Vibert's European union: A United Nations or a United States?

In his book, Europe: A Constitution for the Millennium, Frank Vibert explores every major issue that will arise in the design of a constitution for a European political union. Can the theoretical constructs of constitutional economics be used to aid in the practical design of a European constitution? This is what Vibert attempts to do in his book. This review contains a more detailed discussion and analysis of a few of Vibert's main theses. In particular, it focuses, on several key issues that will be the major determinants of whether the European Union will achieve lasting success.     

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 constitutional future of the European Union

The formal distinction between a treaty and a constitution is much less important than the question of who is authorized to interpret and amend it. The judges of the European Court of Justice interpret the Treaty by simple majority, while unanimity of the member-states would be required to reverse these decisions. The European Union needs a Court whose judges are empanelled from, and selected by, the highest courts of the member-states. The Treaty on European Union violates three fundamental constitutional principles: (i) the principle of the separation of powers, (ii) the democratic principle, and (iii) the principle of subsidiarity.     

Constraining Leviathan

This article commemorates James M. Buchanan and his contributions to public choice and constitutional political economy. It focuses on what Buchanan had to say about constraining the State, or as he often referred to it, Leviathan. It concentrates on a handful of his major works that I think capture important elements of his thinking. It discusses Buchanan’s writings on public debt and government deficits; the size of the state; federalism; and taxation, among other things. It is argued that the main emphasis in Buchanan’s work as it pertained to constraining the State was to include provisions in the constitution that could achieve this end. These included a balanced budget amendment, rules governing the expansion of the money supply, constraints on the types of taxes that could be levied, linking expenditure proposals to the taxes that would finance them, earmarked taxes, and a generality principle, which would avoid a majority coalition’s exploitation of a minority. The article also includes a discussion of the current constitutional crisis in the United States.     

Integration,Diversity, Plurality: Territorial Governance and the Reconstruction of Legitimacy in a European ‘Postnational’ State

This article deals with the European ‘legitimacy crisis’ from a neglected perspective, looking at ‘Europe’ not primarily as a set of formal (or formalisable) institutions, but rather as an emergent, policy-driven institutional construct. In this perspective, European integration may be very much seen as the outcome of the policies that are enacted in the European supra-national arena as well as of the way such policies are continuously reinterpreted, renegotiated and re-enacted in the different arenas of its multi-level polity. What is at stake in adopting a policy approach to the European legitimacy issue is, hence, a critical appraisal of development of processes of ‘institutionalisation of Europe’ that range far beyond issues of constitutional design. A crucial consequence is the need to ‘spatialise’ discourse on European reforms. The conclusion is a plea for an integration model for Europe not only constitutionally respectful of diversity, but constitutively enhancing diversity, and for an approach to policy reforms acting upon a ‘political geography of differences’.     

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.     

The economic constitution of the European community: From Rome to Maastricht

The present paper analyzes the changes in the economic constitution of the European Community since its foundation in 1958. In order to identify the various changes, we start by developing a frame of reference. Our proposition is that theconstitutional charter of the European Economic Community (EEC)—the EEC Treaty—came closest to this frame of reference, being an economic constitution for a market system, whereas the subsequentprocess of European integration—including several modifications of the Treaty—was largely based on the introduction of non-market elements. Our argument is that as far as the economic constitution is concerned, the Treaty of Maastricht is dominated by traits which are characteristic of modern welfare states.     

European unification: a new proposal

My contribution presents a possibility to unify Europe based on newly emerging political units focused on solving problems rather than on historically given nation states. These Endogenous Political Entities (EPE), as they shall be called, are better suited to reach the goals of European unification as they strengthen the fundamental European values of variety and freedom. I make three propositions: to base the unification of Europe on nation states is unfortunate as the latter are responsible for the political disaster of the two World Wars; the unification must proceed in a problem-oriented manner. The constitution of Europe must allow and promote EPE to emerge specifically to deal with particular problems; the new political units can be introduced in marginal steps. Over time, a flexible and dynamic net of political entities will arise taking care of the large economic, social and cultural diversity in Europe.     

