Constitutions and Constitutional Design
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Leaders of the transition from apartheid at the adoption of South Africa’s democratic constitution, May 1, 1996. From left to right in front row: F. W. de Klerk (president 1989–1994), Cyril Ramaphosa (current president), Nelson Mandela (president 1994–1999), and Leon Wessels.
Author: J. Tyler Dickovick; Jonathan East
IN THIS CHAPTER
Flexible and Rigid Constitutions
Separation of Powers: Judicial Review and Parliamentary Sovereignty
Federalism and Unitarism
Authoritarian and Democratic Constitutions
Causes and Effects: What Are the Effects of Federal and Unitary Constitutions?
What Constitutional Designs Support Social Stability?
What Constitutional Designs Support Democratic Rights?
What Constitutional Designs Support the Economy?
Judicial Review and Democracy
What Explains the Similarities Between the Brazilian and South African Constitutions?
CASES IN CONTEXT
United Kingdom • Iran • Nigeria • India • United States
Consider the following passage:
We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united in our diversity.
We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to
Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;
Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;
Improve the quality of life of all citizens and free the potential of each person; and
Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.
May God protect our people.
Nkosi Sikelel’ iAfrika. Morena boloka setjhaba sa heso.
God seën Suid-Afrika. God bless South Africa.
Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.
This passage is the preamble to the South African constitution passed in 1996, which established the foundational laws and was intended to form the basis for democracy in the country after decades of racial discrimination and white-only rule known as apartheid. One of the functions of constitutions can be to express the values of a society, especially those relating to the unity and aspirations of the people. The South African charter was a major step in creating a “New South Africa” based on equality and respect for the dignity of the country’s peoples (even if it certainly did not solve all the country’s problems with racism and inequality with the stroke of a pen). The preamble addresses this aspiration and notably concludes with an expression translated into six of the country’s major languages. These aspirations may vary from place to place: the lengthy introductions to China’s and Iran’s constitutions, for example, document the history of the revolutionary movements that gave rise to the regimes currently in power. The United States too has a famous preamble in its Constitution of 1787: We the People of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
The Constitution of the Republic of South Africa, and most others like it, also does more than express the country’s ideals in writing. It is a very specific legal document that creates a design for the country’s formal political institutions, including the legislative, executive, and judicial branches. It also addresses the division of power between a central government and the provinces (as they are called in South Africa, which are akin to the states in the United States). With regard to judiciaries in particular, the South African constitution established a very important power of constitutional interpretation: judicial review. Judges were given the authority to rule which laws are consistent with the constitution, and which are not. The South African judiciary even ruled on whether the Constitution itself was constitutional, evaluating the text, determining what was adequate and proper and what was not. It accepted much of the text submitted in 1994 but sent the Constitution back to its drafting body, the Constituent National Assembly, to clarify some issues and rewrite others.
In this chapter, we examine constitutions, the questions of whether and how they separate power between levels of government, and whether they are interpreted by judiciaries. We leave the discussion of the constitutional roles of legislatures and executives to chapters 9 and 10 , where we treat those two branches of government individually. The issues related to constitutions and constitutional interpretation matter because, in most modern societies, constitutions establish many of the formal organizational features of the state and thus are keys to understanding politics.
This chapter begins our examination of formal government institutions1, which are the structures and organizations that shape political behavior. The most obvious among these are the branches of government, two of which we explore in depth in subsequent chapters (the legislative, chapter 9 , and executive branches, chapter10 ), and we also include political parties and interest groups that are a regular part of political life. Because the very foundation of political institutions is usually located in constitutions, we focus on these basic charters in this chapter and on the question of constitutional interpretation. How is political power divided among different governing institutions? Who rules on whether a law is constitutional? We take a close look at these issues and discuss both federalism and judiciaries, which are key elements of what constitutions say and what they do.
We look first at concepts and definitions, outlining what we mean by constitutions, federalism and unitarism, and judiciaries. We then turn to types across different countries, to show how constitutions, constitutional design, and constitutional interpretation may vary from place to place.
Constitutions are the foundational charters and fundamental laws of most modern states. They elaborate the structure of government and express the founding principles of the regime. They are usually written documents passed by some sort of constitutional convention or constituent assembly that brings together many of a country’s leading political figures to hammer out the rules, laws, and structures needed to establish the basis for political life. This may occur at the founding of a country, as in the case of the United States, or when a new political regime is established, as has happened in France many times with the creation of new republics.
Constitutions have come to symbolize the social contracts that societies make to “constitute” themselves in which “the people” confer authority to political actors in exchange for the establishment of order and a rule of law. The history of constitutions links closely to the idea of constitutionalism, or limited government, and is thus part and parcel of the story of the evolution of modern governance, and especially the emergence of democracy itself.
