Constitutions and Constitutional Design

1. HON 272-01
Spring 2016

3. INSTRUCTIONS
You have been appointed by President Obama to be on the
2016 Commission to Redraft the United States Constitution.
Write a detailed outline discussing the
general layout of this new document.
What would the new document look like?
What provisions would be added and what would be taken out? Why?

7.  What are constitutions?
 Charters and laws of states
 Codified Constitution
 Written document
 Specific sections or articles
 Uncodified Constitution
 Collection of laws, customs,
norms, traditions
 Informal nature

8.  #1: Absolutist Constitution
 Centralized power to produce, change legal docs
 No popular participation in govt.
 Examples: Communist countries, Post-Coup
 #2: Legislative Supremacy Constitution
 Provides (1) institutions and (2) elections
 Three main characteristics:
▪ (1) Majority vote, (2) No authority, (3) No Bill of Rights

9.  #3: Higher Law Constitution
 Presence of State institutions
 Govt. power / authority given to people
 Scope of legislative authority
 Gives (1) rights and (2) amendment process

11.  #1: Definite
 Clearly define what it contains; easily understood and carefully worded
 #2: Comprehensive
 Cover whole of government; information on organization
 #3: Brief
 State necessary provisions; detail leads to disputes
 #4: Durable and Elastic
 Not rigid; flexibility and stability
 #5: Fundamental Rights
 #6: Suitable
 Suit social, political, and economic conditions of citizenry

14.  Changes had to be
unanimous
 National government
left with no real power
 Draft Soldiers
 Regulate Commerce
 Have Monetary System

18. MADISON’SVIRGINIA PLAN PATERSON’S NEW JERSEY PLAN
Power given
to smaller states
Representation by
equality
Power given to
bigger states
Representation by
population

19.  Bicameral legislature
 Lower chamber
(House) based on
population
 Upper chamber
(Senate) based on
equality
Roger Sherman

21. Congress:
Legislate
President:
Execute
Judiciary:
Interpret

22.  Decentralized Constitutional Review
 Concrete Review

23.  Centralized Constitutional Review
 Abstract Review
The French
Constitutional Council

27. ENTRENCHED
CONSTITUTION
 Support of legislative
majority
 Majority ofVoters AND
Majority of States in
Referendum
UNENTRENCHED
CONSTITUTION
 No amendment process
 No specific legal status
higher than laws
Austria Switzerland

32.  Protects AgainstTyranny
 Dispersion and Diffusion of Power
 Increases Participation
 Officeholders and Citizens
 Improves Efficiency
 Ensures Policy Responsiveness / Innovation
 Reduces Conflict

33.  Creates Complexity and Confusion;
Reduces Accountability
 Increases Conflict
 “NIMBY” – Not in My BackYard
 Creates Inequality
 Economic Inequality, Racial Discrimination
 Law enforcement and justice are uneven
 Expertise and money

35.  Power rests with national government
 National government delegates authority to
subnational (state / local) governments
 Case Examples:

37.  Subnational governments hold power
 State/local governments delegate authority
to central government

39. Nigeria and India are two cases
that illustrate the positive and
negative aspects of federalism.

40. NIGERIA
 Positive aspect of federalism
 Solve ongoing differences
by creating more states
 Why would simply adding
more states matter for
stability?
 New states favored by people
for two reasons:
 (1) Avoid domination by largest
ethnic groups and (2) Share in
country resources
INDIA
 Negative aspect of federalism
 Some Indian states have
witnessed high performance
 Example: State of Kerala
(Southern India)
 Example: State of Mumbai
(Western India)
 Other states have lagged
behind considerably