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Comparing Constitutions

Introduction to the US, UK, German, Japanese and Italian Constitutions.

Blair Murray Cusati

on 28 January 2016

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Transcript of Comparing Constitutions

Comparing Constitutions
Institutions of government
The Basic Law establishes Germany as a parliamentary democracy with separation of powers into executive, legislative, and judicial branches.

The executive branch consists of the largely ceremonial Federal President as head of state and the Federal Chancellor, the head of government, normally (but not necessarily) the leader of the largest grouping in the Bundestag.

The legislative branch is represented by the Bundestag, elected directly through a mixture of proportional representation and direct mandates, with the German Länder participating in legislation through the Bundesrat, reflecting Germany's federal structure.

The judicial branch is headed by the Federal Constitutional Court, which oversees the constitutionality of laws.
Source: Wikipedia.
Rights and freedoms
The Basic Law of Germany guarantees citizens their rights at the very beginning, after the Preamble.

Preamble: "Conscious of their responsibility before God and man, Inspired by the determination to promote world peace as an equal partner in a united Europe, the German people, in the exercise of their constituent power, have adopted this Basic Law. Germans in the Länder of Baden-Württemberg, Bavaria, Berlin, Brandenburg, Bremen, Hamburg, Hesse, Lower Saxony, Mecklenburg-Western Pomerania, North Rhine-Westphalia, Rhineland-Palatinate, Saarland, Saxony, Saxony-Anhalt, Schleswig-Holstein and Thuringia have achieved the unity and freedom of Germany in free self-determination. This Basic Law thus applies to the entire German people".
Rights guaranteed: Human dignity; Personal freedoms (
Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the
moral law
); Equality before the law; Freedom of religion; Right to marriage, family and children; State provision of education; Freedom of assembly; Freedom of association; Right to privacy; Freedom of movement (throughout Germany); Inviolability of the home; Right to citizenship (
No German may be deprived of his citizenship
); Right to petition government.
All of this information has been adapted from the official English translation of the German Basic Law. Find it here: https://www.btg-bestellservice.de/pdf/80201000.pdf
How is it amended?
The Basic Law is a codified constitution. Its provisions form 'higher' law and can only be amended by a special process outlined in the Basic Law itself.

Article 79 states the Basic Law may be amended by an absolute two-thirds majority of the Bundestag along with a simple two-thirds majority of the Bundesrat.

The Basic Law has been amended 50 times since 1949.

Some sections cannot be amended, and are therefore covered by a so-called "eternity clause". Modification of the federal nature of the country or abolition or alteration of Article 1 (human dignity, human rights, immediate applicability of fundamental rights as law) or Article 20 (democracy, republicanism, rule of law, social nature of the state) is forbidden.
Institutions of government
Power is divided among the executive, the legislative and judicial branches; the Constitution establishes the balancing and interaction of these branches, rather than their rigid separation.
Source: Wikipedia.
Part II Title I establishes the Houses of Parliament: the Chamber of Deputies and the Senate. Title II establishes the Presidency, Title III establishes the Government. The Government consists of the President of the Republic who appoints the President of the Council of Ministers (Prime Minister). The Prime Minister chooses the Council of Ministers, who have to be sworn in by the President of the Republic.
Source: Official English translation of the Constitution of the Italian Republic. Find it here: http://www.quirinale.it/qrnw/statico/costituzione/pdf/costituzione_inglese_01.pdf
Quick info
Population: 60 million
Date of Constitution: 1 January 1948
Codification: Codified
Federal or unitary: Unitary, but regions have some autonomy
Number of amendments: 14
Rights and freedoms
The first twelve articles are called the Fundamental Principles. They are unchangeable and cannot be amended. The Principles recognise the dignity of the person, both as an individual and in social groups, expressing the notions of solidarity and equality without dinstinction of sex, race, language, religion, political opinion, personal and social conditions. For this purpose, the right to work is also recognized, with labour considered the foundation of the Republic and a way to achieve individual and social development. Freedom of religion is guaranteed.

The right of asylum is guaranteed to foreigners who are denied in their home country the rights in the Italian Constitution. The Principles repudiate war and promote and encourage international organisations aimed to achieve peace and justice among Nations, even agreeing to limit the sovereignty of the Nation, on condition of equality with other States, if necessary to achieve these goals.

