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I·CONnect

Blog of the International Journal of Constitutional Law

State Constitutionalism and the Comparative Project

First, thanks to Zach Elkins and Tom Ginsburg, master scholars, impressarios of the great comparative constitutionalism project, and all-around good guys, for inviting me to guest blog on state constitutionalism and state con law.

Second, by way of introduction, I am the Minerva House Drysdale Regents Chair in Law at the University of Texas, recently decamped from California, where I spent many happy years on the San Diego and Berkeley faculties. I am hard at work on “State Constitutional Law and its Processes” (Aspen Press) and other projects within the same domain.

Let me begin by taking a stab at an answer to the question: “What are we expected to learn from the experience of American state constitutions about state constitutionalism worldwide?” The principal answer derives from the salient differences between state constitutionalism U.S. style and the well-investigated U.S. Constitutionalism. Some highlights:

(1) State constitutions are documents of limit; the U.S. Constitution is a document of grant. State governments possess plenary authority under the police power and the way that this authority, in theory and in practice, differs from federal authority under the more limited princple of delegated power is an interesting window into constitutional power on the ground;

(2) State constitutions have a plural executive. This means that executive authority is parcelled out among separately elected officials (e.g., attorneys general, treasurers, elected lieutenant governors, peculiarly focused officials such as insurance commissioners, fish & game chiefs, etc.). This is by contrast to the so-called “unitary executive” at the national level. The comparative dimenions of this very different approach to administrative authority, separation of powers, regulatory performance, and democratic accountability is, while fascinating, an inexplicably neglected issue in contemporary political science and law. For exceptions, see Roger Noll and Bruce Cain’s work on this topic, and also the superb article by Tom’s colleagues Jake Gerson and Chris Berry in Volume 75 of the U. Chicago Law Review on “the unbundled executive.”

(3) State constitutions contain “positive” rights. These rights include, in all 50 states, a right to education (the source of enormous legal controversy, to be sure) and, in many states, social welfare rights of various types and scope. In this respect, American state constitutions share much in common with constitutions in other countries, such as South Africa, Brazil, and the former Soviet states. The range of comparative constitutional questions involving the origins and performance of positive rights in state constitutionalism are vast indeed.

There are many other interesting features of state constitutions; and there are, too, contemporary controversies (see, e.g., the post-Kelo property rights revolution, same-sex marriage, and the drumbeat for a state constitutional convention in California and New York) that are worthy of scrutiny the context of debates and analysis of constitutionalism worldwide. Or so I hope to illuminate in my stint on this blog. I will look forward to, if not providing particular wisdom on these subjects, at least raising some intriguing questions.

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Published on September 4, 2009
Author:          Filed under: constitutional design, hp, United States
 

Dignity, Death & the Depth of Comparative Engagement in the US

Yesterday, the Supreme Court of Montana heard argument in Baxter v. State of Montana (Case No. DA 09-0051), an appeal by the state of Montana against a decision by a district court judge, Judge Dorothy McCarter, recognizing a right to physician assisted suicide under the Montana state constitution. (The U.S. Supreme Court in Washington v. Glucksberg, 521 U.S. 702 (1997) declined to recognize such a right as fundamental under the Due Process clause of the U.S. Constitution.)

How the Montana Court approaches this case will be an important test of how deep the current commitment is, in the U.S., to engagement with comparative constitutional experiences and materials. The Montana Constitution is the only constitution in the U.S. to contain an explicit guarantee of individual “dignity”, and that guarantee was the basis of the district court’s decision in the case. Given the importance of dignity-based reasoning in most international and many comparative contexts, as well as recent developments in this area globally, it is therefore hard to think of a more natural case for comparative engagement by a state court in the U.S., under a state constitution. (Vicki Jackson makes this point in a more general context in a great article, Constitutional Dialogue and Human Dignity: States and Transnational Constitutional Discourse, 65 Mont. L. Rev. 15 (2004).)

Whether or not the Montana Court looks to recent global judicial developments, such as the decision of the UK House of Lords in R (Purdy) v. Director of Public Prosecutions (see Cheryl Saunder’s excellent summary of the decision in her post of 08.06.09), or broader comparative sources focusing on the nexus between dignity and the right to die, such as the South African Law Commission’s Report, Euthanasia and the Artificial Preservation of Life (1998) (http://www.saflii.org/za/other/zalc/report/1998/7/), will therefore be a key test of where we now stand in the U.S. when it comes to comparative engagement by U.S. courts after both Roper v. Simmons, 543 U.S. 551 (2005) and the Congressional debate that followed it.