As the basic founding laws of a society, constitutions are the set of rules and norms on which all other laws are based. In the United States, for instance, the Constitution is the ultimate point of political reference: even the president, as head of state, must act in accordance with its principles. Military enlistees and new citizens swear an oath of allegiance not to the president or the Congress but to uphold and defend the Constitution “against all enemies, foreign and domestic.” In a real sense, the Constitution is the foundation of the United States’ entire political system. In other countries as well, constitutions provide the basis for political unity, defining who and what the state is. These sets of laws outline the basic structure of the state and its patterns of governance, noting which branches of government have which powers and which responsibilities. In many cases, constitutions recognize or grant the basic rights of a country’s citizens, though these rights are not always guaranteed in every case. Indeed, even highly authoritarian regimes often make use of constitutions, regardless of whether rights are infringed in practice.
French protestors against the constitution of 1958.
In most cases, constitutions are written down in a single document that is subject to change by a process of amendment. Constitutions will not attempt to include the massive amount of statutes or laws that are needed to govern the society and establish its policies but will rather outline how these laws and policies are to be established and who decides on whether they are legitimate. They are, in short, the law above all other law, and the basis for political life.
Constitutional design refers to the features of the constitution that shape the powers of different political institutions. These features vary, though all constitutions define the basic structure of government. Constitutional design is important because it gives countries the chance to set up effective institutions. For example, countries such as Nigeria, Mexico, the United States, and India have all witnessed wrangling over how power should be established and how governments should be instituted. Starting out, it was unclear whether many new nations would survive or would prove vulnerable to disintegration, especially after the end of colonialism in these countries.2 The U.S. Constitution happens to have lasted to this day, but due to a variety of causes, other countries have re-crafted their constitutions and their constitutional designs on multiple occasions. After establishing one of the world’s earliest republics in the late 1700s, France has gone through numerous constitutions, with the current one dating only back to 1958.
The question of federalism, or the separation of powers among different levels of government in a country, is often central to constitutional design. One of the key issues in the U.S. Constitution, for instance, was dividing powers between the central government and the states. Federalism is a political system in which multiple levels of government have some degree of autonomy in the same territory. Only in some countries do subnational governments (such as states, provinces, or regions) have constitutional protection or authority and a guarantee of autonomy from the central government. These may be called federal systems. For instance, the 27 states in Brazil or the nine provinces in South Africa have constitutional guarantees of their authority to govern and establish laws in their respective regions, even as the central government also has the right to do so. As the American president (and political scientist) Woodrow Wilson put it, “The question of the relation of the states to the federal government is the cardinal question of our constitutional system.”
By contrast, the absence of federalism is unitary government or unitarism, in which the institutions and branches of the central government effectively wield political power. Most countries in the world are unitary. In these countries, local governments (such as towns, cities, or villages) will have some authority to shape local rules, but the laws made by these local governments are subject to central authority. As we shall see, federalism is not necessarily more or less democratic than unitarism, but its implications for how government works are numerous.
Constitutional design usually also involves establishing a separation of powers among distinct branches, each with its own responsibilities and duties. Constitutions frequently begin by establishing a legislative branch responsible for formulating and passing laws. This may be called a parliament, a congress, or an assembly, or may be given any number of other names, as we examine in the chapter on legislatures ( chapter 9 ). The executive branch ( chapter 10 ) is the other portion of the government that is usually elected, at least in democratic regimes, and the powers and functions of the executive branch are routinely outlined in a constitution as well. For both of these branches, constitutions will often outline the procedure by which representatives are chosen, in addition to the powers they hold and duties they must perform. Constitutions also often address the structure and power of the judicial branch as well as the structure of the administrative apparatus.3 This delineates the separation of powers between the three “branches” of government: legislatures, executives, and judiciaries. We discuss legislatures and executives in full chapters (9 and 10 , respectively, as noted previously), though these are also clearly elements of constitutional design.
Judiciaries are branches of government that have particular importance in how constitutions are interpreted. The principal duty of the judiciary is to preside over cases in courts. This implies the power to interpret the laws put into effect by the other branches of government, but the extent of the judiciary’s power to interpret (and even strike down) laws varies from one country to another. In some countries, judiciaries have considerable powers of constitutional interpretation, while in other countries, they do not rule on whether laws are constitutional. The principal distinction is the strength of judicial review, which refers to the power of constitutional courts to determine the legality of laws.
These two features—the extent of federalism and the respective roles of the branches of government—are central to both constitutional design and constitutional interpretation. For the remainder of this chapter, we discuss variations in constitutions themselves, as well as the different ways constitutions are designed and interpreted. These variations are considerable, as we will see in the section that follows.
As noted in the previous section, there are several ways countries differ in how their constitutions are designed and interpreted. In general, constitutions can be designed to be flexible and easily changed or rigid and difficult to change. A second issue is how the constitution is interpreted, and specifically whether the judiciary has the power to interpret the constitution. A third element is the degree of federalism in a constitution. Finally, we note that both democratic and authoritarian regimes have constitutions, and these may differ in some ways but may also look quite similar on paper.
