Despite extensive comparative research on the relationship between government and courts, the independence and administration of local judiciaries remain understudied. Is a decentralized system—where local governments appoint judges and finance court budgets—more conducive to court autonomy than a centralized system that allows higher-level governments to control local judiciaries? We examine a reform in China that gradually recentralizes control over local courts. Using a difference-in-differences design with a unique dataset of lawsuits from listed firms (2012–2018), we find that recentralization diminishes local officials’ ability to interfere with court decision-making and reduces advantages for local litigants. These results suggest that recentralization can help insulate courts from government influence and enhance judicial independence under certain conditions.
The problem with police is not that they are fascist pigs but that our country is ruled by majoritarian pigs. Ta-Nehisi Coates To change the police without changing the police role in society is as futile as the labors of Sisyphus. John van Maanen This question is, I will argue, of considerable importance to political philosophy, because it exposes a tension in the liberal project as a whole. It has, unfortunately, been subject to relative neglect; there has until recently been very little philosophical or normative literature on policing, much less the policing of minorities.3 There are two reasons for this, both of them based ultimately on the perception that the problem is theoretically straightforward, and so does not raise any philosophically difficult questions.4 With respect to policing in general, many political philosophers appear to believe that the police are uninteresting, because they serve the purely instrumental role of enforcing statutory law. And with respect to minorities, widespread acceptance of the fascist pig theory leads to the perception that the problem is also normatively straightforward. If tensions between police and minorities are caused by the police being racist, then the solution is obviously for the police to become less racist. These two views, when combined, generate a highly simplistic account of the problem of policing minorities.5 It suggests that, since the police are there to enforce the law, all they need to do is enforce the law in a non-discriminatory way, treating all citizens equally, and the problem should go away. The argument, however, rests on a false premise, since the police do a great deal more than simply enforce the law, and it is primarily these other activities that give rise to problems. My preliminary contention in this article will be that both of the underlying theories about policing are false or misleading. Obviously, the police do enforce the law, but as several decades of work in the sociology of policing have shown, this is not all that they do, and, indeed, this does not even add up to a substantial fraction of what they do. And equally obviously, there are some police who are racist, both consciously and subconsciously, but this goes only part of the way to explaining the seriousness of the difficulties that practically every major police force experiences in its relations with particular a great deal of the for the in in on the subject in the that the on or has the of in many to the of the I will argue, it is to that policing is The is that who are to a subject to of and of that of the they I to this, Ta-Nehisi as the theory of to the that it a only on statutory law, is to this problem is the policing of minorities a in liberal To the in highly even when the is society is and the in to be are to society The article as I by two very normative of policing, about the of police The I to as the of policing, rests on the that police should be to law is to in and who have the to this, I will what I to as the of policing, the of statutory law as with of the The of the on this the of law to a of the of to The as a of policing is what the widespread for more as a to It is not difficult to however, that this a of normative difficulties in a The tension the on the part of the liberal to a on the of force only that a of The is that the police are subject to the for that the of law. this tension be by a and the activities of the police to law I will the by several reasons I this be I do not have any to to the underlying I do, however, that a of the of the problem is has been the subject of a great deal of in has of policing as not in the but many as This has many of is to the the police to as and in them with to normative The of the a of the of the problem and the to police are being to to in the in the they the to that they what the police do of the or it is the police that are they that statutory law a fraction of what the of the this what the police do, there any about the of is that they are of the who are to It is also liberal that this to force is or but also and law, and and in some law. The however, is to that because the of force by police is by law, it is only to enforce the law that its of is to that of this is simply not the as police the that is to them by statutory law to a of This and and, and enforcing the of This of policing is obviously in tension with the normative of police The is to theories of political that the of law as the only for the of force by of the This a of philosophical but a in theories of law, a between and law, of the as a of that the a of that them To that are is to that they are to in with the law, and the of in the of the of force by of the is only when it is to with a of the police are as being for these only be by the and is by the The of the police is to and who are of the law, them to the for the police the of the the the of law is then to the law the of and, in the who are in the of This way of about rise to what be as a theory of policing, on the that it the of force by police to of the This that the police should have the so as the is not in and is not of some other It suggests that, some law to the are to to the to any to or even to there is some between these and the of on this of as the to will to or be even to as they have not any and are any of a to a theory of policing has been by of the become when citizens of that country to a a police to to or to or in on the that activities are not in of any The is however, by the that in in this of police is widespread have to it by have the of all that is to the will of the other have the by a of law the a in some it is to or to a police to to or to and also be in that any to And the of to a police of be to of The is the of in the of is by the of practically all of in in citizens are subject to this of the of is in because the of these is not to the in but to police the to of the in to The for our is that the of these the theory of police it the that is some law, any of police be as of the law. And the to the of the underlying is not to who the police do in some of statutory law, with respect to they also the that is them by statutory law to do so with the and of is of the reasons that the to on police by that the of police there are of this that police but to that, it is to the of policing is not more philosophers of law and as they when to the of and it is difficult not to be by the of these in of that the of should be in of a of that of a The of is that they are all some more obviously than This is because the that are by have a by of the by this of both and for a become more with and of this, in the of and are for only the in more of have on this do not a but of a This them the of being purely the that they are by all other with law, is a of and law is not the that it is since all are but that it is the of the the of is and based on of The by this a of of the by and the a great deal of the for both in the as as respect for the of law. There is a of in some of society a of by widespread of and The of is to not only or of but also the and in this are to of the work that is in this The of and the of the The law, by is the of the And because it is so its This perception of the of the that are by the with respect to the law, the of the is a of to and and of is in the but it a only with a of the this has its purely then of by the The is to the fraction of who be without to the this the police be as of who are to when the of the are This them the of law but it also them in a of activities as or This is the by who the of policing, the and relations of between of and, in part for that a great deal of about the of police I to this as not only because it of but also because it is in tension with some of the of political the has been by its to force in the has been by a much more on the part of the to a on the of force in This by John who that the of the the of the that the to the of force in a And even this in the it not become in until the of the to that, the by the as a to the of in the the of as the The not to this of until the a that in with the of this of should with the rise of policing is since the only to it has the not to but to a is a has so to all This that when the of and appear to the of that the are of the will be to fraction of is not but in to a the police are subject to two there are and other who that the police enforce there are of who as a of to in of This is what for the that the the of statutory law, also to this police in the between the and other of in the to have two in they without or there the of and the of and there the the of the the of the and the of and to the of and of in part because the as the for to be as the only of This to a of the importance of statutory law, the of the to the of has been The police however, to its as police a of The that the police enforce not but also the and so it is to be about its in the simply to the of the citizens the of what be the that are to and, in when they the of what be without to they the the this of a between a and that is to of to in a that has up the to a of in the to a who is to to deal with a who is a the of police the police are to force in these they to statutory law in to that of the that the they are or the reasons for they are are to that is in any a policing up of that is of the reasons that police all the of are only police is in by of the is to the that in of force has of by who for the The to or the of has a on other much of simply when it in force to be as a there is a about policing in the that, because there is substantial between the by police and the be by the The problem is not that and have the to It is also that the of to force a of in that is difficult to The of and is that it go on some however, and be citizens police in to deal with that for police is for that the police are in all of the underlying of the of these of the the police in of with the that they the the of and the of the police to enforce statutory law, on the of the underlying This is a major in the work of who that of police enforce when the of it has This is not because police on of the to but also because the of are the The are the on the of and who simply by the and of the police are in to and as the police the to with the law way the part of the is by the that rests the of the the police to to the and of the by in that are to of or that the of in these force to the that are to This is the of policing because the is to a is that be by the is or it what of the of in the of of a or a is And these are but are by police to up some other to but not to the of the The that some are the law by in a practically about what the police should it a a a of it the in the it a of These are very when it to the of they or are they And are they they it for or in a way that for the or with other of the And is should the be and the to should some or all be And to the should they be or as it is is a to the and of the by the is simply a on the part of the other to them that and in the are not being is the role that of in police police are more to and to when the to a less as they are more to when they The of the a to to and to to and so is by of a or the police on to who the to the The is, of being for all between the of and and police also on who are as the of of the and and, until this it is not difficult to the of policing tension with the of political The of who is and who is not a of highly are based on the law in a liberal to on a of of society are not subject to any when it to the are all with these in is than work is than is than is than and in a of is than up in the up is than all and so a police is to a particular is a who to have in the the or a who to be with more it is these the of and are to the John in that who in a and does so in a way that on should be both and The part of this has a great deal more than the the law has become a great deal less about many of the that and even have And the police are to to enforce both and to enforce to a considerable to the for of This of that are not only in but particular about the of the that not be in a liberal The what be of as the of the police and the of tension with the of the liberal This of the of policing and the tensions that it in the of a liberal society obviously a of normative and I to however, in to this rise to when it to the policing of The of that is of is any that the in of or or are not as of but they as because they are with the many a of has or these by or that the of between and to and a liberal not with respect to and but with respect to and of highly policing, in the that the police to the that are by the a of that some very considerable that citizens the police to some then so because of the way that police been The of a of that is to with police and than a for police but police are citizens by by widespread police that they are being by the of the a of police that who in or of respect by the for the of the of of by police for and a police that or with for political or this of police up in a way that a to a with a by in a with of the they a is of this, there is considerable in the literature about it is to the of the it is not to what or is to and the of to what are police or the in the of and of are as to there is the that more and not do much to police relations with of the This has a great deal of on the or that to this in to is to without is to they with respect to minorities that are not a of the or of the this it is not difficult to of but in relations and the of minorities in a liberal society to the of policing even in the of This has been in the with a of that the to the I will the highly account of the that is the of policing it is to by a society between two of the the of the there is need to any of or between the or any or of both are by the of law, there is a police and are the both this it is not difficult to the our it does not the is on the police only that when of the to the that a between the of the and that of the police this there is a that to the of policing of the the of to the police do not of law, but the that police in that the the