Expressive Constitutionalism

We argue that the standard Constitutional Political Economy defence of constitutionalism, that derives from an argument relating to the shift from narrowly self-interested motivations in the in-period context to relatively general-interest decision making in the constitutional context, is flawed precisely because it is intended to relate to essentially political settings where decision making must be construed as collective in nature. We suggest an alternate account of expressive constitutionalism that points to a specific defence of constitutional conventions that are insulated from popular voting.     

Conditions affecting the survivial of constitutional rules

Massive changes in the effective constitution—primarily bearing on the economic powers of the federal government, primarily in the past 60 years—have revived interest in the problem of constitutional maintenance. This paper finds the conventional American theory of constitutional maintenance to have at least three major problems. The paper then suggests three propositions about constitutional maintenance, building on the developing theory ofproprietary government. The most important conclusion is how little we know about this subject. Paper presented at Panel on Constitutional Political Economy: Annual Meeting of the Southern Economic Association; Orlando, Florida; 19–21 Nov. 1989     

Constitutions as Commitment or Coordination Device? Comment on C. Azariadis and V. Galasso: Constitutional “Rules” and Intergenerational Fiscal Policy

In a recentcontribution to Constitutional Political Economy, Azariadis andGalasso argued that due to the fact that constitutions allowfor a partial precommitment of the individuals, constitutionalrules are a good means to guarantee an efficient level of redistributionbetween generations. I argue that constitutional rules have noinherent advantage with respect to commitment compared to otherrules. However, the beneficial role of constitutions stems fromtheir ability to create a focal point that helps to solve theequilibrium selection problem.     

Calculation of Self-Interest and Constitutional Consensus: The Role of Ideology

Constitutional political economy's veil of uncertainty prevents citizens from identifying their specific interests under political rules and facilitates agreement on rules by moving all individuals to an average position. But the calculation of self-interest in such settings is not straight-forward; citizens require a model of how the economy works to predict the effect of rules on welfare. Political ideologies typically supply such models. Citizens subscribing to different ideological models anticipate differential treatment under a given constitutional rule, breaking down the ability of the veil of uncertainty to achieve consensus. Constitutional consensus is unlikely in the absence of ideological consensus.     

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.     

Parliament vs. Supreme court: a veto player framework of the Indian constitutional experiment in the area of economic and civil rights

This essay is on the Indian constitution and extends and responds to the work of Singh (Constitutional Political Economy 17:17, 2006) in the analysis of economic rights. The veto player framework is used to analyze the development of economic rights which was diminished and civil rights (through Public Interest Litigation) which was expanded since Indian independence. The Congleton Model (Constitutional Political Economy 12:193–215, 2001) and Tsebelis Model (British Journal of Political Science 25(3):298–325, 1995) on veto players are used to develop the hypotheses and analyze the evolution of the Indian constitution.     

The Independence of the Italian Constitutional Court

It is often asserted that the Italian Constitutional Court is not independent of the Executive and Legislative branches of the government in Rome. We offer a view of independence that is congruent with bodies such as constitutional courts. We argue that the evidence, both qualitative and quantitative, however poor it may be, indicates that the Italian Constitutional Court is as independent as any other corresponding constitutional or supreme court of democratic countries. The evidence is not directly conclusive because the question, in the end, is not whether the judges, one by one, are independent, but whether the Court is independent. The evidence we offer pertains mostly to judges. If judges are independent, as that evidence seems to indicate, the Court is a fortiori even more independent.     

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.     

Regularity of pure strategy equilibrium points in a class of bargaining games

Summary. We develop an index theory for the Stationary Subgame Perfect (SSP) equilibrium set in a class of n-player sequential bargaining games with probabilistic recognition rules. For games with oligarchic voting rules (a class that includes unanimity rule), we establish conditions on individual utilities that ensure that for almost all discount factors, the number of SSP equilibria is odd and the equilibrium correspondence lower-hemicontinuous. For games with general, monotonic voting rules, we show generic (in discount factors) determinacy of SSP equilibria under the restriction that the agreement space is of dimension one. For non-oligarchic voting rules and agreement spaces of higher finite dimension, we establish generic determinacy for the subset of SSP equilibria in pure strategies. The analysis also extends to the case of fixed delay costs. Lastly, we provide a sufficient condition for uniqueness of SSP equilibrium in oligarchic games.Received: 13 May 2004, Revised: 1 March 2005, JEL Classification Numbers: C62, C72, C78.I thank John Duggan and participants of the 2003 annual meeting of the American Political Science Association, Philadelphia, PA, the Political Economy Seminar at Northwestern University, and the Economic Theory seminar at the University of Rochester for helpful comments.     

