Politics and Righteous Fury

Any person attempting to mobilize a group to achieve a collective goal soon finds a simple logic at work: People can be hard to motivate, especially where the individual costs are certain and the benefits are remote and speculative. How can a politician help to overcome this logic? A healthy dose of righteous zeal goes a long way. This, of course, is easier to cultivate where the problem is dire but simple, and the cause is clearly traceable to a recognizable enemy.

Bloomberg View columnist Megan McArdle gets this. In a recent article she responds to Warren Buffet’s claim that Senator Elizabeth Warren’s anger makes her less effective. McArdle disagrees:

Warren has a pretty clear agenda for American society, and she thinks that the best way to get that agenda enacted is to stir anger in the hearts of voters who see a lot of things gone wrong and figure that, well, someone must have done it to them, probably those folks over there who don’t seem to be suffering as much as the rest of us. I think her agenda is oversimplified paternalism combined with a touching naivete about the effects of regulation, but on tactics, I think she’s probably mostly right….

We want simple narratives, ones with clear villains and heroes and an obvious moral. We want clear solutions that can be described in no more than one minute, just right for a sound bite on the evening news. We want someone to hate, along with the reassurance that once those people are removed or controlled, all will be right with the world. And we happily pull the lever in the ballot box for the people who will deliver these things….

Which is not to say that Warren’s anger is strategic; I think she sincerely believes that she’s fighting some fearsome dragons. I think politics selects for people who see the world in black and white, then rage at all the darkness. I wish that weren’t the case, of course. But if you want to change it, don’t look to the politicians — look to the voters who elect them.

The article is short and worth reading in its entirety here. See also my discussion of one scholar’s seminal work on the nature and origins of mass opinion.

 

A.K.

The Supreme Court: A Countermajoritarian Galahad?

Supreme Court Justices

It is a widely held belief among Americans that the appropriate role of the U.S. Supreme Court is to check the majoritarian excesses of the other two branches of American government. The legislative and executive branches of government are elected by majority vote. In the national legislature, members of the Senate are elected by popular vote in their home-states, and members of the House of Representatives are elected by popular vote from smaller sub-state districts. In the executive branch, the President and Vice-President are elected by national popular vote mediated through the Electoral College system. Rule by majority consent is the legitimating principle of each of these branches. But the third branch is different. The third branch of national government is headed by the Supreme Court, a nine-member panel of judges (called “justices”) who are each appointed to life terms by the sitting President with the approval of the Senate. These judges enjoy such privileges as life terms with good behavior and the guarantee of undiminished compensation in order to at least partially insulate them from the pressures of popular politics. This insulation is often described as judicial independence and for most people it means that judicial decisions will be based upon the dictates of the law, rather than the vagaries of political fashion. Says law professor Amanda Frost:

The Constitution grants federal judges life tenure and protections against diminution of their salaries, which insulates them from various political and social pressures. Those guarantees allow courts to make unpopular rulings, to stand up to the other two branches of government without fear of retribution, and to assure litigants that judges are not beholden either to state or federal interests. (2008, 1625)

This distinct organization and expectation with regard to the third branch of national government reflects a commitment to what is often called the rule of law.

The rule of law is contrasted with the rule of men, implying a legal system which is non-arbitrary. Typically, a political system is held to instantiate the rule of law to the extent that its legal rules are general in nature, prospective in operation, and equal in application to persons without regard to suspect classifications. Often, and most practically, the rule of law is understood as a commitment to individual rights, especially those of minorities against powerful and potentially encroaching majorities. But rather than supposing a strict antagonism between majority rule and the rule of law, some scholars conceive of a balancing act where “The rule of law rests, first, on the inability of the one or the few to control the many, and second, on the willingness of the many to leave some scope for universal rights” (Helmke & Rosenbluth 347-48).

