Positive constitutional economics II��a survey of recent developments

Analysis of the economic effects of constitutional rules has made substantial progress over the last decade. This survey provides an overview of this rapidly growing research area and also discusses a number of methodological issues and identifies underresearched areas. It argues that the next logical step of positive constitutional economics is to endogenize constitutional rules.     

Positive versus normative economics: what’s?the?connection? Evidence from the Survey of?Americans and?Economists on the Economy and?the?General?Social?Survey

Previous research suggests that positive and normative beliefs about economics are largely unrelated. Using questions from two national surveys, this study finds that: (a)?the underlying determinants of positive and normative beliefs are strikingly similar; (b)?education is by far the strongest overall determinant of both positive and normative beliefs; and (c) the variables known to push positive beliefs in the same direction as formal economic training—education, male gender, income growth, and job security—also push normative beliefs in the same direction. These results strongly suggest that the positive-normative connection has been underestimated.     

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.     

以正当程序理念构建中国的刑事侦查制度

正当程序作为一条重要的法治理念和宪法性准则,正在逐步成为各国构建刑事诉讼程序过程中共同的价值取向。正当程序在美国被发扬光大,因此正当程序的理念渗透在英美国家刑事侦查程序的每一个环节中。最主要的体现是司法权对侦查权的制约、犯罪嫌疑人的沉默权及广泛的律师参与权等方面。考察我国有关刑事侦查程序的立法和执法实践,与正当程序的要求还有相当的差距。适当引入正当程序原则,对我国现行的刑事侦查制度的正当化改造有十分重要的现实意义。据此,完善侦查监督体系,强化犯罪嫌疑人的各项权利保障,实行逮捕和审前羁押相分离,以及建立非法证据的排除规则等方面,理应成为构建中国刑事侦查制度的主要内容。     

Blood,Baath and Beyond: the Constitutional Dilemma of Iraq

The constitutional choicefacing Iraq is addressed by drawing uponinsights from public choice theory andconstitutional economics. Whether the oneor the other constitutional framework isadopted may potentially have importantlong-term consequences for the country andthe region. The U.S. administration'sdecision to revise its initial strategy, soas now to proceed with elections beforeputting a constitutional framework in placeseems to get things wrong and ispotentially a recipe for long-termdisaster.     

Legal, Political and Practical Aspects of Budgetary Decision-Making in Finland

The purpose of this presentation is to illustrate the strong role of state finance in society. The article discusses the role of finance and economics from the point of view of administrative and political research. For many years, legal science, especially constitutional and administrative law, has been the leading field of research and practice in Finland dealing with government, the state and even society as a whole. Today, economics and finance have taken the leading position in the Scandinavian welfare state ( Sozialstaat ).     

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.     

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.     

Can democracy induce development? A constitutional perspective

We examine the constitutional design required for democratic societies to overcome poverty traps. Restricting agenda setting by ensuring subsistence levels of consumption and applying simple majority voting as a decision rule will not enable a society to overcome poverty. We show that a combination of suitable constitutional rules can, however, overcome poverty and induce economic well-being. Besides majority voting, these rules include rotating agenda setting, agenda repetition, and tax-protection rules. We thus highlight the crucial role of democratic institutions for economic development.     

A constitutional view of legislative pay

The distinction between constitutional rules and post-constitutional laws is often a fine line. However, this analysis suggests that, in the case of state legislative pay, constitutional rules are much more binding than post-constitutional restrictions. Further research in the area of constitutions from an economic point of view may yield fruitful results. As Tullock (1988: 140) has stated, The real importance of such an evaluation could be as a first step toward developing improved constitutional rules. Evaluating other areas of policy from a constitutional point of view might shed light on the path towards the development of optimal rules in a democratic process.Thanks go to Randy Holcombe for helpful comments and suggestions.     

Federal Homogeneity from the Bottom Up: Provincial Shaping of National HIV/AIDS Policy in South Africa

Federal homogeneity is not always imposed from the center; subnationalunits can and do influence national policy from the bottom upby developing innovative policies. In South Africa, provincialpolicies in the area of HIV/AIDS shaped national policies withinthe context of the overarching normative structure of the nationalBill of Rights. The conditions under which this happened were(1) constitutional space for a province to develop an innovativepolicy and practice, (2) the necessary political will to exploitthe constitutional space, and (3) the judicial and politicalimpact of a province's innovative policy on the national policy.While provincial policy informed the court decision, it alsofurthered the political debate nationally. Finally, intergovernmentalcompetition played an important role in countering the monopolistictendency that can be produced by cooperative government.     

Why so much stability? An optimistic view of the possibility of rational legislative decisionmaking

Recent formal models of legislatures have proved that equilibrium outcomes are extremely unlikely without either (1) extreme restrictions upon preferences or (2) constraints upon the agenda. The implication is that constant instability or dictatorial manipulation is the norm in politics. This paper argues to the contrary, that legislatures (and other political processes) are characterized by some regularities, and that equilibrium models are the appropriate technique to use in describing these regularities. Examples from economic theory are used to illustrate this principle. The assumption of equilibrium is methodological, committing the researcher to develop models that have specific empirical implications. Using analogies from the economic theories of general equilibrium, oligopoly, and demand revealing processes, some potentially fruitful means of developing equilibrium political models are described. Assuming that legislators may freely make binding contracts has both empirical and normative advantages. Finally, institutional restrictions on legislative agendas may assure equilibrium. These include ‘constitutional’ rules, agreements to share ‘pork barrel’ projects evenly, limitation of committees to specific policy arenas, and the election of leaders who then determine the voting agenda.     