particular difficulties when these are by of a of the that they not what the not be to what is and what is not when a is of and not be with and they will be to who is and who is as a of they up treating both and of the of this with police and the to to relations with the that there is with its and so many by the of police on and even treating and citizens as they These widespread of police the that the being the police also have when with who is a and who is not in even need to a in to the of all police the it difficult to the because they are to highly in they of leads to a of in the of the police about to be to with in the and to the of or with force or in that do not the that the police are not of the of the but a force that of to its This leads to of the of the in leads to more as citizens become less to in with of leads the police to more up the more to and to police up more because of to force in to The of the police has a on both and The of the is not because of a to the to the of the to they than with respect to of that them to with a of the is of a that the normative of the police the that serve as a a great deal of is with and so a in the of the police to in the of the police it more difficult to who do by it for the police to the of has on the of does have a a a in police to in by And the of without the perception of a as a of police to as it have for policing is to what is to as the of the in with a with will have to a a the and so a with by many of these will be and so the will be more to the a the for policing, not but also by the of the to its The on the that are less are to or they are to when they in be in this because of the way that it citizens in the for policing police more to to the they This the that majoritarian policing, than the to and the of have the of the of the on the This for the of being both and the police are a the to have much of a on This of rise to the perception the that the of the police is to its not to or It in the that police the the that the of they and so this the of policing to My in this account is to a even highly there are that the of it should be are particular to the and so should be not to this widespread in the both the of and leads police to much more of police on in of the and the of police it very difficult to and of these be simply by other There however, other that be in and are to that they The is obviously of the or minorities, in as as a of for This to the of of the police in the of in to have to It also to in as of to the as a and be to between its and part to and are also than the a that is with more and is of a of between all of these and it is as a the that the to in of with generate for police both by the of the and by to This also for police and the that police will in a more This to some on minorities in many have become subject to The is, in a since are to a that, and to My has been to that even some of these a of liberal a tension between the that police are subject to for law and they for is not to that have with the policing of minorities, that these are of a many policing is and so there is less of a between the way that minorities and are If the problem of relations in liberal this caused ultimately by the that the police role activities that the of law is what the need for in the of many will that the solution is for the police to in these a it that the police are and in that statutory If it that these activities are also for the of policing that in relations with minorities, then that to the for It is difficult not to be by the of this or to the about being in a way that is less than to and And who have some with police the that police should to law is as the the problem a between a and normative and a highly The is that in the has in a of policing that the The question then this a of or it a on of The in other is should be to based on our to a normative or there is in these should be to to the police role is by to as a of The to the is that it the to this in it to a of is but when add up to a be of the of policing If the to have the law as without the of the then the law have to be a great deal more and need to be up to have the of of need to be and are not need to be it is that be that the police that are not to law of these are about the of be to If they then the to of the it does not any of the If they are not so then the does a but a highly of much be without all of this, that the to of the of and to law This is to have the It is a in the literature that the police do in a is to to This is by to a If this they on to the The of policing police in way, both by and by them to the of force when it is not some law has been police have to give to or to to And these serve role in is a is of or It is difficult to this not in to there is between and of as as between the and the the and of the police role to in and more more the more police are and without being to the more it is that they will or the activities that police it is to in that the police little to this to what they to as police is, law in these activities primarily because of the and If the police to these it much more difficult to citizens in what to as that is, of policing be to give rise not only to of but also for in many the police and are or do a in and even of the the of a in the of to the of the by the on the of force by the is not that be for it be If the of policing to law a of the be that other in to The problem with the to policing is that it police to in the of of police that policing, in for citizens to then and to the And any to this, to with citizens to the of a the police with they should to the This of a for the of that between that is or the police until a has been There is some of the police role to law as by the also the of in There is that the police to be to that they be to this, without being of that And it is not that the of law is to police of the law in that is as in some in with respect to law, as a way of but all suggests that this of police this it is to in that perception of is primarily to of with police they they they The of the law be by the perception of in its My is that much of the for is a in the police of the the to a of all policing is the of a more to the of than simply the And is purely practically every this is with the it is difficult to the any to that with by the of the by the theory to on and to in both on the part of police and in society These that a to policing does not much of a for the that in with To the that the is it is because of of the police philosophers who the importance of for policing, the has been to a to both and have that police should be subject to the of in the way that they as I have to in the is not that be without to a particular of and in in a way as to the of so that citizens are not to in of This a on of the liberal is to To police the by of and other of when what of a they are liberal appear to based on of police should in all with the it is difficult to they a of liberal without it is to the law to a police in to law, and there be that will this in a society that they will policing to the of the as it more the of by police on the of who the of This suggests that the by and between and is in that the problem of policing be by the of liberal the of with respect to of then it have been there are police and that have some of in and so of them the underlying tension in liberal and so they be as to the are by in a way that they be in every The and to the problem of of the the is to a police force for with the that is, a for have been to police to or police on the by these police should not be they problem when it to perception of the of the This is on in because of the of in that they and of these the only with that have a of with of in its a in by the policing is not and so police have to the of and of The when it to the of majoritarian policing, is to a much more in to the need for policing, and in to the on police to in It is for that with a do not policing, in part because they and so are to without or major to for for also of the than the It should be however, that the of is in that of both the of to in and problem
Decentralized court finance and personnel management practices have been criticized for breeding extra-judicial interventions and corruption in China. Determined to advance law-based governance and to constrain recalcitrant local leaders, the Chinese leadership under Xi Jinping in 2014 rolled out reforms to centralize local court finance to the provincial level with the aim to sever local courts from local influence. Despite high expectations, implementation is at best partial. Close to half of all provinces have not accomplished the required changes, and more than half of all court expenditure continues, to date, to remain reliant upon local governments. The direct reason is that provincial governments lack sufficient and sustainable fiscal capacity to finance the operation of local courts without central assistance. Different interests between major stakeholders, namely the courts and the fiscal bureaus, also add to coordination problems and difficulties in reform implementation, in particular the tension between fiscal adequacy pursued by the judiciary and fiscal management efficiency stressed by finance bureaus.
Dor Bitan, Ran Canetti, Shafi Goldwasser, Rebecca Wexler
The use of hidden investigative software to collect evidence of crimes presents courts with a recurring dilemma: On the one hand, there is often clear public interest in keeping the software hidden to preserve its effectiveness in fighting crimes. On the other hand, criminal defendants have rights to inspect and challenge the full evidence against them, including law enforcement's investigative methods. In fact, in the U.S. adversarial legal system, the defendant's rights to scrutinize the government's tools are crucial to the truth-seeking process and to keeping law enforcement conduct lawful and constitutional. Presently, courts balance these conflicting interests on a case-by-case basis through evidentiary privilege law, often voicing their frustration with the challenging dilemma they face. We demonstrate how judicious use of a sophisticated cryptographic tool called Zero Knowledge Proofs (ZKPs) could help to mitigate this dilemma: Based on actual court cases where evidence was collected using a modified version of a peer-to-peer software, we demonstrate how law enforcement could, in these cases, augment their investigative software with a ZKP-based mechanism that would allow them to later provide full responses to challenges made by a defense expert -- and allow a defense expert to independently verify law enforcement claims -- while keeping the software hidden. We demonstrate the technical feasibility of our mechanism via a proof-of-concept implementation. We also propose legal analysis that justifies its use, discusses its merits, and considers the legal implications that the very existence of such a mechanism might have, even in cases where it has not been used. Our proof-of-concept may also extend to other verification dilemmas in the legal landscape.
The emergence of an international judicial system is often perceived as a cornerstone in the process of building a ‘global’ system of governance.1 Since the end of the Cold War, we have witnessed the rapid proliferation of international courts and tribunals (hereinafter ICs) and the progressive expansion of their scope of jurisdiction to areas as diverse as trade, the law of the sea, human rights, and international crimes (Katzenstein, 2014; Kingsbury, 2012). These ‘new-style’ ICs and quasi-judicial bodies (Alter, 2014, p. 68) allow for wider access from potential litigants, and they are more autonomous than their predecessors, operating often on a transnational rather than inter-state model (Keohane et al., 2000). In doing so, they transcend their function of mere dispute settlement mechanisms to become law making actors in their own right, with significant discretion to interpret international law (Besson, 2014, pp. 419–428). This development has been hailed as a major shift from an international system based on politics and power toward one governed by shared rules and principles under a genuine ‘global rule of law’. Cosmopolitan-minded scholars and advocates, who dispute the place that territorial borders and national identities should have in delimiting our fundamental rights and allocating public goods, rejoice about the gradual collapse of the divides between the domestic and the international. Yet with the growing independence and expansion of the mandate of international judicial systems, these mechanisms have attracted attention as to their legitimacy and accountability in relation to different stakeholders. The international judiciary is no longer seen as “the least dangerous branch.”2 For some critics, accepting the jurisdiction of ICs entails ceding national sovereignty to ‘foreign’ judicial powers, which have an increasing capacity to create new law. For others, the international judiciary in the absence of a global democratic constituency represents another imposition of Western values that remain alien to other cultures. Moreover, in the current political climate, institutions of global governance, including ICs, are confronted by growing reactionary populist movements that pit democracy against internationalism. To these movements, the turn toward transnational forms of governance, legality and adjudication is perceived as a democratic dysfunction and belittled as harmful to the preservation of the identity and autonomy of a (monolithic and nationalistic) view of the polity. Regional and international human rights bodies, and the International Criminal Court (ICC), are particular targets, insofar as they typically address how states should treat individuals on their own territory. They also tend to protect marginalized minorities against the majority's conception of the identity and values of the polity, and seek to impose rule of law constraints on the executive and legislative branches that often claim democratic support. Yet other ICs—especially in the area of trade—have also become the target of populist and sovereigntist leaders as they are seen to impose unjustified constraints on desired domestic policies. In light of such diverging approaches, it becomes ever more crucial to inquire into the foundations of international courts' legitimacy. To this end, a number of scholars have called for a ‘democratic’ re-conceptualization of the international judiciary (Bogdandy & Venzke, 2014; Grossman, 2013). This has generated attention to a broad range of elements, from appointment processes to procedural rules in order to guarantee judicial independence but also accountability to different stakeholders (Grossman, 2013; Pérez, 2017), typically with a focus on specific types of courts (Føllesdal et al., 2014; Hayashi & Bailliet, 2017; Hennette-Vauchez, 2015). Yet, as I will argue, by reducing the so-called ‘legitimacy