Constitutional Design Research Articles

Social contracts for real moral agents: a synthesis of public reason and public choice approaches to constitutional design

Citizens in contemporary democratic societies disagree deeply about the nature of the good life, and they disagree just as profoundly about justice. In building a social contract theory for diverse citizens, then, we cannot rely as heavily on the theory of justice as John Rawls did. I contend that Rawlsian liberals should instead focus on developing an account of constitutional choice that does not depend on agreement about justice. I develop such an account by drawing on the contractarian approach to constitutional choice pioneered by public choice theorists, especially James Buchanan. With some modifications, public choice can help identify mutually justifiable constitutional rules based on the extent to which these constitutional rules produce appropriate laws under normal conditions. This new, synthetic approach to constitutional choice also helps to explain the moral significance of contractarian agreement for the public choice theorist.

Explaining accommodation and resistance to demands for independence referendums in the UK and Spain

AbstractThis article examines why the UK Government accepted the 2014 Scottish independence referendum while the Spanish Government opposes a similar referendum in Catalonia. Adopting a most similar research design, we argue that the variation is best explained by perceived political opportunities by the two ruling parties. These are embedded in different conceptions of the state and constitutional designs, mostly mononational in Spain and mostly plurinational in the UK but multiple and contested in both cases. In Spain, vote‐seeking calculations incentivise the Popular Party to oppose a referendum, while its mononational conception of the state and the Spanish constitutional design provide a further constraint and a discursive justification for their position. In the UK, David Cameron's accommodating position was based on the view that the Scottish referendum was low risk – as support for independence was minimal – with a high reward: the annihilation of the independence demand. The Conservatives have recently adopted a more restrictive position because seeming political advantage has changed. The findings suggest that independence referendums will continue to be rare events.

Resisting democratic backsliding: An essay on Weimar, self-enforcing constitutions, and the Frankfurt School

Abstract:What, if anything, can constitutions do to resist democratic backsliding? The collapse of the Weimar Republic has led scholars of comparative politics to conclude that constitutional forms and institutions can do little to resist the breakdown of democracy and the rise of autocracy. This paper offers a constitutionalist response. The outlines of that answer can be found in decades-old policy documents produced by a set of German émigré scholars during and in the immediate aftermath of the Second World War: Franz Neumann, Herbert Marcuse, and Otto Kirchheimer. The secret reports root constitutional stability in the creation of a framework for bounded partisan pluralist contestation among political parties that track the principal social and economic cleavages, and that is rooted within, and does not seek to overthrow, the underlying political economy. Second, the secret reports highlight the importance of constitutional design in creating a constitutional infrastructure for bounded pluralistic political contestation, especially with respect to the role of political parties. Third, the secret reports suggest a counter-narrative of the German Basic Law as creating a framework for political contestation that reinforces constitutional stability instead of undermining it.

El hermetismo de la jurisdicción constitucional chilena a propósito del control de convencionalidad

El presente trabajo de investigación analiza cómo el diseño constitucional chileno incide tanto en el ejercicio del control de convencionalidad por el órgano de justicia constitucional, como en el diálogo entre el Tribunal Constitucional chileno y la Corte Interamericana de Derechos Humanos; y en la consiguiente contribución a la conformación del Ius Constitutionale Commune latinoamericano. La insularidad de la Constitución Política de la República de Chile en relación con el Derecho Internacional de los Derechos Humanos ha determinado una posición hermética de la jurisdicción constitucional respecto al ejercicio del control de convencionalidad. Lo anterior se constata mediante un análisis del articulado constitucional, mediante un estudio de la doctrina y de la jurisprudencia sobre la recepción del bloque constitucional de los derechos como parámetro del control de constitucionalidad y por medio de un examen de la jurisprudencia del Tribunal Constitucional chileno sobre sus competencias para ejercer el control de convencionalidad.

