Thanks for this very useful summary. (I had learned to be
careful before generalising anything about US constitutional structures.
(eg, say "the American federal and State governments don't have a
Cabinet/ Privy Council/ Executive Council the way UK/ Canadian/
Australian governments do...", and within 30 seconds hear from
someone from New Hampshire setting you straight... But even so, I would
be willing to bet on uniformly fixed terms throughout the US since
1776.)
Coming from a jurisdiction where "dissolution of the
legislature" automatically entails "fresh elections", I
find I need to remind myself that historically this wasn't always so, and
that until two or three centuries ago, it meant putting the legislature
in permanent recess (a` la the Bourbon kings, or the Burmese
junta).
It is interesting to note that "Westminster" jurisdictions have
consistently moved away from completely flexible terms, although none
have copied the US (and Swiss/ Norwegian) model of absolutely fixed terms
(Kirsten is right that this doesn't equate automatically to fixed
election dates - obviously for US Presidential elections the Constitution
says "four years" and Congress says "first Tuesday after 1
November".) The pattern in most cases is towards what I'd call
"semi-flexible" terms:
* The Clegg/
Cameron coalition accord's proposal requiring 55% of the House of Commons
to agree to an early election is one example, where the
"opt-out" criterion is a legislative supermajority.
* The New South
Wales state Assembly and the Australian Senate have quasi-fixed terms
where early elections can be held, but only if certain criteria are met
(if the Assembly votes out the Premier, if the Senate is deadlocked on a
Bill from the House of Representatives - the latter criterion is
judiciable in the courts but the former appears to be entrusted to the
judgment of the State Governor as a "political question"). Some
other States (Victoria and South Australia) have similar restrictions
where the "opt-out" criterion is some form of deadlock,
especially when a dissolution is requested by the Premier earlier rather
than later during the full term.
* France has a
minimum of one year and a maximum of five between elections, although the
President has a full discretion to dissolved during the last four
years.
All of these move away from the traditional Westminster principle that a
maximum (say) five-year term for an elected legislative chamber allows it
to be dissolved at any time during those five years, for any reason, and
by the chief executive alone.
Thanks again,
Tom Round
At 11:45 26/10/2010, Kirsten Nussbaumer wrote:
My impressions (that shouldn't
be relied on without checking the sources):
Tom's assumption that the pre-revolutionary American assemblies were
dissolvable by the governors is correct. Except this dissolution power
was not at all an uncontested right of the governors nor was it a power
that was even exercised in many stretches of time. (If memory
serves, some of this history of struggle and discontinuity is recounted
in Jack Greene's The Quest for Power, maybe a bit also in Gordon Wood's
Creation of the American Republic). Many colonial legislatures fought
against this dissolution power as unconstitutional, trying to fix the
duration and meeting times of the assembly (inspired in part by the
British Triennial Act). Royal instructions began to more assertively back
up the governors against the assemblies.
Of course, dissolution and related techniques for manipulating the
popular branches of the assemblies (like prolonging the duration of a
friendly legislature and refusing new elections, refusing to allow
creation of new electoral districts for new settlements, setting an
inconvenient meeting time or setting no time at all) figured high on the
list of colonial complaints (even showing up in the litany against the
crown in the Declaration of Independence).
My understanding is that all of the first American states then denied the
executive this prerogative of dissolving the legislature--that such a
power was too tarnished by its association with the colonial struggles,
and that it did not fit with the increased emphasis on popular
sovereignty and the role of the legislator as attorney for the people.
After that? I can't say for sure that something like a dissolution power
never ever resurfaced anywhere in U.S. history. But I would be surprised
if it did.
One potential quibble with the framing of the question: I understand the
choice to have fixed legislative terms to be a distinct issue from the
choice whether to hold elections on a fixed, regular date. The fact that
a colony or state has a fixed term for legislators and a fixed start date
for a new assembly does not necessarily mean that it has also fixed the
time period for an election by means of the constitution, legislation or
custom. Sometimes it was even (controversially) within the discretion of
a local sheriff to extend or contract the duration of an election
(perhaps extending the election several days longer if the preferred
candidate is coming up short, while halting the election quickly if the
candidate is ahead).
Congress eventually set a single election day for federal elections, but
perhaps we are now undermining the concept of a "fixed, regular
date" through the use of early and absentee voting.
best,
Kirsten
On Mon, Oct 25, 2010 at 1:51 AM, Tom Round
<tom.round@scu.edu.au>
wrote:
- Hello from Australia,
- A quick query crowdsourced to the wisdom of this list...
- As far as I know, all US State and Federal elections have been held
on fixed, regular dates since at least the late nineteenth century.
- On the other hand, I'd assume that in the pre-Revolutionary era,
colonial assemblies could be dissolved by the royal governor, as in other
British colonies.
- Does anyone know if any States retained a power of dissolution for
their governors during the post-1776 republican era? Or have fixed terms
been universal throughout the US since the War of Independence?
- Thanks for any guidance anyone can give.
- Regards
- Tom Round
-
- ==================================================
-
- Tom Round
- (BA [Hons] UQ, PhD Griffith)
- Lecturer,
- School of Law and
Justice,
- Southern Cross University
- Law Building, Room L-238
- PO Box 157 [DX 7651]
- Lismore, New South Wales
2480
- [Australia]
- Ph: (0612/02) 6620-3529
- Fax: (0612/02) 6622-4167
- Mobile Phone: 045-8810-286 (SMS-texts preferred)
- Email: tom.round@scu.edu.au
- ==================================================
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Kirsten Nussbaumer
Assistant Professor of Law, Saint Louis University
(314) 977-4534
http://law.slu.edu/faculty/profiles/profile.asp?username=knussba1