbidden.
Prosecutors cannot withhold evidence from attorneys for the defendant; to do so results in mistrial or dismissal. Accordingly, their relation to police is no advantage.
Defendants convicted can appeal, but no new evidence can usually be introduced, restricting the power of the court of appeal to the process of law applied.

[edit] United States: three branches
Main article: Separation of powers under the United States Constitution
In the United States Constitution Article I Section 8 places all the power of the government in the Congress which makes all the laws. Since the Constitution was written the Executive and Judicial branches have attempted to place checks and balances on the power of Congress. The Supreme Court established the implication of [Judicial review] in Marbury vs Madison.[8] The federal government refers to the branches as "branches of government", while some systems use "government" to describe the executive. The Executive branch has attempted to ursurp power from Congress arguing for [Separation of powers] to include being the Commander in Chief of a standing army since the Civil war, executive orders, emergency powers and security classifications since WWII, national security, signing statements, and now the concept of a unitary executive .

[edit] Checks and balances
To prevent one branch from becoming supreme, and to induce the branches to cooperate, governance systems that employ a separation of powers need a way to balance each of the branches. Typically this was accomplished through a system of "checks and balances", a term which, like separation of powers itself, is specifically credited to Montesquieu. Checks and balances in the government of the United States include various procedural rules that allow one branch to limit another, such as the authority of the president to veto legislation passed by Congress, or the power of Congress to alter the composition and jurisdiction of the federal courts.
Legislative
Executive
Judicial
Makes all the laws.
Controls all the money; taxes, borrows, and sets the budget.
Has sole power to declare war.
Oversees, investigates, and makes the rules for the government and its officers.
Appoints the heads of the executive branch.
Confirms Supreme Justice appointments.
Ratifies treaties.
Preserves protects and defends the Constitution
Faithfully executes the laws of the United States
Executes the instructions of Congress
May veto laws but the veto may be overridden by Congress by a 2/3 majority.
Executes the spending authorized by Congress
Executes the instructions of Congress when it declares war or makes rules for the military
Declares states of emergency and publishes regulations and executive orders
Appoints judges with the advice and consent of the Senate
Has the power to grant pardons for crimes against the United States
Determines which jurisdiction any given case falls under
Judges when a law is unconstitutional
Has the responsibility to administer Constitutional law and to apply it to constitutional disputes
Determines the disposition of prisoners
May legally compel testimony and the production of evidence as the law provides.
Judges and competently administers uniform policies via the appeals process, but gives discretion in individual cases to low-level judges. (The amount of discretion depends upon the standard of review, determined by the type of case in question.)
Oversees and administers members of the judiciary
Is subject to impeachment by Congress

[edit] Maintaining balance
The theoretical independence of the executive and legislative branches is partly maintained by the fact that they are separately elected and are held directly accountable to the public. There are also judicial prohibitions against certain types of interference in each others' affairs. (See "separation of powers" cases in the List of United States Supreme Court cases.) Judicial independence is maintained by life appointments of judges, with voluntary retirement, and a high threshold for removal by the legislature. In recent years, there have been accusations that the power to interpret the law is being misused (judicial activism) by some judges in the US. In the checks and balances system, the judicial branch has the right to say that something is unconstitutional, like a law or a bill (Credited to an opinion piece by Chief Justice John Marshall presiding over the case of Marbury v. Madison (1803).)
The legal mechanisms constraining the powers of the three branches depend a great deal on the sentiment of the people. A common perception is that popular support establishes legitimacy and makes possible the actual implementation of legal authority. National crises (such as the Civil War, the Great Depression, pre-Pearl Harbor World War II, the Vietnam War) have been the times at which the principle of separation of powers has been most endangered, either through official "misbehavior" or through the willingness of the public to sacrifice such principles if more pressing problems are solved. The system of checks and balances is also self-reinforcing. Potential abuse of power may be deterred, and the legitimacy and sustainability of any power grab is hindered by the ability of the other two branches to take corrective action; though they still must actually do so, therefore accountability is not automatic. This is intended to reduce opportunities for tyranny sometimes.
However, as James Madison wrote in Federalist No. 51 regarding the ability of each branch to defend itself from actions by the others, "But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates." Bicameralism was, in part, intended to reduce the relative power of the legislature by turning it against itself, by having "different modes of election and different principles of action." (This is one of the arguments against the popular election of Senators, which was instituted by the Seventeenth Amendment.) But when the legislature is unified, it can obtain dominance over the other branches.

[edit] State and local governments
The American states mirror the executive/legislative/judicial division of the federal government. Major cities tend to do so as well, but the arrangements of local and regional governments vary widely. Because the judicial branch is often a part of a state or county government, the geographic jurisdiction of local judges is often not coterminous with municipal boundaries.
In many American states and local governments, executive authority and law enforcement authority are separated by allowing citizens to directly elect public prosecutors (district attorneys and state attorneys-general). In some states, judges are also directly elected.
Many localities also separate special powers from their executive and legislative branches through the direct election of sheriffs, school boards, transit agency boards, park commissioners, etc.
Juries (groups of randomly selected citizens) also have an important role in the checks-and-balances system. They have the sole authority to not only determine the facts in most criminal and civil cases, but to judge the law, acting as a powerful buffer against arbitrary enforcement by the executive and judicial branches. In many jurisdictions they are also used to determine whether or not a trial is warranted, and in some places Grand Juries have independent investigative powers with regard to government operations.

[edit] Venezuela: five branches
Main article: Constitution of Venezuela
The constitution establish that the government of Venezuela has five branches: the executive, the legislature, the judiciary, an electoral branch, and a citizen's branch that acts as an auditor.

[edit] Criticisms

This article or section contains weasel words, vague phrasing that often accompanies biased or unverifiable information. Such statements should be clarified or removed. (December 2007)
It can be argued that there is no natural distinction between executive and legislative forms of government: legislation that is passed must always be executed, and much executive action requires new laws. As such, the division can be said to be an artificial one. This is borne out by the fact that there is currently no constitutional system which has a complete separation of powers where there is a distribution of the three functions among three independent organs with no overlapping or cross-coordination. Some of the early American States and the French Constitution of 1791 tried to enforce this doctrine strictly, but they failed. Instead, most constitutions give slightly overlapping powers to each branch, such as the US president's ability to veto legislation, or the power of judicial appointment.
Some observers believe that no obvious case exists in which such instability was prevented by the separation of powers. In parliamentary systems such as the United Kingdom the three "powers" are not separated (although the judiciary is independent). However, this has not threatened British stability, because the strong tradition of parliamentary sovereignty serves the purpose of limiting executive power.
In contrast, many countries which have adopted separation of powers (especially in Latin America) have suffered from instability (coups d'etat, military dictatorships, civil war and unrest, etc). If the separated executive is granted strong powers, it may well encourage instability, because it is less consensus-oriented than a parliamentary system, and because it inures the population and political elite to a the influence of a dominant leader. In times of instability, competing political groups can become obsessed with controlling the executive office, and it is often the loss of a presidential election which triggers greater instability. In a presidential system, there can only be one winning party, and all others fail entirely to gain power. In contrast, a parliamentary system can allow all political groups to have some share in control of the executive by participating in a coalition.
Alternatively, if the executive branch is granted few powers, there is the danger of political gridlock. When the executive cannot control or cannot operate alongside the legislature, then government action to solve society's problems can be limited.
Political scientists have also noted the tendency for separation-of-power systems, especially those with strong executives, to develop into two-party systems[citation needed]. As the executive is as a "winner-take-all" position, voters and lobby groups tend to adopt a strategy of supporting their preferred choice from the two leading candidates, the perception being that a vote or donation to a third-party candidate is a waste. As the executive is usually considered the most important position in government, members of the legislature will coalesce into groups supporting the two dominant executive candidates.
The categories of the functions and corresponding powers of government are inclined to become blurred when it is attempted to apply them to the details of a particular constitution. Some hold that the true distinction lies not in the nature of the powers themselves, but rather in the procedure by which they are exercised.
Sometimes systems with clearly defined separation of powers are difficult for the average person to understand, resulting in a nebulous political process and leading to a lack of engagement. Proponents of parliamentary systems claim that they make it easier to understand how "politics is done" by providing a clearer view of who does what, who is responsible for what, and who is to blame. This is important when it comes to engaging the people in political debate and increasing citizens' interest and participation in politics. However, for a parliamentary system to work effectively, institutional arrangements such as fair electoral laws, freedom of the press, independent courts, due process, and the independence of the Houses of Parliament must be so designed as to prevent executive supremacy over the legislative and judicial branches while also encouraging a culture of public debate, open government, accountable office holders, and policy contest-ability and compromise, rather than a culture of "winner takes all" political domination.