Citizen Standing and the Emoluments Clause

The text of the Emoluments Clause provides no explicit enforcement mechanism, raising questions about who may enforce the Clause, and the mechanism by which it might be enforced. Is the Clause enforceable exclusively by collective action — such as an impeachment proceeding by Congress — or is it also enforceable by individual lawsuit? If it can be enforced by private action, who has standing to sue? In the absence of textual guidance, it is necessary to turn to a broader constitutional theory to render enforcement of the Clause coherent. This Article presents that broader constitutional theory. The Article demonstrates that the Emoluments Clause imposes a fiduciary duty on officers of the United States. When that duty is breached, all Americans suffer an undifferentiated injury which can serve as the basis for a private cause of action to enforce the Clause. Drawing on historical context and the constitutional context of the Clause, this Article demonstrates that enforcement of the Emoluments Clause is an example of a power that the Constitution reserves for “the People” to police the political branches. More significantly, this Article presents the insight that, to date, separation-of- powers analysis has neglected this important aspect of constitutional design. The Supreme Court’s constrained understanding of the role of “the People” in the development of constitutional law has been increasingly the subject of “populist” criticism from those who understand the Framers to have constructed a central rather than derivative role for “the People.” While most of that criticism has been directed at the exclusive role that the judiciary plays in creating constitutional law, this Article applies a similar critique in the context of constitutional enforcement.

The Freedom to Work: PUDR vs. Union of India and the Meaning of 'Forced Labour' Under the Indian Constitution

Article 23(1) of the Indian Constitution prohibits traffic in human beings and begar and other similar forms of forced labour. With begar – a system of inter-generational bonded labour unique to India – at its heart, Article 23 may, at first glance, seem only a narrow protection from debt slavery and its variants. However, in PUDR vs Union of India, the Supreme Court held that the right against forced labour included the right to a minimum wage. Remarkably, the Court framed this not as a positive right or as a socio-economic guarantee that it was importing from the Directive Principles, but in the pure language of freedom: freedom from economic compulsions that drove workers to accept employment at wages even lower than the minimum rates. This essay is a reconstruction and a defence of the transformative vision of freedom articulated by the Supreme Court in PUDR vs. Union of India. I will begin with an analysis of the judgment, the background in which it was delivered, and the Court’s insistence that the term “forced labour” was not simply limited to physical or legal force, but applied equally to the “compulsion of economic circumstances.” This interpretation of “forced labour”, I will argue, necessarily depended upon a theory of freedom. In other words, in interpreting Article 23, the Court had to – and did – answer the question: what kind of freedom did the Constitution envision? (I). To place this in context, I will then set out three different historical accounts of freedom: first, the dominant “liberal” view, that limits freedom to a protection against intentional interference from other human beings; secondly, the “republican” view, which takes a broader approach, and argues that what is relevant is not interference, but the existence of arbitrary power that one individual or a group of individuals might wield over others; and thirdly, the “labour-republican” view, which, dispensing with the requirements of agency and intentionality, extends the domain of freedom from merely protection from the intentional acts of others, to protection from the operation of human institutions and practices, such as the market (II). I will go on to argue that PUDR’s adoption of this third view was justified in view of both the text of Article 23, as well as our constitutional history. The Indian Constitution did not take the existing economic structure and economic arrangements as “natural”, immutable states of affairs, which had no moral bearing on freedom. Rather, much like it sought to actively intervene in social structures through provisions like Article 15(2) and 17, the Constitution also aimed at transforming the economic structure – but to a limited extent. Article 23, and the guarantee against forced labour, were at the heart of this constitutional design, which for the first time was recognized by the Supreme Court in PUDR (III). I will conclude by examining the consequences of PUDR, both in the domain of the workplace, and in other domains which are not usually thought to raise issues of constitutional freedom – such as the household (IV). In the three-and-a-half decades since it was delivered, the promise of PUDR is yet to be followed through by the Supreme Court. However, it remains a standing invitation: an invitation to the Court to view the fundamental rights chapter as embodying not merely a charter of political freedom, but also through Article 23 – in the words of a contemporary scholar – a realization of “labour’s constitution of (economic) freedom.”

