Retrofitting the Administrative State to the Constitution: Congress and the Judiciary's Twentieth-Century Progress

One of the twentieth century's "big questions" for United States government has been how best to retrofit, or integrate, the full-fledged federal administrative state into the constitutional scheme. The public administration orthodoxy initially advocated placing the executive branch almost entirely under presidential control; Congress and the federal judiciary responded otherwise. Congress decided to treat the agencies as its extensions for legislative functions and to supervise them more closely. The courts developed an elaborate framework for imposing constitutional rights, values, and reasoning on public administration practice. As the challenge of retrofitting continues into the twenty-first century, public administrators might profitably play a larger role in the constitutional discourse regarding the administrative state's place in constitutional government.     

The importance of uncertainty in a two-stage theory of constitutions

This paper analyzes the consequences of different assumptions regardingthe kind of uncertainty that exists at the constitutional stage of a two-stage political process. Individuals at the constitutional stagedecide the actions that are to be allowed, compelled or banned in thesubsequent stage. The analysis allows us to specify conditions under whichcertain bans and obligations might be included in a constitution, whileothers are decided by legislative action, to define the ``optimal votingrule'', and the conditions under which the majority rule is this optimalrule. The paper provides a unified framework for analyzing the choice ofinstitutions in a two-stage constitutional political system.     

Sweden: Democratic Reforms and Partisan Decline in an Emerging Separation-of-Powers System1

Early in the twentieth century, parliamentary democracy developed within an 1809 constitution based on separation of powers. By the mid-1970s, the last remnants of this constitution had disappeared. After that, measures such as more openness in candidate nominations, positive preference voting and more scrutiny by parliamentarians were introduced to strengthen the democratic chain. But a weakening of political parties and an increased importance of external constraints are again moving Sweden towards a de facto separation-of-powers system. There is once again a considerable discrepancy between the written constitutional framework and the 'working constitution'. In particular, local and supranational constraints on national policy making provide reason for a reconsideration of the constitutional framework.     

Breaking the Constitutional Silence: the Public Services Industry and Government

Analysis of constitutional arrangements has been too narrow in the past, confined to examination of explicitly governmental arrangements. But corporate enterprises perform such important public functions, especially in the age of outsourcing, that they need to be incorporated into the constitution. The article develops this argument and proposes a framework for such incorporation.     

Constitutional control of processes and their outcomes

This paper explores the distinction between processes of decision making and their outcomes in the context of the individualistic constitutional calculus. The motivation is primarily methodological. A taxonomy and analytic framework are suggested which explicitly recognize the possible motivations of the constitution setter, and which allow decision making processes to be viewed as both means and ends. The framework is utilized to provide a critical review of some aspects of the received literature.     

孙中山五权宪制中的国民大会

国民大会是孙中山后期五权宪制架构中的一个重要权力结构。从这一结构所承载的功能来看，它首先是一种“民主”的制度安排；同时，作为中央政制中针对政府权力的“结构性制约因素”，它又具有“宪政”的意义。章力图分析这一机构所折射出的政治理念的基本取向及其自身存在的问题。     

Managerialism, Accountability and Democracy: A Victorian Case Study

Managerialism has made a substantial contribution to providing a more cost conscious, efficient and effective public service. But the Victorian case also raises concerns about whether managerialist techniques will be pursued within a wider constitutional, political and legal framework which recognises the need for discussion, debate and accountability in democratic policy-making.     

National Constitutional Courts,the Court of Justice and the Protection of Fundamental Rights in a Post-Charter Landscape

This article critically evaluates the possible impact of the Charter on the relationship between the Court of Justice of the European Union (CJEU) and national constitutional courts. While it is premature to provide a definitive assessment of the kind of collaboration that these courts will develop, it is crucial to identify a number of features of the new landscape that will influence the direction in which the relationship between the CJEU and constitutional courts will evolve. This article discusses several reasons that may result in better or a higher number of judicial interactions, as well as factors that may create tension or cause problems in the relationship between the CJEU and national constitutional courts. As such, it offers a framework that may help us to understand future post-Charter judgments by these courts setting out how they conceive their engagement with their counterpart(s) on fundamental rights issues.     

