Riassunto esame History of law, Prof. Monti Annamaria, libro consigliato A history of law in Europe , Antonio Padoa Schioppa

MACINO

The Bill of Rights

The religious policy of the Stuart monarchy under James II was to take the conflict between

the monarchy and Parliament to its conclusion.

The sovereign's claim to the royal prerogative of dispensing the execution of legislative rules

voted by Parliament, led to the king's defeat, abdication and the ascent to the throne of his

daughter Mary with her husband, William III. The new order was set out in the Bill of Rights

of 1689. It declared 'illegal' - without prior authorisation from Parliament - orders given by the

king to suspend the application of a law, to impose permanent taxes and to maintain an

army in time of peace. Furthermore, Members of Parliament were freely elected, had

unconditional right to free speech and were required to hold regular parliamentary sessions.

In 1679, the Act of Habeas Corpus had introduced guarantees against government orders

that would restrict personal freedom and had the aim to prevent illegal arrest on the part of

executive power.

Every English subject has the right to a regular trial in the presence of a jury. Judge John

Holt tried to reinforce the protection of the defendant in criminal cases. He was to declare

that “as soon as a negro comes to England, he is free”.

In 1701 the Act of Settlement formally sanctioned the guarantee of the autonomy of judges,

assuring judges of a salary and a tenured position from which they could only be ousted

(deposto) on the vote of both Houses of Parliament.

These rulings substantially diminished the king's and the government's power and at the

same time strengthened the role of Parliament and the independence of judicial power.

The regime of monarchical absolutism was thus brought to a close and the foundations laid

of the modern model of the constitutional state, based on the balance of three powers.

American Independence

The events that led some English colonies established in North America since the early 17th

century to free themselves from British dominion by forming an alliance in 1778, and in 1787

signing the constitutional pact which gave life to the United States are of such significance

that they cannot be omitted from a history of European law.

This result was original and unique, but the political culture underlying the American

Revolution had its roots in Europe.

In 1778 the colonies, that had been English, approved the Articles of Confederation, which

instituted an independent union (United States of America) founded on a clear principle:

thirteen “states” (as they were called and many of which already had their own constitutions)

remained sovereign, whereas a confederate assembly (the Congress) - made up of

delegates chosen by the legislative chambers of each state - invested with deciding on

questions of common interest in economy, defense and international relations, as well as

providing an arbitration committee in case of controversy between single states of the

Confederation.

The decisions of Congress were not directed at the citizens, but rather at the states

themselves, which were then responsible for putting them into practice, and Congress had

no power of enforcement if the states had failed to do so.

Such an institutional structure was too weak and inadequate for the realization of what the

Confederation deemed necessary. With the intention of implementing an effective reform,

they decided to institute a new Constitutional Convention, composed of 55 elected delegates

from the twelve states (Rhode Island refused to send its delegates).

The Constitutional Convention began its work in Philadelphia in May 1787, establishing a

procedure of deliberations which required a favorable vote by the majority of the states in

order to be approved and which imposed strict secrecy on the delegates' work: a measure

which was decisive for ensuring the success of the effort. In four months the Convention

managed to discuss and to approve the text that would become (and remains to this day) the

Constitution of the United States: an event that some of the protagonists - among whom

were Washington and Madison - hailed as a 'miracle'.

The Philadelphia Convention and the Constitution

The fundamental choice was made in the first few days. On 30 May the principle was

approved whereby the new 'national' government to be instituted would have three

branches: legislative, executive and judicial, each strictly separate and based on the

(unwritten) English constitution of a century before and the theories of Locke and

Montesquieu. This was the stance of the Virginia Project, drafted by James Madison, and to

which New Jersey was opposed, favoring instead the continuity with a criteria of

confederacy. The first Virginia Project was explicitly approved on 19 June.

The Federalist position had prevailed over the Co-federalist one, and this basic choice would

never again come under discussion.

The question debated for much longer was the composition of the two legislative houses. At

the beginning it was decided that:

● the members of the lower House of Representatives should be elected in numbers

proportionate to the population of the single states and by direct election

● for the higher Senate, the delegates of the smaller states resolutely favored giving

equal weight to all the states, whereas the larger states favored proportional

representation

The Convention, after some days of debate, on 16 July solved the controversy: the Senate

would have an equal number of senators for every state, chosen by the legislative chamber

of each state.The position of the small states prevailed → great compromise.

