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It is common ground that a bill of constitutional rights regulates the relationship between individual and the state. Fundamental rights create negative obligations for the state – duties not to interfere with life, liberty, conscience, speech, privacy etc. To what extent, if at all, though, do fundamental rights also have a bearing on relations between individuals? Can they also obligate the state to actively promote liberty in society? Are they focused merely on state abuse but silent on social inequality – or can they be mobilized as vehicles for social justice? Undeniably, constitutionally-sensitive conflicts routinely arise, e.g., between capital and labour; between financial service providers and vulnerable consumers; between vulnerable groups themselves, and so on. However, the “constitutionalisation” of private law relationships has not always been seen as an unmixed blessing. A first concern is that the expansion of substantive constitutional norms beyond the negative basic liberties eliminates the domain of private law and private autonomy that is an essential characteristic of liberal societies. A second concern is that constitutionalisation transfers substantial regulatory authority from democratic legislatures to constitutional courts. This chapter argues that that neither of these two concerns necessarily arises in connection with the doctrine of (indirect) horizontal effect.
This chapter explores the idea of opposition. One may make known one’s opposition to specific measures and one may make known one’s opposition to those who hold the office of government. While opposition to those who rule may flourish only in constitutional arrangements that contemplate changes in government, the freedom to make known opposition to measures may obtain and flourish even absent such arrangements. These two different modalities of opposition – to measures and to governments – draw on a reciprocal understanding that those who oppose and those who rule are both committed to the public good. Depending on the design of its system of government, a constitution may enable or empower opposition, with the parliamentary form of government differing in important respects from the presidential. Some constitutional arrangements and proposals award to opposition members in legislatures and elsewhere some degree of authority in exercising the office of government. Whatever the merits of such coalition or consensus arrangements and proposals, they change the function of opposition, for when those who oppose begin to govern, a version of the question quis custodiet ipsos custodes (who guards the guardians) arises: who stands in opposition to the opposition?
Entrenchment is a constitutional tool that renders legal change more difficult. This chapter examines the forms entrenchment can take, and the reasons for and against entrenchment. It argues that entrenchment can, on occasion, help resolve constitutional problems by requiring law-making institutions to depart from the normal way in which they effect legal change. Entrenchment rules are at their most attractive where there is a connection between the reason for entrenchment – the reason why the normal rules of legal change are problematic in a particular area of law – the type of entrenchment rule adopted, and the area of law entrenched.
This article seeks to compare the policy histories of the legislative term limits in France and the United States. Both nations debated, initially adopted, and then ultimately rejected imposing term limits during the foundational moments of their democracies. Reemerging in the 1990s in America, proposals to refresh government through such limits have been successful in the states and have failed at the national level. The idea regained prominence in France when Emmanuel Macron supported it during his 2017 presidential election. Although Macron eventually abandoned the proposal, the revival of this debate is an opportunity to draw broad parallels but identify critical differences between the two nations in the philosophical debates over term limits and the ways that leaders have embraced or abandoned them to fulfill their political goals. We show how the idea circulated between the two nations, without a parallel exchange of evidence about its effects.
This study analyzes direct lobbying in the Chilean Congress, contributing to the debate over which legislators are targeted by interest groups. Utilizing a comprehensive dataset constructed from legally mandated records of lobbying meetings, we test theoretical implications predominantly derived from the US context within a different presidential democracy. The focus is on the legislative targets of business and labor groups. The results reveal a marked preference for lobbying allies, aligning with recent theories of information transmission and legislative subsidies. This pattern holds true for both business and labor groups and highlights the significance of ideological alignment for legislative lobbying in Chile. Additionally, the study finds that legislators with influential positions, such as those on key committees or centrally located in the bill collaboration network, are more frequently targeted. This research provides key insights into the dynamics of legislative lobbying in a non-US context, underscoring the generalizability of established theoretical frameworks.
This chapter focuses on legal decisions often neglected in the general field of psychology and law: legislative decisions. These decisions establish the legal framework within which other entities operate. The chapter begins with a description of the legislative branch and a summary of different types of legislative decisions. It then differentiates between democratic and nondemocratic settings (e.g. oligarchies, autocracies) and concisely covers theories of power structure – namely, state-centered theory, pluralist theory, and elite-power theory. It then moves on to identifying and expounding the factors that influence legislative decisions. In democratic contexts, these factors include variables internal to the legislature, such as lawmaker demographics, social ties/networks, and party/ideology, as well as external variables such as public opinion, media, and campaign contributions/lobbying. In nondemocratic contexts, however, legislative decisions are largely influenced by power, wealth, and corruption. The chapter concludes by discussing implications for theories of power structure and proposing future directions.
