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.     

Information and trust as social aspects of credit

Abstract

According to mainstream economic theory the contractual relationship between borrower and lender is characterized by asymmetry of information regarding the project to be financed. It is assumed that trust among credit participants is constructed individually as they collect and assess requisite information. In contrast, this paper argues that trust and information among credit participants have compelling social constituents that depend on economic function and social context. More specifically, the paper shows that financial institutions transform trust into a social and objective relationship. The capitalist credit system comprises a set of institutions that construct trust socially by using increasingly general information. Nonetheless, the foundation of credit-related trust is the ability to repay money. Hence the moral content of credit is thin, giving rise to fraud and deception.     

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.     

论信用及信用体系的现代构建

中华民族素来以诚信著称。然而在历史的变迁中 ,今日中国却陷入了信用危机中。本文面对这一现实 ,浅析了信用危机产生的原因和信用危机造成的危害 ,并从建立信用机制、完善法律法规、强化企业自律和加强道德教育几个方面论述了信用体系的现代构建。作者以为 ,只有建立起健全的信用体系 ,才能使社会朝着良性的方向发展     

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.     

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.     

Implementation, accountability and trust

Abstract. According tot standard dictionaries 'implementation' is ambiguous, as it means either the act of implementing or the state of having been implemented. This duality has characterized implementation theory, which models the process of implementation in different ways, each presumably conducive to successful implementation as an outcome. It is argued that one model of implementation as a process is most suitable for successful implementation meaning the fulfillment of policy objectives by programme technologies. However, there is no necessary relation between some model of implementation processes and implementation as an outcome. Public policies may be implemented in various ways and some policies do fail implementation or result only in political symbolism, but that does not warrant generalizations about the impossibility of successful implementation or create a case for some special model of implementation as hierarchical authority, or as evolution, learning or coalition. Basic to implementation is accountability, which restricts the amount of trust that gives autonomy to those responsible for the implementation of policies. The conceptualization of implementation as a combination of accountability and trust points in a new direction for the analysis of policy cycles.     

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。     

论宪法文化及其培养

宪法文化以公民权利为出发点,其形成和发展直接影响民主政治的建立和完善,一个国家宪法文化建设的程度标志着这个国家政治文明建设的程度。我国经济体制改革进一步向纵深发展,政治体制面临重大改革。培养与社会经济、政治发展相适应的宪法文化,必然极大地推进社会政治文明的建设,推动人的发展和进步。     

民主:在信任与不信任之间——兼论民主与信任的关系

民主总是处于"信任"与"不信任"之间。本文从政治社会学的视角出发,探究了民主何以总是处于信任与不信任之间,并提出并不是所有类型的信任都有益于民主,信任与民主之间存在着一个悖论。     

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.     

Constitutional Illegitimacy over Brexit

Members and supporters of the British government say that the only constitutionally legitimate course of action over Brexit after the referendum is to press ahead with withdrawal from the European Union, even if that would entail the complete severance of all ties (which we normally call ‘hard Brexit’). A more sophisticated view of the constitution, however, shows that these more or less populist arguments are false. As the Supreme Court confirmed in the recent Gina Miller judgment, the constitution did not change with the June referendum. Parliament is still supreme and determines both ordinary legislation and constitutional change. In fact, if one examines closely the claim that the referendum entails hard Brexit, it becomes obvious that this claim is false as well. The referendum opened the door for one among four different possibilities. Which Brexit option—if any—the United Kingdom should take is a matter for Parliament now to decide, following the normal processes of democratic deliberation and representation.     

Voice and trust in parliamentary representation

In both social and political matters, individuals trust those they believe will treat them fairly. Individuals in democracies have little objection to abiding by policies instituted by parties they did not vote for because the system by which the parliament is formed is considered fair. However, even among democracies, some electoral systems are fairer than others. It stands to reason that trust in parliament is affected by the perceived fairness of the electoral system. This research demonstrates that actual or perceived provision of voice in parliamentary representation does increase individual trust in parliament. Systems designed with the intent to provide fair representation and those that provide the illusion of fair representation produce higher levels of trust in parliament.