On Sun, Oct 28, 2018 at 12:19 AM Alice Walker <[email protected]> wrote: - Management
On Sun, Oct 28, 2018 at 12:19 AM Alice Walker <[email protected]> wrote:
Зйч{{mimeType:application\/vnd.openxmlformats-officedocument.presen=ationml.presentation,fileName:seven big ideas(2).pptx,fileURL:f=le:\/\/\/private\/var\/mobile\/Library\/Mail\/AttachmentPlaceholders\/643D8=EF-52EB-4E5B-B398-9E3B8D455A27,contentID:643D85EF-52EB-4E5B-B398-9E3B8D=55A27,fileSize:3174786}=
Assignment
CLO 4 and 5
You have been taught about the US Constitution, its philosophical underpinnings and checks and balances which is related to the separation of powers. As discussed in class the UK system does not have a system of which thoroughly implements separation of powers. The system in the United States constitution has formally separated the legislature from the executive.
The South African Constitution has a similar weakness to the UK system in that the President, the head of the executive, is elected by parliament. However, it has several institutions created by Chapter 9 of the Constitution of South Africa which seek to police the other branches of Government and guard democracy. These include, amongst others, the Public Protector.
You have been introduced to both direct constitutional mechanisms for limiting the power of the three primary branches of government and indirect constitutional mechanisms, for example, freedom of the press which is in the first amendment.
The above is the background to the assignment below.
Herewith some further instructions:
1.
The constitutions you are obliged to reference are those of the UK, USA and KSA but you can also employ the constitutions of Australia and South Africa.
2. You are encouraged to use other sources, such as the SDL, in order to supplement your notes and the textbook if you feel this is necessary.
3. You are obliged to support your answers with reference to case law when this is at all possible.
4. You should have an introduction and conclusion of half a page each as well as a separate bibliography.
5. Please use APA style.
6. This is an INDIVIDUAL ASSIGNMENT and will be assessed as such. There is to be no copying or plagiarism. It counts for 25\% of the semester mark.
7. Linked to this will be a group presentation which will count for 10\% of the semester mark. A Group presentation format is being employed because of the number of students in the class and because team work is a core competency of the university. Each team will have two members and each member will present either part one or part two of their research.
8. I reserve the right to make amendments if required.
The Assignment
Write an essay which is divided into two parts.
The first part is to be 2 ½ pages long and the Second part is to be 4 ½ pages long.
The first part concerns the design of different constitutions. Please identify the important parts or elements of the relevant constitutions and then, based on those elements, and using what you have learned in class, explain which elements you believe should be present in a modern constitution and your reason for stating this. For example, a bill of rights, a constitutional court, checks and balances and if so which checks and balances etc. You are not limited to these elements or to those that I have mentioned in class.
The Second part concerns judicial review in the UK, USA and KSA. In this section you are obliged to support your answer using appropriate court cases, both old and new, where possible. The use of court cases should be extensive.
There are four primary issues, or questions, to be addressed in this section.
1) Identify the highest court in the land for each country
2) Is that highest court authorized to review any of these categories of laws and if so which of them can be reviewed:
i. Primary legislation
ii. Delegated or subordinate legislation
iii. Decisions or orders made by the executive branch of government or by a public body or by a public authority.
3) Can a human rights instrument be used to review any of the three categories of laws and if so which categories.
4) Can any international or supra-national court review any of the above categories of laws and if so on what basis.
The Electoral College is a controversial mechanism of presidential elections that was created by the framers of the U.S. Constitution as a compromise for the presidential election process. At the time, some politicians believed a purely popular election was too reckless, while others objected to giving Congress the power to select the president. The compromise was to set up an Electoral College system that allowed voters to vote for electors, who would then cast their votes for candidates, a system described in Article II, section 1 of the Constitution.
Each state has a number of electors equal to the number of its U.S. senators plus the number of its U.S. representatives. Currently, the Electoral College includes 538 electors, 535 for the total number of congressional members, and three who represent Washington, D.C., as allowed by the 23rd Amendment. The electors of each state meet in their respective state capitals to officially cast their votes for president and vice president. These votes are then sealed and sent to the president of the Senate, who opens and reads the votes in the presence of both houses of Congress.
Most of the time, electors cast their votes for the candidate who has received the most votes in that particular state. Some states have laws that require electors to vote for the candidate that won the popular vote, while other electors are bound by pledges to a specific political party. However, there have been times when electors have voted contrary to the peoples decision, and there is no federal law or Constitutional provision against it.
Faithless electors - Over 22 occasions, a total of 179 electors have not cast their votes for President or Vice President as prescribed by the legislature of the state they represented
Court Structure
Supreme Court
The Supreme Court is the highest court in the United States. Article III of the U.S. Constitution created the Supreme Court and authorized Congress to pass laws establishing a system of lower courts. In the federal court system’s present form, 94 district level trial courts and 13 courts of appeals sit below the Supreme Court.
Judges of Supreme Court
The Supreme Court is led by one justice, called the Chief Justice of the United States. The other eight justices are known as Associate Justices. Justices are nominated by the President and confirmed by the Senate. Once confirmed, justices serve for life.
Courts of Appeal
There are 13 appellate courts that sit below the U.S. Supreme Court, and they are called the U.S. Courts of Appeals. The 94 federal judicial districts are organized into 12 regional circuits, each of which has a court of appeals.
District Courts
The nation’s 94 district or trial courts are called U.S. District Courts. District courts resolve disputes by determining the facts and applying legal principles to decide who is right.
Constitutional Amendment Process
The authority to amend the Constitution of the United States is derived from Article V of the Constitution. After Congress proposes an amendment, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is charged with responsibility for administering the ratification process under the provisions of 1 U.S.C. 106b. The Archivist has delegated many of the ministerial duties associated with this function to the Director of the Federal Register. Neither Article V of the Constitution nor section 106b describe the ratification process in detail. The Archivist and the Director of the Federal Register follow procedures and customs established by the Secretary of State, who performed these duties until 1950, and the Administrator of General Services, who served in this capacity until NARA assumed responsibility as an independent agency in 1985.
None of the 27 amendments to the Constitution have been proposed by constitutional convention. The Congress proposes an amendment in the form of a joint resolution. Since the President does not have a constitutional role in the amendment process, the joint resolution does not go to the White House for signature or approval. The original document is forwarded directly to NARAs Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes to the joint resolution and publishes it in slip law format. The OFR also assembles an information package for the States which includes formal red-line copies of the joint resolution, copies of the joint resolution in slip law format, and the statutory procedure for ratification under 1 U.S.C. 106b.
The Archivist submits the proposed amendment to the States for their consideration by sending a letter of notification to each Governor along with the informational material prepared by the OFR. The Governors then formally submit the amendment to their State legislatures or the state calls for a convention, depending on what Congress has specified. In the past, some State legislatures have not waited to receive official notice before taking action on a proposed amendment. When a State ratifies a proposed amendment, it sends the Archivist an original or certified copy of the State action, which is immediately conveyed to the Director of the Federal Register. The OFR examines ratification documents for facial legal sufficiency and an authenticating signature. If the documents are found to be in good order, the Director acknowledges receipt and maintains custody of them. The OFR retains these documents until an amendment is adopted or fails, and then transfers the records to the National Archives for preservation.
A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 of 50 States).
Friedrich Wilhelm Nietzsche was a German philosopher, cultural critic, composer, poet, philologist, and a Latin and Greek scholar whose work has exerted a profound influence on Western philosophy and modern intellectual history.
“Everything the State says is a lie, and everything it has it has stolen.”― Friedrich Nietzsche (presumably referring to Germany of 1800s)
1. FEDERALISM – EXAMINED SEPARATELY
2. We the people – the power to vote and to be in Juries, bear arms, no taxation without representation, democracy etc etc
3. Media – speaking truth to power (first amendment)
Those four little words comprise a powerful expression.
Coined by the Quakers in the 1950’s, “speaking truth to power” is certainly not a new way of taking a stand and mobilizing society around change.
“It is a powerful nonviolent challenge to injustice and unbridled totalitarian forces, often perpetuated by government, sometimes not,” says Judith Sherwin, Attorney at Law, Adjunct Professor, Loyola School of Law. “Sir Thomas More did it at the cost of his life when he spoke truth to power against King Henry VIII; Martin Luther King Jr. did it at the cost of his freedom when he ended up in the Birmingham jail and eventually at the cost of his life.”
Speaking truth to power is a non-violent political tactic, employed by dissidents against the received wisdom or propaganda of governments they regard as oppressive, authoritarian or an ideocracy. The phrase may have originated with a pamphlet Speak truth to power: a Quaker Search for an Alternative to Violence, published in 1955. Speak Truth To Power is also the title of a global Human Rights initiative under the auspices of Robert F. Kennedy Human Rights. Practitioners who have campaigned for a more just and truthful world have included Nelson Mandela, Archbishop Desmond Tutu, the Dalai Lama and Elie Wiesel.
4. Civic organizations /Civil Society
Civil society is the aggregate of non-governmental organizations and institutions that manifest interests and will of citizens. Civil society includes the family and the private sphere and is referred to as the third sector of society, distinct from government and business. By other authors, civil society is used in the sense of 1) the aggregate of non-governmental organizations and institutions that manifest interests and will of citizens or
2) individuals and organizations in a society which are independent of the government
We consider those that litigate on issues concerning civil rights eg ACLU
For almost 100 years, the ACLU has worked to defend and preserve the individual rights and liberties guaranteed by the Constitution and laws of the United States.
Example:
Masterpiece Cakeshop v. Colorado Civil Rights Commission
UPDATED: JUNE 4, 2018
U.S. Const. amend. I
Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (2018), was a case in the Supreme Court of the United States that dealt with whether owners of public accommodations can refuse certain services based on the First Amendment claims of free speech and free exercise of religion, and therefore be given an exemption from laws ensuring non-discrimination in public accommodation — in particular, by refusing to provide creative services, such as making a wedding cake for the marriage of a same-sex couple, on the basis of the owners religious beliefs.
The case dealt with Masterpiece Cakeshop, a bakery in Lakewood, Colorado, which refused to provide a wedding cake to a gay couple based on the owners religious beliefs. The Colorado Civil Rights Commission, evaluating the case under the states anti-discrimination law, the Colorado Anti-Discrimination Act, found the bakery discriminated against the couple and issued specific orders for the bakery to follow. Following appeals within the state that affirmed the Commissions decision, the bakery took the case to the U.S. Supreme Court.
