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.     

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.     

Garcia: Of Federalism and Constitutional Values

In Garcia v. San Antonio Metropolitan Transit Authority (1985),a majority of the U.S. Supreme Court's justices did violenceto the principles of the U.S. Constitution by leaving the statesto take their Tenth Amendment complaints to the Congress. Inabdicating their proper constitutional role, the majority ofjustices ignored history, political realities, and constitutionalprinciple. The Constitution's institutional arrangements, ofwhich federalism is a key component, are an intrinsic part ofthe constitutional scheme by which government power is limitedand individual rights are protected.     

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.     

A union of gender equality and pragmatic patriarchy: international marriages and citizenship laws in Singapore

As a patriarchal society, government policies, societal norms and government regulations in Singapore mirror that normative ideal. Citizenship status and rights along gender lines, manifested in the legal recognition of children of international marriages, reflected this reality for much of Singapore's independence. However, the onslaught of globalization, the rise in international marriages, disconcerting declining birth rates, and an acceptance of ‘foreign talent’ have given the economic imperative and demographic impulse to grant citizenship (by descent) to a person born outside Singapore whose father or mother is a citizen of Singapore, by birth, registration or descent. Previously, such a person would be granted citizenship only if his/her father was a Singapore citizen by birth. This paper examines the background and contextual realities leading to the Constitution of the Republic of Singapore (Amendment) Act 2004. It argues that the landmark constitutional amendment was motivated by pragmatic considerations of demography, economics, and political governance. The paper contends that state sovereignty, while seemingly challenged by international marriages, is still preserved rather than negated. It suggests that the state's ideological apparatus vis-à-vis the family is adaptable, enabling the continued institutional influence, if not control, over the family as the basic building block of Singapore society.     

Access to justice: Widows and the institutions regulating succession to property in Uganda

The 1995 Constitution of the Republic of Uganda in terms of article 31 (2) thereof, establishes rights under which widows and widowers can inherit property from their spouses and enjoy parental rights over their children. A duty is placed on the government to make appropriate laws to this end. More important though, the state has a duty to facilitate the administration of estates in general by making, through decentralization, the institutional and legal framework on succession more accessible to ordinary people. An issue that deserves fresh consideration is whether this obligation to make the legal and institutional framework on succession accessible to ordinary people and especially widows, the years fater the Constitution was promulgated has been realized, and if so, whether it has advanced the property rights of these surviving female spouses in the estates of their deceased spouses.     

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.     

Changing Conceptions of Rights in the United States and the West

Among the most pronounced features of the American revolutionarygeneration, which culminated in the writing and adoption ofthe Constitution of the United States, were the introductionof the idea of individual rights as the basis for politicalorganization and the protection of those rights as a major taskof government.¹ This idea, which now is uncritically acceptedby conventional opinion, in itself represents only one conceptionof rights and must be understood as such. In this article, wewill examine what is a conception of rights and how rights arejustified. In this exploration, we have to understand how eachconception of rights is shaped by a particular view of the natureof man, a particular understanding of the sources of rights,and a particular direction for the expression of rights.     

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.     

Judicial Federalilsm and Equality Guarantees in State Supreme Courts

The new judicial federalism emphasizes state court relianceon state constitutional grounds for the enhanced protectionof individual rights. Commentary in the legal literature givesthe impression of much state court activism in this area. However,a quantitative analysis of 2,286 equal protection cases decidedby state supreme courts between 1975 and 1984 shows much lowerlevels of the exclusive use of state constitutions. The dataalso reveal significant regional variations in the nature ofequal protection cases filed, the types of alleged discrimination,the use of independent and adequate state grounds, and the frequencyof judicial invalidation of state action. These variations areexplored in terms of political culture, the institutional featuresof the state judiciary, and the content of state bills of rights.     

Restraining the Governors: The Nordic Experience with Limiting the Strong State

The combination of a tradition of arbitrary royal government and popular intolerance, with the existence of extensive, unitary and highly centralized institutions of government, and with the dominance of government by a single, reformist party for more than a half century would seem a potent recipe for governmental abuse of individual and minority group rights. That is especially true in the absence of the formal constitutional safeguards used to preserve rights elsewhere Yet the Nordic democracies have in fact proved exemplary in protecting civil liberties Why? This article challenges the view that Nordic political societies are consensual historically or by nature, and it describes the limited traditional institutional checks on abuse of individual and minority rights by government Instead it finds the basis for the Nordic democracies' excellent record in civil liberties in the combination of (1) the development of new, non-traditional institutional checks on government. (2) the use of direct democracy as a check on parliamentary majorities. (3) the pervasive use of corporatist channels encompassing the major oppositional interest groups to draft and implement legislation, and (4) the effective constraints placed on decisions by parliamentary majorities by the pattern of fierce partisanship in the finely balanced parliamentary party constellation These protections for individual and minority liberties arise primarily from the assumption that basic conflicts of interest are a fact of political life and that they should be institutionalized.     

