Constitutional Design Research Articles

Constitutional review of treaties: Lessons for comparative constitutional design and practice

The changing remit of treaty making, such that treaties can be just as capable of negatively impacting on domestic constitutional values as ordinary legislation, results in it warranting appropriate mechanisms of domestic constitutional review. Treaties should not be exempt from what is a staple component of modern constitutionalism. There is a powerful case for constitutional systems to adopt, whether as a matter of express design or practice, both ex ante and ex post constitutional review of treaties. The concern that ex post review of treaties would threaten compliance with treaty obligations is misplaced given that it can be designed and practiced fully compatibly with international law obligations. The adoption of such a combined system of review would contribute to ensuring that treaty making does not escape the salutary reach of domestic constitutionalism, which is all the more indispensable in the absence of meaningful international law constraints on the process and substantive content of treaty making. And by ensuring greater respect for constitutional standards in the treaty-making process, including fundamental rights that are central to international law itself, this can even bolster the legitimacy of international law.

Voting as a lottery

This paper studies the issue of constitutional design, and supermajorities in particular, from a behavioral economics perspective. The relevant parameters are voting power, risk aversion, and pessimism. Voters who feel powerful prefer lower thresholds, while risk averters and those who feel pessimistic about the majority prefer higher thresholds. We also analyze the effects of loss aversion and overconfidence. The former leads voters to prefer more protective voting rules, a manifestation of their bias towards the status quo. The latter leads them to prefer overly low (high) protection when they receive good (bad) news about how others will vote. Finally, we study constitutional agreements on the voting rule. Members of the constituent assembly are heterogeneous in the parameters above. Weak and minority members anticipate high expropriation risk in future decisions. This gives them consistent leverage to push for a protective constitution.

O IPTU Progressivo no Tempo como Instrumento de Política Urbana no Brasil: Um Caso Concreto - O Município de Sobral-CE

This article studies the use of progressive tax rates in time for the real estate tax as a tool for urban policy. Initially, talks about the constitutional design of the tax, emphasizing his prediction of performance in the urban policy. Then, taking as an example the law of the municipality of Sobral, State of Ceara, analyzes if it is conformed at constitutional and infra-constitutional norms. It is concluded that the municipal legislation of Sobral does not meet fully the requirements of the Magna Carta. It was adopted the inductive method of approach and the monographic method of procedure.

Constitutional Amendment and Dismemberment

Some constitutional amendments are not amendments at all. They are self-conscious efforts to repudiate the essential characteristics of a constitution and to destroy its foundations. And yet we commonly identify transformative changes like these as constitutional amendments no different from others. A radically transformative change of this sort is not a constitutional amendment. It is a constitutional dismemberment. A constitutional dismemberment is a deliberate effort to disassemble one or more of the constitution’s constituent parts, whether codified or uncodified, without breaking the legal continuity that is necessary if not useful for maintaining a stable polity. Dismemberment seeks to transform the identity, the fundamental values or the architecture of the constitution. In this Article, I introduce and theorize the phenomenon, concept, doctrine and theory of constitutional dismemberment. Drawing from jurisdictions around the world — Brazil, Canada, Colombia, Honduras, India, Ireland, Jamaica, Japan, New Zealand, Saint Lucia, Taiwan, Turkey, the United Kingdom, the United States, the Caribbean and the European Union — I explain how constitutional dismemberment responds to the major challenges in constitutional change today. How should constitutional designers structure the rules of constitutional change? How may political actors legally and legitimately formalize transformative changes to a constitution? Should courts review the constitutionality of constitutional amendments? And how may we redeem the foundational theory of constituent power to give it some purchase in modern constitutionalism? The theory of constitutional dismemberment offers a suite of pragmatic solutions to these enduring puzzles in the modern study of constitutional change and in the design of its procedures.

Conflict, choice or geography? Explaining patterns of democracy in continental Europe

AbstractThe ‘character’ of democracy is regularly summarised using political‐institutional measures of, for instance, ‘consensus’ or ‘majoritarian’ democracy. Yet, there is little quantitative‐comparative research on the origins of such configurations. Drawing on literature on endogenous institutions and constitutional design, this article proposes a model for the explanation of empirical patterns of democracy. Using a novel database of 26 continental (neighbouring) European democracies and Bayesian spatial modelling, the results indicate that while today's empirical patterns of democracy in terms of proportional power diffusion can be traced back to waves of democratisation rather than historical partisan power configurations, decentral power diffusion can partially be explained by socio‐structural factors, and spatial dependencies exist for all variants of power diffusion.

