Comparative Law Assignment.

        The most effective weapon the US legislative branch has ever possessed, (Art. II, S. 4), is the threat of impeachment, even political death (cf. Clinton and Nixon). This probably was a constitutional guarantee the founders took special care to insert. “The King can do no wrong”, was no Leitmotif they wished to be submitted to. Although Blackstone may have thought, “the people are a check upon the nobility, and the nobility checks upon the people […] the king checks on both”, Americans preferred to rely on on more solid checks, justifying their theory of government in part on Lockean concepts. For the latter, governors “are merely deputies for the people, trustees who can be discarded if they fail in their trust”. And yet Locke still defended the prerogative which, in theory at least, not only placed the sovereign above law; he in fact was law, truly defining the dogma, “The King can do no wrong.” This, in practical terms, was what the Stuarts only ever attempted, as The Law of the Realm which allegedly existed since time immemorable, (waiting for wily lawyers to find it), eventually took a life of its own, and became a powerful instrument in whoever’s hands were firm enough to wield it. The US Constitution, however, is an attempt to create a law accessible to the people, which they can point to when their freedom is restricted and which they can call for when it is denied.

        Should the legislative body decide to impose interstate taxes, or indeed suspend a writ of habeas corpus during times of peace when the public safety does not so require, then the citizen affected could turn to the third arm: the judiciary, (Art. III). The Americans’ decision to limit the power of habeas corpus, may indeed have been a result of English policy “directed by the central courts against local inferior jurisdictions [which] helped to channel the litigation, and the fees, towards a central administration”, while their almost inbred abhorrance of levied taxes is easily understood in light of the consequences of the Indian and French war. Their socio-political culture tends to view an overtly powerful government which imposes taxes with  distrust, even if the reasons are founded on say, the New Deal. Hence the development of a welfare state and an effective National Health Insurance (with exception to the Medical and Medicaid Bills which only effected the old, the disabled, and the poorest of the poor), never grew any roots, the ground culture being unfruitful and unreceptive to state interference – thus giving rise to phenomens like ‘Reaganomics’.

Several times, did reformers’ dedication clash with the Anti-Federalist’s conviction; the latter often fighting for state independence rather than the individual’s liberty. The battles took place in the forum of courts, for it is the judiciary’s task to interpret the Constitution. Their independence is guaranteed by security of tenure, as in the UK. However they are appointed by the president, a power Roosevelt would have abused by ‘packing’ the courts, had the public outcry not been so disquieting. While English judges claim to only interpret the statutes passed by a sovereign Parliament, US judges of the Supreme Court have the right, even the duty, to declare a law unconstitutional should they think so fit. Clearly, their task is also linked to an interpretary function which gives rise to much debate when their decision appears to rest on legally shaky ground. Their opinions frequently appear more an expression of the times than objective conclusions derived from the ‘holy’ Constitution. In their hands, however, does the final decision lie. Judicial review is the ultimate check on legislative as well as executive might, created to balance the powers and protect the individual’s rights and liberties.

        Article V guards the Constitution from hasty change and the determination of perhaps undemocratic minorities, while Art VI binds all “executive and judicial officers” “by oath”, adding that “no religious test shall ever be required as a qualification to any office or public trust” – a conviction reflected in the very first amendment: “Congress shall make no law respecting an establishment of religion or prohibiting the exercise thereof”. This is unsurprising, considering the Americans’ religious melting-pot attitude. Quakers, Puritans and Catholics, all fled prosecution in England; Jefferson, Adams and the other ‘radicals’ would never have convinced everyone to sign the document had the delegates not felt their individual religion would be protected on a federal level. Despite constitutional abstractions, there is straight-forward evidence that during the Industrial Revolution, Jews, Italians and Catholic Irishmen often did have the exceedingly futile encounter with potential employers. Nor have the Mormons been treated in line with acceptance of individual faith. What may be far more worry to some people, is that the modern dichotomy between state and religion is increasingly falling apart (cf. Carter and Bush Jr.’s speeches), as often romantic aspirations underlined by a sense of moral superiority are harder to counter than rational arguments. The tendency to revel in the role of the world’s policeman, is leading many Americans to turn deaf ears toward the harsher voices of critics.

American political culture has a distorted self-image in many ways; the people see themselves as the first nation to have respected certain “inalienable” rights and “natural” laws. In a way, their pride is understandable; their Constitution is the oldest, the most copied, ravaged by the changing times, it has still survived as living proof that it was sufficiently democratic. And yet, had someone informed Jefferson that the First Amendment, for example, protects the right to publish pornography, one gentleman farmer would not have been ‘bubbling with joy’. The freedom of speech is limited by firstly, ‘public safety’ and secondly, an induced ‘right to privacy’.

The first point is significant when say, the draft is publicly denounced and men are encouraged to break the law, although their work as soldiers is considered necessary for the protection of their country. “Above all else, the First Amendment means that the government has no power to restrict expression because of its message.” The traditional position in UK law is a lot stricter; the press is forbidden to report on impending cases, so that the jury is not influenced. Both systems also advocate protection of the judges; their opinions are not exempt from criticism, but the papers (especially in the UK) aim at objectivity. In the end, the judgement whether or not something is in the public interest, is again a reflection of the judges’s views and as they too, are ‘political animals’ in Aristotelian terms, it is an expression of their times.

