Showing papers on "Constitution published in 2004"

Constitutional Design for Divided Societies

Abstract: Over the past half-century, democratic constitutional design has undergone a sea change. After the Second World War, newly independent countries tended simply to copy the basic constitutional rules of their former colonial masters, without seriously considering alternatives. Today, constitution writers choose more deliberately among a wide array of constitutional models, with various advantages and disadvantages. While at first glance this appears to be a beneficial development, it has actually been a mixed blessing: Since they now have to deal with more alternatives than they can readily handle, constitution writers risk making ill-advised decisions. In my opinion, scholarly experts can be more helpful to constitution writers by formulating specific recommendations and guidelines than by overwhelming those who must make the decision with a barrage of possibilities and options. This essay presents a set of such recommendations, focusing in particular on the constitutional needs of countries with deep ethnic and other cleavages. In such deeply divided societies the interests and demands of communal groups can be accommodated only by the establishment of power sharing, and my recommendations will indicate as precisely as possible which particular power-sharing rules and institutions are optimal and why. (Such rules and institutions may be useful in less intense forms in many other societies as well.) Most experts on divided societies and constitutional engineering broadly agree that deep societal divisions pose a grave problem for democracy, and that it is therefore generally more difficult to establish and maintain democratic government in divided than in homogeneous Arend Lijphart is Research Professor Emeritus of Political Science at the University of California, San Diego. He is the author of Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries (1999) and many other studies of democratic institutions, the governance of deeply divided societies, and electoral systems.

Why Europe needs a constitution

Abstract: Larry Siedentop's book Democracy in Europe expresses a more cautious mood: as he puts it, 'a great constitutional debate need not involve a prior commitment to federalism as the most desirable outcome in Europe. This chapter begins with a question: why should we pursue the project of an 'ever-closer Union' any further at all? The rational expectation of mutual benefits within Europe and of differential competitive advantages on world markets could, to date, provide a legitimation 'through outcomes' for an ever-closer Union. The political tradition of the workers' movement, the salience of Christian social doctrines and even a certain normative core of social liberalism still provide a formative background for social solidarity. Modern Europe has institutionalized a comprehensive spectrum of competing conservative, liberal and socialist interpretations of capitalist modernization, in an ideological system of political parties. Economic globalization, shares with all processes of accelerated modernization some disquieting features.

The People Themselves: Popular Constitutionalism and Judicial Review

Abstract: Introduction - Popular Constitutionalism 1. In Substance, and in Principle, the Same as It Was Heretofore: The Customary Constitution 2. A Rule Obligatory Upon Every Department: The Origins of Judicial Review 3. The Power under the Constitution Will Always Be in the People: The Making of the Constitution 4. Courts, as Well as Other Departments, Are Bound by That Instrument: Accepting Judicial Review 5. What Every True Republican Ought to Depend On: Rejecting Judicial Supremacy 6. Notwithstanding This Abstract View: The Changing Context of Constitutional Law 7. To Preserve the Constitution, as a Perpetual Bond of Union: The Lessons of Experience 8. A Layman's Document, Not a Lawyer's Contract: The Continuing Struggle for Popular Constitutionalism 9. As An American: Popular Constitutionalism, Circa 2004 Epilogue - Judicial Review Without Judicial Supremacy

Brave New Neighborhoods: The Privatization of Public Space

Abstract: Chapter One: Introduction Chapter Two: Weapons of the Wobblies: The Street Speaking Fights Chapter Three: The Public Forum Doctrine Chapter Four: The Mauling of Public Space Chapter Five: God, Caesar, and the Constitution Chapter Six: Brave New Neighborhoods Chapter Seven: Battery Park City Chapter Eight: Homeless Free Zones: Three Critiques Chapter Nine: Conclusion: Public Goods and Public Space Chapter Ten: Afterward: No Central Park in Cyberspace

The Judicial Construction of Europe

Abstract: 1. The European Court and Integration 2. Constructing a Supranational Constitution 3. The Free Movement of Goods 4. Sex Equality 5. Environmental Protection 6. Conclusion

Jürgen Habermas European or German

Abstract: Habermas’s recent writings on the future of Europe advocate a European constitution as a means of consolidating the achievements of post-war social democracy and providing European level institutio...

