Citizen Opinion and Constitutional Choices: The Case of the UK

Political Behavior - In recent years, political scientists have begun to pay greater attention to political institutions and questions of institutional change. This article addresses a question...     

关于完善我国违宪审查制度的若干思考

违宪审查制度是指享有违宪审查权的国家机关对违反宪法的行为(包括制定违宪的法律、法规和其他违宪行为)进行合宪性审查,以确定其是否违宪的法律制度.究竟由何种机构、以何种程序来纠正违宪、追究违宪并给予相应的救济取决于一个国家的政治理念和制度安排.不可否认,我国目前违宪审查制度的实践效果并不理想.甚至有学者认为,从严格的意义上说,我国并不存在违宪审查制度.从理论和实践两个层面进行剖析,并结合国外的相关经验,对我国违宪审查制度的完善提出切实可行的建议,既是一个迫切的理论课题,也是一个迫切的实践课题.     

Local Government in Transformation: The Case of Constitutional Reform in Yugoslavia

The previous communal system in Yugoslavia (since 1955) did not prove viable. Owing to its great size (nearly 500 km² and more than 40,000 inhabitants), municipality in this period didn't affirm itself as a real community. Having many abilities in developmental planning, it was at the same time dependent on the state in the spheres of finance and normative regulations. The difference between the sphere of local government (LG) and state politics was substantially blurred.
Given the changing social conditions (introduction of market economy, political pluralism and the forms of parliamentarian democracy), the need for repeated establishment of the system of local government based on the altered position of citizens in the political system becomes evident. In this environment it is necessary to reestimate the experiences of LG in particular Yugoslav regions (republics) before World War II, and simultaneously, take selectively into account the experiences and development in other developed European countries.
This article compares the constitutional regulations of LG among particular Yugoslav republics, and between them and the characteristic orientations in other European countries, enlightening it with the aspect of actual processes and demands of centralization and decentralization, regionalism, moving the regulation of communal and other everyday needs closer to the people in LG, all in the sense of post-behavioristic trends of the "bottom-up" approach to the processes of decision-making.     

Bargaining Constitutional Design in Italy: Judicial Review as Political Insurance

Why would politicians, who expect to hold political power in the future, choose to create a constitutional court with the power of judicial review that can veto politicians' policies? Some theories suggest that international forces may be causal, as institutions or ideas are diffused geographically or within legal systems. Others focus on domestic politics as driving the decision to institute judicial review. Among these are the commitment, hegemonic preservation, party alternation and insurance theories. This article looks at the decision to establish a constitutional court in the Republic of Italy, the first post-World War II court in Europe that was not in a federal system. It argues that the insurance model drove the decision of the Italian Christian Democrats to support creation of a constitutional court at the point of constitutional design, but later to delay implementation once in power. Conversely, the Italian Communist–Socialist bloc opposed establishment of the court at the Constituent Assembly that wrote the post-war constitution on the ideological ground that it was contrary to popular sovereignty. However, once the leftist bloc found itself in the role of the opposition, it became a champion of the Constitutional Court and judicial review. The insurance theory is shown to explain the behaviour of the Christian Democrats in both design and implementation phases and the actions of the Communist–Socialist bloc during implementation.     

Constitutional Theories and Constitutional Rights: Federalist Considerations

This article examines the contemporary controversy over constitutionalinterpretation and the differing understandings of constitutionalrights that underlie it. We first consider the character andbasis for interpretivism, that is, a jurisprudence that delineatesrights by reference to the intent of the founders and to theconstitutional text. Next, we review the non-interpretivistalternative, focusing on Ronald Dworkin's influential accountof constitutional rights. We conclude that despite its strengths,Dworkin's position does justice neither to the constitutionaltext nor to the connection between structure and rights in theUnited States Constitution. Finally, considering constitutionaltheory from the broader perspective of state constitutionalism,we conclude that its insights are limited to the U.S. Constitutionand offer some suggestions for a more adequate constitutionaltheory.     

Congress,the Supreme Court,and Judicial Review: Testing a Constitutional Separation of Powers Model

Recent scholarship suggests that the U.S. Supreme Court might be constrained by Congress in constitutional cases. We suggest two potential paths to Congressional influence on the Court's constitutional decisions: a rational‐anticipation model, in which the Court moves away from its preferences in order to avoid being overruled, and an institutional‐maintenance model, in which the Court protects itself against Congressional attacks to its institutional prerogatives by scaling back its striking of laws when the distance between the Court and Congress increases. We test these models by using Common Space scores and the original roll‐call votes to estimate support in the current Congress for the original legislation and the Court's preferences over that legislation. We find that the Court does not appear to consider the likelihood of override in constitutional cases, but it does back away from striking laws when it is ideologically distant from Congress.     