But how is judicial independence related to the rule of law? A commitment to a rule of law system means in part commitment to an institutional arrangement capable of cultivating and sustaining it. If the first two branches are legitimated by majoritarianism—compliance with the wishes of a majority of citizens—then the third branch might be legitimated by its capacity to resist the will of the majority when such will encroaches upon that sphere reserved for individual rights in general and minority rights in particular. Thus, the Supreme Court might be said to be a counter-majoritarian institution meant to serve as a check on the majoritarian tendencies of the other two branches where those tendencies would lead to violation of rule of law principles.

But is the Court truly counter-majoritarian? It depends on what behavior by the Court is required to consider it so. According to Robert Dahl’s “Decision-Making in a Democracy: The Supreme Court as a National Policy-maker” (1957), for the Court to be counter-majoritarian is for it to have the demonstrated capacity and willingness to act contrary to the preferences of the current officeholders of two elected branches, which Dahl refers to as the national majority (284). Dahl assumes that there are several reasons to expect the Court to act in concert with the national majority coalition rather than as a counter-majoritarian “Galahad” in defense of minorities (id.). He cites three problems with the Galahad Thesis, each of a different type: ideological, logical, and factual. Ideologically, it would violate the majority-rule principle upon which the American democracy is based if the Court were to act in a counter-majoritarian fashion. Logically, given the selection of judges by popularly elected political elites, one should not expect the court to be at odds with the national majority coalition—except for very short transitional periods in the composition of the national majority coalition. Factually, Dahl argues, the Court has never acted in such a fashion in its 167-year history up till the time of his writing.

Dahl supports his factual claim with a test he devises in which he examines the frequency, direction, and decisiveness of Supreme Court invalidations of statutory enactments on constitutional grounds. First, to determine the frequency of invalidations, Dahl confines his observations to those invalidations of congressional statutes which occurred within 4 years of enactment, supposing that he is weeding out invalidations of enactments which are no longer supported by a live majority coalition. He then examines the direction of the invalidation, i.e., whether the invalidation favors a minority group. Finally, Dahl examines the decisiveness of the invalidation, i.e., the extent to which the Court’s decision stands and is not circumvented by a willful national majority coalition. Overall, the Court fails Dahl’s test, seldom invalidating laws within the 4 year period, seldom in the direction of minorities, and seldom sustained.  Dahl elaborates his findings by noting that “[f]ew of the Court’s policy decisions can be interpreted sensibly in terms of a ‘majority’ versus a ‘minority’” (294). Rather, policy at the national level is the outcome of conflict, bargaining, and agreement among minorities, no group of preference-holders being large or powerful enough to dominate all others.[1] The true role of the Court is that of legitimizer: “at its best the Court operates to confer legitimacy, not simply on the particular and parochial policies of the dominant political alliance, but upon the basic patterns of behavior required for the operation of a democracy” (295).

Jonathan Casper, in his well-known 1976 response to Dahl, “The Supreme Court and National Policy Making,” finds Dahl’s test of counter-majoritarianism too strict and argues that “the Court participates more significantly in national policy than Dahl’s argument suggests” (50). In particular, Casper points out that there are plenty of instances where a 4-year restricted observation of invalidations is unwarranted and excludes much of the Court’s counter-majoritarian activity. Second, in contrast to his 4-year restrictive rule of invalidations, Dahl allows decades to pass to observe whether the Court’s action is countermanded by the national majority coalition. Third, Casper points out how easily Dahl, by narrow specification of his model, misses Court action which is influential is shaping and influencing legislative enactments through selective interpretation of statutory provisions, a considerable part of what the Court does. Finally, Casper also looks at the Warren Court activism which between 1957 and 1976 alone invalidated one-quarter of all cases ever invalidated and in quite Galahadian fashion. Therefore, by Casper’s definition, the Supreme Court of his day was quite active and counter-majoritarian, even if not in the most restrictive Dahlian sense.

