PART 1 SOVEREIGNTY

II) DIFFERNT CONCEPTION OF SOVEREIGNTY

PREAMBLE OF THE FRENCH CONSTITUTION OF 1791

It discusses public powers.

Sovereignty: The constitution declares that sovereignty is one, indivisible and imprescriptible which
means it cannot be divided or taken away

Belongs to the nation as a whole and no individual can claim it for themselves

Delegation of power: all power comes from the nation and can only be exercised by delegation.
(people as the nation delegate their power to their representatives)

Representative Constitution: the represenattive of the french constitution is the Legislative and the
King

Legislative power: it is delegated to a National Assembly which is composed of temporary

Montesquieu’s “Spirit of Laws” (1748), a seminal work in political theory

Separation of power: it claimed that if power was held by both the legislative (lawmaking)and
executive(law-enforcing), liberty can't exist.

Judicial independence: liberty is impossible if power of judging is held by both legislative and
executive as if a judge was also legislator, then he could exert arbitrary control

Balance of power: Montesquieu warns against the concentration of different powers (enacting laws,
executing public resolutions, and judging crimes or disputes) in the hands of one person or body. He
suggests that this would lead to the end of everything, presumably meaning the end of freedom and
justice

This concept of the separation of powers influenced the development of constitutional law,
particularly in shaping the system of checks and balances used in democracies to prevent any one
branch of government from becoming too powerful.

THE UK AND THE SOVEREIGNTY OF PARLIAMENT

Edinburgh and Dalkeith Railway Co v Wauchope (1842) 1 Bell 278; 8 Cl & Fin 710; 8 ER 279 (Lord
Campbell)

It presents a principle of parliamentary sovereignty in the UK legal system.

Courts of justice are bound by the legislation passed by both HOUSES OF PARLIAMENT and GIVEN
ROYAL ASSENT

Courts cannot question the process by which legislation was introduced or passed in parliament nor
inquire into what was done before its introduction by houses of parliament.

This principle underscores the supremacy of the Uk parliament in the constitutional framework.
While the judiciary interprets and applies the law, they don't have the power of challenging the
validity of duly enacted legislation.

Shows the separation of powers in the Uk, where the judiciary does not have the authority to
overrule legislation passed by parliament

Pickin v British Railways Board [1974] UKHL 1 (Lord Reed)

where Lord Reed refers to the principle established in the case of Edinburgh and Dalkeith Railway Co
v Wauchope (1842).

THIS PRINCIPAL ASSERTS:

The role of the court is to interpret and apply law enacted by Parliament. The court doesn't have the
right to question the process by which a bill becomes law, including procedures followed by
Parliament.

Even if there’s was allegation or fraud in the legislative process, the court wouldn’t interfere or
investigate these matters as it would mean questioning the actions of Parliament which are beyond
the court’s jurisdiction.

Again, this underscores the separation of power in the Uk

JAMES BRYCE (1838-1922)

"The American Commonwealth," contributed to discussions on sovereignty, both de jure (legal

Governance and sovereignty.

De jure sovereignty

De jure sovereignty refers to the formal and legal authority of a government. It is based on the
recognition and adherence to constitutional principles, the rule of law, and legal norms. This type of
sovereignty emphasizes the legitimacy of a government's power as defined by established legal
structures and processes, both domestically and internationally. It underscores the importance of
governance within the framework of recognized legal and constitutional principles.

Definition: De jure sovereignty refers to the formal and legal authority of a government as recognized
by established laws, constitutions, and international norms.

Basis: It is rooted in constitutional frameworks and legal structures, emphasizing adherence to the
rule of law.

Legitimacy: Governments derive de jure sovereignty from legal processes, such as elections, and
international recognition of their legal status.

Enforcement: Legal challenges and remedies, including court systems and constitutional
mechanisms, play a central role in upholding de jure sovereignty.

Key Points:
Bryce focused on the formal structures of government, including the written constitution and the
distribution of powers among different branches.

He analyzed the legal principles and norms that define the relationship between the government and
the governed.

Consideration of legal sovereignty involves understanding how constitutional provisions shape

2) De facto sovereignty

While legal sovereignty involves the formal legal structure, de facto sovereignty considers the
practical exercise of power.

Definition: De facto sovereignty pertains to the practical, effective exercise of power, regardless of its
legal or formal legitimacy.

Basis: It is grounded in the actual control and influence a government has over its territory and
population.

Legitimacy: De facto sovereignty may exist even without legal legitimacy, and it can be established
through effective governance and control.

