The problem of constitutional legitimation: what the debate on electoral quotas tells us about the legitimacy of decision-making rules in constitutional choice

Proponents of electoral quotas have a ‘dependent interpretation’ of democracy, i.e. they have formed an opinion on which decision-making rules are fair on the basis of their prior approval of the outcomes these rules are likely to generate. The article argues that this position causes an irresolvable problem for constitutional processes that seek to legitimately enact institutional change. While constitutional revision governed by formal equality allows the introduction of electoral quotas, this avenue is normatively untenable for proponents of affirmative action if they are consistent with their claim that formal equality reproduces biases and power asymmetries at all levels of decision-making. Their critique raises a fundamental challenge to the constitutional revision rule itself as equally unfair. Without consensus on the decision-making process by which new post-constitutional rules can be legitimately enacted, procedural fairness becomes an issue impossible to resolve at the stage of constitutional choice. This problem of legitimation affects all instances of constitutional choice in which there are opposing views not only about the desired outcome of the process but also about the decision-making rules that govern constitutional choice.     

European influence and economic development

The development accounting literature identifies political institutions as fundamental development determinants. Forms of government or executive constraints are thought to shape economic institutions (e.g., property rights) that provide necessary incentives for economic growth. One strand of the literature suggests that European influence is a crucial economic development determinant, presumably through the adoption of European institutions. But how exactly did European influence in the distant past induce positive economic outcomes today? Previous approaches rely on “language,” “settler mortality,” “legal origins” or the “number of European settlers” as indirect proxies of European influence. We propose a direct and quantifiable mechanism: the adoption of European constitutional features. We construct a dataset of all constitutional dimensions from 1800–2008 for all countries and find that nations experience growth accelerations after adopting features of European constitutions. The growth effects are influenced (negatively) by periods of political turmoil, but they are independent of colonial backgrounds. These results show how European influence may have fostered growth, and they imply that countries were able to overcome adverse initial conditions over the last 200 years by adopting European constitutional features. Our constitutional dataset is sufficiently detailed to identify the specific dimensions of European constitutions that matter most for development: legislative rules and specific provisions that curtail executive powers.     

Spatial dependence in constitutional constraints: the case of US states

Several theories suggest that states?? choices of constitutional rules are at least partially a function of neighboring constitutions. This paper provides the first analysis of spatial dependence of specific provisions within state constitutions in the United States. The analysis effectively makes constitutional rules endogenous, contributing to a relatively underdeveloped branch of constitutional economics. By employing a series of probit estimations of nineteen specific constitutional rules, I find evidence of spatial dependence in state constitutions. Specifically, the presence of specific constitutional constraints pertaining to term limits, supreme court justice selection, recall, home rule, direct democracy, constitutional amendment by convention, balanced budget requirements, tax and expenditure limits, line item veto, victims?? bill of rights, health and welfare, right to privacy, environmental protection, sex discrimination, abortion, and official language all exhibit some evidence spatial dependence.     

Politics as exchange: the classical liberal economics and politics of James M. Buchanan

James Buchanan advocated the market mechanism for allocating resources because it is based on voluntary exchange. People engage in market transactions only when they believe they benefit from doing so. Buchanan depicted the political process the same way. People engage in collective activities to accomplish together ends that they would be unable to accomplish individually, or through bilateral exchange. Buchanan’s vision of politics as exchange is a normative framework for evaluating the rules within which political activity takes place. Rules that meet the criterion of agreement are desirable constitutional rules, and Buchanan recognized that not all government activity satisfies that criterion. Buchanan is the father of the subdiscipline of constitutional political economy, and his “politics as exchange” approach provides the foundation for much work in that area. Buchanan has created a foundation that is rich in ideas, but leaves behind a number of unanswered questions that point the way toward a further development of the research program in constitutional political economy.     

威权体制是如何运作的？

周雪光文章与强世功文章的共同之处是关注治理而非改革或体制变迁,既关注正式规则也关注非正式规则,关注做法多于关注文本。两篇文章的主要区别在于抽象层次及探究深度。周文“组织做法”基本上是强文探讨的一般宪法原则的微观变体。两位作者令人信服地指出,有持久的规则塑造中国政治精英之间的行为模式。不过,这些规则是什么,宪法原则与其它制度（及临时政治妥协）的区别何在,仍有待进一步研究。     

Political Learning: The Neglected Precondition of Constitutional Reform

This paper analyses the claim of constitutional economics that liberal economic policy requires far-reaching constitutional reform. The paper starts with a restatement of this claim and reinforces the rationale of the currently most influential variants of constitutional economics as represented by contractarian constitutional economics (Brennan, Buchanan), on the one hand, and Hayek s evolutionary theory, on the other. However, these constitutional proposals have shortcomings because the institutional preconditions of constitutional reform are not sufficiently reflected. Instead, I argue that, in face of economic crisis, a revision of in-period politics requires no more collective rationality than constitutional reform does. As a consequence, the introduction of new constitutional rules depends on political learning. The article concludes that constitutional rules in the sense of CPE can stabilise political learning but they cannot replace it.     