If one looks at the amicus briefs filed in Baxter case, there is also, unfortunately, limited cause for optimism about what the result of this test will be. (For amicus briefs supporting the appellant, see e.g. http://www.compassionandchoices.org/act/legal_work/baxter; and for those supporting the respondent, see http://www.aul.org/MT_Baxter_v_State#AUL). On my admittedly brief reading of the briefs, it seems that while some mention foreign materials, none make use of such materials as a potentially persuasive source of argument. I would, of course, welcome being corrected by someone more versed in the details of the briefs.

-Rosalind Dixon

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Published on September 3, 2009
Author:          Filed under: courts, dignity, hp, right to die, United States
 

Quiet ending (for now) to the debate over judicial appointments in Israel

A couple of weeks after Justice Sotomayor’s nomination to the U.S. Supreme Court was confirmed, another, longer and more intense struggle over judicial appointments has reached its quiet ending, with the appointment of three new justices to the Supreme Court of Israel.

Israel is arguably one of the prime examples of what I have termed elsewhere “juristocracy”. Not a single week passes by without the Supreme Court issuing a major decision on matters of high politics, key public policy issues, the future of prominent politicians, and so on. This activism reflects a confluence of institutional, ideological, and socio-political factors that are beyond the scope of this forum (I, and others, have written about these issues in other forums). Most political opposition to the Court has come from either right-wing nationalists who view the Court as being too “leftist”, unrepresentative, and “counter-majoritarian”, or Jewish orthodox circles who accuse the Court of forwarding its own liberalizing anti-religious agenda. In a recent statement, one of Israel’s main religious leaders said that “the courts are twisted and the judges don’t believe in anything. They are apostates.”

As long as Aharon Barak – the former proactive Chief Justice and arguably the most influential, philosopher king-like, figure in Israel’s constitutional history – lead the Court, it was able to block attempts to appoint anti-activist judges. However, Barak reached mandatory retirement age (70) in 2006, and was replaced by the somewhat less influential CJ Dorit Beinish. The backlash against the Court started to yield some results. In 2007, the (some say personal) rivalry between then Minister of Justice, Daniel Friedman, and the new CJ Dorit Beinish triggered the introduction of a law that limits the incumbency of chief justices to seven years. In 2008, a new law was introduced by anti-activism politicians that requires a “super majority” of seven votes in the nine-member appointments committee to approve a new appointment to the Supreme Court. Because five members of the committee are incumbent Supreme Court judges (3) and representative of the bar association (2), the new procedure necessitates support for an appointment from the “political” component of the committee – the Minister of Justice, another minister, and two Knesset (parliament) members. And in June 2009, the political backlash against the Court reached another peak when two nationalist right-wing MKs critical of the Court’s “unrepresentative” composition and ideological tilts were elected to the nine-member judicial appointments committee, thereby further threatening the old establishment’s grip over the Supreme Court composition and interpretive direction. At that point, a high noon-like confrontation, and possibly a long-term stalemate in judicial appointments seemed inevitable.

In the end, though, the need to address thousands of cases every year, as well as the system’s self-correcting, survival instincts triumphed. Despite the rhetoric to the contrary, compromises by all sides eventually broke the deadlock in the Judicial Selection Committee and led to the appointment of three new Supreme Court justices: Tel Aviv District Court Judge Uzi Fogelman, Haifa District Court Judge Yitzhak Amit and US-born Beersheba District Court Judge Neal Hendel to fill the three vacancies on the 15-judge court. All are experienced judges; none is a zealous ideologue. CJ Beinish is reported to have gotten her first choice, Fogelman, whom she has known since their days together in the State Attorney’s Office. At the same time, she and the rest of Israel’s “court-party” were forced to yield on the principle that only district court judges who had served nine-month trial periods on the Supreme Court could be eligible for permanent appointments. (This practice never applied to non-judges – lawyers or legal academics – appointed to the Court). The right-wing backlash against the Court could not yield a true revolution in the Court’s attitudinal tilts. But critics of the Court’s unrepresentative composition found solace, according to the Jerusalem Post, in the fact that “never before has a majority of the judges been chosen not at the initiative of the president of the Supreme Court and despite her efforts to foil the election”. The Committee also quietly selected 21 new district court judges. In short, a rather anti-climatic, pragmatist ending to a fierce war of words that lasted a few years.