Europe's others and the return of geopolitics

Abstract: In the context of European Union enlargement and the discussions about a European constitution, the question of Europe's identity has once again entered the limelight of political debates. From a poststructuralist perspective, identities are constructed through practices of othering, articulating a difference. In this article, I follow Ole Waever to argue that for most of the time after the Second World War the most important other in the construction of a European identity has been Europe's own past. This temporal form of othering offered the possibility to form an identity through less antagonistic and exclusionary practices than was common in the modern international society. However, since the 1990s geographic and cultural otherings are on the increase, marking a return of geopolitics in European identity constructions and undermining the notion of European integration as a fundamental challenge to the world of nation‐states.1

The Rights of Others

Abstract: Benhabib recasts the Derridean idea of `iteration' in democratic terms. While adhering to the original idea that both the fundamental terms of political consociation and the identity of the people itself is `radically' open, Benhabib argues that deliberative norms do and should frame the process of reiteration. For the deliberative democrat, the democratic constitution is not a would-be barrier to iterability (which we are told cannot be contained anyway); it is rather a communicative or discursive space in which the hitherto suppressed or not yet present voice of other people finds its way and expands the terms of meaning giving and hence reason giving. The democratic constitution enables iteration; it is one side of a dialectic that relies upon, balances and, in some sense, makes the most of people power. Immigrants, in the final analysis, are the latest group to proclaim their presence in the sphere of constitutional interpretation, and thereby recalibrate the interpretive frame. And when they make the...

Minimalism at War

Abstract: When national security conflicts with individual liberty, reviewing courts might adopt one of three general orientations: National Security Maximalism, Liberty Maximalism, and minimalism. National Security Maximalism calls for a great deal of deference to the President, above all because of his authority as Commander-in-Chief of the Armed Forces. Liberty Maximalism asks courts to assume the same liberty-protecting posture in times of war as in times of peace. Minimalism asks courts to follow three precepts: the President needs clear congressional authorization for intruding on interests having a strong claim to constitutional protection; fair hearings should generally be provided to those who have been deprived of their freedom; and courts should discipline their own authority through narrow, incompletely theorized rulings. Of the three positions, Liberty Maximalism is the easiest to dismiss; courts will not and should not adopt it. National Security Maximalism is far more plausible, but it is in grave tension with the constitutional structure, and it is built on excessive optimism about the incentives of the President. The most appealing approach is minimalism, which does remarkably well in capturing prominent decisions of the Supreme Court in World War I, World War II, the Cold War, and the war on terrorism.

Legality and Legitimacy

Abstract: Carl Schmitt ranks among the most original and controversial political thinkers of the twentieth century. His incisive criticisms of Enlightenment political thought and liberal political practice remain as shocking and significant today as when they first appeared in Weimar Germany. Unavailable in English until now, Legality and Legitimacy was composed in 1932, in the midst of the crisis that would lead to the collapse of the Weimar Republic and only a matter of months before Schmitt’s collaboration with the Nazis. In this important work, Schmitt questions the political viability of liberal constitutionalism, parliamentary government, and the rule of law. Liberal governments, he argues, cannot respond effectively to challenges by radical groups like the Nazis or Communists. Only a presidential regime subject to few, if any, practical limitations can ensure domestic security in a highly pluralistic society. Legality and Legitimacy is sure to provide a compelling reference point in contemporary debates over the challenges facing constitutional democracies today. In addition to Jeffrey Seitzer’s translation of the 1932 text itself, this volume contains his translation of Schmitt’s 1958 commentary on the work, extensive explanatory notes, and an appendix including selected articles of the Weimar constitution. John P. McCormick’s introduction places Legality and Legitimacy in its historical context, clarifies some of the intricacies of the argument, and ultimately contests Schmitt’s claims regarding the inherent weakness of parliamentarism, constitutionalism, and the rule of law.

