Сравнение конституций РФ и США

The US & Russian

Constitution in Comparison

The Constitution of every nation addresses

itself to the same basis issues:

• How will the government be constituted,

and how will authority be distributed within the government?

• How will political power be invested in leaders, transferred to new leaders,

And revoked prematurely if need be?

• What will be the relationship between the government and the citizens? What

Will be the protected rights of the citizenry and the corresponding limits

on the power of the state? What will be the government’s obligations to its citizens,

and the citizenry’s obligations to the government?

• What will be the relationship between the national government and

the various sub-levels of government, as well as the government’s relationship

with the various cultural, civil, ethnic, and religious groups within society?

• How will the national income and resources be generated, distributed,

and regulated?

The constitutions of the United States

and the Russian Federation were

Written half a world and more

two hundred years apart.

Despite this fact, the two constitutions

appear to be remarkably similar on

many levels.

Similarities:

• Both countries provide a framework for nationwide

governance of a diverse group of constituent states or

regions that are acknowledge to be sovereign in their own right.

• Both countries establish a federal government with three

independent branches:

• Both constitutions provide for a bicameral legislature:

a smaller upper house consisting of two representatives

from each state and region, and a more

numerous lower house with representatives

elected by popular ballot.

• Both constitutions reject the English system

of direct parliamentary control over

the executive branch.

These surface similarities mask

some strong differences – differences

in the explicit provisions of

the two constitutions and also

differences in how seemingly equivalent

provisions have been put into practice.

These differences are mainly attributable

to two factors:

different political problems

facing the two nations when

the different political

they drafted their constitutions

traditions that shaped the drafter’s

choices and emphasis

The Formulation of the U.S. Constitution

The United States Constitution was written in the summer of 1787. It was proposed to the states on September 17th, and it went into effect nine months later, on June 21, 1788, when the requisite ninth state, New Hampshire, voted to ratify it. As a practical matter, however, the American union did not become politically secure until the populous and commercially important states of Virginia and New York ratified the Constitution later that summer.

The American Revolutionary War had been fought, not by a true national government, but by the joint effort of thirteen independent states. Although the states had created a national congress and the Continental Army, the separate states retained almost every aspect of fiscal and political sovereignty.

The conclusion of the Revolutionary War saw the American states freed from British control but still surrounded on all sides by territory controlled by the major European powers—Great Britain, France, and Spain. Under the existing national charter (the Articles of Confederation), the American national government had no mechanism for settling disputes between the states, no power to tax, very little power to regulate commerce, and essentially no way to engage in foreign policy or to fund a war effort without the active assent of the wealthiest states.

The American constitution was drafted as an arm’s-length

agreement among thirteen newly independent states. The people

of these states were clearly linked in interest, and while they

recognized the need for national cooperation, especially in matters

of commerce and defense, they had just fought a long and costly war to

free themselves from a distant king and parliament.

The Formulation of the Constitution of

the Russian Federation

The Constitution of the Russian Federation was written in the fall of 1993, at a time of political crisis—an impasse between the Russian president, Boris Yeltsin, and the Russian Parliament.

Russia was already a nation. The 89 provinces and

regions of the Russian Federation had been under

a unified political authority for more than one

hundred fifty years, but in 1993, Russia had just

regained its independence from the recently dissolved

Soviet Union. The country was undergoing extreme

political and economic turmoil, made intolerable by

a stalemate between the presidency and the Parliament.

Because Russia’s existing constitution (inherited from Soviet days) declare that both

the president and the Parliament were sovereign, it didn’t provide a mechanism

for resolving their inevitable differences. The people who drafted the Russian

constitution in the summer and fall of 1993 were motivated by the threat that

federation would fall apart.

On the other hand, Russian people had just emerged from 70 years of communist

totalitarianism. If the federal government was reconstituted so that it had sufficient

Strength to hold the country together, there was a danger that newly-won civil

And economic liberties would disappear.

The drafters’ response was to craft a constitution that:

• Clearly declared or re-affirmed federal supremacy over the constituent provinces

and regions;

• Gave the presidency great power – to try to make sure that the government

would not again be paralyzed by irreconcilable differences between

the executive and legislative branches;

• Contained numerous explicit guarantees of the civil and economic rights and

liberties to be enjoyed by Russian citizens.