[edit] Related restraint-of-power concepts
Federalism, also known as vertical separation of powers — Prevents abuse by dividing governing powers, usually by separating municipal, provincial, and national governments. See also subsidiarity.
Rule of law - Prevents arbitrary exercise of the executive power, preserves general and minority rights, and promotes stability and predictability.
Democracy and civil society - Attempts to constrain elected branches of government to act in the public interest, not in self-interest.
Separation of church and state or Laïcité - Ensures freedom of religion by preventing government interference in its practice. Also constrains the power of government by maintaining freedom of conscience and belief.
Civilian control of the military - Helps prevent dictatorship that otherwise might occur through military rule.
In some systems, an independent central bank.
Separation of duties in organizations.
Independent Civil Service.
Negarchy - The self-interests of separate powers canceling one another via indirect yet interdependent means.
Multicameralism - The division of legislature into separate autonomous chambers.

[edit] See also
Constitution of the Roman Republic
Absolute power
Balance of power
Corruption Perceptions Index - Parliamentary systems are, in general, perceived as less corrupt than other systems
Judicial activism
List of democracy and elections-related topics
Signing statement
Unitary executive theory
Fifth power

[edit] Notes
^ Baron de Montesquieu, Charles-Louis de Secondat (Stanford Encyclopedia of Philosophy)
^ K-Zone law - Separation of powers: the reality
^ The Review of Politics, Vol. 53, No. 2 (Spring, 1991), pp. 391-396
^ a b Przeworski 2003, p.26, p.13, p.223-4
^ Przeworski 2003, p.14 [1]
^ Cheryl Saunders. "Separation of Powers and the Judicial Branch" (doc).
^ Two examples of executives of more than one person are a triumvirate (three rulers) and a constitutional monarchy (two rulers).
^ Madison, James. (8 February 1788) "The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments" The Federalist Papers No. 51

FEDERAL CONSTITUTIONS

2008-10-21T18:36:00.000-07:00

The Constitution of the United States of America is the supreme law of the United States. It provides the framework for the organization of the United States Government. The document defines the three main branches of the government: The legislative branch with a bicameral Congress, an executive branch led by the President, and a judicial branch headed by the 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, thereby establishing the United States' federal system of government. It is the shortest and oldest written constitution of any major sovereign state.[1]

The United States Constitution was adopted on September 17, 1787, by the Constitutional Convention in Philadelphia, Pennsylvania, and later ratified by conventions in each U.S. 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.[2][3] The Articles of Confederation and Perpetual Union was actually the first constitution of the United States of America. The U.S. Constitution replaced the Articles of Confederation as the governing document for the United States, and transformed the constitutional basis of government from confederation to federation, also making it the world's oldest federal constitution.[4] The Constitution has a central place in United States law and political culture.[5] The handwritten, or "engrossed", original document is on display at the National Archives and Records Administration in Washington, D.C.

Contents [hide]
1 History
1.1 Drafting and ratification requirements
1.2 Work of the Philadelphia Convention
1.3 Ratification
1.4 Historical influences
1.5 Influences on the Bill of Rights
2 Articles of the Constitution
2.1 Preamble: Statement of purpose
2.2 Article One: Legislative power
2.3 Article Two: Executive power
2.4 Article Three: Judicial power
2.5 Article Four: States' powers and limits
2.6 Article Five: Process of amendments
2.7 Article Six: Federal power
2.8 Article Seven: Ratification
3 Provisions for changing the Constitution
3.1 Amendments
3.2 Judicial review
4 Subsequent amendments
4.1 The Bill of Rights (1–10)
4.2 Subsequent amendments (11–27)
4.3 Unratified amendments
5 Original pages of the Constitution
6 See also
6.1 General
6.2 Related documents
7 Notes
8 References
8.1 Primary sources
8.2 Reference books
8.3 Secondary sources
9 Further reading
10 External links
10.1 National Archives
10.2 Official U.S. government sources
10.3 Non-government web sites

History
Main article: History of the United States Constitution

Drafting and ratification requirements
In September 1786, commissioners from five states met in the Annapolis Convention to discuss adjustments to the Articles of Confederation that would improve commerce. They invited state representatives to convene in Philadelphia to discuss improvements to the federal government. After debate, the Congress of the Confederation endorsed the plan to revise the Articles of Confederation on February 21, 1787.[6] Twelve states, Rhode Island being the only exception, accepted this invitation and sent delegates to convene in May 1787.[6] The resolution calling the Convention specified that its purpose was to propose amendments to the Articles, but through discussion and debate it became clear by mid-June that, rather than amend the existing Articles, the Convention decided to propose a rewritten Constitution.[7] The Philadelphia Convention voted to keep the debates secret, so that the delegates could speak freely. They also decided to draft a new fundamental government design, which eventually stipulated that only nine of the thirteen states would have to ratify for the new government to go into effect (for the participating states).[7] Current knowledge of the drafting and construction of the United States Constitution comes primarily from the diaries left by James Madison, who kept a complete record of the proceedings at the Constitutional Convention.[8]

Work of the Philadelphia Convention
The Virginia Plan was the unofficial agenda for the Convention, and was drafted chiefly by James Madison, considered to be "The Father of the Constitution" for his major contributions.[8] It was weighted toward the interests of the larger states, and proposed among other points:

A powerful bicameral legislature with a House and a Senate[9]
An executive chosen by the legislature
A judiciary, with life-terms of service and vague powers
The national legislature would be able to veto state laws

The Philadelphia ConventionAn alternative proposal, William Paterson's New Jersey Plan, gave states equal weights and was supported by the smaller states.[10] Roger Sherman of Connecticut brokered The Great Compromise whereby the House would represent population, the Senate would represent states, and a president would be elected by electors.[11]

The contentious issue of slavery was too controversial to be resolved during the convention. As a result, the original Constitution contained four provisions tacitly allowing slavery to continue for the next 20 years. Section 9 of Article I allowed the continued "importation" of such persons, Section 2 of Article IV prohibited the provision of assistance to escaping persons and required their return if successful and Section 2 of Article I defined other persons as "three-fifths" of a person for calculations of each state's official population.[12] Article V prohibited any amendments or legislation changing the provision regarding slave importation until 1808, thereby giving the States then existing 20 years to resolve this issue. The failure to do so was a contributing factor to the Civil War.[13]

Ratification
Ratification of the Constitution
Date State Votes
Yes No
1 December 7, 1787 Delaware 30 0
2 December 12, 1787 Pennsylvania 46 23
3 December 18, 1787 New Jersey 38 0
4 January 2, 1788 Georgia 26 0
5 January 9, 1788 Connecticut 128 40
6 February 6, 1788 Massachusetts 187 168
7 April 28, 1788 Maryland 63 11
8 May 23, 1788 South Carolina 149 73
9 June 21, 1788 New Hampshire 57 47
10 June 25, 1788 Virginia 89 79
11 July 26, 1788 New York 30 27
12 November 21, 1789 North Carolina 194 77
13 May 29, 1790 Rhode Island 34 32
Contrary to the process for "alteration" spelled out in Article 13 of the Articles, Congress submitted the proposal to the states and set the terms for representation.

On September 17, 1787, the Constitution was completed in Philadelphia at the Federal Convention, followed by a speech given by Benjamin Franklin who urged unanimity, although they decided they only needed nine states to ratify the constitution for it to go into effect. The Convention submitted the Constitution to the Congress of the Confederation, where it received approval according to Article 13 of the Articles of Confederation.[9]

Once the Congress of the Confederation received word of New Hampshire's ratification, it set a timetable for the start of operations under the Constitution, and on March 4, 1789, the government under the Constitution began operations.

Historical influences
Several of the ideas in the Constitution were new, and a large number of ideas were drawn from the literature of Republicanism in the United States, from the experiences of the 13 states, and from the British experience with mixed government. The most important influence from the European continent was from Montesquieu, who emphasized the need to have balanced forces pushing against each other to prevent tyranny. (This in itself reflects the influence of Polybius' 2nd century BC treatise on the checks and balances of the constitution of the Roman Republic.) John Locke is known to have been a major influence, and the due process clause of the United States Constitution was partly based on common law stretching back to the Magna Carta of 1215.[9]

Influences on the Bill of Rights
The United States Bill of Rights consists of the ten amendments added to the Constitution in 1791, as supporters of the constitution had promised critics during the debates of 1788.[14] The English Bill of Rights (1689) was an inspiration for the American Bill of Rights. For example, both require jury trials, contain a right to keep and bear arms, and prohibit excessive bail as well as "cruel and unusual punishments." Many liberties protected by state constitutions and the Virginia Declaration of Rights were incorporated into the United States Bill of Rights.

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The Constitution consists of a preamble, seven original articles, twenty-seven amendments, and a paragraph certifying its enactment by the constitutional convention.