Choosing How to Choose: Self-Stable Majority Rules and Constitutions

Abstract: Constitutional arrangements affect the decisions made by a society. We study how this effect leads to preferences of citizens over constitutions; and ultimately how this has a feedback that determines which constitutions can survive in a given society. Constitutions are stylized here, to consist of a voting rule for ordinary business and possibly a different voting rule for making changes to the constitution. We define an equilibrium notion for constitutions, called self-stability, whereby under the rules of a self-stable constitution, the society would not vote to change the constitution. We argue that only self-stable constitutions will endure. We prove that self-stable constitutions always exist, but that most constitutions (even very prominent ones) may not be self-stable for some societies. We show that constitutions where the voting rule used to amend the constitution is the same as the voting rule used for ordinary business are dangerously simplistic, and there are (many) societies for which no such constitution is self-stable. We conclude with a characterization of the set of self-stable constitutions that use majority rule for ordinary business.

Constitutional and Political History of Pakistan

Abstract: This work analyzes constitutional development in Pakistan from its conception to the present day. It provides a case-by-case account of constitution making in Pakistan, and the inclusion of all pertinent documentation should make this useful reading for the student of law and politics. It also provides a liberal, humanitarian reading of the travails of law members and the role of politicians and bureaucrats in the implementation of the law.

Federal taxation in America : a short history

Abstract: This brief survey is the first comprehensive historical overview of the US federal tax systems published since 1967. Its coverage extends from the ratification of the Constitution to the present day. Brownlee describes the five principal stages of federal taxation in relation to the crises that led to their adoption - the formation of the republic, the Civil War, World War I, the Great Depression, and World War II - and discusses the significant modifications during the Reagan presidency. While focusing on federal policy, Brownlee also attends to the related history of state and local taxation. This 'democratic-institutionalist' interpretation is a novel and major contribution to the history of taxation and public finance. Now in a new edition, Brownlee extends his coverage to the present, with a new chapter focusing on the current tax policies of the George W. Bush administration.

Constitutional failure : Carl Schmitt in Weimar

Abstract: Constitutional Failure is a major contribution to studies of the German political philosopher Carl Schmitt (1888–1985), the Weimar Republic, and the relationship of constitutionalism, political economy, and democracy. An internationally renowned scholar of Weimar legal theory, Ellen Kennedy brought Schmitt’s neglected work to the attention of English-speaking readers with her highly regarded translations of his work and studies of its place in twentieth-century political theory. In this eagerly awaited book, she tracks Schmitt’s contribution to the canon of Western political philosophy during its most difficult and dangerous moment—the time of Weimar Germany and the Third Reich—demonstrating the centrality of his thought to understandings of the modern constitutional state and its precarious economic and social foundations. Kennedy reveals how Schmitt’s argument for a strong but neutral state supported the maximization of market freedom at the cost of the political constitution. She argues that the major fault lines of Weimar liberalism—emergency powers, the courts as “defenders of the constitution,” mass mobilization of anti-liberal politics, ethnic-identity politics, a culture of resentment and contested legitimacy—are not exceptions within the liberal-democratic orders of the West, but central to them. Contending that Schmitt’s thought remains vital today because liberal norms are inadequate to the political challenges facing constitutional systems as diverse as those of Eastern Europe and the United States, Kennedy develops a compelling, rigorous argument that unsettles many assumptions about liberalism, democracy, and dictatorship.

The european union: a politically incorrect view

Abstract: to the United States, the "United States of Europe?" The answer is no. As Article 1 of the recent European Constitution states, Europe is, and will remain, a union of independent countries. Nevertheless, an unresolved tension between those who would like the European Union to evolve into a supernational entity (the federalists or supernationalists) and those who would like it to stay a union of independent governments (the intergovernmentalists) has shaped much of the history of European institutions. The natural starting point for a U.S. scholar studying the process of European integration would be the notion of "division of powers." Europe has developed instead a system of "institutional balance" based on overlapping jurisdictions: the legislative, executive and regulatory powers are shared by many institutions, so much so that the distinction itself between legislative and executive acts is blurred?something that would make James Madison turn in his grave. It could hardly be otherwise. The European Union has been created gradually by a group of established countries with different secular histories, including dozens of internecine wars, and different institutions. The European countries were understandably wary that a single European institution would absorb too much of their own sovereignty; hence the emphasis on balance. But institutional balance and overlapping jurisdictions also lead to turf wars between institutions, to

Analysis of QM rules in the draft constitution for Europe proposed by the European Convention, 2003

Abstract: We analyse and evaluate the qualified majority (QM) decision rules for the Council of Ministers of the EU that are included in the Draft Constitution for Europe proposed by the European Convention [5]. We use a method similar to the one we used in [9] for the QM prescriptions made in the Treaty of Nice.

