Constitutional Change: A Note by the Bedside

The British constitution is undergoing major change although it tends to be carried out piecemeal and is often ignored. There are contradictory trends in what is happening. Some changes are deliberate major reforms which tend to disperse power and strengthen the rights of the individual against the State. Other changes are incidental by-products of other government policies, and tend in the other direction, towards the greater concentration of power in, and within, central government, for instance by the weakening of local government and the treatment of individual rights in legislation against terrorism. This second trend makes it all the more important that the checks and balances on the exercise of power by central government are effective. The main responsibility for ensuring this must rest with Parliament, backed up by the courts. A Civil Service Bill and perhaps a code of governance for central government would in their different ways be useful.     

公民的基本权利与宪法保障

保障公民的基本权利是宪法最主要、最核心的价值。近代宪法是在保障公民基本权利的过程中产生的,保障公民的基本权利是宪法永恒的主题。基于经济、政治和文化的发展,我国要通过修宪和宪法解释工作进一步确认一些与中国社会发展和人们生活息息相关的必要的基本权利,并通过规范国家权力和加强司法救济等手段来确保公民基本权利的实现。     

National Security, Terrorism and Constitutional Balance

The 'war on terrorism' engages all the institutions of the state. A constitutional structure devoted to protection of liberty must place a paramount value on separation of powers, and a parliamentary democratic constitution should ensure that the ultimate locus of responsibility rests in the legislature, the only branch which has a direct connection to the citizens. However, in an ironic reversal of practice that prevailed before the coming of mass democracy, Parliament in the UK since the early twentieth century has largely accepted a supine role compared to the executive in matters of 'national security'. The judiciary, despite the enactment of legally enforceable human rights, has also manifestly failed to exercise its proper function of curbing abuses of state power. The result is an over-mighty executive, able to draw upon the deference of other branches of government in prosecuting the 'war on terrorism' on the battlefield and in the statute book, which has trampled on individual rights with virtually no check or counte-balance. Some principles by which the balance might be restored are suggested.     

Shaping the Constitutional Dialogue on Federalism: Canada's Supreme Court as Meta-Political Actor

This article challenges the view that the Supreme Court hasbecome the predominant authority on the constitutional distributionof rights and entitlements among governments in the Canadianfederation. By assuming this position of supremacy, criticscontinue, the Court has usurped key policy functions that belongto political actors, a move that has undermined democratic governancein Canada. Against this view, we argue that the management ofCanada's federal constitutional architecture is a responsibilitythe courts share with key political actors. We describe theCourt's role as meta-political, whereby the Court's federalismjurisprudence supplements rather than subverts the constitutionalrole of political actors. We develop our thesis in relationto two subnational constituencies with a distinctive constitutionalstatus in Canada: the province of Quebec and Aboriginal FirstNations.     

Human rights and the distribution of U.S. foreign aid

In contrast to the findings of other studies, we conclude that human rights play a significant and substantive role in determining the distribution of U.S. foreign aid. We find that the foreign aid program relates aid to the need of recipient nations, rewards nations for furthering human rights, does not discriminate on the basis of race or religion, and responds to national security interests of the U.S. The finding that the program does what most people assert it should do provides a new explanation for the rigidity of distributions over time.     

The French Constitutional Council: A Study in Institutional Change

Embodying a revolution in French constitutional law. in principle, the Constitutional Council initially seemed destined for a marginal role. However, a 1971 decision constitutionalizing the Preamble to the constitution and the 1974 revision extending access to 60 parliamentarians transformed its prospects. Initially devised to keep Parliament in its place, it is now a force to be reckoned with at every stage in the policy process but its constraints are felt mainly by the executive. Its jurisprudence displays a blend of audacity and prudence. combining ambitious developments in respect of human rights and national independence with cautious awareness of its vulnerability as a recent creation arbitrating controversial issues within a system traditionally antipathetic to 'government by the judges'.     

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.     

