The Swedish Constitution and Social Democratic Power: Measuring the Mechanical Effect of a Political Institution

Recent discussions of Swedish political change have focused on the decline of Social Democratic 'hegemony' and on the end of the 'Swedish model'. In contrast to preference– or interest –driven explanations for these developments, this paper investigates the impact of constitutional changes made in 1969 in Sweden, which included the elimination of the Upper House or First Chamber of the Swedish parliament and the introduction of a more directly proportional electoral system. Using a simulation model, the actual electoral results from 1969 through 1994 were plugged into the formulas set forth by the old constitutional rules, in order to generate the number of parliamentary seats each party would have received under the old system. This simulation shows that the Social Democratic Party would have received a significantly larger share of parliamentary seats under the old constitutional rules than under the current constitution. Thus one can conclude that the new constitution decreased Social Democratic power in Sweden.     

Bagehot Smiling: Gordon Brown's ‘New Constitution’ and the Revolution that Did Not Happen

The MPs expenses scandal that erupted in May 2009 has certainly rekindled interest in the next stage of constitutional reform and democratic renewal in Britain. This article examines how Gordon Brown's tenure as Prime Minister has differed from Tony Blair's in relation to the ‘new politics’ narrative. It argues that despite his long‐term personal commitment to major constitutional reforms, the role of crises in recalibrating the political opportunity structure and the manner in which electoral incentives can alter elite attitudes to institutional change that Brown's tenure can be characterised by optimism followed by timidity. Gordon Brown may have flown a few kites in relation to a written constitution, electoral reform, English devolution and the future of the House of Lords but he has left things far too late for a ‘constitutional moment’. Brown may have the political inclination but he lacks the capacity to deliver far‐reaching reform; Cameron is likely to have the capacity but not the inclination.     

‘I,the people’: a deflationary interpretation of populism,Trump and the United States constitution

This paper advances a deflationary interpretation of populism, Donald Trump and the United States Constitution. It accepts that Trump utilizes a populist pose but rejects populism as too reductive for understanding his ascension and constitutional challenge. First, it argues that, although he merits the designation, Trump reveals more about populism than populism does about him. Trump illustrates populism’s conceptual elasticity, but employing it as a frame to understand him imposes coherence upon a figure whose monetized politics are chaotic, shallow and unanchored by principle. Second, populism provides a necessary but insufficient condition for critically explaining Trump’s ascension, either in terms of electoral populism or populism in power. Third, while democratic deconsolidation under Trump’s presidency cannot be discounted, the Constitution remains resilient in most important respects. A dispassionate constitutional sociology counsels a deflationary understanding rather than an uncritical alarmism that too frequently reproduces and reinforces the darker aspects of Trump’s populist political logic.     

From Street-Level to System-Level Bureaucracies: How Information and Communication Technology is Transforming Administrative Discretion and Constitutional Control

The use of information and communication technology (ICT) is rapidly changing the structure of a number of large, executive public agencies. They used to be machine bureaucracies in which street‐level officials exercised ample administrative discretion in dealing with individual clients. In some realms, the street‐level bureaucrats have vanished. Instead of street‐level bureaucracies, they have become system‐level bureaucracies. System analysts and software designers are the key actors in these executive agencies. This article explores the implications of this transformation from the perspective of the constitutional state. Thanks to ICT, the implementation of the law has virtually been perfected. However, some new issues rise: What about the discretionary power of the system‐level bureaucrats? How can we guarantee due process and fairness in difficult cases? The article ends with several institutional innovations that may help to embed these system‐level bureaucracies in the constitutional state.     

Friedrich Christoph Dahlmann und die „gute“ Verfassung

The primary focus of the historian and political scientist Friedrich Christoph Dahlmann (1785–1860) was the importance of constitution. Dahlmann perceived the concept of constitution not as a written legal document but rather, following the thinking of Aristotle, as the good order of a political community. This constitutional concept was Dahlmann’s guide in dealing with three particular political challenges: the quest for Schleswig-Holstein’s unity with the German nation, his leadership in the protest of seven Göttingen professors against the constitutional coup of the new king of Hanover in 1837, and his contribution to the German Constitution of 1849. Dahlmann’s main legacy is the importance of integrating constitutional topics into today’s research and teaching of politics and polity.     

Back to the Future? Warnings from History for a Future UK Constitutional Convention

Amid the fallout from the Scottish independence referendum, a UK constitutional convention has been proposed as a mechanism to take stock not only of the referendum, but also of the past fifteen years of devolution. However, despite longstanding conceptions of British constitutional development, a constitutional convention would not herald a brave new world for the UK's constitution. As the article highlights, in the past hundred years there have been two attempts to treat the territorial constitution in the round: the Speaker's Conference on Devolution, 1919–1920 and the Royal Commission on the Constitution, 1969–1973. This article examines both of these forums, arguing that they provide clear warnings for a future UK constitutional convention, in particular the threat of internal division that any such forum risks facing. A danger that this article highlights is heightened by the associated difficulty of reaching agreement across the UK's ‘state of unions’.     

