South Korean views on Japan's constitutional reform under the Abe government

In this Special Section, this article reviews South Korean views on Japan's ‘peace’ Constitution and the Abe government's attempts at constitutional reform. It identifies three different understandings among South Korean academics on why Japan is escalating attempts to revise the Constitution under the Abe government. An in-depth analysis demonstrates that all three perspectives pay specific attention to Japan's constitutional reform in relation to security policy changes. However, they differ in assessing the impact of Japan's constitutional reform on South Korea as well as how South Korea should deal with such a change. A minority opinion considers Japan's ‘remilitarisation’ through constitutional revision as conducive to South Korean security interests by increasing deterrence against North Korea, whereas the dominant opinion is that any attempt to revise the Constitution could be in and of itself a potential threat to South Korea's security due to a lack of trust attributed to unresolved historical conflicts between Korea and Japan. However, all three approaches pay hardly any attention to the positive role of Japan's peace Constitution while Japan's peace Constitution might provide a regional peace model in Northeast Asia.     

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.     

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’.     

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.     

The Politics of Constitutional Change in a Federal System: Negotiating Section 92A of the Canadian Constitution Act (1982)

This article examines the process of constitutional change surroundingthe enactment of the natural-resource amendment (Section 92A)to the Canadian Constitution Act (1982). It traces the motivationsbehind the adoption of the clause to a combination of long-termexogenous factors originating in the OPEC-inspired price risesof the 1970s, and short-term endogenous factors particular toCanada's political and institutional arrangements, includingunpredictable patterns of judicial arbitration of constitutionalissues. The presence of endogenous and exogenous "shocks" tolong-established constitutional modus vivendi allows some predictionsto be made about the general nature and direction of futureconstitutional change. However, the workings of short-term politicaland institutional variables make it impossible to predict theexact content of the constitutional response to such influences.This finding supports Banting and Simeon's hypothesis that constitutionalchange is political process subject to political forces in societyand that constitutional change, like constitution-making, remainsan art and not a science.     

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.     

From dominion to republican status: dilemmas of constitution making in Sri Lanka

This article examines the main features of Sri Lanka's post‐war constitutional development from the independence constitution of 1946 that introduced Dominion self‐governing status through the First and Second Republican Constitutions of 1972 and 1978. During this transition, executive power fluctuated between a Westminster style Parliamentary Constitution (1946, 1972) and a Presidential type of Constitution (1978) with a centralised executive directly elected by the people. The general issues surrounding the current debate on constitutional reform in recent years have centred on the abolition of the executive Presidency, an overhaul of the electoral system and the available options for power sharing with the ethnic minorities. The system of proportional representation precludes any political party from either forming a stable government or from securing the super majoritarian requirement of two‐thirds of the members of Parliament for amending the constitution. This predicament necessitates the invoking of an extra legal measure of a Constituent Assembly process to adopt an altogether new constitution to settle fundamental issues such as the structure of the state and the mode of electoral representation. Copyright © 2006 John Wiley & Sons, Ltd.     

Australian Federalism and the Debate Over a Bill of Rights

Successive Australian Labor governments have tried to nationalizestandards for the protection of rights either by means of astatutory bill binding on the states under the Commonwealth'smuch expanded external affairs power, or by further entrenchingspecific rights in the Constitution. All these attempts havefailed for a variety of political and constitutional reasonsincluding, importantly, the strength of Australia's establishedsystem of federalism and parliamentary responsible government.The article examines the constitutional issues underlying thedebate over a bill of rights for Australia, arguing that Labor'sattempts to implement a bill of rights have been inspired bya preference for more centralized government whereas the defeatof such initiatives indicates, the established strength of Australianfederalism.     

Fiscal Federalism in South Africa

The constitutional change in South Africa in the 1990s broughtabout the decentralization of substantial budgetary responsibilityto newly created provincial governments. This study capturesthe new assignment of functions and resources to the differentspheres of government in South Africa and provides an assessmenton the basis of a framework derived from fiscal federalism principles.It concludes that there is a substantial congruence betweenwhat can be viewed as theoretically desirable and what is outlinedin the South African Constitution of 1996, but observes significantdivergences between the Constitution and actual practice.     