Flooding the lake? International democracy promotion and the political economy of the 2014 presidential election in Afghanistan

The introductory article to this volume positions the Afghan case within the broader literature on the political economy of war-to-peace transitions. The paper begins by critiquing the rise of democracy promotion, and then employs a political economy framework to understand the more focused research on democratisation and elections. The paper highlights some of the major features of the Afghan case that provided a backdrop for the 2014 election: a deeply divided society, a highly militarised and invasive international presence, and a history of flawed elections. This discussion helps contextualise the seemingly technical questions about constitutional design, electoral systems and the organisation and monitoring of elections. It is argued that the pursuit of elections and democratisation efforts more broadly, in a context of growing insecurity and political fragmentation, have had unintended and perverse effects. The concluding section sets out the main themes of the individual contributions that follow.

Constitutions Unentrenched: Toward an Alternative Theory of Constitutional Design

T his article highlights a gap between a great deal of constitutional theory and a great deal of the practice of democratic constitution-making. Drawing on data from democratic national and state constitutions, we challenge the consensus among constitutional theorists that a central purpose of constitutionalism is the entrenchment (the fortification against future change) of broad principles. The empirical reality is that the majority of democratic constitutions today are subject to frequent revision, and are therefore ill-equipped to facilitate the entrenchment of their contents. To explore the logic of these unentrenched documents, we identify the historical periods in which different geographic regions moved away from highly entrenched constitutions, and we examine the political contexts of these transformations. We find that, in each context, constitution-makers were attempting to limit the discretion of constitutional interpreters and implementers by drafting highly specific texts and by updating them in response to continually changing circumstances.

‘Persistent Centrism’ and Its Explanations

Susanne Rudolph and Lloyd Rudolph believed that ‘situated knowledge’ could be realized through area studies, which they argued was consonant with epistemic pluralism and comparative generalization. Their writings reflect a critical relationship with their field as well as the American Political Science academia particularly in the way they envisaged area studies of ‘a different kind’. The Rudolphs proposed that the Indian state and political process could be comprehended through analytical categories ‘adapted’ to capture its particularity. They found ‘a persistent centrism’ to be the most striking feature of Indian politics with the Indian National Congress crucial to the arrival at ‘centrism’. In their later writings, the Rudolphs addressed the contests that emerged in the domain of the state, particularly in the context of the diminished ‘interventionist state’, grappling with contests over political power, the institutional matrix of the state and constitutional design.

Amendment and Revision in the Unmaking of Constitutions

The distinction between amendment and revision is foundational to our present understanding of formal constitutional change. Scholars have suggested how to differentiate amendment from revision, constitutional designers have entrenched distinct procedures for each, and judges have applied both of these concepts to actual cases and controversies. Yet even at its best the distinction is unclear and it raises more questions than it offers answers. My purpose in this invited contribution to the Edward Elgar Handbook on Comparative Constitution-Making is to clarify the distinction between amendment and revision from a perspective internal to the scholarship on constitutional change. I suggest with reference to jurisdictions as varied as Belize, Canada the Czech Republic and India that an amendment should be understood as an effort to continue the constitution-making project that began at the founding moment, while a revision should be understood as an effort to unmake the constitution by introducing an extraordinary change that is inconsistent with the fundamental presuppositions of the constitution. I conclude by suggesting that our reinterpretation of the distinction between amendment and revision nonetheless remains susceptible to exploitation.

Staying Agency Rules: Constitutional Structure and Rule of Law in the Administrative State

Today, administrative rules are far more numerous than the laws enacted by Congress, cover far more pages in the relevant legal codes, account for far more regulatory commands, and have profound effects on American economy and society. Although administrative rules can provide substantial public benefit, legal constraints on the scope of administrative authority and on the processes by which it is employed provide critical protections. Courts, when asked, can review the legality of these rules; courts also can stay rules’ effectiveness pending review, both preserving the status quo and reducing costs entailed by rules of questionable legality. Holding rules in abeyance until they can be reviewed frequently is the best — and at times the only — vehicle for guaranteeing a meaningful review. Given the vast reach of federal administrative regulation, the concentrated impact regulations often have on specific individuals and entities, and the frequent experience that staying rules’ effect is critical to limiting administrative adventurism and avoiding irreparable harm, canons of deference to both administrative and judicial discretion should be revisited. Greater attention to the harm from failure to stay questionable rules can protect rule-of-law values, preserve liberties that were central to our constitutional design, and provide space for serious evaluation of the rules’ consistency with law.

