Constitution américaine

ANGLAIS

self determination in international law.

self-determination denotes the legal right of people to decide their own destiny in the international order. Self-determination is a core principle  of international law, arising from customary international law, but also recognized as a general principle of law, and enshrined in a number international treaties. for instance, self-determination is protected in the United nations charter and the international covenant on civil and political rights as a "right of all peoples" (CORNELL Law School).

The political origins of the modern concept of self-determination can be traced back to the decleration of independence of the United States on the 4th of july 1776. It proclaimed that governements derived: "their just powers from the consent of the governed" and that " whenever any Form of governement becomes destructive of these ends, it is the right of the people to alter or to abolish it".

the principe of self-determination was further shaped by the leaders of the french revolution, whose doctrine of popular sovereignty, at least initially, required renunciation to all wars of conquest and comtemplated annexation of territory to france only after plebiscites.

American constitution and institutions.

The early "informal" phase: The American legal system shares many traits with that of england but it is in many ways relatively different from the later. During the era of colonisation the english common law was formulated for a strict feudal society, where and its ownership were of vital importance. this differs greatly whith the situation in the american colonies, where "new" a tendency to legislate differently and most especially independently.

The colonial heritage: The different circumstances surrounding the founding of the thirteen sovereign colonies, over a period of one hundred years ( 1606-1732), explain the fact that each colony has its distinct charter and subtantive law. In the 17th century the colonies did not need  and elaborate legal system, thus the english common law was reserved for matters of importance and for important people. Colonial courts were very active in the daily lives of the people and their tasks were not limited only to judicial issues, they also played administrative roles such as the recording of titles to farmland.

The relatively early lack of interest: At the beginning of the colonial period, the english government did not pay much attention to their american colonies which were then of little economic interest. Colonial legislatures were thus rather free to enact laws, for instance in Massachusetts in 1648, a code ( a collection of important legal rules), the laws and liberties of Massachusetts was adopted. moreover, colonial laws challenged in the privy council in London were reviewed in haphazard ways, delays were frequent, as a result a lot of colonial statues repugnant to the english law were tolerated.

The inevitable adjustements : Some aspects of the English law such as the primogeniture, the right of the eldest son to inherit, and the rules that owners of cattle had to fence them werre simply and rapidly abandoned.

Slavery which contributed greatly to the economic development of the colonies, most  especially in the south, had no significance in the english common law and as a result was not regulated neither by it. There was for instance the need in the colonies to distinguish between, as well as to regulate differently, slaves from Africa and "indenturred slaves".

The obviously late effort to establish control : When the American colonies became economically attractive in the 18th century, Britain wanted to gain more control over them. Thus a Declaratory Act of 1766 stated that : "colonies have been, are and of right ought to be subordinate unto and dependent upon the imperial crown and parliament which has full power and authority to make laws and states of sufficient force and validity to bind the colonies and people of America... in all cases whatsoever ". On this ground, about four hundred statutes from the colonies were rejected by the privy council.

The Revolutionary phase : In reaction to the sudden hostile attitude of the British government, the congress of the American colonies adopted, on the 4th of july 1776, the Declaration of the Independance. It proclaimed the right of the people to abolish a government that is incapable of securing the people's "inalienable rights to life, liberty and hapiness..." At the end of the war in 1781, owing to their fear of a strong centralized government, due to their experience with Great Britain, the colonies formed a Confederation, with little genuine power outside the area of foreign policy, which eventually failed.

The Constitution of United States

As from the 14th and until the 25th may 1787, fifty-five representatives (out of the initial seventy-four appointed) by twelve States started convening in Philadelphia, Pensylvania to revise the Articles of Confederation. Rhode Island being the only state to have refused to send delegates.

On the 17th of September 1787, thirty-nine delegates out of the forty-two remaining at what must then be regarded as the Constitutional Convention, signed the final draft of a document, radically different from the former Articles of Confederation. The new constitution was a result of series of compromises between States.

Nature of the American Constitution : On the 21st of June 1788, the constitution came into effect as the state of New Hampshire became the ninth State to ratify it.

The original constitution contains seven articles, five of wich concern the separation and sharing of powers between the various governmental authorities and so was an improvement on the Articles of Confederation. Nevertheless, it neither inaugurated a "democratic system of government" nor did it confer a lot of safeguards on personal liberty individually to the populations of the States, as such a right to writ of habeas carpus, a ban on a bills of Attainders and ex post facto laws, were considered insufficient by anti-federalists.

The Predictable evolution of the American Constitution : The ratification on the 15th of Décember 1791, of the bill of rights (the first ten amendments to the new constitution) a guarantee for the fundamental rights of citizens, was the only way to calm the fear of the majority of Americans, who still remained weary of strong centralized power. These constitutionally protected rights prohibit the federal government, (including the Congress), from limiting them through legislation. This rule concerns also the States legislations by the application of what is know as the Doctrine of selective Incorporation.

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