Constitutional courts as veto players: Lessons from the United States,France and Germany

The number of constitutional courts and supreme courts with constitutional review rights has strongly increased with the third wave of democratisation across the world as an important element of the new constitutionalism. These courts play an important role in day‐to‐day politics as they can nullify acts of parliament and thus prevent or reverse a change in the status quo. In macro‐concepts of comparative politics, their role is unclear. Either they are integrated as counter‐majoritarian institutional features of a political system or they are entirely ignored: some authors do not discuss their potential impact at all, while others dismiss them because they believe their preferences as veto players are entirely absorbed by other actors in the political system. However, we know little about the conditions and variables that determine them as being counter‐majoritarian or veto players. This article employs the concept of Tsebelis’ veto player theory to analyse the question. It focuses on the spatial configuration of veto players in the legislative process and then adds the court as an additional player to find out if it is absorbed in the pareto‐efficient set of the existing players or not. A court which is absorbed by other veto players should not in theory veto new legislation. It is argued in this article that courts are conditional veto players. Their veto is dependent on three variables: the ideological composition of the court; the pattern of government control; and the legislative procedures. To empirically support the analysis, data from the United States, France and Germany from 1974 to 2009 is used. This case selection increases variance with regard to system types and court types. The main finding is that courts are not always absorbed as veto players: during the period of analysis, absorption varies between 11 and 71 per cent in the three systems. Furthermore, the pattern of absorption is specific in each country due to government control, court majority and legislative procedure. Therefore, it can be concluded that they are conditional veto players. The findings have at least two implications. First, constitutional courts and supreme courts with judicial review rights should be systematically included in veto player analysis of political systems and not left aside. Any concept ignoring such courts may lead to invalid results, and any concept that counts such courts merely as an institutional feature may lead to distorted results that over‐ or under‐estimate their impact. Second, the findings also have implications for the study of judicial politics. The main bulk of literature in this area is concerned with auto‐limitation, the so‐called ‘self‐restraint’ of the government to avoid defeat at the court. This auto‐limitation, however, should only occur if a court is not absorbed. However, vetoes observed when the court is absorbed might be explained by strategic behaviour among judges engaging in selective defection.     

Constitutional and Human Rights Disturbances: Australia’s Privative Clauses Created Both in an Immigration Context

With the arrival of another wave of “boat people” to Australian waters in late 2009, issues of human rights of asylum seekers and refugees once again became a major feature of the political landscape. Claims of “queue jumping” were made, particularly by some sections of the media, and they may seem populist, but they are also ironic, given the protracted efforts on the part of the federal government to stymie any orderly appeals process, largely through resort to “privative clauses”. Such clauses demonstrate the many ways in which human rights of those seeking asylum in far-off lands and are potential future immigrants, who often lack much-touted needed papers, yet who are for the most part genuine refugees, are subject to the slings and arrows of political fortune (and misfortune). Approaching the courts if treated unfairly or seeking a further decision as to your fate would seem one of the fundamental premises of human rights. Yet privative clauses—or attempts to ouster the jurisdiction of the courts and to insulate decisions from appeal—have become an increasingly frequent feature of the Australian migration legislation. With a seemingly watertight federal constitutional power set in stone since 1901, to deal with migration and aliens, and without the tempered contemporary update of a federal Bill of Rights, the Australian federal government has been able to narrow the grounds of judicial review in those contexts. We argue that the concerted efforts to deny such fundamental rights of appeal to those most in need of the full armoury of the protection of the law in a modern, affluent democracy, constitutes both a breach of their human rights and a breach of core constitutional principles such as separation of powers. Those principles may not be formally articulated in the text of the Australian Constitution, but in our view they are implicit in the constitutional arrangements, and hence we can conclude with the arguments of former Justice of the High Court of Australia, Michael Kirby, who asked—to whom does sovereignty truly belong?     

Constitutional courts as arbiters of post-conflict territorial self-government: Bosnia and Macedonia

Constitutional and supreme courts frequently end up examining the political and legal questions at the heart of peace agreements and post-conflict constitutions. Where a peace agreement has included territorial self-government (TSG) provisions courts are often endowed with the capacity to adjudicate disputes between state and sub-state levels of government. The effectiveness of courts in fulfilling this role as not been comprehensively examined. This article fills this important gap examining whether the results of existing research on the role of constitutional and supreme courts in resolving disputes in traditional federalism also apply in these particular circumstances. It finds that where TSG is used as a conflict management mechanism judicial review can have centralizing tendencies if this occurs it can largely be attributed to the processes used to select though the devolutionary multinational nature of the states is also relevant.     

