CZAS PRZECZYTANIA TEKSTU: 11 minut(y) / READING TIME: 11 minutes
This is the first episode of my series „KONSTYTUTY RECOMMENDS interesting Papers on Constitutional Law & Political Science”, which I have been running for Polish readers since July 2015 (a full list is available here).
I decided to expand my potential group of readers by publishing my review not only in Polish, but from now on — also in English. I would like to thank my friends and colleagues from abroad who encouraged me to do so. I have never had enough free time for this, but I thought that now that most of us spend time at home because of lockdown and have more time to read – I got the perfect opportunity, so I just need to find more time and try. I do not know if I will meet the expectations of my new readers (and of course I have „stage fright”!). I hope that I can count on your comments, but also on your understanding and tolerance – English is not my native language, and my review will of course be my own – that is, subjective.
If there is such a demand – the English version may differ from the Polish one – not only for language reasons. I could supplement the English-language review with selected articles from Polish scientific journals in the field of constitutional law (your opinions on this proposal in the comments or by e-mail would be very appreciated!)
Keep your fingers crossed, please.
Let’s start!
There were new editions of 25 scientific journals during the reviewed period. I chose articles from 16 of them.
In the latest issue of „DUKE JOURNAL OF CONSTITUTIONAL LAW & PUBLIC POLICY” (vol. 15) the paper „Goodbye to Concurring Opinions” immediately caught my attention (due to the title). The abstract of the paper is so full of content that it is the best summary of the whole, which is why I will simply quote its fragments – encouraging you to read the whole paper. As the author writes: „Modern Supreme Court opinions are too long. They are too fractured. And they often lack clarity. Separate opinions, particularly concurring opinions, are largely to blame. Today’s justices are more inclined to publish separate opinions than their predecessors. The justices do not want to read lengthy briefs but appear willing to publish lengthy opinions. Yet the justices owe us clarity. They should want the law to be understandable—and understood. In hopes of achieving greater legal clarity, this article calls for an end to concurring opinions. The modern Court writes more separate opinions than past courts. It is becoming far too common that in a given term there will be more separate opinions than majority opinions. This is causing problems for judges, lawyers, law students, and ordinary Americans. Surely most cases do not necessitate separate writing. Whether these separate opinions are driven by ego, politics, law clerks, celebrity, a desire to be a part of the legal “conversation,” or the refusal to accept that a particular justice’s approach failed to garner sufficient votes to serve as the majority opinion, they should stop. A return to seriatim opinions poses institutional risks. Rarely do concurring opinions become future law. (…) My thesis is simple: it is time to say goodbye to concurring opinions”. Of course, such an extreme approach must raise objections, but it must be admitted that the author is at least partly right.
February issue of „STATUTE LAW REVIEW” contains a very interesting article on „The Virtues of Sunset Clauses in Relation to Constitutional Authority”. The author examines the utility of such clauses in three instances: first, when there is a transfer of constitutional authority; secondly, when there is an exclusively attributed authority, but it is not exercised; and thirdly, when there is a creation of a new authority. In the case of a transfer of authority subject to sunset clauses, unless such authority is re-authorized, the sunset clause brings about its expiration on a prescribed date. In practice, the benefits from the sunset clause are twofold. First, such a clause allows the comprehensive evaluation of the transferred authority, minimizing the risk of any abuse. Secondly, such a clause sets the timetable, which promotes legal certainty. In the case of inactivity while there is an exclusive authority, the use of a sunset clause as an alarm clock creates an incentive for action; or alternatively, with the expiration of the sunset clause, the authority is considered ipso jure and simultaneously exercised. Finally, in the case where new authority is created, such authority may be subject to a sunset clause if it is implemented as a constitutional experiment or if it is controversial in nature because it possibly distorts the system of separation of powers. The beginnings of sunset clause in English law are connected with the change of the York statute of 1335. Later, they were used repeatedly, which contradicts the popular belief that this institution is rarely referred to. Their assessment is ambiguous. The author notes, among others that sunset clause are useful in the case of a decision to temporarily limit the rights of an individual during emergencies. Interestingly, in the past they were also used (under various pretexts) in normal times, which should cause serious controversy. The undoubted advantage of sunset clause and their temporary nature is the need to re-regulate the issue after the period provided for in them. It should be remembered, however, that this can also be an additional burden for the parliament. While they are well suited for experiments with innovative solutions, and also – to a certain extent – with the improvement of established new institutional institutions, they should certainly be used in a moderate manner.
