Tag Archives: constitutionalism

Constitutional issues: rights and judicial review

This is the third part in our series on the (possible) constitutional arrangements for the political systems of space settlements. In this part we will discuss the topic of constitutional rights and constitutional review.

With constitutional rights we mean the rights as they are established by a national constitution. Often when people are talking about rights, they refer to what we would call moral rights, i.e. the rights people are supposed to have according to some moral theory. Only since there a zillions of different moral theories, there are also zillions of sets of moral rights. Therefore any discussion in terms of moral rights is bound to derail.

Constitutional rights are a special subset of legal rights, rights defined by law. Because these rights are part of the constitutions, they are more difficult to change than rights establish by ordinary legislation (of course this depends on how easy it is to modify the particular constitution).

Modern constitutions usually include a list of fundamental rights. Though it usually believed that a constitution should have a list of fundamental rights, this is however no automatism. The original US constitution did not have such list of enumerated rights, the famous bill of rights were incorporated into the American constitution as amendments, subsequent changes in the constitution. And the constitution of Australia is another example of modern constitution without a bill of rights.

In both cases, the American and Australian ones, there had been substantial opposition against idea of including a bill of rights in the constitution during the drafting of these documents. In the American case, the proponents of a bill of rights eventually won the battle, but the Australians have still no bill of rights.

The question is, of course, why a bill of rights in the constitution, or why not? Also in case of this issue, there’s a rough distinction between republicans and democrats (likewise in the previous post in this series, these terms refer here to positions in political theory, and not to the US political parties of the same names). Republicans were generally in favour of including a bill of rights into constitutions, whilst democrats generally opposed to it. However this distinction has never been very strict.

The republican case for a bill of rights as part of the constitution is based on their concerns that power corrupts, and hence governments will be tempted to abuse their power. Constitutional rights, republicans argue, are constraints to the power of the state. Since a government is not allowed to violate the constitution from which it derives its authority, a bill of rights does protect the citizens of the state against abuse of power.

However, the opponents of including a bill of rights into a constitution can raises several objections. First, a bill of rights is only a list of rights on paper, and by itself it cannot protect the people against governmental abuse of power. Secondly, such list would be unnecessary in a properly designed constitution, which contains a good system of checks and balances. Under such a constitution the several organs of state will prevent each other from abusing power.

In the case of the Australian constitution, the writers argued that since Australia would follow the British system of common law, this would protect the traditional rights of English law. Therefore the inclusion of a bill of rights was deemed unnecessary. However, since space settlements are most likely to adopt civil law, this argument will not apply to the framers of the constitutions of space settlements.

Even if a constitution does contain a bill of rights, these rights are essentially worthless if citizens cannot enforce these against the state. Judicial or constitutional review allows a person to appeal against a law or executive orders in court, if this person believes that the law in question violates his or her rights. If the court finds that the law does indeed violates the constitution, than the law will be declared void to the extent that it conflicts the constitution.

When it comes to constitutional review, there are basically two system: review by ordinary courts or review by a special body, often called constitutional court or council. The first system originates from the USA, where the Supreme Court has claimed its authority to review laws on their constitutionality. Though constitutional review is mostly from its US application, the US constitution does not grant this power explicitly to the court system. More recent constitutions, such as the German Basic Law, explicitly grant this authority to the Federal Constitutional Court.

A special case are the Netherlands. Like in most other nations, the Dutch constitution includes a bill of rights. However, it has a clause (article 118) which explicitly prohibits courts to review laws on their constitutionality. The rationale behind this prohibition is that the Houses of Parliament, the Council of Ministers and the Council of State, will provide for enough scrutiny of bills, which would ensure that no laws are passed which violates the constitution. However, as everyone in the Netherlands knows, in reality the political composition of parliament determines whether a bill is approved or not, and not its constitutionality.

Though constitutionally enshrined rights are meaningless without the possibility of constitutional review, the reverse is not true. In federal countries power is shared by the states and the federation, and the constitution determines what powers belong to either the federation or the states. Most federal constitutions include a list of exclusive powers belonging to the federal government, and other powers belong to the states by default. A very few federations do the opposite, granting explicit powers to the states and all other powers to the federal government.

In a federal country, a government might not make laws on matters on which the other government has exclusive authority. If for example the federal government attempts to legislate on a matter, which is reserved by the constitution to the states, than the state government can ask the court to review the law. Constitutional review is essential in federal systems, since otherwise states and federal government will attempt to make laws on matters outside their authority.

Though the terms constitutional and judicial review are often used interchangeably, they are not identical. Many countries are party to human rights treaties, such as the ECHR, and since treaties usually prevail above domestic laws, citizens are able to review laws on their compatibility with such human right treaties. This especially of great importance in a country as the Netherlands, where there is no constitutional review.

Space settlements could create a similar treaty, and subsequently adopt constitutions without bill of rights. This has the advantage that treaties can usually only be amended by unanimity of the adherent parties. But on the other hand, a state might unilaterally secede from such treaty. Therefore we recommend that space settlements to include a bill of rights in their constitutions, and allow constitutional review.