deficit’ to a problem of institutional factors and representation of ‘national’ constituencies, we might be overlooking a deeper dimension of the ‘diversity challenge’—one that emerges out of the need for and The this by an of the legitimacy of ICs that to some of the in the populist of ICs, in particular the between democracy and internationalism. The from human rights courts and international as these are the of as I seek to is also to other ICs with domestic political is the for dispute settlement mechanisms in international and law and to a also international such as the International Court of I by in more the of democracy and for the legitimacy of ICs and with the of which has been a an global and in a of populist movements ICs in more democratic shared and a model of domestic and international Yet, as in such for a turn toward a ‘democratic’ model of international adjudication have an of the democratic accountability of domestic courts in the for the they This is it to the of the judiciary with to and the representation of has been in some and the of such of a particular domestic to some of the toward the the advocates, and in particular a of the of might and that might a of in international as a for the legitimacy of courts and increasing the of judicial by a more of The emergence of political the and forms of governance, as as the and power of In the of a gradual of the ICs transcend their function as a mere dispute settlement to become more than in other we these of the view of sovereignty in the of the international of human domestic a in the scope of rights to their systems, legislative in this area are often to and the one the to and the to which they are is the for be in but the be to individuals who to to the for this least of as a fundamental of the other the capacity of to their the international has For to a in the of a but to against the and domestic courts their to the Court of This might the in order to the of fundamental rights in the of such as the to as against of in their ICs interpret an of international in an a mere function of dispute and public in a that is to a representation a significant of discretion in the and international law in order to They in and they rights in a international the international and the domestic the of The of this are international human rights courts in rights bodies on on tribunals impose on to with of legitimacy have in the of these To the that ICs are the of international they to the that domestic courts for legitimacy to the of and typically between such a conception and a the factors that the of actors the and of & be as they are the of a process of and with political this on of these of legitimacy are For the for about the legitimacy of ICs their as of in the of and the other an legitimacy is this and and in and domestic For the legitimacy of the states and and and individuals have to this as against their This a significant for the and and has to their from in a is more the international than as ICs to in a in order to actors to with their states their and of public as domestic might be the system as with other international ICs they are as by democratic & p. insofar as the international judiciary it becomes more from a democratic that who are by such system that they are their own p. In the the democratic legitimacy of ICs is based on to to their Moreover, international adjudication is of as to to on this are to the in which to judicial is and to of procedural the the it in a and the in & such an democratic for the of public by the international judiciary is in with the new of ICs as bodies with significant In the for the legitimacy of domestic be to the international as the a and which a democratic for claim to These about legitimacy have become more in the current of populist that to democratic to and international The against human rights and global of this also entails a against international courts and quasi-judicial For in and a number of public have to from the and to the of sovereignty to a The the on and other the of against and has also been as to the of political as a against the sovereignty of a democratic In order to these legitimacy have to ICs in democratic the International scholars the that national and transnational as the should as a for of ICs (Bogdandy & Venzke, 2014; Grossman, 2013). This the democratic which tend to become and the institutional of ICs, and their need for processes of political The of jurisdiction by ICs is in the of a more of public of legitimacy to be in this toward is an increasing focus on of accountability and on the need to the independence of ICs and other bodies with a their power and it with the of The of a is typically to the of the in of international law and to for in a conception of In for has to the of the the of domestic institutions that be the of the of seek to by international to domestic and the legitimacy of ICs & 2014; to are in a number of For in the mandate of the entails that and to and should be by the as a a is to and In the human rights the has on the of more in the of the from states & in the of the Court of have with in to that domestic are to human rights and the rule of law p. for have been with to & In from this the legitimacy of ICs insofar as they are perceived as with and domestic of democratic is perceived as a they rather than domestic a the autonomy of the international system is in of an model of public that claim to legitimacy in this is in their but ICs with states in a global rule of law. that this conception on the relation of ICs with domestic and on the of et al., et al., 2014; Hayashi & Bailliet, Yet these and other to institutional mechanisms to ICs to domestic processes overlooking a deeper legitimacy to the of and of have attention in the of international they are crucial courts are to as of marginalized of judicial and a for the of by courts The conception of public accountability is based on the of but the of minorities and identity and domestic The that to adjudication legitimacy judicial processes are as a to protect the rights of is a that such and to divides and of the In the current of growing populist democratic and against rights, this is For one by democracy against the values in human rights that are in as constraints on This conception of rights as on sovereignty is in the of a of “the leaders typically a politics of to and against that are as to and In this conception of democracy as the against rights often place often by an of public including are into executive are is by on of and is and and on The of a model of in diverse states a of this about to to the need of new of and rights as rights a number of some of in order to and other rights of and national Yet and the of the between the and in a of and to global have as a to such and human rights of and to other 2014; & In of such as the current global to that on international human rights The claim is that are between human rights and such as the of from In the of this the to a view of the based values to that are perceived as of of political to impose to the of human rights, the of minorities in the of national minorities their and rights by an political climate, courts and to protect and forms of transnational with political against states that to protect human for the international judicial by to protect their from International human rights law is in by the and other ICs domestic are for to and of rights and that to the are out in these international judicial International has become an for to The for has a of the of for the and identity of these as of their to This is for that seek for human rights by but to public legislative and of of and rights are often of global human rights that against of the human rights of in minorities et al., to with minorities also in other the with to the crimes in in and of are for in on a international are an in with of particular to Yet, in this to domestic public that remain an between rights the and the identity of the which are as these to the is the of international adjudication in delimiting the between and forms of to remain in the model which in the of the international and in the public accountability of the international is a need of the legitimacy of international adjudication in a that of and ICs are as institutions of global governance, of legitimacy should a the the need for a more the model of democracy to the of domestic and to for the power of ICs as a of to the foundations of the international rule of law. 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Gardbaum’s comparative political process theory (CPPT) arrives at an odd juncture in world history. Positing a role for courts to remedy representative democracy’s defects, especially given the ascendance of authoritarian populism, it was completed just before the global COVID-19 pandemic hit and places courts center-stage just when they have suddenly receded into the background. Exceptions include the US Supreme Court’s refusal to extend the deadline for absentee ballots in the Wisconsin presidential primary on April 7, 2020—decried by Justice Bader Ginsburg as generating “massive disenfranchisement.”1 Even before the pandemic, it appeared increasingly untenable to cleave to a view of courts as strong bulwarks for threatened democratic systems. A growing literature frames the US Supreme Court as degrading democracy due to the substance of its decisions, not the mere fact that it enjoys constitutional supremacy.2 The Constitutional Tribunal has been captured and pressed into service as a “government enabler” in Poland.3 The Israeli government is said to have retained the “judicial revolution” empowering the courts while rolling back its liberal dimensions.4 The Indian Supreme Court has appeared more interested in self-preservation than guarding the democratic system threatened by Modi, and has undermined the functioning of parliament.5 It is a profoundly different global reality compared to just a decade ago, when the international juggernaut of juristocracy still seemed unstoppable. We are potentially entering the era of “post-juristocracy,” where courts’ decades-long accretion of governance power—and the accompanying obsession with, and faith in, courts—is waning. While courts remain a core preoccupation, many in the global comparative constitutional law community seemed to be moving on to new obsessions, such as political parties, citizens’ assemblies, and other deliberative innovations.6 Yet, Gardbaum’s theory remains acutely relevant. The pandemic has laid barer than ever deficiencies in governance worldwide and re-emphasized the centrality of effective political processes to what Schmitter calls “real-existing democracy.”7 As recent high-profile cases attest, courts play an irreplaceable role in supporting the role of other systemic actors—not least the UK Supreme Court’s stunning riposte to the government’s prorogation of Parliament.8 Gardbaum’s theory presents a laudable project to go beyond zero-sum, excessively abstracted debates on judicial review’s democratic legitimacy, and a patchwork of single-country analyses, by crafting a framework for understanding how courts worldwide can offer a targeted democracy-supporting role. This article responds to Gardbaum’s theory on the theoretical and empirical planes. Section 2 addresses how CPPT relates to existing theories not addressed in his account. Section 3 addresses contextual factors that complicate, frustrate, and limit the application of his theory. The main argument is that CPPT can be more fully integrated with existing frameworks, and that the assumed universality of its application should be reconsidered against today’s global reality. In constructing his theory Gardbaum draws, beyond Ely, on the work of theorists such as Sam Issacharoff, but does not engage with a range of relevant frameworks.9 This section places his account in a fuller context, drawing out its connections and resonances with existing theories. First, a brief summary. Gardbaum’s theory builds on Ely’s “participation-oriented, representation-reinforcing” approach to judicial review across three dimensions: (i) expanding Ely’s binary focus on incumbents’ suppression of democratic participation and systematic disempowerment of minorities to encompass additional malfunctions, including legislative failure to hold government accountable, executive capture of independent institutions, special interests’ capture of the political process, and outright dysfunction of one or multiple institutions; (ii) shifting the focus from outputs (especially legislation) to process; and (iii) seeking a more universal theory than Ely’s “self-consciously parochial” approach. For Gardbaum, like Ely, policing against erosion and distortion of the political process cannot be left to the elected branches alone, as vividly underscored in today’s era of “abusive constitutionalism” where the primary targets of errant executives are the structures of democratic government, rather than rights, and where policing legislation alone will leave much dysfunction and manipulation unremedied. CPPT seeks to provide a framework for grouping together issues that may otherwise not be analyzed as variants of the same problem, and a standard for when courts should intervene. For Gardbaum, courts should assist the democratic system to function “as it is supposed to,” support the functioning of other systemic actors and guard institutional pluralism, block attempts to stymie deliberation, contain and prevent manipulation (even if it cannot be fully remedied), and do so through a mix of mostly weak-form review, but also strong-form review when necessary: policing electoral processes and rules; lawmaking processes; mechanisms for executive accountability between elections; and rules and procedures of the executive and legislative branches, and the administrative state more widely. This departs from Gardbaum’s long-held position focused exclusively on weak-form review as the best universal option, allowing courts to adjudicate boldly and guard the coherence of the constitution without antagonizing the other branches, raising the risk of political attacks, and undermining the principle of judicial independence.10 The return to Ely’s theory, as well as moving past the longstanding US debate between interpretivists and non-interpretivists, serves to reanimate the well-worn debate hammered out in the context of long-established Western democracies, where the Waldronian and Dworkinian camps for and against strong judicial review (i.e. the ability to strike down legislation, and judicial supremacy more broadly) had argued to a stalemate by the early 2000s. Gardbaum’s theory also resonates with a parallel debate encompassing a broader suite of theories on judicial roles in young and Global South democracies which, as explained in Section 2, has increasing relevance to all democracies in the era of global “democratic decay.” This debate can be characterized as containing five