The presence of the two houses consented to the co-existence of the two rationales

● the rationale of popular representation

● the rationale of state representation

with the important clause that the laws on tax revenue (entrate fiscali) would be proposed by

the House of Representatives.

On the subject of abolishing slavery, a compromise between those for and those against

would have been impossible; for this reason, the topic was not included in the Constitution.

Almost a century later, indeed the Civil War broke out.

Another fundamental choice regarded the federal executive government: the Convention

needed to establish its characteristics. It was decided that the power of government should

be entrusted to a single individual for a 4 year term, with the possibility of being re-elected

twice. The question was who should elect this person. A small committee nominated ad hoc

came up with a solution: the legislative chambers of the single states would have had the

right to decide on the procedure to nominate a number of electors equal to the total number

of their representatives in the federal Congress, including the House and the Senate. The

electors would vote for the president by absolute majority. In case the quorum failed, the

choice of president, chosen among the first five names voted, would have been in the hands

of the House of Representatives.

The powers granted to the president were manifold (molteplice):

● nominate judges of the US Supreme Court,

● sign international treaties,

● have veto power over the laws approved by Congress, to be superseded only with

two thirds of a second congressional vote.

It was said that this form of presidential power was accepted only because it was generally

believed that the first presidency would be (as indeed it was) that of George Washington, a

hero of the War of Independence who enjoyed immense prestige among members of the

Convention and the entire Confederation.

The procedure for future amendments to the US Constitution entailed that the proposal

would garner 2/3 of the votes in its favor of each branch of Congress and the subsequent

ratification by 3/4 of the states (or of three quarters of the members of the Convention).

On 17 September 1787, the Convention approved the constitutional project. After a brief final

speech by Benjamin Franklin appealing for unanimous approval, the votes of the twelve

states present at the Convention were all in favor, with thirty-six members signing the text

and only three dissenting votes.

The great protagonists had been:

● James Madison, author of the Virginia Project and Convention secretary Rossiter,

1987

● In the final crucial phases also James Wilson and Governor Maurice of

Pennsylvania, Roger Sherman of Connecticut and John Rutledge of South

Carolina, among others.

● Strangely, Alexander Hamilton, delegate from New York, had no role in this,

although before and after the Convention he was to be a towering figure. His position

was resolutely 'national' → in favor of strong central power; he was, therefore, critical

of the 'great compromise' in the assembly (although this did not prevent him, a little

later, from effectively arguing in favor of the ratification of the Constitution).

● Benjamin Franklin spoke little and briefly, his prestige and admonitions nevertheless

influencing the assembly.

● George Washington, elected president at the first session, never spoke until the last

session, although his authority was such that his silence and demeanor were equally

potent.

At this point the procedure of ratification began. This was anything but a given, as was to

become clear with the lively discussions in the following months.

For the project voted in the convention to become effective, a vote of approval from at least

9 out of 13 states was required. At the end of July 1788 11 states had already ratified it, and

the Constitution became effective (North Caroline and Rhode Island ratified it later).

Whereas the Convention had decided not to insert a bill of rights in the Constitution so as not

to superimpose it on those of the single states, this was done three years later with the Bill

of Rights in 1791, with the approval of the first ten amendments, which drew on elements

within the declaration of colonies such as Virginia, Maryland and Massachusetts. In it the

rights to:

● freedom of expression, religion, press, and association were all ratified

● the guarantee of personal freedom

● the speedy and public trial in the presence of a jury and the defendant's right to

counsel as well as to confront witnesses for the prosecution.

The Federalist formula - allowing single member states to retain broad legislative, executive

and legal autonomy, but at the same time ensuring a strong central government controlled

by Congress made up of the two Houses - was an entirely new principle in history.

The protagonists were aware of the originality of this, as Franklin was to write to a European

interlocutor, and as is evident in the arguments of the Federalist Papers, written by Hamilton,

Jay and Madison during the crucial months of the ratifications.

The Constitution also permitted different configurations of the framework in the balance of

power between the center and periphery, between the federal power and those of the

member states. Over time the institution of the US Supreme Court would reveal itself to be

cru