Flexible and Rigid Constitutions
One of the central distinctions among different types of constitutions is how easily they can be changed. Many constitutions are designed to be relatively difficult to change. Amending them may require supermajorities in each chamber of the legislature (i.e., more than just a simple majority of votes) or approval by a number of the units of the federation—the states, provinces, or regions. Some constitutions, such as that of the United States, are even harder to change. An amendment to the U.S. Constitution requires a two-thirds vote in each of the two houses of Congress, followed by approval of three-fourths of the states’ legislatures. It has been amended only twenty-seven times since its passage, and only seventeen times since 1791.
At the other end of the spectrum are highly flexible constitutions that are easy to change, at least nominally. The most obvious case is those that can be changed by a simple majority of the legislature. The Constitution of the United Kingdom is one of the most flexible, at least according to the law. This is because in the British system, the Parliament is sovereign, as discussed in the next section: if a majority of the legislature passes a law, that law is by definition constitutional.
This flexibility relates to another unique feature of the British constitution. Today, nearly all countries in the world have a single written document (which can be amended) that defines the parameters of the political system. The principal exception to the rule of written constitutional charters is the United Kingdom. The United Kingdom does not have a single constitutional text, but rather, several documents are deemed to have constitutional significance as the country has developed its political system over the course of many centuries. The major constitutional documents include the Magna Carta of 1215, but also a range of other laws of great significance and stature such as the Bill of Rights of 1689, which emphasized certain limitations on the power of the monarchy; and the Acts of Settlement of 1701, which established patterns of succession to the throne. In this sense, it may be said that the United Kingdom has a “written” constitution but one that relies on a range of written documents rather than a single one. What is considered constitutional in the United Kingdom is also determined by acts of Parliament and precedents in common law. This makes the constitution adaptable as laws and cultural practices change (New Zealand, a former British colony, similarly relies on a set of major acts of Parliament that established the constitutional basis for the country’s governance). This does not, however, mean that the United Kingdom has no constitution; in fact, it has one of the longest traditions of constitutional government in the world.
Apart from the United Kingdom’s constitution, which is based on many documents and traditions, and the U.S. Constitution, which is a brief framework with a handful of amendments over the years, there are many written constitutions that differ in style and form. As societies have grown more complex, constitutions in more recent years have often grown longer and more intricate as they attempt to balance a range of different interests, institutions, and ideas. The South African Constitution, mentioned at the top of the chapter, is an example. So too is the Brazilian Constitution of 1988, as noted in the concluding “Thinking Comparatively” section of this chapter.
Constitutions regularly recognize the rights of citizens or grant rights to the citizenry. In the case of the U.S. Constitution, many fundamental rights were actually passed as a set of amendments to the original document, known as the Bill of Rights. Since then, however, many contemporary constitutions (including the South African and Brazilian examples) have incorporated significant rights into the main text from the very beginning, which is likely one cause of constitutions becoming much lengthier over time. That is, articles in the original constitutional texts of many countries specify civil rights and civil liberties, political rights, and social rights (such as access to certain public services).
Of course, rights may be well protected or disrespected in practice, regardless of their inclusion in the document. For example, the Brazilian case is one where constitutional rights and protections have been promised, yet the government has been unable to deliver in some areas such as public services. In such cases, the constitutional guarantees may be more aspirational in nature, even in a democratic country. We return later in the chapter to the question of constitutional protections in practice when we look at how constitutions may be somewhat different for authoritarian systems.
Separation of Powers: Judicial Review and Parliamentary Sovereignty
In many (but not all) countries, courts have the power to decide some constitutional issues and rule on whether a law passed by the legislature is constitutional. If constitutional courts find that the law is not consistent with the constitution or basic laws of a society, they may strike down the law. In these countries, constitutional courts are usually separated from the civil and criminal court systems. In systems with separation of powers, this is the “check” that the judiciary has on the legislature. Constitutional courts are not the only type of courts. Local courts are for local disputes and for claims involving local laws, including arrangements over property (such as buying and selling houses), issues of marriage and divorce, traffic violations, and some criminal offenses.4 Constitutional courts are reserved for major constitutional issues about whether a law passed by the government is valid.
As noted earlier in the chapter, the process by which national courts examine the constitutionality of law is called judicial review. Most constitutions provide for a process of judicial review in which constitutional courts have judges who rule on the constitutionality of law. Judicial review is the central political power of the judiciary, and it occurs when judges examine the constitutionality of a law passed by the legislature. In countries with judicial review, the constitution is seen as the supreme law of the land, and it is the role of the courts to verify that laws passed by the legislature are consistent with the constitution.
Judicial review generally operates with a high court or “supreme court” at the pinnacle of the judicial system that serves as the final arbiter of constitutional law. This may be built on top of a system that has “lower courts” in different states, provinces, or localities around the country.5 The high court is composed of a select number of established jurists or justices. (In the United States, there are nine justices on the Supreme Court, nominated by the president and approved by the Senate for life terms.) In systems with judicial review, the decisions of such courts are often final and can be overturned only by subsequent judicial decisions or by legislatures amending the constitution itself. This system of constitutional interpretation by judges is regularly a source of debate and disagreement in many countries, as discussed in the “Causes and Effects” section later in the chapter.
