Social Choice Session 18

1. Social Choice Session 18 Carmen Pasca and John Hey

2. The key features of Constitutions • This lecture is about different constitutions, particularly those of the US, France and Italy. • The universal principles embodied in the Constitutions are related with the history, the tradition and the culture of each nation. • These three elements make the difference between the fundamental principles on which Constitutions are based. • History has a strong impact on the shape of institutions.

3. The history • In the modern sense, and current technical term, we talk about Constitution only from a very specific historical moment: that of the large bourgeois liberal revolutions, American and French from the late eighteenth century. • Montesquieu, Rousseau: these assume the convergence of three basic principles of contemporary constitutionalism. • The democratic principle that the people holds the constituent power. • The liberal principle based on the defence and guarantee of rights and Freedoms to people by the statements of rights and separation of powers. • The principle of constitutional supremacy ( the constitution is the supreme law).

4. The main ideas • Is important to note that the Constitution primarily contains general principles ; is not possible to apply them directly. • In many written constitutions , only a few articles are considered to be self executing . • The majority require enabling legislation, referred to as accomplishment of constitution. • In the European constitutional tradition, when the Constituent assembly drafted the Constitution , is made a deliberate choice in attributing to it a supra-legislative force, so that ordinary legislation could not amend or derogate from it. • Legislatives acts of parliament in conflict with the Constitution are subsequently annulled by the Constitutional Court.

5. The democraticprinciple • The precondition for the appearance of this principle was the process of secularisation of the State. • The State became “oeuvre humaine” and the people got the power to decide the social and political order; it is the people's duty to establish the modes and forms of organization of social life. • This circumstance is the precise determinant of the difference between constitutional government and other policies adopted by the state since its birth in the fifteenth century.

6. U Constitution, the Preamble • 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." — Preamble to the Constitution • The Constitution of the United States of America is the supreme law of the United States. Empowered with the sovereign authority of the people by the framers and the consent of the legislatures of the states, it is the source of all government powers, and also provides important limitations on the government that protect the fundamental rights of United States citizens.

7. Why a Constitution? • The need for the Constitution grew out of problems with the Articles of Confederation, which established a "firm league of friendship" between the states, and vested most power in a Congress of the Confederation. • A movement to reform the Articles began, and invitations to attend a convention in Philadelphia to discuss changes to the Articles were sent to the state legislatures in 1787. • In May of that year, delegates from 12 of the 13 states (Rhode Island sent no representatives) convened in Philadelphia to begin the work of redesigning government. • The delegates to the Constitutional Convention quickly began work on drafting a new Constitution for the United States.

8. The Constitutional Convention (1787 • The political process initiated by Convention. • To separate the power of government into three branches, and then to include checks and balances on those powers to assure that no one branch of government gained supremacy. • Two plans competed to become the new government: the Virginia Plan, which apportioned representation based on the population of each state, and the New Jersey Plan, which gave each state an equal vote in Congress. • The Virginia Plan was supported by the larger states, and the New Jersey plan preferred by the smaller. • In the end, they settled on the Great Compromise (sometimes called the Connecticut Compromise), in which the House of Representatives would represent the people as apportioned by population; the Senate would represent the states apportioned equally; and the President would be elected by the Electoral College. The plan also called for an independent judiciary.

9. The social contract again... • The founders also took pains to establish the relationship between the states. • States are required to give "full faith and credit" to the laws, records, contracts, and judicial proceedings of the other states, although Congress may regulate the manner in which the states share records, and define the scope of this clause. States are barred from discriminating against citizens of other states in any way, and cannot enact tariffs against one another. • States must also extradite those accused of crimes to other states for trial.

10. Making amendments • The founders also specified a process by which the Constitution may be amended, and since its ratification, the Constitution has been amended 27 times. • In order to prevent arbitrary changes, the process for making amendments is quite onerous. • In modern times, amendments have traditionally specified a timeframe in which this must be accomplished, usually a period of several years. Additionally, the Constitution specifies that no amendment can deny a state equal representation in the Senate without that state's consent.