Building a More United Kingdom: a Conservative Case for Constitutional Reform1

The United Kingdom faces twin constitutional crises. The existence of the Union itself is now under stronger challenge than ever before, and many of the conventions and understandings which have underpinned the constitutional stability of the United Kingdom and the relationships between executive, Parliament and judiciary have been eroded or overthrown. There is no single, easy way to put things right. What is needed are reforms to the working of Parliament, the Civil Service and devolution, to restore greater balance and stability to our constitution. These should include measures to strengthen the ability of Parliament to hold the executive to account and a new Civil Service Act to provide for the independence, governance and accountability of the Civil Service. To overcome the strains that now threaten the unity of the UK we need a cultural shift in UK politics in favour of partnership and mutual respect, underpinned by changes to the way we do business in both government and Parliament and by greater devolution of power within England.     

An approach to the legislative production of the Spanish parliament (1979–1982)

Abstract. Analysis of Spain's first constitutional legislature (1979–1982) reveals (with the logical reservations derived from the fact that this was the first democratic legislature after the many years of Franco's dictatorship) the Spanish Parliament's important influence on the legislative process in terms of both initiating legislation and proposing amendments to bills introduced. This influence may possibly have stemmed from the fragile government of Union de Centro Democrático (UCD) at a time when the party had only a relative majority in Parliament and was torn by serious internal problems, both ideological and personal, which caused it to all but disappear in the 1982 election. All of this took place within the framework of a system of centralized political decision-making in which political leaders played a starring role.     

Democracy in Britain: Retrospect and Prospect

The EU referendum has raised questions about the nature of democracy, which is not just majority rule. It is wrong to claim that direct democracy has now replaced representative democracy, as Parliament is required to answer all the questions that the referendum did not. The conduct of the referendum reflected the worst aspects of Britain's political culture of sterile adversarialism. Both left and right have shared assumptions about governing that have made it difficult to develop a culture of democratic citizenship. The political system still reflects its pre‐democratic origins (as in the survival of a House of Lords and the obsession with titles) and the role of money in politics represents a form of corruption. Institutional reforms depend for their success on the nurturing of a democratic culture, which is a task for many hands.     

Does the UK Have Influence in the EU Legislative Process?

The UK has influenced some major EU policies, such as the creation of the single market and enlargement. But how influential are the UK government and British MEPs in the day‐to‐day EU legislative process? To answer this question, this article analyses recent data from the Council of the European Union and the European Parliament. The evidence is mixed. In the Council, in recent years the UK government has been outvoted more often than any other EU government, yet UK officials remain well connected ‘behind the scenes’. In the European Parliament, British MEPs are now more likely to be on the losing side than are the MEPs of any other member state, yet British MEPs still win key committee chairs and rapporteurships. The evidence suggests that if the UK votes to remain in the EU, Britain's political elites will need to re‐engage with Brussels politics if the UK is to avoid becoming further marginalised from mainstream EU politics.     

Explaining State High-Courts' Selective Use of State Constitutions

Although state constitutions offer substantial policy-makingopportunities, state courts are reluctant to base decisionson independent state constitutional law. Using state high-courtjudicial review decisions from 1981 to 1985, we tested a modelpredicting countermajoritarian state-law rulings. Legal andpolitical variables best predicted state constitutional decisions.Intragovernmental conflicts were particularly likely to resultin state-law decisions, while courts were especially reluctantto base civil liberties decisions on state constitutions. Casesbrought by government officials were likely to be decided onstate constitutional principles; state-law decisions were alsolikely to emerge from conservative states and states with tradilionalisticpolitical cultures. Although these latter findings stand apartfrom previous research connecting some forms of judicial activismto liberal political environments, they seem consistent withthe element of American conservatism seen particularly in traditionalisticstates (in the South and Southwest) demanding protection ofstate autonomy in the realms of policy development historicallyleft to the states.     