Preamble: Statement of purpose
Main article: Preamble to the United States Constitution
The Preamble states:

“ We the People of the United States, in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. ”

The Preamble does not grant any particular authority to the federal government and it does not prohibit any particular authority. It establishes the fact that the federal government has no authority outside of what follows the preamble, as amended. "We the people", is one of the most-quoted sections of the Constitution. It was thought by the Federalists during this time that there was no need for a bill of rights as they thought that the preamble spelled out the people's rights.[citation needed]

Article One: Legislative power
Main article: Article One of the United States Constitution
Article One describes the congress, the legislative branch of the federal government. The United States Congress is a bicameral body consisting of the lower house of the House of Representatives and the Senate as the upper house.

The article establishes the manner of election and the qualifications of members of each body. Representatives must be at least 25 years old, have been a citizen of the United States for seven years, and live in the state they represent. Senators must be at least 30 years old, have been a citizen for nine years, and live in the state they represent.

In Article I Section I, the Constitution reads "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." This gives Congress more than simply the responsibility to establish the rules governing its proceedings and for the punishment of its members; it places the power of the government primarily in Congress.

Article I Section 8 enumerates a list of powers. The powers listed and all other powers are made the exclusive responsibility of the legislative branch.

The Congress shall have power... To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

Article I Section IX provides a list of eight specific limits on Congressional power and Article I Section X limits the rights of the states.

The United States Supreme Court has interpreted the commerce clause and the necessary-and-proper clause in Article One to allow Congress to enact legislation that is neither expressly listed in the enumerated power nor expressly denied in the limitations on Congress. In the 1819 McCulloch v. Maryland ruling, the Supreme Court fell back on the strict construction of the necessary and proper clause to read that Congress had "[t]he foregoing powers and all other powers..."

Article Two: Executive power
Main article: Article Two of the United States Constitution
Article Two describes the presidency (the executive branch). The article establishes the manner of election and qualifications of the President, the oath to be affirmed and the powers and duties of the office. The President must be a natural born citizen of the United States, be at least 35 years old, and a resident of the United States for at least 14 years. It also provides for the office of Vice President, and specifies that the Vice President succeeds to the presidency if the President is removed, unable to discharge the powers and duties of office, dies while in office, or resigns. The original text ("the same shall devolve") leaves it unclear whether this succession was intended to be on an acting basis (merely taking on the powers of the office) or permanent (assuming the Presidency itself). After the death of William Henry Harrison, John Tyler set the precedent that the succession was permanent, and this was followed in practice; the 25th Amendment explicitly states that the Vice President becomes President in those cases. Article Two also provides for the impeachment and removal from office of all officers of the government.

Article Three: Judicial power
Main article: Article Three of the United States Constitution
Article Three describes the court system (the judicial branch), including the Supreme Court. The article requires that there be one court called the Supreme Court; Congress, at its discretion, can create lower courts, whose judgments and orders are reviewable by the Supreme Court. Article Three also creates the right to trial by jury in all criminal cases, defines the crime of treason, and charges Congress with providing for a punishment for it. This Article also sets the kinds of cases that may be heard by the federal judiciary, which cases the Supreme Court may hear first (called original jurisdiction), and that all other cases heard by the Supreme Court are by appeal under such regulations as the Congress shall make.

Article Four: States' powers and limits
Main article: Article Four of the United States Constitution
Article Four describes the relationship between the states and the Federal government and amongst the states. For instance, it requires states to give "full faith and credit" to the public acts, records, and court proceedings of the other states. Congress is permitted to regulate the manner in which proof of such acts, records, or proceedings may be admitted. The "privileges and immunities" clause prohibits state governments from discriminating against citizens of other states in favor of resident citizens (e.g., having tougher penalties for residents of Ohio convicted of crimes within Michigan.) It also establishes extradition between the states, as well as laying down a legal basis for freedom of movement and travel amongst the states. Today, this provision is sometimes taken for granted, especially by citizens who live near state borders; but in the days of the Articles of Confederation, crossing state lines was often a much more arduous and costly process. Article Four also provides for the creation and admission of new states. The Territorial Clause gives Congress the power to make rules for disposing of Federal property and governing non-state territories of the United States. Finally, the fourth section of Article Four requires the United States to guarantee to each state a republican form of government, and to protect the states from invasion and violence.

Article Five: Process of amendments
Main article: Article Five of the United States Constitution
Article Five describes the process necessary to amend the Constitution. It establishes two methods of proposing amendments: by Congress or by a national convention requested by the states. Under the first method, Congress can propose an amendment by a two-thirds vote (of a quorum, not necessarily of the entire body) of the Senate and of the House of Representatives. Under the second method, two-thirds of the state legislatures may convene and "apply" to Congress to hold a national convention, whereupon Congress must call such a convention for the purpose of considering amendments. To date, only the first method (proposal by Congress) has been used.

Once proposed — whether submitted by Congress or by a national convention — amendments must then be ratified by three-fourths of the states to take effect. Article Five gives Congress the option of requiring ratification by state legislatures or by special conventions assembled in the states. The convention method of ratification has only been used to approve the 21st Amendment. Article Five currently places only one limitation on the amending power — that no amendment can deprive a state of its equal representation in the Senate without that state's consent (limitations regarding slavery and taxation having expired in 1808.)

Article Six: Federal power
Main article: Article Six of the United States Constitution
Article Six establishes the Constitution, and the laws and treaties of the United States made in accordance with it, to be the supreme law of the land, and that "the judges in every state shall be bound thereby, any thing in the laws or constitutions of any state notwithstanding." It also validates national debt created under the Articles of Confederation and requires that all federal and state legislators, officers, and judges take oaths or affirmations to support the Constitution. This means that the states' constitutions and laws should not conflict with the laws of the federal constitution and that in case of a conflict, state judges are legally bound to honor the federal laws and constitution over those of any state.

Article Six also states "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

Article Seven: Ratification
Main article: Article Seven of the United States Constitution
Article Seven sets forth the requirements for ratification of the Constitution. The Constitution would not take effect until at least nine states had ratified the Constitution in state conventions specially convened for that purpose, and it would only apply to those states which ratified it.[7] (See above Drafting and ratification requirements.)

Provisions for changing the Constitution
The Constitution provides for direct modification through the amendment process. Soon after the Constitution was passed, however, Marbury v. Madison provides the Supreme Court to interpret the law and the Constitution through the process of judicial review.

Amendments
See also: Amendments to the United States Constitution
The authors of the Constitution were clearly aware that changes would be necessary from time to time if the Constitution was to endure and cope with the effects of the anticipated growth of the nation. However, they were also conscious that such change should not be easy, lest it permit ill-conceived and hastily passed amendments. Balancing this, they also wanted to ensure that an overly-rigid requirement of unanimity would not block action desired by the vast majority of the population. Their solution was to devise a dual process by which the Constitution could be altered.[15]

Amending the Constitution is a two-part process: amendments must be proposed and then they must be ratified. Amendments can be proposed one of two ways. The only way that has been used to date is through a two-thirds majority vote in both houses of Congress. Alternatively, two–thirds of the legislatures of the States can call a Constitutional Convention to consider one or more amendments. This second method has never been used, and it is unclear exactly how, in practice, such a Constitutional Convention would work.

Regardless of how the amendment is proposed, the amendment must be approved by three-fourths of states, a process called ratification. Depending on the amendment, this requires either the state legislatures or special state conventions to approve the amendment by simple majority vote. Amendments generally go to state legislatures to be ratified, only the Twenty-first Amendment called for special state conventions.

Unlike many other constitutions, amendments to the U.S. constitution are appended to the existing body of the text without altering or removing what already exists. There is no provision for deleting either obsolete text or rescinded provisions, including passages that are directly contradicted by subsequent amendments.

Judicial review
See also: Judicial review in the United States
Aside from the direct process of amending the Constitution, the way the Constitution is understood is also influenced by the decisions of the court system, and especially the Supreme Court. These decisions are referred to, collectively, as precedents. The ability of the courts to interpret the Constitution was decided early in the history of the United States, in the 1803 case of Marbury v. Madison. In that case, the Supreme Court established the doctrine of judicial review, which is the power of the Court to examine legislation and other acts of Congress and to decide their constitutionality. The doctrine also embraces the power of the Court to explain the meaning of various sections of the Constitution as they apply to particular cases brought before the Court. Over the years, a series of Court decisions, on issues ranging from governmental regulation of radio and television to the rights of the accused in criminal cases, has affected a change in the way many Constitutional clauses are interpreted, without amendment to the actual text of the Constitution.

Legislation, passed to implement provisions of the Constitution or to adapt those implementations to changing conditions, also broadens and, in subtle ways, changes the meanings given to the words of the Constitution. Up to a point, the rules and regulations of the many agencies of the federal government have a similar effect. If the actions of Congress or federal agencies are challenged as to their constitutionality, however, it is the court system that ultimately decides whether or not they are allowable under the Constitution.

Subsequent amendments
Main article: List of amendments to the United States Constitution
The Constitution has a total of 27 amendments. The first ten, collectively known as the Bill of Rights, were ratified simultaneously. The following seventeen were ratified separately.

