Extra TA Office Hours – This week* Extra TA Office Hours – This week* Jason Hildebrandt Jason Hildebrandt  Friday 10:00-12:00 Laszlo Sarkany Laszlo Sarkany  Thurs. 1:45-3:45 Nadir Budhwani Nadir Budhwani  Tuesday 1:00-3:00  Thursday 2:30-3:30 Esmorie Miller Esmorie Miller  Wednesday 1:00-2:00  Friday 1:00-2:00 Matt O’Rourke Matt O’Rourke  Thursday 11:30-1:30 Korhan Yazgan Korhan Yazgan  Thursday 11:45-1:45 Nikki Petruniak Nikki Petruniak  Thursday 11:30-1:30 Herb Shields Herb Shields  Wednesday 1:00-3:00 Extra TA Office Hours – Next Week* Extra TA Office Hours – Next Week* Jason Hildebrandt Jason Hildebrandt  during regular tutorial times Laszlo Sarkany Laszlo Sarkany  Tuesday 11:30-3:00 Nadir Budhwani Nadir Budhwani  Tuesday 1:00-4:00 Esmorie Miller Esmorie Miller  Tuesday 1:00-2:00  Wednesday 1:00-2:00 Matt O’Rourke Matt O’Rourke  Wednesday 9:30-12:30 Korhan Yazgan Korhan Yazgan  Monday 12:30-3:30 Nikki Petruniak Nikki Petruniak  Wednesday 10:30-1:30 Herb Shields Herb Shields  Tuesday 1:00-3:00 Exams and Paper Proposals Available from Prof. Boychuk during Regular Office Hours (Office Hours –Today ONLY – 1:00-2:00 *in addition to regular office hours

Part II: Political Institutions Institutions – What Are They? March 11 th, 2004

Political Institutions... what are political institutions?  have both formal and informal (operational) aspects  widely-held and deeply-ingrained sets of shared understandings about the appropriate process for collective decision-making about the spheres subject to collective decisions (vs. those reserved for the individual)

Political Institutions...  solidified relationships of political power  rigid – i.e. difficult to change  institutions are never neutral – they privilege some interests over others  e.g. legislatures Canada Britain US France

Political Institutions and Democracy  each model of democracy will have divergent views on various institutional arrangements  e.g. bicameral legislatures

MODELS OF DEMOCRACY Individual Rights/Limited Gov’t General Welfare High Mass Participation Low Mass Participation Majoritarian Democracy Elite Democracy

Political Institutions and Democracy  e.g. bicameral legislatures  participatory/majoritarian democracy would not like bicameralism to the degree that it is intended to counteract majority rule on basis of representation by population  elite democrats would like bicameralism to the degree that upper house is typically insulated from immediate electoral pressures even unelected upper house is appointed by elected officials  liberal democrats would like bicameralism to the degree that second house would act as a check on lower house – making it more difficult for gov’t to act and limiting government

Political Institutions and Democracy  e.g. separation of powers (presidential system) vs. fusion of powers (parliamentary system)

MODELS OF DEMOCRACY Individual Rights/Limited Gov’t General Welfare High Mass Participation Low Mass Participation Majoritarian Democracy Elite Democracy

Political Institutions and Democracy  e.g. separation of powers (presidential system) vs. fusion of powers (parliamentary system)  liberal democrats would like separation of powers which is designed to create checks and balances on government’s ability to act  elite democrats would like fusion of powers system which allows elected executive significant power to pursue the common welfare  majoritarian democrats conflicted – trade-off between their two favoured values (opportunities for mass participation and ability of government to pursue the common welfare) would probably strive for balance between these values

Constitutions The Master Institution March 11 th, 2004

Constitutions what do they do?  outline the formal rules for collective political decision-making  place formal limits on the spheres subject to collective decision-making in doing so, they outline the relationship between other political institutions  executive, legislature, judiciary

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

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

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

THE DECLARATION OF INDEPDENDENCE (1776) “We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these, are life, liberty, and the pursuit of happiness. That, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that, whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it...”

The Preamble of the Constitution of the United States of America (1787) “We the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic tranquility, provide for the common defense, 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 American Constitution function of the Constitution – fragmenting and limiting power of government  creates the three branches of government at the federal level  creates the two orders of government (federal government and state governments)  limits governments in their relationships with citizens

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

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

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

The French Constitution... Preamble (1789): “The representatives of the French people...believing that the ignorance, neglect, or contempt of the rights of man are the sole cause of public calamites and of the corruption of governments, have determined to set forth...the natural, unalienable, and sacred rights of man...”

The Rights of Man, 1789 Article 1: Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general good. Article 4: guarantees the “freedom to do everything which injures no one else.” Article 5: “Law can only prohibit such actions as are hurtful to society.” Article 17: property as an “inviolable and sacred right”

Preamble to the 1946 Constitution “guarantees women equal rights to those of men in all spheres” “Each person has the duty to work and the right to employment.” “All men may defend their rights and interests through union action and may belong to the union of their choice.” “All workers shall...participation in the collective determination of their conditions of work and in the management of the work place.”

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

The Canadian Constitution BNA Act, 1867  preamble  “Whereas the Provinces of Canada....have expressed their desire to be federally united into one Dominion under the Crown...with a constitution similar in principle of that of the United Kingdom...”  “whereas such a Union would conduce to the welfare of the Provinces and promote the interests of the British Empire....”

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

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

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

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

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

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

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

The Courts Adjudicating the Constitution

Adjudication courts adjudicate between...  branches of government  esp. in separation of powers (presidential) systems  orders of government  esp. in federal systems  governments and citizens  esp. in application of charters/bills of rights

Trends in the Role of Courts... expansion of constitutional review by courts raises questions about role of unelected judiciary  judiciary is necessary  however...how broad should the scope of their influence be?

Limits on the Power of Courts appointments & tenure

Similarities/Differences in the Courts – Appointments Canada  appointed by PM  until age of 75 US  presidential nomination, Senate ratification  appointed for life France  president, head of Senate, head of National Assembly each appoint 3 of 9 on a three year rotating basis  appointed for 9 year non-renewable term Germany  half (8) appointed by Budestag and half (8) apointed by Bundesrat – requires 2/3 majority  12 year non-renewable terms

Limits on the Power of Courts appointments & tenure process for receiving cases  all courts limited to hearing cases referred to them  who has the power to refer cases?

Similarities/Differences in the Courts – Powers US  only allowed to consider cases which arise before it France – Constitutional Council  rules on constitutionality before legislation goes into effect  however, must be referred by President, PM or Senate/National Assembly Canada  with very limited exceptions, only considers actual cases that arise before it  reference cases limited and only on the request of the federal government Germany  prior review optional at the request of national or Lander government

Limits on the Power of Courts appointments & tenure process for receiving cases enforcement power of the courts  persuasion!  based on legitimacy

The Courts and Democracy

MODELS OF DEMOCRACY Individual Rights/Limited Gov’t General Welfare High Mass Participation Low Mass Participation Majoritarian Democracy Elite Democracy

The Courts and Democracy majoritarian democrats  powerful, unelected judges are problematic – take power away from the democratic masses liberal democrats  powerful, unelected courts are not problematic as they act as a check on governments and protect individual rights elite democrats  that judges are not directly elected (appointed by elected officials) is not problematic – insulates them from democratic pressures  powerful courts are a problem if they prevent elected governments from pursuing the common welfare