Constitution

About: Constitution is a research topic. Over the lifetime, 37828 publications have been published within this topic receiving 435603 citations.

Private Creation and Enforcement of Law: A Historical Case

Abstract: Iceland is known to men as a land of volcanoes, geysers and glaciers. But it ought to be no less interesting to the student of history as the birthplace of a brilliant literature in poetry and prose, and as the home of a people who have maintained for many centuries a high level of intellectual cultivation. It is an almost unique instance of a community whose culture and creative power flourished independently of any favouring material conditions, and indeed under conditions in the highest degree unfavourable. Nor ought it to be less interesting to the student of politics and laws as having produced a Constitution unlike any other whereof records remain, and a body of law so elaborate and complex, that it is hard to believe that it existed among men whose chief occupation was to kill one another.

The Evolution of Culture and Institutions: Evidence From the Kuba Kingdom

Abstract: We use variation in historical state centralization to examine the long-term impact of institutions on cultural norms. The Kuba Kingdom, established in Central Africa in the early 17th century by King Shyaam, had more developed state institutions than the other independent villages and chieftaincies in the region. It had an unwritten constitution, separation of political powers, a judicial system with courts and juries, a police force, a military, taxation, and significant public goods provision. Comparing individuals from the Kuba Kingdom to those from just outside the Kingdom, we find that centralized formal institutions are associated with weaker norms of rule following and a greater propensity to cheat for material gain. This finding is consistent with recent models where endogenous investments to inculcate values in children decline when there is an increase in the effectiveness of formal institutions that enforce socially desirable behavior. Consistent with such a mechanism, we find that Kuba parents believe it is less important to teach children values related to rule-following behaviors.

Judicializing Politics, Politicizing Law

Abstract: I INTRODUCTION Since World War II, there has been a profound shift in power away from legislatures and toward courts and other legal institutions around the world. This shift, which has been called "judicialization," (1) has become more or less global in its reach, as evidenced by the fact that it is as marked in Europe, and especially recently in Eastern Europe, as it is in the United States. The spectacles of Italian judges undermining Italy's postwar system of musical cabinets, or of newly energized French judges hounding prime ministers and presidents, are only the most visible aspects of these developments. One could also point to the role, and recent success, of judges in seeking to arrest and prosecute dictators and military leaders. Additionally, our own United States Supreme Court's intervention into electoral politics in Bush v. Gore (2) was yet another manifestation of this trend. One can distinguish at least three ways in which courts have taken on new and important roles relative to legislatures. First, courts have been increasingly able and willing to limit and regulate the exercise of parliamentary authority by imposing substantive limits on the power of legislative institutions. Second, courts have increasingly become places where substantive policy is made. Third, judges have been increasingly willing to regulate the conduct of political activity itself--whether practiced in or around legislatures, agencies, or the electorate--by constructing and enforcing standards of acceptable behavior for interest groups, political parties, and both elected and appointed officials. But judicialization is not simply limited to the increasingly important, pervasive, and direct roles that courts play in making policy. The fact that courts frequently intervene in policy-making processes also means that other political actors, as well as groups seeking political action, have reason to take the possibility of judicial reaction into account. Proposals need to be framed in a way to ensure that legislation will neither be struck down nor interpreted in Undersirable ways. In order to achieve such a result, part of the policy debate over new legislation must aim at anticipating the response of legal institutions. So, we see a global application of one aspect of the phenomenon that de Tocqueville noted about American politics years ago: the transformation of political questions into legal ones. (3) This means that legal/constitutional considerations and rhetoric assume new and sometimes decisive importance in ordinary legislative policy-making. One aspect of judicialization can be observed in the widespread adoption of institutions and practices of constitutional adjudication, even in places with legal institutions and traditions that had long been inhospitable to this process. True, the modes of constitutional adjudication adopted in Europe and elsewhere do not precisely follow the U.S. model. Ordinary European judges are not permitted to strike down legislation; that authority is confined to specialized constitutional courts located outside the judicial system. Nevertheless, many of these new European constitutional courts have been at least as willing to invalidate and modify parliamentary legislation as the U.S. Supreme Court has been--even in its most activist periods. (4) Moreover, the existence of constitutional courts has, in effect, pressed ordinary judges to take account of constitutional issues in their everyday judicial activities. For example, European judges regularly interpret legislative statutes and administrative ordinances in view of the constitution and decide which issues need to be referred to the constitutional court. (5) Moreover, the rise of constitutional adjudication has transformed the landscape of parliamentary politics by forcing legislators to take constitutional considerations into account when crafting legislative schemes. …

Rediscovering Principles of Public Administration: The Neglected Foundation of Public Law.

Abstract: Over the past five decades, the field of public administration has gradually lost its theoretical distinctiveness. Today, public administration has largely abandoned or forgotten its roots in public law - in the Constitution, statutes, and case law - and has accepted, to varying degrees, the generic behavioral principles of management as taught in schools of business. In this intellectual climate, those who study government and those who are practitioners of governmental management were understandably caught off guard by the sheer audacity of the entrepreneurial management advocates, actively led by no less a personage than the Vice President of the United States. The entrepreneurial management model outlined first in Osborne and Gaebler's popular book, Reinventing Government,[1] and later in the Vice President's National Performance Review Report,[2] seemed to many practitioners and major professional organizations of public administration, not as a challenge to fundamental values, but simply as the next logical step in the grand synthesis of management science. The difficulty is that this grand synthesis does not comport with the daily experience of managing government agencies and programs. This discontinuity between the contemporary management theory synthesis and reality has been difficult for Public administrators to articulate since most have lost touch with the theoretical foundation of their field's intellectual tradition. That foundation is in public law, not in behavioral theories of management.[3] Ironically, the legal constraints and demands in the governmental work environment are evident enough. To a considerable extent they are evident in the business world as well. Nonetheless, the fact is that the private and governmental sectors are based on fundamentally different streams of legal doctrine: one traditionally rooted in judge-made common law, protecting rights and asserting duties in the relations of private individuals; the other founded on the body of the Constitution and the Bill of Rights and articulated by a truly enormous body of statutory, regulatory, and case law to ensure continuance of a republican form of government and to protect the rights and freedoms of citizens at the hands of an all-powerful state. The intent of the authors is to revisit the protective purposes of the Constitution as designed by the framers and the basic tenets of our administrative state as adapted by their successors (legislators, presidents, jurists, and other government officials) to meet contemporary administrative realities. It is our understanding that the basic theory guiding governmental organization and management - structures, processes, and procedures - is to be found in public law, that it is valid today, and that it will remain so as long as the Republic endures. The principles that make up this theory can in many settings embrace useful precepts such as those of "management by objectives" (MBO) or "total quality management" (TQM) and they can accommodate and be enhanced by an almost infinite variety of technological innovations. But such techniques and advances are not - and cannot be - a substitute or replacement for the traditional, constitution-based method of doing the public's business. To accept such a substitution would be to trade away the constitutionally protected, known means of ensuring accountability for yet to be established measures of government performance. Protective Purposes of the Constitution As a matter of cultural preference, intensified by the experiences of colonial dependency, the Revolutionary War, and the operation of fledgling states during the Confederation period thereafter, the framers of the Constitution consciously designed a government better suited to frustrate the concentration of political power than to govern effectively. As James Madison expressed the common assumption that led to this result: "The accumulation of all powers, legislative, executive, and judiciary in the same hands . …