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Published on September 3, 2009
Author:          Filed under: hp, Israel, judicial appointments, Ran Hirschl
 

Once Pinochet’s Censor, Now President of the Constitutional Court

Even close observers of Chile’s constitutional politics were taken by surprise when an electronic newspaper (‘El Mostrador’) reported a few weeks ago that the new President of the Constitutional Court had been the director of DINACOS (an agency organized during Augusto Pinochet’s regime to implement censorship).The new head of the Constitutional Court, Marcelo Venegas, had cultivated a low profile since arriving at the Court, in 2006. He became a member of it as a result of a close-door negotiation between the government coalition and the opposition.Venegas, an undistinguished member of the Chilean legal profession, spent most of the time since the end of the authoritarian regime as an obscure legislative assistant to congressmen of Renovacion Nacional, one of the two political parties of the opposition.The scandal that the information of Venegas’ past created in Chile’s legal and political circles did not, however, make any difference, since neither the new President nor his colleagues at the Court felt the need to revise the decision. Thus, Chileans will have to accept that the head of the body charged with advancing fundamental rights made a living censoring independent media during the country’s most brutal dictatorship in history.Venegas’ appointment to the top post at the Constitutional Court represents yet another blow to the already low prestige enjoyed by the Court, after a year marked by mostly conservative decisions, such as the 5-4 ruling prohibiting the distribution by the government of the so-called ‘morning-after pill’, on the ground that it is an abortive medicine.

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Published on September 2, 2009
Author:          Filed under: Uncategorized
 

The

Chile’s

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Published on August 31, 2009
Author:          Filed under: Uncategorized
 

More on the election campaign against conservative justices in Japan

As promised, Colin Jones has an interesting update on the public campaign to unseat a pair of sitting Supreme Court justices in the upcoming Japanese election. Thus far, in a nutshell, a retired Supreme Court justice is calling for the election defeat of two of his former colleagues in an advertising campaign that expressly uses a U.S. Supreme Court decision to criticize the Japanese Supreme Court for being too conservative. Read on:

The legislative elections being held in Japan on August 30 are widely expected to result in the end of half a century of almost uninterrupted rule by the Liberal Democratic Party. This being the case, the constitutionally mandated “citizens’ review” of supreme court justices that will be conducted at the same time will likely be even more of a sideshow than usual. Presented with a ballot listing the names of justices most Japanese people have never heard of, and provided with information about them the providence and completeness of which is uncertain, many voters either ignore this part of the polling process or submit unmarked ballots. Helped by court decisions holding that blank ballots can be counted as votes of approval, this process has added a largely harmless (from the perspective of the judiciary) veneer of democratic involvement in the judicial selection process.

It will be a shame, however, if this part of the coming election does turn out to be a sideshow as some interesting things are happening which deserve more attention. As discussed in David Law’s earlier post on this subject, some significant efforts are going into turning the judicial selection process into something more meaningful. In a full page opinion ad in the August 24 Asahi Shinbun (one of Japan’s leading national newspapers), an organization devoted to remedying electoral malapportionment is calling upon people to vote against two sitting justices who in a 2007 supreme court decision upheld an election in which the votes of citizens in some electoral districts were worth as little as 0.2 votes in others in terms of Diet representation.

In an interview in the Asahi newspaper on August 22, former supreme court justice Tokuji Izumi criticizes the court╒s past reluctance to act aggressively on this issue, noting that the seemingly arbitrary guidelines it has developed in the past – imbalances in voter representation of up to 300% in the House of Representatives and 600% being constitutional – are without foundation. Issuing decisions which provide a guidepost to the legislature, as the court has done in other areas, will not work with this problem. As Izumi says, “the selection of Diet members is a decision of the voters. But it is difficult for the Diet to itself reconsider the system by which it is chosen, difficult to make changes to the system by which you yourself were chosen. To the extent that you cannot expect the legislature to do so, it is up to the judiciary to provide checks on this issue.”

Naming names has never been a particularly “Japanese” thing to do, particularly in the establishment. That is why this sort of ad campaign seems so significant. First, it is clearly well-funded (full page ads in a national newspaper aren’t cheap). Second, the list of people named as “founders” of the movement include Justice Izumi himself as well as a number of leading lawyers, former judges and prosecutors, well known academics and journalists, a number of corporate leaders (including the CEO of the Orix Group) – even a Fields-medal-winning mathematician. This is not the typical Japanese citizens group comprised of weekend activists holding meetings and leafleting against the establishment. It is the establishment, or a meaningful chunk of it, at least.