Doctrine and Decision: Navigating Labour's New Constitutional Position in the Lords

The 2015–17 Parliament was the first time in history that the Conservatives were in government with no easily assembled majority in the House of Lords. This has fundamentally altered the role that Labour is able to play in the Lords and, conversely, that peers are able to play in the Labour party. Yet the political significance of this situation has not yet been fully appreciated by a party which remains culturally antagonistic and constitutionally wary of the Lords. In this paper, we draw on interviews with Labour peers, particularly the late Baroness Hollis of Heigham, who have been able to use the essentially conservative powers of the Lords for social democratic ends. We suggest that the Labour party needs to incorporate the second chamber into both its practical and symbolic politics, and to find ways to use this new source of constitutional power without accommodating to it.     

Hung Parliaments and the Need for Clearer Rules of Government Formation

The general elections of 2017 and 2010 produced hung parliaments in which no single party could command an overall majority; in May 2015 the UK only narrowly avoided that outcome. When a parliament is hung, more than one potential government can be viable, and the constitutional rules that determine who has the first right to form the government can thus have a decisive influence on which government forms. In the past, the UK has applied several potentially contradictory rules (based on conventions and principles), which do not all follow an equally democratic logic. This status quo is problematic because it can generate political controversy and uncertainty, in addition to jeopardising the Monarch's role in the government formation process. A reform that enables parliament to elect the leader who will be tasked with the formation of the next government would resolve these problems and provide constitutional clarity.     

‘The Settled Will of the Scottish People’: What is Next for Scotland's Parliaments?

Following a likely relative shift from Labour to SNP in the Scottish Parliament elections of 3 May 2007 the eight year Labour/Liberal Democratic Party coalition will come under great pressure and may be replaced by a minority administration or a Liberal Democrat/SNP coalition. While the independence issue may be sidelined, key constitutional issues will arise as a result of the Liberal Democrats' proposals featuring in Moving Towards Federalism which envisage greater legislative and taxation powers for the Scottish Parliament and a reconsideration of the devolution settlement. A number of weaknesses in the documents' proposals are identified. If it is acted upon there is the possibility of considerable resulting constitutional conflict arising which could pose considerable challenges for the future of the UK. The UK government which has actual competence on these issues has largely stayed silent on them during the campaign but may have to respond sensitively in its aftermath.     

The EU Fundamental Rights Policy as a Source of Euroscepticism

This article analyzes how the development of the European Union (EU) fundamental rights policy feeds Euroscepticism—and notably political Euroscepticism—within segments of national political elites in EU Member States. More specifically, it argues that this relatively new policy also gives rise to a new form of political Euroscepticism, which has been defined as “value-based Euroscepticism,” e.g., the perception that the EU via its fundamental rights policy, unduly interferes in matters where value systems and core domestic preferences on ethical issues are at stake. This happens in a context where the EU is resented, by some segments of political elites, for allegedly empowering diverse groups (such as ethnic minorities, immigrants' associations, judges, and so on) at the expense of popular sovereignty. This resentment is exacerbated by the fact that national governments are increasingly submitted to the critical assessment of EU-level actors (e.g., the European Parliament or the European Commission) in terms of democratic credentials.     

Pierre-Louis Rœderer and the Debate on Forms of Government in Revolutionary France

The French Revolution raised the problem of how to construct a modern republic under conditions of acute political conflict. The debate over the forms of government was at its most intense before the outbreak of the Terror in 1793, when there seemed to be no alternative to instituting a republic, but there was serious disagreement over what this entailed. The problem was considered in terms of the political thought of Hobbes, Locke, Bayle, Voltaire, Helvetius, Montesquieu, Rousseau and Sieyès. The urgent political and constitutional need to reconcile accountable with effective government was central to the use made of both inherited and new ideas about the republican form of government. This parallels Madison's concern to reconcile accountable with effective government during the constitutional debates of the American Revolution.     

The Legitimacy of U.S. Government Agency Power

A synthesis of the work of two political and legal scholars, John Rohr and Lon Fuller, properly balances constitutional and managerial values, supplementing other theories that offer useful but insufficient support for American government agency legitimacy. Agencies reflecting that balance would strengthen their legitimacy—a particularly valuable goal in an era of low confidence in American government. Rohr's focus on the constitutional oath of office and American regime values, and Fuller's insistence that law must serve human needs, leave a great deal indeterminate and discretionary but nevertheless set boundaries. Bureaucrats who risked or sacrificed their jobs to avoid transgressing those boundaries offer models of loyalty to the Rohr‐Fuller balance of values. The behavior of officials in the Office of the Comptroller of the Currency in thwarting measures that could have averted the financial crisis of 2007 offers a model of bureaucrats who violated those boundaries.     

