How can Political Liberals be Environmentalists?

It is often assumed that neutralist liberalism and environmentalism are incompatible because promoting environmentally friendly policies involves endorsing a particular conception of the good life. This paper questions that assumption by showing that one important version of neutralist liberalism, John Rawls's 'justice as fairness', can allow two kinds of justification for environmental policies. First, public reason arguments can be used to justify conceptions of sustainability and environmental justice. Second, comprehensive ideals (including non-anthropocentric ideals) can be used to justify more ambitious environmental policies when two conditions are met, namely, the issue under discussion does not concern constitutional essentials or matters of basic justice; and the policy is endorsed by a majority of citizens. Rawls's willingness to allow this second kind of justification for environmental (and other) policies is defended against two objections, which claim that Rawls's 'democratic liberalism' is incoherent. The first objection – the 'justice' objection – is that to spend public money promoting comprehensive (environmental) ideals is inconsistent with the 'difference principle'. The 'justice' objection depends on a common misunderstanding of the difference principle. The second objection – the 'neutrality' objection – claims that 'democratic liberalism' is inconsistent with Rawls's commitment to neutrality. The 'neutrality' objection is unconvincing because 'democratic liberalism' is 'fundamentally neutral' whereas the leading alternative is not.     

Defining Executive Power: Constitutional Reform for Grown-ups

Australia is well endowed with constitutions. It has seven, one for the commonwealth and each of the six states, and nine if the documents establishing self-government for the Australian Capital Territory and the Northern Territory are included. This gives plenty of scope for constitutional reform: that is, changing the most important rules which specify how a political community is governed. In the event, public debate over constitutional reform in Australia has been sporadic and concentrated on a narrow range of issues. Perhaps this is as it should be. Constitutions should reflect broad public acceptance of the basic rules governing the operation of government, and if the system is running smoothly, there is little reason for change. Only when events occur that demonstrate that there are shortcomings in the structure of government should constitutional reform be considered.     

Populism versus Democracy

This article provides a comparative conceptual analysis of the logic of populism and the logic of (constitutional) democracy. Populism is defined as a thin-centered ideology which advocates the sovereign rule of the people as a homogeneous body. The logic of this ideology is further developed in reference to the work of Carl Schmitt and is shown to generate all the characteristics typically ascribed to populism. The logic of democracy is analyzed on the basis of the work of Claude Lefort and defined as a regime in which the locus of power remains an empty place. This analysis replaces the widespread model of constitutional democracy as a paradoxical combination of a constitutional and a democratic pillar. This two-pillar model fails to appreciate the internal coherence and some of the main features of the (constitutional) democratic logic. Thereby, the two-pillar approach gives rise to an understanding of populism as continuous with the democratic promise of constitutional democracy. In contrast, our analysis explains populism as the closure of the empty place of democracy. This highlights the antagonistic discontinuity between the logic of populism and the logic of democracy.     

Dworkin on external skepticism and moral permissions

This article discusses Ronald Dworkin’s first objection against what he calls external moral skepticism, the view that denies truth-value to moral judgments. According to that objection, an external skeptic denies that substantive moral judgments can be true. But, at the same time, the objection goes, what follows from the skeptical view is that all actions are morally permissible, which is in itself a substantive moral judgment. We call this ‘the self-defeating argument.’ We argue that the objection’s success depends on how we interpret the idea of moral permission, an issue Dworkin does not clearly resolve. Against his objection, we advance two different arguments. First, once we learn what role the idea of moral permission plays in morality, we can see that any plausible view of some agent’s moral permission must acknowledge its complex character, and that the existence of a moral permission must have some impact on the balance of moral reasons for other agents. On this understanding, it is false that it follows solely from external skepticism that everything is permissible. Second, we argue that even if permissions have a simple character, not a complex one, they are plausible only when framed within a moral constellation of rights and obligations. So understood, it is, again, false that it follows from external skepticism that everything is permissible.     

Assessing the public's understanding of constitutional reform: Evidence from Argentina

Constitutional and institutional reform is occurring at an impressive rate throughout the world. To explain the dynamics of reform the scholarly literature has focused almost exclusively on political elites. Analyses of the role played by public opinion in the constitutional reform process have been largely missing. This study takes an initial first step toward understanding the role played by public opinion through an analysis of public understanding of selected constitutional reform issues in Argentina. The evidence indicates that the Argentine public has a fairly sophisticated understanding of the issues involved in constitutional reform. This finding suggests that current elite-based explanations of constitutional and institutional reforms are incomplete. The article also provides a point of departure for future studies of the complex elite-mass interaction that occurs during reform.     