The Bill of Rights (1–10)
Main article: United States Bill of Rights

United States Bill of Rights currently housed in the National Archives.It is commonly understood that the Bill of Rights was not originally intended to apply to the states, though except where amendments refer specifically to the Federal Government or a branch thereof (as in the First Amendment, under which some states in the early years of the nation officially established a religion), there is no such delineation in the text itself. Nevertheless, a general interpretation of inapplicability to the states remained until 1868, when the Fourteenth Amendment was passed, which stated, in part, that:

“ No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ”

The Supreme Court has interpreted this clause to extend most, but not all, parts of the Bill of Rights to the states. Nevertheless, the balance of state and federal power has remained a battle in the Supreme Court.

The amendments that became the Bill of Rights were actually the last ten of the twelve amendments proposed in 1789. The second of the twelve proposed amendments, regarding the compensation of members of Congress, remained unratified until 1992, when the legislatures of enough states finally approved it and, as a result, it became the Twenty-seventh Amendment despite more than two centuries of pendency. The first of the twelve—still technically pending before the state legislatures for ratification—pertains to the apportionment of the United States House of Representatives after each decennial census. The most recent state whose lawmakers are known to have ratified this proposal is Kentucky in 1792, during that commonwealth's first month of statehood.

First Amendment: addresses the rights of freedom of religion (prohibiting Congressional establishment of a religion over another religion through Law and protecting the right to free exercise of religion), freedom of speech, freedom of the press, freedom of assembly, and freedom of petition.
Second Amendment: defines the right of States in keeping and maintaining militias and the right of individuals to possess firearms.
Third Amendment: prohibits the government from using private homes as quarters for soldiers during peacetime without the consent of the owners. The only existing case law regarding this amendment is a lower court decision in the case of Engblom v. Carey.[16]
Fourth Amendment: guards against searches, arrests, and seizures of property without a specific warrant or a "probable cause" to believe a crime has been committed. Some rights to privacy have been inferred from this amendment and others by the Supreme Court.
Fifth Amendment: forbids trial for a major crime except after indictment by a grand jury; prohibits double jeopardy (repeated trials), except in certain very limited circumstances; forbids punishment without due process of law; and provides that an accused person may not be compelled to testify against himself (this is also known as "Taking the Fifth" or "Pleading the Fifth"). This is regarded as the "rights of the accused" amendment, otherwise known as the Miranda rights after the Supreme Court case. It also prohibits government from taking private property without "just compensation," the basis of eminent domain in the United States.
Sixth Amendment: guarantees a speedy public trial for criminal offenses. It requires trial by a jury, guarantees the right to legal counsel for the accused, and guarantees that the accused may require witnesses to attend the trial and testify in the presence of the accused. It also guarantees the accused a right to know the charges against him. The Sixth Amendment has several court cases associated with it, including Powell v. Alabama, United States v. Wong Kim Ark, Gideon v. Wainwright, and Crawford v. Washington. In 1966, the Supreme Court ruled that the fifth amendment prohibition on forced self-incrimination and the sixth amendment clause on right to counsel were to be made known to all persons placed under arrest, and these clauses have become known as the Miranda rights.
Seventh Amendment: assures trial by jury in civil cases.
Eighth Amendment: forbids excessive bail or fines, and cruel and unusual punishment.
Ninth Amendment: declares that the listing of individual rights in the Constitution and Bill of Rights is not meant to be comprehensive; and that the other rights not specifically mentioned are retained elsewhere by the people.
Tenth Amendment: provides that powers that the Constitution does not delegate to the United States and does not prohibit the States from exercising, are "reserved to the States respectively, or to the people."

Subsequent amendments (11–27)
Amendments to the Constitution subsequent to the Bill of Rights cover many subjects. The majority of the seventeen later amendments stem from continued efforts to expand individual civil or political liberties, while a few are concerned with modifying the basic governmental structure drafted in Philadelphia in 1787. Although the United States Constitution has been amended a total of 27 times, only 26 of the amendments are currently in effect because the twenty-first amendment supersedes the eighteenth.

Eleventh Amendment (1795): Clarifies judicial power over foreign nationals, and limits ability of citizens to sue states in federal courts and under federal law. (Full text)
Twelfth Amendment (1804): Changes the method of presidential elections so that members of the Electoral College cast separate ballots for president and vice president. (Full text)
Thirteenth Amendment (1865): Abolishes slavery and grants Congress power to enforce abolition. (Full text)
Fourteenth Amendment (1868): Defines a set of guarantees for United States citizenship; prohibits states from abridging citizens' privileges or immunities and rights to due process and the equal protection of the law; repeals the Three-fifths compromise; prohibits repudiation of the federal debt caused by the Civil War. (Full text)
Fifteenth Amendment (1870): Forbids the federal government and the states from using a citizen's race, color, or previous status as a slave as a qualification for voting. (Full text)
Sixteenth Amendment (1913): Authorizes unapportioned federal taxes on income. (Full text)
Seventeenth Amendment (1913): Establishes direct election of senators. (Full text)
Eighteenth Amendment (1919): Prohibited the manufacturing, importing, and exporting of alcoholic beverages (see Prohibition in the United States). Repealed by the Twenty-First Amendment. (Full text)
Nineteenth Amendment (1920): Prohibits the federal government and the states from forbidding any citizen to vote due to their sex. (Full text)
Twentieth Amendment (1933): Changes details of Congressional and presidential terms and of presidential succession. (Full text)
Twenty-first Amendment (1933): Repeals Eighteenth Amendment. Permits states to prohibit the importation of alcoholic beverages. (Full text)
Twenty-second Amendment (1951): Limits president to two terms. (Full text)
Twenty-third Amendment (1961): Grants presidential electors to the District of Columbia. (Full text)
Twenty-fourth Amendment (1964): Prohibits the federal government and the states from requiring the payment of a tax as a qualification for voting for federal officials. (Full text)
Twenty-fifth Amendment (1967): Changes details of presidential succession, provides for temporary removal of president, and provides for replacement of the vice president. (Full text)
Twenty-sixth Amendment (1971): Prohibits the federal government and the states from forbidding any citizen of age 18 or greater to vote on account of their age. (Full text)
Twenty-seventh Amendment (1992): Limits congressional pay raises. (Full text)

Unratified amendments
See also: Proposals for amendments to the United States Constitution and List of unsuccessful attempts to amend the U.S. Constitution
Over 10,000 Constitutional amendments have been introduced in Congress since 1789; in a typical Congressional year in the last several decades, between 100 and 200 are offered. Most of these concepts never get out of Congressional committee, and far fewer get proposed by the Congress for ratification. Backers of some amendments have attempted the alternative, and thus-far never-utilized, method mentioned in Article Five. In two instances—reapportionment in the 1960s and a balanced federal budget during the 1970s and 1980s—these attempts have come within just two state legislative "applications" of triggering that alternative method.

Of the thirty-three amendments that have been proposed by Congress, six have failed ratification by the required three-quarters of the state legislatures—and four of those six are still technically pending before state lawmakers (see Coleman v. Miller). Starting with the 18th Amendment, each proposed amendment (except the 19th Amendment and the still-pending Child Labor Amendment of 1924) has specified a deadline for passage. The following are the unratified amendments:

The Congressional Apportionment Amendment, proposed by the 1st Congress on September 25, 1789, defined a formula for how many members there would be in the United States House of Representatives after each decennial census. Ratified by eleven states, the last being Kentucky in June 1792 (Kentucky's initial month of statehood), this amendment contains no expiration date for ratification. In principle it may yet be ratified, though as written it became moot when the population of the United States reached ten million.
The so-called missing thirteenth amendment, or "Titles of Nobility Amendment" (TONA), proposed by the 11th Congress on May 1, 1810, would have ended the citizenship of any American accepting "any Title of Nobility or Honour" from any foreign power. Some maintain that the amendment was actually ratified by the legislatures of enough states, and that a conspiracy has suppressed it, but this has been thoroughly debunked[17] . Known to have been ratified by lawmakers in twelve states, the last in 1812, this amendment contains no expiration date for ratification. It may yet be ratified.
The Corwin amendment, proposed by the 36th Congress on March 2, 1861, would have forbidden any attempt to subsequently amend the Constitution to empower the Federal government to "abolish or interfere" with the "domestic institutions" of the states (a delicate way of referring to slavery). It was ratified by only Ohio and Maryland lawmakers before the outbreak of the Civil War. Illinois lawmakers—sitting as a state constitutional convention at the time—likewise approved it, but that action is of questionable validity. The proposed amendment contains no expiration date for ratification and may yet be ratified. However, adoption of the 13th, 14th, and 15th Amendments after the Civil War likely means that the amendment would be ineffective if adopted.
A child labor amendment proposed by the 68th Congress on June 2, 1924, which stipulates: "The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age." This amendment is highly unlikely to be ratified, since subsequent federal child labor laws have uniformly been upheld as a valid exercise of Congress' powers under the commerce clause.
Properly placed in a separate category from the other four constitutional amendments that Congress proposed to the states, but which not enough states have approved, are the following two offerings which—because of deadlines—are no longer subject to ratification.