principal, partially overlapping, arguments: Gardbaum’s “weak review” argument, discussed above, and what may be dubbed the “mirror,” “Global South,” “surrogate,” and “scaffolding” arguments.11 The “mirror” argument holds that constitutional courts in young democracies should approximate the role carried out by courts in mature democracies; playing an active part in democratic governance, but acting strategically to avoid addressing matters that will trench unduly upon other government branches’ sphere of action. For Sadurski and Ginsburg, discussing younger democracies in Europe and Asia, the main contribution courts can make is protecting rights,12 and constraining state authority.13 Ginsburg suggests caution is warranted regarding intervention “on core issues of the political process,” albeit in the context of extreme cases in Mongolia, South Korea, and Thailand concerning impeachment, the formation of government, and appointment of the prime minister.14 Daniel Bonilla Maldonado has argued that the jurisprudence of non-Western constitutional courts, including the Colombian and Indian apex courts’ assumption of more expansive governance functions across both substance and process, should be viewed as a legitimate “constitutionalism of the Global South” constructed in response to starkly different socio-political contexts and governance challenges—including political violence, high rates of poverty and inequality, cultural and religious diversity, and “consolidation of the rule of law”—which should not be discounted simply because it departs from the approaches taken by leading Western apex courts.15 The “surrogate” argument pushed this logic to the extreme, contending that courts could drive democratic development where the existing political party and wider political systems are unequal to the task. Scheppele described the stunningly assertive role of the Hungarian Constitutional Court in the 1990s as “democracy by judiciary.”16 The Court not only intervened strongly regarding outputs—striking down a third of all laws passed by parliament in its first six years, for instance—but also weighed heavily in the legislative process, especially by issuing advisory opinions during parliamentary deliberations and ordering the legislature to enact laws mandated by the Constitution.17 Approaching the “separation of powers as a contact sport,” the Court assumed an expansively interventionist role.18 The “scaffolding” argument adopts a much more targeted approach, focused on actively mitigating the worst deficiencies of young democracies and preventing elected organs from overwhelming the basic structure of democratic governance. For Issacharoff, in states such as South Africa, where the democratic transition leads to single-party dominance, the courts’ central role—which constitutes legitimate intervention in the political process—is protecting the “vitality of democratic competition for electoral office and the ability of the political process to dislodge incumbents”; to prevent the transition souring into a new autocracy through hobbling of the opposition, partisan capture of all state power, and control of elections and the media.19 Courts thereby shore up the “weakness of not only political institutions, but the ancillary civil-society participants in democratic life”—especially political parties.20 In the Latin American context, Gargarella’s concept of “democratic justice” has similarly argued for targeted judicial assertiveness, especially to counter excessive concentration of power through hyperpresidentialism.21 My own position aligns with the scaffolding argument, on the basis that it respects the principle of popular government, avoids the trap of overloading courts, provides a sense of core mission, and expects courage when fundamental democratic functioning is at stake—not merely staying within the political branches’ “tolerance levels.”22 More recently, David Prendergast has revisited Ely’s theory in arguing for a “suitably restrained” judicial approach to protecting any kind of democracy from populism, through specific, modulated, and often prophylactic intervention in political processes “to correct them when they have gone awry and to help prevent them going awry in the first place,” by policing the fairness of processes and procedures, and upholding institutional pluralism.23 Placed within this broader theoretical landscape, Gardbaum’s theory clearly pursues a scaffolding argument in its delineation of a sphere of robust judicial intervention without according courts uncabined discretion. However, he augments existing frameworks by providing a more granular theory of how targeted intervention may play out in practice, and the issues it would address. Gardbaum’s self-consciously global theory provides an illuminating analytical lens for a variety of states. It adds to our understanding of the UK Supreme Court’s reasoning in its prorogation judgment that judicial intervention “will not offend against . . . [but] be giving effect to the separation of powers.”24 It provides a clear framework for judicial protection of representative democracy in states still considered to enjoy good governance and independent courts—the Canadas, Germanies, and South Koreas of the world—as well as states in which, despite significant challenges, the democratic system has not degraded beyond targeted judicial intervention, such as South Africa. It may be instructive for states undergoing democratic transition, such as the Gambia, where both draft constitutions envisage a rather powerful supreme court.25 However, in the global climate of democratic decay, various factors complicate and limit CPPT’s universal application. Recall here that Waldron’s core argument against strong judicial review made a distinction between “well-functioning democracies” and other states. For Waldron, in the former—with adequately functioning representative and judicial organs, most officials and citizens committed to the idea of individual and minority rights, and “persisting, substantial and good faith disagreement” concerning the implications and meaning of such rights commitments—strong judicial review cannot be justified.26 In the latter, by implication, more extensive judicial action might be justified, suggesting the democratic legitimacy of judicial review, and its ambit, is context-sensitive. Of course, Waldron never specified what states counted as well functioning, but we could surmise his inner circle as comprising Global North democracies in North America and northern Europe, and perhaps states such as Japan and Costa Rica. The “parallel debate” on young and Global South democracies discussed in Section 2, while interesting from a comparative angle, was intuited to be of limited relevance to well-functioning democracies. The global phenomenon of democratic decay has significantly softened this dividing line. With many long-established democracies experiencing authoritarian populist leadership, dysfunctional governance, weakened parliaments, hyper-partisanship, sweeping negative transformation of the political-party system, and society-wide polarization, the parallel debate has become more broadly relevant.27 The pandemic has revealed this political dysfunction in its most alarming detail: Scheppele, for instance, has described the Trump administration as acting like the government of an “(almost) failed state.”28 However, this is not an argument for untrammeled expansion of judicial power. Indeed, even with the most independent, learned, perceptive, and strategically nimble court, the assumption of an overweening tutelary role could never be justified in democratic terms: indeed, arguments casting Brazil’s Supreme Court as a “moderating power” beyond the reach of any democratic control, as a response to the perceived failures of democratic politics, have been sharply criticized.29 Yet, even within the narrower confines of CPPT, it is contested that the current US Supreme Court could meet its apparent starting preconditions of independence, impartiality, and institutional legitimacy. Responding to the Kavanaugh nomination debacle, Epstein and Posner have offered that the Court, “[f]or the first time in living memory, . . . will be seen by the public as a party-dominated institution, one whose votes on controversial issues are essentially determined by the party affiliation of recent presidents.”30 Recent decisions have fueled the arguments of both the Court’s supporters and detractors: the landmark six-to-three judgment of June 15, confirming that the antidiscrimination protections of Title VII of the Civil Rights Act of 1964 apply to gay and transgender workers, can be argued as proof of its independence;31 while just two weeks later a judgment significantly freeing the President’s power to remove senior officials in the executive branch has raised serious fears.32 Many see the rot as much deeper than the Kavanaugh era, perceiving the Court as, not just a victim of authoritarian populist leaders, but itself an engine of democratic decay, having starkly degraded the structural functioning of the democratic system—including its watershed 2010 Citizens United decision on campaign financing and its weak response to gerrymandering.33 This view sees the present as merely a continuation, albeit intensified, of past practice—including the Court’s refusal to extend the deadline for absentee ballots in Wisconsin’s presidential primary in April 2020, which left citizens in the position of pitting their health and lives against exercising their democratic rights.34 Greenhouse described the decision as an exercise in “raw partisanship,”35 while Justice Bader Ginsburg’s dissent characterized the majority’s judgment as not only permitting “massive disenfranchisement” but endangering “the health of the Nation.”36 What might have happened with a stronger decision in line with CPPT? Had the Court extended the date for absentee ballots, raising the risk of a Republican loss and setting a precedent that could vastly transform the electorate for the November presidential elections, might it have unleashed serious political attacks—or even non-compliance? With increasing political pressure on courts, claims of absolute presidential power, and denial of the existence of any objective institution outside the realm of partisan contestation,37 we have strayed far from the “waspish civilities”38 of yesteryear, where (despite serious deficiencies in the democratic system) US governments could still be trusted to comply with rulings they bitterly opposed. Yet, it is not merely about this government. Perhaps more problematic is that CPPT tends to characterize problems as isolated, aberrant, or limited malfunctions, when the US political process as a whole faces multiple deeply rooted challenges arguably beyond judicial remedy. For instance, in response to the Supreme Court’s 2019 decision in Rucho v. Common Cause39 that partisan gerrymandering is “incompatible with democratic principles” but non-justiciable, Levinson argued that even adopting Justice Kagan’s (minority) solution would not have provided “a genuine cure for what ails us as a political system.” The only remedy would be for a democratic movement to “rise up” and push for a constitutional convention.40 Even this may be insufficient. Gardbaum’s framing of the 2017 tax law, for example, as an instance of “undue influence and corruption of the lawmaking process”41 elides the structural symbiosis of Americans for Prosperity (AFP) and the Republican Party, which blurs the division between the two, and leaves a form of “shadow party” in place, distorting the political process, which even constitutional reform would not address.42 That said, even if CPPT faces clear limitations, it remains a valuable yardstick. For instance, we can see the legitimacy of the Polish Supreme Court’s pushback against government and (captured) Constitutional Tribunal actions to end judicial independence as the institutional at the core of the democratic system by In the Gardbaum’s theory may more robust protection where degraded democracies courts as a central for threatened democracies, recent have been a reality about how we might reform courts, or even democratic through institutional However, as global juristocracy its we also guard against out the with the is any from the recent it is to avoid of any as courts never as or as they have so often been the is not While CPPT deeper about the of universal theories of judicial review, or at least the to more up their limitations, for to the democratic role of courts in our constitutional or more theory, a for courts to in guarding us all on which to and
The Senate proceedings occasioned by Dr. Christine Blasey Ford’s allegation against Justice Brett Kavanaugh left the then-nominee calling them a “circus” and observers confused about who was supposed to prove what and by what standard. Since the Senate is ill-suited to sorting out cases and controversies (and since the Ford-Kavanaugh matter will surely not be the last of its kind), the Senate should adopt standards (burdens of proof) for future judicial-nominee proceedings that it borrows from a sister branch—the judiciary. In any proceeding, the burden must be laded—it must be determined which party has the burden in the first place. It must also be weighted—it must be determined how much of a burden is to be imposed. This lading and weighting takes place with regard to both the burden of making out a colorable claim (the burden of production) and also the threshold for deciding in a party’s favor (the burden of persuasion). Courts often lade the burden of persuasion, in particular, on the party that (a) has the lesser interest at stake, (b) precipitates (as distinguished from initiates) the action, or (c) warrants special suspicion and scrutiny. This Article applies these principles to Senate judicial-nominee proceedings, noting that those proceedings sometimes involve two separate inquiries: (1) the qualification (or general suitability) inquiry, and (2) the inquiry into any allegation of specific and potentially disqualifying wrongdoing. The Article posits that, as to the qualification inquiry, the nominee has the burdens of production and persuasion and must show with convincing evidence that he or she is suitable for office. As to the allegation inquiry, although the accuser should have the burden of producing credible evidence to establish a plausible claim of wrongdoing, sound principles mitigate against the accuser bearing the ultimate burden of persuasion. That burden should rest with the nominee, who must show that the allegation is implausible, incredible, or unreasonable. Finally, this Article proposes a sliding scale for determining the precise threshold of proof required to meet this burden, focusing on the three different levels of federal judicial appointments (district judge, circuit judge, and Supreme Court justice) and accounting for the different interests involved as to each.