Gerald Rosenberg, in his seminal work, The Hollow Hope: Can Courts Bring About Social Change? (2008), marshaled an astonishing amount of evidence in support of his thesis that it is virtually impossible to achieve significant social reform through litigation. Similar to the Dahlian Galahad, he defines the Dynamic Court view as the belief that “courts can be effective producers of significant social reform [and] in some cases, they can be more effective than other governmental institutions” (27). Rosenberg defines the Constrained Court view as holding “that courts will most likely not be effective producers of significant social reform for three reasons: the limited nature of constitutional rights, the lack of judicial independence, and the judiciary’s inability to develop appropriate policies and its lack of powers of implementation” (15). Rosenberg sees the Court as constrained and ill-suited to defend minority rights.

The Hollow Hope

Rosenberg sets his sights on the famous Brown decision, long considered unassailable proof of the efficacy of the Supreme Court in vindicating minority rights, to demonstrate that the Constrained Court view better characterizes the Court’s role in the Civil Rights Movement. The Court in Brown v. Board of Education (1954), overruled its prior holding in Plessy v. Ferguson (1898) and declared that the practice of segregation was “inherently unequal” and, therefore, in violation of the equal protection clause of the Fourteenth Amendment. This decision ordered the end of public school segregation in the United States. Proponents of the Dynamic Court view see the decision as a major victory for civil rights and a crucial turning point for the movement. Rosenberg points out that—with a few high-profile exceptions—virtually no desegregation actually occurred until after Congress enacted a slew of civil rights legislation in 1964 and 1968. Rosenberg also examines issues such as public accommodations and transportation, public housing, and voter registration. In each case, a clear pattern emerges:

Courageous and praiseworthy decisions were rendered, and nothing changed. Only when Congress and the executive branch acted in tandem with the courts did change occur in these fields. In terms of judicial effects, then, Brown and its progeny stand for the proposition that courts are impotent to produce significant social reform (70).

Thus, “Brown is a paradigm,” says Rosenberg, “but for precisely the opposite view” (id.). Throughout his book, Rosenberg considers, tests, and ultimately rejects theories about indirect ways in which the Court’s action might have contributed to the eventual desegregation of the South. Within this seminal work, Rosenberg deals similarly with other policy areas which are regarded as evidence of a dynamic counter-majoritarian court and with similar results. (See Rosenburg’s tribute to Dahl, one of his early influences)

Plenty of other scholars have found the Court politically constrained. The Court has been found to be influenced by court-curbing measures by the other branches (Clark 2009) as well as by public opinion (Casillas 2011; also see Mishler and Sheehan 1993 for empirical evidence of changes in court composition in response to changes in public opinion and changes in a given panel’s decisions in response to changes). Graber (2005) suggests in Dahlian fashion that the Court is really a politically constructed institution, basically relied upon by the other two branches for political cover. What the Court does on this view is allow for the shifting of politically unpopular or intractable decisions and serves as an anomalous balance-shifter in democratic politics.

This presents a mixed picture both of what it means for the Court to be counter-majoritarian and for whether and to what extent such a thing is desirable. It appears that the Court is a balance-shifter in a highly competitive national policymaking environment. It also appears that the Court is somewhat structurally independent but not totally isolated from politics. This is unsurprising. Justices come from the population and there is no reason to assume that they are political eunuchs. They think and are motivated at least in part by their own priors (Segal and Spaeth 1993, Posner 2008), they are influenced by the political environment (Casillas 2011, Clark 2009, Mishler and Sheehan 1993), and the they operate at a level of the judicial hierarchy where the disputes they are called upon to settle are complex, intractable, under-determined by law alone, and where it falls to them to simply decide. Justice Roberts claimed to call balls and strikes, but it is clear to nearly everyone that by the time a matter reaches the Court, a ball or a strike is simply what one can get a majority to vote in support of. This is not to say that the law exerts no force, but that there is often not enough law to go on at the level of the Supreme Court. What constitutes cruel and unusual punishment? There is considerable room for reasonable minds to differ. What specific activities constitute executive power? The Constitution does not define the term. Does today’s government have a duty to affirmatively act to reverse the effects of its own past misconduct with respect to disfavored minorities? If so, how far can it go before it crosses a different line with respect to other groups? The Court is often called upon to decide. And it does not decide in a socio-political vacuum.

