Constitutional Constraints Research Articles

Public Good Provision with Constitutional Constraint

This paper studies the public good provision problem, in which the principal faces a constitutional constraint in the sense that in order for a public good provision mechanism to be implemented, it must first be approved by agents under a prespecified voting rule. We find that as long as the voting rule is not the unanimity rule, the principal can propose a mechanism such that first-best efficiency of provision of the public good is achieved. We also consider various constraints, such as prohibition of discriminatory mechanisms or the existence of interest groups and vote buying, which may prevent the proper functioning of the mechanism we propose. We discuss the optimal voting rule in such situations.

PUBLIC GOOD PROVISION WITH CONSTITUTIONAL CONSTRAINT

AbstractThis article studies the public good provision problem, in which the principal faces a constitutional constraint in the sense that in order for a public good provision mechanism to be implemented, it must first be approved by agents under a prespecified voting rule. I find that as long as the voting rule is not the unanimity rule, the principal can propose a mechanism such that first‐best efficiency of provision of the public good is achieved. I also consider various constraints, such as prohibition of discriminatory mechanisms and the existence of vote buying, and discuss optimal voting rules in these situations.

‘The Beast Below’: Doctor Who and the popular negotiation of constitutional values

Abstract The Doctor’s adventures frequently see him explore worlds with problems that are not dissimilar to those facing contemporary society. As a result, Doctor Who (1963–89, 1996, 2005–present) often provides and invites political critique. In contrast, relatively little attention has been paid to how the programme provides and invites legal discussion, even though the law is rarely absent from the Doctor’s adventures. This article seeks to close this gap by examining the constitutional law message contained within the 2010 episode ‘The Beast Below’. In this episode, the Doctor and Amy Pond must solve a dilemma which involves secretive and state-sponsored torture; this evokes broader constitutional law debates around the roles of law and politics in securing and enforcing human rights. By showing the limits of the Doctor’s interventions, the episode casts doubt on the appropriateness of the judiciary in establishing the scope of human rights. It endorses a political model of constitutionalism directing that citizens must play an active role in the contestation of executive power, so that constitutional constraints are ultimately negotiated and articulated by the public rather than by elites. By offering this reading, it is hoped that Doctor Who, and science fiction television more widely, can be appreciated as a constitutional text and a forum for constitutional discussion.

Devolution and federalism in England

This paper is concerned with current moves toward sub-national devolution in England and the prospects for a federal government system within the United Kingdom as a whole. The initial focus of the paper is upon the contested nature and governance of regions in England. Current steps toward devolution to such regions are considered through a critical lens, before moving to a wider discussion of the theory and practice of federalism and of whether England could be part of a federal system of UK government. It is concluded that the devolution agenda may proceed in a more serious and consistent manner than at present but there are severe barriers to federalism, including major constitutional constraints, the lack of a written constitution, significant asymmetry between different nations of the UK, the lack of clarity about the definition of sub-national English regions and the lack of political will. These all render a true UK federal state impossible to envisage.

Why do governments call a state of emergency? On the determinants of using emergency constitutions

States of emergency do not only imply a significant change in the balance of powers between the three branches of government, they are also very frequently declared: between 1985 and 2014, at least 137 countries were subject to at least one such event. This contribution is the first to systematically inquire into the factors determining such declarations. We find that constitutions matter and that descriptive statistics indicate that countries without constitutionalized emergency provisions declare states of emergency significantly more often than countries with such provisions. Further analysis shows that it is crucial to distinguish between states of emergency declared as a consequence of a natural disaster from those declared as a consequence of political turmoil. Distinguishing between the costs of declaring an emergency and its benefits, we find that the less costly it is to declare an emergency, the more emergencies will be called on the grounds of natural disasters but not on the grounds of political turmoil. This is, hence, more evidence that constitutions matter. Finally, emergencies based on political turmoil are more likely to be declared if an economic crisis is hitting the country, large natural disasters are more likely to lead to an SOE when more powers are allocated to the legislature, and results suggest that even military coup governments are subject to constitutional constraints.