Constitutional issues: Unicameralism or bicameralism?

This is the second part of our series on constitutional arrangements of space governments. In a previous post we discussed the topic of elections versus random selection of politicians. In this post we will look at the issue of unicameralism or bicameralism.

Virtually all modern political systems have an institution known as parliament. This institute has multiple functions, which might vary from country to country, but generally these are: representing the citizens of the state, the creation of laws and as check to the executive.

Because of the first function, most parliaments are elected by its citizens or have at least one elected chamber. According to democratic theory, the representative function of parliament, entails it to exercise legislative power. The third power is actually a reminder of ancient, classical republican thought, which we will discuss in future post about classical republicanism and the separation of powers.

In this post, and for that matter in all our future posts, we will discard of the fiction that parliament represents its citizens. Therefore we will treat parliament primarily as a legislative body.

In many countries parliament consists of either one or two chambers. Parliaments with three chambers have existed in the past, but are nowadays obsolete. Arguments for tricameralism are usually similar to those in favour of bicameralism, so we will not discuss such system in this post.

Historically bicameralism has been defended by republicans, whilst democrats were in favour of unicameralism. (NB. the terms republican and democrat does not refer here to the US parties of the same names, instead these terms are used here accordingly to 18th century political theory.)

Republican political thought has traditionally be concerned with the corrupting nature of political power. As remedy against the abuse of power by governments, republican believe in mixed government or in more modern language, checks and balances. By having several competing political actors, the possibility of abuse of power by a single actor would be reduced, but not eliminated.

On the other hands, democrats are arguing from concepts such as popular sovereignty and the unity and indivisibility of the nation. Therefore, democrats argue, having a multicameral parliament is unnatural, since in a bicameral parliaments the two houses might disagree with each other and only one of them could be truly reflect the public opinion. And if the two houses would always agree with each other, such arrangement would be superfluous.

Unfortunately, in our days the distinction between republicans and democrats has severely eroded to the point that people will use these terms interchangeably. Therefore other arguments have been introduced in the debate between unicameralism and bicameralism.

In line with the idea of checks and balances, proponents of bicameralism in both federations and unitary states argue that a second chamber, which is often either appointed or elected indirectly, as a chamber of reflection. In some countries, such as the UK,  the upper house is merely an advisory body, whilst in other countries, such as the Netherlands, the upper house has absolute veto on all legislation.

Bicameralists argue that in parliamentary systems of government (in which the executive depends on the support of at least one of the chambers of parliament) there can only be a real separation of powers, if there is a second parliamentary chamber. Since in a parliamentary system the executive usually is supported by a majority of MPs, the separation between the legislative and executive branches of government is only theoretical. The solution for this problem is therefore, to have two chambers of parliament.

Unicameralists might, on the other hand, argue that a bicameral parliament is inefficient and/or undemocratic. This because a bill has to be discussed in both houses, before it could be passed.

Further unicameralists could argue that there other methods of ensuring checks and balances. One way could be the direct election of the president or prime-minister, which would enhance the separation of powers.

Also constitutional review can provide an alternative check, in this case the court system or a special constitutional council could exercise as check. The difference between a constitutional court and a second chamber, is that the former is apolitical (in that it only looks whether a law violates the constitution) and that it only reviews laws on request (of citizens or specified government institutions).

Some more democratically minded proponents of unicameralism, argue that referendums are a way of ensuring checks and balances in government. This would also eliminate the concern that a second chamber is undemocratic (because it is elected indirectly or is appointed).

A special case for bicameralism is made in federations. Virtually all current federations have a bicameral parliament. Federalism is based on the idea of shared sovereignty of the states and the federal government, both receive their authority from their respective citizens. Therefore one chamber is directly elected by the citizens of the federation, whilst the other chamber represents the states and is often indirectly elected.

However, the specifics of legislatures in several federation vary widely. In some federations have weak bicameralism (one house dominates the other), whilst others have strong bicameralism (both houses exert equal power). But one should also consider that in different federations, the distribution of power between the states and the federal government also varies. Some federations are highly centralized, that they are only distinct from unitary states on paper.

In some federations, such as Germany, the chamber representing the states can only vote on legislation which affects the authority of the states. On matter which belong to the exclusive authority of the federal government, are only voted on in the chamber which represents the federation. We believe that this is the proper method to be followed in federations of space settlements.

The discussion about bicameralism, is not only about whether there should one or two houses of parliament, but also what roles these houses should have. Only in few countries both houses have equal powers, in most bicameral systems the (directly) elected house has the most powers, whilst the other chamber is limited to scrutiny of the executive and proposed legislation.

Weak bicameralism is often used as a compromise between unicameralists, who wants no second chamber, and bicameralists, who often favour a stronger version of bicameralism. On the other hand strong bicameralism is often associated with political gridlock, but it also forces politicians to make political comprises. This reduce the effects of political extremism.