In a 7-2 decision, the Court ruled on narrow grounds that the Commission did not employ religious neutrality, violating Masterpiece owner Jack Phillips rights to free exercise, and reversed the Commissions decision. The Court did not rule on the broader intersection of anti-discrimination laws, free exercise of religion, and freedom of speech, due to the complications of the Commissions lack of religious neutrality
The Court issued its ruling on June 4, 2018, ordering a reversal of the decision made by the Colorado Civil Rights Commission. The majority opinion was written by Justice Anthony Kennedy, and joined by Chief Justice John Roberts, and Justices Samuel Alito, Stephen Breyer, Elena Kagan and Neil Gorsuch. The opinion stated that although a baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of his religion limited by generally applicable laws, a State decision in an adjudication “in which religious hostility on the part of the State itself” is a factor violates the State’s obligation of religious neutrality under the Free Exercise Clause of the First Amendment to the Constitution.[25] Kennedys opinion stated that the Commissions review of Phillips case exhibited hostility towards his religious views. The Commission compared Phillips religious beliefs to defense of slavery or the Holocaust. Kennedy found such comparisons inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law
5. Parliamentary/Congressional oversight –
Congressional oversight is oversight by the United States Congress over the Executive Branch, including the numerous U.S. federal agencies. Congressional oversight includes the review, monitoring, and supervision of federal agencies, programs, activities, and policy implementation. Congress exercises this power largely through its congressional committee system. Oversight also occurs in a wide variety of congressional activities and contexts. These include authorization, appropriations, investigative, and legislative hearings by standing committees; specialized investigations by select committees; and reviews and studies by congressional support agencies and staff.
Congress’s oversight authority derives from its “implied” powers in the Constitution, public laws, and House and Senate rules. It is an integral part of the American system of checks and balances.
Although the U.S. Constitution grants no formal, express authority to oversee or investigate the executive or program administration, oversight is implied in Congress’s array of enumerated powers. The legislature is authorized to appropriate funds; raise and support armies; provide for and maintain a navy; declare war; provide for organizing and calling forth the national guard; regulate interstate and foreign commerce; establish post offices and post roads; advise and consent on treaties and presidential nominations (Senate); and impeach (House) and try (Senate) the President, Vice President, and civil officers for treason, bribery, or other high crimes and misdemeanors. Reinforcing these powers is Congress’s broad authority “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”.
The authority to oversee derives from these constitutional powers.
Key Points
Congressional oversight refers to oversight by the United States Congress of the Executive Branch, including the numerous U.S. federal agencies. Congressional oversight refers to the review, monitoring, and supervision of federal agencies, programs, activities, and policy implementation.
Congress’s oversight authority derives from its implied powers in the Constitution, public laws, and House and Senate rules. It is an integral part of the American system of checks and balances.
Congress could not reasonably or responsibly exercise these powers without knowing what the executive was doing; how programs were being administered, by whom, and at what cost; and whether officials were obeying the law and complying with legislative intent.
Oversight also is derived from the many and varied express powers of the Congress in the Constitution. Congress could not reasonably exercise its powers without knowing what the executive was doing; how programs were being administered, by whom, and at what cost.
Key Terms
congressional oversight: Congressional oversight refers to oversight by the United States Congress of the Executive Branch, including the numerous U.S. federal agencies.
implied powers: They are those powers authorized by a legal document (from the Constitution) which, while not stated, seem to be implied by powers expressly stated.
enumerated powers: The enumerated powers are a list of items found in Article I, Section 8 of the U.S. Constitution that set forth the authoritative capacity of Congress. In summary, Congress may exercise the powers that the Constitution grants it, subject to explicit restrictions in the Bill of Rights and other protections in the Constitution.
KEY TAKEAWAYS
Key Points
The authority to oversee the executive comes from the constitutional powers. Congress could not carry them out reasonably or responsibly without knowing what the executive is doing.
Reinforcing these oversight powers is Congress’s broad authority to make all laws that shall be necessary and proper for carrying into execution the foregoing powers, all other powers vested by this Constitution in the government, or in any Department or Officer in the government.
Besides these general powers, numerous statutes direct the executive to give information to or consult with Congress.
Oversight occurs through a wide variety of congressional activities and avenues. Some of the most publicized are the comparatively rare investigations by select committees into major scandals or into executive branch operations gone awry.
Two examples of Congressional Investigations
Hurricane Katrina (2005-2006)
According to Pitney, the congressional investigation of the governments response to Hurricane Katrina produced an important and evenhanded report instead of the partisan witch hunt it easily could have become.
9/11 (2001-2004)
Hearings on the 9/11 attacks, the findings of the congressionally-created 9/11 Commission, and how the government responded to them were among the most important of recent decades, according to David Schultz of Hamline University.
6. Public protector
South Africas Public Protector is one of six independent state institutions set up by the countrys Constitution to support and defend democracy.
The office of the Public protector has been faced with harsh criticism by parliament specifically by the majority party for requesting an increase of R200m in the budget allocation for additional resources. With the justice portfolio committee chairman Mathole Motshekga being critical of the budget and strategic presentation presented by Adv. Thuli Madonsela.
During the budget speech of 2015 the office of the Public Protector was allocated a total budget for 2015/16 of R 246.1 million an increase of R 60 million, as opposed to the increase of R 200 million initially requested. With R 15 million going to the employment of additional investigators and the retention of the 70 investigator who were previously appointed on contract.
Mandate
The Public Protector receives its mandate from the Public Protector Act of 1994. The Public Protector is one of six State Institutions Supporting Democracy in South Africa. These institutions are independent of the government, subject only to South Africas Constitution and the law, and report annually to Parliament.
The preamble of the Public Protector Act states, in part:
The Constitution of the Republic of South Africa ... provides for the establishment of the office of Public Protector to investigate matters and to protect the public against matters such as maladministration in connection with the affairs of government, improper conduct by a person performing a public function, improper acts with respect to public money, improper or unlawful enrichment of a person performing a public function and an act or omission by a person performing a public function resulting in improper prejudice to another person.
The Act also gives the Public Protector the authority to order other state institutions take appropriate remedial action against any impropriety or prejudice made by government.
Any aggrieved complainant may lodge a complaint to the office provided that it falls within powers of the Public Protector in terms of the Public Protector act 23 of 1994.The Public Protector may investigate and take the appropriate remedial action on his/her findings.
Example
. Public Protector Adv. Thuli Madonselas Nkandla Report, titled ‘Secure in Comfort’. The report is about her investigation into allegations of impropriety and unethical conduct relating to the installation and implementation of security measures by the Department of Public Works at the private residence of President Jacob Zuma, Nkandla in KwaZulu-Natal.
He was ordered to repay $25 000
7. Commissions of enquiry
Powers and functions of President
84. (1)
The President has the powers entrusted by the Constitution and legislation, including those necessary to perform the functions of Head of State and head of the national executive.
(2) The President is responsible for
(f) appointing commissions of inquiry;
The state is not obligated to enact the recommendations of a commission of inquiry at all.
In fact, it is not obliged to even release the findings of them.
Once the reports are submitted to the president (or the premier, as the case may be), it is within his sole discretion as to how to proceed with them.
Ultimately, the choice to release a commission report and implement the findings is a political one.
It is clear from the above examples that commissions, although created to promote justice, do not seem to be serving their intended purpose.
Aside from being extremely political in nature, they tend to be expensive long-winded exercises with an end result that does not benefit the parties involved.
The fact that these commission recommendations are not legally enforceable makes them somewhat of a toothless dog, and they end up being more of a nice-to-have to redress past injustices, than a genuine, effective means for social relief.
8. Different amendment provisions for different sections of the constitution
· Section 74 of the Constitution provides that a bill to amend the Constitution can only be passed if at least two-thirds of the members of the National Assembly (that is, at least 267 of the 400 members) vote in favour of it.
· If the amendment affects provincial powers or boundaries, or if it amends the Bill of Rights, at least six of the nine provinces in the National Council of Provinces must also vote for it.
· To amend section 1 of the Constitution, which establishes the existence of South Africa as a sovereign, democratic state, and lays out the countrys founding values, would require the support of three-quarters of the members of the National Assembly. There have been seventeen amendments since 1996.
9. Whistleblowers - A whistleblower (also written as whistle-blower or whistle blower) is a person who exposes any kind of information or activity that is deemed illegal, unethical, or not correct within an organization that is either private or public.
10. Prosecutorial Independence
A prosecutor is a legal representative of the prosecution in countries with either the common law adversarial system, or the civil law inquisitorial system. The prosecution is the legal party responsible for presenting the case in a criminal trial against an individual accused of breaking the law. Typically, the prosecutor represents the government in the case brought against the accused person.
Judicial independence is accepted in most countries but in some countries there is also prosecutorial independence. That means that the prosecution department is independent of the executive branch of government
Europe
RESPONSIBILITIES OF PUBLIC PROSECUTORS IN ENSURING DUE PROCESS AND THE RULE OF LAW
This is an area where it is perhaps easiest to set out general norms applicable to all prosecution systems since there are certain basic principles which are fundamental to all systems. As EU Recommendation Rec(2000)19 points out:
“In all criminal justice systems, public prosecutors:
- decide whether to initiate or continue prosecutions;
- conduct prosecutions before the courts;
- may appeal or conduct appeals concerning all or some court decisions”
Recommendation Rec(2000)19 also refers to certain functions of public prosecutors which exists in some systems but not in others, including implementing national crime policy, conducting, directing or supervising investigations, ensuring that victims are effectively assisted, deciding on alternatives to prosecution, and supervising the execution of court decisions.
The Venice Commission Report on the independence of the prosecution service also lays emphasis on the qualities of prosecutors, in particular at paragraphs 14 to 19 of the Report.
Having referred to the importance of the prosecutor acting to a higher standard than a litigant in a civil matter because he or she acts on behalf of society as a whole and because of the serious consequences of criminal conviction, and having referred to duties to act fairly and impartially, as well as the duty to disclose all relevant evidence to the accused, the Commission points to the necessity to employ as prosecutors suitable persons of high standing and good character, having qualities similar to those required of a judge, and to require that suitable procedures for appointment and promotion are in place.
The Venice Commission also emphasizes the necessity to secure proper tenure and appropriate arrangements for promotion, discipline and dismissal which will ensure that a prosecutor cannot be victimized on account of having taken an unpopular decision.
The Venice Commission goes on to talk about political interference in prosecution. The Report points out that if modern western Europe has largely avoided the problem of abusive prosecution in recent times this is largely because mechanisms have been adopted to ensure that improper political pressure is not brought to bear in the matter of criminal prosecution. The Commission points out that in totalitarian states or in modern dictatorships criminal prosecution has been and continues to be used as a tool of repression and corruption.
https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-UDT(2011)008-e
The South African Constitution
The final Constitution is somewhat ambiguous. On the one hand, it dictates that “[n]ational legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice”, while on the other, it regulates that the “Cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority”.
Namibia
Highstead Entertainment (Pty) Ltd t/a “The Club” v Minister of Law and Order and Others (Namibia)
l. In terms of the Namibian Constitution, the Prosecutor-General is totally independent as far as his/her mandate to prosecute is concerned
http://www.kas.de/upload/auslandshomepages/namibia/Independence_Judiciary/horn2.pdf
USA
When a special counsel is appointed he is independent of the executive ie the president is unable to interfere with his activities
Morrison v. Olson, 108 S. Ct. 2597 (1988)
The Court held that the independent counsel provision of the Ethics in Government Act did not violate the principle of separation of powers because it did not increase the power of one branch at the expense of another. Instead, even though the President cannot directly fire an Independent Counsel, the person holding that office was still an officer of the Executive branch and not under the control of either the U.S. Congress or the courts.
