Appuntì per l’esame orale di Public Law

The ECJ is a crucial institution for ensuring the legal coherence and effectiveness

of the EU. Its decisions have a far-reaching impact on EU law, member states'

legal systems, and the rights of individuals and entities within the European

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Union

The concept of the rule of law and discretionary power:

are fundamental principles in legal and governance systems:

1)Rule of Law: The rule of law is a foundational principle that suggests that all

individuals and institutions, including the government, are accountable to the

law. It implies that no one is above the law, and the law should be applied

consistently and fairly to all. It involves principles such as legal certainty,

equality before the law, and the protection of individual rights. In a society that

upholds the rule of law, the legal system is seen as a safeguard against arbitrary

actions.

2)Discretionary Power: Discretionary power refers to the authority or freedom

given to individuals or institutions, often government agencies or officials, to

make decisions or take actions within a certain legal framework. This

discretionary authority allows for flexibility in the application of the law to

specific cases. However, it must be exercised judiciously and not arbitrarily. It’s

important that those with discretionary power use it in accordance with the

principles of the rule of law.

The relationship between these two concepts is important. While discretionary

power can be necessary in certain situations, it must be exercised in a manner

that is consistent with the rule of law. This means that even when authorities

have some discretion, their decisions should be based on clear legal principles,

be non-arbitrary, and respect individual rights. In democratic and well-governed

societies, the rule of law helps strike a balance between granting discretionary

power for practical decision-making and ensuring that such power is not abused.

Usa Constitution

The American Constitution, the cornerstone of the United States' governance,

has a remarkable history. Born from the Revolutionary Period's desire for

independence, the Continental Congress declared autonomy in 1776 with the

Declaration of Independence. However, the initial framework provided by the

Articles of Confederation proved weak, leading to financial turmoil and state

disputes. In 1787, delegates gathered in Philadelphia for the Constitutional

Convention. After intense debates and compromises, they drafted the United

States Constitution, creating a visionary model of democratic governance.

The Constitution faced scrutiny during ratification, with Federalists supporting it

and Anti-Federalists expressing concerns about individual rights and centralized

power. In 1789, it was ratified by nine states and took effect.

To address Anti-Federalist concerns, the Bill of Rights, comprising the first ten

amendments, was added in 1791. The Constitution adapted to westward

expansion, the Civil War, and the Reconstruction Amendments. The 20th century

brought further changes through amendments, such as taxation and civil rights.

The Constitution remains a living document, shaped by Supreme Court

interpretations, and continues to guide American governance, ensuring

democracy, individual rights, and the pursuit of justice for over two centuries.

Costitution as a written instrument:

Referring to the U.S. Constitution as a "written instrument" means recognizing it

as a formal, codified, and tangible document that serves as the fundamental law

and legal foundation of the United States. It's a written record of the nation's

core principles, the structure of its government, and the rights of its citizens. This

term emphasizes that the Constitution is not based on oral tradition, customary

practices, or unwritten conventions but is a clear, documented set of rules and

principles that govern the nation.

The concept of the Constitution as a written instrument highlights its importance

as a foundational legal text and the supreme law of the land. It signifies that the

Constitution is a source of authority and legitimacy, and its written nature allows

for precise interpretation, enforcement, and amendment through established

legal and political processes. It distinguishes the U.S. Constitution from

constitutions that may be based on tradition, custom, or unwritten principles and

underscores the significance of written legal texts in the American legal and

political system.

Interpretation of the U.S. Constitution:

The interpretation of the United States Constitution and the role of the courts,

particularly the Supreme Court, hold profound significance in American

jurisprudence and the functioning of the nation’s government. Here’s an

exploration of this vital relationship:

The U.S. Constitution, while a written instrument, is not always a straightforward

document. Its provisions are often broadly worded, and its framers intentionally

left room for interpretation to ensure its adaptability over time. This flexibility has

led to varying schools of thought regarding how the Constitution should be

interpreted.

1)Originalism: Some jurists and scholars advocate for interpreting the

Constitution according to its original intent. Originalists argue that the framers’

original meaning and the context in which the Constitution was written should

guide legal decisions. This approach is often associated with strict

constructionism.

2)Living Constitution: Others view the Constitution as a “living document” that

should adapt to changing societal norms and circumstances. Proponents of this

view argue that the Constitution’s principles can be applied to modern

challenges, even if they weren’t explicitly envisioned by the framers.