Do Constitutional Rights Make a Difference?

Although the question of whether constitutional rights matter is of great theoretical and practical importance, little is known about whether constitutional rights impact government behavior. In this article, we test the effectiveness of six political rights. We hypothesize that a difference exists between organizational rights—most notably, the rights to unionize and form political parties—and individual rights. Specifically, we suggest that organizational rights increase de facto rights protection because they create organizations with the incentives and means to protect the underlying right, which renders these rights self‐enforcing. Such organizations are not necessarily present to protect individual rights, which could make individual rights less effective. We test our theory using a variety of statistical methods on a data set of constitutional rights for 186 countries. The results support our theory: Organizational rights are associated with increased de facto rights protection, while individual rights are not.     

The future of political campaigning: the American example

The Internet will provide a way to force direct democracy to the fore, replacing many of the prerogatives now reserved for representative democracy. This is especially true in Europe where the continental integration of the economy has not been matched by integrated political democracy. Lobbying in the UK will become less relevant as the EU comes to predominate. Lobbying in the future will have to be directed downward — to mobilise the public — rather than upward, attempting to influence the Parliament. Copyright © 2003 Henry Stewart Publications.     

Constitutional Review and the Selective Promotion of Case Results

A significant majority of the world's constitutional courts publicize their decisions through direct contact with the national media. This interest in public information is puzzling in so far as constitutional judges are not directly accountable to voters. I argue that the promotion of case results is consistent with a theory of judicial behavior in which public support for courts can undermine incentives for insincere decision making. In this article, I develop a simple game theory model that identifies how case promotion is linked to judicial choice. Results of a simultaneous equations model estimating the Mexican Supreme Court's merits decisions and its choices to publicize those decisions by issuing press releases to national media outlets support an account of constitutional review in which judges believe they can influence their authority through case promotion.     

The Politics of 'Eurocratic' Structure and the New European Agencies

The establishment of agencies at the European level is one of the most notable recent developments in EU regulatory policy. This article examines how politics has shaped the design of EU regulatory agencies. Building on the American politics literature on delegation, the article explains how principal-agent concerns and political compromise have influenced agency design in the EU context; shows how conflicts between the EU's primary legislative actors - the Council and the Parliament - and its primary executive actor - the Commission - have influenced the design of new bureaucratic agencies; and discusses how the growing power of the European Parliament as a political principal has changed the politics of agency design.     

The European constitution project from the perspective of constitutional political economy

Three topics of a European constitution are discussed. First, basic arguments from constitutional political economy that aim at restricting representatives’ potential misuse of powers in a European Union with extended competencies are summarized. Since a European demos does not yet exist, an extension of competencies of the European Parliament is not sufficient in order to legitimate political decisions at the EU level. The introduction of elements of direct democracy in the European constitution would shape the creation of such a demos and lead to a stronger control of the European legislature and executive. Second, the introduction of direct democracy in the European constitution is proposed in order to reduce the European democratic deficit. Third, the creation of a European federation requires a more transparent assignment of competencies and rules to resolve conflicts between different centers of power. A European federation should be organized according to the principles of competitive federalism.     

Politics and Constitutional Reform in Canada: A Study in Political Opposition

Political opposition in a federal system is particularly richand complex, involving not only political parties and pressuregroups, but constitutionally sovereign governments as well.This article examines political opposition in a federation througha case study of the mobilization of opposition to the CanadianConstitution Act. Introduced by the federal government in 1980,the Act proposed a series of important changes in the powersof Canada's ten provinces. The resistance offered by a numberof provinces, the two opposition parties holding seats in Parliament,and a handful of interest groups were sufficient to secure significantchanges in the Act. The analysis presented here demonstratesthe key role of provincial governments—and especiallyof provincial premiers—as oppositional actors, while indicatingthe importance of the courts and intergovernmental conferencesas sites where political opposition expresses itself in a federation.