But the Court is able to perform this role in which it decides the intractable disputes over constitutional values with a high degree of diffuse support, certainly higher than the explicitly political branches (Caldeira and Gibson 1992). Maybe the Court enjoys this support because it is understood as being a counter-majoritarian final arbiter of what the law requires. The perception of its unique apolitical role seems to help it maintain an unusual amount of public support which is resilient even in those instances where it disappoints.[2]

Below, Justices Antonin Scalia and Stephen Breyer engage in a lively discussion of their view of the role of the Court, the role of the Justices, and approaches to judicial interpretation. It is worth viewing in its entirety:

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[1] I note here that this argument, also known as interest group pluralism, is reminiscent of Madison’s argument in Federalist 10 in favor of a large republic in which faction counters faction:

The question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter….

The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source.

[2] Think Bush v. Gore (2000) for liberals or NFIB v. Sebelius (2012) for conservatives.

Uncertainties of the Administrative State

Constitutional law professor Laurence Tribe and former SCOTUSblog contributor Joshua Matz came out with an excellent book last year in which they examine the Supreme Court’s jurisprudence on a variety of topics—equal protection, health care, campaign finance, free speech, gun rights, presidential power, privacy, etc.—during the years since Chief Justice John Roberts joined the Court.

Uncertain Justice

I must say that, though the title initially suggested to me a disparaging account of the Roberts Court, I found the work as a whole to be quite even-handed and (dare I say) judicious. The authors do an excellent job aiding the reader to appreciate the nuances and merits of conflicting values which divide our country and often the Court itself. In fact, I am now inclined to interpret the “Uncertain” of the title as referring to the inherent intractability of certain conflicts of constitutional values or textual interpretation.

As I penned my last post discussing the controversy over immigration and administrative action, I recalled a relevant passage from Chapter 7, “Presidential Power: Hail to the Chief.” Therein, Tribe and Matz relay the “clash” between Roberts’ majority opinion and Breyer’s dissent regarding the appropriate degree of control Presidents ought to exercise over administrative agencies.

The case was Free Enterprise Fund v. PCAOB. The Sarbanes-Oxley Act of 2002 created the Public Company Accounting Oversight Board (PCAOB). The act established a 5-member board in which the board members could only be removed by the SEC and only for “good cause.” The SEC is an independent agency, already enjoying some degree of insulation from presidential control. By custom, its commissioners can only be removed by the President due to “inefficiency, neglect of duty, or malfeasance in office.” Thus, no direct lever of control existed between the President and the PCAOB. The Court struck down the removal provision by 5-4 decision because it failed to vest removal authority directly in the hands of the President.

Tribe and Matz explain the majority’s reasoning:

Writing for the Court and quoting Article II, Roberts grounded his opinion in the importance of formal control: “The President cannot ‘take care that the Laws be faithfully executed’ if he cannot oversee the faithfulness of the officers who execute them….Neither the President nor anyone directly responsible to him, nor even an officer whose conduct he may review only for good cause, has full control over the [PCAOB].

The co-authors next explain Breyer’s reasoning in dissent:

Describing the reach of federal law, Breyer emphasized that, “given the nature of the government’s work, it is not surprising that administrative units come in many different shapes and sizes.” Because of this diversity, he reasoned, the Constitution recognizes “the various ways presidential power operates.” Such a pragmatic approach doesn’t take presidential power to fire as the sine qua non of control over agencies. Instead, it acknowledges that, “as human beings have ever known since Ulysses tied himself to the mast so as safely to hear the Sirens’ song, sometimes it is necessary to disable oneself in order to achieve a broader objective.” By freeing bureaucrats from political control, Breyer reasoned, we can enhance their legitimacy and credibility as technocrats and neutral arbiters.