UK
Crown Prosecution Service
The Crown Prosecution Service (CPS) prosecutes criminal cases that have been investigated by the police and other investigative organisations in England and Wales. The CPS is independent, and we make our decisions independently of the police and government.
Our duty is to make sure that the right person is prosecuted for the right offence, and to bring offenders to justice wherever possible.
The CPS:
decides which cases should be prosecuted;
determines the appropriate charges in more serious or complex cases, and advises the police during the early stages of investigations;
prepares cases and presents them at court; and
provides information, assistance and support to victims and prosecution witnesses.
Prosecutors must be fair, objective and independent. When deciding whether to prosecute a criminal case, our lawyers must follow the Code for Crown Prosecutors. This means that to charge someone with a criminal offence, prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction, and that prosecuting is in the public interest.
Legislative Branch
Check
Reference
Example
• Checks on the Executive
Impeachment power (House)
The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
— U.S. Constitution, Article II, section 4
To date, the Senate has conducted formal impeachment proceedings 19 times, resulting in 7 acquittals, 8 convictions, 3 dismissals, and one resignation with no further action.
only two U.S. Presidents have been impeached by the House of Representatives. The first was Andrew Johnson, in 1868, for dismissing Edwin M. Stanton as secretary of war and the second was Bill Clinton, in 1998 for charges of lying under oath in regards to sexual relations with a White House intern. Both presidents were acquitted in trials that were held by the Senate because the two-thirds majority votes needed to convict them, were not reached. This meant both presidents remained in office and served the remainder of their terms.
o Trial of impeachments (Senate)
the Senate shall have the sole Power to try all Impeachments .... [but] no person shall be convicted without the Concurrence of two-thirds of the Members present (Article I, section 3).
o Selection of the President (House) and Vice President (Senate) in the case of no majority of electoral votes
“…and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President…”
— U.S. Constitution, Article II, section 1, clause 3
The contested 1876 presidential election between Republican Rutherford B. Hayes of Ohio and Democrat Samuel J. Tilden of New York was the last to require congressional intervention. Tilden won the popular vote and the electoral count. But Republicans challenged the results in three Southern states, which submitted certificates of election for both candidates. While the Constitution requires the House and Senate to formally count the certificates of election in joint session, it is silent on what Congress should do to resolve disputes. In January 1877, Congress established the Federal Electoral Commission to investigate the disputed Electoral College ballots. The bipartisan commission, …
Зйч{{mimeType:application\/vnd.openxmlformats-officedocument.presen=ationml.presentation,fileName:A further check and balance.pptx=fileURL:file:\/\/\/private\/var\/mobile\/Library\/Mail\/AttachmentPlaceh=lders\/526133FA-7270-4C07-88F2-9F97FC75F01B,contentID:526133FA-7270-4C0=-88F2-9F97FC75F01B,fileSize:436292}=
Judicial review
Please note that in all Anglophone countries judicial review exists.
However, it differs in subtle ways from country to country.
USA
WHAT IS JUDICIAL REVIEW
Judicial review is an exclusive power of appellate courts, most importantly the US Supreme Court (SCOTUS). It is able to overturn any judicial ruling from another court (at federal or state level) or to strike down any executive action or law deemed unconstitutional.
This is not an express constitutional power - the constitution is vague and open to interpretation in regards to the judicial branch of government - but a power that the court granted itself.
This happened in the case of Marbury vs Madison in 1803, in which SCOTUS overturned congressional legislation. Judicial review is carried out any time that SCOTUS makes a ruling in a case taken on appeal, which is the vast majority of its cases, and is done so by a vote of the 9 justices. Their vote should in theory reflect the fundamental authority of the constitution and thus uphold constitutional sovereignty in the US, which makes judicial review incredibly important. For example, in the landmark case Brown vs the Board of Education, SCOTUS ruled that segregation on the principle of Separate but equal violated the 14th amendment.
NOTE PLEASE
Judicial review is an exclusive power of appellate courts, most importantly the US Supreme Court (SCOTUS). It is able to overturn any judicial ruling from another court (at federal or state level) or to strike down any executive action or law deemed unconstitutional.
THUS THE APPROPRIATE COURT CAN OVERTURN THE FOLLOWING:
1. any judicial ruling from another court (at federal or state level) (LOWER COURT).
2. law deemed unconstitutional. THESE ARE REVIEWS OF LEGISLATIVE ACTS (On what topics may congress legislate. See the powers above)
3. or to strike down any executive action THESE ARE REVIEWS OF EXECUTIVE ACTS
Judicial Review of decisions of lower courts
In American Law this is the same as appeals but in some countries appeal and review of lower court judgments can be separate concepts.
Judicial Review of Legislative Acts
In order understand the rules regarding review of legislation it is necessary to understand the two categories of legislation.
The process of making federal laws can divided into two categories:
Primary and Secondary (or delegated or regulatory) legislation:
1. Primary laws - In the United States, primary legislation is, at the federal level, an Act of Congress, and the statute that delegates authority is called an authorizing statute or delegation of rule making authority.
2. regulatory law - (Secondary or subordinate legislation UK terminology) - A law promulgated by the executive branch agency of the United States Government as the result of primary legislation is called a regulatory law, as legislation is used only to refer to acts of the legislative branch, never the executive or the judicial branches. The body of law that governs the agencys exercise of rule-making and adjudication powers is called administrative law, primarily the Administrative Procedure Act. (we will deal with this under judicial review of executive acts)
Review of Primary laws
Laws of Congress and States and other bodies can be reviewed if they conflict with the constitution as interpreted by the court.
History and Background
Most of the cases which we will consider in this course concern judicial review.
What are the powers of Congress?
Reserved Powers
In the U.S. Constitution, certain specific powers are granted to the federal government. The Constitution reserves all other powers to the states. These are known as “reserved powers.” The reserved powers clause is not found in the body of the Constitution itself, but is part of the Tenth Amendment. To explore this concept, consider the following reserved powers definition.
Implied Powers
Implied powers are the powers held by congress and the president, even though they are not mentioned in the Constitution. These powers, though they are not specified, are necessary in order for the three branches of government to carry out its responsibilities under the enumerated, or stated, powers. Implied powers may also be referred to as “inherent powers,” and are most often exercised in instances of national emergency. (Necessary and Proper Clause)
Enumerated or express Powers
Enumerated Powers are those powers specifically spelled out in the Constitution. These include the powers of Congress, as well as the Powers of the President. These include such powers as those granted in Article I, Section 8:
Concurrent powers
Concurrent powers are powers a federal system of government that are shared by both the federal government and each constituent political unit (such as a state or province). These powers may be exercised simultaneously within the same territory, in relation to the same body of citizens, and regarding the same subject-matter. Concurrent powers are contrasted with reserved powers (not possessed by the federal government) and with exclusive federal powers (possession by the states is forbidden or requires federal permission).
Federal law is supreme, and therefore it may preempt to a state or provincial law in case of conflict. Concurrent powers can therefore be divided into two kinds: those not generally subject to federal preemption (like the power to tax private citizens); and, other concurrent powers.
In the United States, examples of the concurrent powers shared by both the federal and state governments include the power to tax, build roads, establish bankruptcy laws, and to create lower courts.
Example:
Article 1, Sec. 9, Par. 1 of the Constitution, Congress shall have power to lay and collect taxes, duties, imposts and excises.
Article 1, Sec. 10, Par. 2, No State shall without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts laid by any State on imports and exports shall be for the use of the Treasury of the United States; and all such laws shall be subject to the revision and control of Congress.
Denied Powers
Not only does the Constitution delegate and divide powers, it denies certain powers to prevent both the federal and state governments from overstepping their bounds. Denied powers are found in Article I, Sections 9 and 10. These include prohibiting the federal government from taxing the exports of any state, or conferring titles of nobility. In addition, the states cannot make treaties or alliances with foreign countries.
What happens when a law conflicts with the constitution?
Is the constitution silent about this or does it give us an answer?
Implied into the constitution. –
Supremacy clause
?
Article VI, Paragraph 2 of the U.S. Constitution
All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;
and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Necessary and Proper Clause
Under Article I, Section 8 of the Constitution, Congress has the 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 any Department or Officer thereof.
Marbury v Madison
In the weeks before Thomas Jefferson’s inauguration as president in March 1801, the Federalist Congress created 16 new circuit judgeships (in the Judiciary Act of 1801) and an unspecified number of new judgeships (in the Organic Act), which Adams proceeded to fill with Federalists in an effort to preserve his party’s control of the judiciary and to frustrate the legislative agenda of Jefferson and his Republican (Democratic-Republican) Party. Because he was among the last of those appointments (the so-called “midnight appointments”), William Marbury, a Federalist Party leader from Maryland, did not receive his commission before Jefferson became president. Once in office, Jefferson directed his secretary of state, James Madison, to withhold the commission, and Marbury petitioned the Supreme Court to issue a writ of mandamus to compel Madison to act.
Marbury and his lawyer, former attorney general Charles Lee, argued that signing and sealing the commission completed the transaction and that delivery, in any event, constituted a mere formality. But formality or not, without the actual piece of parchment, Marbury could not enter into the duties of office. Despite Jefferson’s hostility, the court agreed to hear the case, Marbury v. Madison, in its February 1803 term.
Some scholars have questioned whether Marshall should have removed himself from the case because of his prior service as Adams’s secretary of state (1800–01). Certainly, later judicial standards would have called for recusal, but at the time only financial connections to a case led judges to step aside, as Marshall did in suits regarding Virginia lands in which he had an interest. The Republicans, always quick to criticize Marshall, did not even raise the issue of the propriety of his sitting in the case.
The issue directly presented by Marbury v. Madison can only be described as minor. By the time the court heard the case, the wisdom of Jefferson’s desire to reduce the number of justices of the peace had been confirmed (and the Judiciary Act of 1801 had been repealed); Marbury’s original term was almost half over; and most people, Federalists and Republicans alike, considered the case to be moot. But Marshall, despite the political difficulties involved, recognized that he had a perfect case with which to expound a basic principle, judicial review, which would secure the Supreme Court’s primary role in constitutional interpretation.