Constitutional quandaries in Europe

Most of the constitutional political economy literature has followed Buchanan and Tullock by remaining inherently normative, but a small literature has appeared that examines the properties of constitutions by considering the motives of the people who actually write the constitution. This literature is in the positive public choice tradition, in that it assumes that the people who write a constitution are interested in advancing their interests and not those of someone else. This note discusses the need for and nature of a constitution that would advance the interests of all citizens, and then the procedures that would be necessary to create and adopt such a constitution.     

Term-limit evasions and the non-compliance cycle

Executive term limits are evidently under stress in many jurisdictions. One mode in which they are evaded is through the formal revision or abrogation of a constitution. Such a process accelerates a pernicious cycle in which constitutional non-compliance begets constitutional instability, which in turn begets subsequent non-compliance. Such a non-compliance cycle is a core problem in law, and one that deserves more careful examination in various domains. This essay unearths original historical evidence of term-limit provisions and executive tenure in an effort to illuminate and evaluate the phenomenon. A background concern is that of international (and domestic) approaches to term-limit evasion. One intellectual response is that of militant democracy. The logic of that approach would imply the entrenchment and protection of term limits, which would presumably disrupt the cycle of non-compliance.

     

How Not to Write a Constitution—The Maastricht/Amsterdam Treaties

The member states of the European Union have negotiated two treaties intended to advance political union—Maastricht in 1992 and Amsterdam in 1997. This article critiques both treaties for their failures on both procedural and institutional questions. It suggests that the costs for member states of reaching a constitutional bargain can be reduced by emphasising decentralised arrangements for Europe and that a constitutional opportunity remains.     

中国宪法中的不成文宪法——理解中国宪法的新视角

本文从中国宪法文本与宪政实践之间的背离问题入手,提出了从不成文宪法的角度来理解中国宪政秩序的新思路。基于对英美宪法学说与宪政实践的分析,作者区分了古典的政制与现代的宪法律、政治宪法与法院宪法,进而主张任何国家的宪政运作实际上都依赖不成文宪法,从而奠定不成文宪法的法理学基础。在此基础上,文章选择中国宪法中关于国家建构中四个关键性问题,着重探讨中国不成文宪法的四个主要渊源,即成文宪章、宪法惯例、宪法学说及宪法性法律,并呼吁宪法学应当从中国现实的宪政生活中提炼具有普遍意义的宪政原理和制度。     

“Constitutionalizing” the corporation

To become effective instruments in the attainment of a sustainable society, corporations should have their constitutional status settled. Thus far, mainly by Supreme Court decisions, corporations have an uncertain status. They are “persons” under the Constitution and have certain rights; but unlike natural persons, they do not have concomitant constitutional duties. Corporations should be viewed as “private” governments exercising substantial power in society. They are, however, considered to be associations of individuals rather than divisions of society. The need is to legitimate their governing power by “constitutionalizing” them. That can be done by corporations accepting, or having imposed upon them, two principal constitutional duties. First, means should be developed whereby corporate officers routinely take the general good into account. That duty could be implemented by making “social impact statements,” analogous to but broader than the familiar environmental impact statements, before making important corporate decisions. Secondly, as “sociological communities,” corporate officers wield considerable power over members of those communities. A bill of rights similar to the Constitution's Bill of Rights is recommended so as to make corporate power that is necessary for achievement of societal goals as tolerable and decent as possible. Acceptance of those duties would make corporations parts of, not separate from, the greater corporation called society. They would be private, profit-making entities with a definite public function. Preferably, the duties should be voluntarily accepted. Congress, however, has undoubted constitutional power to impose both, should it so desire.     

