Legislatures and Courts in Democracies

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Legislative Systems. PresidentialEach branch is independently selectedParliamentaryBranches are interconnected: the head of the majority party becomes head of the government (prime minister). Presidential: U.S. Congress. Uniquely powerful legislature with 3 functions:1. to make laws (with pre

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Legislatures and Courts in Democracies

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1. Legislatures and Courts in Democracies Making and Adjudicating the Law

2. Legislative Systems Presidential Each branch is independently selected Parliamentary Branches are interconnected: the head of the majority party becomes head of the government (prime minister)

3. Presidential: U.S. Congress Uniquely powerful legislature with 3 functions: 1. to make laws (with president’s signature) 2. to conduct oversight of executive branch implementation of those laws 2. to confirm presidential nominations (the Senate) * cabinet officials * ambassadors * federal judges, including Supreme Court

4. Presidential: U.S. Congress * Bicameral –Senate & House of Representatives * Members chosen directly by population * Operates through committees, which gather information on proposed bills * Committee recommendations on bills highly influential when the entire chamber votes * Disagreement between chambers resolved in a conference committee

5. Selected Congressional Powers in the Constitution To lay and collect taxes to spend for general welfare; to coin money To regulate commerce with foreign states and between the states To create lower federal courts To declare war and support army & navy To do whatever is “necessary & proper” in order to fulfill the above duties

6. Role of Chief Executive Limited role for president. He/she can lay out a legislative agenda, lobby members of Congress, have administration officials testify to committees on pending bills, threaten a veto to get concessions from Congress, sign a bill into law, veto a bill, or simply not sign a bill. If a bill is not signed, it becomes law without the president’s signature unless Congress adjourns within 10 days. Then the bill dies (pocket veto).

7. U.S. House of Representatives Apportioned to states on basis of population, as determined during each 10-year census 435 members, representing congressional districts Two-year term of office Special constitutional powers Originating all “bills for raising revenue” Voting on impeachment charges

8. U.S. Senate Two senators per state; total of 100 Six-year term of office Special constitutional powers Advising and consenting on treaties (2/3 vote) Confirming top executive branch appointments, including ambassadors Confirming judicial branch appointments Holding impeachment trials

9. Judicial Review U.S. courts may review congressional and executive actions for constitutionality, and strike down those that conflict with the U.S. Constitution. The Supreme Court declared this power in Marbury v. Madison in 1803.

10. U.S. Judiciary Courts are political actors in the American polity, and their decisions have policy repercussions. Particularly the case with the Supreme Court. Even so, courts operate under legal guidelines, not partisan or overtly political calculations.  Federal court system. Three levels: 94 District (or trial) courts 12 Courts of Appeal U.S. Supreme Court Also 50 state court systems with about 18,000 courts.

11. U.S. Legal System Adversarial: based on the idea that the parties, through their attorneys, argue against one another before a neutral magistrate or judge. Presumption of innocence for the accused. Certain procedural protections guaranteed in the Bill of Rights (e.g., jury trial, right of counsel, right to know charges and confront witnesses. See 5th – 8th amendments).

12. Parliamentary System Reminder: In Parliamentary systems, the chief executive is the leader of the majority party in the legislature. Both the chief executive (the prime minister or PM) and other ministers are members of parliament (called MPs).

13. Parliamentary: Britain Bicameral: House of Commons & House of Lords, although Lords have little genuine power No judicial review of legislation; parliamentary supremacy Checks on power occur through the parliamentary process (e.g., ability of back-benchers to call for elections prior to the expiration of prime minister’s term of office)

14. Parliamentary: Britain Prime Minister and Cabinet government dominate national policy-making. PM introduces bills to House of Commons, which his/her party then passes. High rate of success. Parliament’s main functions: * to debate public issues * to revise & improve bills proposed by Cabinet. * to hold government ministries accountable.

15. Parliamentary: Britain Parliamentary supremacy (meaning, no constitutional review of legislation passed in the House of Commons). No judicial review. A unitary political system, so no need for the courts to act as umpires between the states & national government, as in the U.S.

16. Judiciary in Britain Judicial independence important, but some fusion between legislature & judiciary.  Britain's High Court is a committee in the House of Lords, composed of Lords with strong legal backgrounds.  The court system is headed by the Lord Chancellor, a member of the Cabinet who presides over the Law Lords.

17. British legal system Also adversarial with similar presumption of innocence and criminal procedural rights as in the U.S. Britain’s system is derived from common law, that is, law made by judges in thousands of cases through the centuries, as opposed to statutory law.  Earlier rulings are applied to new cases.  Found in England and some former English colonies (not the US, Canada, Australia, New Zealand).

18. Other European legal systems Inquisitorial, not adversarial. It’s based on the idea that the attorneys and judges are not truly neutral but engaged in the search for the truth. Judges ask questions of witnesses and attorneys during trials. Judges are professionally trained as judges, not chosen through political process, as in the U.S. They are members of the civil service.

19. Other European legal systems Continental European democracies base their legal systems on civil law, which relies on codes, regulations, and statutes.  Law is derived from executive or legislative action, and not old legal cases. Does not accept the notion of superior rights and natural law. This type of legal system is much older than common law. Derived from old Roman law, with some old Germanic law & local customs.

20. French legal system Civil law tradition, with inquisitorial court system. After French Revolution, the French issued a famous “Declaration of the Rights of Man,” but there is no judicial review to enforce individual rights against the state. That’s because France has a purer form of separation of powers than in the US. Courts should not interfere with legislature or vice versa.

21. French legal system A Constitutional Council – not a court - can review acts of the National Assembly for constitutionality. It is a political body, composed of all past presidents of the Republic, plus 9 justices (three each appointed by the President of the Republic, the president of the National Assembly and the president of the Senate). They can review pending legislation, but cannot overturn legislation once it has been passed.

22. Other types of legal systems Hybrids (Mexico) - combines civil & common law features Socialist (USSR, Cuba, China) – some rights for ordinary criminals but not political prisoners. Shari’a or Islamic law (Iran, Pakistan) Other non-Western (tribal law)

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