Responding to the need to make democratic governance more anticipatory, during recent decades parliaments have increasingly made efforts to involve elected legislators directly in addressing future risks and envisioning long-term developments. At the level of general democratic-institutional principles, engaging legislators in national-level foresight is expected to enhance the general legitimacy of future-regarding policymaking almost automatically by broadening the scope of democratic actors involved in policy work. However, even the basic mechanisms through which the impact of legislature-based foresight activities could traverse to policymaking remain largely uncharted and unknown. To develop a preliminary framework for detecting and comparing such mechanisms, we draw from the experiences of the most institutionalised and influential legislature-based foresight unit, the Committee for the Future in the Finnish Eduskunta. We extract three general mechanisms through which parliamentary future committees could make a valuable contribution to national-level strategic foresight: (1) they can improve the quality of future-regarding policymaking by broadening and consolidating national foresight “ecosystems”; (2) they can strengthen the transparency and accountability of the foresight work of political executives; and (3) they can enhance the legitimacy of anticipatory governance by connecting broader democratic publics to foresight work through more inclusive participatory processes.
This article offers an innovative way of understanding gender balance in parliaments. Motivated by research documenting how newcomers are disadvantaged during their first term in office, while senior members enjoy certain privileges, we want to find out how common women are among senior members of parliaments. We launch an institutional approach comprising three seniority measures to study gender gaps in political endurance to find out whether, where, and when men are more likely than women to be parliamentary seniors. Our analysis using data from seven countries in Western Europe and two countries in North America (1965–2020) shows very high gender gaps across the three measures. Thus, despite an increased level of female representation, women still constitute a small part of the exclusive group of senior members of parliament. Our findings extend the research documenting that women and men largely have equally long parliamentary careers, emphasizing the need to understand gender balance in multidimensional terms.
The legislature has been one of the central institutions in the UK’s constitutional history, a forum in which major political events occurred and decisions were taken. The legislature projects constitutional values: its practice is based on the significance of representation, accountability, transparency, deliberation, contestation, and collective action. Moreover, the UK Parliament is the focus of the fundamental norm around which the constitution is structured.
The literature on congressional decision-making has largely ignored the influence of the minority party in the legislative process. This follows from the widely held belief that the majority party dominates the agenda-setting process. Though the minority party rarely achieves major policy success in Congress, we argue that the minority has significantly more influence over the legislative agenda than is commonly believed. We posit that, under some conditions, the minority has enough bargaining leverage to get floor votes on their proposals, in the form of both amendments and bills. We test our theoretical expectations with a novel design utilizing whip count data from the House and show that when a whip count on a bill occurs, the likelihood of a minority amendment disappointment and a majority amendment roll increases, respectively. This suggests that the more leverage the minority party has, the more we see their legislative proposals on the floor.
Members of some legislatures enjoy long political careers, whereas elsewhere turnover is rampant. This variation is consequential since high-incumbency assemblies may facilitate legislative expertise at the expense of social representation. We explore cross-national differences in re-election (incumbency) rates by identifying ‘supply’ conditions such as legislative resources that benefit incumbents as well as ‘demand’ conditions such as political corruption that affect voters' willingness to re-elect incumbents. We hypothesize that legislative perquisites help incumbents win re-election, but only if there is relatively high public confidence in politics, as reflected in low corruption levels. We tested our argument using OLS and instrumental variable regression and new global data on sixty-eight democracies (2000–18) covering 288 elections and over 55,000 legislators. We found that legislative resources help incumbents get re-elected only under relatively low levels of political corruption. In contrast, under severe corruption, such resources can depress re-election rates.
