in ConstitutionMaking Lessons from America Jack Citrin Professor of Political Science University of California Berkeley People Power in Constitutionmaking Constitutions are fundamental documents laying out enduring rules of the game for political conflict and coop ID: 1021135
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1. How much People Power in Constitution-Making: Lessons from AmericaJack CitrinProfessor of Political Science University of California, Berkeley
2. People Power in Constitution-makingConstitutions are “fundamental documents,” laying out enduring rules of the game for political conflict and cooperationThey have to be seen as political settlements, that allocate power and advantages to some groups over others.E.G. The American federal constitution was a compromise settlement favoring small states and slave states.
3. Amendment: meaning and methodAmending a constitution changes the terms of the political settlement in the wake of social and economic change. Hence, resistance is the norm. Best American historical example: the Civil War.
4. Issues in the amendment processHow hard or easy?Is there a role of direct democracy?The role of judicial review
5. Risks of each element. Popular sovereignty versus ignorance and tyranny of the majority if there is direct democracy.Level of difficulty: failure to adapt versus response to temporary situation related to ease of amendment..Judicial Review: responsiveness versus politicization
6. Difficulty of amending U.S. Constitution
7. Parameters of amendmentThe process a compromise between “nationalists” or “majoritarians” and advocates of states’ rights, so you get a role for both Congress and the states.No possibility of legislative override as in Canada or review by voters as in Korea and elsewhere.
8. Amendments are fewOnly 27 amendments, including the ten bill of Rights. Most deal with basic rights and a couple with the tenure of the president. Just a handful deal with specific policies, unlike the California case.Not for want of trying as electoral college in particular the target of multiple efforts of reform
9. Too hard?Too harders argue that the process makes it impossible to respond to modern era and that it is essentially undemocratic.The its okers say it prevents to adoption of frivolous chances inspired by fleeting passions (see California) and that current process has allowed amendments that enhance the democratic quality of the system.Anyway amending the process by the amendment process a pipedream
10. Judicial ReviewDue to difficulty of amendment, judicial review is how the U.S. Constitution changes. Nine unelected judges are in controlThis has made Anthony Kennedy, following Sandra Day O’Connor the most powerful person in the country. Whose next?Judicial review always political, now more than ever, making judges arguably politicians in black robes.
11. Political Realities Segal and Spaeth study:When liberal law at issue, Scalia is twice as likely to overturn the law as Breyer.When conservative law at issue, Breyer is twice as likely to overturn as Scalia.
12. Judge’s Ideology and Protecting Free Speech
13. Percentage of Liberal Decisions by Federal District Judges According to the President Who Appointed Them
14. Ideology of Supreme Court Justices
15. Costs and benefits of judicial reviewCan act when amendment is impossibleBUT risk being out of touch with the election rules (e.g. New Deal) or with public opinion (Warren Court) resulting in loss of legitimacy for judiciary.
16. Some data on public approvalGallup asked do you approve or disapprove of the way the Supreme Court is handling its job.In 2002 right after Bush-Gore it was 62-25 approval, in 2017 it was 47 -45 approval and a later poll shows decline of approval to 42.
17. Confidence in U.S. Institutions over Time (scale of 1-4 with 4 indicating a great deal)
18. Partisan Gap in Confidence: Supreme Court (below O means R more negative)
19. Public opinion on LegitimacyIf SC consistently makes decisions most people disagree with it, we should do away with it 76% noSC can generally be trusted to make decisions that are good for the whole 71% yesSC is too mixed up in politics 64% Yes*SC right to make controversial decisions should reduced 51% NoJudges who often make decisions majority of public disagrees with should be removed 56% No
20. Amending the Korean ConstitutionA majority of the national Assembly of the President can propose an amendment.Amendment to be put before public for at least twenty days.National Assembly decides within sixty days of the public announcement, passage requires 2/3 vote.National referendum within thirty days and passage by a majority with turnout of at least 50% of eligible voters.
21. Korean ExperienceWinning a two-thirds majority in a polarized legislature is almost impossible.Judicial review emerges as the last word, so the Court has waded into critical political questions including impeachment and even what it means to be a Korean.Legitimacy risk but respect for court in Korea shored up mainly by greater contempt for other political institutions.
22. Referendums on Constitutional AmendmentsRequiredAllowedPhilippinesFinlandAustria (for comprehensive changes)New ZealandDenmarkAustria (for non-comprehensive changes)IrelandFranceRomaniaCroatia Switzerland Venezuela Australia Canada
23. Public’s Role in Initiating ReferendumYesNoCroatiaFranceFinlandRomaniaPhilippines AustriaSwitzerland DenmarkNew Zealand IrelandVenezuela UK AustraliaCanada (except in 1 jurisdiction)
24. Is the Referendum BindingYesNoPhilippinesUKSwitzerlandVenezuelaIrelandFinlandFranceAustralia (non-constitutional issues)CroatiaAustria (for non-comprehensive changes)Portugal (if turnout higher than 50%)New Zealand (if initiated by public) Austria (for comprehensive changes)Canada (except in 3 jurisdictions) Denmark (for amendments) New Zealand (if initiated by government)Australia (for constitutional issues)Romania (for amendments and dismissal of President
25. Can direct democracy helpWith restrictions, can help raise issues and also legitimize change….Ireland a good example.But even without direct democracy…politics via elections, appointments, and judicial sensitivity to tidal changes in opinion give “the people” some sway over constitutional law.Same sex marriage occurred after massive shift in opinion in that direction.
26. California, The Easy RiderEvery American state has a component of direct democracy in amending its constitution. This means that policies become part of the constitution very easily. California’s constitution has more than 500 amendments. It is very easy –all it takes is money to collect signatures and lo and behold the people by a simple majority get to amend the state constitution. The idea of grass roots change is a romantic version of a bygone era. Now an initiative industry generates more and more amendments. Failure rate quite high but it drains money and attention from other matters. Enlightened judgment rare. Imitating the California process would be a criminal act.