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Constitutions
• United States Constitution:
THE LEGAL SYSTEMS OF
AMERICA AND ENGLAND
A SHORT INTRODUCTION AND
COMPARISON
• British Constitution:
– Not written (in a single document)
– An accumulation of traditions, customs, acts of
parliament and legal precedents.
– Flexible, in that it can be changed by simply
passing an Act of Parliament.
– Unitary system of government, not federal.
– Fusion of power – executive elected from
legislature.
What is an “entrenched” constitution?
• The procedures for amending entrenched
constitutions vary from country to country.
• What these procedures have in common is that they
are all meant to make changing the constitution
more difficult than changing an ordinary statute.
– Written
– Can be changed, but amending (changing ) the
constitution is much more difficult than changing
the law.
– Provides for separation of powers between 3
independent branches of government: executive,
legislative, and judicial.
– Separation of powers between federal
government and state governments.
• The key difference between these two types
of constitutions is that one is “entrenched”
and the other is not.
This is true in Turkey:
• ARTICLE 175. (As amended on May 17, 1987)
• The constitutional amendment shall be proposed
in writing by at least one-third of the total
number of members of the Turkish Grand
National Assembly. Proposals to amend the
Constitution shall be debated twice in the Plenary
Session. The adoption of a proposal for an
amendment shall require a three-fifths majority
of the total number of members of the Assembly
by secret ballot.
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• In the US, an amendment is proposed by the
Congress with a 2/3 majority vote. (There is
another method, but it has never been used.)
• To become a part of the constitution, a change
must be ratified by ¾ of state legislatures or ¾
of special ratifying conventions.
Judicial Review
• The power of the courts to
– interpret the constitution
– declare laws or actions of other branches of
government void if they violate it.
Back to the question of Precedent
• If the state trial court decides the law is
unconstitutional, what effect does that have?
(Which courts are bound by that decision?)
• What if the state Court of Appeals upholds
(agrees with) the decision?
• An unentrenched constitution, like that of the UK
(or that of New Zealand or Israel, the other two
nations with such constitutions) can be changed
just like ordinary legislation – at least in theory.
• In fact, there is a strong shared sensibility among
elites about what may be change and what may
not be.
– This may be the case with some elements of
entrenched constitutions as well.
Judicial Review in the US
• The US courts have especially strong powers of
judicial review.
• Any judge of any court (state or federal) in any
case may declare a law unconstitutional.
• Constitutional issues may be raised by any party
at any time.
• The United States Supreme Court has the final
say on the meaning of the US constitution
• The highest court of each state has the same role
for state constitutions.
Judicial Review in Britain
• Judicial review in Britain is much weaker than in
the US.
• No court can declare a law unconstitutional that
has been passed by parliament.
• Because there is no written constitution, there is
no standard by which the constitutionality of a
law, or actions of government, can be measured.
• Courts can only can only decide whether the
executive branch has acted beyond its powers
(ultra vires.)
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The Judicial Systems of the United
States
• The United States is a federal country. There
is one system of federal courts (what you
might think of as a national court system),
plus a series of state court systems.
• These state court systems are entirely
independent of the federal system.
• The overwhelming majority of cases are
brought in state courts.
A Typical State System (California)
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There are 58 separate trial courts, called “superior courts,” one for each
county.
There are six courts of appeal, which cover different geographical areas within
the state, just like the 12 circuit courts do in the federal system.
Note that there are no specialized courts – all three court levels hear civil and
criminal cases.
Question:
• How does the structure of the court system in
California differ from the Turkish court
system?
STATE COURTS VS. FEDERAL COURTS
• The US Constitution gives certain powers to the
federal government and reserves the rest for the
states.
• For example, only the US Congress has authority to
make uniform laws concerning bankruptcies.
Therefore, only the federal courts handle bankruptcy
cases.
• On the other hand, the Constitution does not give
the federal government authority to regulate family
matters, so it would not have jurisdiction over a
divorce case.
JURISDICTION OF FEDERAL COURTS
1. Federal Question:
• Suits between states
• Cases involving ambassadors and other highranking public figures
• Federal crimes
• Bankruptcy
• Patent, copyright, and trademark cases
• Admiralty
• Antitrust
• Securities and banking regulation
• Other cases specified by federal statute
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JURISDICTION OF STATE COURTS
2. Diversity of Citizenship:
• Civil cases in which:
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parties are residents of different states and,
the amount in question exceeds the amount set by
federal law (currently $75,000).
• The main point to remember is that American
law is almost always state law.
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Cases involving the state constitution
State criminal offenses
Tort and personal injury law
Contract law
Probate
Family
Sale of goods
Corporations and business organization
Election issues
Municipal/zoning ordinances
Real property
Traffic regulation
The Judicial System in England and
Wales
• In England and Wales, there is one judicial
system for criminal matters, and another for
civil matters.
– Though there is a single supreme court, which is
the final court of appeal for all cases.
Structure of the English Court System
• Scotland and Northern Ireland have separate
court systems.
• Note also that Scotland is not a common law
jurisdiction. The Scottish system is a mixture
of civil and common law elements.
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The legal profession
• In Britain, there is a distinction between
barristers and solicitors:
• The Barrister/Solicitor distinction exists in
some other common law countries, such as
Ireland and Australia.
– Barristers – argue in court before a judge and jury.
Barristers do not actually represent their clients.
– Solicitors – have the power to represent clients.
Solicitors do out-of-court legal work, including
preparing cases for trial.
• In America, there is no formal distinction
between attorneys who appear in court and
those who do not (though lawyers often do
specialize informally.)
• Many other common law countries follow this
model, such as Canada and New Zealand.
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