The most prominent examples of countries without constitutional courts and judicial review are those where the constitutionality of law is determined by the parliament. In such cases, the judicial system is composed of courts that rule on the merits of specific cases in accordance with the laws that exist, without questioning the legitimacy of those laws. Of course, here too there may be some interpretation of what the laws mean, but the court is not empowered to strike down or alter laws passed by the legislature. The United Kingdom is the most noteworthy example. In the United Kingdom, there is no high court empowered to rule on most matters of law; the few minor exceptions relate to the question of how some powers have been decentralized to the regions of Scotland, Wales, and Northern Ireland, and this has been true only since 2009.6
As mentioned previously, constitutional interpretation in the United Kingdom generally follows the doctrine known as parliamentary sovereignty. This means that if the legislature—often called the Parliament—passes a law, that law is, by definition, constitutional. The legislating body is the highest political and legal authority in the land. In theory, the British Parliament could easily overturn long-standing parts of the British constitution at a moment’s notice.
Delegates to Brazil’s Constituent Assembly celebrate the passage of the country’s constitution in 1988.
Why has this not happened? Why has there not been massive zigzagging in terms of what the constitution means, from one election to the next, as new parties take power and lose power? In reality, the British Parliament refrains from overturning the founding laws of the polity because it follows national norms, values, customs, and traditions. Much as American political parties would probably not envision getting rid of major elements of the Constitution, even if they had the supermajority they would need, so too does the British system exhibit constitutional stability from one elected government to the next. It may seem self-evident that demanding procedures have kept the U.S. Constitution from being amended more frequently, but the United Kingdom shows that procedure is not the only determinant of how and when constitutions change. Consensus in the society matters, as do traditions, habits, customs, and values.
CASE IN CONTEXT: No Constitution? No Supreme Court? Constitutionality in the United Kingdom
Federalism and Unitarism
The distinction between federal and unitary countries (and countries in between) is a fundamental difference in the way power is divided in a society. As discussed earlier, federal countries have a system in which power is separated between the central government and some subnational governments that are partly autonomous. In unitary systems, power is located at the center. In unitary states, the center may delegate certain powers to local, regional, state, or provincial governments, but it retains the constitutional or legal authority to reverse its decision at virtually any time.
The question of ruling large, complex territories is perennial, but the idea of federalism as a solution came more recently.7 The United States was an early leader in establishing federalism (along with Switzerland). Led by James Madison, considered the “Father of the Constitution” and a principal author of The Federalist Papers, the nation’s founders developed an intricate political compromise designed to satisfy both the larger and smaller of the thirteen original colonies that came together to create the new nation. As the colonies became states in the union, the American system reserved considerable rights to those states that the central government (called the “federal government”) could not infringe on. They backed up these rights in the form of a Senate where each state was to have equal representation, regardless of population. This idea of compromise between central power and regional (or state or provincial) power came to appeal in a range of contexts. Other countries did not adopt the American system in its entirety, but many saw virtue in the general approach to reconcile national and subnational interests.
Today, many federal countries around the world have intricate sets of interacting institutions. Originally designed to unify diverse territories while preserving subnational autonomy, federal institutions now do more than simply offer a way to ensure that nations do not fall apart: they divide governing power and allow some laws and policies to vary from place to place within a country, even as some national laws (and the national constitution) take precedence everywhere inside the borders.8 Federalism is now seen by some as a strategy to ensure more than stability and protection, as it may also promote democratic inclusion, as well as capture the benefits of economic unity. For these reasons, many of the world’s largest countries either are federal or have prominent features that resemble federalism.
Although only about twenty of the nearly two hundred total countries in the world are considered federal, these twenty countries account for a large portion of the world’s population. Many of the largest and most populous countries are federal, including the world’s four most populous countries after China: India, the United States, Indonesia, and Brazil. Other federal countries include Nigeria, which has the largest population of any African country, and Pakistan, Russia, Mexico, and Germany, which are some of the largest countries in their respective regions of the world. Using a relatively inclusive definition designed to capture virtually any country that might be considered federal, we have constructed Map 8.1.
Map 8.1 Federal systems around the world (in yellow).
There are debates about whether many of the countries shaded in Map 8.1 are reliably federal (such as Spain and Pakistan). Several institutional elements and historical features may suggest otherwise, and federal countries do not always respect real autonomy for subnational units. Conversely, other countries may have some federal features yet remain unitary states, as is the case with China, where provinces have gained economic and political autonomy relative to the central government in recent years. China shows that some countries can seek the benefits of decentralized government without necessarily establishing federalism.
Federal systems may be defined as those where subnational governments have constitutional guarantees of some power and autonomy in their own jurisdictions, as well as constitutional protections from infringement on the part of the central government. In practical terms, virtually all federal countries share other characteristics: an upper legislative chamber defined in the constitution with territorial representation for the states/provinces/regions that provides them with political protection, and full legislative and executive branches at the subnational level.9 While the specific definitions may vary, it is clear that federalism is intended to ensure representation for the subnational level in national decision making.