CRTITAL TO UNDERSTAND – MARBURY WAS LEGALLY CORRECT THAT MARBURY WAS ENTITLED TO HIS COMMISSION
BUT
HE HAD COME TO THE INCORRECT COURT. WHY INCORRECT? READ THE CASE AND UNDERSTAND
Although he could have held that the proper remedy was a writ of mandamus from the Supreme Court—because the law that had granted the court the power of mandamus in original (rather than appellate) jurisdiction, the Judiciary Act of 1789, was still in effect—he instead declared that the court had no power to issue such a writ, because the relevant provision of the act was unconstitutional. Section 13 of the act, he argued, was inconsistent with Article III, Section 2 of the Constitution, which states in part that “the supreme Court shall have original Jurisdiction” in “all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party,” and that “in all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction.” In thus surrendering the power derived from the 1789 statute (and giving Jefferson a technical victory in the case), Marshall gained for the court a far-more-significant power, that of judicial review.
This is an example of a case where the legislation in question was in conflict with the Constitution and the legislation was therefore struck down by the courts.
On other occasions the congress may pass legislation which exceeds their powers and could be struck down for this reason.
Example (see Federalism handouts for United States v. Alfonso D. Lopez, Jr., 514 U.S. 549 (1995))
ANOTHER EXAMPLE (THIS TIME STATE LAW THAT IS REVIEWED)
The Equal Protection Clause
of the constitution is located at the end of Section 1 of the Fourteenth Amendment:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.
Plessy v. Ferguson (1896).
According to this case laws mandating separate public facilities for whites and African Americans do not violate the equal-protection clause if the facilities are approximately equal.
Brown v. Board of Education of Topeka
, case in which on May 17, 1954, the U.S. Supreme Court ruled unanimously (9–0) that racial segregation in public schools violated the Fourteenth Amendment to the Constitution, which prohibits the states from denying equal protection of the laws to any person within their jurisdictions. The decision declared that separate educational facilities for white and African American students were inherently unequal. It thus rejected as inapplicable to public education the “separate but equal” doctrine, advanced by the Supreme Court in Plessy v. Ferguson (1896), according to which laws mandating separate public facilities for whites and African Americans do not violate the equal-protection clause if the facilities are approximately equal. Although the 1954 decision strictly applied only to public schools, it implied that segregation was not permissible in other public facilities. Considered one of the most important rulings in the court’s history, Brown v. Board of Education of Topeka helped to inspire the American civil rights movement of the late 1950s and 1960s.
Judicial Review of Executive Acts
Judge Scalia - [Legislative power] is vested exclusively in Congress [and judicial power] in the “one supreme Court” and “such inferior Courts as the Congress may from time to time ordain and establish”.... Agencies make rules... and conduct adjudications... and have done so since the beginning of the Republic. These activities take “legislative” and “judicial” forms, but they are exercises of—indeed, under our constitutional structure they must be exercises of—the “executive Power.
Who is the executive?
The executive carries out laws and consists of the president, vice president, Cabinet, most federal agencies
The United States federal executive departments are the primary units of the executive branch of the Federal government of the United States. They are analogous to ministries common in parliamentary or semi-presidential systems but (the United States being a presidential system) they are led by a head of government who is also the head of state. The executive departments are the administrative arms of the President of the United States. There are currently 15 executive departments each headed by a cabinet member usually called a secretary.
Department of the Interior
Department of Agriculture
Department of Commerce
Department of Labor
Department of Health and Human Services
Department of Housing and Urban Development
Department of Transportation
Department of Energy
Department of Education
Department of Veterans Affairs
Department of Homeland Security
The executive also includes the “agencies” however these are a little more independent of the President. For example:
Environmental Protection Agency
Central Intelligence Agency
What types of executive acts can be reviewed
1. Delegated legislation (In the USA these are called
regulatory laws
)
2. Executive tribunals
3. Executive decisions
4. Executive Orders (Orders by the President)
1.
Review of Regulatory laws
To Further explain
Regulatory Law deals with procedures established by federal, state, and local administrative agencies, as opposed to laws created by the legislature (statutory laws) or by court decisions (case law). Regulations can relate to a large array of executive branch activities, such as applications for licenses, oversight of environmental laws, and administration of social services like welfare, just to name a few.
Functions of Administrative Law
Also known as administrative law, regulatory laws can include everything from rulemaking to adjudication and enforcement. In other words, administrative laws often relate to functions akin to all three branches of government (i.e., legislative, judicial, and executive), but all of them flow from agencies that are considered to be a part of the executive branch. To demonstrate how regulatory law is often like three branches of government in one, consider how administrative laws usually come into being:
1. The legislative branch passes a law authorizing the creation of a new executive branch agency to enforce a set of laws (for example, the Environmental Protection Agency in order to enforce certain environmental clean up and preservation laws).
2. The statute authorizes the agency to pass regulations to meet the goals of its mandate and to enforce its rules. Thus the legislative rulemaking authority is delegated, in part, to the administrative agency.
3. The agency enacts regulations (sometimes they require legislative approval, sometimes they do not), then begins to enforce those rules (e.g., through fining or arrests). The enforcement of laws is a traditionally executive function.
4. The agency may also have procedures for hearings, and the results of those proceedings can become precedent on agency policies. These hearings are akin to the trial procedures for the judicial branch.
While administrative agencies are still a part of the executive branch and are still checked by the other two branches of government, their regulations and enforcement schema often resemble their own subsystem of government, inclusive of functions for all three branches. Consequently, when discussing any law that may be administered by an agency, it is important to look not just to the statutory law or the case law, but also to any regulatory rules and decisions related to that matter. Failing to do so may amount to overlooking an enormous portion of the body of law affecting that topic.
What does this mean:
For example in the USA for environmental law:
Creating a law
Step 1: Congress Writes a Bill
A member of Congress proposes a bill. A bill is a document that, if approved, will become law. To see the text of bills Congress is considering or has considered, go to Congress.gov
Step 2: The President Approves or Vetoes the Bill
If both houses of Congress approve a bill, it goes to the President who has the option to either approve it or veto it. If approved, the new law is called an act or statute. Some of the better-known laws related to the environment are the Clean Air Act, the Clean Water Act, and the Safe Drinking Water Act.
Step 3: The Act is Codified in the United States Code
Once an act is passed, the House of Representatives standardizes the text of the law and publishes it in the United States Code (U.S.C.). The U.S.C. is the codification by subject matter of the general and permanent laws of the United States. Since 1926, the U.S.C. has been published every six years. In between editions, annual cumulative supplements are published in order to present the most current information.
United States Code: This database is available from the Government Printing Office (GPO). GPO is the sole agency authorized by the federal government to publish the U.S.C.
Putting the law to work
Once a law is official, heres how it is put into practice: Laws often do not include all the details needed to explain how an individual, business, state or local government, or others might follow the law. The United States Code would not tell you, for example, what the speed limit is in front of your house. In order to make the laws work on a day-to-day level, Congress authorizes certain government agencies - including EPA - to create regulations.
Regulations set specific requirements about what is legal and what isnt. For example, a regulation issued by EPA to implement the Clean Air Act might explain what levels of a pollutant - such as sulfur dioxide - adequately protect human health and the environment. It would tell industries how much sulfur dioxide they can legally emit into the air, and what the penalty will be if they emit too much. Once the regulation is in effect, EPA then works to help Americans comply with the law and to enforce it.
When developing regulations, the first thing we do is ask if a regulation is needed at all. Every regulation is developed under slightly different circumstances, but this is the general process:
Step 1: EPA Proposes a Regulation
The Agency researches the issues and, if necessary, proposes a regulation, also known as a Notice of Proposed Rulemaking (NPRM). The proposal is listed in the Federal Register (FR) so that members of the public can consider it and send their comments to us. The proposed rule and supporting documents are also filed in EPAs official docket on Regulations.gov.
Step 2: EPA Considers Your Comments and Issues a Final Rule
Generally, once the EPA considers the comments received when the proposed regulation was issued, they revise the regulation accordingly and issue a final rule. This final rule is also published in the FR and in EPAs official docket on Regulations.gov.
Step 3: The Regulation is Codified in the Code of Federal Regulations
Once a regulation is completed and has been printed in the FR as a final rule, it is codified when it is added to the Code of Federal Regulations (CFR). The CFR is the official record of all regulations created by the federal government. It is divided into 50 volumes, called titles, each of which focuses on a particular area. Almost all environmental regulations appear in Title 40. The CFR is revised yearly, with one fourth of the volumes updated every three months. Title 40 is revised every July 1
The Clean Air Act (CAA) is the comprehensive federal law that regulates air emissions from stationary and mobile sources. Among other things, this law authorizes EPA to establish National Ambient Air Quality Standards (NAAQS) to protect public health and public welfare and to regulate emissions of hazardous air pollutants.
To illustrate further:
Clean Air Act (Act of Congress) says that the Environmental Protection Agency is to regulate Six Criteria Air Pollutants:
Carbon Monoxide, Ground-level Ozone, Lead, Nitrogen Oxides, Particulate Matter, and Sulfur Dioxide
Regulation says there should only be (regulatory law)
August 1, 1994
9 ppm for carbon monoxide
(this is the regulation)
https://www.epa.gov/regulatory-information-topic/regulatory-information-topic-air
2.
Executive Courts
Several federal adjudicatory bodies are not widely considered part of the federal judiciary because they are components of an administrative agency or executive branch department. Executive agency adjudication is in response to calls for a more efficient process to promulgate, interpret and enforce federal regulations. More than 1,300 administrative law judges now serve in such bodies. Their powers and roles vary in keeping with the responsibilities of their agencies and departments, but most conduct hearings, issue or recommend decisions and enforce agency regulations.
https://www.fjc.gov/history/courts/executive-agency-courts
There are several federal courts that are not actually part of the judicial branch of government but are part of the executive branch. Congress established these courts to handle specific topics.
U.S. Court of Appeals for Veterans Claims
U.S. Tax Court
U.S. Court of Appeals for the Armed Forces
Additionally, many executive branch agencies such as the Social Security Administration and the Equal Employment Opportunity Commission have administrative judges or administrative law judges.
3.
Executive Decisions
Administrative decisions made by government bodies are a fact of life: members of the public are confronted with them all the time. Whenever a citizen applies for a building permit, a driving licence or benefits, or is faced with an environmental enforcement measure, an administrative decision is involved; it is in administrative decisions that government bodies give legal shape to governmental regulations. Administrative decisions are juristic acts;
Administrative decision-making can be described as the application of general rules to individual cases, often in the context of performing public tasks. The administrative decision-making process consists of both administrative activities and legal acts, acts intended to have legal consequences.
4.
Executive orders
An executive order is an official statement from the president that tells federal agencies how to enforce and implement federal law. The legal authority for executive orders derives from the
Take Care Clause
of Article II, § 3 of the federal Constitution, which grants the president broad, unspecific authority by stating,
“[The president] shall take care that the laws be faithfully executed.”
Throughout American history, presidents have utilized executive actions to tackle a range of issues. President Abraham Lincoln’s Emancipation Proclamation eventually ended slavery; President Harry Truman issued an executive order establishing the President’s Committee on Equality of Treatment and Opportunity in the Armed Services, ending desegregation in the armed forces; and Clinton issued an executive order revoking the “Gag Rule,” which prohibited abortion counseling in clinics that receive federal funding to serve low-income patients.