Social contracts for real moral agents: a synthesis of public reason and public choice approaches to constitutional design

Citizens in contemporary democratic societies disagree deeply about the nature of the good life, and they disagree just as profoundly about justice. In building a social contract theory for diverse citizens, then, we cannot rely as heavily on the theory of justice as John Rawls did. I contend that Rawlsian liberals should instead focus on developing an account of constitutional choice that does not depend on agreement about justice. I develop such an account by drawing on the contractarian approach to constitutional choice pioneered by public choice theorists, especially James Buchanan. With some modifications, public choice can help identify mutually justifiable constitutional rules based on the extent to which these constitutional rules produce appropriate laws under normal conditions. This new, synthetic approach to constitutional choice also helps to explain the moral significance of contractarian agreement for the public choice theorist.     

Constitutional craftsmanship and the rule of law

Is “rule of law” anything more than a fictional allusion? After all, “law” is an abstract noun, and abstract nouns can’t rule. Only people can rule. The conceptual framework of constitutional political economy invokes a central distinction between choosing rules and playing within those rules. Claims on behalf of a rule of law require a sharp distinction between the enforcement of agreed-upon rules and arbitrary changes in those rules. This paper explores whether there are constitutional arrangements under which it could reasonably be claimed that governance reflects a deep level operation of a rule of law despite the surface level recognition that it is men who rule. With the exercise of rulership being a social process and not a matter of individual action, the network pattern through which rules are enforced takes on particular significance. In particular, polycentric architectures are generally more consistent with rule of law than monocentric architectures.     

Constitutional politics within the interest-group model

I examine constitutional politics using the interest-group model of politics. Constitutional economics argues that rent seeking is inevitable in majoritarian democracy and genuine reform is possible only at the constitutional level. By implication the constitutional equilibrium must differ from the political equilibrium. I examine reasons that such a difference might exist but find weak prospects for a general-interest victory over the special interest in constitutional politics. Although implicit constitutional change (for example, through Supreme Court reinterpretation) and explicit violation are substitute means of altering the constitution, the former dominates the latter. This suggests that a third factor participates in constitutional politics in addition to the general and special interests, which is support for the Constitution itself. Effective rules to restrain rent seeking need to ensure the congruence of the constitutional and general interests.     

Post-socialist constitutions: The de jure–de facto gap,its effects and determinantsa

The aim of this paper is to contribute to the debate on constitutional rules and their economic effects by extending focus to the de jure–de facto constitutional gap. First, evidence is provided that size of this gap matters as higher gaps lower the effectiveness of the constitutional commitment mechanism. Second, several explanations of this gap are identified, in particular relating to the democratization process, political conflict, age and comprehensiveness of the constitution. The conclusions are based on an empirical study for the unique setting of the post-socialist countries of Europe and Asia, which all enacted new constitutional frameworks after 1989 and it is shown that in some of these countries constitutions acted as blueprints.     

The Tax Man Cometh: Constitutional Principles for Tax Enforcement

Passage of an Internal Revenue Service (IRS) overhaul bill in 1998 reflects the depth of American taxpayer frustration with the agency. We bring a constitutional, or rules of the game, perspective to tax enforcement. We examine political costs and benefits and agency discretion as reasons why tax enforcement by the government might deviate from the preferences of a representative citizen. We also examine prospects for reform. Lasting reform must alter the rules for deciding tax enforcement policy or the political pressures which yield excessive enforcement today will reemerge in the future.     

Organizational reputation and constitutional constraints: An application to religious denominations

Constitutional economics may be defined as the study of constraints chosen by cooperative groups. In this paper, the scope of constitutional economics is extended by an examination of the constitutions and rules that govern seven of the eight largest U.S. Christian denominations. This examination of church constitutions reveals constitutional provisions and church rules that protect denominational reputation by preserving doctrinal integrity and constraining the behavior of local churches, clergy, and individual members. By protecting their reputations, religious denominations may increase their appeal to current or prospective members or both.     

Political entrepreneurship,emergent dynamics,and constitutional politics

Constitutional political economy mostly distinguishes between rules and actions, with rules selected prior to actions within those rules. While we accept the coherence of this distinction, we pursue it within an open rather than closed scheme of analysis. Doing this entails recognition that societies rarely exhibit universal agreement about constitutional provisions. Recognizing the incomplete character of constitutional agreement points to the existence of margins of contestation. Along those margins, political entrepreneurship will be active in promoting support for alternative constitutional interpretations. Within open systems of creative and entrepreneurial action, constitutional reinterpretation is continually injected into society. Acquiescence in the presence of power does not imply agreement about its use. Rather, acquiescence means the constitutional contestation becomes an element of ordinary politics and not an activity that is prior to ordinary politics. It also means that emergent dynamics supplements comparative statics as a method of analysis.     

