Blog of the International Journal of Constitutional Law

Self Dealing and Legislatures

It is often tempting, or at least convenient, to charge sitting legislatures with the task of constitution writing. These bodies are usually representative and are built to write laws. Why not trust them with higher law too? One concern is the problem of self dealing. One of, if not THE most, important tasks in constitution making is setting the balance of power between the legislature and executive. Can we trust legislators not to put their finger on the scale?

Some early evidence suggests that we can. In a working paper, my co-authors Tom Ginsburg and Justin Blount and I compared roughly 200 consitutions written by sitting legislatures with another 200 written by constituent assemblies dedicated to constitution making. Adapting a measure of legislative power developed by Steven Fish, we found that, if anything, sitting legislatures tend to provide LESS power to legislatures than do constituent assemblies. This finding could very well be a product of non-random selection in distribution of the constitutional process (this is observational data, after all). Nonetheless, the findings should provide some comfort to those who lose sleep at night wondering about self-serving legislators!

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Published on February 13, 2009
Author:          Filed under: hp, process, Zachary Elkins

New reports filing in

As some of you know, we are periodically combing through the Comparative Constitutions Project’s growing dataset on constitutional provisions (of both historical and contemporary constitutions) in order to produce “option” reports on various design provisions. The idea is simply to ensure that drafters know what others have done.

This week we added three reports, one on customary international law, another on official and national language provisions, and the other on secession and accession. These bring our report total to close to 50 with many more to come. We will announce the publication of new reports here should you want to stay current!

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Published on February 9, 2009
Author:          Filed under: hp, reports, Zachary Elkins


The objective of the Comparative Constitutions Project is…

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Published on February 9, 2009
Author:          Filed under: Uncategorized

Constitutional “vibe”

Constitutions and film are rarely mentioned in the same sentence. As far as I know, no watchable film has been made of even the celebrated summer of 1787 in Philadelphia (“Long Hot Summer II” anyone?). Nevertheless, when Dennis Davis, the well known South African judge and constitutional scholar, recommends a film in the genre you sit up and take notice.

At a splendid conference convened by my colleague Sandy Levinson last weekend, Davis recounted a scene from “The Castle,” the 1997 Australian film in which a Melbourne family loses its home to eminent domain and fights the case all the way to the high court. In that scene the family’s attorney, clearly out of his league, protests that the government’s taking is unconstitutional. Asked by the judge to identify the provision in the constitution that has been breeched, the flustered attorney stammers that the basic “vibe” of the constitution has been violated. So enters a brave new concept in constitutional law — the vibe.

Professor Davis mentioned that this was only one in a series of films in a course that he teaches on law and film. Let’s hope that there are more nuggets in the syllabus. I will inquire.
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Published on February 7, 2009
Author:          Filed under: film, hp, Zachary Elkins

Bolivia and the risks of dissensus

In last week’s constitutional referendum in Bolivia, 59% of voters approved of the proposed constitution. As the dust settles from that highly controversial affair, we can begin to make some observations.

Some constitutions “get done” through significant compromise, or at least logrolling. This was not one of those. Deep differences surfaced (and exploded) well before the government prepared its document. These differences, which have a regional (highland/lowland) component, are not likely to disappear. The new constitution commits the country to a political program whose proposal had been met by either jubilation or disgust by citizens. Certainly, other historic constitutions have included ambitious programs of social, political, and economic reform. In situations like Bolivias in which deep ethnic and economic inequality exist, the entrenchment in higher law of programs like land reform — reforms that are often politically difficult to implement — can be helpful.

Whether this constitution can last, however, is another question. Bolivia has been engulfed in violence in the last year over the appropriateness of the very reforms now enshrined in the constitution. Those opposed to things like redistribution and the removal of Catholicism as the state religion have not bought in. They remain opposed, perhaps even more bitterly. One thing that research has shown is that consensual constitutional processes lower the risks of premature constitutional death. In this sense, risks to the Bolivian document seem high.

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Published on February 2, 2009
Author:          Filed under: hp, Latin America, ratification, Zachary Elkins

Bolivia votes on constitutional amendments

“Bolivia is being refounded” said President Evo Morales, as his country went to the polls today to vote on proposed constitutional amendments that would extend his term. The amendments, which are expected to pass by a solid margin, are hardly exceptional in Bolivia (or in Latin America), where constitutions have been frequently amended or replaced.

