Completing the Constitution: The Fourteenth Amendment and Constitutional Rights

Although the Fourteenth Amendment has been the vehicle for anumber of transformations in the protection of rights, therehas been no consensus on what it means. The amendment is sometimesheld to have revolutionized the Constitution, in effect replacingthe traditional federal system with a more national system.It is also argued that the amendment essentially reaffirmedthe prewar Constitution. The truth appears to lie with neitherside: the drafters of the amendment attempted to "complete theConstitution," neither to reform it radically, nor to reaffirmit simply. In doing so, they unwittingly followed in the tracksof the original "father of the Constitution," James Madison,who believed the original Constitution to be defective in importantways. Proper attention to the context and the structure of thetext of the amendment reveals just how the amendment was to"complete the Constitution." So examined, the amendment revealsitself to be a precisely stated, clearly drafted text, containinga number of new constitutional principles. Properly understood,the amendment affords constitutional protection for rights alreadypossessed in some sense, but therefore unprotected in the oldConstitution.     

‘Let's Talk Cash’: Cantons' Interests and the Reform of Swiss Federalism

In 2004 the Swiss people accepted a new equalization scheme and a new distribution of competences between the federal state and the cantons. It was argued that the reform was successful because of the capacity of veto-players to overcome their interests and adopt a ‘problem-solving’ interaction mode. We propose a different interpretation and argue that distributive issues and the accommodation of actors' interests crucially mattered. We identify three mechanisms that contribute to a successful reform, i.e. package-deals, side-payments and the downsizing of the reform. Our in-depth, mainly qualitative study of both the content of the reform and related decision-making process supports the pertinence of these strategies for the explanation of the successful reform of Swiss federalism.     

Lijphart goes regional: Different patterns of consensus in Swiss democracies

This article addresses the relationships among the main political institutions of the two dozen cantonal democracies which constitute the Swiss federal state. By replicating Lijphart's analysis in the Swiss subnational context, the article seeks to explain the relationships of the political-institutional variables in the Swiss cantons. The main finding of the article is that in contrast to international comparisons, the cantons cannot be classified along the continuum of majoritarian and consensus democracies. However, the Swiss cantonal democracies practice clearly distinguishable forms of power sharing. Based on a factor analysis and a cluster analysis, it is possible to distinguish a two-dimensional pattern of cantonal democracies and five groups of cantons. Although there are a number of different procedures to achieve political stability through division of power in the cantons, the different characteristics of power sharing can, essentially – and with reference to Switzerland's central institutions – perfectly well be situated on a single axis; namely, on that between pronounced direct citizen involvement and broadly supported government coalitions.     

Political participation in Swiss referenda at federal and cantonal levels: 1879–1981

Political participation in the process of semidirect democracy differs in several important respects from political participation in elections in representative democracies. This study discusses patterns of participation in 300 referenda at the cantonal and federal level in Switzerland during the 1879–1981 period. The purpose of this survey is to account for cross-temporal and cross-cantonal variations in terms of: (a) referenda type, (b) competition intensity, and (c) the influence of a multiple political culture. The findings suggest that distinctive political cultures and life styles, and other collective factors account for turn-out percentages and competition intensity. Voters tend to mobilize essentially to reject constitutional revisions and laws rather than accept them. The significance of cross-temporal differences was found to diminish during the 1952–1981 period. This tendency toward increasing standardization of Swiss political participation does not, however, completely blur the specificity of participation within cantons, suggesting that the multicultural nature of Swiss society is still prevalent.     

Internet voting and turnout: Evidence from Switzerland

Internet voting (i-voting) is often discussed as a potential remedy against declining turnout rates. This paper presents new evidence on the causal effect of i-voting on turnout, drawing on trials conducted in two Swiss cantons: Geneva and Zurich. Both Geneva and Zurich constitute hard cases for i-voting, given that i-voting was introduced in the presence of postal voting. However, this setting allows us to test some of the more optimistic claims regarding i-voting's ability to increase turnout. Empirically, we exploit the advantageous circumstance that federal legislation created a situation coming close to a natural experiment, with some of Geneva's and Zurich's municipalities participating in i-voting trials and others not. Using difference-in-differences estimation, we find that i-voting did not increase turnout in the cantons of Geneva and Zurich.     