State Action and the Constitution's Middle Band

On conventional accounts, the state action doctrine is dichotomous. When the government acts, constitutional limits take hold and the government action is invalid if those limits are exceeded. When the government fails to act, the state action doctrine leaves decisions to individuals, who are permitted to violate what would otherwise be constitutional constraints. It turns out though that the modern state action doctrine creates three rather than two domains. There is indeed a private, inner band where there is thought to be insufficient government action to trigger constitutional constraints, but often there is also a public, outer band where there is too much state action for the Constitution to apply. The Constitution takes hold only in a middle band—the Goldilocks band—sandwiched between these two domains. For constitutional limitations to have force, the government must act just enough—but not too much. This Article’s first aim is to identify and describe this puzzling structure. It also examines a variety of doctrinal principles that produce and, perhaps, justify the state action doctrine’s three bands. The Article then argues that these seemingly disparate principles are all related to the special constitutional problems produced by the emergence of the middle band of government regulation. Finally, the Article concludes with some brief speculation about whether the modern tripartite structure can survive.

The Eurosystem and the Single Supervisory Mechanism: Institutional Continuity Under Constitutional Constraints

This paper analyses regulatory solutions that have been adopted to address constitutional constraints imposed on the functioning of the Single Supervisory Mechanism (SSM), in which the ECB’s exclusive supervisory competence is carried out. It argues that the operational framework governing the functioning of the SSM has assimilated, to a certain extent, three specific regulatory solutions underpinning the workings of the ESCB/Eurosystem: 1) the (legislative) allocation of certain tasks and responsibilities between ECB internal administrative bodies and structures; 2) the possibility of internal delegation of decision-making powers; and 3) the decentralised exercise of certain of the Union’s tasks. Such a design of the SSM reflects institutional continuity concerning a political choice on how to achieve stage one of a genuine Economic and Monetary Union. It concludes that the Union operates at its best when centralised decision-making on substantial policy issues is combined with a decentralised operational framework allowing for the meaningful involvement of national administrations in the exercise of Union exclusive competences. JEL Classification: K10, K40

Burma: Suu Kyi's Missteps

Following the victory of the National League for Democracy (NLD) in November 2015 elections, many vested their hopes in the NLD's leader, Nobel Peace Prize–laureate Aung San Suu Kyi, whom they saw as a force that would propel Burma toward democratic transition. Constitutional constraints have severely limited Suu Kyi's power to transform Burma's political life, with the military continuing to be the most politically influential institution. Even given these limitations, however, Suu Kyi has thus far disappointed her supporters at home and especially abroad. Economic reforms have come slowly, democratic standards have slipped, and Suu Kyi and her government have faced international condemnation for their treatment of the Rohingya Muslim minority.

Elections and Constitutional Constraints: How the Generals Have Stayed in Power in Myanmar

Elections and Constitutional Constraints: How the Generals Have Stayed in Power in Myanmar

Repúblicas bolivarianas e o ICSID: será que o inimigo não é outro?

Latin American countries, mainly the so called Bolivarian Republics, lead a reaction against the international system of promotion and protection of foreign investments. Their reaction's focus is the ICSID, which is regarded as a non-democratic and pro-investor institution that issues awards against developing and peripheral states. This article puts that political perception in perspective through the analisys of the lagal structure of the international tandem between ICSID and investment treaties, and the effective arbitration cases against Bolivia, Ecuador and Venezuela, as well as a brief study on regional alternatives and constitutional constraints.

Japan’s strategic interests in the South China Sea: beyond the horizon?

ABSTRACTJapan has a national interest in the South China Sea issue. Although its direct commitment is ultimately limited in a material sense due to a lack of military capabilities, as well as political and constitutional constraints on the Self-Defense Force, Japan has maintained its firm stance to uphold international maritime rules and norms, and nurtured strong diplomatic relations and conducted maritime capacity-building programs with the South-East Asian states, as well as the Association of Southeast Asian Nations. These actions contribute to consolidating the rule of law at sea and provide those claimant states an opportunity to withstand pressures from China. Given the Trump administration’s unclear South China Sea policy and South-East Asia’s strategic uncertainty, Japan is becoming a key player in maintaining regional maritime stability in East Asia through diplomacy.

Democracy Before, In, and After Schumpeter

ABSTRACTThe classical model of democracy that Schumpeter criticizes is manufactured out of a variety of earlier ideas, not those of any one thinker or even one school of thought. His critique of the central ideals by which he defines the model—those of the common will and the common good—remains persuasive. People’s preferences are too messy and too manipulable to allow us to think that mass democracy can promote those ideals, as he defines them. Should we endorse his purely electoral model of democracy, then, and accept that people do not exercise any control over government? Not necessarily. We can expand democracy to include the constitutional and contestatory constraints that people impose on their rulers. We may hope that people can rely on such democratic controls to ensure that government operates by community standards.

