Imperial Politics, English Law, and the Strategic Foundations of Constitutional Review in America

2019 ◽  
Vol 113 (3) ◽  
pp. 778-795 ◽  
Author(s):  
SEAN GAILMARD
Keyword(s):  
Formal Model ◽  
Colonial Period ◽  
Centralized Control ◽  
Constitutional Review ◽  
Early American ◽  
Imperial Politics ◽  
Legal Constraints ◽  
Imperial Governance ◽  
Higher Law ◽  
Legislative Review

In the colonial period of American history, the British Crown reviewed, and sometimes nullified, acts of colonial assemblies for “repugnancy to the laws of England.” In this way, Crown review established external, legal constraints on American legislatures. I present a formal model to argue that Crown legislative review counteracted political pressure on imperial governors from colonial assemblies, to approve laws contrary to the empire’s interests. Optimal review in the model combines both legal and substantive considerations. This gives governors the strongest incentive to avoid royal reprisal by vetoing laws the Crown considered undesirable. Thus, review of legislation for consistency with higher law helped the Crown to grapple with agency problems in imperial governance, and ultimately achieve more (but still incomplete) centralized control over policy. I discuss the legacy of imperial legislative review for early American thinking about constitutional review of legislation by courts.

The Kelsenian Model of Constitutional Review in Times of European Integration – Reconsidering the Basic Features

2019 ◽  
Vol 19 (1) ◽  
pp. 7-37
Author(s):  
Aleksandra Kustra-Rogatka
Keyword(s):  
European Integration ◽  
Legal System ◽  
Constitutional Court ◽  
Centralized Control ◽  
Constitutional Treaty ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
Legal Norms ◽  
Basic Features ◽  
The Eu

Summary The paper deals with the changes in the centralized (Kelsenian) model of constitutional review resulting from a state’s membership of the EU, which unequivocally demonstrates the decomposition of the classic paradigm of constitutional judiciary. The main point raised in the paper is that European integration has fundamentally influenced on the four above-mentioned basic elements of the Kelsenian model of constitutional review of legislation, which are the following: the assumption of the hierarchical construction of a legal system; the assumption of the supreme legal force of the constitution as the primary normative act of a given system; a centralised model of reviewing hierarchical conformity of legal norms; coherence of the system guaranteed by a constitutional court’s power to declare defectiveness of a norm and the latter’s derogation. All its fundamental elements have evolved, i.e. the hierarchy of the legal system, the overriding power of the constitution, centralized control of constitutionality, and the erga omnes effect of the ruling on the hierarchical non-conformity of the norms. It should be noted that over the last decade the dynamics of these changes have definitely gained momentum. This has been influenced by several factors, including the “great accession” of 2004, the pursuit of formal constitutionalization of the EU through the Constitutional Treaty, the compromise solutions adopted in the Treaty of Lisbon, the entry into force of the Charter, and the prospect of EU accession to the ECHR. The CJEU has used these factors to deepen the tendencies towards decentralization of constitutional control, by atomising national judicial systems and relativizing the effects of constitutional court rulings within national legal systems. The end result is the observed phenomenon, if not of marginalisation, then at least of a systemic shift in the position of constitutional courts, which have lost their uniqueness and have become “only ones of many” national courts.

Public Awareness and the Behavior of Unpopular Courts

2020 ◽  
pp. 1-19
Author(s):  
Jay N. Krehbiel
Keyword(s):  
Separation Of Powers ◽  
Formal Model ◽  
Public Awareness ◽  
Public Support ◽  
The European Union ◽  
Negative Consequences ◽  
Liberal Democracies ◽  
Constitutional Review ◽  
Institutional Stakeholders

Abstract Scholars have long debated the positive and negative consequences of an aware public for the quality of governance in modern liberal democracies. This article extends this debate to the context of constitutional review by exploring how public awareness can limit the effective exercise of review by courts lacking strong public support. Incorporating aspects of both the legitimacy and separation of powers theories on judicial power, the author argues that public awareness weakens the efficacy of such unpopular courts by creating an electoral incentive for governments to defy adverse rulings, even when doing so may lead to punishment from other institutional stakeholders. The article develops a simple formal model that identifies how and under what conditions public awareness can influence an unpopular court's decision making. An analysis of rulings issued by the Court of Justice of the European Union finds support for the model's empirical implications.

The Political Ecology of Colonial Somaliland

Africa ◽  
2004 ◽  
Vol 74 (4) ◽  
pp. 534-566 ◽  
Author(s):  
Jama Mohamed
Keyword(s):  
Political Ecology ◽  
Colonial Period ◽  
Ecological Change ◽  
Ecological Degradation ◽  
Social Basis ◽  
Real Price ◽  
The Social ◽  
Imperial Politics ◽  
The One ◽  
The Impact

AbstractThe social basis of ecological change in Somaliland during the colonial period was politics, especially imperial politics: the division of the Somali country into various colonial spheres, the loss of territory under the 1897 Anglo‐Ethiopian Treaty, and the pacification wars. These events, as it were, reduced the land available for use by the pastoralists, which led to overgrazing, soil erosion and ecological degradation. Moreover, the income of the population declined throughout the colonial period. Even though during the late colonial period the ‘nominal’ price of pastoral goods increased, the ‘real’ price of pastoral commodities did not increase to cover the loss of income caused by inflation and the high cost of imported goods. These two processes—on the one hand ecological degradation and on the other the decline of income—could be understood if they were read contrapuntally. Such reading is possible only if we give full attention to political ecology: why ecology had changed, the politics of that change, and the impact it had on the income and everyday life of the population.