Paradoxes of Constitutional Democracy

Drawing on the work of Frank Michelman and Jürgen Habermas, I outline two interconnected paradoxes of constitutional democracy. The paradox of the founding prevents a purely democratic constitution from being founded, because the procedures needed to secure its legitimacy cannot be spontaneously self-generated. It displays an infinite regression of procedures presupposing procedures. The paradox of dynamic indeterminacy heads off any attempt to resolve this problem through constitutional amendment. It shows that we cannot evaluate the legitimacy of a dynamically evolving constitution based on projections of its future development. To do so, we would need a stronger basis for making probabilistic judgments about the constitution's future path. After exploring the problems of using constitutional patriotism as such a basis, I outline an alternative built on the ideas of dynamic constitutionalism and reflexive citizenship. It shows how a dynamically evolving constitution can promote its own legitimacy from within, simultaneously resolving both paradoxes.     

The Chechen Exception: Rethinking Russia's Human Rights Policy

Orthodox interpretations of human rights policies and practices in post-Soviet Russia are often construed by external critics through a historicist lens of tsarist and Soviet-era authoritarianism. Contemporary Russia's adherence to emerging international human rights norms is commonly judged in sole reference to its human rights disaster in Chechnya. In this article, we contest the notion that human rights abuses in Chechnya fully illustrate Russia's stance on international human rights. We suggest that Chechnya is the exception in the post-Soviet era, and that Russia has increasingly brought its human rights standards in line with the West. We use a historical comparative context as well as Russia's discursive response to NATO's intervention in Kosovo and its UN Security Council voting record as empirical evidence for our argument. ¹     

'The Form Most Eligible': Liberty in the Constitutional Convention

Although the framers of the U.S. Constitution agreed that thefirst principles stated by the Declaration of Independence werefundamental, they thought that the form which freedom shouldtake within the Constitution could not be discovered by a resortto natural rights (and thus declined to affix a bill of rightsto the Constitution). They rejected both the view that libertyis independence (whether of individuals or of states) and theview that liberty is equivalent to the rule of the people. Instead,they held a political view of freedom in which liberty is understoodas the scope men have for political action. The institutionsthey designed direct the use of liberty to the common good.In light of this analysis, the issue of whether the Constitution'sprovisions concerning slavery and its treatment of women areindications of an inadequate view of liberty can be answeredin the negative.     

Human Rights,Personal Responsibility,and Human Dignity: What Are Our Moral Duties to Promote the Universal Realization of Human Rights?

According to the orthodox or humanist conception of human rights, individuals have a moral duty to promote the universal realization of human rights. However, advocates of this account express the implications of this duty in extremely vague terms. What does it mean when we say that we must promote human rights satisfaction? Does it mean that we must devote a considerable amount of our time and resources to this task? Does it mean, instead, that we must make occasional donations to charities working to advance human rights realization? In this essay, I argue that this duty can only be constructed as imperfect. This means that it confers agent-relative discretion on us to decide when, how, and to what extent to advance the human rights of others. It also means that it is neither correlative with rights nor enforceable. As I will explain, the main reason for this is that any attempt to construct it as a perfect duty would infringe the dignity of the potential duty bearers and thereby undermine the very values that human rights practice aspires to serve. Finally, I will conclude by providing some guidelines for those who wish to comply with their imperfect duties to improve the situation of those whose human rights are in peril.     

The West German Federal Constitutional Court as Guardian of the Federal System

The West German Federal Constitutional Court has generally actedas a guardian of the German federal system. The Court has preventedattempts by the federation to encroach upon the modest autonomyleft to the Länder. If a national solution for a problemseems indispensable, the Court favors techniques that compensatethe Länder for a loss of autonomy by granting them certainparticipation rights. Guided by that principle, the Court'sconstruction of the Basic Law has increased considerably thenumber of federal statutes that require the approval of theBunesrat. Thus the Court emphasizes today the idea of partnership.However, in a 1986 decision, the Court made clear that a certainamount of federal leadership is needed to keep the system running.In this decision, the Court reminded the federation expresslyof its responsibility for the whole.     