Vertical influence or horizontal coordination? The purpose of intergovernmental councils in Switzerland

ABSTRACT

In 1993, the Swiss cantons established the conference of cantonal governments (KdK). While the literature on Swiss federalism generally acknowledges the important role of the KdK, little is known about its specific purpose, in particular compared to other, older intergovernmental councils operating in Switzerland. We therefore investigate the purpose of the KdK and contrast it with two other intercantonal conferences with nationwide scope, namely those on education and finance. To do so, we trace two of the most important federal reform processes of the last decade: the latest renewal of fiscal equalization and educational harmonization. We find a division of labour between the KdK and policy-specific councils. While the former aims at vertical political influence, the latter primarily engage in genuine horizontal policy coordination. This flexible and smooth interplay of the two types of councils has contributed to further strengthening the political role of the cantons in the Swiss federation.     

Föderalismus und wohlfahrtsstaatliche Entwicklung. Österreich und die Schweiz im Vergleich

Starting from the stylised fact that federal institutions are held to be inimical to welfare state expansion, this paper examines the ways in which federalism has shaped the dynamics of welfare state development in Switzerland and Austria. A comparison of these different federal polities reveals that the welfare breaking effect attached to federalism crucially depends on the extent of vertical power separation. In both countries economic competition among constituent units did not fuel a race to the bottom in social standards. In Switzerland, the most important reason connected to federalism for why federal social policy was delayed and downsized was policy-preemption by the cantons and their considerable influence on the federal policymaking process. In contrast, the Austrian Länder neither had major social policy competencies nor an effective veto power which allowed them to block the centralisation of public policy. Instead, federalism is subordinate to the partisan arena at the central state level which itself is dominated by political parties quite favourable to welfare state expansion.     

A Public-Choice View of Swiss Liberty

This article compares the provisions of the American and Swissconstitutions from a public-choice perspective. Accordingly,the Swiss Constitution is seen as one designed to bring abouta transmission of citizens' desires into political action, whereasthe U.S. Constitution is designed to prevent the misuse of grantedpower. The specific level of analysis employed here is the principal-agentmodel, which is used to examine collective decisionmaking atthe constitutional, legislative, and para-constitutional levels.The article then considers the role of the courts as arbiterof constitutional questions and conflicts.     

Constitutional and Human Rights Disturbances: Australia’s Privative Clauses Created Both in an Immigration Context

With the arrival of another wave of “boat people” to Australian waters in late 2009, issues of human rights of asylum seekers and refugees once again became a major feature of the political landscape. Claims of “queue jumping” were made, particularly by some sections of the media, and they may seem populist, but they are also ironic, given the protracted efforts on the part of the federal government to stymie any orderly appeals process, largely through resort to “privative clauses”. Such clauses demonstrate the many ways in which human rights of those seeking asylum in far-off lands and are potential future immigrants, who often lack much-touted needed papers, yet who are for the most part genuine refugees, are subject to the slings and arrows of political fortune (and misfortune). Approaching the courts if treated unfairly or seeking a further decision as to your fate would seem one of the fundamental premises of human rights. Yet privative clauses—or attempts to ouster the jurisdiction of the courts and to insulate decisions from appeal—have become an increasingly frequent feature of the Australian migration legislation. With a seemingly watertight federal constitutional power set in stone since 1901, to deal with migration and aliens, and without the tempered contemporary update of a federal Bill of Rights, the Australian federal government has been able to narrow the grounds of judicial review in those contexts. We argue that the concerted efforts to deny such fundamental rights of appeal to those most in need of the full armoury of the protection of the law in a modern, affluent democracy, constitutes both a breach of their human rights and a breach of core constitutional principles such as separation of powers. Those principles may not be formally articulated in the text of the Australian Constitution, but in our view they are implicit in the constitutional arrangements, and hence we can conclude with the arguments of former Justice of the High Court of Australia, Michael Kirby, who asked—to whom does sovereignty truly belong?     

The Dead Hand of the Past? Toward an Understanding of “Constitutional Veneration”

Some observers argue that excessive veneration of the U.S. Constitution has blinded Americans to its flaws and made them reluctant to consider necessary reforms. In this paper, we test the assumptions that underlie these claims. We report the results of two survey experiments that examine the existence and effects of constitutional status quo bias at both the state and federal levels. Our findings support the notion that a proposed policy involving constitutional change imbues the constitutional status quo with normative value and, in turn, disposes individuals to resist the proposal. These results hold even at the state level. In addition to the institutional obstacles to constitutional amendment, therefore, we find evidence of another, psychological barrier to constitutional change that is based specifically in a sense of constitutional attachment.     