These conflicting points of view about how much control presidents should have over administrative agencies is not only relevant to the current controversy over immigration policy, but goes to the difficulty of squeezing the administrative state into our conceptions of tripartite government. Agencies are created and enabled by congressional statute yet are placed structurally within the executive branch under the charge of the President, the chief executive officer. In addition to their executive function, agencies operate in a quasi-legislative and quasi-judicial capacity, thus blurring the traditional distinctions between each governmental power even as they facilitate the effective exercise of those powers. Agencies are expected to be accountable to the people via the people’s representatives, who themselves are often at odds with one another. If that is not enough, balanced against the democratic principle is the interest in efficient and technically expert administration somewhat removed from the vagaries of day-to-day politics. Given these muddled expectations, it is no surprise then that reasonable minds differ on how administrative agencies should work in practice.

 ________________________________

Tribe discusses his book below. Of particular note, he highlights the fact that the Court is less partisan than the popular press would lead us to believe. For example, the Roberts court has been unanimous 1/3 of the time. Only 1/5 of the time has the Court been divided in 5-4 decisions, and 1/3 of those involved unlikely alliances of liberal and conservative justices. For more discussion of Supreme Court decision making, see my post here.

A.K.

Immigration Battle and the Proper Role of Administrative Agencies

I’ve written before about the debate over the constitutionality of President Obama’s deferred deportation program. Here is a neat little video explaining that program:

On Monday of last week, U.S. District Judge Andrew S. Hanen (TX, 5th Circuit) granted an injunction against the Obama administration’s program while a lawsuit filed by 26 states challenging it was being decided. Judge Hanen did two things in his opinion worthy of note. First, he declared that, although agency inaction is generally a matter in which courts are to defer to agency discretion, DHS’s affirmative directive not to enforce a legal provision is distinguishable from mere inaction:

While the Court recognizes (as discussed above) that the DHS possesses considerable discretion in carrying out its duties under the INA, the facts of this case do not implicate the concerns considered by Heckler such that this Court finds itself without the ability to review Defendants’ actions. First, the Court finds an important distinction in two terms that are commonly used interchangeably when discussing Heckler’s presumption of unreviewability: “non-enforcement” and “inaction.” While agency “non-enforcement” might imply “inaction” in most circumstances, the Court finds that, in this case, to the extent that the DAPA Directive can be characterized as “non-enforcement,” it is actually affirmative action rather than inaction.

The Supreme Court’s concern that courts lack meaningful focus for judicial review when presented with agency inaction (see Heckler, 470 U.S. at 832) is thus not present in this situation. Instead of merely refusing to enforce the INA’s removal laws against an individual, the DHS has enacted a wide-reaching program that awards legal presence, to individuals Congress has deemed deportable or removable, as well as the ability to obtain Social Security numbers, work authorization permits, and the ability to travel.63 Absent DAPA, these individuals would not receive these benefits.64 The DHS has not instructed its officers to merely refrain from arresting, ordering the removal of, or prosecuting unlawfully-present aliens. Indeed, by the very terms of DAPA, that is what the DHS has been doing for these recipients for the last five years65—whether that was because the DHS could not track down the millions of individuals they now deem eligible for deferred action, or because they were prioritizing removals according to limited resources, applying humanitarian considerations, or just not removing these individuals for “administrative convenience.”66 Had the States complained only of the DHS’ mere failure to (or decision not to) prosecute and/or remove such individuals in these preceding years, any conclusion drawn in that situation would have been based on the inaction of the agency in its refusal to enforce. In such a case, the Court may have been without any “focus for judicial review.” See Heckler, 470 U.S. at 832.

Exercising prosecutorial discretion and/or refusing to enforce a statute does not also entail bestowing benefits. Non-enforcement is just that—not enforcing the law.67 Non-enforcement does not entail refusing to remove these individuals as required by the law and then providing three years of immunity from that law, legal presence status, plus any benefits that may accompany legal presence under current regulations. This Court seriously doubts that the Supreme Court, in holding non-enforcement decisions to be presumptively unreviewable, anticipated that such “non-enforcement” decisions would include the affirmative act of bestowing multiple, otherwise unobtainable benefits upon an individual. Not only does this proposition run afoul of traditional exercises of prosecutorial discretion that generally receive judicial deference, but it also flies in the face of the very concerns that informed the Heckler Court’s holding. This Court finds the DHS Directive distinguishable from the non-enforcement decisions to which Heckler referred, and thus concludes that Heckler’s presumption of unreviewability is inapplicable in this case.