Feuding,arbitration, and the emergence of an independent judiciary

Constitutional Political Economy - Anthropologists, historians, and political economists suggest that private violence—feuding—provides order and enforces agreements in the absence of a...     

Legislative output and the Constitutional Court in Italy

This paper considers the impact of the Constitutional Court on legislative output in Italy. Following Tsebelis’ ((2002) Veto Players: Foundations of Institutional Analysis. Princeton: Princeton University Press) veto players model and the stylised facts as regards the Italian Constitutional Court’s activity, this paper presents a multi-stage game in the spirit of Gely and Spiller ((1990). A rational choice theory of supreme court statutory decisions with applications to the state farm and grove city cases. Journal of Law, Economics, and Organization 6, 263–300). In the first stage, the legislative veto players, namely the parties in government, choose whether to change or not the policy status quo by enacting new legislation. In the second stage, the Court makes a constitutional interpretation: it decides whether to alter or not the outcome of the first stage through a sentence of constitutional illegitimacy. The Court has both the power of annulling laws and a limited power of creating new legally binding norms. Moreover, in the third stage, a constitutional law voted by a parliamentary qualified majority can overturn the Court’s decisions. The model predicts that the presence of the Court lowers legislative policy change and tests this prediction with 1956–2001 annual time series data for Italy.

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.     

The Costs of Implementing the Majority Principle: The Golden Voting Rule

In a context of constitutional choice of a voting rule, this paper presents an economic analysis of scoring rules that identifies the golden voting rule under the impartial culture assumption. This golden rule depends on the weights β and (1−β) assigned to two types of costs: the cost of majority decisiveness (‘tyranny’) and the cost of the ‘erosion’ in the majority principle. Our first main result establishes that in voting contexts where the number of voters n is typically considerably larger than the number of candidates k, the golden voting rule is the inverse plurality rule for almost any positive β. Irrespective of n and k, the golden voting rule is the inverse plurality rule if β ≥ 1/2 .. This hitherto almost unnoticed rule outperforms any other scoring rule in eliminating majority decisiveness. The golden voting rule is, however, the plurality rule, the most widely used voting rule that does not allow even the slightest ‘erosion’ in the majority principle, when β=0. Our second main result establishes that for sufficiently “small size” voting bodies, the set of potential golden rules consists at most of just three rules: the plurality rule, the Borda rule and the inverse plurality rule. On the one hand, this finding provides a new rationalization to the central role the former two rules play in practice and in the voting theory literature. On the other hand, it provides further support to the inverse plurality rule; not only that it is the golden rule in voting contexts, it also belongs, together with the plurality rule and the Borda method of counts, to the “exclusive” set of potential golden voting rules in small committees. We are indebted to Jim Buchanan, Amichai Glazer, Noa Nitzan, Ken Shepsle, and an anonymous referee for their useful 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.     

WHO VOTES EXPRESSIVELY,AND WHY? EXPERIMENTAL EVIDENCE

Experiments have shown that some people behave more altruistically in collective decisions than they do in individual ones, which could be interpreted as an ‘expressive voting’ effect. However, there is substantial variation in the behaviour of experimental participants. We conduct experiments to explore the reasons for this variation, and find that certain characteristics are sometimes associated with a propensity for expressive voting. However, the strength of these effects depends on the ordering of individual and collective choices. The ‘warm glow’ of expressive voting can influence subsequent individual decisions, and the ‘cold shower’ of individual selfishness can influence subsequent collective decisions.     

Riding the democracy train: incumbent-led paths to autocracy

Constitutional Political Economy - In the twenty-first century, democracies are most often weakened, and even die, not by coups but by manipulation from within by democratically-elected...     

Islam-based legal language and state governance: democracy,strength of the judiciary and human rights

Constitutional Political Economy - States embracing Islam-based laws are frequently seen as struggling with establishing democratic institutions, jeopardizing human rights and encouraging executive...     

Transitional justice and authoritarian backsliding

Constitutional Political Economy - Can a lack of transitional justice contribute to democratic backsliding? This paper uses the case of Poland to argue that selective enforcement of transitional...     

Trust and trustworthiness after a land restitution program: lab-in-the-field evidence from Colombia

Constitutional Political Economy - We assess the impact on trust and trustworthiness of a governmental program to compensate victims of forced displacement. All our subjects were eligible to apply...     

Vulnerability,due process,and reform in modern Mexico

Constitutional Political Economy - In this paper, we examine the relationship between socioeconomic vulnerabilities and due process violations in contemporary Mexico, using a novel survey of...