The constitutional authority granted to the legislature limits the executive’s domain in an important way. Presidents cannot grant themselves authority they do not have; they cannot create new law, rescind existing law, or appropriate funds from the U.S. Treasury pursuant to executive order. Only Congress has that authority.
However, the president does have the authority to direct the executive branch’s exercise of administrative discretion. The president can also reduce the size of federal agencies, and can prioritize federal governmental actions and the enforcement of federal laws to the extent not otherwise directed by Congress or the judiciary.
Further, the president can rescind a previous executive order by issuing a new one.
As a starting point, it is worth confirming that executive orders are indeed subject to judicial review. While executive orders are not subject to the same checks and balances as Congressional legislation and administrative regulations, federal judges have the authority to strike down orders that violate the Constitution or statutory law.
In evaluating executive orders, the federal courts will apply one of three different standards of review depending upon the nature of the authority underlying the order:
Express or Implied Congressional Authorization – Executive orders that rely on powers delegated by Congress receive the highest level of deference, and have been upheld in most cases.
Independent Executive Authority – Orders that rely on the inherent authority of the executive branch receive an intermediate level of review. When reviewing these types of executive orders, the courts tend to take a facts-and-circumstances approach that sets little precedent for future cases.
Executive Orders Against the Will of Congress – Executive orders that not only lack Congressionally-delegated authority, but actually go against the will of Congress, are subject to the highest standard of review. The courts have the power to strike down such orders unless Congress lacked the authority to take the legislative action offended by the executive order.
Example of an Executive orders set aside by Federal Court
The U.S. Circuit Court of Appeals agreed with a lower court that the executive order which sought to stop federal funds being given to sanctuary cities exceeded the presidents authority. Congress alone controls spending under the U.S. Constitution, and presidents do not have the power to withhold funding it approves to pursue their policy goals, the court majority said.
What is a sanctuary city: The term sanctuary city is a broad term applied to jurisdictions that have policies in place designed to limit cooperation with or involvement in federal immigration enforcement actions.
City of San Francisco v Trump
https://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/01/17-17478.pdf
By its plain terms, the executive order directs the agencies of the executive branch to withhold funds appropriated by Congress in order to further the administrations policy objective of punishing cities and counties that adopt so-called sanctuary policies,
Executive orders set aside by Congress: (this is simply out of interest and is not part of judicial review)
“ To effectuate a repeal, Congress need only enact legislation directing that provisions of the executive order “shall not have legal effect.” For example, the Energy Policy Act of 2005 explicitly revoked a December 13, 1912, executive order that had created the Naval Petroleum Reserve Numbered 2. In 1992, Congress similarly revoked an executive order issued by President George H. W. Bush that had directed the Secretary of Health and Human Services to establish a human fetal tissue bank for research” - Congressional Research Service, Executive Orders: Issuance, Modification, and Revocation, Page 9, April 16, 2014.
The Review Process : In brief
What law applies generally?
The Administrative Procedure Act (APA) applies to all executive branch agencies, including so called independent regulatory agencies.
The APA prescribes procedures for agency actions such as
1) rulemaking, as well as
2) standards for judicial review of agency actions.
Who reviews most administrative complaints
An administrative law judge (ALJ) in the United States is a judge and trier of fact who both presides over trials and adjudicates the claims or disputes (in other words, ALJ-controlled proceedings are bench trials) involving administrative law.
In terms of the Administrative Procedure Act of 1946 (APA) ALJs are Article I judges under the U.S. Constitution. As such, they do not exercise full judicial power, essentially, the power over life, liberty, and property.
ALJs are generally considered to be part of the executive branch, not the judicial branch, but the APA is designed to guarantee the decisional independence of ALJs.
These decisions may be appealable or themselves reviewable.
Reviews can also be heard by the federal courts in cases involving federal law.
Two distinct issues in order to understand review of Regulatory laws:
1.
Substance:
was the agency (or branch of executive government) authorized to make rules of this nature. For example, can the Environmental Protection Agencies make laws regarding immigration (obviously not).
2.
Procedure:
did they follow the correct procedure when making the law.
A regulation can be set aside on either ground.
How do we know what procedure must be followed?
The
Administrative Procedure Act (APA),
Pub.L. 79–404, 60 Stat. 237, enacted June 11, 1946, is the United States federal statute that governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations. To protect citizens, the APA also grants the judiciary oversight over all agency actions. It is one of the most important pieces of United States administrative law. The Act became law in 1946.
Basic ideas
1. to require agencies to keep the public informed of their organization, procedures and rules;
2. to provide for public participation in the rulemaking process, for instance through public commenting;
3. to establish uniform standards for the conduct of formal rulemaking and adjudication;
Regarding all Agency decisions and Regulatory Laws
The APA provides several types of judicial review that apply unless otherwise specified by statute. With regard to the standards of judicial review of agency action that a court will use to evaluate whether an agency’s action is valid, the APA states:
The reviewing court shall ... hold unlawful and set aside agency action, findings, and
conclusions found to be –
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.
Parliamentary Sovereignty
The concept of Parliamentary Sovereignty broadly means that Parliament has the right to make or unmake any law, and no person is allowed to override or set aside the law of Parliament.
Acts of Parliament override the law of the judges.
WHAT IS DANGER WITH PARLIAMENTARY SOVEREIGNTY
HOW DO FUNDAMETAL RIGHTS FIT INTO THIS
The Rule of Law aims to prevent the exercise of arbitrary or tyrannical power. It became popularised by AV Dicey, who described it through three main tenets:
1.A man can only be punished if it was proved in court that he breached a law. This means that the Sovereign cannot punish people arbitrarily.
2.No man is above the law, and everyone is equal before the law. This means that the law applies to everyone in the exact same way regardless of social, economic or political status.
3.The Constitution (the law) is the result of previous judicial decisions determining the rights of private persons. This means the constitution is not the source of the law, but the consequence of inherent rights. We don’t derive our rights from the Constitution; the Constitution is the result of our rights.
The Rule of Law should not be limited to three tightly defined principles. The Rule of Law is a broad concept which prevents arbitrary power in any form.
International Commission of Jurists
The rule of law can be characterised as ‘the principles, institutions and procedures, …which the experience and traditions of lawyers in different countries of the world, often having themselves varying political structures and economic backgrounds, have shown to be important to protect the individual from arbitrary government and enable him to enjoy the dignity of men.’
Lord Bingham
1.Law must be accessible, intelligible, clear.
2.Legal rights and liabilities should be resolved by application of the law, not discretion.
3.Laws of the land should apply equally to all.
4.Laws must afford adequate protection to human rights.
5.Means must be provided for resolving civil disputes.
6.Ministers and public officers should exercise the powers conferred on them reasonably and without exceeding their limits.
7.Adjudicative procedures provided by the state should be fair.
8.Compliance by the state with international law.
What is rule of law
Why is it important
Why is it important
Business environment corruption free –if not what happens? Wrong people get tenders. The work is not done properly or at all. Money is wasted. Taxes must be raised. Ultimately infrastructure starts collapsing
Public works – bridges – are they safe? Water pipes will they last? Airports become unsafe eg the death of the MD of Total in Russia last week
Public Health - Hospitals are they clean and medicines available – SA –environment wrecked as in china where they cannot breathe the air in Beijing
Problems if not applied
Public Participation – The government does not consult with local residences. Does what they want because they are corrupt or just negligent – cell phone towers in schools. Power stations in residential neighbourhoods. SANRAL again – people remove number palates, steal them etc
Civil Justice – failures in this regard can be devastating can lead to violence, loss of money, loss of confidence – people will not invest in the country because they cannot have disputes resolved.
How the elements of rule of law are linked to the 9 factors in two ways
1) the law imposes limits on the exercise of power by the state and its agents, as well as individuals and private entities
2)The state limits the actions of members of society and fulfills its basic duties towards society such that the public interest is served, people are protected from violence and members of society have access to mechanisms to settle disputes and redress grievances
Self dealing
Factor 1:
Constraints on Government Powers Factor 1 measures the extent to which those who govern are bound by law. It comprises the means, both constitutional and institutional, by which the powers of the government and its officials and agents are limited and held accountable under the law. It also includes non-governmental checks on the government’s power, such as a free and independent press.
Factor 1:
Governmental checks take many forms; they do not operate solely in systems marked by a formal separation of powers, nor are they necessarily codified in law.
Factor 1:
What is essential, however, is that authority is distributed, whether by formal rules or by convention, in a manner that ensures that no single organ of government has the practical ability to exercise unchecked power.
This factor addresses the effectiveness of the institutional checks on government power by the
legislature (1.1),
the judiciary (1.2), and
independent auditing and review agencies (1.3)2, as well as the effectiveness of
nongovernmental oversight by the media and civil society (1.5), which serve an important role in monitoring government actions and holding officials accountable.
Factor 1:
The extent to which transitions of power occur in accordance with the law is also examined (1.6).3
In addition to these checks, this factor also measures the extent to which government officials are held accountable for official misconduct.
Factor 2
This factor measures the absence of corruption in government. The factor considers three forms of corruption:
bribery
improper influence by private or public or private interests
and misappropriation of public funds or other resources.
Factor 2
These three forms of corruption are examined with respect to :
To government officers in the executive branch
the judiciary,
the military and police
the legislature
and encompass a wide range of possible situations in which corruption—from petty bribery to major kinds of fraud can occur.
Factor3
Factor 3
measures the openness of government, which is essential for effective public oversight. Specifically, this factor measures:
1) Whether the laws are publicized and accessible
2) Whether the laws are stable
2) whether administrative proceedings are open to public participation;
3) and whether official information, including drafts of laws and regulations, is available to the public.
Factor 3
The first two sub-factors relate to the clarity, publicity, accessibility, and stability that are required for the public to know what the law is and what conduct is permitted and prohibited.
Factor 3
The second two sub-factors encompass the opportunity for the people to participate in the processes by which the laws are made and administered. Among the indicators of participation are:
1) whether people have the ability to petition the government;
2) whether proceedings are held with timely notice and are open to the public;
3) and whether official information, including drafts of legislation and records of legislative and administrative proceedings, are available to the public.
Factor 4
Factor 4 measures protection of fundamental human rights.
It recognizes that a system of positive law that fails to respect core human rights established under international law is at best “rule by law”, and does not deserve to be called a rule of law system.
Since there are many other indices that address human rights, and as it would be impossible for the Index to assess adherence to the full range of rights, this factor focusses on a relatively modest menu of rights that are firmly established in accordance with the Universal Declaration and customary international law, and are most closely related to rule of law concerns.
Factor 4
Accordingly, Factor 4 encompasses adherence to the following fundamental rights:
effective enforcement of laws that ensure equal protection
the right to life and security of the person
due process of law and the rights of the accused
freedom of opinion and expression
freedom of belief and religion
the right of privacy
freedom of assembly and association
and fundamental labor rights, including the right to collective bargaining, the prohibition of forced and child labor, and the elimination of discrimination
Factor 5
Factor 5 measures how well the society assures the security of persons and property.