INSIGHTS: Federalism: Origin, Operation, Significance
Most countries in the world are unitary states, in which the central government is the only level of government specified in the constitutional charter. In unitary states, power is not constitutionally divided between layers of government but resides exclusively in the central government. This central government may then create (or allow for the creation of) more local levels of government, but these lower levels are dependent on the center and often accountable to the center. Municipalities, prefectures, counties, or other local governments may elect officials locally, but these will generally have little power. To use a translation from the French, the republic is “one and indivisible.” Local governments may be able to elect officials, but the national government will make most significant policy. For instance, the center may establish the national school curriculum and may staff the offices of the health service, with relatively little scope for discretion at the local level.
Unitarism is especially prevalent in countries with certain characteristics. One is small size, as contrasted with the large size of most federal states. Most countries that are small are also unitary, with the exceptions being a handful of federal countries composed of a cluster of small islands.10 Another tendency is for unitarism to hold in places where the population is ethnically, linguistically, and culturally homogeneous. Federalism seems to take root more where populations are linguistically diverse, as in Belgium and Switzerland, which are divided into different linguistic communities. Finally, unitarism may vary at least in part on colonial heritage. For example, former French colonies in Africa have long tended to follow the highly unitary features of France itself, while former Spanish and British colonies have varied in their structures.
Authoritarian and Democratic Constitutions
Historically, making government constitutional meant eliminating the divine right or absolute power of monarchs such as kings, queens, princes, sultans, or emperors. Constitutionalism, as established in western Europe progressively over the centuries, meant preventing such rulers from exercising power in an arbitrary fashion and holding them at least partially accountable to the will of at least some of the people. As the power of monarchs faded in many countries, the drafting of constitutions became one way to limit the power of government, to divide and separate power such that a single person or family could no longer dominate. In parts of Europe, for example, constitutional monarchy was seen as distinct from divine right monarchy or absolute monarchy, because executive power came to be derived by a mandate from the consent of the governed.11
Still, not all countries with constitutions exhibit the characteristics of democracy and limited government. In fact, the actors that demanded constitutionalism and the end of absolute monarchy were in many cases themselves elites, nobles, revolutionaries, or military leaders. They were not always interested in political rights and civil liberties for all, and they did not always represent the people. For many centuries, the rights established in constitutions were often restricted to a small subset of the population, such as property-owning males of a certain racial or ethnic background.12
Even today, not all political systems are perfectly constitutional, nor are all systems legitimate, fair, and just. Writing down a set of basic laws and rights on paper does not guarantee that those laws and rights will take effect or be enforced in practice; some countries that have constitutions fail to protect rights. Authoritarian regimes usually have constitutions, even where they deny political rights and civil liberties to their people. Such regimes may seek to establish their legitimacy on the basis of claims made in the constitution. For instance, a revolutionary socialist government may draft a constitution holding that the Communist Party is the sole entity capable of expressing the general will of the people. This would not seem “democratic” or “constitutional” to the minds of most people who value individual rights and liberties, but the document itself could nonetheless be recognized as a constitution. Other authoritarian regimes may place less importance on political parties (or may outlaw parties entirely) and instead vest the ruler(s) with the authority to determine what the population as a whole requires.13
Authoritarian constitutions will not typically declare dictatorial rule, however, and in fact may appear quite progressive in terms of the rights and powers they list. Even totalitarian regimes may formulate extensive sets of rights in their constitutions, at least on paper, whether they defend these in practice or not.14 In some instances, authoritarian regimes may even outline some rights that a democratic constitution may not contemplate. For instance, the constitution of the Soviet Union established rights such as guarantees of education, access to health care, housing, and a pension in old age—none of which are listed in the U.S. Constitution. Some authoritarian regimes simply continue to govern under the constitutional charter of a previous democratic regime but will suspend or override certain elements of the constitution. Military regimes have been known to establish martial law or states of emergency, which sometimes extend for long periods of time and during which normal constitutional principles do not apply. This is often done using the justification that national security requires exceptional measures.
Some countries also base part of their judicial and legal system on another authority: official religious law. This tendency is most noteworthy in the Islamic world, where sharia law plays an important role in many countries, though the use of religious law is not limited to Muslim countries. Sharia law is based on the Qur’an (Koran), the Holy Book of Islam, and to a lesser extent on other core Islamic texts. Countries that follow sharia have judges and clerics that rule in conjunction with their interpretations of the Qur’an. Judiciaries in both Saudi Arabia and Iran are linked to the state religions, and they rule on the basis of religious law in many areas. Even interpretations of issues not treated directly in the Qur’an are reasoned by analogy with reference to the Holy Book or to the words and deeds (known as the sunnah and the hadith) attributed to the Prophet Muhammad.