11. The Convention • The Convention got down to the work of actually setting the Constitution to paper. It is written in the hand of a delegate from Pennsylvania, Governor Morris, whose job allowed him some reign over the actual punctuation of a few clauses in the Constitution. • He is also credited with the famous preamble, quoted at the top of this page. • On September 1787, 39 of the 55 delegates signed the new document, with many of those who refused to sign objecting to the lack of a bill of rights. • At least one delegate refused to sign because the Constitution codified and protected slavery and the slave trade.

12. The Bill of Rights • One of the principal points of contention between the Federalists and Anti-Federalists was the lack of an enumeration of basic civil rights in the Constitution. • Many Federalists argued, as in Federalist No. 84, that the people surrendered no rights in adopting the Constitution. In several states, however, the ratification debate in some states hinged on the adoption of a bill of rights. The solution was known as the Massachusetts Compromise, in which four states ratified the Constitution but at the same time sent recommendations for amendments to the Congress. • The solution was known as the Massachusetts Compromise, in which four states ratified the Constitution but at the same time sent recommendations for amendments to the Congress.

13. The sources of the Bill of Rights • Based on the Virginia Declaration of Rights, the English Bill of Rights, the writings of the Enlightenment, and the rights defined in the Magna Carta, the Bill of Rights contains rights that many today consider to be fundamental to America. • The First Amendment provides that Congress make no law respecting an establishment of religion or prohibiting its free exercise. It protects freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances. • The Second Amendment gives citizens the right to bear arms. • The Third Amendment prohibits the government from quartering troops in private homes, a major grievance during the American Revolution.

14. The Amendments • The Fourth Amendment protects citizens from unreasonable search and seizure. The government may not conduct any searches without a warrant, and such warrants must be issued by a judge and based on probable cause. • The Fifth Amendment provides that citizens not be subject to criminal prosecution and punishment without due process. Citizens may not be tried on the same set of facts twice, and are protected from self-incrimination (the right to remain silent). The amendment also establishes the power of eminent domain, ensuring that private property is not seized for public use without just compensation.

15. The Amendments • The Sixth Amendment assures the right to a speedy trial by a jury of one's peers, to be informed of the crimes with which they are charged, and to confront the witnesses brought by the government. The amendment also provides the accused the right to compel testimony from witnesses, and to legal representation. • The Seventh Amendment provides that civil cases also be tried by jury. • The Eighth Amendment prohibits excessive bail, excessive fines, and cruel and unusual punishments. • The Ninth Amendment states that the list of rights enumerated in the Constitution is not exhaustive, and that the people retain all rights not enumerated. • The Tenth Amendment assigns all powers not delegated to the United States, or prohibited to the states, to either the states or to the people.

16. The Italian Constitution • Italy is a democratic Republic based on labour. • The Italian Constitution was enacted by the Constituent Assembly on 22 December 1947 with 453 votes in favor and 62 against. • The text, which was since been amended 14 times . • The Constituent Assembly was elected by universal suffrage on 2 June 1946, at the same time as a referendum on the abolition of the monarchy. • The constitution came in force on 1 January 1948 , on century after the “StatutoAlbertino”.

17. The Italian way • The Italian Constitution is born on with an historic compromise between three political forces after the collapse of fascism: communists, socialists and christian-democrats. • The labour represents the symbol of the ideology of the three political forces. • Labour as a core value has been formulated by the communists and socialists. • Fascist ideology also focused on labour as the foundation of society.

18. The structure of Italian Constitution and Articles • The constitution is composed of 139 articles and arranged into free main parts: • Fundamental Principles (art.1-12); Part 1 concerning Rights and Duties of Citizens (art. 13-54); • Part II Organization of the Republic (art. 55-139)¸followed by Transitory and Final Provisions. • Articles 13-28 are the Italian equivalent of a bill of rights in common law jurisdictions. • Power is divided among the executive , the legislative and juridical branches; the Constitution establishes the balancing and interaction of these branches, rather the rigid separation.