Security is one of the defining aspects of any rule of law society and a fundamental function of the state.
It is also a precondition for the realization of the rights and freedoms that the rule of law seeks to advance.
Factor 5
This factor includes three dimensions to cover the various threats to order and security:
1)crime (particularly conventional crime);
2) political violence including terrorism, armed conflict, and political unrest;
3) and violence as a socially accepted means to redress personal grievances (vigilante justice).
Factor 6
Factor 6 measures the extent to which regulations are fairly and effectively implemented and enforced.
Regulations, both legal and administrative, structure interactions within and outside of the government.
Factor 6
Strong rule of law adherence requires:
1) that these regulations and administrative provisions are enforced effectively,
2) and are applied and enforced without improper influence by public officials or private interests
Factor 6
3) Additionally, strong rule of law requires that administrative proceedings are conducted in a timely manner, without unreasonable delays;
4) that due process is respected in administrative proceedings
5) and that there is no expropriation of private property without adequate compensation.
Factor 7
Factor 7 measures whether ordinary people can resolve their grievances peacefully and effectively through the civil justice system.
The delivery of effective civil justice requires that the system be
1)accessible
2)affordable
3) free of discrimination and without improper influence by public officials
Factor 7
. The delivery of effective civil justice also necessitates that court proceedings are conducted:
1) in a timely manner and without unreasonable delays,
2)and that judgments are enforced effectively (7.6).
Factor 7
Finally, recognizing the value of alternative dispute resolution mechanisms (ADRs)
this factor also measures the:
1) accessibility,
2)impartiality, and
3) efficiency of
mediation and arbitration systems that enable parties to resolve civil disputes (7.7).
Factor 8
Factor 8 evaluates the criminal justice system.
An effective criminal justice system is a key aspect of the rule of law, as it constitutes the conventional mechanism for bringing action against individuals for offenses against society.
Factor 8
Effective criminal justice systems are capable of:
1) investigating and adjudicating criminal offenses successfully and
2) in a timely manner
3) through a system that is impartial and non-discriminatory
4)and is free of corruption and
5) improper government influence,
6)all while ensuring that the rights of both victims and accused are effectively protected
Factor 8
The delivery of effective criminal justice also necessitates correctional systems that effectively incapacitate offenders and reduce criminal behavior.
Accordingly, an assessment of the delivery of criminal justice should take into consideration the entire system, including the police, lawyers, prosecutors, judges and prison officers.
Factor 9
Factor 9 concerns the role played in many countries
By customary and “informal” systems of justice – including traditional, tribal and religious courts- and community based systems - in resolving disputes. These systems often play a large role in cultures in which formal legal institutions fail to provide effective remedies for large segments of the population, or when formal institutions are perceived as remote, corrupt, or ineffective.
Labour hearings in the workplace
Factor 9
This factor covers three concepts: whether these dispute resolution systems are:
1) timely and effective
2) whether they are impartial and free of improper influence;
3) and the extent to which these systems respect and protect fundamental rights.
Brief Introduction
Much of what we study in this section is to understand the United States Constitution and more particularly the Bill of Rights- You are required to read the bill of rights
First 10 Amendments to the Constitution
It is important because much of what we learn here flows into the Universal Declaration of Human Rights of the United Nations which is one of the most important sources of international Human Rights Law
That law in turn influences many other branches of International law in some way.
These in turn have influenced Regional law and National Laws of many countries.
Read The universal Declaration of Human Rights
Two important Historical Documents
As background we needs to mention two documents
Both of these were born from rebellions between classes of people in England against their King.
They sought to limit the power of the King
Magna Carta Libertatum
Magna Carta Libertatum (Medieval Latin for the Great Charter of the Liberties), commonly called Magna Carta (also Magna Charta; (the) Great Charter),
[a] is a charter agreed to by King John of England at Runnymede, near Windsor, on 15 June 1215. First drafted by the Archbishop of Canterbury to make peace between the unpopular King and a group of rebel barons,
it promised the protection of church rights, protection for the barons from illegal imprisonment, access to swift justice, and limitations on feudal payments to the Crown, to be implemented through a council of 25 barons.
Magna Carta still forms an important symbol of liberty today, often cited by politicians and campaigners, and is held in great respect by the British and American legal communities, Lord Denning describing it as the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot
Clause 39 Magna Carta 1215
No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.
Clause 40 Magna Carta 1215
To no one will we sell, to no one deny or delay right or justice. No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled . nor will we proceed with force against him . except by the lawful judgement of his equals or by the law of the land.
Clause 14 Magna Carta 1215
of the charter required the king to “obtain the common counsel of the kingdom for the assessment of aid”
No taxation without representation
1689 English Bill of Rights
The 1689 English Bill of Rights was a British Law, passed by the Parliament of Great Britain in 1689 that declared the rights and liberties of the people and settling the succession in William III and Mary II following the Glorious Revolution of 1688 when James II was deposed.
English Bill of Rights
Summary of the English Bill of Rights
The 1689 English Bill of Rights had a massive influence on the colonies in North America and the Constitution of the United States. The most important Articles of the 1689 English Bill of Rights are as follows:
English Bill of Rights
the pretended power of suspending the laws and dispensing with[nb 2] laws by regal authority without consent of Parliament is illegal;
the commission for ecclesiastical causes is illegal;
levying taxes without grant of Parliament is illegal;
English Bill of Rights
it is the right of the subjects to petition the king, and prosecutions for such petitioning are illegal;
keeping a standing army in time of peace, unless it be with consent of Parliament, is against law;
Protestants may have arms for their defence suitable to their conditions and as allowed by law;
English Bill of Rights
election of members of Parliament ought to be free;
the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament;
excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;
English Bill of Rights
jurors in trials for high treason ought to be freeholders;
promises of fines and forfeitures before conviction are illegal and void;
for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently.
The Enlightenment
“Age of Reason”
NIALL FERGUSON- modern historian at Harvard
six powerful concepts (killer apps) of the west
competition,
science,
the rule of law,
modern medicine,
consumerism,
and the work ethic.
Learning Objective
Day 1
Students will be able to define the Enlightenment and key vocabulary, and identify the historical roots of this time period.
Key Vocabulary
Enlightenment: a period during the 1600s and 1700s in which educated Europeans changed their outlook on life by seeing reason as the key to human progress.
Age of Reason: another name for the Enlightenment
Salons: in France, a simple meeting of philosophers to discuss ideas during the Enlightenment
Philosopher: a scholar or thinker
Reason: Using logical thinking, not superstition
Roots of the Enlightenment
The Enlightenment grew out of the Renaissance, Reformation, and the Scientific Revolution.
What’s the same?: Like all of these other movements, much Enlightenment thinking challenged accepted beliefs.
What’s new?: Enlightenment philosophers wanted to use the ideas and reason of the Scientific Revolution for problems in government and society.
Enlightenment in Europe -> modern constitutional ideas
What is it?
The term Enlightenment refers to a loosely organized intellectual movement, secular, rationalist, liberal, and egalitarian in outlook and values, which flourished in the middle decades of the eighteenth century.
Enlightenment in Europe
Origins
In a long-term perspective, the Enlightenment can be regarded as the third and last phase of the cumulative process by which European thought and intellectual life was modernized in the course of the early modern period. Its relation to the two earlier stages in this process—Renaissance and Reformation
Enlightenment in Europe IDEAS:
Religion. No idea is more commonly associated with the Enlightenment than hostility toward established forms of religion—indeed, at least one major interpreter has characterized the movement in terms of the rise of modern paganism (Gay, 1966). It is certainly the case that the majority of adherents to the Enlightenment shared an intellectual aversion to theism in its inherited forms:
Enlightenment in Europe IDEAS:
Science. It is a commonplace that the demotion of religion by the Enlightenment went hand in hand with the promotion of science—indeed, the very notion of a generic science, as a sphere of cognition distinct from religious belief, was undoubtedly a gift of the eighteenth century. The Enlightenment discovery or construction of science, in this sense, owed everything to the idea of a heroic age of scientific achievement just behind it, in the development of modern astronomy and physics from Nicolaus Copernicus to Newton.
Enlightenment in Europe IDEAS:
Politics. The seventeenth century had seen a profound revolution in political thought, with the emergence of the modern natural rights tradition of Grotius, Hobbes, Locke, and Pufendorf. One of the major achievements of the early Enlightenment was to popularize and disseminate this tradition, via an endless array of translations, summaries, and commentaries. By the mid-eighteenth century, the basic conceptual vocabulary of the natural rights tradition—natural rights, state of nature, civil society, social contract—had entered the mainstream of Enlightenment political thought, which embraced, nearly unanimously, the belief that the only legitimate basis of political authority was consent. The path toward the vindication of inalienable natural rights in the founding documents of the American and French Revolutions lay open
Important ideas
Montesquieu established the idea of three branches of government—executive, legislature, and judiciary.
John Locke (1632–1704) was another prominent Western philosopher who conceptualized rights as natural and inalienable. Like Hobbes, Locke believed in a natural right to life, liberty, and property.
Light out of the Darkness
A Frenchman, Bernard de Fontenelle, expressed this optimistic faith in reason and progress. In 1702, he wrote that the new century “will become more enlightened day by day, so that all previous centuries will be lost in darkness by comparison.”
The Salons
In France, thinkers called philosophes (French for “philosophers”) championed the idea of reason in government.
Philosophers often gathered in informal meetings, called salons. There they exchanged and debated ideas for hours.
Many salons were organized by women. Gatherings like these helped to shape and spread the ideas of the Enlightenment.
Think/Pair/Share: Describe the purpose of a salon.
Why is this important?
Many of our own ideas about government, such as the Declaration of Independence and the American Constitution got their ideas directly from the Enlightenment.
In fact, many of America’s founding fathers studied the ideas of the Enlightenment thinkers during the American Revolution.
Left to right: Benjamin Franklin, John Adams, Thomas Jefferson
What a concept!
Enlightenment thinkers rejected authority and upheld the freedom of individuals to think for themselves.
Rene Descartes: “I think, therefore I am.”
Enlightenment and Government
Enlightenment thinkers criticized accepted ideas about government. Some questioned the medieval belief in the divine right of kings [ WE WILL NOT LOOK AT THIS CONCEPT ANY FURTHER ALTHOUGH IT IS IN YOUR BOOK
Many Enlightenment thinkers stressed individual rights that governments must respect.
Enlightenment thinkers also felt that people should have a say in their government.
Enlightenment and Religion
I will not explore this issue other than to say that
Enlightenment thinkers embraced tolerance of other points of view.
Many rejected traditional religion completely
Learning Objective
Days 2-4
Students will be able to describe the ideas of major Enlightenment thinkers.
Fill out the chart as the presentation progresses.
Thomas Hobbes
Hobbes believed people are naturally selfish, cruel, and greedy.