The mysteriously appearing and disappearing doctrine of separation of powers: toward a distinctly South Africa doctrine for a more radically transformative Constitution

The doctrine of the separation of powers remains an enigma in South African law. Despite promising that ‘a distinctively South Africa model of separation of powers’ will be developed over time, the Constitutional Court has made little effort to do so explicitly. This article argues that all separation of powers doctrines are a practical matter of constitutional design underpinned by political theory and a theory of state. Given the track record of liberalism as racist, sexist and tolerant of poverty and inequality, and because the South African Constitution itself embodies a radically different doctrine of separation of powers, simply recanting the journey of the doctrine through the minds of Montesquieu, Locke and Madison is of little value. This article suggests that the basic foundations of a distinctively South African doctrine can be developed through an analysis of the Constitution, a determination of the purposes of the doctrine and a reinterpretation of Constitutional Court judgments. Five basic foundations of this distinctively South African doctrine emerge: chapter 9 Institutions as a fourth branch of government; the evolving and dynamic relationship between different branches of government; constitutional dialogue and participatory democracy; the absence of a political question doctrine; and the separation of powers harm principle. The development of a clearer doctrine of separation of powers will reduce reasonable speculation and public perception that the doctrine is merely appealed to at a court’s convenience. It will also encourage constitutional dialogue between branches and spheres of government, constitutional institutions and civil society about the nature of South African constitutional democracy.

Beyond Market Failure and Government Failure

Criticisms of market outcomes often rest upon a notion of 'market failure,' meaning that the market has failed to align incentives and knowledge to produce an optimal outcome. Rejoinders to classic market failure arguments have taken several forms: that there are institutional or contracting solutions to various forms of market failures, that optimality is not a reasonable goal for real-world economic activity, or that government may fail as well. Similarly, Wittman (1995) and others have argued that concepts of government failure are equally problematic as the ordinary forces of political competition may render politicians sufficiently accountable to achieve realistically defined standards of efficiency. Even thinkers like Buchanan imagine that constitutional design may allow politics to fend off its tendency to become a zero-sum game. Both concepts are problematic in a world of entangled political economy in which market and government activity are interconnected. We argue that it is time to abandon both ‘market failure’ and ‘government failure,’ and instead focus on problems of institutional mismatch when the rules governing interaction are ill-suited to the problems that agents confront.

From Partnerships to Bureaucracies: The Constitutional Evolution of Russian Universities

Russian university is treated as a miniature political system in this article. Four hundred charters, statutes and ordinances are analyzed in order to identify three pivotal axes allowing us to classify constitutional frameworks of universities: the axis of independence from the founder, the axis of collegiality, or the balance of power between the rector and the academic council, and the axis of federalization, which shows how decentralized the organizational structure is. Next, it is shown how these variables are interrelated and how their stable sets form types of intra-university political systems — federative, unitary, dual and controlled — which exist or used to exist in Russia. Contrary to the widely held belief that all of the differences between universities can be traced to their position on the scales of “collegiality” (partnership model) and “managerialism” (bureaucratic model) and although public universities do resemble bureaucracies more than partnerships today, different elements of their constitutional design seem to have evolved independently and under the influence of different factors.

The Democratic Resilience of the Canadian Constitution

In this Chapter prepared for the Oxford volume on “Constitutional Democracy in Crisis?” edited by Mark Graber, Sanford Levinson and Mark Tushnet, we advance three categories of institutional explanations for the resilience of Canadian constitutional democracy in the face of the increasingly global phenomenon of democratic decline. First, we show that Canada’s choice to chart its own unique course in the debate pitting presidentialism and parliamentarism has borne the fruits of democracy. Second, we demonstrate that Canada’s robust “democracy branch” has been both a source and driver of its democratic resilience. Third, we illustrate how the Supreme Court of Canada has managed to issue highly political and quite controversial decisions without becoming perceived as a partisan institution — making it an overtly political but not politicized institution. The upshot of our inquiry is that constitutional design — and not political culture alone — has been critical in reinforcing the democratic resilience of the Canadian Constitution. We conclude with some long-term challenges that we view as significant, despite Canada’s relatively enviable position among the countries of the world in our day.