The 2015 National Elections in Switzerland: Renewed Polarization and Shift to the Right

The 2015 election to the Swiss Parliament marks a return to an already observed trend that was only interrupted in 2011: a shift to the right and an increase in polarization. The vote share of the nationalist-conservative Swiss People's Party (SVP) has now reached a historical height of 29.4% (+2.8). This note discusses why cantons matter in the Swiss national elections, and to what degree elections have become nationalized. Institutionally, the 26 cantons serve as electoral districts. This leads to a highly disproportional electoral system and has magnified the minor vote shifts to a slightly more pronounced shift in seats, with the right now holding a tiny majority of 101 of 200 seats in the first chamber. The two winners, the SVP and the Liberals, also had most campaign funds at their disposal. They were able to guide an extensive nationwide campaign in which they advocated their core issues instead of candidates. Other parties only advertised at the cantonal level.     

New State Equality: The Ambiguous History of a Constitutional Principle

In Coyle v. Smith (1911), the U.S. Supreme Court ruled thatCongress could not impose admissions conditions on new statesthat detracted from their equal standing in the union. Previously,the Court had deferred to Congress' authority over federal territoryand over its own membership. Before the Civil War, federal interestsin new states—particularly with respect to public lands—weresecured through admissions conditions. Later, however, admissions"compacts" became increasingly redundant; the Court groundedfederal property claims in the new states on the "rules andregulations" provision of the Constitution. Meanwhile, in aseries of decisions, the Court began to uphold the "municipalsovereignty" of the territories against congressional interference.Congress' authority in the territories was progressively limitedto that of acting as "trustee" for future states. These doctrinaldevelopments culminated in Coyle. The Court challenged Congress'right to set invidious admission conditions and asserted itsown jurisdiction over the state-making process. The new stateequality principle thus became "constitutional" as the Courtextended its authority. I wish to thank Herman Belz, University of Maryland, for helpfulcriticism.     

Fiscal Federalism for Emerging Economies: Lessons from Switzerland?

Switzerland is one of the most non-centralized countries inthe world. A groining literature is examining the economic effectsof tax competition between the 26 Swiss cantons. Despite therelative success of Swiss federalism, most federal countriesfollow the principles of coordinated rather than competitivefederalism. We identify the institutional preconditions forwell-functioning competitive federalism in Switzerland. Thesecond part deals with the applicability of the Swiss experiencefor emerging economies in Latin America. The analysis recognizesthat most institutions identified to be crucial in the Swisscase are missing in Latin America. This leads to the policyconclusion that competitive federalism can only produce itspositive effects under certain institutional circumstances.These circumstances are often not considered when introducinglax competition in emerging economies.     

Toward Making a Proper Space for the Individual in the Ethiopian Constitution

A symbolic, normative, and institutional investigation of the 1995 Ethiopian Constitution reveals that the individual is displaced and locked in the periphery as much of the socio-economic and political ecology of the state is occupied by Nations, Nationalities and Peoples (NNPs). The Constitution presents and makes NNPs authors, sovereigns and constitutional adjudicators by adopting a corporate conception of group rights. As this corporate conception of group rights permeate and structure the organization of the Ethiopian state and government, the individual is relegated in the constitutional order. In order to make the transition to constitutional democracy sustainable, it is argued that the Constitution should accommodate and ensure individual autonomy by adopting a collective conception of group rights. This offers both the normative basis and institutional safeguards to strike a proper equilibrium between group rights and individual rights.     

'To Secure the Blessings of Liberty': Liberty and American Federal Democracy

The founding and subsequent development of the United Stateshave been characterized by a tension between two kinds of liberty,which can be called natural liberty and federal liberty. Naturalliberty refers to the freedom of individuals to do as they pleasewithout being shackled by civil society. Federal liberty refersto the liberty to be a partner in establishing the covenantfounding civil society, and then the liberty to live accordingto the terms of the covenant. Federal liberty has taken twoforms in America: one concerning the relationship between individualsand civil society, and one concerning the relationship betweenthe states and the federal government under the U.S. Constitution.Out of the tension between natural and federal liberty, thereemerged two constitutional traditions: the U.S. constitutionaltradition, which has emphasized individualism and the marketplace,and the state constitutional tradition, which has emphasizedcommunity and commonwealth. Since the end of World War II, however,there has been a shift away from historic syntheses of marketplaceand commonwealth. Increasingly, the states have been deniedtheir constitutional powers to support any particular moralorder other than that of the marketplace, and the federal governmenthas undertaken to establish a new morality of equality for thenation as a whole.     