In 1651, he published a book called Leviathan. In this book, he wrote that people are driven by a restless desire for power.
Without laws, people would always be in conflict.
In such a “state of nature”, life would be “nasty, brutish, and short.”
His idea: Governments were created to protect people from their own selfishness.
Hobbes continued….
Later Enlightenment thinkers might not have agreed with Hobbes…
But, he was important because he was one of the first thinkers to apply reason to the problem of politics
His ideas may sound harsh, but it was based on his own observations of human nature and reasoning.
Add these definitions to your vocabulary list
Social Contract: an agreement between people and their government, in which people give up some things in return for the benefit of having government.
Natural rights: rights that people have simply for being human.
Bill of rights: a list of basic rights a government must protect.
Constitutional Monarchy: a form of government in which the king’s power is limited by a basic set of laws, or Constitution.
John Locke: Social Contract and Natural Rights
He wrote Two Treatises of Government in 1690.
He believed the purpose of government was to protect people’s natural rights. He said government should protect,” his life, liberty, and property—against the injuries and attempts of other men.”
His idea: The true basis of government was a social contract between people and their government. If the government didn’t respect people’s rights, it could be overthrown.
John Locke: Social Contract and Natural Rights
In exchange protection, people gave government the power to rule on their behalf. We call this idea the “consent of the governed.”
Lasting Impact: the idea that government could be overthrown if it failed to respect people’s rights had wide influence and was ultimately echoed in the American Declaration of Independence.
Locke’s ideas in England
Locke was in favor of constitutional monarchies. This meant laws or a constitution limited the power of the monarchs (or kings).
In 1689, the English set down a new set of rules called the English Bill of Rights. This strengthened the power of the people and their representatives in Parliament (an English congress.)
Montesquieu: Separation of Powers
Like Locke, Montesquieu was concerned with how to protect liberty from a bad government.
He Wrote The Spirit of Laws in 1748. In this book, he described how governments should be organized.
His idea: The separation of powers: By dividing different powers among more than one branch of government, no one group in the government could grow too powerful.
Montesquieu continued….
Each branch of government checked the other branches. When powers were not separated this way, Montesquieu warned, liberty was soon lost. He said: “When the legislative and executive powers are united in the same person…, there can be no liberty.”
Lasting Impact: He greatly influenced the men who wrote the U.S. Constitution. We now have a separate legislative (Congress), judicial (courts), and executive (President) branch.
Voltaire: Religious tolerance and free speech
Voltaire was an Enlightenment writer.
His most famous novel was Candide, in which he poked fun at old traditional ideas.
Voltaire was especially concerned with freedom of thought and expression.
His idea: He had a strong belief in religious tolerance and free speech. Tolerance means the acceptance of different beliefs and customs.
Voltaire Continued…
Voltaire said, “I disapprove of what you say, but I will defend to the death your right to say it.”
Lasting Impact: Voltaire met Benjamin Franklin, and when the U.S. Bill of Rights was written, the ideas of freedom of religion and freedom of speech were added to our 1st amendment to the Constitution.
Cesare Beccaria: The Rights of the Accused
In the Middle Ages, torture of criminals was common. The rack was often used, as well as devices like thumbscrews.
Beccaria, an Italian, wrote a book called On Crimes and Punishments in which he argued against brutal punishments.
Beccaria continued….
His ideas: A person accused of a crime should receive a fair and speedy trial. Torture should never be used. Capital Punishment (death sentences) should be done away with.
“For a punishment to be just it, should consist of only such gradations of intensity as to suffice to deter men from committing crimes.” This means that “punishment should fit the crime” and not be more than necessary to stop someone else from doing it again.
Beccaria’s impact
Beccaria’s ideas were adopted straight into our Constitution’s Bill of Rights. In fact our 8th amendment prevents “cruel and unusual punishment” for crimes, and our 6th amendment provides for a speedy trial. (The only exception is the Death Penalty, which we still have in the United States today.)
Damiens
Fetched from his prison cell on the morning of 28 March 1757, Damiens allegedly said La journée sera rude (The day will be hard). He was first subjected to a torture in which his legs were painfully compressed by devices called boots.
Damiens
He was then tortured with red-hot pincers; the hand with which he had held the knife during the attempted assassination was burned using sulphur; molten wax, molten lead, and boiling oil were poured into his wounds. He was then remanded to the royal executioner, Charles Henri Sanson, who harnessed horses to his arms and legs to be dismembered.
Damiens
But Damiens limbs did not separate easily: the officiants ordered Sanson to cut Damiens tendons, and once that was done the horses were able to perform the dismemberment.Once Damiens was dismembered, to the applause of the crowd, his reportedly still-living torso was burnt at the stake. (Some accounts say he died when his last remaining arm was removed
Adam Smith
Adam Smith (16 June 1723 NS (5 June 1723 OS) – 17 July 1790) was a Scottish economist, philosopher, and author
Arguably founder of CAPITALISM
Adam Smith
As every individual, therefore, endeavours as much as he can both to employ his capital in the support of domestic industry, and so to direct that industry that its produce may be of the greatest value; every individual necessarily labours to render the annual revenue of the society as great as he can. He generally, indeed, neither intends to promote the public interest, nor knows how much he is promoting it.
Adam Smith
By preferring the support of domestic to that of foreign industry, he intends only his own security; and by directing that industry in such a manner as its produce may be of the greatest value, he intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention. Nor is it always the worse for the society that it was no part of it. By pursuing his own interest he frequently promotes that of the society more effectually than when he really intends to promote it. I have never known much good done by those who affected to trade for the public good. It is an affectation, indeed, not very common among merchants, and very few words need be employed in dissuading them from it.
Adam Smith
Those who regard that statement as Smiths central message also quote frequently Smiths dictum:
It is not from the benevolence of the butcher, the brewer, or the baker, that we expect our dinner, but from their regard to their own interest. We address ourselves, not to their humanity but to their self-love, and never talk to them of our own necessities but of their advantages.
Learning Objective
Students will be able to describe how democratic thoughts and governments were influenced by the Enlightenment.
Impact of the Enlightenment on Government
Modern views of government owe a great deal to Enlightenment thinkers. The Enlightenment influenced monarchs in Europe, especially enlightened despots, and greatly affected revolutions in America and France.
Enlightened Rule by Monarchs
Despot: a king or other ruler with absolute, unlimited power.
The Enlightenment did not change Europe overnight. Many countries still had kings. Some of them became “enlightened despots” by using enlightenment ideas in their countries.
Examples: Some kings ended the use of torture, started universities, and used religious tolerance. They wanted to keep the people happy without losing their power.
The American and French Revolutions
Both America and France had revolutions overthrowing their kings. However, the revolution in France was much more violent.
The Enlightenment in America
Enlightenment ideas had a major influence on the leaders of the American Revolution. English leaders in America shared with John Locke the traditions of the Magna Carta and the English Bill of Rights.
When the Americans rebelled in 1775, they pointed to the abuse of their rights by the English king.
The Declaration of Independence echoed Locke’s ideas on natural rights and the purpose of government.
“We the People”
Other Enlightenment ideas can be seen in the U.S. Constitution. America’s basic law includes Montesquieu’s idea of separation of powers.
The Bill of Rights protects the freedom of religion and speech championed by Voltaire. It also includes some of the rights supported by Beccaria, such as the right to a speedy trial.
Enlightenment in France
In 1789, revolution broke out in France. The National Assembly adopted the Declaration of Rights of Man and Citizen. This document talked about liberty and equality. It upheld the rights to own property, and freedom of speech and religion.
Declaration of the Rights of Man and Citizen
1. Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general good.
2. The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.
Declaration of the Rights of Man and Citizen
3. The principle of all sovereignty resides essentially in the nation. No body nor individual may exercise any authority which does not proceed directly from the nation.
Declaration of the Rights of Man and Citizen
4. Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.
Declaration of the Rights of Man and Citizen
5. Law can only prohibit such actions as are hurtful to society. Nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law.
6. Law is the expression of the general will. Every citizen has a right to participate personally, or through his representative, in its foundation. It must be the same for all, whether it protects or punishes
Declaration of the Rights of Man and Citizen
7. No person shall be accused, arrested, or imprisoned except in the cases and according to the forms prescribed by law. Any one soliciting, transmitting, executing, or causing to be executed, any arbitrary order, shall be punished. But any citizen summoned or arrested in virtue of the law shall submit without delay, as resistance constitutes an offense.
Declaration of the Rights of Man and Citizen
8. The law shall provide for such punishments only as are strictly and obviously necessary, and no one shall suffer punishment except it be legally inflicted in virtue of a law passed and promulgated before the commission of the offense.
Declaration of the Rights of Man and Citizen
9. As all persons are held innocent until they shall have been declared guilty, if arrest shall be deemed indispensable, all harshness not essential to the securing of the prisoners person shall be severely repressed by law.
Declaration of the Rights of Man and Citizen
10. No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not isturb the public order established by law.
11. The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law
Violence of the French Revolution
Soon, however, terrible violence erupted. Thousands of wealthy Frenchmen and members of the Royal family were beheaded on the guillotine.
Guillotine: a machine that cut off people’s heads by dropping a sharp blade.
The bloody chaos brought a strange end to the Enlightenment dream based on reason.
Learning Objective
Students will be able to list the contributions of women to the Enlightenment.
Women of the Enlightenment
Several women, such as Madame Geoffrin, Abigail Adams, Olympe de Gouges, and Mary Wollstonecraft, worked to extend ideas of liberty and equality to women.
Once the ideas of the Enlightenment were expressed, women wanted these rights as well as men.
French Enlightenment Women
Madame Geoffrin used her home for many of the salon meetings in France. She not only hosted the meetings, but often directed the conversations and settled arguments.
Olympe de Gouges published the female version of the document of the French Revolution. She called it the Declaration of the Rights of Woman and the Female Citizen. She called for equality in all things. When she spoke out against the bloodshed of the French Revolution, they sent her to the guillotine.
Abigail Adams
Wife to John Adams, who was a leader of the American Revolution and later President.
She reminded John not to forget women in the Revolution. “Remember, all men would be tyrannts if they could. If particular care and attention is not paid to the Ladies, we are determined to start a rebellion…we will not hold ourselves bound to any Laws in which we have no voice.”
Mary Wollstonecraft
An English writer. In 1792, she argued that women deserved the same rights and opportunities as men.
Wollstonecraft believed education was the key for women wanting equality and freedom. She inspired many later leaders of the women’s rights movement in America.