        The second consideration, the right to privacy, is even more problematic. In the US, increasing protest shows that, “The press will be the arbiters of [newsworthiness] and the Court will be forced to yield to the argument that whatever the press prints is by virtue of that fact newsworthy.” Thus the press is transformed into the ‘fourth pillar’. One of the reasons might be that there is no actual right of privacy in the common law; it is usually derived form concepts like “trespass” and “nuissance”. Having felt the consequences of such flexible legal concepts, the authors of the Congress created the Amendments in order to secure fundamental rights which soon became incorporated into American political culture. Amendment II, the right to bear arms, (a result of colonial self-government), is heavily attacked nowadays, especially in view of massacres in schools; however its ideological value is too deeply ingrained into the civil society for it to be ripped out of the bedrock of the Constitution as yet. Similarly, the Fourth Amendment, the prohibition of quartering soldiers can be said to be linked to King George’s Coercive Acts. It is a check against the executive, existing to protect the citizen from arbitrary power.                  

Amendment V, is again a question of interpretation left to the courts. What might consitute an “unreasonable” search, frequently depends on the times and the individual judges in question. The importance of these factors is shown when one compares the decision in Roe v Wade to corresponding decisions in German law, for example. The arguments proffered by the courts are similar, and yet while the Americans emphasis the right if the individual to prevent state interference in family matters, the German courts prefer to defend the rights of an unborn life. This shows that the political culture of a state is fundamental to the political structure, and that they live in a relationship of mutual recipricocity.

While the political culture in UK has been defined by the clashes between King and Parliament fighting for sovereignity, development in the United States is marked by the fact that the early settlers received charters which they considered entitled them to a certin amount of self-government. When this was not granted and their peititions were not heeded, they moved a step further, creating a Constitution they hoped would guarantee their individual rights and give government as little power as was humanly possible.  

        

BIBLIOGRAPHY

I.        BOOKS (alphabetically listed by author)

• Das Schiedsgutachten des Common Law, Ein rechtsvergleichender Beitrag zum Begriff der Schiedsgerichtbarkeit, Band 198, M. Borowsky, Nomos Verlagsgesellschaft (1998)
• Pressefreiheit und Fairness des Strafverfahrens, Die Grenzen der Berichtserstattung ueber schwebende Strafverfahren in englischen, amerikanischen und deutschem Recht, Band 10, 3. Folge, J. Bornkamm (Max-Plank-Institut), Nomos Verlagsgesellschaft (1980)
• Freiheit und Eigentum in der amerikanischen Ueberlieferung, Band 61, G. Dietze (Walter Euken Institut) J. C. C. Mohr (Paul Siebeck) (1976)
• American Law, L. M. Friedman (Stanford University), W. W. Norton & Company (1930)
• Regierung als Rechtsbegriff, Verfassungsrechtliche und staatstheoretische Grundlagen unter Beruecksichtigung der englischen und franzoesischen Verfassungsentwicklung, Dr. W. Frotscher (Universitaet Kiel), Dunker & Humblot (1975)
• Der zivilrechtliche Persoehnlichkeits- und Ehrenschutz in Frankreich, der Schweiz, England und den Vereinigten Staaten von Amerika, Gutachten des Max-Plank-Instituts fuer auslaendisches und internationales Privatrecht, J. C. B. Mohr (Paul Siebeck) (1960)
• Investigativer Journalismus und Pressefreiheit, Ein Vergleich des deutschen und amerikanischen Rechts, Nomos Universitaetsschriften, Medien Band 17, W. Janisch, Nomos Verlagsgesellschaft (1998)
• The Assault on Religion, Commentaries on the Decline of Religious Liberty, Edited by Dr. R. Kirk, The Center for Judicial Studies University Press of America (1986)
• Die Revolution der Konservativen, T. Noetzel, 1. Auflage, Junius (1987)
• By Colour of Law, Legal Culture and Constitutional Politics in England, 1660 – 1689, H. Nenner, The University of Chicago Press (1977)
• The Law of Habeas Corpus, R. J. Sharpe, Clarendon Press (1976)
• Ein verfassungsrechtlicher Eigentumsschutz im deutschen und britischen Recht, Prof. Dr. J. Sieckmann, Kieler Rechtswissenschaftlcihe Abhandlungen (NF), Band 18, Nomos Verlagsgesellschaft
• Inventing America, Jefferson’s Declaration of Independence, G. Willis, The Athlone Press (1980)
• Der Schutz von Glaeubigern faktisch abhaengiger Gesellschaften nach englischem, amerikanischem und deutschem Recht, Konstanzer Schriften zur Rechtswissenschaft, Band 106, 1. Auflage, M. Winter, Hartung Gorre Verlag (1996)

II. JOURNAL

• Informationen zur politischen Bildung, USA Geschichte, Gesellschaft, Wirtschaft, 268 B 6897F, Bundeszentrale zur politischen Bildung, Franzis’ print media Vertrieb (2000). 

III. INTERNET SITES

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