In the February edition of „AMERICAN POLITICAL SCIENCE REVIEW” (Volume 114, Issue 1) my attention was drawn to the article entitled „Exit Strategy: Career Concerns and Revolving Doors in Congress”. (I just couldn’t miss a text on lobbying). As the authors wrote: the majority of research on revolving-door lobbyists centers on the influence they exercise during their postgovernment careers, relatively little attention is given to whether future career concerns affect the behaviors of revolving-door lobbyists while they still work in government”. They focused on congressional stuff and found, that employing staffers who later become lobbyists is associated with higher legislative productivity for members of Congress, especially in staffers’ final terms in Congress. It also is associated with increases in a member’s bill sponsorship in the areas of health and commerce, the topics most frequently addressed by clients in the lobbying industry, as well as granting more access to lobbying firms.
Authors of the paper in the latest issue of „AMERICAN POLITICS RESEARCH” (Volume: 48 issue: 1) ask: „Do Mayors Run for Higher Office?” and answer — based on longitudinal data on the career paths of the mayors of 200 big US cities and interviews — yes, although only relatively few ones. One would predict, that the mayor’s office is a potential launchpad for statewide and national political career and yet only under one-fifth ever seek higher office. The authors try to answer the question about the reasons for this – referring to ideological, institutional, and electoral factors. It turns our, that there is a number of explanations for this result—including interest in urban issues, executive preference, geographic location, and distaste for fundraising, frequent elections, and partisan bickering, as well as the ideological and electoral factors that render the House of Representatives especially unattractive. An important reason for the low interest of mayors in the US for a career in the highest state organs is also the fact that the mayor’s office is significantly more attractive than any other office that mayors could plausibly attain as a consequence of important electoral constraints.
I found an interesting paper in January edition of „COMPARATIVE POLITICAL STUDIES” (Volume 53 Issue 1) addressing the interesting problem of the use of assemblies by authoritarian authorities to manifest mass support for their doings („Pulling the Strings? The Strategic Use of Pro-Government Mobilization in Authoritarian Regimes„). The institution of freedom of assembly is widely associated rather with the pro-democratic activity including protests against the authoritarian regimes and its abuses than with support for the latter. It turns out that the institution of public gatherings is also used by authoritarian governments. This topic is still poorly explored in the scientific literature. Previous work has stipulated that authoritarian regimes are characterized by mass apathy and passive acquiescence. Authors, based on the data about pro-government rally events in all authoritarian regimes from 2003 to 2015, reveal systematic patterns in the occurrence of rallies. Pro-regime rallies can be best understood as an instrument to defend autocratic regimes against domestic challenges by signaling regime strength and repressing opposition movements. Pro-government mobilization increases during episodes of large domestic and regional opposition mobilization, high coup risk, and prior to elections.
In the latest issue of „CUESTIONES CONSTITUCIONALES. REVISTA MEXICANA DE DERECHO CONSTITUCIONAL” (No. 24) two texts aroused my interest. The first („Regulación legal de las encuestas electorales: análisis teórico y comparado„) deals with the problem of legal regulation of election polls. Based on a comparative analysis of legal regulations in the United States, Canada, Spain, France, Colombia and Chile, the authors present the legislator’s different approach to the problem of publishing election poll results during the election campaign and present their own conclusions and recommendations. The analyzed legal regulations present a wide range of solutions regarding (pre) election polls – from the most common solutions, i.e. providing full admission of their publication (no bans and restrictions) by imposing the obligation to provide detailed information on the methodology used (characteristics and number of respondents, size of statistical error) , date of the poll, content of the questions asked) to enable the voter to correctly interpret the results of the poll, up to the temporary ban on the publication of any poll results (generally for a short time before election day). The authors note that the solution imposing the obligation to provide the survey results with relevant information on their methodology may also interfere with freedom of speech and the right to access information, but to a lesser extent than a temporary ban on publishing surveys. And yet the latter solution also has its advantages. Contrary to the popular thesis of supporters of full freedom of expression during the election campaign, who believe that „from free competition between information poured into the public space the truth will emerge” – election polls may have a negative impact on the voter as a tool of manipulation or at least imposing specific topics in public debate. The authors strongly support the legal regulation of electoral polls to make the most of their advantages, while minimizing their potentially dangerous impact on voters’ decisions.