US CONSITUTION
The Articles (7)
Article I (1) The Legislative Branch
A long part with 10 sections, creates the Congress to make laws, divides Congress into a Senate and House of Representatives, makes rules for election of members, gives some powers to Congress, limits other powers
US CONSITUTION
Article II (2) The Executive Branch
Sets up the presidency and vice presidency to carry out or execute the laws, election rules, powers of the president, how to impeach
Article III (3) The Judicial Branch
Sets up the Supreme Court, duties and powers of Supreme Court and federal courts, power of judicial review, defines treason
US CONSITUTION
Article IV (4) The States
Creates rules for states to get along with other states, guarantees to states, admitting states to the Union
Article V (5) Making Amendments
How to add amendments to the Constitution
US CONSITUTION
Article VI (6) Supreme Law of the Land
The Constitution is the highest law of the land
Article VII (7) Ratification
The Constitution became effective when 9 out of 13 states approved it
US CONSITUTION-Amendments
The Amendments (27)
I (1) Freedom of religion, speech, press, assembly, petition
II (2) Right to bear arms
III (3) Quartering of troops
IV (4) Search and seizure
V (5) Due process, double jeopardy, self-incrimination
US CONSITUTION-Amendments
VI (6) Jury trial, right to counsel
VII (7) Common law suits
VIII (8) Excess bail or fines, cruel and unusual punishment
IX (9) Rights not named
X (10) Powers reserved to states
XI (11) Lawsuits against a state
XII (12) Election of president and vice president
US CONSITUTION-Amendments
XIII (13) Abolition of slavery
XIV (14) Due process, equal protection, privileges of citizens
XV (15) Rights not to be denied because of race
XVI (16) Income tax
XVII (17) Election of senators
XVIII (18) Prohibition
XIX (19) Womens right to vote
US CONSITUTION-Amendments
XX (20) Presidential term and succession
XXI (21) Repeal of prohibition
XXII (22) President limited to 2 terms
XXIII (23) Right to vote for president and VP for persons in D.C.
XXIV (24) No poll tax
US CONSITUTION-Amendments
XXV (25) Presidential succession
XXVI (26) Right to vote at age 18
XXVII (27) Compensation for members of Congress
CATEGORIES
Economics
Nursing
Applied Sciences
Psychology
Science
Management
Computer Science
Human Resource Management
Accounting
Information Systems
English
Anatomy
Operations Management
Sociology
Literature
Education
Business & Finance
Marketing
Engineering
Statistics
Biology
Political Science
Reading
History
Financial markets
Philosophy
Mathematics
Law
Criminal
Architecture and Design
Government
Social Science
World history
Chemistry
Humanities
Business Finance
Writing
Programming
Telecommunications Engineering
Geography
Physics
Spanish
ach
e. Embedded Entrepreneurship
f. Three Social Entrepreneurship Models
g. Social-Founder Identity
h. Micros-enterprise Development
Outcomes
Subset 2. Indigenous Entrepreneurship Approaches (Outside of Canada)
a. Indigenous Australian Entrepreneurs Exami
Calculus
(people influence of
others) processes that you perceived occurs in this specific Institution Select one of the forms of stratification highlighted (focus on inter the intersectionalities
of these three) to reflect and analyze the potential ways these (
American history
Pharmacology
Ancient history
. Also
Numerical analysis
Environmental science
Electrical Engineering
Precalculus
Physiology
Civil Engineering
Electronic Engineering
ness Horizons
Algebra
Geology
Physical chemistry
nt
When considering both O
lassrooms
Civil
Probability
ions
Identify a specific consumer product that you or your family have used for quite some time. This might be a branded smartphone (if you have used several versions over the years)
or the court to consider in its deliberations. Locard’s exchange principle argues that during the commission of a crime
Chemical Engineering
Ecology
aragraphs (meaning 25 sentences or more). Your assignment may be more than 5 paragraphs but not less.
INSTRUCTIONS:
To access the FNU Online Library for journals and articles you can go the FNU library link here:
https://www.fnu.edu/library/
In order to
n that draws upon the theoretical reading to explain and contextualize the design choices. Be sure to directly quote or paraphrase the reading
ce to the vaccine. Your campaign must educate and inform the audience on the benefits but also create for safe and open dialogue. A key metric of your campaign will be the direct increase in numbers.
Key outcomes: The approach that you take must be clear
Mechanical Engineering
Organic chemistry
Geometry
nment
Topic
You will need to pick one topic for your project (5 pts)
Literature search
You will need to perform a literature search for your topic
Geophysics
you been involved with a company doing a redesign of business processes
Communication on Customer Relations. Discuss how two-way communication on social media channels impacts businesses both positively and negatively. Provide any personal examples from your experience
od pressure and hypertension via a community-wide intervention that targets the problem across the lifespan (i.e. includes all ages).
Develop a community-wide intervention to reduce elevated blood pressure and hypertension in the State of Alabama that in
in body of the report
Conclusions
References (8 References Minimum)
*** Words count = 2000 words.
*** In-Text Citations and References using Harvard style.
*** In Task section I’ve chose (Economic issues in overseas contracting)"
Electromagnetism
w or quality improvement; it was just all part of good nursing care. The goal for quality improvement is to monitor patient outcomes using statistics for comparison to standards of care for different diseases
e a 1 to 2 slide Microsoft PowerPoint presentation on the different models of case management. Include speaker notes... .....Describe three different models of case management.
visual representations of information. They can include numbers
SSAY
ame workbook for all 3 milestones. You do not need to download a new copy for Milestones 2 or 3. When you submit Milestone 3
pages):
Provide a description of an existing intervention in Canada
making the appropriate buying decisions in an ethical and professional manner.
Topic: Purchasing and Technology
You read about blockchain ledger technology. Now do some additional research out on the Internet and share your URL with the rest of the class
be aware of which features their competitors are opting to include so the product development teams can design similar or enhanced features to attract more of the market. The more unique
low (The Top Health Industry Trends to Watch in 2015) to assist you with this discussion.
https://youtu.be/fRym_jyuBc0
Next year the $2.8 trillion U.S. healthcare industry will finally begin to look and feel more like the rest of the business wo
evidence-based primary care curriculum. Throughout your nurse practitioner program
Vignette
Understanding Gender Fluidity
Providing Inclusive Quality Care
Affirming Clinical Encounters
Conclusion
References
Nurse Practitioner Knowledge
Mechanics
and word limit is unit as a guide only.
The assessment may be re-attempted on two further occasions (maximum three attempts in total). All assessments must be resubmitted 3 days within receiving your unsatisfactory grade. You must clearly indicate “Re-su
Trigonometry
Article writing
Other
5. June 29
After the components sending to the manufacturing house
1. In 1972 the Furman v. Georgia case resulted in a decision that would put action into motion. Furman was originally sentenced to death because of a murder he committed in Georgia but the court debated whether or not this was a violation of his 8th amend
One of the first conflicts that would need to be investigated would be whether the human service professional followed the responsibility to client ethical standard. While developing a relationship with client it is important to clarify that if danger or
Ethical behavior is a critical topic in the workplace because the impact of it can make or break a business
No matter which type of health care organization
With a direct sale
During the pandemic
Computers are being used to monitor the spread of outbreaks in different areas of the world and with this record
3. Furman v. Georgia is a U.S Supreme Court case that resolves around the Eighth Amendments ban on cruel and unsual punishment in death penalty cases. The Furman v. Georgia case was based on Furman being convicted of murder in Georgia. Furman was caught i
One major ethical conflict that may arise in my investigation is the Responsibility to Client in both Standard 3 and Standard 4 of the Ethical Standards for Human Service Professionals (2015). Making sure we do not disclose information without consent ev
4. Identify two examples of real world problems that you have observed in your personal
Summary & Evaluation: Reference & 188. Academic Search Ultimate
Ethics
We can mention at least one example of how the violation of ethical standards can be prevented. Many organizations promote ethical self-regulation by creating moral codes to help direct their business activities
*DDB is used for the first three years
For example
The inbound logistics for William Instrument refer to purchase components from various electronic firms. During the purchase process William need to consider the quality and price of the components. In this case
4. A U.S. Supreme Court case known as Furman v. Georgia (1972) is a landmark case that involved Eighth Amendment’s ban of unusual and cruel punishment in death penalty cases (Furman v. Georgia (1972)
With covid coming into place
In my opinion
with
Not necessarily all home buyers are the same! When you choose to work with we buy ugly houses Baltimore & nationwide USA
The ability to view ourselves from an unbiased perspective allows us to critically assess our personal strengths and weaknesses. This is an important step in the process of finding the right resources for our personal learning style. Ego and pride can be
· By Day 1 of this week
While you must form your answers to the questions below from our assigned reading material
CliftonLarsonAllen LLP (2013)
5 The family dynamic is awkward at first since the most outgoing and straight forward person in the family in Linda
Urien
The most important benefit of my statistical analysis would be the accuracy with which I interpret the data. The greatest obstacle
From a similar but larger point of view
4 In order to get the entire family to come back for another session I would suggest coming in on a day the restaurant is not open
When seeking to identify a patient’s health condition
After viewing the you tube videos on prayer
Your paper must be at least two pages in length (not counting the title and reference pages)
The word assimilate is negative to me. I believe everyone should learn about a country that they are going to live in. It doesnt mean that they have to believe that everything in America is better than where they came from. It means that they care enough
Data collection
Single Subject Chris is a social worker in a geriatric case management program located in a midsize Northeastern town. She has an MSW and is part of a team of case managers that likes to continuously improve on its practice. The team is currently using an
I would start off with Linda on repeating her options for the child and going over what she is feeling with each option. I would want to find out what she is afraid of. I would avoid asking her any “why” questions because I want her to be in the here an
Summarize the advantages and disadvantages of using an Internet site as means of collecting data for psychological research (Comp 2.1) 25.0\% Summarization of the advantages and disadvantages of using an Internet site as means of collecting data for psych
Identify the type of research used in a chosen study
Compose a 1
Optics
effect relationship becomes more difficult—as the researcher cannot enact total control of another person even in an experimental environment. Social workers serve clients in highly complex real-world environments. Clients often implement recommended inte
I think knowing more about you will allow you to be able to choose the right resources
Be 4 pages in length
soft MB-920 dumps review and documentation and high-quality listing pdf MB-920 braindumps also recommended and approved by Microsoft experts. The practical test
g
One thing you will need to do in college is learn how to find and use references. References support your ideas. College-level work must be supported by research. You are expected to do that for this paper. You will research
Elaborate on any potential confounds or ethical concerns while participating in the psychological study 20.0\% Elaboration on any potential confounds or ethical concerns while participating in the psychological study is missing. Elaboration on any potenti
3 The first thing I would do in the family’s first session is develop a genogram of the family to get an idea of all the individuals who play a major role in Linda’s life. After establishing where each member is in relation to the family
A Health in All Policies approach
Note: The requirements outlined below correspond to the grading criteria in the scoring guide. At a minimum
Chen
Read Connecting Communities and Complexity: A Case Study in Creating the Conditions for Transformational Change
Read Reflections on Cultural Humility
Read A Basic Guide to ABCD Community Organizing
Use the bolded black section and sub-section titles below to organize your paper. For each section
Losinski forwarded the article on a priority basis to Mary Scott
Losinksi wanted details on use of the ED at CGH. He asked the administrative resident