Block I: Introduction US and its Federal System

It was like the EU under the first US constitution, Articles of Confederation.

Like an intenational treaty all states had

• full sovereignity, independence, every power, jurisdication and right, as longs as its not delegated.

• Therefore each state could withdraw if it choosed (as with Brexit, under TEU Art 50)

But the Articles of Confederation were replaced in 1789 by the second US Constitution

• has no equivalent of state sovereignty provision in Art 2.

• It is passed in the name of ‘We the People of the US’, not the 13 states.

• any amendments => agreement from most of the states.

• smaller states wanted equal votes to elect the president (Senate); larger states wanted votes proportional to population (House of Representatives)

• compromise => Electoral College seats = Senate seats + House seats + three for Washington D.C. (determined by the 23rd Ammendment in 1964)

  • currently 538 electors

• Representatives and senators may not be electors

• usually loyal party members with other political duties

• the winner in the electoral college becomes the president

  • If there isn`t a clear winner, the issue is resolved in the House

• You need to win a majority of Electors (key number: 270 votes in te Electoral college)

• in rare cases: ignore the election result and the state regulation and make their own decision (= faithless electors)

• Upper house = Senate => all states are represented by two senators

-> elected every six years

-> are elected by the states

• Lower House = House of Representatives => each state gets at least one representative; for every 30,000 inhabitants one representative

-> elected every two years by the districts (one district = 30,000 inhabitants)

-> House of Representatives has the sole right to conduct impeachment proceedings

• US has no nationally elected legislators

• No national party lists

• No-one votes for ‘Democratic Party’ or ‘Republican Party’: always for a particular individual for the House or the Senate

• This often means strong state loyalties

• the only nationally elected mandate

• Presidential system

• President = executive

• four-year term of office

• Elected together with the Vice President

• presidential candidates may not be residents of the same state

• Requirements: born in the USA, at least 35 years old, resident in the USA for 14 years

Unanimity across the states.

Upon ratification by 9 of 13 states.

First-past-the-post electoral rules favour two-party systems.

• Separation of government power = not a US-American idea => comes from "celebrated" Montesquieu

• ultimate sovereignty = people, therefore the president is directly elected

  • no part of the government has a higher claim to power

  • The executive and both legislative houses have their own electoral mandates

  • the most important things cannot be done by one branch of power alone => mutual control of the branches of power

  • even the most important offices => President always needs the approval of the Senate or the House of Representatives

• When tea was served hot, a shot was poured onto the saucer because it cooled down quicker, so people could drink it before drinking from the cup

  • Senate = cooling saucer

  • House of Representatives = hot cup

• House => two years

• President => every four years

• Senate => every six years; 1/3 every two years

• US Supreme Court is constitutionally required

  • case citations contain ‘US’

• Underneath Supreme Court, Circuit Courts of Appeal

  • currently 13 Circuit courts.

  • case citation contains ‘F.2d’ or ‘F.3d’

• District courts: lowest level of federal courts.

  • currently 94 district courts.

  • case citation including ‘F. Supp.’

• two district courts have no numbers => federal district court and DC district court (deals with government departments)

  => (Common law system, so lawyers routinely refer directly to the case reports as legal sources)

first ten amendments as a package = Bill of Rights, ratified in 1791

1. freedom of speech, freedom of assembly, neutrality of the Confederation in religious matters

2. militia as an alternative to the army => right of citizens to own weapons and defend themselves

3. no quartering of soldiers in houses without the consent of the owner or statute => never used

4. inviolability of the home

   5-8. rights in criminal prosecution

   9. the enumeration of certain rights in the Constitution shall not be construed to deny or diminish other rights of the people.

-> Criticism: Rights are only reduced to the Amendments, hence 9th Amendment => There are other rights

1. reservations of power for the states and the people

• Also: 2/3 der beiden Häuser schlagen vor + 3/4 der gesetzgeberischen Körperschaften der Einzelstaaten ratifizieren => Hier: Kongress schlägt vor

• Oder: 2/3 der gesetzgeberischen Staatskörperschaften schlagen vor + 3/4 der Einzelstaatkonvente ratifizieren => Hier: beruft einen Konvent

Congress shall have the power:

1. Fiscal Power: To lay and collect Taxes, Duties, Imposts and Excises, to provide for the discharge of the Revenue, the national Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be laid uniformly throughout the Territory of the United States;

2. Commerce Clause: to regulate commerce with foreign countries, among the several states, and with the Indian tribes

   • Commerce Clause => to be understood broadly and differently

3. Necessary and Proper Clause: To make all Laws which shall be necessary and proper for carrying into Exercise the foregoing Powers, and all other Rights vested by this Constitution in the Government of the United States, or in any Branch thereof, or in any Officer thereof.

=> These three are the only available constitutional basis for many actions of the US federal government => are often uncertain, e.g. what does "commerce" mean?