The Role of Semi-Direct Democracy in Shaping Swiss Federalism: The Behavior of Cantons Regarding Revision of the Constitution, 1866-1981

Swiss federalism operates as a semi-direct democracy involvingreiterated constitutional choice by the people and the territorialunits. In this respect, the Swiss federal process is uniquein comparison to other federal systems. An analysis of constitutionalreferenda and constitutional initiatives conducted from 1866to 1981 was undertaken in order to characterize the politicalbehavior of Swiss cantons concerning the referenda that havealtered the original Constitution of 1848. The behavior of thecantons may be explained by their sociopolitical features. Threegroups of cantons are distinguished by their pattern of behaviortoward proposed revisions of the federal Constitution. In addition,a comparison was made of the similarity and divergence of thecantons with the pattern of behavior of the entire federationin order to measure the degree of cohesion of the Swiss partnership.Strikingly, some of the cantons with a minority subculture weremore frequently in the winning coalition than were some cantonsthat share more of the characteristics of the majority culture.The Swiss federal process is found to strengthen nation-buildingby means of the continual adaptation, along with some innovation,of the original constitutional design on the part of the peopleas a whole and the cantons.     

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。     

The Referendum, the Courts and Representative Democracy in Ireland

This article examines the four referendums held in Ireland between 1983 and 1987. Special emphasis is placed on the constitutional framework. It is argued that the 1937 Irish Constitution created a tension between representative democracy and judicial review. as well as between parliamentary supremacy and sovereignty of the people. This is encapsulated in Article 6.which states that all executive, judicial and legislative authority is derived from the people under God. This article was used by the Supreme Court to strikedown legislation which precipitated the 1984and 1987 referendums and to refuse injunctions in the 1983 and 1986 referendums. Finally, the four referendums were called in response to interest group pressure and Supreme Court decisions, which indicates shifts in Ireland away from the traditional Westminister model that has operated in practice in Ireland since 1922.     

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.     

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.     

‘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.     

Intergovernmental relations in Nigeria: Local government and the 1979 Nigerian Constitution

This paper examines the intergovernmental relations prescribed by the Nigerian Constitution of 1979. In particular it discusses the elevated constitutional status of local government, tracing the origins of this to the 1976 local government reform. The question of how to interpret the provisions of the Constitution on the restructuring of local government and whether this is solely a State responsibility or a joint State/Federal responsibility is analysed. The article argues that the States have political and administrative responsibility for local government whereas the Federal responsibility concerns the regulation of the amount of money to be distributed to local government from the Federal Account. The Lagos State High Court judgement which supports the view that States have political and administrative responsibility for local government, but nullified the State's legislation, is extensively reported and analysed. Also discussed is the Allocation of Revenue (Federation Account, etc.) Act 1981 which both reflects and supports the view that the federal relationship to local government is defined by finance. The paper also probes the intention of the Constituent Assembly by analysing its report. The paper complements that by Smith and Owojaiye in the previous number.     

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 Political Constitution of Federalism in Antebellum America: The Nullification Debate as an Illustration of Informal Mechanisms of Constitutional Change

The requirements of the U.S. Constitution are often assumedto be either clear or defined by the judiciary through interpretation,or both. Examination of the nullification crisis of 1833 indicatesthat this view of the U.S. Constitution is misleading. The nullificationcrisis provoked three competing visions of the appropriate understandingof federalism in the context of textual ambiguity and judicialactivity. The subsequent development of federalism was determinedby that political conflict and compromise. The nullificationcontroversy provides an important example of the openness ofconstitutional norms, the significance of political debate inthe shaping of constitutional meaning, and the complexity ofantebellum political thought.     

Australian Federalism: Developments and Prospects

This article discusses the principal recent developments in,and future prospects for, constitutional change, judicial review,fiscal arrangements, local government, public policy, and intergovernmentalrelations since the 1977 Publius issue on Australian federalism,taking into account the arguments presented in the other contributionsto this volume. It highlights the continuing vertical imbalanceof Australian fiscal federalism, and the Hawke Labor government'srecent initiative for a closer working partnership with thestates for reforming intergovernmental arrangements. It arguesthat while there is scope for the latter, there is greater needfor the former. Nevertheless, the 1980s was significant as adecade of predominantly Labor governments working with the federalConstitution, while the 1990s promises to be a decade of celebratingthe centenary of the Australian Constitution and working towardimproving the functioning of its federal system.     

International Best Practice and the Constitution,Democracy and Rights Commission

The UK government has pledged to establish a Constitution, Democracy and Rights Commission. This body will have a wide remit to recommend potentially sweeping constitutional change. This article draws on international experience and best practice to outline how the commission might best organise the process to produce proposals which are widely supported, fit for purpose, and durable. We argue that to achieve these goals the commission’s organisation should reflect three key principles: impartiality, expertise, and public participation. This would reflect international best practice and build on recent domestic developments. We argue that these principles can best be achieved if the commission works through a citizens’ assembly that combines members of the public with party politicians. This would be a new departure for the UK, but a necessary one given the scale of the government’s constitutional reform agenda, and its stated goal of restoring public trust in politics.