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.     

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.     

State High Courts, State Constitutions, and Individual Rights Litigation Since 1980: A Judicial Survey

In 1985, state courts of last resort issued more decisions thanin any year since 1950 in which they extended rights protectionsto individuals beyond those recognized by the U.S. Supreme Courtby basing rights protections solely or independently upon stateconstitutional grounds. A survey of state high court judgesand justices reported here indicates that there has been a nationwideincrease in the number of individual rights cases litigatedunder state constitutions since 1980. Significant-to-moderateincreases, however, were more likely to be reported by justicesfrom the Northeast and West, from states having a moralisticpolitical culture, and from courts whose members are appointedby the governor and/or legislature. State constitutional rightsclaims are more likely to be raised in criminal than noncriminalcases, though in both types of cases and in most states, stateconstitutional rights claims are raised less frequently thanfederal constitutional rights claims. Majorities of judges andjustices favor the ideas of teaching state constitutional lawin law schools and of testing for knowledge of state constitutionallaw on bar examinations.     

Right,the state and the conception of the person

The contemporary world‐historical epoch involves both the universal extension of the state type of organization of society, and the development of a universal idea of the person in the discourse of human rights. The status of the person requires positive constitution, and such constitution requires an idea of the state that informs the actual working of states. The idea of the state cannot be developed unless the natural right conception of the basis of personhood is abandoned. Nor can the idea of the state be developed if it continues to be confused with the idea of the nation. Hegel offers us an idea of the state that we can continue to build. For Hegel the state denotes both the institutional reality of the state and the subjectivity that is required if the idea of the state is to be actualized. There is a dialectical relationship between the adequacy of the state‐centered institutional order for the effective support and facilitation of personhood and our subjective capacity to be and act as persons. Thus, processes by which the idea of the state is undermined are not independent of subjective experience and our willingness to be and act as persons.     

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 convergence of fiscal regimes and the decline of the Tiebout effect

A measure of waste from the competitive rent-seeking activity of special interest groups in federal, state and local budgets was calculated over the period 1900–88. This period in U.S. fiscal history is characterized by constitutional changes that have made for more transparency in governmental fiscal activities and for greater diffusion of taxes. The XVI Amendment to the Constitution created the progressive individual income tax (the corporate income tax was judged to be an excise tax in 1909 and passed the test of constitutionality). High marginal tax rates are a justification for a high average level of taxation. The Full Employment Act of 1946 insitutionalized government deficits as a means of meeting a political objective. As a result, opportunities for rent-seeking through budgetary reallocations rose in the United States. In the first two decades of the 20th century, waste at all levels of government represented about 10 percent of incremental national output. Today, waste is three times that amount.The transparency and diffusion of taxes are highest at the federal level and least at the local level. Rent-seeking through budgetary reallocation has followed the public purse. One explanation for the observed centralization of government in the 20th century may be that opportunities to concentrate benefits and diffuse taxes are highest at the federal level.     

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.     

Terrorism,anti-terrorism and the normative boundaries of the US polity: The spatiality of politics after 11 September 2001

Both terrorism and governmental anti-terrorist actions affect spatial structures and their boundaries, such as the state and the distinction between public and private spaces. Those spatial structures also articulate the normative dimensions of human life, which include the ethical principles and constitutional rights that orient behaviour and thought. By affecting the spaces, places and scales of life, (anti-)terrorism potentially can generate a new normativity. A new normativity would be manifested in changes to spatial structures and thereby would indicate that the content of political rights like personal freedom had been changed in practice. This paper addresses the possible emergence of a new normativity via an examination of how spatial structures are affected—specifically, their permeability and plasticity—by terrorist and anti-terrorist activities within a US context.     

Decentralized Governance under Centralized Party Rule in Ethiopia: The Tigray Experience

Abstract

In the mid-1990s Ethiopia adopted a federal constitution promising regional autonomy and the creation and strengthening of local government units below the regional level. Some observers attribute the various shortcomings of Ethiopian federalism that have emerged since then to the original institutional/constitutional design. This paper, however, argues that what is not in the constitution has come to influence the workings of decentralization more than what is codified in it. The dominant national party in power, the Ethiopian People's Revolutionary Democratic Front (EPRDF), either directly or through affiliates, controls political office at all levels of government, thereby limiting the room for local initiative and autonomy. The presence of a national dominant party limits the responsiveness and downward accountability of Wereda (district) authorities; it also undermines political competition, and by extension, good governance at the grassroots level. The paper is based on field research carried out in the Tigray regional state of Ethiopia. The conclusion is that when one party dominates the politics of the region and its institutions, extra-constitutional intra-party politics determine how things work, thereby subjugating localities’ autonomy and impeding their ability to deliver on promises of decentralization.