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.     

Constitutional law in social choice perspective

Constitutional scholars do not typically employ spatial reasoning in their work. And yet, constitutional jurisprudence and much work in judicial politics implicitly rest on assumptions best cast in spatial terms. These include assuming that positions in constitutional disputes, and the views of Supreme Court justices, generally lie along a common liberal-to-conservative ideological dimension. Although the single dimension assumption is often appropriate, it suffers inherent limitations. First, Supreme Court decision-making rules, both within and across cases, expose problems of dimensionality. Second, important substantive doctrines likewise reveal dimensionality. Third, and finally, throughout the Supreme Court’s history, positions deemed liberal (or conservative) in one period have emerged as conservative (or liberal) in a later period, suggesting that dimensionality is a persistent feature in our jurisprudential history. Social choice proves uniquely suited to explaining these important aspects of constitutional law. After briefly introducing the discipline of constitutional law and its relationship to social choice, this article offers three illustrations of how social choice analysis deepens our understanding of important substantive areas. The analysis exposes dimensionality within Supreme Court decision-making rules, within separation-of-powers doctrine, and over historical shifts in the liberal and conservative valence of once-prominent jurisprudential positions. Failing to appreciate dimensionality, which lies at the core of social choice theory, when studying the Supreme Court and constitutional law risks a truly one-dimensional understanding of a richer and multidimensional institution and body of doctrine.     

Location,location, location: the Davis-Hinich model of electoral competition

The Davis-Hinich multidimensional model of electoral competition is the foundation for a very broad set of models in economics, political science, public choice and political economy. This essay reviews some of these models and how they build on and extend the original Davis-Hinich model. It also presents a new extension that makes individual preferences endogenous to the electoral process. The essay concludes with a discussion of the positive and normative implications of endogenous preferences and then returns to the basic theme of the central importance of the early Davis-Hinich papers.     

Do Group Decision Rules Affect Trust? A Laboratory Experiment on Group Decision Rules and Trust

Enhanced participation has been prescribed as the way forward for improving democratic decision making while generating positive attributes like trust. Yet we do not know the extent to which rules affect the outcome of decision making. This article investigates how different group decision rules affect group trust by testing three ideal types of decision rules (i.e., a Unilateral rule, a Representative rule and a ‘Non‐rule’) in a laboratory experiment. The article shows significant differences between the three decision rules on trust after deliberation. Interestingly, however, it finds that the Representative rule yields more trust than the Non‐rule and also significantly more trust than the Unilateral rule, when analysing the results at group level. These findings challenge the theoretical understanding by, for example, deliberative normative theorists that more inclusive, consensual and non‐hierarchical decision‐making procedures enhance trust vis‐à‐vis other more hierarchical decision‐making procedures.     

Optimal voting rules under uncertainty

The theory of ‘constitutional’ choice of voting rules developed by Buchanan and Tullock is an extended to an explicit decision-theoretic form. Voters in the ‘constitutional’ position choose what they believe will be their optimal share or majority rule for making social decisions, by maximizing their individual expected utility from the anticipated social decisions, under conditions of uncertainty. The rule that maximizes expected social benefits depends upon (1) the expected distribution and intensity of preferences on future issues, and (2) the decisionmaking procedures and costs. ‘Decisionmaking’ and ‘external’ costs are shown to be interrelated. Following this analysis, failure to pass laws imposes ‘external’ costs in the same way that passing them does, so that the optimal majority may be lower when desirable laws are viewed as changing over time. Decisionmaking costs depend upon the way in which voters are persuaded to support or oppose bills, upon the distribution of preferences on bills, and on vote-trading possibilities. If vote-trading is almost costless, a wide range of decision rules has nearly equal social benefits. Finally, the model is used to discuss optimal voting rules for several decisionmaking bodies.     

Unity Without Totalitarianism: Tensions Within Normativity

Although he did not invent the term, Jürgen Habermas has popularised “constitutional patriotism” as a form of political unity that avoids excessive nationalism. This paper attempts to examine the link between emotivism and normativity that has otherwise been excluded from Habermas’s notion of constitutional patriotism. Beyond Habermas, political theory as a whole has not yet taken emotivism as a serious component of normativity. Rather than developing it in isolation, this paper attempts to reconcile emotivism with cognitive-normative practices found within rational deliberation. Reconciling the two not only provides a better normative steering component for judging good from bad practices, but also depicts contemporary political practices more accurately. In sum, constitutional patriotism’s normativity must be sourced from a complex integration of emotion and cognition, or put another way, from the interplay between citizens’ moral sentiments and rational judgements.     

Political deadlocks and distributional information: The value of the veil

Contractarian normative theory relies on the veil of ignorance construct to generate the political consensus required for its theories of justice. By eliminating distributional information, the veil is presumed to facilite consensus building by reducing conflict over the distributional effects of proposed constitutional rules or institutions. This paper explores the extent to which excessive distributional information might also impede the ordinary day-to-day decision making of democratic institutions. Our analysis suggests that distributive information makes political deadlocks under majority rule more likely. Statistical evidence suggests that the efficacy of the U.S. Congress has been reduced by the dramatic increase in distributional information made available to it over the past twenty five years.The authors would like to thank an anonymous referee and the participants of the Center for Study of Public Choice Luncheon Work Shop for helpful comments and suggestions. Helpful comments were also provided by Bruce Benson and Z.A. Spindler at the 1988 meeting of the Public Choice Society. We also wish to thank Jack Triplett for providing us with a pre-publication copy of the page proofs of his piece on computer price indices.