What is also interesting about this particular ad is it refers to an unnamed 1983 U.S. Supreme Court case (presumably Karcher v. Dagget, 462 U.S. 725 (1983)) which it characterizes as having held unconstitutional a New Jersey electoral districting which resulted in votes on some districts being equal to only 0.993 of those in others. A much higher tougher standard than has prevailed in the incomprehensible mishmash of Japanese malapportionment cases. Whether the U.S. case is being properly characterized or represents a valid comparative is beside the point. What is significant is that U.S. Supreme Court jurisprudence is being used as part of a roadmap to greater equality in the Japanese political system. This is not unprecedented, of course, but that it is being used in an appeal made directly to Japanese citizens, rather than in obscure academic journals or court cases is interesting.

Whether this campaign will have any effect will be revealed in a few days. It is hard to imagine enough voters reading the ads or thinking about the issues to actually result in Justices Wakui and Nasu being cast out of their chambers. But even if there is no direct impact, this and other ads may be an indicator that it will become increasingly difficult for Japanese judges to beaver away in comfortable quasi-autonomy, issuing decisions which favor the establishment over the people. Apparently even parts of the establishment have had enough.

— Colin P.A. Jones, Professor, Doshisha Law School

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Term Limits Imperiled Again (this time in Colombia)

The perennial war of term limits versus presidents in Latin America seems to have opened a new front in Colombia — my native country, no less. There, it appears that term limits pose no match for popular President Uribe, whose supporters have pushed through a bill in the senate that paves the way for a referendum to remove limits on presidential re-election. The constitutional court (an interesting innovation of the 1991 constitution) will review the bill and, assuming no objections, Uribe’s supporters will need to muster a majority of voters (with a quorum of 1/4 of the electorate voting) to secure a constitutional amendment on term limits.

This should not be surprising. Honduras notwithstanding, term limits usually lose the fight against Presidents. At least that’s what the recent wave of constitutional amendments and replacements suggests (a short list from memory from the last 20 years includes Brazil, Argentina, Peru, Venezuela, Ecuador, and Bolivia). The overall record between the two contenders is unknown, since term limit victories (when contested) are not documented very easily — certainly, the Honduran case is not alone. However, in some back-of-the envelope accounting my co-authors Tom Ginsburg, James Melton, and I find that term limits have been breached about twice a year since 1945. In 1973 alone, term limits were violated six times.

Most of these violations have occurred in Latin America, at least prior to the 1960s or so. Until that time, most other countries either had executives without fixed terms or did not impose term limits. On the other hand, over 80% of constitutions in Latin American imposed term limits on executives through World War II, after which countries began to remove limits. Today, about 50% of constitutions in Latin America include such limits, the same proportion as constitutions in the rest of the world. [All these data are from the Comparative Constitutions Project].

All of this, of course, revives the normative debate about term limits and the inevitable tension between two threats to democratic representation: the finger-on-the-scale effect of incumbency and the heavy hand of candidate restrictions.

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Published on August 27, 2009
Author:          Filed under: Colombia, hp, Latin America, term limits, Zachary Elkins
 

When Supreme Court justices attack … each other

Imagine if Justice O’Connor were to sponsor a full-page advertisement in the New York Times calling for the impeachment of her former colleague, Justice Kennedy, because she disagrees with the positions he has taken on some issue–say, voting rights. Hard to imagine, right? Now try to imagine something like that happening in Japan, where it is even rarer for judges to make controversial public statements or speak out publicly on issues before the courts, much less to attack one another in public.

Well, that is pretty much what is happening right now in Japan.

Many readers of this blog will already be aware that Japan has a national election coming up, and that it promises to be an interesting one: the Liberal Democratic Party, which has ruled Japan almost without interruption since World War II, appears to be heading for a monumental and historic defeat. What our dear readers may not realize, however, is that certain members of the Supreme Court will also be on the ballot, and one of their former colleagues is trying to get them kicked off the Court.


Imagine if Justice O’Connor were to sponsor a full-page advertisement in the New York Times calling for the impeachment of her former colleague, Justice Kennedy, because she disagrees with the positions he has taken on some issue–say, voting rights. Hard to imagine, right? Now try to imagine something like that happening in Japan, where it is even rarer for judges to make controversial public statements or speak out publicly on issues before the courts, much less to attack one another in public.

Well, that is pretty much what is happening right now in Japan.

Many readers of this blog will already be aware that Japan has a national election coming up, and that it promises to be an interesting one: the Liberal Democratic Party, which has ruled Japan almost without interruption since World War II, appears to be heading for a monumental and historic defeat. What our dear readers may not realize, however, is that certain members of the Supreme Court will also be on the ballot, and one of their former colleagues is trying to get them kicked off the Court.