Niels Peterson’s Proportionality and Judicial Activism is a very timely and accomplished book. It is an important addition to the now quite considerable literature on proportionality, and it would benefit anyone interested in this omnipresent doctrine, especially in the three jurisdictions it covers—Germany, Canada, and South Africa. The book is not too long, and extremely readable—two non-negligible advantages for any reader—and Peterson has a rare capacity of simplifying intricate analytical moves and theoretical constructs without losing accuracy, a talent he also applies to the many cases he reviews in the book. The book is also innovative and ambitious, making it a very interesting and enriching read. However, its innovation sometimes comes at the expense of accuracy and consistency, and the book could have benefited from framing its goals a bit more modestly. At the center of the book is the following bold thesis: proportionality and balancing, while giving judges considerable discretion, do not, as a matter of empirical fact, bring them to usurp that discretion and engage in judicial activism and self-empowerment. The reason, according to the book, is that judges fear losing public legitimacy—the main source of their power—and therefore limit the use of proportionality, by and large, to the realm in which judicial review is legitimate. This realm, according to the book, is defined based on John Hart Ely’s process theory, and is thus the correction of political democratic market failures. The book reviews what it takes to be all the relevant proportionality cases in three key jurisdictions—Germany, Canada, and South Africa—and classifies them according to criteria developed by the author, showing that most proportionality cases fall into the non-activist rather than the activist camp. In this review I will give a brief account of the main arguments in the book, commenting on them as I go along, and then make the following main claim: the book does not fully achieve what it claims to do—prove empirically that proportionality and balancing are not related to judicial activism. The way the research is framed, I would argue, does not fit the purpose for which it is devised and has some internal tensions and key methodological problems. However, many of the contributions of the book are to be found in the details and on the way to the conclusions, rather than in the conclusions themselves. In particular, to my mind, its greatest achievement is in its classification method, which shows that when judges use the heading of proportionality they do myriad different things, many of which do not include engaging directly with the content or importance of rights, and, I would argue, resemble the functions of an administrative court. Elsewhere I called this phenomenon, the administrization of constitutional law.1 Whether these judicial interventions amount to judicial activism or not, and under what theory of judicial review they can be justified, is not resolved by the book. But, the in-depth analysis of the cases in the book and its novel classification system show that proportionality is more complex than its four simple subtests suggest, and this must inform any debate about proportionality and activism. In the first chapter Petersen develops a sophisticated and well-argued-for theory of judicial activism. According to Petersen, “[t]he question of whether courts acted in an activist manner depends on whether they were in line with the role that they are supposed to play in a liberal democratic political system” (at 15). It would depend, therefore, on our theory of judicial review. Petersen chooses a theory based on John Hart Ely’s process theory, according to which courts should not intervene in the substance of the democratic game—value choices should be left to democratic majorities—but rather correct market failures in the democratic process, and, like a referee, make sure that the players adhere to the rules of the democratic game and not rig it in unfair ways. Courts should therefore protect “discrete and insular minorities” against majoritarian bias, and rights related to the democratic process such as free speech and voting rights.2 Petersen extends Ely’s theory especially by including also the protection against legislative capture by interest groups and lobbyists (at 26–27). The chapter is masterfully written, and the exposition of market-failure-based accounts is excellent. Relating activism to one’s theory of judicial review is a novel and unconventional approach, and it strikes at a soft spot of definitions of activism that view it as an unwarranted departure from the law.3 Such definitions must rely on a theory of judicial review to define what the law is but do not always acknowledge that. However, since Petersen’s definition of activism is strictly normative, it departs from the common use of the term, which also has a contextual and descriptive element—activism is usually assessed in relation to a certain norm for judicial intervention prevalent in the relevant society, and thus cannot be defined solely in normative and non-contextual terms.4 Choosing Ely’s process theory is also novel and unconventional, coming from a German scholar, as German constitutional jurisprudence is emphatically substantive, and talks freely about judges as safeguarding an “objective value order,”5 while rejecting as overly American perceptions of judges as mere referees.6 It is especially a novel choice to support proportionality and balancing, as these are justified precisely for the type of jurisprudence which engages with values, and therefore must resort to balancing when such values conflict.7 If successful this choice could show that proportionality is justified even within a theory that emphasizes judicial restraint, which would be a counterintuitive, and therefore important, finding. However, squaring actual proportionality jurisprudence with Ely is a tough job, and as I will argue, the actual review of the cases by Petersen does not quite do that, and uses another definition of non-activism instead. In the second chapter Petersen delves with impressive skill into the analytically complex and abstract debate on balancing, incommensurability, and indeterminacy—the accusation that balancing compares things with no common denominator (e.g., the right to free speech and the interest in public security) so that it lacks rational content, and is therefore indeterminate and does not constrain judicial discretion. This chapter too is masterfully written, and Petersen convincingly shows the flaws in several key attempts to claim that balancing can escape this critique. However, the conclusions drawn from this realization are less convincing to my mind and do not appreciate the full force of the critique. Petersen is comforted by the fact that other methods, such as categorical rules, also suffer from indeterminacy, and thinks the choice of proportionality can be justified as a policy choice that prefers standards over rules (trading certainty for more flexibility to adjust to the particularities of the case) and more rather than less judicial control over the legislature (at 58). However, rules (unless one adopts full rule-skepticism) are only partially indeterminate—in the “hard” cases, or in the “penumbra”8 —while balancing, if it amounts to comparing the uncomparable, seems completely indeterminate; it is not clear what content it has at all, and what direction, however little, it can give to judges, if it suffers from the problem of incommensurability. Second, if balancing gives little or no guidance to judges, the problem is not just a policy problem of trading certainty with accuracy; in constitutional law, it is a political problem of accountability and representation. Finally, the idea that less guidance to judges means more control of the legislature is based on the assumption that judges, given discretion, would use it primarily to control the legislature rather than capitulate to it. If this is not correct, rules might actually control the legislature more than balancing.9 Having defined activism, and concluded that proportionality allows for judicial discretion, Petersen proceeds, in the last four chapters (chs. 3–6), to the heart of the book—the empirical analysis which aims to show that despite its open-endedness, proportionality does not lead to activism. I will briefly survey here the design and finding of the research and elaborate more in the next part. The survey consists of reviewing 250 German cases, 67 Canadian cases, and 44 South African cases, each analyzed according to roughly 10 criteria, depending on the jurisdiction (tables at 84–86). These include the four subtests of proportionality: illegitimate purpose, rationality (means fit ends) and necessity (no less restrictive means) joined together, and balancing (benefits outweigh costs); in addition, there are several other criteria, some of which are the author’s own, that will be discussed later. Each case is categorized under one or more of these headings, depending on criteria set by the author. The pool of cases reviewed consists of only (and all) cases in which the court struck down legislation, and the review period begins, for each jurisdiction, roughly since proportionality review was introduced to the system. The author then analyzes the results looking especially at the use of the fourth test of proportionality—balancing—which is the only test to directly and explicitly engage in comparing and making trade-offs between rights and interests, and is thus taken to be the main indicator for judicial activism. The first finding is that the use of balancing in both Canada and South Africa is consistently modest and stands below 10 percent of all proportionality cases reviewed (except for an increase in Canada toward the end of the survey); in Germany, balancing’s use was modest in the early years but rose dramatically in the 1970s and has plateaued since at around 30 percent (graph at 82). These findings are interpreted to support two theses by the author: (i) that the use of proportionality does not bring about judicial activism (since most proportionality cases do not include balancing); (ii) that the reason for that is that courts are subject to institutional constraints—they will lose public legitimacy if they are too activist. This explains why there is little balancing in Canada and South Africa, where the Court has not earned full legitimacy yet, and why as the German Court earned more legitimacy (and maybe the Canadian Court also in recent years), it increased its use of balancing. The last chapter analyzes only balancing cases, and shows that even these cases, most of the time, are not “real” balancing cases, in the sense of directly balancing rights and public interests, and only few cases can be so identified. Does the research as just described achieve its purported goal: to show empirically that “all three examined courts refrain from using proportionality for purposes of judicial activism” (back cover)? I believe it does not. The reason is a mix of methodological problems and inconsistencies in the design and execution of the research. As far as I can tell, the only quantifiable empirical proof to show that in all three jurisdictions the use of proportionality is not activist is the low level of balancing cases in those jurisdictions summarized in the graph at 81. There are, however, several problems regarding this deduction. The first relates to what it is exactly that the author means by a balancing case. In Canada it means that the Court formally relied on the fourth, balancing, subtest of proportionality in its reasoning. However, in Canada, as Petersen acknowledges, there is a doctrinal aversion to the use of that test, so that not using balancing formally does not mean that substantively the reasoning is not based on balancing.10 What we can learn from this data pertains therefore only to the perception of activism—does the Court wish to appear activist or not (assuming that balancing sends an activist signal). It cannot tell us whether the decisions themselves are activist, since balancing can lurk below the surface. In South Africa and Germany, however, courts do not always distinguish between the four subtests of proportionality (in South Africa not at all) and when they do not, a balancing case would mean what Petersen, rather than the Court, takes to be a balancing case. Petersen identifies balancing cases based on two criteria he devises—that the reasoning includes a comparison of values, and that there are no alternative modes of reasoning that are factual or empirical, and thus indicate the use of the rationality and necessity subtests (at 73). I think these are reasonable criteria, but I would like to note two problems: first, this means that counting for a balancing case would mean different things in different cases (for some cases formal, for some substantive); second, when we move away from formal reasoning, which can be relatively objectively measured, we get into the realm of subjective assessment of the surveyor—what if, for example, there is comparison of values, but also some, but not much, reliance on factual factors and policy efficacy?