Club governments versus representative governments

The paper compares the legal rules for private clubs with the constitutions of representative governments. Though both institutions are designed to provide public goods for their members they are organized quite differently. In clubs the power to grant power must not be delegated to the agents, while in representative governments it usually is. The design of representative governments is shown to be inconsistent with a contractarian view of the constitution. A nearly perfect laboratory case for a club government can be found in the example of Switzerland. In this country citizens are absolute sovereigns over their constitution. The Swiss do not have a constitutional court, but have developed instead a system of popular voting rights serving as a substitute for a judicial review by a constitutional court. Though this system does not work perfectly, it has relative advantages compared to a constitutional court which often tends to become a political decisionmaker. The author is indebted to Pio Baake, Peter Moser, and Richard E. Wagner for helpful comments.     

Explaining constitution-makers’ preferences: the cases of Estonia and the United States

This article is concerned with the effects of the kinds of framers involved in constitution-making on the content of constitutional provisions proposed during the drafting process. It tests the hypotheses that predict framers’ constitutional preferences on the basis of their institutional position, partisan background and constitutional expertise with two specific cases: the Constitutional Assembly of Estonia (1991–1992) and the Federal Convention (1787) of the United States. The case studies show that most of the hypotheses find only partial confirmation in both instances of constitution-making. The institutional position of a framer (being a member of existing legislature or executive) and constitutional expertise does not necessarily influence his or her constitutional preferences in the predicted way. The only theoretical proposition that is corroborated in both cases concerns the importance of group interest in a constitutional choice of electoral system and modes of representation: in the Estonian case, the design of the constitutional electoral rules was strongly influenced by partisan interest; in the US case, the interests of territorial subunits played a major role.     

Rule-governed behavior in evolution and human society

I present a conceptual framework and analytical tools for generalizing existing theory in order to investigate imperfect choice that does not always make optimal decisions based on available information. The resulting analysis implies imperfect choice creates incentives forrule-governed behavior that is adapted only to recurrent situations (rather than adjusting optimally to all conditions), thereby producing a tendency to ignore relevant and even costlessly available information. These principles are applied to recent analysis on the foundations ofconstitutional economics. They are also applied to nonhuman evolution, and to human behavior within exchange environments in order to illustrate the pervasiveness of rule governed behavior, and to suggest a constitutional perspective about the importance of developing rules for governing peoples' ongoing economic and political decisions. I conclude by briefly discussing a basic tradeoff between reaching initial agreement over constitutional rules and the stability of future compliance to them once they are put into practical application. I wish to thank Kenneth Arrow, James Buchanan, Del Gardner, Robert Clower, Andrew Schotter, Giovani Dosi, Mark Machina, Howard Racklin for helpful comments and criticisms, as well as participants in a Liberty Fund conference on constitutional economics during June 1989 in Bonn, West Germany. Of course, I am responsible for the paper's content.     

Constitutions and economic reforms in transition: an empirical study

Experiences of countries undergoing post-socialist transition in Central and Eastern Europe, as well as Central and Southwestern Asia, during the last 17 years, reveal great variety in economic reform paths and their successful implementation. At different moments of transition varying constitutional rules have also emerged in these countries. In our empirical study we find a significant relationship between constitutional rules and the economic reform process in post-socialist countries of Europe and Asia after 1989. In principle, the results confirm the arguments of the so-called negative constitutionalists, according to which the main function of the constitution for economic reforms in transition is its functioning as a commitment mechanism. The conclusions constitute an important step towards verification of different and often conflicting theories proposed by constitutional economists and allow to formulate practical recommendations for constitutional legislators and other actors capable of influencing constitutional change in countries encompassed by the study.

Fiscal Constitutions

We study the impact of fiscal constitutions on intergenerational transfers in an overlapping generation model with linear technology. Transfers represent outcomes of a voting game among selfish agents. Policies are decided one period at a time. Majoritarian systems, which accord voters maximum fiscal discretion, sustain all individually rational allocations, including dynamically inefficient ones. Constitutional rules, which give minorities veto power over fiscal policy changes proposed by the majority, are equivalent to precommitment. These rules eliminate fluctuating and dynamically inefficient transfers and sustain weakly increasing transfer sequences that converge to the golden rule. The golden rule allocation is the unique outcome of Markov constitutional rules. Journal of Economic Literature Classification Numbers: D72, H55.     

Constitutional Implications of Electoral Assumptions

The paper discusses the implications of three models of elections (the median voter model, the proportional representation model, and the probabilistic voting model) on three functions of constitutional rules (constraining the majority of the people, monitoring political and bureaucratic agents, and keeping separate the levels of constitutional rules and of ordinary politics).     

Fiscal Constitutions

In this paper we examine how taxes, subsidies and the design of constitutional agendas should be regulated in order to allow for an efficient allocation of public goods and a limitation of tax distortions. We show that if public goods are socially desirable, the simple majority rule, combined with taxation constrained to majority winners or a ban on subsidies, can achieve several desirable objectives. Equal treatment regarding taxes and subsidies is undesirable. Super majority rules and equal treatment of all citizens with respect to taxes and subsidies, however, are first-best provided public goods are socially undesirable. Finally, we suggest that constitutions with amendments eliminate excessive taxation and allow treatment rules to universally improve welfare.