19. The Constitutional Articles • Article 1. ( Form of State) • Italy is a democratic republic based on labour. • The sovereignty belongs to the people who exercise it in the forms and limits of the constitution. • Article 2. ( Human Rights) • The republic recognizes and guarantees the inviolable human rights. • Examples of Economic Relations: articles- “Labor”, “Wage”, “Equality of Woman at Work”, “Welfare”, “Trade Unions”, “Right to Strike”, “Property”. • Examples of the Political Rights: “Voting Rights”, “Political Parties”, “Petitions”, “Public Offices”. • Article 7 recognizes the special status given to the Catholic Church by the Lateran Treaty in 1929. That status was modified by a new agreement between church and state in 1984. • Article 8 establishes the liberty of all religions before the law ,

20. The French Constitution, the preamble • “Liberté, Egalité, Fraternité” which are the values of the French Revolution. • « Déclaration des droits de l’homme et du citoyen »is based on provisions concerning the rights of three categories of people: the "rights of men" (the French, foreigners or enemies), which reproduce provisions of the law, "the rights of citizens" (French citizens ) ,which recall or strengthen civil liberties and "rights of the Society (the Nation). • The Declaration sets out the principles of society, based on the new legitimacy. • Each article condemns the institutions and practices of the Ancien Regime (absolutist, centralized administration).

21. The revisions process • The FrenchConstitutionhas undergone several reforms up to the 1958 Constitution. • Fifth Republic, system of government in France from 1958. • Under the constitution crafted by Charles Gaulle with the help of Michel Debré, executive power was increased at the expense of the National Assembly. • The current Constitution of France was adopted on 4 October 1958. • It is typically called the Constitution of the Fifth Republic. • Today, the Constitution is as far from the 1958 text than is the France of the early twenty-first century compared to the middle of last century.

22. The FrenchConstitution • The current Constitution of France was adopted on 4 October 1958. It is typically called the Constitution of the Fifth Republic. • It sets out a semi-presidential regime, which ushered in a balance of power between the President and the Parliament based on the same legitimacy of universal suffrage. • France is a secular republic; the institutions of governance of France are defined by the Constitution, more specifically by the current constitution, being that of the Fifth Republic. • The Constitution has been modified several times since the start of the Fifth Republic, most recently in July 2008, when the French "Congress" (A joint convention of the two chambers of Parliament) approved - by 1 vote over the 60% majority required – constitutional changes proposed by President Sarkozy.

23. The reviewprocess • The right to reform the basic text belongs to the people • Any legislation is the product of a political context, a balance of power dictated by economic and social conditions, sometimes by outside influences. • Supreme law that establishes rules for the nation, it can be amended only by a special procedure that makes any constitutional reform surrounded by a strong political act in a certain solemnity. • This is why almost all the constitutions of the republican history accurately codify the rules of the review. The text of the October 4, 1958 falls within this line: a title, Title XVI "revision " and an article on 89, were specially devoted to this theme. • No review can undermine the territorial integrity or the republican form of government

24. French Republic accordingto the Constitution. • France is an indivisible, secular, democratic and social Republic. • It ensure the equality before the law for all citizens without distinction of origin, race or religion. • It respects all beliefs. • Its organization is decentralized. • The law favours equal access for women and men to electoral mandates and elective functions, as well as professional and social responsibilities. • Declaration of the Rights of Man and of the Citizen from 1789 and establishes France as a secular and democratic republic, deriving its sovereignty from the people.

25. The Principles of the French Constitution • The French Republic has one explicit principle and one only, set forth in the fifth line of article 2 of the Constitution and directly borrowed from Lincoln: "Government of the people, by the people”. • But no matter how well expressed and how inspiring, this principle is the one the Republic has espoused, without in fact always showing an equally effective concern for its implementation.