—and thus the findings do not have the strength of more objectively verified data. Another problem is revealed once we look at the finding on Germany which cannot indicate a similarly low percentage of balancing cases, as in Canada and South Africa. Over the entire period surveyed, 24 percent of the cases are labeled balancing cases, and in some decades as much as 37 percent. The problem now becomes knowing what percentage counts as proof of activism or lack thereof. If Canada and South Africa are labeled not activist based on less than 10 percent balancing, does that mean that Germany should be labeled activist, or is a maximum of 37 percent still low and therefore it is not? We cannot tell since there is no criteria set for answering this question in the book. One could assume at least that this data would indicate that Germany is more activist than Canada and South Africa, but this conclusion too is not reached in the book. Instead, when we move to Germany the proof of lack of activism becomes not the actual percentage of balancing cases but the fact that this percentage was low in the early years of the Court and rose in the 1970s. This, the book argues, indicates that the use of balancing is dependent on, and thus regulated by, the threat of losing public legitimacy. As the German Court acquired more public legitimacy in the 1970s it could afford to use balancing more. In South Africa and Canada this has not happened yet, or at least not to the same extent, so balancing has remained low. But if this is now the claim, then the book has not established that proportionality would not bring about activism, only that it would not bring about activism as long as the Court does not acquire sufficient public legitimacy. And, in addition, Petersen has not shown but has only speculated that the fear of loss of legitimacy is at play—other explanations are readily available to explain the differences between the use of balancing in these countries, such as the formalist common law tradition in South Africa versus the more substantive and communitarian tradition of German jurisprudence.11 There are several other methodological as well as substantive problems that I will indicate only briefly. First, the case selection is based only on cases in which the Court overturned legislation; however, some of the seminal proportionality cases, such as Kiegsra12 in Canada, and some of the most activist proportionality cases, such as Mizrahi13 in Israel, are upholding cases. Secondly, the pool of reviewed cases in Canada and South Africa is very small, spanning between 10 and 27 cases per decade. For such a small pool, any slight change in categorization can dramatically affect the results, and Petersen does not provide us with statistical assurances that his sample is big enough for empirical conclusions. Thirdly, and substantively, the book jumps very quickly to the conclusion that balancing is the right, and only, indication of activism in the use of proportionality. This does not follow from the book’s own definition of activism as going beyond correcting Ely-type market failures, as the other tests of proportionality may also amount to non-market failure interventions, and as balancing can be used to correct market failure. The research therefore suffers from several key problems if it aims to provide hard empirical proof. However, maybe we should view it differently, as a heuristic on a large scale, or as straddling the space between qualitative/small N, and quantitative/big N research. As such, its assessment changes dramatic- ally, and I think it shows clever and sophisticated analysis and can provide us with very important and valuable findings, especially pertaining to what I have called the “administrization” of constitutional law.14 The book’s most interesting and important achievement, to my mind, is its scheme of categorization for proportionality cases. What is unique about it, is that it is not limited to the four subtests, usually associated with proportionality but adds several additional key doctrinal tests, used by courts in such cases. I would like to highlight the following tests: consistency and coherency—looking for inconsistencies within legislation or between different acts of legislation; protecting legitimate expectations—such as when a new law changes the regulatory regime without providing for a transition period for those that relied on the previous regime; procedural arguments—lack of administrative review mechanism, or mechanisms for hearing, in the implementation of the law, or even procedural flaws in the process of legislation itself; lack of determinacy of the legislative norm; and overbreadth (note that in describing these tests I have not mentioned the word “rights” even once). Petersen then goes on and reviews many key cases in all three jurisdictions to explain his categorization of them under these different headings, and does so, on the whole, convincingly and informatively. He also provides a helpful list of all the cases reviewed in the Appendix. Analyzing the cases under these headings, and also under the formal subtests of proportionality, shows that the Court is often engaged in what Petersen the review of the of legislation, and what I would the tests of administrative law to I have that in jurisdictions courts are not engaged primarily with the and of the rights in the do they even a constitutional for legitimacy they administrative law, and of law, to legislation, the same way an administrative court would do to decisions and This also from the of by such which are taken from administrative the to the legislature to correct procedural directly certain changes in legislation, judicial review following legislation over in a and so Petersen provides in his book a and sophisticated account of this phenomenon, and he is correct in our to it as he in his that courts look for flaws in legislation is however, than showing that they have not engaged in judicial activism, especially if we define activism according to Ely’s theory of judicial review. The way I Ely’s theory, it would to be and as long as they are not by for example, the reviewed in the book (at in which the German Court struck down a law that limited the of new in where there is an The Court based its on rejecting the empirical for the legislation according to which there was no for in the relevant Such a case would not fit Ely’s of judicial review. It is not a case of and insular of political that it is a case of of is in this as there was no for that, and, in any Ely this of his theory and it from a not to the rationality of a law that between and Ely usually cannot (and should not when they do the to which of the legislature are under the of but they can tell when a legislature is Petersen’s book therefore on a more of the judicial role than market and cannot rely on this to show that proportionality is not activist. is not a market failure. It and there is no in it that the free democratic However, our to rationality or what I called administrative review of legislation, the debate over activism and proportionality by describing what is at with to proportionality cases, and it does show that proportionality is not just about balancing. This about a last courts not the and four subtests of proportionality and the jurisprudence of law review they engage would be to use Petersen’s book as an for just that.
There is an exceptional character to the Canadian federation when it comes to dynamic de/centralization. Despite expectations that forces of modernization and globalization centralize federations, Canada’s overall “federal balance” has remained largely stable since 1867. Early in the federation’s life, there was decentralization in the fiscal realm and in a few policy fields (e.g., finance and securities as well as employment relations). The last several decades have witnessed decentralization in several policy fields, such as agriculture, citizenship, and immigration, and natural resource, but also centralization in such crucial ones as social welfare and language. The overall slight decentralist path of the Canadian federation occurred primarily through non-constitutional means. Court decisions played a significant role in shaping this path early on, but it is the territorial diversity of the country, primarily but not exclusively nationalism in Québec, along with the original centralized nature of the Canadian federation, that fundamentally accounts for why Canada has not centralized like so many other federations.
Abstract We investigate the relationship between electoral institutions and committee autonomy in the context of U.S. state legislatures. The distributive theories of legislative organization suggest that electoral rules that make personal reputations more important motivate legislators to decentralize power and enhance committee autonomy to be able to target particularistic goods to their local constituencies. We argue that the distributive theories have direct implications for the relationship between candidate selection procedures and committee autonomy. The need to reach out to a large number of voters and to amass significant financial resources in states with more inclusive candidate selection procedures such as the open primary makes representatives more dependent on special interests, which is conducive to legislative particularism and committee autonomy. We take advantage of the great variation across the American states to investigate the effects of candidate selection procedures, a factor neglected in the previous literature. Examining 24 state legislatures from 1955 to 1995, we find that the inclusiveness of the selectorate, or the body electing candidates, has a significant effect on committee autonomy with more inclusive primary elections leading to more autonomous committee systems. By contrast, however, term limits were not a significant predictor of committee autonomy. This contributes to our understanding of how legislators amend institutional arrangements to achieve their electoral goals.
Nico Krisch’s new book, Beyond Constitutionalism: The Pluralist Structure of Post-National Law (BC), is a major contribution to the field of legal pluralism as applied to international legal regimes.1 In clear and accessible prose, BC develops a nuanced account of the structural features of global law from a wide range of carefully considered normative positions and empirical claims, and provides detailed case studies of pluralism in action. For readers of I·CON, I would regard it as essential reading. Given space limitations, my focus will be on the main disagreements I have with BC. Krisch stakes out complex positions, often through an “on the one hand [x], but on the other [y]” style of analysis that anticipates objections. My criticisms do not always capture the subtleties of the arguments and, for the sake of debate, are sometimes more sharply drawn than warranted. I will make three points. First, Krisch’s conclusions are heavily dependent upon a theoretical construction—a supposed dichotomy between “constitutional” and “pluralist”—that is, in fact, a false one. Second, “constitutional pluralism” is a structural feature of the national legal orders to which BC pays the most attention (European), belying the dichotomy. Third, the case studies in BC provide empirical support for an alternative view: at least in some domains, a rights-based constitutional order is being constructed on pluralist foundations. Driving much of the analysis of BC is a supposed distinction between two types—the constitutional and the pluralist—which Krisch characterizes as “competing models” (p. 226) and “true alternative[s]” (p. 71). BC sustains discussion of only one mode of constitutionalism, embodied in what he labels the “foundational” and “comprehensive” constitution. In its liberal-democratic guise, the constitution constitutes state and polity, and provides the normative underpinnings for constructing and challenging the polity’s legitimacy over time. The foundational constitution is assumed to be complete: it establishes a single “overarching legal framework” (p. 23) and “comprehensively determin[es] the structure, processes, and values” of the system (p. 53). In contrast to pluralism, constitutionalism entails “clear cut hierarchies” (p. 103), stable Grundnormen, settled “rules of recognition” (pp. 11, 72, 74), and “ultimate conflict norms” and “rules” (pp. 293, 296) whose purpose is to enable a designated authority to resolve conflicts among norms and institutions effectively. Pluralism is explicitly conceptualized in opposition to constitutionalism. Whereas constitutionalism is related to “depoliticization,” and the desire “to tame politics” through legal rules (p. 69), pluralism is about “politics” and “political deliberation” but not the “rule of law” or “rule-based processes,” (pp. 23, 69, 277). What is crucial is how Krisch applies these distinctions to the relationship between treaty-based systems and national legal orders, the central topic of the book. Krisch sums up his position as follows: Constitutionalism and pluralism are distinguished . . . by the different extent to which [each] formally link[s] the various spheres of law and politics. While pluralism regards them as separate in their foundations, global constitutionalism, properly understood, is a monist conception that integrates those spheres into one. As a result, rules about the relationship of national, regional, and global norms are immediately applicable in all spheres, and neither political nor judicial actors can justify non-compliance on legal grounds (p. 242; emphasis added).2 Thus, global constitutionalism can only find its expression in a strong form of hegemonic monism.3 The resulting model is indistinguishable from federalism. “A constitutionalist setting needs to define hierarchies between the polities,” Krisch claims, in order “to integrate them into a common whole,” a task that must include the promulgation of clear rules delineating the respective competences of all levels of governance, as well as fixing the “rules for the amendment of the overall constitution” (p. 275). I reject Krisch’s constitutionalism–pluralism dichotomy on both theoretical and empirical grounds. To get to the notion of “constitutional pluralism” one must specify what is simultaneously constitutional and pluralistic about the structure of a legal system.4 When considering the interface between international regimes and national legal orders, scholars typically identify, as the basic scaffolding of a constitution, jus cogens norms, other substantive fundamental rights, standards of procedural due process, and access to justice.5 These norms find expression in multi-lateral and regional treaties, are firmly supported by opinio juris, and overlap fundamental rights inscribed in the vast majority of national constitutions.6 What makes the system “constitutional” is an overarching normative structure:7 the code of rights that judges and other officials are under a legal duty to enforce; and a set of shared techniques that national and international judges have developed to adjudicate rights, in dialogues with one another. At the same time, the distribution of authority within this presupposed constitution is pluralistic: the system is comprised of discrete hierarchies, national and treaty-based, each of which has an autonomous claim to legitimacy. Sovereignty—the authority to enforce fundamental rights—is “decentralized,”8 not least, in that no “ultimate conflict rule” or “final authority” to resolve conflicts exists. Before turning to empirics, let me clarify the nature of the disagreement. First, to my knowledge, no one in the field would contest the basic elements of Krisch’s concept of pluralism: by definition, under conditions of pluralism, there is no “single decision-maker” applying “overarching conflict rules,” who will have the final word on many important legal questions (p. 296). Understanding legal pluralism, we would presumably agree, requires the analyst to take into account multiple vantage points at once, including the respective internal legal perspectives of actors operating in autonomous legal orders. Second, Krisch argues from a position that makes “constitutional pluralism” an oxymoron, a theoretical impossibility, whereas others in this same field have staked out a rights-based version of constitutionalism that accommodates pluralism.9 For Krisch, normative authority flows exclusively from hierarchy, rather than being grounded (my view) in the intrinsic legitimacy, binding nature, and integrating properties of fundamental rights themselves. Third, I reject Krisch’s law–politics distinction. Rights politics under conditions of pluralism are today heavily structured by law, legal discourse, and other rule-like norms and procedures, and they have steadily built new legal practices that serve to manage pluralism. As the empirics in BC show, rights politics and constitutional pluralism have been co-constitutive of one another. We have not moved “beyond constitutionalism,” rather, the age of global constitutionalism has barely begun. The false dichotomy is fully exposed when we examine the formal “architecture” of rights-based constitutionalism in Europe (ch. 4).10 For Krisch, “constitutionalism” implies a focal point of “ultimate authority” (p. 103), whereas “pluralism” accepts “conflicting claims to ultimate authority” (p. 70). When it comes to rights protection, however, many domestic constitutional orders in Europe are pluralistic. Either we have to accept that these national systems are no longer, or never were, truly constitutional, or the theoretical framework of BC must be rejected. As has been extensively documented,11 not only have conflicting authority claims between national high courts not been resolved, they have generated the kind