Religious law is not necessarily authoritarian, nor does it characterize all Muslim countries. For instance, Turkey is a majority Muslim country with a formally secular state. Other countries, such as India and Indonesia, make partial use of Islamic law, such as applying it in certain kinds of legal cases between Muslims (such as family law about marriage, divorce, and parenthood between Muslims). Israel, the United Kingdom, and other countries make provisions for the use of religious law by Orthodox Jews and others, largely as an option for use by populations who wish to resolve such matters in religious courts. In fact, one leading scholar has argued that recent years have seen a rise in “constitutional theocracy” in which constitutional law is combined with recognition of an official state religion and some use of religious beliefs or texts as a foundation for law.15
Causes and Effects: What Are the Effects of Federal and Unitary Constitutions?
In the study of political institutions, political scientists often ask whether a given design is superior to others and whether the ideal institution depends on country contexts. For the purposes of this chapter, debate over the relative merits of different forms of institutions focus on constitutional design, and specifically the separation of powers along federal or unitary lines. We can consider at least three substantial questions about the consequences of federal versus unitary constitutions: (1) Which are best for social stability, (2) Which are best for protecting democratic rights, and (3) Which are best for the economy? While we will keep this question open to many possibilities, it is worth noting that much of the debate among political scientists has focused on the presumed advantages of federalism; this is reflected in the references to scholarship in the pages that follow, though we aim to give consideration to the various sides of the debate. We consider these questions about the possible advantages of federalism and unitarism here, as well as whether judicial review is necessary in protecting rights and upholding the law.
CASE IN CONTEXT: Constitutional Design: Theocracy in Iran
What Constitutional Designs Support Social Stability?
To help answer the question of stability, we can start by looking at the origins of federalism and unitarism in different societies. A long-standing argument held that federalism was the result of disparate political units coming together for security, with the post-revolutionary United States being the classic example.16 It may also be, however, that countries go federal to hold together; that is, they may devolve authorities to regions to prevent secession or division.17 As for unitarism, here too the causes may be found in deep historical legacies, including efforts by monarchs long ago to consolidate power or to unify authority. As noted in chapter 3 , the modern nation-states of Europe were created from the merging of much smaller units such as principalities, as well as the splintering of large empires.
From one perspective, federalism may be an institution uniquely capable of holding together a polity. By conferring powers to levels of government below the national, federalism may give more people a stake in the political system. If certain regions or groups feel they have greater autonomy, then they may be more willing to participate instead of demand independence. Movements demanding separatism, secession, or break-up of a country may gain less traction in countries where these groups have powers reserved to them by a federal constitution. One such approach has been taken by Ethiopia, where the constitution actually gives different regional groups the right to secede (though it is unclear how this would work in practice). The expectation is that by giving autonomy and power to the ethnic groups, and by offering an out, the constitution will encourage compromise and enhance the recognition of the merits of unified government. By this logic, federalism enhances stability.
INSIGHTS: Federalism and Democracy: Beyond the U.S. Model
On the flip side, federalism might lead to exacerbating differences and undermining stability. By drawing significant lines (almost literally) between different groups, federal systems may end up encouraging different regions of the country to develop independent identities. This question emerges in Spain, where nationalism in Catalonia may have grown as the region’s autonomy has increased. In other countries with more precarious economies and more fragile societies, such as Nigeria, ethnic minorities or regions that feel they are being treated unfairly by the central government are often critical of the federal system. In some such cases, they may increase demands for secession or separation, which may even explode into ethnic violence.
CASE IN CONTEXT: Federalism and the States in Nigeria: Holding Together or Tearing Apart?
What Constitutional Designs Support Democratic Rights?
Federal and unitary designs may affect democracy in ways similar to those discussed earlier: federal institutions may make government more stable and may facilitate democratic incorporation of the demands of many groups, or federalism may reinforce divisions. One main way in which federalism may affect democratic stability relates to a subject discussed in the previous section. If residents of one or another region in a country feel disempowered by political institutions, they may be more willing to use non-democratic means to achieve their objectives. Since federalism should contribute to the empowerment of regional groups, it may bind citizens together under democracy and encourage participation in democratic institutions.
Beyond the question of whether federalism or unitarism is likelier to make democracy persist, we may also consider which design better supports democratic rights. Consider a very heated cultural debate, such as abortion in the United States and many other countries, and how it relates to the question of federalism. The pro-life position holds that embryos and fetuses are people and therefore have a right to live (usually starting from the time of conception), implying that the biological mother may not choose to abort a pregnancy. The pro-choice position holds that a woman has a right to have control over her own body with respect to reproduction, and that the government may not dictate to her what she must do in terms of the decision to terminate a pregnancy.
There are many ethical, moral, and legal aspects to such a debate, but for the moment we ask only a question about federalism. One perspective on abortion has been a “states’ rights” perspective, which maintains that different states in the United States (say, liberal Vermont and conservative Alabama) should be allowed to have different laws governing abortion, which would reflect the different sets of values and beliefs of the majorities in each place. This structure would allow different parts of a federal country to express their own views on rights and would be consistent with some of the perceived advantages of federalism.