Reconstitutionalizing Politics in the Hong Kong Special Administrative Region of China

AbstractThe question of whether constitutional law can protect, consolidate, and advance democracy has been considered extensively in multiple jurisdictions. The issue has not yet been considered in the context of one of the most problematic contemporary democratic transitions: Hong Kong’s, from an externally governed colonial outpost to a self-governed suffrage-based special administrative region of the People’s Republic of China. The Basic Law of Hong Kong proposes the eventual election of the Legislative Council and Chief Executive of Hong Kong by some form of universal suffrage. These provisions are at the core of the ‘democratic constitution’ of Hong Kong. Achieving this goal requires consensus between the executive in Hong Kong, members of the Legislative Council in Hong Kong, and the legislative body of the People’s Republic of China. Although not a formal constitutional requirement, any democratization efforts will also require popular buy-in from Hong Kong residents in order to function effectively. However, it is increasingly clear that the views of all concerned do not converge on how and when these constitutional aspirations should be realized. In addition, all parties have started moving outside of this constitutional framework when deliberating issues of political reform. This article looks at the problems in the constitutional design of the Hong Kong Special Administrative Region that have resulted in this political deadlock. The article will then look at one solution to mitigate the effect of these design issues and to move forward again on the issue of reform: ‘litigating’ the democratic constitution in the courts. The article discusses the advantages of the courts in the process: primarily the capacity of the courts toreconstitutionalizepolitical debate on electoral issues. This article evaluates the largely unsuccessful use of the courts thus far by Hong Kong residents to correct and advance political reform. It considers possible reasons for the high failure rate in courts and proposes alternative litigation strategies that can better utilize the position of the courts to re-orient all parties to the Basic Law.

Designing Constitutions in Britain’s Mid-Nineteenth Century Empire – Indigenous Territorial Government in New Zealand and Retrieving Constitutional Histories

ABSTRACTFocusing on the striking instance of colonial New Zealand, this article examines constitutional design for colonies of European settlement, arguing about such design in two key respects. First, this article examines the proposals of so-called ‘colonial reformers’ endeavouring to influence constitutional framing, including how their notions on ‘local self-government’ or ‘municipal government’ were reflected or not, while also illuminating their concepts of how to accommodate indigenous territorial governance and indirect administration of indigenous territories in the late 1840s and early 1850s. Second, recovering traces of these disputes and ways of thought from the archives, and how they were operationalised in grounded constitutional drafting or design, rather than resorting to analysing abstract canonical, high-level texts, such as those of Henry Maine and John Stuart Mill, is ultimately more rewarding for evaluating constitutional emergence and design. It reveals tensions within ‘colonial liberalism’, as characterised by Edward Gibbon Wakefield. How putative settler interests informed these metropolitan-Westminster constitutional enactments or not, assessed through cabinet-level discussions, in Colonial Office deliberations on settler agitation, illustrates missteps and failures as well as the particular ways in which diverse features of imperial constitutional design emerged. Examining these points is timely given Linda Colley’s focus on a ‘contagion of constitutions’ in the late eighteenth and early to mid-nineteenth centuries.

Canadian Federalism in Design and Practice: The Mechanics of a Permanently Provisional Constitution

Abstract This paper examines the interaction between constitutional design and practice through a case study of Canadian federalism. Focusing on the federal architecture of the Canadian Constitution, the paper examines how subnational units in Canada actually compete with the central government, emphasizing the concrete strategies and tactics they most commonly employ to get their way in confrontations with central authority. The evidence affirms that constitutional design and structure make an important difference in the tactics and tools available to subnational units in a federal system, but that design is not fully constraining: there is considerable evidence of extraconstitutional innovation and improvisation by governments. Furthermore, changes in practice initiated by Canadian subnational actors have produced changes in the allocation of national and subnational authority that are plausibly characterized as constitutional in magnitude. The paper concludes that the design of the Canadian federal system may inadvertently undermine its capacity to stabilize itself at any particular point of constitutional evolution, making it ‘permanently provisional.’