Next, Judge Hanen determined that the enabling legislation left discretion only as to the means of deportation and not as to whether the specified persons were to be deported:

The DHS’ job is to enforce the laws Congress passes and the President signs (or at least does not veto). It has broad discretion to utilize when it is enforcing a law. Nevertheless, no statute gives the DHS the discretion it is trying to exercise here.77 Thus, Defendants are without express authority to do so by law, especially since by Congressional Act, the DAPA recipients are illegally present in this country. As stated before, most, if not all, fall into one of two categories. They either illegally entered the country, or they entered legally and then overstayed their permission to stay. Under current law, regardless of the genesis of their illegality, the Government is charged with the duty of removing them. Subsection 1225(b)(1)(A) states unequivocally that the DHS “shall order the alien removed from the United States without further hearing or review….” Section 1227, the corresponding section, orders the same for aliens who entered legally, but who have violated their status. While several generations of statutes have amended both the categorization and in some aspects the terminology, one thing has remained constant: the duty of the Federal Government is to effectuate the removal of illegal aliens. The Supreme Court most recently affirmed this duty in Arizona v. United States: “ICE officers are responsible for the identification, apprehension, and removal of illegal aliens.” 132 S.Ct. at 2500.

Notably, the applicable statutes use the imperative term “shall,” not the permissive term “may.”78 There are those who insist that such language imposes an absolute duty to initiate removal and no discretion is permitted.79 Others take the opposition position, interpreting “shall” to mean “may.”80 This Court finds both positions to be wanting. “Shall” indicates a congressional mandate that does not confer discretion—i.e., one which should be complied with to the extent possible and to the extent one’s resources allow.81 It does not divest the Executive Branch of its inherent discretion to formulate the best means of achieving the objective, but it does deprive the Executive Branch of its ability to directly and substantially contravene statutory commands. Congress’ use of the term “may,” on the other hand, indicates a Congressional grant of discretion to the Executive to either accept or not accept the goal. Texas v. United States, (S.D. Tex. Feb. 16, 2015)

Despite the broadness of Judge Hanen’s opinion, his ultimate ruling was fairly narrow. He held that DHS should have (at the very least) followed a notice-and-comment procedure before making such a major change in its activities. If the notice-and-comment requirement is unfamiliar to you, see my post on agency rulemaking here. For a general discussion of the President’s power over administrative agencies, see my post here.

Of course, it is in fierce debates over public policy that these vital questions about separation of powers and procedural rules arise. Like many high profile court cases, the ultimate determination of questions about the role of executive agencies in our tripartite democratic system has consequences which extend beyond the settlement of the dispute between the conflicting parties or the context-specific public policy implications, as important as those matters might be in their own right. In the meantime, students of both immigration policy and the role of administrative agencies can learn a lot from the litigation as it unfolds. The Obama administration has vowed to appeal this decision. The President himself had this to say in response to the ruling:

Much recent attention has focused on a single court decision in Texas in response to a partisan lawsuit that delays some of these lawful, common-sense steps…I disagree with this judge’s ruling. Just yesterday, the Department of Justice asked the court for an emergency stay of this misguided decision, and it has already filed a notice of appeal. My administration will fight this ruling with every tool at our disposal, and I have full confidence that these actions will ultimately be upheld.

It’s time to end the era of manufactured crises, put politics aside and focus on doing what’s best for America. So while I will fight any attempt to turn back the progress we’ve made or break up families across our country, I welcome the opportunity to work with anyone who wants to build on the improvements we’ve put in place, and fix our broken immigration system once and for all.