Per Article 79 of the Kenpo, Japan’s postwar constitution, justices are initially appointed by the Prime Minister* but must then stand for election at the first general election following their initial appointment, and at ten-year intervals thereafter. The retention election provision has widely, and accurately, been regarded as toothless. The public does not know enough about the justices to vote in an informed manner, and the justices have always been reelected by lopsided margins. (The provision requiring reelection at ten-year intervals is especially useless: it has literally been decades since any justice was appointed at a sufficiently young age that he (and unfortunately I do mean “he,” not “she”) did not hit mandatory retirement at age 70 before facing a second retention election.)

Justice Tokuji Izumi, a career judge who retired from the Supreme Court earlier this year, is trying to change that, and in a very public way. Izumi–by all accounts one of the smarter judges around, and one whom I have heard praised specifically for his political savvy–is listed as one of the signatories and “originators” of a series of advertisements that have appeared in the Japanese media-including, most recently, a full-page ad in today’s issue of the Asahi Shimbun, Japan’s most prominent newspaper. The ads urge readers to vote against Justices Kohei Nasu and Norio Wakui on account of the positions that they took shortly after their appointment in a 2007 electoral malapportionment case, in which they were, shall we say, somewhat less than steadfast in their defense of equal voting rights for all Japanese citizens.

Electoral malapportionment has long been a thorn in the Court’s side, but to make a very long story very short: (1) Japan’s electoral districts have suffered from chronic malapportionment favoring rural over urban areas (actual voting disparities have on occasion topped 5:1); (2) this is one of the very few constitutional issues on which the Court has actually tried to force the government to act; and (3) the government (which, having always been controlled by the same party, has benefited from this malapportionment) has unsurprisingly failed to fix the problem.

You can get a sense of the nature of the campaign against Justices Nasu and Wakui by checking out the two cute little mascots on the home page of the organization’s website (lions? tigers? leopards? See this earlier post for proof that it is absolutely mandatory in Japan for all serious political and/or legal matters to be championed by some sort of mascot.) And see those signs they’re holding up? The left one is holding a sign that says, “One person, one vote.” Kawai desu ne! But what’s that sign that the right one is holding up? “One person, 0.6 of a vote.” Oh dear, that’s not so kawai now, is it. That’s pretty much all the Japanese I can muster, but it’s also pretty much all the Japanese you need to get the idea.

And in case you were wondering: Yes, Izumi did serve on the Court with both Nasu and Wakui. I wonder what his retirement party was like. Will they still send him Christmas cards?

On a more serious note, one might also wonder: Should any effort to discipline or remove judges for the positions that they take be considered an assault on judicial independence? Should it make a difference that the attack is, in this case, being led by a highly respected lifelong judge and former justice of the Supreme Court?

There is much more to say, but for more on the politics of the Japanese Supreme Court, the Court’s dismal track record in pretty much every area of constitutional law *except* voting rights, and even a bit on Justice Izumi’s turn to the left, may I somewhat selfishly suggest this article, which you can also find in print in the Texas Law Review.

Tip of the hat to Setsuo Miyazawa of Aoyoma Gakuin Law School for the heads-up. Colin Jones of Doshisha Law School is keeping an eye on this story for us, and perhaps he will have some on-the-ground reconnaissance to share with us in the coming days.

[* Technically, the Chief Justice is appointed by the Emperor on the advice of the Cabinet, and the Cabinet appoints the rest. But, as in pretty much any parliamentary system, the Prime Minister runs the Cabinet.]

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The Continental Divide Writ Small

One of the interesting phenomena in North American constitutionalism is the subtle duet of convergence alongside enduring divergence in the constitutional law and practice of the United States and Canada. The border between the two countries is often described as the longest friendly border in the world. Over 1 billion dollars worth of goods cross the border every day. The coordination between the two countries on almost every issue from NORAD to immigration is exemplary. Although fewer Americans now cross the border for one-day shopping trips in Canada due to new passport regulations and the strength of the Canadian dollar, thousands of Red Sox fans roamed the streets of Toronto last week. Numerous of our graduates at the University of Toronto Faculty of Law move on to practice in major American law firms. And the upcoming annual meeting of the American Political Science Association will be held in Toronto.


