State organisation law of the U.S. as part of globalisation, global constitutionalism (See: Prof. Mathias Kumm)
What is the origin of the State?
Organic/Historical Theory: ARISTOTLE
Family, Extended Family, Clan, Tribe, Polis, League of Polises
Seems historically tenable.
Per Aristotle:
-Man is a rational talking social animal, inherently curious
-Slavery is natural and good
-Happiness is the highest goal of life in political society. The object of the state is to attain the good life for all.
*”We do not allow a Man to rule but Rational Principle, for a Man decides in his Own interested — and thus becomes a Tyrant.”
–First idea of the rule of law State.
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Contract Theory
-Requires capacity to contract
-How is will manifested?
-Why does contract bind succeeding generations?
-“State of Nature” (SON) never existed: Humans by nature are social and interdependent.
Hobbes SON – “poor, nasty, brutal and short”, a war of all against all, the law of the jungle, natural right to self defence
Citizens alienate right to self defence to a strong man. “a common power to keep them all in awe”.
Rousseau’s SON – primitive communism, instinctive, natural, comfortable, plentiful, no property. (influences Marx)
Locke’s SON – like the garden of eden, impoverished but peaceful.
Social Contract NOT historically tenable BUT corresponded fairly accurately to the U.S. colonial experience!
U.S. a “great experiment” “novus ordo saeclorum”.
*Multiracial (Natives, Europeans, Africans)
*Multinational (Britons, Germans, Dutch, Swedes, French)
*Several religions (various Protestant sects, Catholics, Jews, Natives)
*Secular State – because European religious wars caused European refugees to flee for their lives to the Americas.
*No Aristocracy – they thought about whether to have a king, (elected: for life tenure?) and decided not to.
*Limited Self Government – since the state is not a giant family it does not and cannot do everything
-Plenty of dictatorships still exist.
-Plenty of aristocratic states still exist.
*Freedom of Trade
All these things were revolutionary and led to the revolutions in France,(1789), Europe (1848), Russia (1917) and China (ca. 1920-1949).
Written Constitution, unlike Britain’s which was unwritten.
Thus: judicial review possible. This implies:
*Enforceable constitutional rights. Constitutional rights Not as political claims but as enforceable legal rights.
MODERNITY (NEUZEIT) IS THIS:
The replacement of war by politics, (negative sum)
the replacement of politics by law, (zero sum)
the replacement of legal conflict with economic trade. (positive sum)
Rise of Judicial Review (Revisionsverfahren)
We saw in Bonham’s case:
1) No one may be a judge in their own cause (another principle of the rule of law State)
2) Principle of freedom of commerce: The Doctor wanted to practice his business. Customary common law reviews restraints on trade with skepticism and
interprets such laws restrictively. (Foreshadowing “strict scrutiny” in proportionality, strictu sensu).
3) Coke argues that customary common law and/or Magna Charta are somehow superior to Irrational laws (Foreshadowing: “Rational Review” -proportionality latu sensu).
Bonham’s case gets rejected in England after the U.S. Revolution and replaced with the principle of Parliamentary Supremacy (City of London: Parliament can do
no wrong). Parliamentary supremacy won in England because
1) Customary law is always somewhat ambiguous.
2) Lex posterior derogat legi priori – laws passed later in time abrogate earlier laws.
We will be looking this week at what happened in the U.S.
The easiest way to understand the U.S. Constitution is to see it as a codification (lex scripta) of the British Constitution in 1776 (which was lex non
scripta). Example: All British customary common law in 1776 is presumed to be U.S. law unless the State or Federal legislature specifically overrules it.
State succession.
The U.S. Constitution —
Functionalism: Specialized institutions are more efficient due to greater expertise. Formation of transnational neutral expertise. The first example of
functionalism in Western Democratic Liberalism is the principle of:
Separation of Powers
-Montesqieu
-Haudenosaunee Great Law of Peace
*The legislator predicts: “ex ante” – before the transaction
*The judge decides “ex post” – after the transaction
*Executive enforces decisions
Checks and balances (gegenseitige Einhemmung)
*Legislator – power of the purse (U.S. Congress, U.K. Parliament)
*Executive – power of the sword
*Judiciary – power of judgement
Federalism – Federal government limited to trade and international relations
State governments have all other powers.
-Also from the Haudenosaunee Great Law of Peace
Bicameralism – vestige of aristocracy: Senate to protect the interests of the very wealthy, over-sight, wisdom,
-Reflection of British House of Commons (U.S. House of Representatives) / House of Lords Split (U.S. Senate)
Terms of office:
President – Four years
Senate – Six years, 1/3 elected ever 2 years
House of represantatives – 435 – all are elected ever 2 years
Supreme Court: Life Tenure.
Citation Style:
Volume (=Band) Reporter First Page, Page Cited (Year).
Van Horne’s Lessee v. Dorrance 2 U.S. (2 Dallas) 304 (1795)
Holding = Operative Part = Tenor der Entscheidung
Dicta = Nicht geltendes Recht, nur Meinung des Richters
Fundamental Right to Property
1) Rise of fundamental rights (=hierarchically superior to ordinary laws).
2) Relativization of fundamental rights against other fundamental rights (=how to resolve conflicts between fundamental rights)
The State of Pennsylvania may not take private property for private use.
Question of Law – judge
Question of Fact – jury
Vested Rights
Executory Rights
Hortatory Rights