Enforcement: While de jure sovereignty relies on legal institutions, de facto sovereignty may involve
military, political, or economic control

Key Points:

Bryce examined the actual workings of the American political system, including the influence of
political parties, interest groups, and public opinion.

His analysis went beyond formal legal structures to explore how power is wielded, decisions are
made, and policies are implemented in practice.

De facto sovereignty considers the influence of informal or practical factors that may impact
governance, such as the role of political leaders, public sentiment, and the dynamics of political
institutions.

Interplay:

Governments ideally possess both de jure and de facto sovereignty, with legal legitimacy
complementing effective governance.

Challenges may arise when there is a disconnect between legal recognition (de jure) and actual
control or influence (de facto).

The interplay between de jure and de facto sovereignty varies across different political contexts and
historical situations.

John Austin,

a 19th-century legal philosopher, is known for his theory of sovereignty and legal positivism. He
defined sovereignty as the ultimate lawmaking authority, with laws being commands issued by a
sovereign backed by sanctions. Austin rejected the idea of natural law, asserting that the only
relevant law is that promulgated by the sovereign. His work laid the foundation for understanding
political authority and legal systems, emphasizing the unbounded nature of the sovereign's authority
within a state.

Albert Venn Dicey (1835–1922) was a British jurist known for his key ideas:

Rule of Law:

Dicey defined the Rule of Law with three principles: everyone is subject to the law, equality before
the law, and the predominance of legal principles.

Constitutionalism:

Emphasized adherence to constitutional principles and limitations on governmental power for the
protection of individual liberties.

Parliamentary Sovereignty:

Recognized the supremacy of Parliament but emphasized it was based on the principles of the Rule
of Law.

Legal Positivism:

While sharing some ideas with legal positivism, Dicey recognized the moral foundations of law,
especially in the context of the Rule of Law.

Influence and Legacy:

Dicey's ideas had a lasting impact on constitutional law, influencing discussions about the
relationship between law and governance.

Other Works:

Wrote on various legal topics, including conflict of laws, administrative law, and legal history.

A.V. Dicey, Introduction to the study of the Law of the Constitution (1885)

An introduction to constitutional law, focusing on the guiding principles of the modern constitution
of Uk

The text highlights three guiding principles:

• Legislative Sovereignty of Parliament: This principle asserts that Parliament, as defined by

• Universal Rule or Supremacy of Ordinary Law: This principle emphasizes the supremacy of
ordinary law throughout the constitution.

• Dependence of Conventions upon the Law of the Constitution: This principle, though more
speculative, suggests that conventions (established practices) ultimately depend on the law of the
constitution.
They underline the sovereignty of Parliament, the supremacy of law, and the role of conventions in
the constitutional framework.

The European Act 1972. (a significant piece of the Uk legislation that marked the entry of Uk into the
European Communities) now the European Union

• Section 2, § 1 states that all rights, powers, liabilities, obligations, and restrictions created or
arising by or under the Treaties, and all remedies and procedures provided for by or under the
Treaties, are to be given legal effect or used in the UK. They shall be recognized and available in law,
and be enforced, allowed, and followed accordingly. This means that European law became directly
applicable and had supremacy over UK national law.

• Section 2, § 4 states that the provision that may be made under subsection (2) includes any
such provision as might be made by an Act of Parliament, and any enactment passed or to be passed,
other than one contained in this Part of this Act, shall be construed and have effect subject to the
foregoing provisions of this section. This means that the UK Parliament could legislate in areas that
were within the competence of the European Communities, but such legislation had to be consistent
with European law.

• The reference to Schedule 2 pertains to provisions related to subordinate legislation. This

SOVEREIGNTY IN A FEDERAL SYSTEM: THE CASE OF THE US

Key Points:

• In the U.S., sovereignty is divided between the federal government and the states, a system
known as federalism.

• The U.S. Constitution grants certain powers to the federal government and reserves the rest
for the states.

Additional Facts:

• The Tenth Amendment to the U.S. Constitution states: “The powers not delegated to the
United States by the Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people.”

• This division of sovereignty is designed to balance power and prevent its concentration, a key
aspect of the U.S. system of checks and balances.

US SUPREME COURT CASE MCCULLOCH VS MARYLAND (1819)

1.In this case, Chief Justice Marshall discusses the nature of the Us constitution and source of the
power of the General Government.
The counsel of the State of Maryland argued that the constitution shouldn't be seen as an
instrument emanating (spreading out) from people but more like an act of sovereignty and
independent state.