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.     

A Tale of Two Courts: The Judicialization of Electoral Politics in Asia

This article examines the judicialization of electoral politics in Asia, an important but understudied trend, as demonstrated in Thailand and Indonesia. Though the constitutional courts in both have similar histories and institutional arrangements, their electoral interventions vary radically. We argue that the diffusion or concentration of power among post‐transition elites determines whether the effect of judicial activism will be to shore up or undermine electoral governance. Where power is diffused, as in Indonesia, political actors, less able to impose their own will on the judiciary, seem to prefer a credible referee, which fosters electoral competition. Where power is concentrated, as in Thailand, elites have both the motive and the means to turn judicial activism to antidemocratic ends. By focusing on the ends, rather than the means, of judicial activism, this account goes beyond personalities and institutional design to enhance understanding of the role of the courts in transitional democracies.     

Tracing policy influence of diffuse interests: the post-crisis consumer finance protection politics in the US

Dodd–Frank, the financial reform law passed in the United States in response to the 2008 financial crisis, established the Consumer Financial Protection Bureau, a new federal regulator with the sole responsibility of protecting consumers from unfair, deceptive, or abusive practices. This decision marked the end of a highly politicized reform debate in the US Congress, in which proponents of the new bureau would normally have been considered to be much weaker than its opponents. Paradoxically, an emerging civil society coalition successfully lobbied decision-makers and countered industry attempts to prevent industry capture. What explains the fact that rather weak and peripheral actors prevailed over more resourceful and dominant actors? The goal of this study is to examine and challenge questions of regulatory capture by concentrated industry interests in the reform debates in response to the credit crisis which originated in the US in 2007. The analysis suggests that for weak actors to prevail in policy conflicts over established, resource-rich opponents, they must undertake broad coalition building among themselves and with influential elite allies outside and inside of Congress who share the same policy goals.     

Whatever Became of the British?

Much of the debate about ‘being British’ is driven by the politics of the constitutional future of the United Kingdom. This has led to assertions about the declining impact of Britishness, and how, in the interests of the Union, it might be revived. Data from British and Scottish Social Attitudes surveys show that ‘Britain’ remains an important and meaningful frame of reference, even though people in England and Scotland may not define their prime national identity as British. The relationship between national identity and constitutional preferences is complex. Being ‘strongly Scottish’ is a weak predictor of constitutional preferences because almost all Scots are at the ‘strong’ end of the Scottish scale, whereas saying you are ‘British’ (or not) is a better guide. It is not a matter of choosing to be Scottish or English over being British, but recognising the complexity and inter‐relationships of diverse territorial identities.     

The Judicial Theory of a Reasonable Public Servant

Contemporary theory of the constitutionally reasonable public servant, established by the U.S. Supreme Court in 1982 in Harlow v. Fitzgerald, is measured in reference to clearly established constitutional or statutory rights that a reasonable person would have known. In this article, the author seeks to elucidate the evolving contours of the objective reasonableness standard and examines how federal courts have applied it. To gain a firsthand impression of how public officials challenged in federal courts are measuring up to the objective reasonableness standard, the author provides a snapshot of 449 recent court cases selected from two federal circuits, the Eighth and the District of Columbia circuits. He concludes that public officials in these two circuits have fared very well under the standard of objective reasonableness. The flip side is that aggrieved individual citizens must carry a heavy burden to protect their constitutional rights.     

Human Rights Without Political Participation?

John Rawls claims that “benevolent absolutisms” honor human rights without honoring political participation rights. Critics argue that he is mistaken. One objection appeals to the instrumental value of political participation rights. This objection holds that without political participation rights, individuals cannot secure the content of their rights against encroachment. Given this, individuals without political participation rights cannot be said to have rights at all. Here, I evaluate this instrumental objection. I identify three ways of relating political participation rights to human rights and show that one makes sense of Rawls’s claim. I then defend this view from instrumental objections. This has implications beyond the realm of Rawls scholarship. Many societies are not democratic and are not democratizing. We must determine whether any of these societies can secure at least the content of human rights and, if so, what shape their social and political institutions must take to do so.     