Developing a constitution for Europe

Abstract: Prologue Bruce Ackerman Chapter 1 Introduction: A Constitution in the Making? Chapter 2 Why Europe Needs a Constitution, Jurgen Habermas: Chapter 3: On the Right to Self-Government, Erik O. Eriksen Chapter 4 Human Rights, Constitutionalism and Integration: Iconography and Fetishism, Joseph H. H. Weiler Chapter 5 Treaty or Constitution? The legal basis of the European Union after Maastricht, Dieter Grimm Chapter 6: A Polity without a State? European Constitutionalism between Evolution and Revolution, Hauke Brunkhorst Chapter 7 Three Conceptions of the European Constitution, Agustin Jose Menendez Chapter 8 The Politics of Law and the Law of Politics - Two Constitutional Traditions in Europe, Christoph Mollers Chapter 9 Wille zur Verfassung, or the Constitutional State in Europe, Massimo La Torre Chapter 10 Law, Economics and Politics in the Constitutionalisation of Europe, Christian Joerges and Michelle Everson Chapter 11 The Convention Method and the Transformation of EU Constitutional Politics, Carlos Closa Chapter 12 Deliberation or Bargaining? Coping with Constitutional Conflicts in the Convention on the Future of Europe, Paul Magnette Chapter 13 Still a Union of deep diversity? The Convention and the Constitution for Europe, John E. Fossum

Patterns of intersubjectivity in the constitution of subjectivity: dimensions of otherness

Abstract: This article presents a new characterization of the concept and experience of intersubjectivity based on four matrices that we see as organizing and elucidating different dimensions of otherness. The four matrices are described through key references to their proponents in the fields of philosophy, psychology and psychoanalysis: (1) trans-subjective intersubjectivity (Scheler, Heidegger, Merleau-Ponty); (2) traumatic intersubjectivity (Levinas); (3) interpersonal intersubjectivity (Mead); and (4) intrapsychic intersubjectivity (Freud, Klein, Fairbairn, Winnicott). These intersubjective dimensions are understood as indicating dimensions of otherness that never occupy the field of human experience in a pure, exclusive form. The four matrices proposed need to be seen as simultaneous elements in the different processes of the constitution and development of subjectivity.

The role of direct democracy in the European Union

Abstract: In this paper, the introduction of direct-democratic decision-making in all EU decisions is considered when it is feasible without prohibitively increasing decision-making costs We start with the contractarian argument that each constitution is a contract joining the citizens of a state and requires as such the explicit agreement of (a majority of) citizens Thus, the future European Constitution as well as future changes of it should be decided by the European citizens After a discussion of the pros and cons of direct democracy, the ability of direct democracy to help creating a European demos is discussed Consequently, we propose a mandatory (required and binding) referendum on total and partial revisions of the European Constitution In addition, we propose a constitutional initiative, a statutory and a general initiative as well as a fiscal referendum for financially important projects

The Treaty Establishing A Constitution for Europe

Abstract: This Article contains some reflections concerning the Draft Treaty establishing a Constitution for Europe (“the Draft Treaty”), which was approved by the European Council on September 28, 2004 and formally signed in Rome on October 29, 2004. At the time of writing in early 2005, it is presently in the process of ratification by the twenty-five Member States of the European Union (“EU”). The Article is primarily concerned with the extent to which the Treaty is a constitution, and its merits and demerits as such. It does not go in any depth into the political desirability of some of the changes made by the Treaty. THE TREATY ESTABLISHING A CONSTITUTION FOR EUROPE