Should Local Governments be Included in the Constitution? A Comparative Analysis Between the U.S. and Brazilian Supreme Courts’ Reasoning Regarding Annexation Laws

Annexation of local governments is a contentious topic. Litigation of annexation often addresses important constitutional provisions, such as property rights, federalism, limitations to police powers, equality and, more specifically, the Voting Rights Act. The United States Constitution is famously silent about local governments. In light of this omission and considering individual constitutional rights, would it make a difference to have local governments in the constitutional text? And to whom would it matter the most? This research developed an original dataset to answer those questions. This article focuses on annexation as proxy for local powers, and it compares the U.S. federalism scheme with the Brazilian unprecedented experience of leveling local governments alongside the states and the federal union in the Constitution of 1988. This research is unique in its comparison of the reasoning of the U.S. Supreme Court (U.S.S.C.) and its Brazilian counterpart, the Supremo Tribunal Federal (S.T.F.), with regard to annexation laws. The main contributions of this study to the literature are straightforward. First, it advances the literature on constitutional design by focusing on local governments, instead of states and the federal union. Second, and related to such an advancement, this paper departs from traditional federalism comparisons which were restricted to developed countries. Third, this research provides evidence contradicting previous claims that the U.S. constitutional omission of local governments was a failure of constitutional design relating to future matters. In addition, this study analyzes the consequences of the Brazilian constitutional design. This article concludes that there is no evidence supporting the proposition that the inclusion of municipalities as federal actors is necessarily superior to the current comparative trend that uses the dual spheres system of the U.S. federalism as a paradigm. Therefore, this research leads to unexpected results and provides evidence that contradicts the understanding of the U.S. constitutional omission of local governments as a failure of constitutional design.

Constitutional Design Two Ways: Constitutional Drafters as Judges

Constitutional scholarship often assumes a strict separation between processes of constitutional drafting and interpretation. Yet on constitutional courts around the world, the judges charged with interpreting a constitution’s text are often the same people who helped write or ratify that text only a few years before. This Article examines the phenomenon of constitutional drafters as judges and the insights to be gained from a study of such judges about the nature of democratic constitution-making — i.e., the degree to which constitution making inevitably takes place over an extended time period, involves processes of constitutional interpretation as well as drafting, and combines forms of legal and political judgment. It further suggests that insights of this kind may invite closer attention to the virtues of certain kinds of judges as agents of democratic constitutional change — i.e., judges who resemble a majority of democratic constitutional drafters by possessing both legal and political relationships, skills, and commitments, or who resemble many actual drafter-judges in that they are lawyer-politicians.

Democratic Theory and Constitutional Design: Hearing Persistent Electoral Minorities

Questions of constitutional design, that is, of structuring the political relationship between dominant and non-dominant communities, are recurrent across the globe. While the particular issues faced by each state are distinct, at their root lies a common problem: how should legal and political institutions and processes be designed to provide minority groups or peoples with the capacity to have their interests heard in the processes of government? In this article, I explore how democratic theory conceives of, and answers, this fundamental question.

THE RIGHT TO RITUAL SLAUGHTER IN AFRICA: A COMPARATIVE CONSTITUTIONAL ANALYSIS

AbstractUsing examples of ritual slaughter recognized by different religions in Africa, this paper examines the regulated and unregulated exercise of the right to ritual slaughter as a manifestation of the right to freedom of religion in three constitutional traditions in Africa.This article commences with an evaluation of the existence of the right to ritual slaughter either as a freestanding right or a derivative right from the right to freedom of religion in the bills of rights of African constitutions. The article argues that the ritual slaughter at this stage of constitutional development in Africa is at best a derivative right partly anchored on the communal dimensions of the right to freedom of religion. The article closely examines the bearers and content of the right to ritual slaughter through a brief overview of the practices of ritual slaughter recognized by African traditional religion and Islam. In addition, the syncretic nature of religious practice in Africa identified as the multiple or concurrent witness to different faiths is also considered to provide a realistic account of ritual slaughter in Africa.Since the right to ritual slaughter is identified as a derivative right from the right to freedom of religion, the article examines different constitutional traditions in Africa to determine how religion is conceived in constitutional governance that in turn affects the feasibility of the right to ritual slaughter within constitutional designs and capacity of other public interests such as animal welfare to limit the exercise of the right to ritual slaughter.Three constitutional designs of the role of religion in constitutional governance are identified in this regard. The article concludes on a number of points, including the recognition of the importance of the articulation of the human rights that underpin animal welfare concerns and the fact that a regulated right to ritual slaughter appears feasible in a number of African countries.