of inter-jurisdictional, and jurisgenerative, politics that Krisch associates with pluralist orders. To illustrate, Krisch (pp. 14–17) argues that three basic strategies are available to a jurisdiction (X) when it is threatened by the lawmaking and supremacy claims of an external jurisdiction (Y), when Y seeks a change in how X takes decisions and makes law. First, X can pursue “containment,” by working to “limit the impact” of Y, in order to maximize its own autonomy and minimize disruption to standard ways of doing things. Second, X can seek to “transfer” the underlying logics of its ways to Y, thus lowering the costs of adjustment. Third, X can “break” with its established repertoire and, in effect, embrace or leverage pluralism as a means of increasing its own relevance, flexibility, and capacity to constrain Y in the future. Krisch developed the framework to analyze pluralist politics but, in fact, it neatly applies to rights politics within national orders that possess multiple, functionally differentiated high courts (the majority in Europe). Consider bids on the part of constitutional courts to “constitutionalize” adjudication in the ordinary (non-constitutional) courts, through promoting the direct effect of rights. It is important to stress that this process, which is ongoing, is analogous to the Court of Justice of the European Union’s (CJEU) move to “constitutionalize” the EU through its doctrines of supremacy and direct effect. In Western Europe, constitutionalization has gone furthest in Germany and Spain, in the form of delicate accommodations forged by inter-court conflict and dialogue. Nonetheless, the supreme courts continue to marshal significant “containment” operations,12 and their “transfer” efforts often succeed. In Italy, the Italian Court’s bid for supremacy failed: a “war of judges” ended in a settlement that, in effect, codified pluralism. Under the so-called “doctrine of the living law,” the Supreme Court (Cassazione) has de facto the “last word” on statutory interpretation and application, accepting only the “persuasive authority” of the ICC’s jurisprudence.13 In France, the Constitutional Council has no formal means of imposing its rights interpretations on the Supreme Court (Cassation) or Supreme Administrative Court.14 Each of the three high courts is autonomous in its domain, and both supreme courts have positioned themselves to enforce EU rights and the European Convention of Human Rights (ECHR), even against statute. The outcome comprises a hugely important “break” with traditional separation of powers doctrine (the prohibition of judicial review of statute), while constituting a pluralist order within the French legal system. In Central and Eastern Europe, too, many national supreme courts have refused to accept the binding interpretive authority and supremacy claims of the constitutional courts.15 The Polish courts have negotiated their own version of the Italian “living law” solution; and in the Czech Republic, the Supreme Court provoked a “war of judges” when it “openly revolted” against the Constitutional Court. In his empirical study of this topic, Garlicki (a former judge of the Polish Constitutional Court and the ECHR Court) concludes: “constitutional courts appear as weaker participants . . . and, in case of conflict, they are not always able to deliver that last word.” Indeed, for constitutional judges, a strategy of “dialogue and persuasion” has been more effective than have efforts to prevail in an “open conflict” about ultimate authority.16 The development of European rights has further consolidated rights pluralism within national orders. Today, one finds multiple sources of rights that are judicially enforceable against all conflicting infra-constitutional legal norms, including statute; there are multiple high courts that enforce these rights; and often there is no agreed upon conflict rule or procedure to settle conflicts of norms and authority. In most national legal systems, three such sources of rights—the national constitution, the EU treaties, and the ECHR—overlap. Individuals have a choice of which source to plead, and judges have a choice of which right to enforce. Ordinary judges may seek to limit the impact of the jurisprudence of the European courts; but they may also prefer to apply it, rather than domestic constitutional case law, in order to enhance their own authority and subvert that of constitutional courts. The German labor courts, for example, have partnered with the (CJEU) to raise German standards of rights protection in employment law, regaining the authority they had lost to German Federal Constitutional Court (GFCC), which has been steadily marginalized. Indeed, the German labor courts have invested heavily in the development of EU rights, as a means of cajoling the GFCC to change its (less-progressive) positions.17 Authority conflicts between high courts within domestic systems have long been a primary source of pluralist interactions between the CJEU and national constitutional courts (a fact Krisch largely ignores in chapter 4). To take a recent, dramatic example, in 2010, the Czech Constitutional Court declared a part of the CJEU’s ruling in Landtová to be ultra vires under Czech constitutional law, a first in the EU. The ruling was an attempt to discipline the Supreme Administrative Court, which had sent the Landtová reference to the CJEU in the first place. In response, the Supreme Administrative Court denied that it was bound by the Constitutional Court’s decision, and referred the matter to the CJEU, clearly indicating that it disagreed with the Constitutional Court on both the merits and the authority claim (the case is still pending before the CJEU). This is domestic constitutional pluralism in action, as structured by the legal enmeshment of European and national systems of rights protection. Krisch analyzes such authority conflicts as if they were primarily between a European court and a national constitutional court, thus missing an essential part of the story. With respect to the ECHR, all 47 full members of the Council of Europe have now incorporated the Convention (through constitutional provision, legislative act, or judicial decision) in a form that provides for the judicial review of state acts, including statute, under the ECHR.18 In all but two states (Ireland and the UK), judges must refuse to enforce statutes judged to be incompatible with the ECHR. The domestication of the ECHR has diffused judicial review powers with respect to rights claims to all national judges, and institutionalized constitutional pluralism at the domestic level. In Belgium, the Constitutional Court has that the ECHR but infra-constitutional which the Supreme Court to that the ECHR its autonomy the Constitutional Court. courts are in their respective domains, but neither can its will on the Krisch such a “constitutional” or In the Italian Constitutional Court a strong that Italian judges are to national law in of the ECHR and, a conflict is to the matter to the ordinary judges this while their own authority to refuse to apply a on grounds of with the In the of a which is to the of the the has no means of its own case law. In France, the and the de facto of rights is the ECHR, not the national constitution, and in and much of Eastern and Europe, new of rights were on the but the point be national rights protection in Europe today is both constitutional and pluralistic. The that Krisch to the hierarchies, conflict final or to the of his In chapter Krisch a a whose on the constitutionalism–pluralism dichotomy. the were a constitutional he claims, we would to find a European rights law with the ECHR at its (p. one finds pluralism. In with his basic Krisch by national constitutional courts to supposed claims of the CJEU or the Court as against the “constitutional (pp. In fact, such in of the constitutional pluralist constitutionalist pluralist would a constitutional court to by formally the national constitutional order to the constitutional judges to their own supremacy within their own domain, and to in the politics of pluralism, including both and with the European courts and their own national supreme courts. This is, in fact, what has While Krisch he all but ignores the of “transfer” and even when has been by the same ruling Thus, he the only in of BC is on the fact that, in this same decision, the German Court a clear “break” with establishes a strong that all German judges are to apply the Court’s jurisprudence when it is on in including when is the only to a of the fundamental in the The ruling also the constitutional Individuals can now a of German basic that or to properly take into account the European Court’s case law, an by the Constitutional have further the of the Convention at The support a about European rights politics that to be with BC. Given formal in the (the of the Court’s case law within national orders will the constitutional of the overall and the pluralism of domestic systems of rights protection. This is, in fact, what is in most BC three detailed case studies of pluralism that, in my provide strong empirical support for the of constitutional The that a pluralist constitution can be built through interactions between autonomous legal orders. The claim to the the more are the rights-based interactions between different legal orders, the more it will be that a constitutional jurisprudence of pluralism will and a legal structure to these Whereas Krisch the pluralism of European rights protection in chapter it is also clear that his discussion is also about in a as Krisch (pp. constitutional stress of such as judicial and other of What about the case studies in and of BC on the that the Council developed the on the in Krisch the of are and for and that only a are to (pp. Whereas the Council had all but rights other the various rights as well as a of national courts the for to provide with due process, including the means of challenging their on the and access to an judicial authority. The chapter with an analysis of the CJEU’s which EU to review under EU fundamental rights, and the In response, the Council an to and to make formal on for The empirics of this case provide strong support for the constitutional pluralist which the structure of rights, and for rights-based conflict into constitutional Under this the of the on “constitutional” features when to it on rights grounds before and courts. courts and the CJEU fundamental rights in both national, regional, and international law, and a style to In Krisch’s judges are the central of the pluralist which he in of the and of international and national levels of (pp. as BC the extent of pluralist to be on the of rights and other constitutional Indeed, the would state that of the CJEU, at the of and to the of a and process, to the . . . of the of the BC was for of the to as Krisch had (pp. In the Court of the EU a it would in of the within the of the the and long the by the clearly to of effective judicial The the at while as the provoked by The established by the Court neither for judicial procedure for review of decisions of the nor for a to that be available to the in order to to The also the fact that an would within the that is, an to an from the In of and under from and other the Council the of the codified procedures, and with and the of the to will now prevail there is not to it, in which case states further are if the is to be than two the of the on Human Rights and While that the Council to and had due process, that the new system still not international rights standards due or to a strategy on the part of courts long as due is not at the when or as national European courts will to judicial review over the national the ended by more if by the would make it that national or European courts to the procedure of the before their jurisdiction in to the national or European To the has resulting in decisions to the one and one (the are the Council the who had the European courts as well as national This is but the now has a The is also about The how conflict the GFCC and the over supremacy claims serve to rights-based constitutionalism in Europe, the fact that supremacy conflicts were never firmly Krisch style as a for the and norms” (pp. that are for the of rights-based pluralism within when rights are not central to pluralism, the of constitutional is how in and European to and generated in response, Krisch European courts are now with law in this the fact that the CJEU had that the do not possess direct effect within the EU such interactions may take on constitutional for now they to on grounds. as in his review of most global and standard setting in such as and is today generated through that the of and state While much of is pluralist in most of it is not constitutional in BC is the most important on the development of legal pluralism at the of not international regimes and national legal orders. Given the my focus has been on the constitutional of the book. I have three main points. First, the dichotomy is a false one. now legal systems as both constitutional and pluralistic for of empirical Second, when it comes to rights protection, most domestic constitutional orders in Europe are in fact pluralistic. As Krisch legal pluralism and authority conflicts often hand in and we find both within national constitutional orders. Third, the notion of “constitutional pluralism” the in BC than the framework from the dichotomy. The provides strong support for rights-based constitutionalism when rights in fact, on the and when courts, are major as one would we find of constitutional pluralism when rights are not in and when courts are not the main
Before the Constitutional Court of Serbia, there is a pending case on reviewing constitutionality and legality of the Autonomous Province of Vojvodina's Statute. 30 MPs, one civic organization and one individual initiated the proceedings, back in 2009, right after the Statute came into force. This article, which relies on author's amicus curiae brief in the mentioned case, offers three claims. First, the author claims that Serbia is not a typical unitary state, as for example, France or Romania, since it has gained several important characteristics of a regional state. Thus, for the time being, according to a vertical division of authority, Serbia can be defined as a state that is neither unitary nor regional, but rather a state 'in between' these two forms. Second, the author argues against an idea of textual dogmatization of the Constitution employed by the initiator of the proceedings (MPs), and after a deep analysis, rejects most of the arguments aimed at invalidating the provisions of the Statute, finding them unpersuasive and unfounded. Third, starting from the citizens' sovereignty, on which the political autonomy of Vojvodina is based (Articles 12, 176 and 182 of the Serbian Constitution of 2006), the author urges safeguarding the political decentralization guaranteed by the Constitution, since it gives more power to citizens in public decision-making and strengthens the democratic principle on which the Republic of Serbia is based. It is also stressed that a potential invalidation of the statutory provisions concerning the protection of national minorities, would endanger this protection, since, in accordance with the principle of subsidiarity, the constitutional protection is the most effective if implemented by the act of the regional authority of the territory where the members of national minorities traditionally live in a great number.