宪政文明与和谐社会

宪政文明是政治制度文明和政治主体文明的结合体。它要求良宪、民主、法治与人权四者的结合及在实践中的运作,进而形成具有实践的制度安排与价值追求。宪政文明是实现和谐社会的制度保障,是政治发展的目标性指向和规律性要求,具有合作、妥协与平衡的优良品格。宪政精神与和谐社会的内涵有着内在的暗合共通之处,为和谐社会价值目标的实现提供了一条现实的制度路径。     

Property Rights and Forest Commons

Although property rights have been linked to a variety of positive social outcomes at the macro‐level, less research focuses on how property rights affect the benefits that actors receive at the micro‐level. This article examines property rights to a common‐pool resource (CPR) that are asymmetrically allocated among users, and presents a theoretical argument that property rights affect the allocation of resource benefits in two important ways. First, users with extensive property rights receive more benefits than users with limited property rights. Second, users with the power to influence how community rules are enforced—for example, landholders and ethnic majorities—more effectively define and defend their property and thus receive disproportionate CPR benefits compared to users with similar levels of property rights, but with less power. Using household‐level survey data in Bolivia, Kenya, Mexico, and Uganda, collected after a period of property rights decentralization, the empirical analysis finds support for these propositions. We conclude that power critically moderates the effects of property rights on the commons.     

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.     

Inheritance regimes: Medieval family structures and current institutional quality

This study highlights the impact that medieval patterns of intrafamily inheritance practices wield on contemporary institutional quality. We argue that regions that practiced inegalitarian inheritance developed stronger institutions than regions that practiced egalitarian inheritance, for two reasons. First, we argue that transmitting land to a single heir resulted in a sense of personal ownership and, by extension, encouraged individual property rights. Second, we argue that the fact that disinherited children were incentivized to seek training and employment outside the family domicile in regions practicing inegalitarian inheritance resulted in trust‐building social interactions. We test our argument using data on medieval inheritance patterns and modern‐day institutional quality in European subnational regions and across countries globally. Our results show that historical inegalitarian inheritance practices are strongly positively associated with contemporary institutional quality. We conclude that historical norms at the family level are still affecting important modern‐day societal functions.     

The State Constitutional Pedigree of the U.S. Bill of Rights

A direct comparison between the U.S. Bill of Rights and prominentEnglish common law documents shows that the first ten amendmentsto the U.S. Constitution have only a limited relationship toEnglish antecedents. Nor were the amendment proposals by thestate ratifying conventions the primary source of the U.S. Billof Rights. Instead, this famous addition to the federal Constitutionwas a summary of the common core found in the seven existingstate bills of rights. James Madison's use of this source restedupon colonial developments in rights theory, contrasting notionsof rights in England and America, competing notions of libertyin America in the 1780s, and the political exigencies surroundingthe ratification of the U.S. Constitution.     

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.     

Constitutional verbosity and social trust

A common argument in the trust literature is that high-trust cultures allow efficient commercial contracts to be shorter, covering fewer contingencies. We take this idea to the topic of social contracts. Specifically, we ask whether social trust affects the length and detail of constitutions. Cross-country estimates suggest that national trust levels are indeed robustly and negatively associated with the length of countries’ constitutions.     

Do Constitutional Rights Make a Difference?

Although the question of whether constitutional rights matter is of great theoretical and practical importance, little is known about whether constitutional rights impact government behavior. In this article, we test the effectiveness of six political rights. We hypothesize that a difference exists between organizational rights—most notably, the rights to unionize and form political parties—and individual rights. Specifically, we suggest that organizational rights increase de facto rights protection because they create organizations with the incentives and means to protect the underlying right, which renders these rights self‐enforcing. Such organizations are not necessarily present to protect individual rights, which could make individual rights less effective. We test our theory using a variety of statistical methods on a data set of constitutional rights for 186 countries. The results support our theory: Organizational rights are associated with increased de facto rights protection, while individual rights are not.