One of the interesting phenomena in North American constitutionalism is the subtle duet of convergence alongside enduring divergence in the constitutional law and practice of the United States and Canada. The border between the two countries is often described as the longest friendly border in the world. Over 1 billion dollars worth of goods cross the border every day. The coordination between the two countries on almost every issue from NORAD to immigration is exemplary. Although fewer Americans now cross the border for one-day shopping trips in Canada due to new passport regulations and the strength of the Canadian dollar, thousands of Red Sox fans roamed the streets of Toronto last week. Numerous of our graduates at the University of Toronto Faculty of Law move on to practice in major American law firms. And the upcoming annual meeting of the American Political Science Association will be held in Toronto.

Yet constitutional differences, some quite significant, continue to endure. While the major differences between the two countries’ systems of government, political histories and constitutional legacies, are relatively well known, the less spectacular differences remain underexplored.

In July 2008, for example, a week after the U.S. Supreme Court ruling in Heller (essentially expanding the right to bear arms to individual/private use), Canada’s Governor General appointed Dr. Henry Morgentaler (currently 86 years old) to the Order of Canada – the highest official recognition of one’s contribution to Canadian society. Morgentaler, for those of you who do not follow constitutional law and politics north of parallel 49, is one of the most daring and progressive activists in Canadian constitutional history, and has been the champion of abortion rights in Canada for over 30 years. He and his clinics have been the target of many assaults by pro-life activists over the years.

Another reminder of these differences came in this weekend’s criminal underworld news: a former model was viciously murdered in LA, allegedly by her ex-husband, a reality TV star and a Canadian. (How the victim’s body was identified by police is an altogether different story, suitable for a forensic medicine blog). The suspect, still on the loose, is thought to have fled the US to Canada by boat. In 2001, the Supreme Court of Canada ruled in United States v. Burns that Canadian citizens facing serious criminal charges in the United States that may lead to their execution are not to be extradited to face trial unless a guarantee not to seek the death penalty in provided by American prosecutors. The main constitutional ground for the ruling was breach of “fundamental justice” guaranteed by section 7 of the Canadian Charter of Rights and Freedoms. Although the Court did not rule on whether the death penalty was unconstitutional (section 12 of the Charter prohibits cruel and unusual punishment), at the principled level the ruling in Burns may be seen as a progressive, anti capital punishment statement. At the same time, the potentially grave consequences for law enforcement are obvious.

Either way, although dated in some respects, parts of Seymour M. Lipset’s classic account of the US/Canada continental divide remain as relevant today as they have ever been.

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Published on August 23, 2009
Author:          Filed under: abortion, Canada, extradition, hp, Ran Hirschl, United States
 

Are Constitutions like Marriage?

The convenant binding two people “til death do [them] part” seems to have much in common with constitutions. Both contracts are highly symbolic and probably confer some degree of legitimacy upon unions that will inevitably weather their fair share of crises. Both contracts, when entered into, are thought to last indefinitely. We can continue to be optimistic about any given union, but we know many of them are doomed to come apart.
But how do the rates of divorce and constitutional replacement compare? Here I present some evidence from a book that Tom Ginsburg, James Melton, and I have just finished entitled The Endurance of National Constitutions (due out next month). [Tom and I hope to serialize some of the highlights from the book here in the next few weeks].
The figure above plots the hazard estimate of constitutional death, which is the probability of death conditional on having lived to a given age. The figure, then, charts the risk of death at various points in the life cycle of a constitution.
Here’s some of our discussion of these patterns from Chapter Six of the book:

As it happens, the shape of the hazard rate for constitutional dissolution
seems to mirror that of marriage dissolution, at least in some cultures. With
data on Norwegian couples, for example, Aalen and Gjessing (2001)
show that the risk of divorce is low in the first one or two years of marriage
(roughly 1 of 1,000 couples will divorce) but the divorce rate rises steadily
until age six, when it peaks (the peak rate differs by era, but for couples
married in 1980 the rate was 22 in 1,000), and then decreases gradually with a
trivially small uptick in the divorce rate after twenty years. In the case of
constitutions, the hazard rate takes longer to reach its peak at age fifteen
(where it sits at roughly 27 deaths per 1,000) but then decreases steadily and
substantially until by age fifty the rate is approximately .02, or 20 deaths per
1,000 constitutions. Curiously, not only does the shape of the hazard rate match
across the two domains, but the hazard rate itself is almost equivalent when
both rates are at their peak. For the many scholars who have found the marriage
covenant to be a useful analogue to the constitutional one, these results
provide more ammunition.

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Published on August 21, 2009
Author:          Filed under: hp, Zachary Elkins