中央权威的宪政之道

中央权威是指中央权力在国家权力结构中所享有的独占性威望和最高强制力。中央权威的宪政之道是对国家法治战略之中央权力宪法安排的解读。社会主义法治意识形态是我国宪法精神的集中表达,是央地权力共同的价值基础和信仰支撑;从政策治国向依法治国转变是宪法之依法治国战略的基本要求,它为中央权威提供了更具连续性和公正性的合法性基础;落实全国人大及其常委会的最高监督权和加强中央司法权威的控制力,是宪法国家权力结构的内在需求,也是加强中央权威的根本宪政途径;宪法意义上的地方分权是地方权力对中央权威的一种回应性诉求,也是宪政权力纵向配置的一种内在机理。     

Electoral engineering in Chile: the electoral system and limited democracy

On the eve of Chile's transition from military to elected government, the outgoing regime enacted an electoral engineering project intended to conserve the constitutional order it encoded in 1980. An analysis of 1989 and 1993 general elections shows that the way votes are translated into seats favors, as intended, the second largest electoral block, the Chilean Right. This bias, along with the number of appointed senators and the special majorities required for constitutional amendments, gives the Right a minority veto power on any reform initiative. Moreover, the electoral system produces incentives for parties, candidates and voters that enhances this balance of power. The role that the electoral system plays in Chile therefore consolidates a limited form of democracy, rather than a liberal one.     

Incumbents' Interests and Gender Quotas

The introduction of mandatory gender quotas in party lists is a reform that many countries have recently adopted or have been considering. The electoral system affects the incumbents' incentives to make such reforms, their details, and their effectiveness. We show that male incumbents can actually expect an increased incumbency advantage when gender quotas are introduced, if they are elected through single‐member district majority rule. On the other hand, no expectation of male advantage can reduce the incumbents' fear of being replaced if they are elected through closed‐list proportional representation. As France has both electoral systems, we validate the above argument using a formal model of constitutional design as well as an empirical analysis of the legislative elections in France, displaying the existence of male bias in the last three elections. We also show that parity may have Assembly composition effects and policy effects that vary with the electoral system.     

Accounting for the survival of minority governments: An examination of the French case, 1988–1991

This article examines the post‐electoral conditions under which minority governments operate. It is argued that a minority government will remain in office for so long as it enjoys the support of either a commitment to relations, to behaviour, or to outcomes. If no such commitments are forthcoming, then it will only continue to survive if there is a specific constitutional device upon which it can rely. This hypothesis is tested upon the situation in France during 1988–91. Here, Michel Rocard's minority government survived because it enjoyed a commitment to outcomes. On the occasions when this commitment was absent, the government resorted to the use of Article 49–3 of the Constitution in order to remain in office.     

The Constitution and Accountability for Public Functions

In review of judicial interpretation of the United States Constitution set against the current reality of American governance, the authors conclude that traditional separation of powers doctrines hold few constraints for delegation of "public functions" beyond the boundaries of the three branches. As the result of constitutional permissiveness, the legislative and executive departments have increasingly lost out (or abdicated) to private and quasi-governmental institutions to conduct core government functions. Public accountability has been lost in this exchange. At a time of revolutionary change across Eastern Europe and elsewhere, when newly forming governments look to the United States for structural models, they are unlikely to be informed about the functional reality of American governance by either the written constitution or doctrines articulating the constitution.     

Departmental elections and the changing landscape of French politics

The departmental elections of March 2015 redrew the French political landscape, setting the new terms of electoral competition in advance of the regional elections of December 2015 and, more critically, the presidential election of April–May 2017. These elections saw the far-right National Front (FN) come top in both rounds only to be outmanoeuvred by the mainstream parties and prevented from winning a single department. As a case study in vote–seat distortion, the elections highlighted a voting system effective in keeping the FN out of executive power but deficient in terms of democratic representation and inadequate as a response to the new tripartite realities of France's changing political landscape.     

The Rule of Law in the Fight against Terrorism

What is the role of legal limits on executive power, if any, when citizens demand more security from terrorism, and allowing executive officials legal flexibility of action appears necessary to achieve it? We develop a game‐theoretic model to show that when the executive faces increased electoral incentives to provide security and has legal flexibility to choose any policy it finds optimal, security from terrorism can actually decrease. In contrast, when the executive faces increased electoral incentives to provide security and there is an explicit legal limit on executive counterterrorism activities, security from terrorism increases. We also show that the executive achieves the objective of terrorism prevention more effectively when there are some limitations on its counterterrorism powers. The article provides a security rationale for legal limits on executive power and has implications for understanding how to design the institutional structure of liberal governments when the social objective is terrorism prevention.     

Judicial Decisions and Policy

This symposium debates the impact of High Court decisions by questioning whether the High Court has the constitutional and legislative authority (and possibly the moral right) to decide policy issues and determine the rights of citizens. Arguments on the role of the High Court vary from views that the High Court provides a sphere in which political interests may be lobbied to notions that its role is solely to interpret the Australian Constitution. However, what occurs when the political aspirations of government are in conflict with the decisions of the High Court? Should the High Court adapt judicial decisions to changing social views, or consider the implications of their decisions on the executive and legislature? What is the constitutional role of the High Court? These questions are explored in detail in the following articles.     