Models of Post-Incorporation Judicial Review: 1985 Survey of State Constitutional Individual Rights Decisions

In 1985 state supreme courts issued the largest number of decisionsto date in which protections of individual rights were basedupon provisions of state constitutions. With increasing frequency,state high courts have held that certain constitutional minimumsof rights protection set by U.S. Supreme Court interpretationsof the U.S. Constitution do not satisfy more demanding preceptsof state constitutional law. Although much of this activityremains reactive rather than systematic, there has been a slightmove toward greater systematic analysis. Furthermore, statecourt decisionmaking can be understood in terms of five modelsthat reflect judicial perceptions of varying degrees of equivalenceor nonequivalence between rights provisions in the U.S. Constitutionand state constitutions. At the same time, however, the U.S.Supreme Court has clearly indicated an interest in monitoringthe individual rights decisions of state high courts, whilelower federal courts have begun to place greater reliance onstate constitutional law to preclude U.S. Supreme Court review.     

Building a More United Kingdom: a Conservative Case for Constitutional Reform1

The United Kingdom faces twin constitutional crises. The existence of the Union itself is now under stronger challenge than ever before, and many of the conventions and understandings which have underpinned the constitutional stability of the United Kingdom and the relationships between executive, Parliament and judiciary have been eroded or overthrown. There is no single, easy way to put things right. What is needed are reforms to the working of Parliament, the Civil Service and devolution, to restore greater balance and stability to our constitution. These should include measures to strengthen the ability of Parliament to hold the executive to account and a new Civil Service Act to provide for the independence, governance and accountability of the Civil Service. To overcome the strains that now threaten the unity of the UK we need a cultural shift in UK politics in favour of partnership and mutual respect, underpinned by changes to the way we do business in both government and Parliament and by greater devolution of power within England.     

Constitutional Reform and Continental Free Trade: A Review of Issues in Canadian Federalism in 1987

Two issues dominated the Canadian federal provincial agendain 1987: constitutional reform and trade negotiations with theUnited States. On the constitutional side, a unanimous agreement—knownas the Meech Lake Accord—was reached among First Ministers(Prime Minister and provincial premiers). On the economic side,Prime Minister Brian Mulroney and President Ronald Reagan signeda comprehensive, bilateral, free trade agreement. However, neitheragreement will take effect until endorsed or implemented bythe relevant legislatures, and one cannot take for granted thatlegislative approval will be forthcoming in either case. Whateverthe outcome, the attempt to grapple with these matters willhave a lasting impact on Canadian federalism. Both agreementsare controversial in certain regions, and while implementationwould initiate a string of systemic changes, rejection wouldengender new regional animosities. Thus, each of the two issues,taken separately, will affect institutional arrangements andterritorial (regional) relationships within Canada. The interplaybetween the two initiatives will also be significant.     

Management by Results: Its Origin and Development in the Case of the Swedish State

ABSTRACT

The paper discusses the origin and development of management by results in Swedish state administration. The historical presence and stability of this political institution is analyzed. It is argued that it can be traced to program budgeting, which was introduced in the early 1960s, and that the institution has been marked by a high degree of stability. An attempt is made to explain the constancy of the steering model. The question is brought to the fore by the fact that the learning process has failed in several respects. The course of events is explained from a historical-institutional perspective and different theories of bureaucratic power. It is asserted that different initial decisions made in connection to the introduction of program budgeting created different positive feedbacks, which were to have stabilizing effects on the institution.     

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。     

Constitutional patriotism,migration and the post-national dilemma

This article addresses the challenges of justifying restrictions on migration given a rejection of nationalism as a defensible mode of political integration. Specifically, it focuses on constitutional patriotism, which is proposed as a means of making robust democratic practice possible in diverse contexts. Given that constitutional patriotism represents a commitment to universal principles as a source of attachment rather than the binding sentiment of nationalism, can we continue to rely on nationally defined and controlled migration practices? This article argues that, appropriately understood, constitutional patriotism implies a commitment to much freer movement of individuals across political boundaries than theorists have previously acknowledged. Applying such an approach, however, provokes some challenges to the sustainability of shared rule informed by principles rather than identity. This seeming paradox may mean that constitutional patriotism is more difficult to implement, and highlights practical challenges surrounding the liberalisation of border controls that are pertinent to theorists concerned with post-national citizenship more broadly conceived.     

Bicommunalism and Canadian Constitutional Reform

The concept of bicommunalism may be invoked in order to clarifyissues relating to Quebec's place in Canada. Since 1960 theQuebec government has put forward constitutional and fiscaldemands that have implied a view of Canada as a bicommunal polityof "two majorities" (Francophone Quebec and Anglophone Canada)in contrast to a bicommunalism of majority and minority (Englishand French Canadians). Many Canadians, however, view their countryas pluralistic and multicultural rather than bicommunal. Thesediffering perceptions help explain recent constitutional controversies—notably,Quebec's rejection of the Constitution Act, 1982. In 1987 thefirst ministers (the prime minister and provincial premiers)reached a unanimous constitutional agreement, the Meech LakeAccord. The accord goes a certain distance toward meeting thetraditional constitutional demands of Quebec, but its underlyingprinciples are not bicommunalist. Perhaps the accord marks theend of bicommunalism in Canada. One cannot be sure of this,however, because (among other reasons) the accord may neverobtain the legislative support needed to bring it into force.