Constitutional safeguards against centralization in federal states: An international cross-section analysis

This paper contains an international cross-section analysis of the share of central government expenditure in total government expenditure for a sample of about 50 countries and a subsample of 23 industrial countries in 1989–91. The expenditure shares, their changes and the unexplained residuals for each country are reported in Table 1. As the analysis demonstrates, the share of central government is significantly lower, if income per capita and the country's area are large and if it is a federal state. The explanatory power of the equation rises considerably if the binary dummy for federalism is replaced by quantitative constitutional variables. The most powerful single explanatory variable is the age of the constitutional court in the complete sample or the constitutional court's independence of union institutions in the sample of industrial countries. The equation's explanatory power (adjusted for degrees of freedom) can be raised by allowing also for the degree of control which provincial institutions have over the constitution and over the second chamber and by taking into account whether an increase in federal tax rates requires a popular referendum. Other types of constitutional referenda and the relative age of the federal constitution do not seem to matter. Among the federal states, the share of central government is much larger than predicted in the United States and Mexico, and it is much smaller than predicted in Argentina and Canada. The constitutional variables are particularly helpful in explaining the relatively small share of central government in Switzerland, Malaysia, Germany and Austria. The last section draws conclusions for the design of constitutions with some special applications to the European Union.     

Cognition,competition, and catallaxy in memory of Friedrich August von Hayek

The paper focuses on central elements of the scientific work of Friedrich A. v. Hayek since the 1930s. In a first part, his epistemological position and its implications for his understanding of the tasks of the social sciences are presented as he set them out particularly in theSensory Order (1952). Then, it is shown how his findings in economic theory as well as in the analysis of economic and societal systems are formed by these foundations. His emphasis on the subjectivity and the constitutional limitations of human knowledge is identified as a precondition for the outstanding analytical insights which he gained with regard to the functioning of a market order and the role of institutions in societal development. Furthermore, it is argued that Hayek's enduring campaign for freedom and against the socialist tendencies in welfare states was not simply a matter of personal conviction. It was also the result of his analysis in constitutional political economy which revealed to him that freedom as a normative basis of economic and societal institutions is the key to the explanation of European cultural evolution.     

Federalism and Conflicts over Principalship. Some Insights into the American Constitutional History

The article provides an economic interpretation of Kelsen's theory of decentralized governments. It helps to distinguish different forms of federalism and in particular the corresponding conflicts of principalship inside the governmental structure. The model is applied to the early American constitutional history and shows how opposed views of agency relationships in the constitution foreshadowed what would later end up in a civil war.     

From contract to mental model: Constitutional culture as a fact of the social sciences

This paper develops the concept of constitutional culture—the attitude, thoughts, and feelings about constitutional constraints and the nature, scope, and function of constitutionalism. Constitutional culture is approached as a complex emergent phenomenon bridging Hayekian cognitive and institutional insights. It can be studied as a mental model, a series of expectations and understandings about the constitutional order, how it is, and how it ought to be. The “map” and “model” approach from Hayek’s Sensory Order (1952) is employed to understand how individuals and (cautiously) groups of individuals at the national level approach constitutionalism. This paper goes beyond the more traditional one-size-fits-all approach where all individuals respond uniformly to incentives, as provided by the constitution qua contract. Instead, constitutionalism is tied up in the individual’s vision of the world, that is, what Hayek (1948) labels “the facts of the social sciences.” The paper concludes with four areas where constitutional culture can further the insights of constitutional political economy: comparative political economy, constitutional stickiness, constitutional maintenance, and the new development economics.     

Competence Catalogues and the Principle of Subsidiarity in a European Constitution

The purpose of this paper is to compare two instruments—the principle of subsidiarity and competence catalogues—which can be used in order to define a balance between powers vested in the European Union and those vested in the member-states. These instruments will be evaluated in the context of constitutional economics. The goal is to clarify the constitutional problem of dual jurisdictions in Europe. The principle of subsidiarity will be criticized because of the static nature of that device: the three main problems in making use of competence catalogues are to find criteria for deciding which competences should be allocated on which level, to protect the system against judicial erosion and to adapt it to changing environments.