Financial Crises and Constitutional Compromise

Constitutional constraints are often designed with crisis in mind: Framers wish to constrain the exercise of power precisely in those circumstances in which policymakers will be tempted to take actions that may violate underlying normative commitments. These constraints are only as strong as the willingness and ability of courts to enforce them though; and because judges care about both themselves and policy outcomes, they are sometimes less than willing to enforce constitutional constraints. Existing scholarship has explored this phenomenon, focusing primarily on the possibility that the weakness of courts may prevent them from effectively policing constitutional boundaries in the face of governments determined to deal with a crisis. We suggest that such strategic judicial retreat may also result from judicial strength. In times of crisis, courts that command significant authority, and are likely to garner compliance with their rulings, confront a quandary that weaker courts can escape: The enforcement of constitutional boundaries may prevent an effective governmental response to a crisis. If judges are sufficiently concerned about the practical consequences of hamstringing a government under these circumstances, they may engage in judicial self-censoring not because they are weak, but because they are strong.

A proposal for a more objective measure of de facto constitutional constraints

Abstract In this paper we propose two new indicators of de facto constitutional constraints. The indicators are based on the presence or the absence of easily observable political events. This makes the proposed measures relatively objective and easy to verify relative to the most widely used indicators of de jure and de facto constitutions. This paper describes the indicators and demonstrates their usefulness for research on economic development.

State Action and the Constitution's Middle Band

On conventional accounts, the state action doctrine is dichotomous. When the government acts, constitutional limits take hold and the government action is invalid if those limits are exceeded. When the government fails to act, the state action doctrine leaves decisions to individuals, who are permitted to violate what would otherwise be constitutional constraints. It turns out though that the modern state action doctrine creates three rather than two domains. There is indeed a private, inner band where there is thought to be insufficient government action to trigger constitutional constraints, but often there is also a public, outer band where there is too much state action for the Constitution to apply. The Constitution takes hold only in a middle band—the Goldilocks band—sandwiched between these two domains. For constitutional limitations to have force, the government must act just enough—but not too much. This Article’s first aim is to identify and describe this puzzling structure. It also examines a variety of doctrinal principles that produce and, perhaps, justify the state action doctrine’s three bands. The Article then argues that these seemingly disparate principles are all related to the special constitutional problems produced by the emergence of the middle band of government regulation. Finally, the Article concludes with some brief speculation about whether the modern tripartite structure can survive.

Bifurcation of Health Policy Regimes: A Study of Sleep Apnea Care and Benefits Coverage in Saskatchewan.

Background:A complex, poorly understood bifurcated health policy regime exists for Canada's First Nations people for extended health benefits coverage. This research adds to a small body of literature on the regime's impact on access and quality of care and its role in perpetuating health inequities in First Nations populations.Methods:Using a case study of sleep apnea care in Saskatchewan, we identified issues of health service access and coverage through a literature review of extended benefits programs, legislation and policies and through 10 key informant interviews with federal and provincial extended benefit program administrators and sleep medicine physicians.Results:Important access and coverage differences were found for First Nations populations, many of which were recognized by federal and provincial policy makers. Despite these, government respondents recommended few policy ameliorations, perhaps due to system complexities, constitutional constraints or political sensitivities.Conclusions:We suggest three policy options to ameliorate current hardships wrought by this policy bifurcation.

Brexit and Article 50 TEU: A constitutionalist reading

This article considers the constitutional requirements and implications of Article 50 TEU for the EU. It argues that it is essential to read Article 50 in light of the features of the Treaty of which it forms part together with its drafting context, that of the Convention on the Future of Europe, as well as the substantive protections of EU constitutional law. The article demonstrates that important constitutional constraints are in place in EU law, which can affect the most significant debates in the withdrawal process, namely: the manner in which notification to withdraw from the Union is given; the revocability of a decision to withdraw; and the legal basis and content of the withdrawal agreement. Most importantly, a reading of Article 50 informed by key constitutional features of the EU legal order stipulates clear duties for the EU to respect the UK’s constitutional requirements and to protect, in any eventual agreement, acquired rights for EU citizens in the UK and UK citizens in the EU, by emphasizing the illegality of a non-compliant withdrawal agreement from the EU perspective.

Is India’s federalism a threat to its WTO obligations? Through the prism of Article 253

ABSTRACTIndia’s unique federal structure creates a Constitutional conundrum with regard to compliance of India’s obligations under international treaties, specifically India’s obligations at the World Trade Organization (WTO). This paper seeks to address this quandary of compliance through a triumvirate of perspectives, viz. first, a state (i.e. sub-federal) government’s policy on subjects falling within its exclusive legislative domain potentially falling foul of the union (i.e. the federal) government’s WTO obligations; secondly, the possibility of availing internal Constitutional constraints as a defence against breach of WTO obligations; and lastly, the applicability of the doctrine of repugnance to resolve any potential conflict as identified in the first point. The authors analyse judicial pronouncements of Indian Courts as well as international adjudicatory bodies, for shedding light on these issues. The paper concludes with the authors making humble suggestions for arriving at a workable solution.