Constitutional Design Without Constitutional Moments: Lessons from Religiously Divided Societies

High stakes constitution-writing exercises have burst into the headlines in recent years from Iraq and Afghanistan to Egypt and Tunisia. In some cases, heated debates have given way to conflict and even violence as transitioning societies struggle to resolve fundamental conflicts over identity. The challenges of constitution-making are more acute in societies that are marked by deep religious divisions, as is the case in many Muslim-majority countries that are currently undergoing political transitions. In this Article, we examine a distinctive feature of the current wave of new constitutional exercises: the challenge of constitution-drafting under conditions of deep disagreement over the state’s religious or secular identity.The Article offers three major contributions. First, we provide a detailed qualitative examination and comparison of constitution-making in the seven relatively understudied cases of Egypt, Indonesia, India, Israel, Lebanon, Tunisia and Turkey. Second, our examination of these cases informs a critical assessment of some common assumptions in the literature that are drawn from well-studied, Western cases of constitution-drafting like those of the United States and France. We argue that an understanding of constitution-drafting as higher-order law-making that is designed to resolve questions of identity and entrench a foundational definition of “we the people” is inapposite at best and, at worst, may exacerbate conflict in religiously-divided countries. Thirdly, we develop a framework that expands the range of constitution-drafting tools and strategies discussed in the comparative law literature by identifying novel design features drawn from the qualitative cases and their potential merits.

We start from here

As James Buchanan often asserted, in constitutional design “we start from here” which is to say we design a constitution to fit the institutions, social practices and so forth that we already have. Comparison of the complicated case of the US constitution and the failed attempt at constitutionalism in contemporary Egypt suggest that many societies are not yet ready for serious constitutional design. The English civil wars were about religion; the US constitution ignores religion and thereby avoids the grim conflict of church and state.

Legitimacy of Taiwan’s trade negotiations with China

The article analyzes Taiwan’s legitimacy debate over trade negotiations with China. The theoretical concept of legitimacy is used to assess Taiwan’s cross-straits negotiation mechanism and trade agreements. This article argues that Taiwan’s current legal framework governing congressional supervision of cross-straits agreements falls short of procedural legitimacy and performance legitimacy. By explaining the constitutional design for Taiwan’s “white glove” mechanism, the article explores the initial procedural legitimacy deficit. As cross-straits negotiations involve increasingly substantive obligations, the legitimacy of bilateral agreements has changed fundamentally. The massive protest of the Sunflower Movement due to the Services Trade Agreement reinforced legitimacy concerns. Taiwan’s ambiguous congressional review procedures and negative public perception undermine the performance legitimacy of cross-straits agreements. Notwithstanding the conclusion of free trade agreements with Singapore and New Zealand, Taiwan’s domestic political impasse will jeopardize its efforts to integrate into regional free trade agreements. Hence, the legitimacy of Taiwan’s law and politics regarding cross-straits negotiations will have a profound impact on its cross-straits and foreign trade policies.

Recent debates and advances in the scholarly examination of presidential institutions

Research on presidents and presidential institutions has never been out of date. However, presidents in semi-presidential and parliamentary systems have attracted even more attention from scholars in the last decade. Furthermore, presidential institutions, executive-legislative relations and inner-executive relationships between president and government are important topics in most countries’ constitutional discourses. Their importance and thus their popularity make presidential institutions and relating questions no less disputed among scholars. Nevertheless, its importance stems largely from the role presidential institutions play in countries’ democratic development, the efficiency of governance, but also the simple fascination for presidential leadership. In this article, I will show that, despite the variety of approaches and topics, a common pattern emerges – namely, the shared emphasis by scholars of presidential institutions on the importance of the variety of constitutional design. The aim of this contribution is to review recent scholarship on presidential institutions in semi-presidential and parliamentary democracies, map existing trends, in particular present the common topic of constitutional design, and propose further research directions for a field where the standards are already immensely high.

The Constitutional Law of Agenda Control

Constitutional scholarship is preoccupied with questions of how state power should be constrained. The Constitution, however, not only sets bounds to state action, it also structures the range of policy options and the rules for making legally effective choices. This Article analyzes the ensuing constitutional law of agenda control, focusing on the distribution of such powers between the three federal branches. This analysis generates two central claims. First, the Framers incorporated an array of heterogeneous agenda control devices across the three branches in order to calibrate intragovernmental relations. These make up a hitherto ignored constitutional law of agenda control. Second, a surprising number of these constitutional agenda-setting rules have been ignored or even circumvented. Political actors have tended to negotiate alternate distributions of agenda control power at odds with the original constitutional design. While the ensuing transformation of the constitutional processes for governance has ambiguous distributive consequences, there is reason to treat the historical transformation of constitutional agenda control as on balance a desirable development. * Professor of law, University of Chicago Law School. Thanks to Kent Barnett, Saul Levmore, and Nick Stephanopoulos for helpful conversations and comments. All errors are mine alone.

Nullifying Settler Democracy: William Apess and the Paradox of Settler Sovereignty

This essay examines the concept of “Indian nullification” in the political writings of William Apess by situating his defense of native self-determination in the context of debates about the legitimacy of nullification in U.S. constitutionalism. It illustrates how Indian nullification operates, not as a feature of constitutional design asserting minority rights over the tyranny of the majority, but rather as a rhetorical form of political contestation exposing the constitutive exclusions of American settler democracy. Apess illuminates how constitutional ideals of popular sovereignty cohere around regimes of settler colonialism and indigenous dispossession, highlighting the paradox of settler sovereignty that provides the basis for American democracy. Indian nullification is not a simple demand that the boundaries of liberal citizenship be expanded to include Indians. It is a way of narrating and rhetorically representing the forms of settler conquest that establish the material and conceptual foundation of popular self-rule for white settlers.