The fact that power-hungry leaders are seeking to use constitutional mechanisms for extending their terms is a sign of progress in some sense, and beats the alternative of replacing the constitution outright. Bolivia had at least nine distinct constitutions in the 19th century and four or five in the 20th. If Morales has his way, they may be down to one or two for the 21st.

In neighboring Venezuela, President Hugo Chavez’ referendum to end restrictions on the number of terms he may serve will go to the polls in just under three weeks. Bolivarian, indeed!

Watch for updates on the Venezuelan situation here.

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Published on January 26, 2009
Author:          Filed under: hp, Latin America, ratification, Tom Ginsburg

Thailand’s Court resolves crisis–for now

Thailand’s Constitutional Court has issued a long-awaited decision disbanding the ruling party (the PPP). The decision had been widely anticipated, given the apparent violations of electoral law by the PPP. It assumed greater importance, however, because of the crisis perpetuated by anti-government protestors. With tacit support from the police, military and monarchy, they had occupied Bangkok’s airports, stranding hundreds of thousands of tourists and causing serious economic pain.

There are two points of general interest illustrated by this affair. First, like many other countries, Thailand has experienced “judicialization” with the courts resolving major political issues. In a forthcoming article available here, I argue that Thailand’s constitutional order is just an extreme case of a general trend toward “post-political” constitutions, reflecting a distrust of politics and a faith that technocratic institutions, like courts, counter-corruption commissions and ombudsmen, can somehow resolve problems in a neutral manner.

Second, courts seem to respond to signals of public opinion in such circumstances. Had the protests been put down or been less enduring, the Court might have sided with the PPP and found the violations of law de minimis. Some years ago, the Court’s predecessor had essentially taken this approach with regard to the party associated with now-discredited premier Thaksin Shinawatra. This time, the Thai Constitutional Court said it had “no choice” but its decision can also be read as furthering its own institutional interest in remaining relevant in the light of great public pressure. The Court’s prestige has arguably been enhanced by the whole affair.

As a normative matter, this state of affairs leaves much to be desired. Don’t like the government? Simply organize a large scale protest, bring the government to a halt, and then accuse it of not providing leadership. If the protest is big enough, the courts will have no choice to side with you. The key, of course, is to have enough support that law enforcement takes your side. But technocratic institutions like courts, the military or police, are no substitute for political institutions. I suspect this is not the final round of Thailand’s political crisis, as the government party will emerge again in some reconstituted form.

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Published on December 3, 2008
Author:          Filed under: hp, Tom Ginsburg

Nepal officially starts drafting

Nepal has been engaged in an extended drafting process for over two years, during which time political turmoil and the ending of the monarchy has shifted the landscape significantly. This week the constituent drafting assembly, elected in May, officially launched the process of drafting a permanent constitution, with a deadline of May 2008. A key issue will be federalism and devolution.

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Published on November 20, 2008
Author:          Filed under: hp, Tom Ginsburg

Russian amendments to extend term?

A frequent source of constitutional death or amendment is executive term limits. After serving two terms, former President Putin successfully re-engineered the Russian Constitution to facilitate his election as Prime Minister, allowing him to remain in office so long as he has the support of parliament (presumably a very long time.) Recently, Putin’s hand-picked successor Dimitry Medvedev has floated the idea of amending the Constitution to allow for an extension of the Presidential term to six years. This would allow the current lineup to remain in place for 12 years. Stay tuned for updates on whether this gambit succeeds.

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Published on November 16, 2008
Author:          Filed under: hp, term limits, Tom Ginsburg

Ecuador’s Constitution takes effect

Ecuador’s new constitution was confirmed last week and took effect yesterday. Following the leftward trend in Latin America, the document guarantees rights to clean water, pensions and health care, while also allowing President Rafael Correa to serve another term potentially. Elections will be held in February.

Why is it that Correa was able to get through reforms through a referendum when his fellow Bolivarista Hugo Chavez failed? One possibility is that Correa has been in office less time, and took power initially in a free and fair election.

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Published on October 22, 2008
Author:          Filed under: hp, Latin America, Tom Ginsburg