Reason, Interest, Rationality, and Passion in Constitution Drafting

Brown, Nathan J.

doi:10.1017/s1537592708081851

Cited by 49 publications

(15 citation statements)

References 20 publications

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“…In theory, the visibility of the process, reduced stakes of politics, and other design features can mitigate these tendencies to some degree at the constitutional level. Even if constitutional politics do involve self interest, the balancing factors of passion and reason (Elster 1994;Brown 2008) as well as the relative abstraction of the biggest issues to be decided may be sufficient to make constitutions relatively insulated from interest group influence.…”

Section: Discussionmentioning

confidence: 99%

“…Actors engaged in constitutional design may seek to adopt rules that will advantage them in postconstitutional politics (Przeworski 1991(Przeworski , 1997Ginsburg 2003). If this is true, then it follows that the distinction between constitutional politics and ordinary politics may not be as great as is sometimes supposed (Brown 2008).…”

Section: Bargaining Over Rules and Bargaining Within Rulesmentioning

confidence: 94%

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Public Choice and Constitutional Design

Ginsburg¹

2010

Research Handbook on Public Choice and Public Law

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This chapter reviews the literature on public choice theory and constitutional design, focusing in particular on the sub-discipline of constitutional political economy. The basic framework of constitutional political economy has been in place for several decades and has produced some important insights into particular institutions. Other institutions, however, have been ignored, and there is a relatively small amount of empirical work testing the propositions. The chapter summarizes the work to date and identifies areas for more attention in the future. The chapter first reviews the core assumption that constitutional politics are really different than ordinary politics, and the corollary that the constitutional level is more likely to produce public-regarding behavior. It finds these assumptions to be less than fully convincing, in part because constitutional endurance seems to require some level of interest group behavior, and because constitutions can be transformed through amendment.Thanks to Adam Fleisher and Emily Winston for excellent research assistance. Thanks also to Daniel Farber and Saul Levmore for helpful comments and to Maxwell Stearns for sharing a draft of his forthcoming volume with Todd Zywicki (2009). Online readers should note that this piece will appear in a larger collection of papers, and so intentionally leaves many particular topics of interest to other papers in the volume. 2 Public choice and the centrality of constitutional designConstitutional design is a central concern of public choice and its related discipline of constitutional political economy. Public choice, typically described as the application of economics to political science, seeks to understand problems of aggregating preferences in collective decision-making (Mueller 1997; Farber and Frickey 1990). Constitutional political economy focuses more narrowly on the role of rules in structuring and constraining decision-making, shifting the terrain from choice within rules to the choice of higher order "constitutional" rules. As Buchanan and Brennan (1980 at 10) put it, "If rules influence outcomes and if some outcomes are "better" than others, it follows that to the extent that rules can be chosen, the study and analysis of comparative rules and institutions become proper objects of our Arrow famously showed that under certain plausible conditions, there is no voting mechanism, or indeed any other mechanism, that is guaranteed to prevent cycling among options in pairwise voting:any choice that beats another will in turn be beaten when paired against the third. The outcome of such 3 a decision-making process will depend entirely on the way in which the choices are presented. Thus control over the agenda is crucial for determining outcomes (Cooter 2000, pp. 38-46). Because the outcome of collective choice mechanisms was inherently unstable and reflected mere agenda control or perhaps insincere voting on the part of strategic actors, the idea that collective choices reflected the "true" public interest was suspect. ...

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Section: Discussionmentioning

confidence: 99%

Section: Bargaining Over Rules and Bargaining Within Rulesmentioning

confidence: 94%

Public Choice and Constitutional Design

Ginsburg¹

2010

Research Handbook on Public Choice and Public Law

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“…Indeed, constitutions exist in a wide variety of states that cannot be called limited in any real sense. Nor are these 'paper' constitutions to be characterized as useless (Brown 2008). Even in dictatorships, constitutions can provide accurate maps of what institutions matter.…”

Section: On the Constitutional Character Of Administrative Lawmentioning

confidence: 99%

Written Constitutions and the Administrative State: On the Constitutional Character of Administrative Law