The second paper („La revocatoria de mandato a nivel subnacional en Argentina: normativa y casos”) concerns the institution of recall (revocatoria de mandato) in Argentina. In a broad analysis of this interesting institution of direct democracy, the authors point out that in Argentina it occurs only at the local level and there is no legal regulation in the national constitution. The consequence is the multitude and variety of its forms. This makes it difficult to develop a comparative analysis. The presented article is the first of its kind, a detailed elaboration of this topic in literature. Unfortunately, the authors’ conclusions are not very optimistic. The variety of solutions used in re-call legal regulations applied in individual regions of Argentina, and the lack of regulation in the national constitution, makes it difficult to develop model solutions that could affect the creation of optimal regulation. As a result, reservations can be raised at individual solutions, which facilitates the task of persons performing public functions who have undergone the re-call procedure. The authors present cases of effective blocking of such a procedure by courts on the basis of an allegation of incompatibility of its legal basis with higher-order files. In some regions of Argentina, it is also possible to launch a re-call procedure at the initiative of politicians, and not (only) citizens. Ultimately, these facts significantly undermine the importance of re-call as an institution of direct democracy and a tool of civic control over those in power. This makes it possible to file allegations against individual legal solutions, which is sometimes used by persons performing public functions and subjected to the re-call procedure to avoid liability. The authors present cases of effective blocking of such a procedure by courts on the basis of an alleged unconstitutionality of its legal basis. The authors also present examples of legal regulations which, due to too high formal requirements, make recall very difficult, if at all realistic. In some regions of Argentina, it is also possible to start the re-call procedure at the initiative of politicians, not (only) citizens. Ultimately, these facts significantly undermine the importance of re-call in Argentina as an institution of direct democracy and a tool of civic control over those in power.
In the latest issue of „REVUE DU DROIT PUBLIC” (No. 1/2020) an extremely interesting article („Le statut juridique et patrimonial des tertres funéraires impériaux au Japon„) regarding the complex heritage of imperial mausoleums in Japan. As the author himself states – the topic combines issues in the humanities and social sciences, history and anthropology of religion, philology, public law and archeology.
On July 6, 2019, UNESCO decided to classify all Mozu-Furuichi necropolises as World Heritage: 49 kofuns (funeral mounds), including 29 imperial graves and burials, thus joining the twenty-two Japanese places already distinguished by this international organization. The author analyzes numerous legal aspects of the problem – from complicated ownership or administrative issues to constitutional ones. The necropolis is guarded by the Imperial House, the only hereditary institution of Japanese constitutional law, through the government agency of the Imperial House, subordinated after 1945 to the Prime Minister of Japan. Critics consider it to be a reincarnation of the former imperial Ministry of the Imperial House. The agency’s activities are financed from the state budget. Imperial necropolises are a very strong symbol of Japan’s identity and continuity of its history, but also a strong religious symbol – which for years has created a very delicate and ambiguous situation, especially in the aspect of the post-war democratization process of Japan and breaking with the imperial past, but also on the basis of the constitutional principle of state separation from religion. The article shows many interesting aspects of this problem.
How can the authorities exert an effective influence on media activities, strengthening broadcasters and newspapers favorable to them (or inclining them to such favor), while marginalizing, and even collapsing, those media which critically assess the government policy? This question, on the example of Hungary, is answered by the authors of the article „State advertising as an instrument of transformation of the media market in Hungary” in the latest issue of „EAST EUROPEAN POLITICS” (Volume 36, Issue 1). It turns out that advertisements commissioned to selected media by state institutions and state-owned companies, as well as companies belonging to people associated with the authorities, are a very effective tool. At the same time – the government and its allies do not buy advertising in the media at all, which presents a message critical of the authorities (or supports the political opposition). Importantly, the criterion for choosing a medium (newspaper, television, internet portal or radio) is purely political. The coverage of the electronic medium and the circulation of the magazine are irrelevant. The Hungarian media market already reflects the effects of this practice.
