He follows delegates—many of whose arguments track those of real-life political, economic, and legal theorists—as they debate and draft the components of a constitution. Here, the reader comes to understand and appreciate the components of a constitutional text and the contingency and potential of the constitution-making process. Murphy then offers an expository analysis of constitutional maintenance, adaptation, and, essentially, constitutional change.
Subscribe Now. Table of Contents. Use the following scale for your ratings:. The people are the ultimate source of authority of the government and their sovereignty is reflected in the daily realities of the political system. People agree to abide by decisions of the majority, but there are effective protections for the rights of minorities. Protection of minority right s assures the legitimacy of government.
There are limits on the powers of government which elected and appointed officials obey. There are institutional and procedural devices which effectively limit the powers of government to serving its proper ends. The powers of government are separated and shared among different agencies or branches such as those responsible for legislative, executive, and judicial functions. Each agency or branch of government has adequate power to check the powers of other branches.
Key positions in government are contested at regular intervals. The transfer of power is accomplished through orderly and peaceful means. Freedom of conscience and of worship are protected and individuals are free to profess no religious beliefs. Everyone has the right to freedom of opinion and expression and the right to seek, receive, and impart information and ideas throughany media. Individuals are free to associate with other individuals and groups free from government interference or intimidation.
Individuals are free from mandated membership in government-sponsored organizations. The government recognizes that there is a private realm into which it may not unreasonably and unfairly intrude. Individuals have the right to freedom of movement and residence in their own country. They have the right to travel abroad and the freedom to emigrate. Women are accorded the same political, economic, and legal protections as those accorded to men. Parents, men and women as individuals, voluntary organizations, local authorities, and national government recognize the rights of the child and strive for their observance by legislative and other measures in accord with the principles of the United Nations Declaration of the Rights of the Child.
Citizens are free not only to debate the actions and policies of their elected officials but to express their thoughts about politics, art, religion or any other topic without fear of recrimination. Individuals have access to information from independent publishers, radio, television, and other means of communication which is free from censorship by government. The right to peaceful assembly is free from restrictions, except those necessary for the protection of the rights and freedoms of others.
Individuals are protected from all forms of forced labor, and children and young persons are protected from social and economic exploitation. Individuals have the right to acquire and own property.
Government is required to pay fair market value for property it takes for public use. Individuals are free to choose their own work and to establish private businesses free from unfair or unreasonable government regulation.
Individuals have the right to strike and the right to persuade others to join unions without fear of intimidation. All persons are entitled to the equal protection of the law. They are free from discrimination based on gender, age, race, ethnicity, religious beliefs, class or socio-economic status. All branches and agencies of government legislative, executive, and judicial use fair procedures in the gathering of information and the making of decisions. Fair procedures provide for:. The procedure increases the likelihood that all information necessary for making a wise and just decision is obtained.
The procedure allows interested members of the public to observe how information is gathered and used in making decisions. The procedure allows interested persons to present information they wish to have considered in the decision-making process. The gathering of information and the making of decisions is conducted without bias. The procedure ensures that information which has been gathered is reliable. Enough notice is given of when, where, and why information is to be gathered or decisions are to be made, so those concerned can prepare adequately.
The procedure is predictable and flexible enough to promote justice. There is an established process to detect and correct errors in procedures used in the gathering of information and the making of decisions. Persons suspected or accused of crimes are protected by fair procedures.
Law-enforcement agencies are required to use procedures that protect the rights of those suspected of crimes. The courts are required to use procedures that protect the rights of the accused.
However, it should be noted that the Senegalese government's reasoning contradicts the African Court's judgment in the above-mentioned Mtikila case, which recognised all citizens' right to political participation as guaranteed by the African Charter on Human and People's Rights.
Butler posits that money is essential to the operation of any democracy. In CAR Article 31 of the Constitution provides that a law determines the conditions of formation, operation and financing of political parties. Accordingly, the financing of political parties in CAR is regulated by a Presidential Ordinance of , which provides for annual state funding of political parties proportionate to the number of their members of Parliament. However, it appears that in reality there have been no annual budget allocations to political parties in recent years in CAR.
In Senegal the amendment to the Constitution stipulates that the conditions in which political parties carry out their activities and receive public funding should be determined by law.
It should be pointed out that the constitutions of the CAR and Senegal are both silent on the issue of private sources of funding to political parties. However, the law does not explicitly include any regulation of the amount that may be received, or the modalities or the nature of these private contributions. Following the Senegalese presidential elections in February , election observers including civil society and intergovernmental bodies highlighted the absence of a legal framework related to political party and electoral campaign funding.
For instance, in its conclusions on the presidential elections, the European Union Election Observation Mission in Senegal recommended the enactment of a political party funding law and the creation of an institution which would monitor compliance with the legislation and take enforcement measures accordingly.
The regulation of party funding is essential to protect political parties' from corruption or bankruptcy and therefore to promote constitutional democracy. Some African countries' constitutions have included provisions requiring political parties to abide by the democratic principles of good governance and national sovereignty.
In the CAR, under Article 31 of the Constitution political parties are required to promote and respect the principles of democracy, national unity and sovereignty, human rights and the republican nature of the State in accordance with the existing laws and regulations.
Political parties are also required to respect the principle of gender and regional representation. Pursuant to the Constitution, a Law on Gender Parity was adopted in The law also provides for the creation of a monitoring body to that effect.
In Senegal, in addition to the obligation to abide by the principles of democracy, national sovereignty and unity, Article 4 of the Constitution explicitly stipulates that political parties are required "to strictly observe the rules of associative good governance" or else they would face sanctions that might lead to their suspension and dissolution.