3)Pragmatism: Many judges and legal scholars adopt a pragmatic approach,

blending originalist and living constitutionalist ideas. They consider the text and

original intent but also recognize the need for flexibility to address contemporary

issues.

The Role of the Courts:

The role of the courts in interpreting the Constitution is pivotal. The federal

judiciary, particularly the Supreme Court, serves as the ultimate authority for

constitutional interpretation. Here’s how the courts play a crucial role:

1)Judicial Review: Marbury v. Madison (1803) established the principle of judicial

review, giving courts, especially the Supreme Court, the authority to review and

strike down laws or government actions that are deemed unconstitutional. This

power allows the judiciary to act as a check on the legislative and executive

branches.

2)Preserving Rights: Courts ensure that individual rights enshrined in the

Constitution, like free speech, the right to a fair trial, and protection against

unreasonable searches, are safeguarded. L

3)Interpreting Ambiguities: When constitutional provisions are open to

interpretation, the courts must resolve these ambiguities. The decisions made by

judges at various levels set legal precedents that guide future cases.

4)Adapting to Change: The courts play a vital role in applying constitutional

principles to contemporary issues. Cases dealing with issues like technology, civil

liberties, and civil rights highlight the evolving nature of constitutional

interpretation.

5)Balancing Powers: The courts maintain the delicate balance of power among

the branches of government. They ensure that Congress and the executive

branch do not overstep their constitutional bounds.

Amendments are formal changes or additions to the U.S. Constitution. There

are two ways to propose amendments: through Congress with a two-thirds

majority vote or by a constitutional convention called for by two-thirds of state

legislatures. For an amendment to be ratified, it must gain approval from three-

fourths of the state legislatures. These amendments can address significant

issues and have a lasting impact on U.S. law and society. There have been 27

amendments to the U.S. Constitution, with the most recent ratified in 1992.

Us Constitutional law has a very large body of case law dealing with rights

including rights under the first fifth and fourteenth amendment .th discussion

below will focus only a small number of issue areas wich have been the focus on

only a small number of issue areas wich have been the focus of considerable

case law or recent controversy

Criminal Procedure: attention

- to criminal procedure rights began in the

twentieth century, due to the awareness of mob violence(violenza di massa),

coercion on confessions, indigents without counsel and a racially unjust system.

Influenced the development of criminal procedure rights

- (mapp v Ohio ) "Mapp v. Ohio" was a landmark U.S. Supreme Court case in

1961 that significantly expanded the Fourth Amendment's protections against

unreasonable searches and seizures. Dollree Mapp's home in Ohio was searched

without a valid warrant by the police, resulting in her arrest and a subsequent

obscenity trial. The case reached the Supreme Court, which ruled in her favor.

In a 6-3 decision, the Court introduced the "exclusionary rule" to state criminal

proceedings, stating that evidence obtained through an illegal search and

seizure could not be used in court. This ruling ensured that evidence obtained in

violation of a person's constitutional rights could not be presented in any court,

be it state or federal. "Mapp v. Ohio" bolstered the protection of individual

privacy and civil liberties in the United States by preventing the use of unlawfully

obtained evidence in criminal trials.

This case was a pivotal moment in the process of "incorporation," extending the

Bill of Rights' provisions to state governments. "Mapp v. Ohio" established a

critical precedent in safeguarding constitutional rights against unreasonable

government intrusion and set a foundation for the principles of due process and

privacy in the American legal system.

Poverty and Poll tax: fair process to the poor the court found unconstitutional the

poll taxa(A poll tax is a tax imposed on individuals, typically for the right to vote.

In the United States, it was historically used to discriminate against Black and

poor White voters in some states, but it was abolished for federal elections in

1964 and for state elections in 1966 through the 24th Amendment and a

Supreme Court decision. Poll taxes are widely considered unjust and

undemocratic.)

Income race or color can’t Chang your ability in participating in election

Racial equality : Racial equality in the U.S. Constitution is anchored in several

pivotal amendments and laws. The Thirteenth Amendment (1865) abolished

slavery, the Fourteenth Amendment (1868) granted equal protection under the

law, and the Fifteenth Amendment (1870) prohibited racial discrimination in

voting. The Civil Rights Act of 1964 and the Voting Rights Act of 1965 reinforced

these principles.Despite these legal advances, racial inequality remains a

pressing issue, and the pursuit of