Article 12 specifies the colour of the Italian flag: three equal bands of green, white and red.
How is it amended?
Title VI Section II Article 138 outlines the process of amendment:

Laws amending the Constitution and other constitutional laws shall be adopted by each House after two successive debates at intervals of not less than three months, and shall be approved by an absolute majority of the members of each House in the second voting. Said laws are submitted to a popular referendum when, within three months of their publication, such request is made by one-fifth of the members of a House or five hundred thousand voters or five Regional Councils. The law submitted to referendum shall not be promulgated if not approved by a majority of valid votes. A referendum shall not be held if the law has been approved in the second voting by each of the Houses by a majority of two-thirds of the members.
Quick info
Population: 82 million
Date of Constitution: 23rd May 1949
Codification: Codified
Unitary or federal: Federal Number of amendments: 50
Quick info
Population: 64 million
Date of Constitution: N/A
Codification: Uncodified
Federal or unitary: Unitary
Number of amendments: N/A
Institutions of government
The United Kingdom is an uncodified constitution. As such there is no clear 'separation of power'; in fact the UK political system is said to be a 'fusion of power'. To be a member of the executive (government) one must first be a member of the legislature (parliament). Parliament and government are in the same institutions; the latter is drawn from the former.

This means that although the government is technically accountable to parliament, in practice MPs of the governing party/coalition seek to defend the government rather than criticise or scrutinise it. As the British political system is based on majoritarianism with governments usually enjoying a majority in the lower House of Parliament (the Commons) this has led some to call the system an "elective dictatorship" (Lord Hailsham).

The UK has parliamentary sovereignty, referring to the absolute legal authority of Parliament. No other bodies have independent legislative power: although there are devolved institutions (Scottish Parliament/Welsh and Northern Irish Assemblies) these can be abolished by an Act of Westminster.

Until 2009 the House of Lords (the 'Law Lords' specifically) acted as the highest court of law in the UK. With the abolition of the Law Lords and establishment of the Supreme Court the judicial branch is now separate, although the UK Supreme Court has no constitutional authority.
How is it amended?
As the UK has an uncodified constitution it can be amended very easily. There is no single authoritative document (which in codified systems itself becomes sovereign). The constitutional rules which are written are not 'special' in any way and are simply statute law - they can be amended or repealed in the normal legislative process.

Laws which affect individuals' rights or the role of institutions of government are considered constitutional, but again they have no protection and do not for 'higher law'. Examples of these are the European Community Act of 1972 and the Parliament Acts of 1911 and 1949.

EU treaties and legislation are also considered part of the UK's constitution, and the higher status of EU law over UK law has been recognised. However, the UK (by repealing the European Community Act of 1972) could leave the EU; sovereignty ultimately lies in Westminster.

There are aspects of the constitution that have no legal authority (so-called 'works of constitutional authority') and some are not actually written down (conventions, such as the convention that the government will resign if defeated in the Commons on a major bill).
Rights and freedoms
There is no constitutionally protected Bill of Rights or a written constitution, which, along similar lines to the United States Bill of Rights or the Declaration of the Rights of Man and Citizen, would define the relationship between the citizen and the State, including the rights owed by the State to the citizen and vice versa.

The basis of the relationship between State and citizen is instead constructed on a variety of statutory provisions and common law rules which, taken en masse, seek to confer on the citizen certain rights and liberties normally associated with citizenship, whilst also imposing certain duties.

Civil liberties in the United Kingdom have a long and formative history. This is usually considered to have begun with the English legal charter the Magna Carta of 1215, following its predecessor the English Charter of Liberties, a landmark document in English legal history.

During the 19th century, working-class people struggled to win the right to vote and join trade unions. Parliament responded and judicial attitudes to universal suffrage and liberties altered with the onset of the first and second world wars. Since then, the United Kingdom's relationship to civil liberties has been mediated through its membership of the European Convention on Human Rights.

The Human Rights Act of 1998 is the British expression of the European Convention. Generally UK citizens do enjoy the right to life, freedom of expression, freedom of assembly and the right to privacy (not necessarily outlined in specific legislation) amongst others. However these can be (and are) qualified as they do not have specific protection.
Source: Wikipedia
Examples of curtailment of rights
Unlike other systems with protected rights in a codified constitution, in the UK political rights/freedoms are constantly open to amendment.

Key examples include:
Racial and Religious Hatred Act 2006: limited free speech.
Anti-terrorism, Crime and Security Act 2001: limited right to privacy (especially telephone and internet communication).
Serious Organised Crime and Police Act 2005: limited right to free assembly (specifically in Parliament Square).
Quick info
Population: 126 million
Date of Constitution: 3rd May 1947
Codification: Codified
Federal or unitary: Unitary
Number of amendments: 0
How is it amended?
The constitution has not been amended since its 1947 enactment. Article 96 provides that amendments can be made to any part of the constitution. However, a proposed amendment must first be approved by both houses of the Diet, by at least a super majority of two-thirds of each house (rather than just a simple majority). It must then be submitted to a referendum in which it is sufficient for it to be endorsed by a simple majority of votes cast. A successful amendment is finally promulgated by the Emperor, but the monarch cannot veto an amendment.
Source: Wikipedia
Rights and freedoms
Institutions of government
The constitution establishes a parliamentary system of government. The Emperor carries out most of the functions of a head of state but his role is merely ceremonial and, unlike the forms of constitutional monarchy found in some other nations, he possesses no reserve powers. Legislative authority is vested in a bicameral National Diet and, whereas previously the upper house had consisted of members of the nobility, the new constitution provided that both chambers be directly elected. Executive authority is exercised by a Prime Minister and cabinet answerable to the legislature, while the judiciary is headed by a Supreme Court.
Source: Wikipedia
Individual rights under the Japanese constitution are rooted in Article 13 where the constitution asserts the right of the people "to be respected as individuals" and, subject to "the public welfare", to "life, liberty, and the pursuit of happiness."

