1. Introduction 2. How long should constitutions endure? 3. Conceptualizing constitutions 4. A positive theory of constitutional endurance 5. Empirical implications of the theory: identifying risks to constitutional life 6. An epidemiological analysis of constitutional mortality 7. Contrasts in constitutional endurance 8. Contexts of chronic failure 9. Conclusion.

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The Endurance of National Constitutions

1. Federations and the theoretical problem: 1.1 Why Federalism 1.2 Definitions 1.3 The long search for stability Federalism as nuisance Federalism as engine of prosperity Riker as intermediary 1.4 The fundamental problem of stability 1.5 Basic premises and conclusions 2. Federal bargaining: 2.1 Alliances versus federations 2.2 The private character of public goods 2.3 Equilibrium selection and redistribution 2.4 The 'federal problem' 2.5 Bargaining for control of the center 2.6 Allocating jurisdictions 2.7 Three levels of institutional design 3. Two cases of uninstitutionalized bargaining: 3.1 The Czechoslovak dissolution 3.2 The Soviet dissolution 3.3 The feasibility of success in initial bargaining 3.4 Secession: the special road to renegotiation 4. Representation: 4.1 Two alternative models of Federalism 4.2 A national venue for bargaining 4.3 Within versus without 4.4 Direct versus delegated representation 4.5 Other parameters of design 4.6 Bilateral decision making and the case of Russia 5. Incentives: 5.1 Institutional enforcement 5.2 The court 5.3 Some simple rules of constitutional design 5.4 Voters versus elites 5.5 Desirable imperfection and a democratic as if principle 6. Political parties in a federal state: 6.1 An extreme hypothesis 6.2 Parties in a democracy 6.3 The idealized party system 6.4 Integrated parties 6.5 Integration outside the United States Australian Federalism and the role of parties Canada 6.6 India Leadership incentives Rank and file incentives The party and Federalism 1967 and thereafter 7. Institutional sources of federal stability I: 7.1 Introduction 7.2 Level 2 and the federalist 7.3 Level 3 institutions 7.4 Australia, Canada, Germany, and India revisited Germany Canada Canada vs Australia and India 7.3 Local and regional design parameters 8. Institutional sources of federal stability II: 8.1 Electoral mechanisms and societal structures Representation Ethnicity Defining federal subjects Number of local jurisdictions Authority over local governments 8.2 Bicameralism Symmetry Presidential authority Presidential selection Electoral connections 8.3 Level 1 and the scope of the federal mandate 8.4 Level 0 - things beyond design 9. Designing Federalism: 9.1 Russia Electoral arrangements Regional autonomy Constitutional matters Parties and the current status quo 9.2 The European Union Background The role of parties The puzzle of the collusion France versus Britain EU institutional design 9.4 Conclusion.

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Designing Federalism: A Theory of Self-Sustainable Federal Institutions

Designing Federalism: Subject Index

Theories of European Integration

The new sovereignty: compliance with international regulatory agreements

In vivo behavior of acrylic bone cement in total hip arthroplasty.

In countries that lack a single canonical text, the "constitution" is defined to include all those laws that perform the constitutive functions of creating governmental institutions and conferring rights on individuals. The British Constitution, for example, is generally thought to include a variety of constitutive statutes, such as Magna Carta, the Parliament Acts, and the Human Rights Act. This article proposes a thought experiment: What if we defined the U.S. constitution by function, rather than by form? Viewed from this perspective, "the Constitution" would include not only the canonical document but also a variety of statutes, executive materials, and practices that structure our government. It would include, for example, the Judiciary Act of 1789, the Administrative Procedure Act, the Executive Orders establishing Presidential control of administrative rulemaking, and the non-statutory rules that govern voting in the House and Senate and the structure of our major political parties. These sorts of extra-canonical materials perform the basic constitutional functions of constituting the government and conferring rights on individuals. What they lack is a third characteristic shared by some (but not all) constitutions: formal entrenchment against legal change. Entrenchment has become central to the American conception of a constitution, but I propose here to decouple the entrenching function from the constitutive function for purposes of constitutional analysis. This approach offers a relatively simple answer to one of the most important problems in constitutional theory: How do we explain the evident fact that the structure of our government and the rights of the people have changed pervasively since the Founding, in ways that are simply not reflected in Article V amendments to the canonical text? The answer is that the constitutional order can change in this way because most of it was never entrenched in the canonical text to begin with. Most of the salient changes - the growth of the administrative state, the proliferation of individual entitlements - are changes to our "constitution outside the constitution" that are neither mandated nor forbidden by the canonical document. Because I do not view these changes as any more entrenched than the arrangements they replaced, I do not need to develop any complex and contestable theory of "higher lawmaking" to set these changes apart from other "ordinary" legislation. The functional account of constitutionalism offered here also has implications for constitutional doctrine and scholarship. My account tends to undermine doctrinal prescriptions grounded in a sharp dichotomy between constitutional and statutory claims. Such prescriptions would include arguments that the federal courts' irreducible jurisdiction under Article III should be defined by their power to hear constitutional claims, or that the federal civil rights statute, 42 U.S.C. § 1983, should be interpreted to exclude claims under federal statutes and regulations. Likewise, recognizing the constitutive functions of statutes and regulations suggests that basic constitutional values - such as federalism or concern for individual rights - are just as relevant to statutory construction as they are to interpreting the constitutional text. Finally, the functional account suggests a broader set of concerns for constitutional law teaching and scholarship; in particular, it suggests that constitutional scholars should be concerned with the institutional design of constitutive statutes, treaties, and regulations rather than solely focused on interpreting the canonical text.