More Than IndyRef2? The Referendums (Scotland) Act 2020

Demands for a second Scottish independence referendum have persisted since 2014. The Scottish government introduced the Referendums (Scotland) Bill at Holyrood in May 2019 to enable referendums within the competence of the Scottish parliament. The Scottish National Party (SNP) government presented this as a framework enabling a range of referendums. Opponents saw this as legislating for a second independence referendum. The act will form a large part of the legal framework and rules for any second independence referendum. Importantly, the legislation provides innovation in electoral law more generally. This article discusses the background to the bill, its initial contents, and debates around and amendments to the bill. It discusses its electoral law innovations, before considering its limitations and place as constitutional debates play out over a second independence referendum.     

Comparing blunders in government

Much attention has been paid to government ‘blunders’ and ‘policy disasters’. National political and administrative systems have been frequently blamed for being disproportionately prone to generating mishaps. However, little systematic evidence exists on the record of failures of policies and major public projects in other political systems. Based on a comparative perspective on blunders in government, this article suggests that constitutional features do not play a prominent role. In order to establish this finding, this article (a) develops theory‐driven expectations as to the factors that are said to encourage blunders, (b) devises a systematic framework for the assessment of policy processes and outcomes, and (c) uses fuzzy‐set qualitative comparative analysis to identify sets of causal conditions associated with particular outcomes (i.e., blunders). The article applies this novel approach to a set of particular policy domains, finding that constitutional features are not a contributory factor to blunders in contrast to instrument choice, administrative capacity and hyper‐excited politics.     

‘Solidity or Wind?’ What's on the Menu in the Bill of Rights Debate?

This article examines the pronouncements and positions of the leading political parties on the Human Rights Act and the proposals for a new British Bill of Rights and Responsibilities. It analyses the main arguments made in support of a British Bill of Rights and Responsibilities, which are advanced around five main issues: security, the judges, parliamentary sovereignty, responsibilities and 'British rights'. The article was written before the government published the Green Paper Rights and Responsibilities: developing our constitutional framework in March 2009 and provides a political context with which to analyse it.     

宪法实施视域中司法裁判宪法援引的实证分析

全面推进宪法实施采用广义的宪法实施内涵,有利于将宪法基本原则和宪法规范贯彻落实到国家与社会生活的各个领域。司法裁判中的宪法援引是宪法实施在司法领域的具体实践,因此,对宪法援引的实证研究能够获得宪法实施的直观印象。借助于新兴的大数据技术,检索含有宪法援引内容的裁判文书,对其进行统计学处理和分析,形成关于宪法援引案件的系统性认知。在此基础上,运用宪法学原理对宪法援引进行解析,以主体为宪法援引的区分标准,将其分解为当事人宪法援引与法院宪法援引两种不同类型,便于深入考察司法实践中宪法援引的具体方式和实际效果,进一步印证宪法援引在推进宪法全面实施过程中所具有的实践价值。     

Ethnic Management in the 1979 Nigerian Constitution

Nigeria, the most populous African nation, is also the mostheterogeneous. The desire to contain the many ethnic groupswithin the framework of one united country has necessitatedpolitical experiments of federalism and, even for a brief while,unitarism. A thirty-month war was fought to prevent secessionand then a constitutional compact was drawn up to secure theunity of the country. The constitution sought to guarantee ethnicequality and equal ethnic opportunities in governments, politicalparties, and nongovernment public establishments. All governmentand parastatal organizations had to reflect the plural compositionor the federal character of the nation. It was a very ingeniousdevice, but did not fully succeed in neutralizing divisive ethnicpassions.     

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.     