The Coalition and the Decline of Majoritarianism in the UK

The United Kingdom has traditionally featured many aspects of the majoritarian model of democracy: its first‐past‐the‐post electoral system tends towards producing single‐party majorities, while its legislative decision rules concentrate policy‐making power in the hands of the resulting single‐party governments. However, in an unprecedented break with the UK's postwar conventions, the Conservatives and Liberal Democrats formed a coalition following the general election of 2010. In this article, we examine some of the Coalition's impacts on governing and constitutional conventions, placing them in a comparative European context. We conclude that the Coalition reflects a shift towards the less majoritarian forms of politics prevalent in continental Europe, and that some of these changes are likely to persist even after the end of the current government.     

Federalism and the European Union: A constitutional perspective

Constitutional questions have resurfaced in the last few years with regard to the European Union. The Maastricht Treaty is a kind of constitutional reform. The rejection of this treaty by Denmark in its first referendum, and the subsequent debate of the treaty that has taken place, raise questions about both the nature of the European Union, and the process by which its rules (constitution) get revised and approved. Similar questions surround the entry of Austria and the three, additional Scandinavian countries into the Union. Perhaps, no event called the European Union's constitution, or lack thereof, into question more that way in which a new President of the Commission was chosen during the summer of 1994. This paper will reexamine the European Union's structure and procedures from a constitutional perspective. Drawing upon the author's recently completed book, Constitutional Democracy, the paper will review the purpose for the Union's existence, the implications of this purpose for the structure of the Union (federalism versus confederation), the rules for making collective decisions in the Union, citizenship, and in particular, the procedures by which the European Union's “Constitution” is written and revised. The constitutional perspective adopted is taken from public choice. The political institutions of the European Union are examined relative to those rational, self-interested individuals would choose to advance their interests.     

The House of Lords: The Working of the Electoral Process in the 1999 Act of Parliament

This article investigates the working of the 1999 Act of Parliament in relation to the electoral process. One of the more controversial measures in the 1999 Act was the preservation of the representation of the hereditary element in the House of Lords. In the 2007-2008 session of Parliament, Lord Avebury introduced the House of Lords (Amendment) Bill, to repeal this electoral process, and Lord (David) Steel of Aikwood introduced the House of Lords Bill, which had provisions to the same effect as Lord Avebury's Bill. The working of this electoral process is therefore likely to be a topic of debate in the 2008-2009 session of the House of Lords. We suggest that there are three possible options to deal with the likely future issues for this electoral process. These we present as a contribution to a wider debate on the way forward for this constitutional issue.     

Are Voters Equal under Proportional Representation?

We develop and apply a new conceptual framework and measure for evaluating electoral systems, focusing on (in)equality in parliamentary representation. Our main arena of interest is proportional representation with districts, an electoral system employed by more than half of democratic states, and we draw on an almost entirely overlooked fact: Electoral regimes vary substantially within countries, with some voters casting their ballot in semi‐majoritarian districts of few representatives and others in large and proportional ones. This within‐country institutional variation, we contend, affects representational (in)equality. Evaluating equality in parliamentary representation, we demonstrate that districted proportional representation often leads to overrepresentation of voters supporting right‐leaning parties. Utilizing district‐level data from 20 Western parliamentary democracies and complementing our within‐country approach with a cross‐country analysis, we further show that where parliaments are elected by large and small districts, representational inequality among voters is greater compared with countries in which parliament is elected by even‐magnitude districts.     

Constitutional Amendment and Revision Revisited

State constitutional amendment and revision procedures differsubstantially from formal procedures for amending the US Constitution.Popular participation and frequent change in state constitutionscontribute to significant differences between state and nationalconstitutional politics. State constitutions are widely perceivedto be "political’ documents, whose amendment is not muchdifferent from ordinary legislative and electoral politics.The U.S. Constitution is regarded as relatively permanent and"above politics." Neither perception is wholly accurate. Differencesbetween state and national procedures and politics are at issuein the recent revival of state constitutions as sources of civilrights and liberties. An analysis of constitutional amendmentssuggests that use of the ballot proposition, which is uniqueto the states, tends to restrict civil rights somewhat in criminaljustice while somewhat expanding support for new rights in otherareas, including those not fully protected by the national government.     

Explaining Different Trajectories in Immigrant Political Integration: Moroccans and Turks in Amsterdam

This article examines why the political integration and representation of ethnic minority groups may develop along different paths. Taking Amsterdam as a case study, it compares two of the city’s most predominant immigrant groups: Turks, who have taken a group-based incorporation strategy – visible in this group’s dense organisational infrastructure – and Moroccans, who have followed a more individualist assimilation strategy. The distinct trajectories have produced a relatively high proportion of Turkish-origin elected officials, while individuals of Moroccan origin feature more prominently in executive office, exercising power over day-to-day decisions. The article proposes that whereas features of the electoral system determine which opportunities exist for immigrants to participate in the political process, it is the structure of an immigrant group that affects the ability of members to seize such opportunities. Furthermore, it shows how political parties and party elites act as gatekeepers and facilitators of immigrants’ political participation.