Delegation Reconsidered: A Delegation Doctrine for the Modern Administrative State

The delegation doctrine — holding that legislative authority cannot be ceded to executive or judicial officers — long has been accepted as a common-sense statement of the proposition that the constitutional design of separated powers for more than a century. Yet despite its broad acceptance as a doctrine that is consistent with the structure and text of the Constitution, it effectively is treated as simply a notional, not a realistic, constraint. Recent opinions from Justices Samuel Alito and Clarence Thomas, however, pointedly expressed concern about legislated grants of expansive authority to make rules regulating private conduct. These opinions provide an occasion for reexamining how much the Constitution’s division of and limitations on power traditionally assumed to be “legislative” can and should be judicially enforceable.If the constitutional structure is to be preserved, an enforceable delegation doctrine is needed, but the current doctrine — which turns on the scope of a legislative assignment of authority — will not work. Focusing instead first and foremost on the nature of the authority granted and its connection to the constitutional competence of the officials or bodies authorized to exercise discretionary power can provide a path to reinvigorating separation of powers protections.

Economic Policy Coordination as a Game Involving Economic Stability and National Sovereignty

The economic crisis has paved the way for reconsideration of the Eurozone's constitutional design. This paper shows that what may seem as a massive empowerment of European institutions at the cost of national economic sovereignty in actual constitutional practice has left economic policy coordination largely unchanged. By means of conceptualising its previous and current patterns as a game between supranational and national institutions, it is shown that the scale of change has been widely exaggerated. The new Eurozone design has mitigated in practice the extent to which national economic sovereignty has been undermined, but only at the cost of shifting to the European Central Bank the burden of shoring up the stability of the common currency; such burden the ECB is bound to prove unable to sustain in the long run.

Debunking Humphrey's Executor

The Supreme Court’s 1935 Humphrey’s Executor decision paved the way for the modern administrative state by holding that Congress could constitutionally limit the President’s powers to remove heads of regulatory agencies. The Court articulated a quartet of features of the Federal Trade Commission’s statutory design that ostensibly justified the Commission’s constitutional independence. It was to be non-partisan and a-political, uniquely expert, and performing quasi-legislative and quasi-judicial, rather than executive, functions. In recent years, the staying power of Humphrey’s Executor has been called into question as a matter of constitutional design. This article reconsiders Humphrey’s Executor from a different angle. At the end of a one hundred years natural experiment, the Commission bears almost no resemblance to the Progressive-technocratic vision articulated by the Court. The Commission is not politically independent, uniquely expert, or principally legislative or adjudicative. Rather, it is essentially a law enforcement agency beholden to the will of Congress. This finding has potentially important implications for agency design, constitutional doctrine and theory, and understanding of agency functioning.

The Principle of Legality and a Common Law Bill of Rights - Clear Statement Rules Head Down Under

This article traces the evolution in Australia of fundamental rights protection provided by the courts. It is a fascinating and controversial story that at its most critical moments was (and continues to be) informed by American constitutional law design and statutory interpretation principles. On one level that is no surprise when ‘it may be said that, roughly speaking, the Australian Constitution is a redraft of the American Constitution of 1787 with modifications found suitable for the more characteristic British institutions and for Australian conditions.’ But what is extraordinary is that the decision of the framers of the Australian Constitution to consciously reject American notions of formal rights guarantees has not, ultimately, been decisive in this regard. As Sir Anthony Mason - one of the leading figures central to the new judicial rights consciousness in Australia - noted, portentously, in 1995 ‘[j]ust as the courts can protect common law rights by applying presumptive rules of construction, so they can protect fundamental rights, even in the absence of constitutional entrenchment and statutory backing.’ And so it has proven to be. The Australian High Court has transformed an old interpretive canon (with American roots) into a strong Australian species of clear statement rule for fundamental rights called the principle of legality. It has done so to fill the lacuna in formal rights protection in Australia and to temper (if not outright resist) increasingly common legislative attempts to eradicate fundamental rights. The Court has used the application of the principle of legality to construct (and robustly protect from legislative encroachment) a quasi-constitutional common law bill of rights. In order to normatively justify these developments the High Court has turned towards the inherently contested principles of the Australian Constitution to anchor the principle of legality and the interpretive process more generally. This has, controversially, occurred as part of a foundational shift in judicial doctrine and practice that considers legislative intention to be the product not the lodestar of statutory interpretation.