Now consider another perspective. Whichever side of this debate you may come down on (pro-life or pro-choice), it is worth asking the following question with respect to federalism: should people have different fundamental rights in a country, depending on where they happen to be born or live? Let’s say that Vermont adopted a more pro-choice set of policies and Alabama a more pro-life set of policies. If you favor the pro-life argument, should a human embryo or fetus in Vermont have fewer rights than one in Alabama? Should Vermont be allowed to adopt its set of policies because of federalism? If you favor the pro-choice argument, should a woman in Alabama have fewer reproductive rights and less choice than one in Vermont? Should Alabama be allowed to adopt its set of policies because of federalism?
It seems clear that different regions (such as states) should be allowed to pass their own preferred laws and policies to reflect the democratic wishes of their residents. On the other hand, it seems that some major debates get down to questions of constitutional rights that may need to apply everywhere in a society. This question is fundamentally about what is in a constitution and what federalism should be. The question about democracy and rights under federal constitutions is not straightforward, as this example shows.
What Constitutional Designs Support the Economy?
Federal or unitary systems of government may be good or bad for an economy, depending on one’s point of view and on circumstances. On one hand, some see federalism as generating healthy competition among states or regions, which can be good for the economy. If state A sees that businesses are relocating to state B next door (maybe for reasons of lower taxes or better public services, for example), then state A may do its best to govern in a way more like state B (say, by lowering taxes or providing better services). Such situations will exert a form of positive peer pressure for good economic policies that will benefit the country over the long run. Federalism, by inducing economic competitiveness among states, approximates the kind of competition one sees in a market, which may be good for the economy. Of course, this idea of healthy competition implies that states will perform differently from one another, which may lead to significant differences in development and opportunities within a federal country, as the case of India shows (see the Case in Context, “Federalism and Differences in Development in India,” box).
Along with inducing healthy competition, decentralizing power is theorized to have another advantage: it can allow people to sort themselves into different jurisdictions along with other people who share their policy preferences. Let’s say town X and town Y are side by side. Town X has higher taxes and better-funded schools, while town Y has lower taxes and less school funding. Maybe a family with young children in school will wish to live in town X, and a retired couple with grown children will prefer to live in town Y. Decentralized government can accommodate both, whereas more centralized government would impose the same tax rate and the same amount of school funding for both families.18 This example is more truly a question of decentralization than of federalism, since it deals with local communities, but the principle also extends to federalism and the roles of states, regions, or provinces.
In federal systems, the state or provincial level of government often has a great deal of responsibility in many public services. In the United States, states have a major role in deciding on issues of health policy and in providing support to the poor, while local governments have the most significant responsibilities in primary and secondary education. Public schools are funded primarily from local taxes, and more Americans participate in local school boards than in any other type of elective office. In many countries around the world—federal and unitary alike—local governments commonly oversee such issues as local sanitation, local roads, and services such as the police, parks, and public lighting.
CASE IN CONTEXT: Federalism and Differences in Development in India
Although federalism and decentralization have many arguments in their favor, they can complicate economic performance in many circumstances. In countries such as Argentina and Brazil, states and provinces have acted irresponsibly, overspending, and forcing the central government to bail them out.19
Situations like this make economic management difficult, because the states know there is always someone there to bail them out if they overspend; they have a soft budget constraint rather than a hard budget constraint.21 We often see this problem in federal countries where states can exercise a lot of leverage over the national political process through representatives in the legislature, such as senators.22 In general, federalism can create incentives for politicians to overspend and be fiscally irresponsible.23
INSIGHTS: Fiscal Federalism
Moreover, federalism can allow for inefficient resource allocation. One example may be that the Senates of Brazil and of the United States routinely allocate monies disproportionately to less populous, more rural states. In issues from farm policy to national security, smaller states are able to use their leverage in the federal system to guarantee for themselves certain benefits in the form of government funds. We cannot draw a firm conclusion, therefore, about whether federalism or unitarism is best for the economy (or for stability or democracy); as comparativists recognize, context and other conditions matter.
INSIGHTS: Beyond the Fiction of Federalism: Economic Management in Multi-Tiered Systems
Judicial Review and Democracy
Along with the division of power between levels of government implied by the issue of federalism versus unitarism, another prominent feature of most constitutions is the division of power among branches of government. In particular, one major question is who is responsible for interpreting the constitution, as noted earlier in the section on judiciaries. A judiciary with constitutional powers of review can engage in an interpretation of the laws, and a question for many observers is whether this is appropriate and to what extent. In the United States, one of the biggest debates about the judicial system is over judicial activism, a term that has a negative connotation for many observers.24 Judicial activism is a hot-button issue in the United States, and the phenomenon is also recognized and debated in other countries as well. According to critics, unelected judges and justices may take advantage of the power of judicial review to essentially legislate from the bench, as opposed to situating lawmaking power with the representatives in the legislature. This practice may take some of the most heated and controversial debates out of the democratic process by removing them from the arena of elections, public debates, and protests and placing them in the arena of lawsuits, legal challenges, and the rulings of a small number of unelected judges in robes.