Throughout our history, America’s tradition as a nation of laws and a nation of immigrants has continually shaped us for the better. If we renew that tradition, and build upon it for future generations, there’s no limit to what we can achieve.

Stay tuned…

A.K.

 

Review: Constitutionalism in Asia in the Early Twenty-first Century

Chen Image

CONSTITUTIONALISM IN ASIA IN THE EARLY TWENTY-FIRST CENTURY is a 400-plus page edited volume of essays exploring constitutional developments in sixteen Asian jurisdictions, including the subnational jurisdiction of Hong Kong and disputed Taiwan. The volume is organized in seventeen chapters—Chapters One, Two, and Seventeen address overall trends in Asian constitutional development. Chapters Three through Sixteen each focus on constitutional developments of the last decade in individual countries—with the exception of Chapter Ten which combines Burma, Cambodia, and Thailand.

While each chapter is distinct in its object of study and approach, the question which binds them together is straightforward and expressed by the editor, Albert H.Y. Chen, early in the first chapter. Essentially, constitutions have been adopted throughout Asia, but to what extent have these forms been truly put into practice? “Although constitutionalism as a theory and practice of government and law first originated in Western Europe and North America,” Chen writes, “there is by now considerable evidence of its positive reception in and successful ‘transplant’ to a significant number of Asian countries” (3). As one might expect, however, “The experience of different Asian countries in this regard provides useful and fascinating case studies of what Grimm calls the ‘achievement of constitutionalism’” (3). Each case study in this volume is indeed fascinating and worth reading altogether or as stand-alone essays.

In Chapter One, Chen observes that written constitutions are ubiquitous in today’s global political landscape: “The possession of a constitution seems to have been accepted by all as a hallmark of the legitimacy of the nation-state and its regime for both domestic and external purposes” (5). This fact alone suggests the reason why constitutions are more common than actual constitutionalism (the latter being loosely defined as the instantiation of limited government and the rule of law). Hence, Chen develops a threefold conceptual framework for assessing the degree to which constitutionalism has truly been achieved in a given political context:

  • Genuine Constitutionalism (GC): constitutionalism in its classical sense, i.e., constraining arbitrary governmental power, etc.
  • Communist/Socialist Constitutionalism (CC): “Leninist-Stalinist forms of rule by a communist party-state legitimized by a written constitution” (14).
  • Hybrid Constitutionalism (HC): “practiced in states in which both elements of liberal constitutionalism and authoritarian elements…exist” (Id.).

Chen places the countries featured in the volume into one of the three types. Japan, India, South Korea, Taiwan, and Indonesia are each classic cases of successful transitions to GC—Japan and India in the Post-WWII period, Taiwan and South Korea since the 1980’s, and Indonesia since the turn of the century. Thailand, Cambodia, and Nepal are each classified as HC—Thailand and Nepal due to recent civil conflicts involving the transfer of power, Cambodia due to “Hun Sen’s strongman rule” (31). North Korea, China, and Vietnam are classified as CC, although the former may be distinguished from the latter two because “the legal reforms and constitutional discourses in contemporary China and Vietnam demonstrate that their constitutions are by no means merely a ‘fake constitution’” (30). The implication, fully elaborated by Dae-Kyu Yoon in Chapter 5, is that North Korea’s constitution “exists essentially as a political manifesto laden with programmatic provisions rather than as a document written to ensure justice for the people” (103).

More interesting is the group of countries which fall into Chen’s classificatory cracks. Malaysia and Singapore, both of which are listed as “Partly Free” in Freedom House’s 2014 report, Chen classifies as “HC or close to GC, depending on how much weight we attach to civil liberties” (31). The Philippines, which Freedom House also lists as “Partly Free” (though ranking ahead of Malaysia and Singapore), Chen classifies as “HC approximating GC” (31). Myanmar—or Burma—is listed as “Not Free” by Freedom House, but is, according to Chen, “now moving in the direction of HC” (31).

