Extra TA Office Hours

1

• Extra TA Office Hours This week
• Jason Hildebrandt
• Friday 1000-1200
• Laszlo Sarkany
• Thurs. 145-345
• Nadir Budhwani
• Tuesday 100-300
• Thursday 230-330
• Esmorie Miller
• Wednesday 100-200
• Friday 100-200
• Matt ORourke
• Thursday 1130-130
• Korhan Yazgan
• Thursday 1145-145
• Nikki Petruniak
• Thursday 1130-130
• Herb Shields
• Wednesday 100-300

• Extra TA Office Hours Next Week
• Jason Hildebrandt
• during regular tutorial times
• Laszlo Sarkany
• Tuesday 1130-300
• Nadir Budhwani
• Tuesday 100-400
• Esmorie Miller
• Tuesday 100-200
• Wednesday 100-200
• Matt ORourke
• Wednesday 930-1230
• Korhan Yazgan
• Monday 1230-330
• Nikki Petruniak
• Wednesday 1030-130
• Herb Shields
• Tuesday 100-300

in addition to regular office hours
Exams and Paper Proposals Available from Prof.
Boychuk during Regular Office Hours (Office Hours
Today ONLY 100-200
2
Part II Political Institutions

• Institutions What Are They?

March 11th, 2004
3
Political Institutions...

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

4
Political Institutions...

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

5
Political Institutions and Democracy

• each model of democracy will have divergent views
  on various institutional arrangements
• e.g. bicameral legislatures

6
MODELS OF DEMOCRACY
Individual Rights/Limited Govt
Liberal Democracy
High Mass Participation
Low Mass Participation
Elite Democracy
Majoritarian Democracy
General Welfare
7
Political Institutions and Democracy

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

8
Political Institutions and Democracy

• e.g. separation of powers (presidential system)
  vs. fusion of powers (parliamentary system)

9
MODELS OF DEMOCRACY
Individual Rights/Limited Govt
Liberal Democracy
High Mass Participation
Low Mass Participation
Elite Democracy
Majoritarian Democracy
General Welfare
10
Political Institutions and Democracy

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

11
Constitutions

• The Master Institution
• March 11th, 2004

12

• http//www.cbc.ca/clips/mov/ayed_constitution04030
  81.mov

13
(No Transcript)
14
Constitutions

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

15
Constitutions Main Elements

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

16
Constitutions and Political Power

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

17
The American Constitution

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

18
THE DECLARATION OF INDEPDENDENCE (1776)
We hold these truths to be self-evident, that
all men are created equal that they are endowed
by their Creator with certain inalienable rights
that among these, are life, liberty, and the
pursuit of happiness. That, to secure these
rights, governments are instituted among men,
deriving their just powers from the consent of
the governed that, whenever any form of
government becomes destructive of these ends, it
is the right of the people to alter or abolish
it...
19
The Preamble of the Constitution of the United
States of America (1787)
We the people of the United States, in Order to
form a more perfect Union, establish Justice,
insure domestic tranquility, provide for the
common defense, promote the general welfare, and
secure the Blessings of Liberty to ourselves and
our Posterity, do ordain and establish this
Constitution for the United States of America.
20
The American Constitution

• function of the Constitution fragmenting and
  limiting power of government
• creates the three branches of government at the
  federal level
• creates the two orders of government (federal
  government and state governments)
• limits governments in their relationships with
  citizens

21
Freedoms Rights

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

22
The American Bill of Rights

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

23
The American Constitution

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

24
The French Constitution...

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

25
The Rights of Man, 1789

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

26
Preamble to the 1946 Constitution

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

27
Preamble to the 1946 Constitution

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

28
The Canadian Constitution

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

29
The Canadian Constitution

• BNA Act, 1867
• themes
• parliamentary sovereignty
• i.e. no bill of rights limiting power of govt
• peace, order and good government (s.91
  Constitution Act)

30
The Canadian Charter of Rights and Freedoms (1982)

• preamble Whereas Canada is founded upon
  principles that recognize the supremacy of God
  and the rule of law...
• enumerated rights
• fundamental freedoms
• democratic rights
• legal rights
• equality rights
• language rights and minority language education
  rights
• mobility rights

31
Limits on the Canadian Charter of Rights and
Freedoms

• Section 1 reasonable limits
• rights are guaranteed subject only to such
  reasonable limits...as can be demonstrably
  justified in a free and democratic society.
• Section 33 Notwithstanding Clause
• application
• does not apply to democratic rights, mobility
  rights, minority language education rights

32
The Canadian Constitution Act (1982)

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

33
The Canadian Constitution Act (1982)

• issues organized into constitutional politics
• linguistic issues
• territorial/regional issues

34
Constitutions and Political Power

• American Constitution, 1789-91
• focuses on negative freedoms (limits ability of
  collectivity to use the state)
• protects property
• French Constitution, 1946
• focuses on positive freedoms
• recognizes class politics and organizes them into
  politics
• Canadian Constitution, 1982
• encompasses both negative and positive freedoms
• limited protection of the rights of individuals
  in relation to governments
• organizes linguistic and territorial/regional
  issues into politics

35
Constitutions and Political Power

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

36
The Courts

• Adjudicating the Constitution

37
Adjudication

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

38
Trends in the Role of Courts...

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

39
Limits on the Power of Courts

• appointments tenure

40
Similarities/Differences in the Courts
Appointments

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

41
Limits on the Power of Courts

• appointments tenure
• process for receiving cases
• all courts limited to hearing cases referred to
  them
• who has the power to refer cases?

42
Similarities/Differences in the Courts Powers

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

43
Limits on the Power of Courts

• appointments tenure
• process for receiving cases
• enforcement power of the courts
• persuasion!
• based on legitimacy

44
The Courts and Democracy
45
MODELS OF DEMOCRACY
Individual Rights/Limited Govt
Liberal Democracy
High Mass Participation
Low Mass Participation
Elite Democracy
Majoritarian Democracy
General Welfare
46
The Courts and Democracy

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

47
(No Transcript)