The Equal Rights Amendment, or ERA, which reads in pertinent part "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex." Proposed by the 92nd Congress on March 22, 1972, it was ratified by the legislatures of 35 states, and expired on either March 22, 1979 or on June 30, 1982, depending upon one's point of view of a controversial three-year extension of the ratification deadline, which was passed by the 95th Congress in 1978. Of the 35 states ratifying it, four later rescinded their ratifications prior to the extended ratification period which commenced March 23, 1979 and a fifth—while not going so far as to actually rescind its earlier ratification—adopted a resolution stipulating that its approval would not extend beyond March 22, 1979. There continues to be diversity of opinion as to whether such reversals are valid; no court has ruled on the question, including the Supreme Court. But a precedent against the validity of rescission was first established during the ratification process of the 14th Amendment when Ohio and New Jersey rescinded their earlier approvals, but yet were counted as ratifying states when the 14th Amendment was ultimately proclaimed part of the Constitution in 1868.
The District of Columbia Voting Rights Amendment was proposed by the 95th Congress on August 22, 1978. Had it been ratified, it would have granted to Washington, D.C. two Senators and at least one member of the House of Representatives as though the District of Columbia were a state. Ratified by the legislatures of only 16 states—less than half of the required 38—the proposed amendment expired on August 22, 1985.
There are currently only a few proposals for amendments which have entered mainstream political debate. These include the proposed Federal Marriage Amendment, the Balanced Budget Amendment, and the Flag Desecration Amendment.

Original pages of the Constitution

Page 1

Page 2

Page 3

Page 4

See also

General
List of sources of law in the United States
Congressional power of enforcement
Constitution Day (United States)
Federalist Papers
History of democracy
National Constitution Center

Related documents
Magna Carta (1215)
Mayflower Compact (1620)
Fundamental Orders of Connecticut (1639)
Massachusetts Body of Liberties (1641)
English Bill of Rights (1689)
United States Declaration of Independence (1776)
Articles of Confederation (1777)
Virginia Statute for Religious Freedom (1779)
United States Bill of Rights (1791)

Notes
^ "U.S. Constitution Center". Retrieved on 2008-09-21.
^ WikiSource. "WikiSource: Constitution of the United States of America". Retrieved on 2007-12-16.
^ Library of Congress. "Primary Documents in American History: The United States Constitution". Retrieved on 2007-12-16.
^ Brook, John Robert (1956-57). Judicial and Executive Functions of the Legislator in New York. New York City: Fordham University Press, 278.
^ Casey (1974)
^ a b NARA. "National Archives Article on the Constitutional Convention". Retrieved on 2007-12-16.
^ a b c NARA. "National Archives Article on the Constitution". Retrieved on 2007-12-16.
^ a b NARA. "National Archives Article on James Madison". Retrieved on 2007-12-16.
^ a b c NARA. "National Archives Article on the Entire Constitutional Convention". Retrieved on 2007-12-16.
^ NARA. "National Archives Article on William Paterson". Retrieved on 2007-12-16.
^ NARA. "National Archives Article on Roger Sherman". Retrieved on 2007-12-16.
^ Section 2 of Article I provides in part: "Representatives and direct taxes shall be apportioned among the several states . . . by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons."
^ See South Carolina Declaration of Causes in Seccession (December 24, 1860), reprinted in Richard Hofstadter, Great Issues in American History. Volume II, Vintage Books (1958), p.76-7; Abraham Lincoln, Message to Congress (July 4, 1861) reprinted in Hofstadter, supra.
^ NARA. "National Archives Article on the Bill of Rights". Retrieved on 2007-12-16.
^ Lutz, Donald (1994). Toward a theory of constitutional amendment.
^ Findlaw.com
^ The Missing Thirteenth Amendment

References

Primary sources
"The Avalon Project: Notes on the Debates in the Federal Convention". The Avalon Project at Yale Law School. Retrieved on 2008-01-20.
Bailyn, Bernard, ed. The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle for Ratification. Part One: September 1787 to February 1788 (The Library of America, 1993) ISBN 0-940450-42-9
Bailyn, Bernard, ed. The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle for Ratification. Part Two: January to August 1788 (The Library of America, 1993) ISBN 0-940450-64-X
Garvey, John H. ed. Modern Constitutional Theory: A Reader 5th ed 2004; 820pp.
Mason, Alpheus Thomas and Donald Grier Stephenson, ed. American Constitutional Law: Introductory Essays and Selected Cases (14th Edition) (2004)
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Reference books
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Mazzone, Jason (2005). "The Creation of a Constitutional Culture". Tulsa Law Review 40: 671.
Smith, Jean Edward; Levine, Herbert M. (1988). Civil Liberties & Civil Rights Debated. Englewood Cliffs, New Jersey: Prentice Hall.
Smith, Jean Edward (1989). The Constitution and American Foreign Policy. St. Paul, MN: West Publishing Company.
White, G. Edward. The Constitution and the New Deal. Harvard U. Press, 2000. 385 pp.
Wiecek, William M., "The Witch at the Christening: Slavery and the Constitution's Origins," Leonard W. Levy and Dennis J. Mahoney, eds., The Framing and Ratification of the Constitution (Macmillan, 1987), 178-84.

Further reading
Klos, Stanley L. (2004). President Who? Forgotten Founders. Pittsburgh, Pennsylvania: Evisum, Inc., 261. ISBN 0-9752627-5-0.

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[show]v • d • eHistoric statements

FEDRAL AND UNITARY CONSTITUTION

2008-10-21T18:28:00.000-07:00

A federation (Latin: foedus, covenant) is a union comprising a number of partially self-governing states or regions united by a central ("federal") government. In a federation, the self-governing status of the component states is typically constitutionally entrenched and may not be altered by a unilateral decision of the central government.
The form of government or constitutional structure found in a federation is known as federalism (see also federalism as a political philosophy). It can be considered the opposite of another system, the unitary state. The government of Germany with sixteen federated Länder is an example of a federation, whereas neighboring Austria and its Bundesländer was a unitary state with administrative divisions that became federated, and neighboring France by contrast has always been unitary.
Federations may be multi-ethnic, or cover a large area of territory, although neither is necessarily the case. Federations are most often founded on an original agreement between a number of sovereign states based on mutual concerns or interests. The initial agreements create a stability that encourages other common interests and each brings the disparate territories closer and gives them all even more common ground. At some time this is recognized and a movement is organized to merge more closely. Other times, especially when common cultural factors are at play such as ethnicity and language, some of these steps in this pattern are expedited and compressed.
The international organization for federal countries, the Forum of Federations [1], is based in Ottawa, Ontario, Canada. It helps share best practices amongst countries with federal systems of government, and currently includes nine countries as partner governments.
Contents[hide]
1 Federations and other forms of state
1.1 Unitary states
1.2 De facto federations
1.2.1 Spain-United Kingdom
1.2.2 People's Republic of China
1.2.3 European Union
1.3 Other forms of governance
1.3.1 Confederation
1.3.2 Empire
1.4 Russian Federation
1.5 Soviet Union (USSR)
1.6 Myanmar
2 Constitutional structure
2.1 Division of powers
2.2 Organs of government
2.3 Other technical terms
3 Federalism as a political philosophy
4 Internal controversy and conflict
5 List of federations
5.1 Contemporary
5.1.1 Long form titles
5.2 Defunct
6 Footnotes
7 See also
//

[edit] Federations and other forms of state

A map of the United States of America, showing its fifty constituent states.

A map of the United Mexican States (Mexico), showing its thirty one constituent states and the Federal District.
In a federation the component states are regarded as in some sense sovereign, insofar as certain powers are reserved to them that may not be exercised by the central government. However, a federation is more than a mere loose alliance of independent states. The component states of a federation usually possess no powers in relation to foreign policy and so they enjoy no independent status under international law.
Some federations are called asymmetric because some states have more autonomy than others. An example of such a federation is Malaysia, in which Sarawak and Sabah entered the federation on different terms and conditions to the states of Peninsular Malaysia.
A federation often emerges from an initial agreement between a number of separate states. The purpose can be the will to solve mutual problems or to provide for mutual defence, or to create a nation state for an ethnicity spread over several states. The former was the case with the United States and Switzerland, the latter with Germany.[clarify] However, as the history of countries and nations varies, the federalism system of a state can be quite different from these models. Australia, for instance, is unique in that it came into existence as a nation by the democratic vote of the citizens of each State who voted "yes" in referendums to adopt the Australian Constitution. Brazil, otherwise, has experienced both the federal and the unitary state through its history; some present day States of the Federation retain the borders set during Portuguese colonization (i.e. previous to the very existence of Brazilian state), whereas the latest State was created by the 1988 Constitution, chiefly for administrative reasons.
Eight of ten of the World's largest countries by area are governed as Federations.