Federal Supremacy

Both the American constitution (Article VI) and the Russian (Articles 4, 5, 15, 71, 76, and 77) explicitly provide for federal supremacy within specified spheres of federal authority. Indeed, it is hard to imagine that any federal government could function without such supremacy. The two constitutions, however, define that sphere of federal authority quite differently.

In the U.S. Constitution, the areas of federal supremacy are primarily set forth in Article I, Section 8 (which lists the areas of authority that are affirmatively granted to Congress), Article I, Section 10 (which lists the areas of authority that are prohibited to the states), and Article III, Section 2 (which lists the types of litigation entrusted to the federal courts).

In general, these provisions give the federal government pre-eminent authority in matters of interstate and international commerce, national defense, and international relations. They also give the federal courts the power to adjudicate disputes between states and between states and foreign governments. These were the areas where Americans most keenly felt the weakness of the pre-existing confederation and where they perceived the greatest need for a federal government able to enforce a nationwide uniformity of law and policy.

Under the Russian constitution, the federal government is granted a much more expansive role. Article 71 gives the federal government jurisdiction over some four dozen aspects of government, including:

• “ regulation and protection of the rights and liberties of [the] citizen;”
• establishing “procedure[s] for the organization and activities” of the three branches of federal government;
• “ determining…policy and . . . programs in the fields of state structure, the economy, the environment, and the social, cultural and national development of the Russian Federation;”
• “ federal power grids, . . . federal transport, railways, [and] information and communications;” and
• “ law courts; the Procurator’s office; [and] criminal [and] criminal procedure . . . legislation[.]”

Moreover, Article 72 of the Russian constitution gives the federal government and the provincial/regional governments joint jurisdiction over many other governmental functions, including:

• “ issues [concerning] the possession, use, and management of land, mineral resources, water, and other natural resources;”
• “ protection of the environment and ecological safety;”
• “ general questions of upbringing, education, science, culture, physical culture, and sports;”
• “ coordination of health issues, protection of the family, motherhood, fatherhood, and childhood, [and] social protection including social security;”
• “ administrative, . . . labor, family, housing, land, water, and forestry legislation;”
• “ [the membership of] the judiciary and law-enforcement agencies, the bar, [and the] notariate;” and
• “ establishment of general guidelines for the organization of . . . bodies of state power and local self-government.”

Although Article 72 declares that these foregoing concerns fall within the joint authority of the federal and the provincial/regional governments, Article 76 states that, in these areas of joint jurisdiction, “federal laws shall be issued and, in accordance with them, laws and other regulatory acts of [the constituent provinces, and regions] shall be adopted.” In other words, the federal government’s laws on these matters are controlling.

The Presidency

Both the American and the Russian constitutions provide for a president to be elected by nationwide popular vote, but while the American contains a detailed description of the powers (and the limitations on the power) of Congress, it devotes very little space to defining the authority of the president. The Russian, on the other hand, contains a lengthy description of the powers of the president and very little description of the authority of the Parliament.

The powers of the American president are set forth in Article II, Sections 2 and 3. The president is the commander-in-chief of the armed forces (and of the state militias, “if they have been called into the service of the United States”). In addition, the president has the authority to appoint, with the consent of the Senate, all officers of the federal government (i.e., all officers whose manner of selection is not otherwise specified in the constitution). (Article II, Section 2 allows Congress to enact statutes that eliminate the requirement of Senate approval for specific federal officers and that authorize the “Heads of Departments” or the “Courts of Law” to appoint certain federal officers instead of the president.)

Beyond this, the American president is empowered (1) to require the principal heads of the departments of the federal government to report on any subject relating to their duties, (2) to grant pardons and reprieves, (3) to convene the Congress “on extraordinary occasions,” and (4) to “receive ambassadors and other public ministers [of foreign countries].” The president is also directed to “take care that the laws be faithfully executed.”

In contrast, Article 80 of the Russian constitution declares that the president “shall be the head of state” and “the guarantor of the Constitution . . . and of human and civil rights and freedoms.” The president is directed to “take measures to protect the sovereignty of the Russian Federation, its independence and [its] state integrity,” to “ensure concerted functioning and interaction of all bodies of state power,” and to “define the basic domestic and foreign policy guidelines of the state.”