In the Senegalese Parliament amended the Constitution in order to ensure that political parties comply with the requirement of gender equality. The provision requiring internal democracy relates specifically to the countries' move to ensure that political parties themselves comply with democratic principles in the conduct of their internal affairs. The examples of party regulation in CAR and Senegal indicate that for an effective promotion of constitutional democracy, regulation must be followed by implementation.
For instance, in the case of state party funding in the CAR, despite the existence of a Presidential Ordinance, in reality there have been no annual budget allocations to political parties in recent years. However, it appears that state party funding was not allocated during the period prior to the conflict; that is, before Equally, in Senegal the constitutional provisions on public funding are currently not being enforced since there is no implementing legislation that sets out the modalities of direct state funding to political parties.
Similar legal gaps apply to the situation of the foreign funding of political parties in the CAR and Senegal. However, none of the above-mentioned laws include monitoring mechanisms making the flow of foreign funding hardly preventable. This suggests that the regulation of political parties in the CAR and Senegal is symbolic, to some extent, and that the promotion of constitutional democracy may not be effective.
Another risk to party regulation is the attempt of governments to restrict political parties' activities, as was seen in the s in Senegal, when the government opted for a "controlled multi-partyism" by limiting the number of authorised political parties.
The promotion of constitutional democracy would be compromised if the regulation of political parties enabled any ruling party to pose a potential threat to genuine multi-partyism. Party regulation would become a source of limited competition and the ruling party's monopoly of power would imply that there would be little chance of political alternation. This study had two main objectives. The first was to review the emergence and evolution of party regulation in CAR and Senegal, in the light of their respective historical backgrounds and socio-political contexts.
The second objective was to establish whether the constitutional and legal regulation of political parties in both countries has actually promoted constitutional democracy to which CAR and Senegal have adhered since the s.
These two objectives are essential in understanding the current position of political parties in both countries, and the role that they play in the constitutional order.
Party constitutionalisation emerged in CAR and Senegal as they became independent. It was established that the French legal framework, specifically the French Constitution of , played a crucial role in the process of party constitutionalisation in CAR and Senegal.
It is submitted that the legal regulation of political parties in the CAR and Senegal has complemented and strengthened the process of party constitutionalisation, regardless of the democratic or undemocratic nature of the regimes. It is also argued that party regulation can play a significant role in promoting constitutional order and political stability.
Senegal's legal and constitutional regulation of political parties may have contributed to its long history of democracy and political stability compared with that of the CAR, which has been in political turmoil. For instance, the constitution of Senegal recognised unrestricted multi-partyism from as early as Meanwhile, the CAR was a de jure one-party state from to In examining the justifications of and rationale for party regulation, the issue of the implementation of the constitutional and legal regulation of political parties has been highlighted.
This is because it was found that the regulation of political parties constituted a means for ensuring that they comply with the principles of accountability, good governance and transparency, even in their internal affairs.
For instance, the state funding of political parties in CAR and Senegal is still "symbolic", even though the Senegalese Constitution explicitly provides for such a resource. This raises the issue of "semantic constitutions" that are not enforced in practice and subsequently jeopardise the promotion of constitutional democracy.
In this light, it is recommended that constitutional and legal regulation are complemented by constitutionally recognised enforcement mechanisms which can protect and promote the constitutional rights and duties of political parties and clearly impact on the position of political parties in the constitutional democracy.
Similarly, it is important that the private funding of political parties is constitutionally regulated. In CAR and Senegal only party laws provide for the private funding of political parties, but in reality there are no monitoring and sanction mechanisms. Finally, party constitutionalisation highlights the essential role of the judiciary in protecting and promoting the constitutional order. An independent judiciary is expected to protect the constitutional rights and duties of all political parties regardless of whether they are majority or minority parties.
In the CAR and Senegal current frameworks for constitutional review there are restrictive rules for accessing the constitutional courts, making it almost impossible for ordinary litigants, including opposition political parties, to refer any matter pertaining to the rights and duties of political parties to the constitutional judge. A framework in which independent constitutional judges have significant latitude in interpreting and protecting constitutional provisions would probably be more conducive to the effective implementation of party rights and the promotion of constitutional democracy.
Constitution of the CAR, Constitutional Law Law Presidential Ordinance Law Relating to the Independent Electoral Commission, Constitution of Kenya, Subsequent amendments, the Nineteenth, Twenty-Fourth, and Twenty-Sixth, granted women the right to vote, prohibited poll taxes in national elections, and lowered the voting age to Progress has been slow— and s ometimes halted, as is evident from current efforts to limit voting rights —and the country has struggled to become the democratic republic first set in motion two centuries ago.
At the same time, it has also sought to find the right republican constraints on the evolving body of citizens, so that majority rule—but not factious tempers—can prevail.
Perhaps the most significant stumbling block has been the states themselves. Today, California is roughly 78 times larger than Wyoming. This sort of disparity has deeply shaped the Senate, which gives a minority of the population a disproportionate influence on national policy choices.
Similarly, in the Electoral College, small states get a disproportionate say on who becomes president. Subsequent to , the Republican presidential candidate has prevailed in the Electoral College in three out of seven elections, but won the popular vote only once If President Trump is reelected, it will almost certainly be because he once again prevailed in the Electoral College while losing the popular vote.
If this were to occur, he would be the only two-term president to never win a plurality of the popular vote. In , Trump is the first candidate in American history to campaign for the presidency without making any effort to win the popular vote, appealing only to the people who will deliver him an Electoral College win.
If the polls are any indication, more Americans may vote for Vice President Biden than have ever voted for a presidential candidate, and he could still lose the presidency. In the past, losing the popular vote while winning the Electoral College was rare. Given current trends, minority rule could become routine.
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