Ginsburg

2010

SSRN Journal

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Administrative law is the poor relation of public law; the hard-working, unglamorous cousin laboring in the shadow of constitutional law. Constitutional law, it is generally believed, resolves the great issues of state and society, while administrative law, in its best moments, merely refi nes those principles for dealing with the administrative state. Law students fl ock to constitutional law classes, of which most law schools have three or four in the curriculum. The same students enroll in administrative law with a sense of obligation, as if the subject is a chore one has to manage. The two fi elds are, of course, intimately related, and share an overarching purpose of managing the relationship between state and citizen, with an emphasis on protection of the latter in democratic states. On the other hand, the fi elds refl ect diff erent legal sources and modalities. In some countries, they are adjudicated by entirely diff erent courts. While constitutional law is becoming ever more comparative, with judges regularly citing each other's opinions, administrative law remains bound to the nation state. This chapter makes three arguments. First, it argues that the conceptual division between administrative and constitutional law is quite porous, and that along many dimensions, administrative law can be considered more constitutional in character than constitutions. Second, it shows that written constitutions do relatively little to legally constrain the administrative state. Rather, their role is to establish the broader structural apparatus of governance and accountability, in which the bureaucracy is the great unspoken. This leaves administrative law as a relatively free-standing fi eld characterized by great fl exibility and endurance, features that are usually thought to be more embodied in constitutions. Third, the chapter concludes that the exercise of comparison helps to expose the limits of written constitutions, and to call for greater attention to comparative administrative law as a feature of the unwritten constitution of nation states.

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“…While liberal constitution-making theorists make a virtue of necessity by arguing that groups seeking their own interests will nevertheless feel compelled to frame their claims in terms of the 'public interest' (and so be subjected to the 'civilizing force of hypocrisy'), 222 Brown points out that this is a highly idealized understanding of how bargaining transpires in real constitution-making processes. 223 Real actors will not be confident of their assessments of other parties' relative strength or even the strength of allies; calculations will be tentative and shift rapidly along with the situation; the distinction between short-term and long-term interest or between 'private' and 'public' concern will be hard to maintain with any clarity: 'participants view the future through a gauzy veil of confusion rather than a totally opaque veil of ignorance . .…”

Section: B Constitutions and The Problem Of Ordermentioning

confidence: 99%

NEW MODES AND ORDERS: THE DIFFICULTIES OF A JUS POST BELLUM OF CONSTITUTIONAL TRANSFORMATION

Bhuta¹

2010

University of Toronto Law Journal

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This article examines the difficulties and dilemmas of the idea of a jus post bellum of constitutional transformation in territories under foreign or international administration. It begins with an argument that, at present, international law contains no such rules and that the law of self-determination provides no guidance. But should international law develop such rules? The balance of the article argues that international law should not prescribe rules or standards for constitution making in such circumstances. En route to this conclusion, it is argued that contractarian understandings of the problem of state making and constitution making are fallacious and that to properly understand the problem of founding new political orders we must conceive of that founding as an aleatory, contingency-riven process of concentrating forms of social and political power within particular territory. Thus, no special premium can be placed on democratic modes of legitimation, and international rules or standards prescribing specific modes of legitimation are likely to be either irrelevant or counter-productive. It is argued, finally, that one of the virtues of international law in these situations is its (relative) agnosticism with respect to different modes of legitimation. It is contended that international law is usefully understood as 'inter-public law.' In light of this theory, the structural situation of international law is analogous to the structural position of public law in newly founded domestic political orders. That is, international law is preoccupied with crafting relationships of order across diverse kinds of social and political legitimacy, and its normativity and efficacy are finely balanced between accommodating power and restraining it.Keywords: international law/law of military occupation/jus post bellum/Carl Schmitt/Hannah Arendt/political theory/constitution making/state making Brave Belgian nation! We enter your territory to help you plant the tree of liberty,

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Reason, Interest, Rationality, and Passion in Constitution Drafting

Cited by 49 publications

References 20 publications

Public Choice and Constitutional Design

Public Choice and Constitutional Design

Written Constitutions and the Administrative State: On the Constitutional Character of Administrative Law

NEW MODES AND ORDERS: THE DIFFICULTIES OF A JUS POST BELLUM OF CONSTITUTIONAL TRANSFORMATION

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