Suggests that power of the General Govt is delegated by the State, who alone are truly sovereign,
and the state alone should possess dominion

(However, this view was not upheld by the court. The court ruled that the Constitution was created
by the people and that the federal government’s powers are derived from the people, not from the
states. This case established the principle of federal supremacy over state laws.)

2. how Us constitution was created and the source of its authority

The constitution was merely a proposal that were reported to the then-existing congress of the us
and not an obligation when it was first drafted by the convention elected by State Legislature. The
proposal was supposed to be submitted to a convention of delegates.

This proposal was indeed adopted by the convention, Congress, and the State legislatures, and was
then submitted to the people. The people acted upon it by assembling in convention in their
respective States. The measures they adopted in these conventions did not cease to be the measures
of the people themselves or become the measures of the State governments.

From these conventions, the Constitution derives its whole authority. The government proceeds
directly from the people and is ordained and established in the name of the people. The Constitution
is declared to be ordained to form a more perfect union, establish justice, ensure domestic
tranquility, and secure the blessings of liberty to the people and their posterity.

This passage underscores the democratic nature of the U.S. Constitution and the principle that the
authority of the government is derived from the people. It also highlights the importance of the
conventions in shaping the Constitution and the role of the people in its ratification.

Part 2: the model of legal constitutionalism

• The rise of judicial review in the US

• Foundation: Marbury vs madison

• The context

• The decision

US Constitution (1787) article 3 section 1

It establishes the U.S supreme court as the highest court in the land. It also gives Congress the power
to create and organize lower court as needed

Section2.

It defines the scope of judicial power. It also extends to cases arising under the constitution, federal
laws, and treaties.

Covers cases affecting ambassadors and other public ministers, admiralty and maritime jurisdiction,
controversies to which the U.S is a party, disputes between two or more states, between state and
citizen of another state, between citizens of different states
This article forms the basis for the federal judiciary in the U.S., ensuring a system of courts that can
interpret and apply the law in line with the Constitution. It is a key part of the checks and balances
among the three branches of government

he selected text is from the U.S. Supreme Court case Marbury v. Madison (1803), a landmark case in
American law that established the principle of judicial review. Here’s a breakdown:

• Authority of the Supreme Court: The court questions whether the authority given to it by the
act establishing the judicial courts of the United States to issue writs of mandamus (orders
compelling a public official to perform a duty) is warranted by the Constitution.

• Act Repugnant to the Constitution: The court discusses the deeply important question of
whether an act that contradicts the Constitution can become law. It suggests that this question can
be answered by recognizing certain long-established principles.

• People’s Original Right: The court asserts that the people have the original right to establish
the principles for their future government based on what they believe will best contribute to their
happiness. These principles are considered fundamental and are intended to be permanent.

• Organization of Government: The court explains that the supreme will of the people
organizes the government and assigns respective powers to different departments. It can also
establish certain limits that these departments cannot exceed.

• Government of the United States: The court describes the U.S. government as one where the
powers of the legislature are defined and limited. The Constitution, which is written, serves to ensure
these limits are not forgotten or mistaken. The court questions the purpose of limiting powers and
committing these limitations to writing if these limits can be exceeded by those intended to be
restrained.

• Limited Powers: The passage emphasizes that the purpose of limiting powers and
committing those limitations to writing is to restrain those who are intended to be restrained, i.e.,
the government. If these limits can be passed at any time by those intended to be restrained, then
the distinction between a government with limited and unlimited powers is abolished.

• Constitution Controls Legislative Acts: The passage asserts that the Constitution controls any
legislative act that is repugnant to it. This means that any law that contradicts the Constitution is
invalid. This is the principle of constitutional supremacy.

• Alteration of the Constitution: The passage suggests that the Legislature cannot alter the
Constitution by an ordinary act. This underscores the rigidity of the U.S. Constitution—it cannot be
easily changed by ordinary legislative acts.

This case is significant as it established the Supreme Court’s power to review the constitutionality of
acts of Congress and the President. It affirmed the principle of judicial review, making the judiciary
an equal branch of government alongside the executive and legislative branches. This principle has
been a cornerstone of U.S. constitutional law ever since. It ensures that all laws and governmental
actions conform to the principles set forth in the U.S. Constitution. If they don’t, the Supreme Court
has the power to declare them unconstitutional and therefore invalid. This is a key aspect of the
system of checks and balances that the U.S. government is built upon