Subsequent provisions provide for (not a comprehensive list):
Equality: The constitution guarantees equality before the law and outlaws discrimination against Japanese citizens based on "political, economic or social relations" or "race, creed, sex, social status or family origin" (Article 14). The right to vote cannot be denied on the grounds of "race, creed, sex, social status, family origin, education, property or income" (Article 44).
Democratic elections: Article 15 provides that "the people have the inalienable right to choose their public officials and to dismiss them". It guarantees universal adult (in Japan, persons age 20 and older) suffrage and the secret ballot.
Separation of Religion and State: The state is prohibited from granting privileges or political authority to a religion, or conducting religious education (Article 20).
Freedom of assembly, association, speech, and secrecy of communications: All guaranteed without qualification by Article 21, which forbids censorship.
Workers' rights: Work is declared both a right and obligation by Article 27 which also states that "standards for wages, hours, rest and other working conditions shall be fixed by law" and that children shall not be exploited. Workers have the right to participate in a trade union (Article 28).
Right to property.
Right to a fair trial: Article 37 guarantees the right to a public trial before an impartial tribunal.
Freedom of thought and conscience (Article 19)
Freedom of expression (Article 19)
Freedom of religion (Article 20)
Academic freedom (Article 23)
Prohibition of forced marriage (Article 24)
Compulsory education (Article 26)
Protection against entries, search and seizures (Article 35)
Prohibition of torture and cruel punishments (Article 36)
Prohibition of ex post facto laws (Article 39)
Prohibition of double jeopardy (Article 39)
Source:Wikipedia (amended)
Perpetual peace
The Japanese constitution is unusual in that it commits Japan to forever renouncing war as an instrument of policy (Article 9). "Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes". To this end the article provides that "land, sea, and air forces, as well as other war potential, will never be maintained".
Source: Unofficial English translation of Constitution of Japan
Quick info
Population: 310 million
Date of Constitution: 4th March 1789
Codification: Codified
Federal or unitary: Federal
Number of amendments: 27
Institutions of government
The United States Constitution specifies a very clear separation of powers between the executive, legislative and judicial branches: Article one outlines Congress (legislature), article two outlines the Presidency (executive) and article three outlines the Supreme Court (judiciary). There are significant checks and balances between the three branches, and you cannot be a member of two at the same time.
Source: US Constitution
Rights and freedoms
The original wording of the Constitution did not outline specific rights and freedoms. The Constitution was amended in 1791 with ten amendments, collectively called the 'Bill of Rights'.

First Amendment – Establishment Clause, Free Exercise Clause; freedom of speech, of the press, and of assembly; right to petition
Second Amendment – Right to keep and bear arms.
Third Amendment – Protection from quartering of troops.
Fourth Amendment – Protection from unreasonable search and seizure.
Fifth Amendment – Right to due process and prevention of double jeopardy.
Sixth Amendment – Right to criminal trial by jury and right to counsel.
Seventh Amendment – Right to civil trial by jury.
Eighth Amendment – Prohibition of excessive bail and cruel and unusual punishment.
Ninth Amendment – Protection of rights not specified in the Constitution.
Tenth Amendment – States or the people have any power not given to the federal government in the Constitution.
How is it amended?
Altering the Constitution is a two-part process of three steps: amendments are proposed then they must be ratified by the states. An Amendment can be proposed one of two ways. Both ways have two steps. It can be proposed by Congress, and ratified by the states. Or on demand of two-thirds of the state legislatures, Congress could call a constitutional convention to propose an amendment, then to be ratified by the states.

To date, all amendments, whether ratified or not, have been proposed by a two-thirds vote in each house of Congress. In the first step, the proposed Amendment must be supported by two-thirds in Congress, both House and Senate. The second step requires a three-fourths majority of the states ratifying the amendment. Congress determines whether the state legislatures or special state conventions ratify the amendment.

On attaining Constitutional ratification of the proposal by three-fourths of the states, at that instant, the "fundamental law" is expressed in that Amendment. No signature is required from the President. Congress does not have to re-enact. The Supreme Court does not have to deliberate. There is no delay to re-draft and re-balance the entire Constitution incorporating the new wording.

Unlike amendments to most constitutions, amendments to the United States Constitution are appended to the body of the text without altering or removing what already exists. Newer text is given precedence.
The Bill of Rights says that the "right to bear arms shall not be infringed". This has caused a lot of political debate in the United States, especially recently. See the video underneath.
Source: YouTube
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