Privacy and Technology: Reconsidering a Crucial Public Policy Debate in the Post-September 11 Era

In the post September 11 era, one truism in the ongoing public policy debate surrounding technology and privacy is that there is no easy solution to the increasing presence of technology in our lives. There are, however, several long-standing guiding principles. We must be wary of extending political authority to protect privacy without careful contemplation of the consequences. While it may appear that the idea of balancing technology and privacy is novel, the tension between them is informed by a broader theoretical framework that is inherent to democracy. Understanding this broader theoretical framework is helpful in identifying ways to advance the debate toward policy solutions rather than continuing a dogmatic discussion that juxtaposes technological innovation with the loss of privacy. The purpose of this discussion is not to settle the public policy debate. Instead, the aim is to consider how long-standing constitutional doctrine and the theoretical framework of democracy can lend insight into the current debate surrounding privacy and technology.     

Unanimous constitutional consent and the immigration problem

This paper utilizes the cross-cutting cleavages approach to evaluate the probability of a unanimous constitutional consent and, based on these results, discusses the implications of immigration on an existing constitutional consent. It is shown that previous conclusions of beneficial effects stemming from a multitude of political dimensions for a unanimous constitutional consent crucially depend on the assumption of an extreme mode of intrapersonal compensation of constitutional majority and minority preferences. These conclusions are reversed once you consider more restrictive schemes of such intrapersonal compensation. Since, furthermore, the probability of constitutional consent unambiguously falls with a growing size of the collectivity, only a policy of selective and controlled immigration will be able to guarantee with regard to the existing cleavages of a society that the existing constitutional consent will not be damaged or destroyed, whereas uncontrolled immigration, possibly based on ethical norms, will risk the breakdown of any constitutional consent in a society.     

‘Spending Wisely: Principles for a Good Spending Review': The First Report of the Fabian Commission on Future Spending Choices

This article examines the work of the Fabian Society Commission on Future Spending Choices published in June 2013. The Commission is undoubtedly the most detailed and ambitious attempt by a centre‐left think‐tank to analyse the structure of UK public spending since Labour's 2010 defeat. The Commission makes an eloquent case for a strategic approach to UK public spending, filling the substantial void in thinking on the centre‐left since Labour's 2010 defeat. Inevitably, the proposals raise fundamental questions about the capacity of the British state and the constitutional framework of the UK political system to accommodate a long‐term, future‐orientated approach to public expenditure, which deserve to be properly aired and debated.     

Positive constitutional economics: A survey

The author distinguishes between normative and positive constitutional economics. Taking the observation that the normative branch of the new discipline is much better developed than its positive counterpart as a starting point, the available positive literature is surveyed nevertheless. The available evidence is arranged into four categories: (1) Constitutional rules and the procedures bringing them about, (2) constitutional rules as the result of preferences and restrictions, (3) constitutional rules channeling constitutional change, and (4) the economic effects of constitutional rules. Additionally, various concepts of the constitution are presented, the tools suited for a positive theory of constitutional economics discussed, and precursors as well as related research programs shortly described.     

Conflicting Equalities? Cultural Group Rights and Sex Equality

This article explores the tensions within multiculturalist theory between the aspiration to promote cultural recognition and the need to promote and protect women's concern with issues of sex and gender inequality. The article asseses the three main approaches to the reconciliation of sexual equality and group rights; according priority to the traditional values and practices of cultural groups; accepting collective and cultural rights but within a framework international human rights; and finally, the acceptance of group rights subject to respect for individual rights and freedoms. By focusing on the experience of aboriginal women activists in Canadian politics and their struggle to preserve constitutional sex equality, this article argues that only the third approach provides adequate safeguards for women in their public and private roles.     

Winning Peace Frames: Intra-Ethnic Outbidding in Northern Ireland and Cyprus

Ethnic outbidding in divided societies can have dire political consequences, ranging from the derailment of peace processes to inter-ethnic warfare. This article investigates the conditions contributing to successful outbidding within the framework of protracted peace negotiations by using the contrasting cases of Northern Ireland and Cyprus. Evidence demonstrates that successful outbidders are able to exploit the fears of their communities with respect to inter-ethnic compromise while identifying appropriate strategies and opportunities for redressing these grievances. The article demonstrates that the degree of outbidding success over the long term derives from combining diagnostic and prognostic frames linked to credible political and constitutional strategies.