[edit] Unitary states
A unitary state is sometimes one with only a single, centralised, national tier of government. However, unitary states often also include one or more self-governing regions. The difference between a federation and this kind of unitary state is that in a unitary state the autonomous status of self-governing regions exists by the sufferance of the central government, and may be unilaterally revoked. While it is common for a federation to be brought into being by agreement between a number of formally independent states, in a unitary state self-governing regions are often created through a process of devolution, where a formerly centralised state agrees to grant autonomy to a region that was previously entirely subordinate. Thus federations are often established voluntarily from 'below' whereas devolution grants self-government from 'above'.
It is often part of the philosophy of a unitary state that, regardless of the actual status of any of its parts, its entire territory constitutes a single sovereign entity or nation-state, and that by virtue of this the central government exercises sovereignty over the whole territory as of right. In a federation, on the other hand, sovereignty is often regarded as residing notionally in the component states, or as being shared between these states and the central government.

[edit] De facto federations
The distinction between a federation and a unitary state is often quite ambiguous. A unitary state may closely resemble a federation in structure and, while a central government may possess the theoretical right to revoke the autonomy of a self-governing region, it may be politically difficult for it to do so in practice. The self-governing regions of some unitary states also often enjoy greater autonomy than those of some federations. For these reasons, it is sometimes argued that some modern unitary states are de facto federations.

[edit] Spain-United Kingdom
Spain is suggested as one possible de facto federation as it grants more self-government to its autonomous communities than most federations allow their constituent parts. For the Spanish parliament to revoke the autonomy of regions such as Galicia, Catalonia or the Basque Country, or for the United Kingdom government unilaterally to abolish the legislatures of Wales, Northern Ireland[clarify] or Scotland, would be a political near-impossibility[citation needed], though nothing bars it legally. Additionally, some regions such as Navarra or the Basque Country have full control over taxation and spending, transferring a small payment to the central government for the common services (army, foreign relations, macroeconomic policy).

[edit] People's Republic of China
In the People's Republic of China, a form of de facto federation has evolved without formal legislation. This has occurred as largely informal grants of power to the provinces, to handle economic affairs and implement national policies. This has resulted in a system some have termed "de facto federalism with Chinese characteristics" (in reference to Deng Xiaoping's policy of socialism with Chinese characteristics)[[2]]. Constitutionally, the power vested in the special administrative regions of the People's Republic is granted from the Central People's Government, through decision by the National People's Congress. To revoke the autonomy of the Special Administrative Regions of Hong Kong and Macau is a great political challenge if not impossible altogether.

[edit] European Union
The European Union (EU) is not de jure a federation but some academic observers conclude that it is one, after 50 years of institutional evolution caused by the ECJ.[3] The European Union possesses attributes of a federal state. However, its central government is far weaker than that of most federations and the individual members are sovereign states under international law, so it is usually characterized as an unprecedented form of supra-national union. The EU has responsibility for important areas such as trade, monetary union, agriculture, fisheries, and today around sixty per cent of the legislation in member-states originates in the institutions of the Union.[citation needed] Nonetheless, EU member-states retain the right to act independently in matters of foreign policy and defense, and also enjoy a near monopoly over other major policy areas such as criminal justice and taxation. The proposed Treaty of Lisbon would codify the Member States' right to leave the Union, but would at the same time also provide the European Union with significantly more power in many areas. The European Union is being given "legal personality" and taking unto itself powers that it formerly exercised only in a representative capacity for the Member States.
“
Europe has charted its own brand of constitutional federalism.(Joseph H. H. Weiler)
”
“
Those uncomfortable using the “F” word in the EU context should feel free to refer to it as a quasi-federal or federal-like system. Nevertheless, for the purposes of the analysis here, the EU has the necessary attributes of a federal system. It is striking that while many scholars of the EU continue to resist analyzing it as a federation, most contemporary students of federalism view the EU as a federal system (See for instance, Bednar, Filippov et al., McKay, Kelemen, Defigueido and Weingast).(R. Daniel Kelemen)
”

[edit] Other forms of governance

The Swiss Confederation and its 26 cantons.

The Canadian Confederation and its 10 Provinces and 3 Territories.

[edit] Confederation
A federation is often said to be distinguished from a confederation. A confederation, in modern political terms, is usually limited to a permanent union of sovereign states for common action in relation to other states.[4]
In Belgium, however, the opposite movement is under way.[5] Belgium was founded as a centralised state, after the French model, but has gradually been reformed into a federal state by consecutive constitutional reforms since the 1970s. Moreover, altough nominally called a federal state, the country's structure already has a number of confederational traits (ex. competences are exclusive for either the federal or the state level, the treaty-making power of the Federating units without almost any possible veto of the Federal Government). At present, there is a growing movement to transform the existing federal state into a looser confederation with two or three constitutive states and/or two special regions.[6]
By definition, the difference between a confederation and a federation is that the membership of the member states in a confederation is voluntary, while the membership in a federation is not. A confederation is most likely to feature these differences over a federation: (1) No real direct powers: many confederal decisions are externalised by member-state legislation. (2) Decisions on day-to-day-matters are not taken by simple majority but by special majorities or even by consensus or unanimity (veto for every member). (3) Changes of the constitution, usually a treaty, require unanimity.
Over time these terms acquired distinct connotations leading to the present difference in definition. An example of this is the United States under the Articles of Confederation. The Articles established a national government under what today would be defined as a federal system (albeit with a comparatively weaker federal government). However, Canada, designed with a stronger central government than the U.S. in the wake of the Civil War of the latter, has always been called a Confederation by Canadians (also a Dominion and/or a Realm, but these do not bear on the current discussion). Ironically, legal reforms, court rulings, and political compromises have greatly decentralised Canada in practice since its formation in 1867.

[edit] Empire
An empire is a multi-ethnic state or group of nations with a central government established usually through coercion (on the model of the Roman Empire). An empire will often include self-governing regions but these will possess autonomy only at the sufferance of the central government. The term empire, except where used metaphorically, is usually reserved for an entity headed by an emperor, although his or her constitutional role may be purely ceremonial. An empire may, in some cases, also consist of multiple kingdoms organised together with a high king designated as an emperor. One example of this was Imperial Germany.

[edit] Russian Federation
An interesting example is provided by the Russian Federation. It has inherited its structure from the Russian Soviet Federative Socialist Republic that was one of the 15 republics of the Soviet Union and itself was considered a federation. The RSFSR, however, consisted of "autonomous republics" which had a certain degree of autonomy, at least de jure, and of other types of administrative units (mostly oblasts and krais) whose status was the same as that of oblasts in other - unitary - Soviet republics. In today's Russia, republics, oblasts and krais, cities of federal importance, as well as one "autonomous oblast" and "autonomous districts" are equal in legal terms, save some symbolic features of a republic (constitution, president, national language). Some regions have concluded agreements with the Federation so as to modify the degree of their autonomy. It is also to be noted that several "autonomous districts" are part of the territory of a krai, a complicated system that is now being gradually abolished through referendums on merging certain regions.
Since 2004, governors of each region, who were previously elected by popular vote, have been appointed by local parliaments upon the proposals by the President of Russia. Local parliaments theoretically have authority to not agree with the candidate, but if this occurs twice the parliament must be dissolved and new elections held. This lets some argue that the Russian Federation is not a federation in the strictest sense and that it has rather a government representing a unitary system. [7][not in citation given]

[edit] Soviet Union (USSR)
The constitution of the 1922-1991 Soviet Union (USSR) theoretically provided for a voluntary federation or confederation of soviet socialist republics. Each was notionally governed by its own supreme council and had the right to secede. Furthermore, some republics themselves possessed further nominally self-governing units. Two of them, Belarus and Ukraine, were even members of the United Nations, some other republics had their own foreign ministries. In practice, the system of one-party government found in the Soviet Union meant that governance of the Union was highly centralised, with important decisions taken by the leaders of the Communist Party in Moscow and merely 'rubber stamped' by local institutions. Nonetheless, with the introduction of free, competitive elections in the final years of the Soviet Union, the Union's theoretically federal structure became a reality in practice; this occurred only for a brief interim period, as the elected governments of many republics demanded their right to secede and became independent states. Thus the Soviet Union's de jure federal structure played a key role in its dissolution.

[edit] Myanmar
Myanmar (formerly Burma) is claimed to have adopted federation status (the country's official name is "Union of Myanmar"). However, after General Ne Win seized power Burma in 1962 and abolished the Constitution of the Union of Burma, the country adopted a unitary system under his military dictatorship.