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The Constitution Outside the Constitution

Countries lacking a single canonical text define the “constitution” to include all laws that perform the constitutive functions of creating governmental institutions and conferring rights on individuals. The British Constitution, for example, includes a variety of constitutive statutes, such as the Magna Carta and the Parliament Acts. This Article proposes a thought experiment: what if we defined the U.S. Constitution by function, rather than by form? Viewed from this perspective, “the Constitution” would include not only the canonical document but also a variety of statutes, executive materials, and practices that structure our government. What these constitutive materials lack is a third characteristic shared by some (but not all) constitutions: formal entrenchment against legal change. Decoupling the entrenching function from the constitutive functions offer a relatively simple answer to one of the most important problems in constitutional theory: how do we explain the evident fact that the structure of our government and the rights of the people have changed pervasively since the Founding, in ways that are simply not reflected in Article V amendments to the canonical text? The answer is that the constitutional order can change in this way because most of it was never entrenched in the canonical text to begin with. Most of the salient changes—the growth of the administrative state, the proliferation of individual entitlements—are changes to our “constitution outside the constitution” that are neither mandated nor forbidden by the canonical document. This functional account of constitutionalism also has implications for constitutional doctrine and scholarship. It tends to undermine doctrinal prescriptions grounded in a sharp dichotomy between constitutional and statutory claims, and it suggests that basic constitutional values— such as federalism or concern for individual rights—are relevant to statutory construction. Finally, the functional account suggests a broader set of concerns for constitutional law teaching and scholarship. author. Charles Alan Wright Chair in Federal Courts, University of Texas School of Law. I am grateful to Stuart Benjamin, Carina Cuellar, Phil Frickey, Mark Gergen, Heather Gerken, Scott Keller, Doug Laycock, H.W. Perry, Scot Powe, Eric Soskin, participants at the Boalt Hall, Duke, and Stanford faculty colloquia, and Dick Markovits’s Legal Scholarship seminar for helpful comments on the manuscript; to Robert Bruner, Lance Currie, Jennifer Ferri, Jane O’Connell, and Will Routt for research assistance; and to Allegra Young on general principle. 0408_YOUNG_0473.DOC 12/14/2007 1:07:31 PM the constitution outside the constitution 409 article contents

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/pdf/judicial-activism-and-conservative-politics-7l334clsf3.pdf

Judicial Activism and Conservative Politics

The Court's jurisprudence of "cruel and unusual" punishments has both objective morality and practice components.4 The latter determines whether a consensus rejects a challenged practice by canvassing the practices of other relevant jurisdictions.' Such an inquiry requires choices about which other jurisdictions are relevant. One might envision this universe of relevant jurisdictions as the denominator of a fraction, with the jurisdictions actually pursuing the challenged practice supplying the numerator. If the numerator is small relative to the denominator then the Court will condemn the practice as an outlier, out of step with "evolving standards of decency."6 Roper's "denominator problem" concerned whether foreign jurisdictions should count in Eighth Amendment cases.7 Justice Kennedy's

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Ernest A. Young

Papers

In vivo behavior of acrylic bone cement in total hip arthroplasty.

The Constitution Outside the Constitution

The Constitution Outside the Constitution

Judicial Activism and Conservative Politics

Foreign Law and the Denominator Problem