For some, judicial review is crucial to protecting rights and upholding the law.26 By this argument, judges have the role of interpreting laws to ensure compliance with the letter of the constitution and legal precedent. Proponents of an active judiciary may argue that courts have often led legislatures (rather than followed them) in the recognition and expansion of fundamental rights. For this reason, proponents might argue, a judicial system has the task to interpret laws and guarantee that they are consistent with rights and obligations laid out in constitutions. One can witness both sides of this debate, for instance, in the question of whether judiciaries can and should require that a state offer marriage benefits to same-sex couples. Judges hold different perspectives on the role of courts in interpreting constitutions, as is evident in court decisions themselves—which are authored by judges—or in the writings of those judges and justices.
As a result of the political heat it generates, “judicial activism” is a term susceptible to unclear definition. For instance, critics of judicial activism in the United States have often been conservative critics of justices’ rulings on social and cultural issues, such as the Roe v. Wade decision of 1973, which legalized abortion, and recent judicial decisions at the state level to expand civil union benefits and marriage rights to gay couples. However, studies in the 2000s showed that on the U.S. Supreme Court, the justices who most frequently voted to overturn Congressional laws were the more conservative members.27 Moreover, several of the rulings listed previously for the United States—including some widely acclaimed and unanimous rulings—may be seen as activist in retrospect. As you consider the case of constitutionality in the United States (see the Case in Context, “Is Judicial Activism in the United States a Problem?” box), you can use your own analysis to determine if any rulings fall under this definition.
CASE IN CONTEXT: Is Judicial Activism in the United States a Problem?
A ceremony to install the new chief justice in France’s Cour de Cassation, the country’s highest judicial body for civil and criminal matters. France shows that not all judiciaries are structured the same: It has a separate constitutional council (Conseil Constitutionnel) to determine the constitutionality of laws.
There is one clear way to end judicial activism: end judicial review. This is not merely a thought experiment or hypothetical exercise. In fact, as noted earlier, one can look to the United Kingdom as a model. One argument against extensive use of judicial review is that judiciaries remove contentious issues from the public arena. According to this argument, debates about the most fundamental issues in a democracy are fought out by the strongest ideologically committed advocates in front of unelected judges. These issues are thus examined and decided on by small groups and powerful individuals, and they may not be reflective of broader public opinion. Those arguing against judicial activism would often prefer to have society’s most contentious issues decided in legislatures rather than in courts. The United Kingdom prevents judicial activism by granting the legislative branch of government an unambiguously higher power than the judicial branch. One way to view opposition to judicial activism is to ask about the extent to which one would sacrifice judicial review. Put another way, judicial review and some degree of judicial activism are the flip side of the checks and balances between branches of government.
Most countries with written constitutions do have a constitutional court that is responsible for judicial review. By some accounts, the power of judiciaries has increased around the world over time. It should be noted that the debate is not limited to the United States and the United Kingdom but, rather, stretches around the world. Whether judicial review has been beneficial to democracy remains open to interpretation.
Whatever its causes, the debate persists between advocates of powerful judicial review processes who argue that judges often lead the law—asserting human rights that may take a long time to work through legislative channels—and those who see it as undue interference by unelected judges in major political issues. Both parliamentary sovereignty and separation of powers are compatible with democracy; they are simply different ways of understanding how constitutions should be interpreted.
INSIGHTS: Towards Juristocracy: The Origins and Consequences of the New Constitutionalism
THINKING COMPARATIVELY: What Explains the Similarities Between the Brazilian and South African Constitutions?
Chapter 8 Flashcards
· •Constitutions are the basic charters of modern states, and they are written documents in most countries.
· •Constitutions lay out the basic framework for government institutions in a country, and they are the foundational laws of that country.
· •Two of the leading elements of constitutional design are federalism versus unitarism and the power of the judiciary to review for constitutionality laws passed by legislatures.
· •Federal countries are those in which subnational units such as states or provinces have some constitutional protection and political autonomy from the national government.
· •Unitary countries are those in which the central government is sovereign and any subnational administrative units are subordinate to the national government.
· •Countries with judicial review have constitutional courts that rule on whether laws passed by the legislature are in accordance with the constitution, and these courts have the power to strike down legislation as unconstitutional.
· •Countries with parliamentary sovereignty do not have judiciaries that review the constitutionality of legislation.
Causes and Effects
· •Federalism has been associated with enhancing national stability and democracy under some circumstances, and with conflict in other cases.
· •Federalism has also been linked with improvements in economic growth and development, as well as economic difficulties.
· •There is a long-standing debate about whether judicial review contributes to the protection of democratic rights or not.
· •While many countries have written constitutions, these differ in many ways, and it is an open question whether one country’s constitution is suited to other circumstances.