Fragmenting parchment and the winds of war: The Constitution of the United States, 1860–2004

The tension between Hobbesian and Lockeian perspectives on the origins and functions of the state was resolved decisively at Philadelphia in favor of the latter. Fourscore and seven years on from 1787, however, Abraham Lincoln’s resolve to save the Union rather than to preserve the Constitution launched a series of attacks by the executive and legislative branches, sustained by a complaisant judiciary, on the parchment so carefully crafted by the republic’s Founders. This essay documents the federal government’s exploitation of security threats, from the Civil War to the War on Terror, to dismantle constitutional rights to life, liberty and property.     

The Covenantal Basis for the Development of Swiss Political Federalism: 1291-1848

This study argues that the modern political philosophy of federalismis directly linked to the Swiss Reformed idea of religious covenant,which was first formulated in the 1520s and 1530s by HeinrichBullinger in Zürich. Bullinger's concept of religious covenanthad roots both in the Old Testament and in the early federalideal and reality that had come out of the Swiss Middle Ages;it therefore had important social and political implicationsas well as theological meaning. During the sixteenth and earlyseventeenth centuries, this theological idea of federalism fedinto and helped to create the modern political concept of federalism,especially in the thought of Philippe Duplessis-Mornay and JohannesAlthusius. Political federalism became a reality in the Constitutionof the United States in the late eighteenth century. The Swissfederal Constitution of 1848 was instructed by the mature conceptof political federalism, by the Constitution of the United States,and by the long tradition of Swiss federalism. All of theseinfluences had some basis in the uniquely Swiss idea of religiouscovenant.     

Factors Driving the Promotion of Hydroelectricity: A Qualitative Comparative Analysis

In the wake of the COP21 conference in Paris, the transition to a low‐carbon energy supply remains a central issue on the political agenda. The deployment of renewable energies is often challenged by multiple issues (e.g., public acceptance, landscape protection, and so forth). Political actors try to overcome such challenges with various measures; however, the policy instruments used vary greatly in their strength. This article questions what factors lead to the adoption of strong policy instruments promoting hydroelectricity. Explanatory factors are derived from Kingdon's multiple streams framework and are analyzed with fuzzy‐set qualitative comparative analysis within the Swiss cantons. The findings show that the strength of policy promoting hydroelectricity depends on the conjunction of mainly two factors: ambitious climate targets and an already well‐established hydroelectricity sector that generates large tax revenues for the cantons. Depending on the context, the strength of left‐wing and green parties as well as the current level of exploitation play an important role with the aforementioned factors.     

The congressional veto: Shifting the balance of administrative control

During the past decade, hundreds of provisions have been enacted by Congress giving that body some form of control over the projects and regulations of federal agencies. Pressures for more far-reaching measures of this sort, including a proposal to vest Congress with a veto of all regulations promulagated by federal agencies, have intensified debate on both the constitutional merits and administrative wisdom of the congressional veto process. These measures are exerting considerable effect, delaying the decisions of the agencies, reshaping the regulatory process, and increasing the direct congressional role in setting administrative agendas and substantive policies. The result is a transfer of administrative power to the more than 200 standing committees and subcommittees of the Congress-and, significantly, to their staffs. This transfer has served to impede the executive chain of command, to diminish the role of independent regulatory agencies as experts in their respective fields, to devalue judicial review of agency action, and to reduce the accountability of the affected agencies.     

Representative Democracy as a Necessary Condition for the Survival of a Federal Constitution

It does not follow from the supposition that the union is beneficialthat its terms would go unchallenged by its members. The argumentin this article suggests that federal stability (robustness)requires for itself a well-functioning democratic process, whichsatisfies a fairly restrictive condition. A necessary conditionfor the resiliency of the federal regime is a representativedemocracy; furthermore, it is the representative democracy inwhich rewards to the representatives are only in part vestedin their parochial constituencies, while in the other part comeform other sources, e.g., from an oversized at-large coalition.The requirement to the democratic process is, of course, onlya necessary, not a sufficient condition for the federal success.Yet, we argue in this essay that only the states with well-developed(properly institutionalized) democratic electoral competitionhave a chance to form a resilient federal union and sustaintheir federal constitutional arrangements not just in form,but in their political practice as well.