Dilemmas of Democratisation from Legal Revolutions to Democratic Constitutionalism?

2012 ◽  
Vol 81 (4) ◽  
pp. 437-470 ◽  
Author(s):  
Paul Blokker
Keyword(s):  
Rule Of Law ◽  
Common Good ◽  
Democratic Politics ◽  
East Central Europe ◽  
East Central ◽  
Constitutional Review ◽  
The Rule Of Law ◽  
The Common ◽  
Higher Law ◽  
Public Views

The ideas of the rule of law and constitutionalism have become an intrinsic part of any process of democratisation around the world. This was equally the case in the radical changes that occurred in East-Central Europe (ECE) around the year of 1989. The adherence in the region to a form of “new constitutionalism” has been frequently seen as an indispensable contribution to the processes of democratisation. However, in this too little attention has been paid to the dilemmas, tensions and perverse effects that may emerge in the institutionalisation and practice of new constitutionalism, not least in terms of an enduring tension between constitutionalism as an ordering and stabilising device and democracy as an uncertain and indeterminate process of verification of public views on the common good. The experiences in ECE since 1989 with regard to new constitutionalism are ambiguous. It is undeniable that an emphasis on a higher law with entrenched rights and robust constitutional review has involved important “corrections” of certain outgrowths of democratic politics and in this prevented forms of “tyranny of the majority” or the endangering of the guarantee of universal rights. But it is equally true that new constitutionalism has been adopted at a price, not least with regard to the emergence of more widespread, publicly shared constitutional cultures as well as in terms of underexplored potentials of democratic constitutionalism and endorsement of civic engagement in the region. Democratic dilemmas and perverse effects have emerged in terms of domestic tensions, in particular regarding democratic debilitation, but also stem from tensions with legal orders beyond the national arena.

scholarly journals EU Enlargement, Migration, and Lessons from German Unification

2000 ◽  
Vol 1 (3) ◽  
pp. 299-314 ◽  
Author(s):  
Hans-Werner Sinn
Keyword(s):  
Formal Model ◽  
Eu Enlargement ◽  
Welfare States ◽  
Migration Pattern ◽  
Market Forces ◽  
German Unification ◽  
Second Best ◽  
Legal Constraints ◽  
Migration Costs

Abstract The paper studies the role of international implications after EU enlargement. Based on a formal model with migration costs for both capital and labor, it predicts a two-sided migration from the new to the old EU countries which is later reversed. As the migration pattern chosen by market forces turns out to be efficient, migration should not be artificially reduced by means of legal constraints or subsidies to the new member countries. The paper draws the parallel with German unification and points out the lessons to be learned by Europe. The analysis concludes with a brief discussion of the second-best problem posed by the existence of welfare states in the old member countries.

scholarly journals Indonesian Chinese Diaspora, Dual Citizenship And Indonesian Development

2016 ◽  
Vol 1 (1) ◽  
pp. 50
Author(s):  
Tundjung Herning Sitabuana
Keyword(s):  
Chinese Diaspora ◽  
Constitutional Court ◽  
Community Members ◽  
Dual Citizenship ◽  
Constitutional Review ◽  
Foreign Nationality ◽  
The Republic ◽  
The Government ◽  
Legislative Review

Indonesian Citizenship Law Policy, in accordance with Article 26  Paragraph (1)of the 1945 Constitution and Act Nr. 12/2006, is closed  in  nature and does not recognize dual citizenship. Community members of the Indonesian Chinese Diaspora who hold foreign nationalities do not have the legal standing to file applications to the Constitutional Court for constitutional review of Act Nr. 12/2006 in an effort to obtain Indonesian citizenship, because they are not Indonesian citizens. In order for an individual to be able to obtain Indonesian citizenship without losing his or her foreign nationality, the principle of dual citizenship must be applied within the Indonesian  Citizenship  Law  Policy.  This can happen if a legislative review on or an amendment to the act (in this case Act Nr. 12/2006 regarding the Citizenship of the Republic of Indonesia) is conducted by Parliament. Thus the Government of the Republic of Indonesia must be absolutely sure and able to fully assure Parliament that Indonesia has   a genuine need for the Indonesian Chinese Diaspora, because they have great potentials and can play an  important  role  in  Indonesia’s development,  both  in terms of the quality of human resources that have been proven and tested abroad, as well as the capital that can be invested in Indonesia.

scholarly journals Vetting Bills in the Scottish Parliament for Legislative Competence