26. A Constitutionmustguaranteerights • The preamble to the Constitution of 4 October 1958 explicitly refers to two previous texts, to which the French people solemnly proclaim their attachment: the 1789 Declaration of the Rights of Man and the Citizen, and the preamble to the 1946 Constitution. • Liberty and equality are enshrined, being both affirmed generally and in some instances spelled out, and enriched, in the light of experience, with the principle of human dignity, reflected and consolidated by economic and social rights, exercised collectively as well as individually.

27. The common ideals • “By virtue of these principles and that of the self-determination of peoples, the Republic offers to the overseas territories which have expressed the will to adhere to them new institutions founded on the common ideal of liberty, equality and fraternity and conceived for the purpose of their democratic development”. • “The fraternity” emboded the idea ofsolidaritythroughallfrenchcitizens.

28. The Constitution must also provide for the separation of powers. • But if, as article 16 of the 1789 Declaration says, a Constitution must guarantee rights, it must also, faithful to Montesquieu, organize the separation of powers. • And those powers have first to be shaped before they can be distinguished. • The executive has two heads. • This is troubling for the foreign observer, as it sometimes is for the French citizen himself, who does not always understand the logic of the relationship between President and Prime Minister

29. Three major characteristics of French Constitution. • Three major characteristics • Basically, it guarantees the functioning of a system which has three major characteristics: • The governed choose the governors, since the outcome of an election leads directly and immediately to the handing over of power to the winner(s). • The governors have the means of governing, since rationalized parliamentarianism ensures the stability and power of the majority bloc; • The governors are effectively answerable to the governed, since the latter always have an alternative solution, at the next election, if they are dissatisfied with the outgoing majority.

30. Conclusion France • The French Constitution is based on republican universalism. • This principle represent the republican ideology. • The French Republic is the universalvaluebecauseit prone the universalvalues ( Liberté, Egalité, Fraternité) inside the Republic • Theseprinciples are universalbecausethese values ​​are adopted and applied by all French citizens irrespective of race and religion. • That is why in France we distinguish between nationality and citizenship. • The subjective conception of nationality based on the freely expressed a common future and not on criteria of language, religion, ethnic or geographic origins.

31. Conclusion France • “Une langue, un people, un état”. • Nationality is acquired by "birthright“or “droit du sang”. • Nationality is acquired by “jus soli”. • By the procedure of naturalization. • From the legalpointofvue, the nationalityis a necessary condition but not sufficient, to acquire the citizenship. • It should also enjoy his civil and political rights. • Child who obtained French nationality, becomes french citizen no until 18 age, age of acquiring the right to vote.

32. Conclusion Italy • The ItalianConstiutionis more recentthanfrenchconstitution • From theory to practice of the Italian Constitution, there is a gap... • The 1947 constitution to introduce a parliamentary system seems fairly stable but by its rigidity and the voting system establishes what she may suffer abuses. • In fact, its passage was difficult until the turn of 1993. • The monopoly of power, the political sclerosis, the “manipulite”. • The historical influence on the organization of the Italian power • Italy has known throughout its history that two different constitutions • ,

33. Conclusion US • The US Constitution is the most brief and “pragmatic” Constitution in the world . • The Philadelphia Convention ( 1787) was the compromise between federalistes and anti-federalists. • 1787-1789 the Constitution was adopted. • The final result of this Convention was the Constitution, which proposed one system with the powers was shared between federal government and the States of Confederation. • The national government is divided in three branchs (Congress, President and Courts). • The Bill ofRightsis the guarenteeof the freedoms ( religion, expression, the freedomof the press).

34. Conclusion US • It is later than thirteen years for his application, eleven years for his writing, eleven years for his writing the Declaration of Independence that created the U.S. • The preambleof the US constitutionmark the difference with the other original Constitutions. • The Constitutionisdivided on articles and sections (27 amendementsuntilnow). • The typeofConstitution: federal • The federalpower, the separationofpowers, the sharedresponsabilitiesbetweenfederated states and the federal state. • The major characteristic of the US Constitutionisthe will to protect citizens against any abuse of power!