The politics of institutional reform in Italy

This article reviews the recent Italian debate on possible constitutional and institutional reforms aimed at improving governmental decision‐making capacity. In the first section, the post‐war institutional developments are briefly discussed to show how the present problems have emerged. Various reform proposals affecting the electoral system, Parliament and government are then analysed, together with the political pre‐conditions and consequences linked to their possible adoption. With reference to these political considerations, the various kinds of reform are evaluated in terms of their capacity to achieve their goals and of their acceptability to the political parties.     

Nonmission–Based Values in Results–Oriented Public Management: The Case of Freedom of Information

Since the 1940s, Congress and the federal courts have sought to make U.S. federal administration more responsive to democratic–constitutional values, including representation, participation, transparency, and individual rights. As manifested in the National Performance Review, the New Public Management emphasis on results may reduce attention to these values, which for most agencies are not intrinsically mission–based. Freedom of information illustrates the problem of protecting nonmission–based, democratic–constitutional values in results–oriented public management. Agencies' annual performance plans under the Government Performance and Results Act overwhelmingly ignore freedom of information, even though it is a legal requirement and performance measures for it are readily available. This study concludes that focusing on results may weaken commitment to democratic–constitutional values by default. It suggests that using a balanced scorecard approach in performance plans could enhance attention to freedom of information and other democratic–constitutional values.     

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’.     

Freedom,immigration, and adequate options

According to the freedom argument for open borders, immigration restrictions are generally unjust because these restrictions infringe on important freedoms, such as freedom of association and the economic liberties. Some authors have objected to the freedom argument by claiming that potential immigrants only have rights to sufficient options to live decent or autonomous lives and, consequently, states can permissibly prevent people from immigrating when potential immigrants have adequate options. This paper shows that this objection to the freedom argument for open borders is unsound and that restrictions on international freedom of movement can be morally impermissible even when potential immigrants have adequate options.     

Research Note: Are Referendums Controlled and Pro-hegemonic?

Are most referendums controlled and pro-hegemonic, i.e. do governments only submit issues to referendums if they are certain that they will win (as asserted by Lijphart, Butler and Ranney)? This paper shows conclusively that the constitutional referendums in Western polities have performed the functions of constitutional safeguards, and that the governments have been unsuccessful in their attempts to control the referendum.     

The Swedish Constitution and Social Democratic Power: Measuring the Mechanical Effect of a Political Institution

Recent discussions of Swedish political change have focused on the decline of Social Democratic 'hegemony' and on the end of the 'Swedish model'. In contrast to preference– or interest –driven explanations for these developments, this paper investigates the impact of constitutional changes made in 1969 in Sweden, which included the elimination of the Upper House or First Chamber of the Swedish parliament and the introduction of a more directly proportional electoral system. Using a simulation model, the actual electoral results from 1969 through 1994 were plugged into the formulas set forth by the old constitutional rules, in order to generate the number of parliamentary seats each party would have received under the old system. This simulation shows that the Social Democratic Party would have received a significantly larger share of parliamentary seats under the old constitutional rules than under the current constitution. Thus one can conclude that the new constitution decreased Social Democratic power in Sweden.     

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.     

Constitutional political economy in the European Union

This article surveys recent research in constitutional political economy in Europe. Although not all of the works discussed necessarily focus only on European constitutional issues or are written by Europeans, European constitutional issues figure importantly in each area surveyed. The article examines the literatures linking constitutional institutions to economic growth, government size, government deficits and corruption, bicameralism, direct democracy and federalism. Three exclusively European topics also are covered: constitutional issues in the transition countries, the structure of the European Union and the draft constitution for the European Union.     

For a European Constitutional Patriotism

In recent years, two dominant models for understanding the source of common political identities have emerged in the European context: the universalist paradigm of constitutional patriotism and the communitarian paradigm of 'civic nationalism'. In view of this dichotomy, one could be tempted to think that only a combination of these two positions could deal with the mixed nature of European architecture. The European Union would thus give birth to the appealing synthesis of a 'cosmopolitan communitarianism'. This choice of a middle way is challenged in this paper. Instead, I argue that the national or communitarian challenge would be better met by the development of constitutional patriotism rather than by a loose compromise. Contrary to what most commentators seem to believe, constitutional patriotism has practical significance, is historically embedded and seeks to promote a shared political culture.