[edit] Constitutional structure

It has been suggested that this article or section be merged into federalism. (Discuss)

[edit] Division of powers
In a federation, the division of power between federal and regional governments is usually outlined in the constitution. It is in this way that the right to self-government of the component states is usually constitutionally entrenched. Component states often also possess their own constitutions which they may amend as they see fit, although in the event of conflict the federal constitution usually takes precedence.
In almost all federations the central government enjoys the powers of foreign policy and national defense. Were this not the case a federation would not be a single sovereign state, per the UN definition. The states of Germany retain the right to act on their own behalf at an international level. Beyond this the precise division of power varies from one nation to another. The constitutions of Germany and the United States provide that all powers not specifically granted to the federal government are retained by the states. The Constitution of Canada, on the other hand, states that powers not explicitly granted to the provincial governments are retained by the federal government. Much like the US system, the Australian Constitution allocates to the Federal government (the Commonwealth of Australia) the power to make laws about certain specified matters which were considered too difficult for the States to manage, so that the States retain all other areas of responsibility. Under the division of powers of The European Union in the Lisbon Treaty, powers are either exclusively of European competence, either shared between EU and states, either of supportive competence ,the rest of powers not mentioned are exclusively states powers.

In Canada, the provincial governments derive all their powers directly from the constitution. In contrast, the territories are subordinate to the federal government and are delegated powers by it.
Where every component state of a federation possesses the same powers, we are said to find 'symmetric federalism'. Asymmetric federalism exists where states are granted different powers, or some possess greater autonomy than others do. This is often done in recognition of the existence of a distinct culture in a particular region or regions. In Spain, "historical communities" such as Navarre, Galicia, Catalonia, and the Basque Country have more powers than other autonomous communities, partly to deal with their distinctness and to appease nationalist leanings, partly out of respect of privileges granted earlier in history.
It is common that during the historical evolution of a federation there is a gradual movement of power from the component states to the centre, as the federal government acquires additional powers, sometimes to deal with unforeseen circumstances. The acquisition of new powers by a federal government may occur through formal constitutional amendment or simply through a broadening of the interpretation of a government's existing constitutional powers given by the courts.
Usually, a federation is formed at two levels: the central government and the regions (states, provinces, territories), and little to nothing is said about second or third level administrative political entities. Brazil is an exception, because the 1988 Constitution included the municipalities as autonomous political entities making the federation tripartite, encompassing the Union, the States, and the municipalities. Each state is divided into municipalities (municípios) with their own legislative council (câmara de vereadores) and a mayor (prefeito), which are partly autonomous from both Federal and State Government. Each municipality has a “little constitution”, called “organic law” (lei orgânica). Mexico is an intermediate case, in that municipalities are granted full-autonomy by the federal constitution and their existence as autonomous entities (municipio libre, "free municipality") is established by the federal government and cannot be revoked by the states' constitutions. Moreover, the federal constitution determines which powers and competencies belong exlusively to the municipalities and not to the constituent states. However, municipalities do not have an elected legislative assembly.
Federations often employ the paradox of being a union of states, while still being states (or having aspects of statehood) in themselves. For example, James Madison (author of the US Constitution) wrote in Federalist Paper No. 39 that the US Constitution "is in strictness neither a national nor a federal constitution; but a composition of both. In its foundation, it is federal, not national; in the sources from which the ordinary powers of the Government are drawn, it is partly federal, and partly national...." This paradox stems from the fact that states in a federation maintain all sovereignty that they do not yield to the federation by their own consent. (Example: see the Tenth Amendment to the United States Constitution or Article 3 of the Constitution of the Swiss Confederation.) The sharing of sovereignty between a federation and its constituent states sometimes makes it difficult to differentiate between a sovereign state and a non-sovereign state.

[edit] Organs of government
The structures of most federal governments incorporate mechanisms to protect the rights of component states. One method, known as 'intrastate federalism', is to directly represent the governments of component states in federal political institutions. Where a federation has a bicameral legislature the upper house is often used to represent the component states while the lower house represents the people of the nation as a whole. A federal upper house may be based on a special scheme of apportionment, as is the case in the senates of the United States and Australia, where each state is represented by an equal number of senators irrespective of the size of its population.
Alternatively, or in addition to this practice, the members of an upper house may be indirectly elected by the government or legislature of the component states, as occurred in the United States prior to 1913, or be actual members or delegates of the state governments, as, for example, is the case in the German Bundesrat and in the Council of the European Union. The lower house of a federal legislature is usually directly elected, with apportionment in proportion to population, although states may sometimes still be guaranteed a certain minimum number of seats.
In Canada, the provincial governments represent regional interests and negotiate directly with the central government. A First Ministers conference of the prime minister and the provincial premiers is the de facto highest political forum in the land, although it is not mentioned in the constitution.
Federations often have special procedures for amendment of the federal constitution. As well as reflecting the federal structure of the state this may guarantee that the self-governing status of the component states cannot be abolished without their consent. An amendment to the constitution of the United States must be ratified by three-quarters of either the state legislatures, or of constitutional conventions specially elected in each of the states, before it can come into effect. In referendums to amend the constitutions of Australia and Switzerland it is required that a proposal be endorsed not just by an overall majority of the electorate in the nation as a whole, but also by separate majorities in each of a majority of the states or cantons. In Australia, this latter requirement is known as a double majority.
Some federal constitutions also provide that certain constitutional amendments cannot occur without the unanimous consent of all states or of a particular state. The US constitution provides that no state may be deprived of equal representation in the senate without its consent. In Australia, if a proposed amendment will specifically impact one or more states, then it must be endorsed in the referendum held in each of those states. Any amendment to the Canadian constitution that would modify the role of the monarchy would require unanimous consent of the provinces. The German Basic Law provides that no amendment is admissible at all that would abolish the federal system.

[edit] Other technical terms
Fiscal federalism - federalism involving the transfer of funds between different levels of government.
Formal federalism (or 'constitutional federalism') - the delineation of powers is specified in a written constitution.
Executive federalism (also known as 'administrative federalism').

[edit] Federalism as a political philosophy
Main articles: Federalism and Federalist
The meaning of federalism, as a political movement, and of what constitutes a 'federalist', varies with country and historical context. Movements associated with the establishment or development of federations can be either centralising or decentralising. For example, at the time those nations were being established, 'federalists' in the United States and Australia were those who advocated the creation of strong central government. Similarly, in European Union politics, federalists are mostly those who seek greater EU integration. In contrast, in Spain and post-war Germany, federal movements have sought decentralisation: the transfer of power from central authorities to local units. In Canada, where Quebec separatism has been a political force for several decades, the 'federalist' force is dedicated to keeping the federation intact and adapting the federal structure to better suit Quebec interests.

[edit] Internal controversy and conflict

The United Provinces of Central America was short-lived.
Certain forms of political and constitutional dispute are common to federations. One issue is that the exact division of power and responsibility between federal and regional governments is often a source of controversy. Often, as is the case with the United States, such conflicts are resolved through the judicial system, which delimits the powers of federal and local governments. The relationship between federal and local courts varies from nation to nation and can be a controversial and complex issue in itself.
Another common issue in federal systems is the conflict between regional and national interests, or between the interests and aspirations of different ethnic groups. In some federations the entire jurisdiction is relatively homogeneous and each constituent state resembles a miniature version of the whole; this is known as 'congruent federalism'. On the other hand, incongruent federalism exists where different states or regions possess distinct ethnic groups.
The ability of a federal government to create national institutions that can mediate differences that arise because of linguistic, ethnic, religious, or other regional differences is an important challenge. The inability to meet this challenge may lead to the secession of parts of a federation or to civil war, as occurred in United States and Switzerland. In case of Malaysia, Singapore was expelled from the federation because of rising racial tension. In some cases internal conflict may lead a federation to collapse entirely, as occurred in Nigeria, the Federation of Rhodesia and Nyasaland, the United Provinces of Central America and the West Indies Federation.