Crafting a Constitution for Afghanistan

Abstract: On 4 January 2004, nearly all 502 members of the Constitutional Loya Jirga (Grand Council) meeting in Kabul silently stood to approve a new constitution for the “Islamic Republic of Afghanistan” President Hamid Karzai signed and officially promulgated the document on 26 January 2004, inaugurating Afghanistan’s sixth constitution since King Amanullah Khan promulgated the first in 1923 Delegates hoped that this relatively liberal Islamic constitution would provide a framework for the long task of consolidating basic state structures, as the country struggled to emerge from decades of anti-Soviet jihad, interfactional and interethnic civil war, and wars of conquest and resistance by and against the radical Islamists of the Taliban movement In his speech to the closing session of the Loya Jirga, President Karzai explained why he thought that the new constitution—which mandated a presidential system with a bicameral parliament, a highly centralized administration with unprecedented rights for minority languages, and an Islamic legal system safeguarded by a Supreme Court with powers of judicial review—would meet the needs of a desperately indigent but proud country searching for a period of stability in which to rebuild The constitution was the next to last step in the road map to “reestablishing permanent institutions of government” outlined in the Bonn Accords of 5 December 2001 Afghans signed that agreement under UN auspices as the United States was completing the job of routing the Taliban regime that had given refuge to Osama bin Laden The constitution provided a framework for the “free and fair elections” to choose a Barnett R Rubin is director of studies and senior fellow at the Center on International Cooperation of New York University In late 2001, he advised UN Special Representative for Afghanistan Lakhdar Brahimi during the talks that led to the Bonn Accords Rubin’s books include The Fragmentation of Afghanistan: State Formation and Collapse in the International System (2nd ed, 2002)

The Quest for Meaning in Public Choice

Abstract: I Logical Foundations of Democracies IN OUR EFFORTS TO UNDERSTAND THE LOGICAL FOUNDATIONS of constitutional democracy, we both found that The Calculus of Consent (Buchanan and Tullock 1962) gave us basic tools for acquiring some analytical leverage in addressing particular problems that people are required to address about public affairs. Vincent had, for example, served as a consultant to the Alaska constitutional convention, working with others in committees and subcommittees to prepare the draft of Article VIII on Natural Resources. The principle of conceptual unanimity gave meaning to what he had observed and what was accomplished. The physical and cultural exigencies of Alaska loomed large in considering the juridical principles of property relationships to apply to the appropriation of natural resources in the public domain. Elinor explored the way that pumpers in West Basin, California, used equity jurisprudence to engage efforts to craft public enterprises for governing and managing groundwater basins as common-pool resources. The processes of equity jurisprudence sought to achieve conceptual unanimity in establishing the nature of the problem, in adjudicating water rights, in formulating the rules that were constitutive of water user associations, the way they related to one another, and in monitoring performance. Adjudicating water rights, establishing pump taxes, and developing exchange relationships suggested efforts to minimize the costs of time and effort to be expended and potential deprivation costs. Public enterprises capable of levying taxes and enforcing regulations became the essential complement of private for-profit enterprises and voluntary nonprofit enterprises. Public entrepreneurs in the Southern California region crafted numerous, diversely constituted enterprises to facilitate the development of that region. Water supply depended on extensive analytical capabilities worked out in different political arenas (E. Ostrom 1965, 1990). These tiny events in the sea of human endeavors impelled us to explore efforts to address the logical foundations for order in human societies. In addition to reading what authors had to say, we devoted ourselves to efforts to understand the logic and the presuppositions that authors were using in what they had to say. The authors of The Federalist (n.d. [1788]) developed and used a theory of constitutional choice to explain the draft constitution formulated by the constitutional convention held in Philadelphia in 1787. The essays initially prepared as newspaper articles were addressed "To the People of the State of New York" as an effort to inform their deliberations about the ratification of the Constitution of the United States. Vincent's The Political Theory of a Compound Republic (1987[1971]) is an effort to expound the theory used by Alexander Hamilton and James Madison as they sought to address themselves to the theoretical architecture of a federal republic known as the United States of America. The works of Thomas Hobbes, John Locke, the Baron de Montesquieu, David Hume, Emmanuel Kant, Adam Smith, and many others provide a longer-standing tradition of inquiry about the logical foundations of order in human societies. All of these efforts sought to contribute to and elaborate a calculus of consent. In many ways, Hobbes's De Cive or the Citizen (1949[1642]) and Leviathan (1960[1651]) are remarkable efforts to deal with the logical foundations of political order. His treatment of the human condition, the place of language in understanding the human condition, and the dilemma of individuals who seek their own good and who in the presence of scarcity wind up fighting with one another and enduring the misery of war are efforts to clarify the logical foundations of commonwealths. Hobbes's way of resolving the dilemma of those who seek their own good but realize the misery of war was to consider how men might achieve peace as an alternative to war. …