Under Article 83, the president has complete power to appoint all officers of the federal government except the prime minister (an office described as the “Chairman of the Government of the Russian Federation”). Article 83 specifies that the Duma (i.e., the lower house of Parliament) must consent to the president’s choice for prime minister.

However, under Article 111, if the Duma refuses to accept the president’s nominee for prime minister three times in succession, the president is authorized to appoint the prime minister unilaterally, dissolve the Duma, and call for new elections. Similarly, under Article 117, if the Duma gives a vote of “no confidence” in the prime minister’s government twice in a three-month period, the president is given the choice of either dismissing the government or dismissing the Duma and calling for new elections.

Article 85 gives the president the power to suspend the operation of a law “pending the resolution of the issue in the appropriate court” if the president believes that a law passed by a constituent province or region violates the federal constitution or any federal law or that it violates “human and civil rights and liberties.”

And under Article 90, the president is empowered to “issue decrees and executive orders [that are] binding throughout the territory of the Russian Federation,” so long as these decrees and orders “[do] not contravene the Constitution . . . or federal laws.”

The Rights of Citizens

Americans are justly proud of our Bill of Rights—the first ten amendments to the United States Constitution, which deal with issues such as freedom of speech, freedom of the press, freedom from unreasonable government searches and seizures, the right to jury trial, the right to the assistance of counsel and to confront government witnesses in criminal cases, and the right to fair compensation when the government exercises its authority to take private property. The Russian constitution, however, guarantees a far greater array of liberties and rights for its citizens.

It would be a mistake to view the American Bill of Rights through a twenty-first century lens: These ten amendments were not intended to be federal guarantees of individual liberties in the sense that the federal government could enforce these liberties on the states. Rather, when the Bill of Rights was proposed and adopted in the late 1700s, it was seen as a series of restrictions on federal power—measures designed to make sure that the new federal government could do nothing to alter state law on these subjects. It was designed to prohibit the federal government from otherwise infringing the rights that Americans believed they had inherited from English common law.

It would take two more centuries—encompassing a civil war, the enactment of the Fourteenth Amendment, and a series of Supreme Court decisions in the 1950s and 1960s—before the Bill of Rights would assume its modern role in American law as a set of federally guaranteed rights and liberties.

In contrast, the Constitution of the Russian Federation explicitly commits the federal government to protect a whole panoply of civic rights and benefits—and not just political and religious rights. The Russian constitution also guarantees the types of economic and social benefits that Russian citizens received (or, at least, were theoretically entitled to) under the socialist framework of the Soviet Union.

Many of the rights guaranteed by the Russian constitution correspond to rights that Americans have come to expect under the Bill of Rights.

The American Emphasis on Procedure

There is one more distinction between the American and Russian constitutions that should be discussed: the American’s emphasis on matters of procedure.

As explained earlier, the American constitution created a federal government that was founded on the doctrine of separation of powers or checks and balances . To implement this doctrine, the American drafters relied on a legal premise inherited from England—the premise that, in the long run, fairness is ensured by the procedures that decision-makers must follow, rather than by the identities of the decision-makers.

If you examine the United States Constitution as it was originally submitted to the states (that is, before the addition of the Bill of Rights), you will discover that more than half of the text is devoted to matters of procedure — how the Congress, the president, and the judges of the federal courts are to be selected and removed from office; the procedural rules under which these three branches (especially the Congress) are to operate; and the methods for amending the constitution in the future.

This emphasis on details of procedure (especially the details regarding the selection of senators, representatives, and the president) is directly attributable to the long tradition of parliamentary government inherited from England, as well as the drafters’ belief that procedural rules would provide a crucial guarantee that the states would not be overwhelmed by the federal government and that different states and political factions would always have their fair opportunity to influence the federal government.

The Russian constitution is different in this regard. The Russian drafters had no corresponding tradition of parliamentary government and procedural guarantees to draw from—because the preceding seventy years of Soviet rule, and the three-and-a-half centuries of tsarist rule before that, were characterized by the arbitrary and dictatorial use of state power rather than legislative rule and procedural regularity.

In other words, the Russian constitution is much more open-ended on the questions of how federal officials are to be selected, what tenure these officials will have, how the federal and provincial/regional governments are to be organized, and what powers the federal government will wield.

The end