2017 ◽  
Vol 21 (3) ◽  
pp. 319-351
Author(s):  
Christopher McCorkindale ◽  
Janet L Hiebert
Keyword(s):  
Judicial Review ◽  
Empirical Examination ◽  
Constitutional Review ◽  
Political Actors ◽  
Scottish Parliament ◽  
Statutory Requirement ◽  
The Supreme Court ◽  
Uk Government ◽  
Scottish Government ◽  
Legislative Review

In this article, Christopher McCorkindale and Janet Hiebert present the first empirical examination of the process by which bills in the Scottish Parliament undergo vetting for legislative competence. Based on a series of interviews with officials in the Scottish Government, Scottish Parliament and UK Government the paper makes a two-fold argument. First, that – despite the susceptibility of Acts of the Scottish Parliament to strong-form judicial review – the statutory requirement that the responsible minister and the Presiding Officer report to parliament on the competence of every bill, and the discretion of the Scottish and UK Government Law Officers to refer any bill to the Supreme Court before Royal Assent, align the devolution scheme with an emerging family of systems that favour legislative to judicial constitutional review. Second, that the deference shown by political actors to the advice of officials on questions of competence at each stage supplants legislative review – and its aspiration to engender a new culture of constitutional engagement – with a more closed form of bureaucratic review.

scholarly journals Towards Causal Consistent Updates in Software-Defined Networks

2020 ◽  
Vol 10 (6) ◽  
pp. 2081
Author(s):  
Amine Guidara ◽  
Saúl E. Pomares Hernández ◽  
Lil María X. Rodríguez Henríquez ◽  
Hatem Hadj Kacem ◽  
Ahmed Hadj Kacem
Keyword(s):  
Formal Model ◽  
Centralized Control ◽  
Control Logic ◽  
Temporal Reference ◽  
Transmission Delays ◽  
Free Network ◽  
Network Update ◽  
Event Order ◽  
Order Execution ◽  
Network Updates

A network paradigm called the Software-Defined Network (SDN) has recently been introduced. The idea of SDN is to separate the control logic from forwarding devices to enable a centralized control platform. However, SDN is still a distributed and asynchronous system: events can be triggered by any network entity, while messages and packets are prone to arbitrary and unpredictable transmission delays. Moreover, the absence of a global temporal reference results in a broad combinatorial range space of event order. During network updates, an out-of-order execution of events may result in a deviation from desirable consistent network update properties, leading, for example, to forwarding loops and forwarding black holes, among others. In this paper, we introduce a study of the Transient Forwarding Loop (TFL) phenomenon during SDN updates; for this, we define a formal model of the TFL based on causal dependencies that capture the conditions under which it may occur. Based on this model, we introduce an algorithm that ensures the causal dependencies of the system oriented toward TFL-free SDN updating. We formally prove that it is sufficient to ensure the causal dependencies in order to guarantee TFL-free network updates. Finally, we analytically evaluate our algorithm and discuss how it outperforms the state-of-the-art in terms of updating overhead.

Agricultural Productivity Change in Eighteenth-Century Pennsylvania

1976 ◽  
Vol 36 (1) ◽  
pp. 102-117 ◽  
Author(s):  
D. E. Ball ◽  
G. M. Walton
Keyword(s):  
Eighteenth Century ◽  
Agricultural Sector ◽  
Average Rate ◽  
Colonial Period ◽  
Agricultural History ◽  
Productivity Change ◽  
Factor Productivity ◽  
Early American ◽  
The Many ◽  
American Economy

Our tentative estimates indicate that total factor productivity growth in the agricultural sector advanced at a rate between 0.2 and 0.3 percent per year during the colonial period and then remained constant for the remainder of the century, while labor productivity advanced at an average rate of about 0.4 percent over the colonial period. We point out the many difficulties encountered in making such estimates and hope that our contribution will serve as a guide for further research in early American agricultural history as well as help to increase our understanding of the rate and trend in growth of the early American economy.

The Emergence of India’s Patronage-Based Party System

2017 ◽  
Author(s):  
Paul D. Kenny
Keyword(s):  
Political Institutions ◽  
Party System ◽  
Central Government ◽  
Political Stability ◽  
Colonial Period ◽  
Political Organization ◽  
Centralized Control ◽  
Party Organization ◽  
System P ◽  
Crisis Conditions

This chapter deals with the origins of India’s contemporary political institutions. The crisis conditions of the 1970s and the turn to populism had their roots in the late colonial period but these conditions remained latent until the mid-1960s. This chapter shows how India’s infamous patronage-based “Congress system” was first established and how political organization along horizontal socioeconomic lines was choked off in the process. It shows how the party system was brought under centralized control in the early 1950s and how this in turn brought a measure of political stability. India’s hybrid federal structure meant that state brokers had significant potential autonomy from the center; this autonomy remained latent as long as Nehru controlled both the party organization of the Congress and the fiscal powers of the central government. Case studies of a number of states support the analysis.

Sign in / Sign up

Export Citation Format

Share Document