Accession and Reform of the European Union A Game-Theoretical Analysis of Eastern Enlargement and the Constitutional Reform

Abstract: This study examines how the institutional provisions of the Nice Treaty and the constitutional reform of the European Union (EU) will affect agricultural decision-making in the enlarged EU. Although the agricultural sector is a core EU policy domain, we have little knowledge about the effects of institutional reform following the accession of 10 relatively small and poor countries, each having a large primary sector. Based on an input–output taxation model, we identify the positions of old and new member states in the twodimensional space of EU agricultural politics. This allows us to investigate whether and how Council decision-making will change if the Nice Treaty’s provisions for qualified majority voting are replaced by those of the draft constitution of 2004. Our analysis shows that the constitution is an advance providing for more policy change but it falls behind the Laeken proposal, which would have effectively reformed EU agricultural decision-making.

The Political Origins of the New Constitutionalism

Abstract: Over the past two decades the world has witnessed an astonishingly rapid transition to what may be called juristocracy Around the globe, in numerous countries and in several supranational entities, fundamental constitutional reform has transferred an unprecedented amount of power from representative institutions to judiciaries Most of these polities have a recently adopted constitution or constitutional revision that contains a bill of rights and establishes some form of active judicial review National high courts and supranational tribunals meanwhile have become increasingly important, even crucial, policy-making bodies To paraphrase Alexis de Tocqueville’s observation regarding the United States, there is now hardly any moral, political, or public policy controversy in the new constitutionalism world that does not sooner or later become a judicial one This global trend toward the expansion of the judicial domain is arguably one of the most significant developments in late twentieth and early twenty-first century government The global trend toward judicial empowerment through constitutionalization has been accompanied and reinforced by an almost unequivocal endorsement of the notion of constitutionalism and judicial review by scholars, jurists, and activists alike As Ronald Dworkin—perhaps the most prominent constitutional

"We, the Peoples of Europe ..."

Abstract: Political tremors are shaking the old continent. As the European Union’s enlargement brings most of the continent under the same banner, Europeans, like their American cousins two centuries ago, are on the verge of treating themselves to a full-blown constitution. In June, after more than two years of heated debate, eu heads of state settled on the text of the Treaty Establishing a Constitution for Europe. The treaty will not enter into force, however, until it is ratified by all 25 member states, through their national parliaments or popular referendums. And a single defection could spell the end of the entire exercise. Was the June meeting Europe’s Philadelphia? The text’s drafters claim that it was. They argue that the constitution will give the eu a more eaective government, better adapted to its greater size and ambitions, and make it a more democratic polity. The document’s detractors, meanwhile, make one of two critiques. Some say the document is not bold enough, especially on the social front; others claim that it is a watershed but warn that it will blur the precious diaerences among the members’ unique histories and identities, turning the eu into a monolithic “United States of Europe.” The eu’s original sin may be that it was not built on a democratic foundation; its citizens were not asked to vet the union’s creation. But

The new constitution as european ‘demoi‐cracy’?

Abstract: How should we assess the project for a Constitution presented by the Convention on the Future of Europe? This paper argues that in order to succeed, an EU Constitution would need to present a positive vision of what democracy in Europe is about. While the draft Constitution fails in finding the right language in this regard, it does nevertheless contain an all too implicit manifesto: that ours is a European ‘demoi‐cracy’ founded on the recognition of the persistent plurality of its component peoples but not reducible to a set of complex bargains between sovereign states. The paper analyses the main feature of the project against this benchmark and argues that it is closer to the spirit of demoi‐cracy when dealing with the vertical relationship between the Union and its member‐states than when dealing with the horizontal relationship among the member‐states themselves.

The Reform of the German Works Constitution Act: A Critical Assessment

Abstract: Since 1920, the thrust of German law on workplace codetermination has changed on a number of occasions. We describe the latest swing of the legislative pendulum - favoring works council formation and competence - and evaluate the case for it. We provide new information on the extent of works councils before reviewing the evidence on their economic effects, focusing on some new results from matched-plant data. If the former evidence points to a codetermination deficit, this shortfall does not appear to have negative consequences for workplace productivity, profitability, and employment.