What Makes for More or Less Powerful Constitutional Courts?

It is sometimes suggested that one or another constitutional or supreme court -- for example, the Indian, U.S. or German -- is the powerful in the world. And yet it is far from clear (a) what such power or of courts consists in; i.e., what measure or metric of power/strength is (usually implicitly) employed, (b) what the sources or components of judicial power are under the given measure, and (c) what explains why some courts are more powerful than others. Is strength exclusively or mostly a function of formal legal powers, so that, for example, a court with the authority to invalidate a constitutional amendment on substantive grounds is ipso facto more powerful than one that may only invalidate statutes, which in turn is more powerful than a court that can do neither? Yet, both the U.S. and Japanese supreme courts are in this middle category, indeed have roughly similar sets of legal powers overall, but while the former is often considered among the most powerful courts in the world, the latter is often considered among the weakest. So it seems clear that formal powers do not tell the whole story, but what part do they play, if any, and what else helps to fill in the picture? Although looking to how courts actually use their legal powers is obviously also relevant, it too falls short of fully completing the picture. For what we are additionally in search of are factors that help to explain why, for example, the U.S. and Japanese courts use their powers in such different ways. This article seeks to shed light on all three parts of the uncertainty surrounding claims as to the strength or weakness of constitutional courts: the measure, sources, and explanation of judicial power. It begins by arguing that the proper measure of the power of a constitutional court is its consequential nature as an institutional actor in terms of affecting the outcomes of important constitutional and political disputes. Although more diffuse and harder to quantify, this conception of judicial power is more inclusive and realistically nuanced than commonly employed uni-dimensional alternatives such as international influence or strike-down rate. The article then suggests that the consequential nature of a constitutional court is a function of three broad variables: (1) formal legal rules and powers, (2) legal and judicial practice, and (3) the immediate electoral and political context in which it operates. Through a process of mutual interaction, each of these three helps to shape and constitute the more specific components of a court's institutional power, which include the nature, scope, and content of the constitution it enforces, the jurisdictional and remedial powers it has and employs, the ease or difficulty of constitutional amendment, and its composition and tenure. Moving from measuring to explaining the strength or weakness of constitutional courts, the article next identifies and discusses three explanatory variables: (1) deliberate constitutional design choices, (2) legal culture, and (3) general or structural political context. The article concludes with case studies of the supreme courts of India and Japan that illustrate the role and interaction of these multidimensional evidentiary and explanatory factors.

Three Models of Democratic Self-Defence: Militant Democracy and Its Alternatives

Militant democracy relies on the idea that democracies ought to defend themselves from anti-democratic forces by constitutionalising repressive measures. We offer a criticism of this view by highlighting the exclusionary elitism on which militant democracy is built. In doing this, we consider two competing models of democratic self-defence: the procedural and the social. We suggest that the procedural model, while avoiding the exclusionary and other pitfalls of militant democracy, is detached from socio-political realities and fails to offer a comprehensive vision of democratic stability. The largely neglected social model of democratic self defence avoids this problem; it combines proceduralism’s commitment to dissensus with a social-democratic logic in the design of democratic constitutions. We argue in favour of such a social democratic self-defence and further develop this model around the guiding principle of political and social non-domination.

The price of ‘one person, one vote’

I study the design of binary voting rules in environments where agents are heterogenous either in the stakes that they have in the decision or in the quality of information they possess regarding the correct course of action. The price of ‘one person, one vote’ is defined as the reduction in welfare resulting from constraining the voting rule to treat the agents symmetrically. I analyze how this price depends on the parameters of the environment, particularly on the level of heterogeneity in the society. The results shed light on the tradeoff between equality and efficiency in the context of constitutional design.