Common examples of governance policies include regulations of lobbying, campaign-finance restrictions, and term limitations. Although the public generally favors these good-government reforms, the laws often restrict the autonomy of political elites. The histories of lobby reform in New York, Georgia, and Michigan illustrate how governance policies might be adopted despite elite opposition. In the states, initial reform efforts came about due to agenda-setting events or policy entrepreneurs. Although legislators adopted lobby reforms, they preferred transparency to other lobby reforms given its limited effect on mutualistic relationships. Initial lobby laws required only disclosure and did not restrict legislator–lobbyist interactions much. Only with the advent of additional events and entrepreneurs were the initial laws strengthened to limit interactions. The histories of reform imply that narratives of policy innovation or diffusion may be complicated somewhat by elite interests and that governance policies, once adopted, may have a unique immunity from repeal.
Who gets represented in legislatures, and how does this depend on electoral institutions? Others have asked this question from the perspective of gender, race, and class. We focus on space, asking whether MPs disproportionately come from some places rather than others and how this depends on electoral rules. Using data on over 13,000 legislators in sixty-two democracies, we developed a new measure to determine whether the spatial distribution of MP birthplaces matched the spatial distribution of the citizens they represented. Contrary to received wisdom, single-member district systems do not have more geographically representative parliaments than multi-member district systems, while mixed-member systems perform significantly better than both. We attribute the higher spatial representativeness of mixed-member systems to the contamination effects in their single-member tier. We present evidence for this explanation from a within-country analysis of elections in Italy, the UK, and Germany.
We examine the historical effects of ethnic and racial diversification among legislators on identity group mobilization and the hiring of nonwhite lobbyists. We propose that diversification among legislators encouraged identity groups to lobby, that these groups hired lobbyists who reflected their members’ identities, and that all interests also hired lobbyists who reflected the identities of new legislative targets. We apply a Bayesian estimation approach to infer the identities of lobbyists who were active in the American states over several decades. We find that the election of African Americans to state legislatures encouraged black identity groups to lobby, that all identity groups, including those representing Hispanics or Latinos, generally hired lobbyists who reflected their members’ identities, and that the election of Asian Americans to state legislatures encouraged interests generally to hire Asian-American lobbyists. Hispanic or Latino lobbyists gained clients in response to diversification in more Democratic legislatures.
Since the #MeToo movement, several countries have taken steps to address sexual harassment in politics (for example, the United States, United Kingdom and Canada). While researchers have evaluated the electability of candidates accused of sexual harassment, less is known about what the public thinks should happen when elected officials engage in this behaviour. Utilizing an innovative module from the 2019 Canadian Election Study, we assess the steps voters believe legislatures should take when an MP sexually harasses someone. Our results demonstrate that a vast majority of the public believes that MPs should face consequences when they commit sexual harassment, including potential removal from office. We also find that women are more likely than men to believe MPs should be punished when they are accused of sexual harassment. These findings have relevance for legislatures globally, revealing the importance of transparent, independent processes to address harassment and violence in the political sphere.
In recent years, nations around the world have faced a veritable crisis of ineffective government. Basic governmental functions – preventing private violence, resolving disputes through lawful means, providing an infrastructure to enable people to meet their most elementary needs for shelter, nutrition, transportation, communication, education – go unmet. In some countries, these basic functions are met but longer-term governance issues languish, and government is perceived to be unresponsive in ways that some believe contribute to political backlashes, including those against minority groups. These failures in governance are also perceived to have contributed to a global upsurge in authoritarianism and a concomitant decline in democracy.1
Moreover, the basic freedoms protected in many democratic constitutions – freedom from state-sanctioned torture and from punishment or coercion without fair process; freedom of expression, of religion, of movement; freedom from invidious discrimination; enjoyment of property without arbitrary government interference; free exercise of the suffrage – cannot exist, in an organized society, without government effective enough to control itself and its agents and otherwise to secure the protection of those rights.
Effective governance is necessary in a successful constitutional democracy. This is not to deny that a central animating force in a democracy must be respect for the human individual. But a government that is not effective and seen as such is not likely to be able to protect individual rights. It is thus a mistake to conceptualize individual rights simply as in conflict with the collective goals of a democratic government: those goals are effective governance and rights preservation, and – in a democracy – these two are connected.
The framers of the US Constitution well understood that a constitutional state must act for public-regarding purposes – to “establish Justice, ensure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty.” To the extent that it fails to move in these directions, government will lose the confidence of the people. Effective government in constitutional democracies requires effective legislatures to promote all of these purposes.