Before the final of this edition of the review occurs – I will write briefly about two articles about the elections – from two other magazines:
The authors of the article „Who votes for new parties? Economic voting, political ideology and populist attitudes ” in the latest edition of „WEST EUROPEAN POLITICS” (volume 43, 2020) are considering (on the example of the electoral achievements of two Spanish parties – Ciudadanos and Podemos) what are the reasons why voters vote for new parties arising in the conditions of the economic crisis. It turns out that economic issues are definitely overrated and are not the only reason for the support given to „new parties” as an alternative to the „old parties” which are considered responsible for the economic crisis. An important factor that significantly affects the election result are the populist views of voters. New parties – regardless of the political direction of their program (right-wing or left-wing) can count on the votes of voters who identify with populist views, such as the belief that society is divided into decent, ordinary people and degenerate, corrupt elites (the latter identified often with „old parties”). The authors stipulate that their studies covered only one country and a short period of time and encourage other authors to continue their studies.
In February edition of „LEGISLATIVE STUDIES QUARTERLY” (volume 45, issue 1) another text devoted to citizens’ election preferences. The authors of the article „Class War in the Voting Booth: Bias Against High-Income Congressional Candidates” argue that American voters in Congress elections take into account how much money candidates earn. An interesting experiment consisted of voters’ assessment of candidates belonging to three groups – with an undetermined annual income, an income of USD 75,000 and USD 3 million. On the one hand, almost all respondents said that $ 3 million earners are much more intelligent than candidates whose income has not been provided. On the other hand, many respondents rated those earning $ 3 million as less honest, less caring citizens, and less able to represent voters than other candidates. As a result – many said that they would not vote for a candidate who earns $ 3 million.
Finally, the paper „Mexico 2018: An Opportunity for Popular Constitutionalism” from the latest issue of „MEXICAN LAW REVIEW” (Volume XII, Number 2), which I consider to be the most interesting of the whole episode and deserves the most accurate reading. I especially recommend it to Polish readers, but also to readers from countries that have changed course from liberal constitutionalism to illiberal, or even authoritarian, constitutionalism. I read the text twice and each time I found something worthy of attention and reflection. The author, a Mexican constitutionalist and theoretician, describes the path in a partly opposite direction – i.e. from authoritarianism back to democratic constitutionalism, although not liberal (which he criticizes) but popular. This path was taken by Mexico in 2018 and the author clearly wants this interesting experiment to succeed. At the beginning of the paper we get an accurate, though short, description of the process of gradual departure from liberal constitutionalism to authoritarianism on the example of Mexico. The description is very universal and allows one to create a model description. Authoritarianism is born and can function without a formal constitutional change, under the conditions of the liberal constitution. First, the authorities begin to make its „innovative” interpretation. The next stage is the adoption of seemingly small amendments generally made very quickly (in accordance with the formal procedure, but contrary to the standards of the democratic lawmaking process, which should take place openly, without haste and involving a wide range of stakeholders) and announced as a change in interest (for good) of the state. The changes often concern the catalog of human rights and are advertised as serving the benefit of the most discriminated sections of society. The rulers operate within the formal framework of the liberal constitution, but apply its interpretation strictly serving their interests, often and purposefully – selective and fragmentary. Importantly, they are convinced of the need for self-limiting power, but on the contrary – they believe in their right to benefit from the acquired power. At the same time, public justifications for the authorities’ decisions are based primarily on emotions, and only additionally (or not at all) on rational premises. According to the author – if I read him correctly – the way to restore the state to normal is not to return to liberal constitutionalism, which is always elite, depending on the opinions of pro-government experts and technocrats’ decisions. Such a return, even if it occurs – will only be short-lived. The return of authoritarian practices will only be a matter of time. The right solution is a turn towards popular constitutionalism providing for broad involvement of citizens in the debate on the constitution, its interpretation and application, including decisions of courts and tribunals, decisions of the executive and of course – decisions of the legislative authority. Citizens’ statements and interpretations may and will probably be partly wrong – but so are the decisions of judges, ministers or parliaments. It is important that from the beginning the new system was created with the widest possible and central participation of citizens, numerous debates and deliberations. Only in this way can citizens take responsibility for the state and its constitution (their own state and their own constitution), constituting the best antidote or vaccine against authoritarian inclinations that potentially every authority has. The author assigns a special role to scholars, including constitutional lawyers, who should take an active part in legal and constitutional education of society.