Demystifying Direct Democracy

Referendums have been portrayed as a favorite tool of populists and autocratic leaders. The empirical evidence, however, does not support this reading. The total number of plebiscites in dictatorships has fallen. Well-functioning constitutional constraints, rather than populist agitation, have been the driving forces behind many referendums in democracies. Further, where populist leaders have pushed for referendums, the resulting votes have not generally gone in their favor. The referendum has generally been a mechanism for strengthening democracy, a people’s shield even when governments have attempted to wield it as a sword.

Introduction: Confucian Perfectionism’s Wary Embrace of Democracy

Introduction: Confucian Perfectionism’s Wary Embrace of Democracy Yvonne Chiu (bio) With the stunning spread of democracy over large swathes of the globe since 1975 seemingly coming to a halt and perhaps receding in recent years, it is now a fitting time to revisit the question of whether democracy is really compatible with all types of cultures and philosophies, particularly those from Asia, where nearly two-thirds of the world’s population lives. Joseph Chan’s Confucian Perfectionism: A Political Philosophy for Modern Times (Princeton University Press, 2014) tackles an enormously important project by reconstructing Confucianism in order to meld it with democracy in a mutually advantageous marriage. Among the many reasons that democracy has become popular as a form of governance is that it can address the dangerous problem of the lack of accountability—the historical record is quite clear about what happens when rulers, even those who are wise and well-meaning, are unconstrained. This, unfortunately, is a problem that Confucianism shares. On the other hand, Confucianism can bring to the table not just virtues in general, but particular virtues that are often sadly lacking and sorely needed in democratic politics such as civility, benevolence, integrity, knowledge, and honesty. The democracy literature focuses heavily on institutions, but just as virtue alone cannot bring about justice, neither can institutions. There are always ways to get around the rules; as a result, diverse, prosperous, safe, and stable democracies need a population that has a host of potentially contradictory virtues, including patience, obedience, civility, industriousness, empathy, self-restraint, self-sacrifice, and a certain kind of nationalism, but also independence and a willingness to resist tyranny.1 The presence or absence of such virtues will make a difference in how the democratic system operates. For example, the recent mass protests in 2014 of the Sunflower and Umbrella movements in Taiwan and Hong Kong, respectively, intrigued locals, neighbors, and older Western democracies with their civility, and observers took note of how such civility could confer greater legitimacy and enhance the citizens’ voices. Given the struggle that many contemporary democracies have with in-civility, which has affected the smooth functioning of their governments and raised questions about the long-term viability of extensive public political participation, the democratic practices embedded in Confucian cultures may be able to point toward some answers. [End Page 1] Clearly, Confucianism and democracy are compatible in practice, insofar as “compatible” means that democracy can be successful in societies heavily influenced by Confucian culture, for example Taiwan, South Korea, and Japan. There are competing visions of modern Confucianism within East Asia, however, including that of the largest and potentially most powerful country within it, which offers a rather idiosyncratic conception of both democracy and Confucianism that in reality is not quite either, but who lays claim to the superiority of its peculiar conception of both on the grounds that it has managed to sidestep the pitfalls of electoral democracy through its particular form of “meritocracy.” This is an understandably seductive, yet potentially perilous, narrative, and in this context it is especially important to ask hard questions about what both democracy and Confucianism should mean in the modern world and what they can be together. Joseph Chan’s Confucian Perfectionism starts by confronting enormous fundamental questions concerning ideal and non-ideal theory, the foundations of political authority, and the legitimacy of constitutional constraints, then delves into the difficult details about actually how to mix Confucianism and democracy, ambitiously addressing both virtues and institutions and how they should interact with and reinforce each other. He then moves on to challenge the popular philosophical justifications that liberals offer for democracy (e.g., human rights and moral and personal autonomy), and tries to reground democracy in Confucian terms. It is a delicate negotiation, and he ends by talking about one of the major preoccupations of modern democracies: the question of distributive justice and social welfare. This is especially relevant given that both Western and Asian democracies are re-examining their respective welfare models, and even still-developing democracies are being forced to address this question at early stages. Confucian Perfectionism is an incredibly wide-ranging, ambitious, and thought-provoking work, and the articles that...