[edit] List of federations

[edit] Contemporary
Federation
Federating Units
Major Federating Units
Minor Federating Units
Argentina
Provinces of Argentina
23 provinces
1 federal district
Australia
States and territories of Australia
6 states
1 federal district/territory, 1 major territory, several minor territories
Austria
States of Austria
9 Bundesländer
Belgium
Divisions of Belgium
2 Communities, 2 Regions and 1 merged Community and Region
Bosnia and Herzegovina
Divisions of Bosnia and Herzegovina
2 entities
1 district
Brazil
States of Brazil
26 states
1 federal district and 5,561 municipalities
Canada
Provinces and territories of Canada
10 provinces
3 territories
Comoros
3 islands
Ethiopia
Regions of Ethiopia
9 regions
2 chartered cities
Germany
States of Germany
16 Länder or Bundesländer
India
States and territories of India
28 states
7 union territories including a national capital territory
Iraq
Governorates of Iraq
18 governorates, including 1 autonomous region
Malaysia
States of Malaysia
13 states
3 federal territories
Mexico
States of Mexico
31 states
1 federal district
FS Micronesia
4 states
Nigeria
States of Nigeria
36 states
1 territory
Pakistan
Provinces and territories of Pakistan
4 provinces
4 federal territories including a federal capital territory
Saint Kitts and Nevis
islands/parishes of Saint Kitts and Nevis
two islands/14 parishes
Sudan
States of Sudan
26 states
Switzerland
Cantons of Switzerland
26 cantons
United Arab Emirates
Emirates of the UAE
7 emirates
United States
Divisions of the United States
50 states
1 federal district; 1 incorporated territory, 13 unincorporated territories
Venezuela
States of Venezuela
23 states, 1 federal dependency
1 federal district

[edit] Long form titles
Federal Republic of: Brazil, Germany, Nigeria.
Federation: Saint Kitts and Nevis
Republic of: Argentina, Austria, India Also called as Indian Union , Iraq, Sudan.
Others:
Bolivarian Republic (Venezuela)
Confederation (Switzerland)
Commonwealth (Australia)
Dominion (Canada)
Federal Democratic Republic (Ethiopia)
Federated States (FS Micronesia)
Federative Republic (Brazil)
Kingdom (Belgium)
State (Nepal)
Union (Comoros)
United Mexican States (Mexico)
United Arab Emirates (United Arab Emirates)
United States of America (United States)
None: Bosnia and Herzegovina, Malaysia, Canada (Dominion had been used originally, but that has fallen into disuse).

[edit] Defunct
Tang Empire originally federation made out of the chinese empire, gokturk khanate, and kingdom of tibet, with the Emperor of china as head of state. fractured when tibet and the turks became enemies of the chinese empire
Austria-Hungary (1848–1918)
Inca Empire (1197–1572)
Confederate States of America (1861–1865)
Union of Soviet Socialist Republics [8] (1922–1991)
United Provinces of Central America (1823–~1838)
French West Africa (1904–1958)
French Equatorial Africa (1910–1960)
Socialist Federal Republic of Yugoslavia [9] (1945–1992)
Federal Republic of Yugoslavia (1992–2003)
United States of Indonesia (1949–1950)
United Kingdom of Libya (1951–1963)
Federated Malay States (1896–1946)
Federation of Malaya (1948–1963; gained independence in 1957, joined with Sabah, Sarawak, and Singapore to form Malaysia in 1963)
New Granada (1855–1886)
Federation of Rhodesia and Nyasaland (1953–1963)
West Indies Federation (1958–1962)
Mali Federation (1959–1960)
Federal Republic of Spain 1873–1874
Federal Republic of Cameroon (1961–1972)
Federation of South Arabia (1962–1967)
Czechoslovakia (1969–1992)
Uganda (1962–1967)
Imperial Federation (1884 –1919)[10]
Some of the proclaimed Arab federations were confederations de facto.

[edit] Footnotes
^ Forum of Federations
^ Economic Warlords by Gregory H. Fuller http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1151187
^ How the court made a federation of the EU [1] .Josselin (U de Rennes-1/CREM) and Marciano (U de Reims CA/CNRS).
^ Oxford English Dictionary
^ One of the most important recent books about the Belgian institutions, written by one of the leading French-speaking jurists concludes : Vers le confédéralisme (Toward a Confederation). See: Charles-Etienne Lagasse, Les nouvelles institutions politiques de la Belgique et de l'Europe, Erasme, Namur 2003, p. 603 ISBN 2-87127-783-4
^ Many Flemings would prefer two states, Flanders and Wallonia, and two special regions, Brussels and the German-speaking region. In Wallonia, there is a wider support for three states : Flanders, Wallonia and Brussels.
^ Russia's year of shrinking liberties BBC News
^ The USSR was a federation according to the letter of its constitution, but, at least until its final years in the late eighties and early nineties, its governance was highly centralised in practice. See: Soviet Union section.
^ The Socialist Federal Republic of Yugoslavia was officially proclaimed in 1963. Prior to this, the communist Yugoslav state was named Democratic Federal Yugoslavia in 1943 and then Federal People's Republic of Yugoslavia in 1946. See: Socialist Federal Republic of Yugoslavia.
^ The Imperial Federation was a proposal that never came into being. It was intended to supersede the British Empire, in which all colonies and dominions would be represented by a single Imperial Parliament under the Imperial Crown. The idea, however, was ahead of its time and the Imperial Federation gave way to the Commonwealth of Nations.
The government of Somalia led by Ali Muhammad Ghedi in Baidoa (along with the Transitional Federal Parliament) is a federation in name only; it does not control the city of Mogadishu or the breakaway republic of Somaliland.

FLEXIBLE AND RIGID CONSTITUTIONS

2008-10-21T18:15:00.000-07:00

Definition of Constitution State is the political organization which is administered by the group of person known as the government. When we say the government of a state, it means basically the executive, the legislative and the judiciary. But this government cannot run the state according to their whim and caprice. There has to be certain rules and principles on the basis and under the authority of which the government can run the state. This set of principle is called the Constitution In Black Law Dictionary, “The fundamental and organic law of a nation or state that establishes the institution and system of government, defines the scope of governmental sovereign powers, and guarantees individual civil rights and civil liberties.” According to Lord Bryce, “Constitution is the aggregate of laws and customs under which the life of the state goes on Classification Constitution is widely classified into two categories. 1. 2. Written & unwritten. Rigid & Flexible. Written & unwritten Written Constitution is one which the fundamental principles concerning state administration are embodied and which has, as a specific document, been passed by a specific body. U.S Constitution, Indian Constitution and Bangladesh Constitution are Written Constitution. On the other hand, where the constitution has not been passed formally as a specific document by a specific body and the fundamental principles concerning state administration exist in political customs, judicial decisions and in some scattered documents, the constitution is unwritten one. British Constitution is great example for unwritten constitution. Rigid & Flexible The distinction between Rigid and Flexible Constitution rests upon the method by which the constitution may be changed. The Constitution which can be amended by ordinary law making procedure is called Flexible Constitution. Ordinary law making procedure means, making law by simple majority. British Constitution is flexible constitution. On the other hand the constitution which can not be amended by ordinary law making process, need two-third majority for amended Constitution. Bangladesh Constitution is rigid constitution. Constitution State is the political organization which is administered by the group of person known as the government. When we say the government of a state, it means basically the executive, the legislative and the judiciary. But this government cannot run the state according to their whim and caprice. There has to be certain rules and principles on the basis and under the authority of which the government can run the state. This set of principle is called the Constitution. (Md Abdul Halim: Constitution, Constitutional law and Politics; Bangladesh Perspective) Tomas Paine remark that, “Government without a Constitution is a power without a right.” Like many other terms in political science, the term “constitution” has been variously defined by different writers according to the varying conception which they hold as to what Constitution should be. From Wikipedia, the free encyclopedia, We can find Constitution as, “A constitution is a system for governance, often codified as a written document that establishes the rules and principles of an autonomous political entity. In the case of countries, this term refers specifically to a national constitution defining the fundamental political principles, and establishing the structure, procedures, powers and duties, of a government. Most national constitutions also guarantee certain rights to the people. Historically, before the evolution of modern-style, codified national constitutions, the term constitution could be applied to any important law that governed the functioning of a government.” [By Wikipedia definition we can find that constitution is a state book of fundamental political principles, and establishing the structure, procedures, powers and duties, of a government, which help the government to guide the nation/state.] In Black Law Dictionary, “The fundamental and organic law of a nation or state that establishes the institution and system of government, defines the scope of governmental sovereign powers, and guarantees individual civil rights and civil liberties.” [By Black Law Dictionary definition constitution is a collection of fundamental and organic law of a nation or state which define the scope, duty, right & power of the sovereign government and which give the guarantee of civil right and civil liberties. That mean what will be state policy, what is the duty of the government, how they fulfill/ maintain it and what is the right of the government against people of the state.] Aristotle define, “The way of life the state has chosen for itself. [This definition is very ancient and no clear characteristics of a constitution can be found in it. He not defined what can be state life] According to C. F. Strong, “A constitution may be said to be a collection of principle according to which power of the government, the right of the governed and the relation between the two are adjusted.” [Strong’s definition is more or less a defective one.] According to Lord Bryce, “Constitution is the aggregate of laws and customs under which the life of the state goes on.” [This definition by Bryce is a narrower one. Because being influenced by the constitutional system of Britain Bryce has defined Constitution as an aggregate of custom. But it is the fact that expects Britain and New Zealand nowhere in the world a Constitution can be found which can be said to be aggregate of customs.] Constitution is a body of rules written or unwritten which determine the organization of the state of the, the distribution of powers within the principal organs of the government and the relation between the government and the governed. At last, Constitution is the supreme law of the land, which guide the government to make state policy and which define the scope, duty, right & power of the sovereign government and people. Give guarantee to keep civil right and civil liberties.