Most interesting, Chen omits Hong Kong altogether from his classificatory scheme. This omission might be explained by the fact of Hong Kong’s status as a subnational Special Administrative Region (SAR) of China. On the other hand, subsuming Hong Kong within China seems odd in the context of Chen’s scheme considering Hong Kong’s distinctly Western political culture, the operation of its constitution-like ‘Basic Law’, and the independent treatment it receives in Chapter Eight of this volume. Indeed, as Johannes Chan, the author of Chapter Eight, notes, this ‘one country’ truly does operate as ‘two systems’:

On one side of the border there is a well-established common-law system that rests upon individualism and the doctrine of separation of powers. On the other side of the border there is an emerging legal system that is partly based on socialist ideology, partly based on the civil law system,…subscribes to the supremacy of the soviet and the people’s democratic dictatorship, and operates largely on a central planning system (170).

However, Hong Kong’s recent struggle with the mainland to achieve the election of SAR leadership by universal suffrage reveals that the ‘two systems’ paradigm is not without limits. Chan concedes that “while prepared to tolerate a high degree of autonomy in internal affairs, Beijing, and not Hong Kong, is in control when it comes to democratic development of the political process of Hong Kong” (177), and “to the central government, ‘one country, two systems’ means nothing more than ‘one country, two economic systems’” (192). Hence, where exactly Hong Kong should fit in Chen’s scheme is highly debatable.

Chapter Two, by Tom Ginsburg, addresses the question “Is there a distinctive East Asian constitutionalism?” (32) In so doing, Ginsburg weighs in on the “’Asian Values’ debate of the 1990s” (id.). He uses comparative textual analysis to test whether “Asia [is] fundamentally different with regard to ideas about human rights” (32-33) and finds that “the formal patterns of constitutions in Asia do not reflect the Asian Values argument, at least not in its simplest version” (51). However, as other scholars have observed (See, e.g., North, Summerhill, and Weingast 1999), many constitutional documents have similar key words or boilerplate language which conveys little about the document’s actual operation, a fact demonstrated by the dramatically different experiences of countries studied in this volume despite the coincidence of similar formal constitutional provisions. Key word searches through constitutional texts tell us little. Thus, Chapter Two is interesting but perhaps not essential to the volume.

Overall, this collection of essays on patterns of constitutional development in Asia is a welcome contribution to the comparative constitutional law literature. Its focus on the last decade of Asian constitutional development makes it most helpful as a well-researched and up-to-date guide to current political events unfolding in each of these countries, most dramatically in Hong Kong, North Korea, and Indonesia. This volume, taken as a whole, is a succinct survey of the diverse countries across East, Southeast, and South Asia for busy scholars who sometimes miss the larger political forest for the trees. This volume is also well-organized and well-suited to be assigned to graduate students and advanced undergraduates as select essays in the context of a comparative politics or comparative law course.

A.K.

Free Bitcoin at MIT

MIT just recently gave each undergrad $100 in Bitcoin for completing a survey. The MIT Bitcoin Project, the group of students heading this initiative, plans to make MIT the global hub for business and research on Bitcoin. This marketing technique also encourages students to seek entrepreneurial activity and  some scholars believe it will have network effects. One post by William Luther, explains these network effects:

“individuals are concerned not only with the characteristics of bitcoin—how its supply is governed, ease of access, security of transactions, etc.—but also who else is accepting bitcoin. The size and composition of the bitcoin network matters. If few others are accepting bitcoin—or, more to the point, if few of one’s trading partners are accepting bitcoin—there’s little reason to accept it.”

 

Clearly there is merit to this reason for giving out “free” Bitcoin. Already, the bookshop at MIT accepts Bitcoin. Other apps are springing up that allow users to pay with Bitcoin as well. What is really interesting is that the MIT Bitcoin Club has a well-designed site encouraging the use of Bitcoin and events to promote it to the public. Although the ease and use-ability of the site is unsurprising based on the caliber of students that attend the university, it is interesting that a student club is going so far as to encourage usage of the Bitcoin by distributing it to students.