One of the questions that lies at the heart of the Insite case is this: what kind of connections should exist between the law and the people it governs? In this short comment, I explore one of the ways this question informs the treatment of evidence and proof by focusing on the section 7 aspect of the case and the question of arbitrariness. With the goal of inviting discussion, I suggest that in cases involving the constitutional rights of marginalized individuals and communities, the concept of the “burden of proof” can provide a way to help understand what is at stake, and what criteria we might use to relate the burden of proof to values of equality and justice.
In 1995, a law professor at the University of Chicago Law School dubbed the Supreme Court confirmation hearings “vapid and hollow” and added that they, as implemented, “serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government.” Ironically, this same law professor, Elena Kagan, later endured the confirmation hearings as a nominee and currently sits as the 112th Justice of the U.S. Supreme Court. While she may be one of the few to ever reach a seat on the High Court, she is not alone in her assessment of the Supreme Court’s lackluster confirmation process. Other legal scholars have called the process a complete mess and likened it to a circus or a kabuki dance.\nAlthough there are multiple aspects of the confirmation process that could use reform, this Note draws attention to one flaw of the confirmation hearings that many overlook—members of the Senate Judiciary Committee (the “Committee”) use the confirmation hearings as a forum to voice their own political beliefs instead of focusing their undivided attention on the qualifications of the nominee. Since senators do not focus entirely on the nominee, they are not thoroughly examining the nominee’s fitness for the Court. As nationally televised events, it only follows that senators use the confirmation hearings as a medium to speak to theirconstituents. One may ask why this matters or point out that one would expect this of senators; after all, senators constantly have their campaigning caps on, especially when receiving national attention. However, these responses ignore the negative effects of senators placing themselves, rather than the nominees, in the confirmation hearings’ limelight. If the purpose of confirmation hearings is to determine the qualifications of a nominee and ensure that he or she is fit for the Court, then this purpose goes unfulfilled if constituents influence senators’ lines of questioning. Senators consume themselves with how their constituents back home will view their questioning and fail to focus on what is at stake—the confirmation of the nation’s next Supreme Court justice. If the purpose of confirmation hearings is to evaluate the nominee, then this purpose would best be served by having undivided attention focused on the nominee and his or her answers. If senators have an ulterior motive—engaging in an open dialogue with their constituents—then the confirmation process does not effectively serve its primary purpose.\nPart I of this Note investigates the confirmation and appointment power that the Constitution delegates to the Senate. Part II provides a detailed history of the confirmation process and its dramatic evolution over the last century, which is crucial in order to fully comprehend today’s process and its problems. Part III, after examining the media’s role within the confirmation process and the publicity that the confirmation hearings attract, offers proof that senators are cognizant of their national audience and highlights specific examples of senators addressing their constituents via the confirmation hearings. Part IV concludes by setting forth three possible solutions to the overarching problem: implementing anonymous questioning of the nominees through Committee representatives; appointing experts to question the nominees in the senators’ places; and replacing video recording of the hearings with audio recording.
Both scholars and practitioners of law have a lot to win from insights into how political and societal forces have influenced the form and content that is given to specific rules. This is because these forces often continue to play a role in the subsequent phase of implementation. The rational model for analysing collective decision making distinguishes as relevant variables the actors involved, their positions towards the issue at stake, the salience the issue has for these actors and the influence or power of the actors. However, a theory about the collective decision making concerning legal rules would be incomplete without the inclusion of the variables of the rhetorical model. In this article it is clarified why we also need the rhetorical model to explain such decision making. The Dutch Governmental decision making concerning Pre-implantation genetic diagnosis (PGD) in 2008 is analysed as case study. In addition, the rational and the rhetorical model for analysing collective decision making are with respect to the object of research, the main assumption, the kind of application and the questions of what is accepted as the proof of truth and how the researcher is positioned towards the object of his research. This comparison shows that the insights produced by the rhetorical model, contrary to what lawyers often are made to believe, are not necessarily less objective than the insights produced by the rational model.
Abstract A vast territory, deep regional and linguistic differences, and a diverse population pose a challenge to the administration of elections and the determination of voting behavior. Election management in Canada has changed in recent years. Campaign financing is more strictly controlled that ever, advance voting and same-day registration have been introduced to facilitate easier voting, and fixed-term elections have been introduced. This article discusses the changes and challenges faced by the Canadian elections and voting system. Among the challenges faced are the efforts to enhance the equity and fairness of the electoral process. These efforts are seen as conflicting with the right of freedom of expression guaranteed by the Canadian Charter. Among the changes Canadian electoral processes have undergone are the emergence of campaigns, the pervasiveness of media coverage, decentralized federalism, and the introduction of a single-member plurality electoral system. Some of the topics discussed in this article include: managing elections, voter registration, distribution of seats, and anomalies in the Canadian electoral system.
R. v. Oakes is widely regarded as one of the most important judgments interpreting Canada’s Charter of Rights and Freedoms. In addition to laying down its famous proportionality test to assess the reasonableness of limits on Charter rights, it clarified the Supreme Court of Canada’s Court’s interpretive methodology for Charter cases, perhaps most centrally that rights are of presumptive importance, and limitations the exception that are only acceptable if governments meet a demanding test of justification. The citation of Oakes by courts in Antigua and Barbuda, Australia, Fiji, Hong Kong, Ireland, Israel, Jamaica, Namibia, South Africa, the United Kingdom, Vanuatu and Zimbabwe has made Oakes one of the central models for rights-based constitutional adjudication. So the almost immediate retreat from Oakes is of broader constitutional significance, both domestically and abroad. There is a dominant narrative on what the true legacy of Oakes and the retreat from Oakes are. The argument is that Oakes set out a uniform approach for assessing justifiable limitations on Charter rights irrespective of differences in context, but that in the decade following Oakes, the Court searched for criteria of deference, to reliably and predictably categorize cases where deference was warranted and those where it was not. These categories were not applied consistently by the Court, and, indeed, produced disagreement within the Court over how they should be applied in specific cases. Underlying both trends were concerns regarding the cogency of the distinctions employed by the Court to delineate the boundaries of these categories. Although the dominant narrative captures much of Oakes‘ legacy, it misses much of what is at stake in many recent s. 1 cases, and by implication, what the true legacy of Oakes and the retreat from Oakes are. Oakes created an enormous institutional dilemma for the Court, by setting up a conflict between the demand for definitive proof to support each stage of proportionality analysis, and the reality of policy making under conditions of factual uncertainty. The legacy of Oakes is that the central question of s. 1 is how the Court should allocate the risk of factual uncertainty when governments legislate under conditions of imperfect information. If Oakes is a comparative model for proportionality analysis under other rights-protecting constitutions, then these kinds of problems are not particular to Canada. Foreign courts would be wise to grapple with these difficulties with the benefit of two decades of reflection by Canadian courts instead of simply applying the Oakestest in its original and undeveloped form.
In America free public education is a constitutional value. Yet, although free public education
for all is a constitutional value, America's public schools remain ravaged by savage
inequalities, many of which are the direct result of significant financial disparities. Given
the obvious conflict between the constitutional value of free public education for all and the
funding parities created by the States' school finance systems, it is not surprising that the
courts have been asked to intervene and vindicate the constitutional value of free public
education for all by declaring that the current system of financing the schools is
unconstitutional. However, a judicial solution to the problem has proved as elusive as a
legislative or executive solution. Paradoxically, a major reason for the States' failure to adequately finance the
achievement - the constitutional value of quality education for all - is the existence of other
constitutional values. In other words, there are values within the American constitutional
system that make it extremely difficult to achieve another constitutional value. This article
explains how two American constitutional values - judicial restraint and decentralization -
work together to prevent adequate funding of another constitutional value - a quality education
for all.
As men and women with an abiding commitment to public service, the participants in this symposium will surely be forgiven if they occasionally yield to the temptation to paraphrase Charles Dickens by saying: It is the worst of times; it is the worst of times. But even the worst of times has something to offer those blessed with a sanguine temperament. Banished to the fringe of events, we need not pass our days languishing in irrelevance. Instead, we should make use of our present unhappy condition to reflect upon how we might do better when public service once again enjoys popular support -- as it surely will some day. I believe serious reflection along these lines is already underway and has been for some time. I take the salience of the word governance in our recent literature as a sign of repentance for past transgressions and firm purpose to mend our ways. The transgression was our failure in happier times to link administration to governing, preferring instead to see it as some sort of neutral technique or even as a science. The marked tendency today to criticize the new-found enthusiasm for management for neglecting the rule of law should be seen not as a rejection of management, but as a constructive effort to tame its excesses by grounding it in the well-established norms of governing a constitutional republic. The salience of governance in our field has spawned a renewed interest in constitutionalism. Indeed, a symposium in Public Administration Review just three years ago identified a school of constitutional thought within the public administration community. The purpose of this article is to contribute to this growing interest in constitutionalism by adding a comparative dimension. Comparativists in the field of political science are fond of quoting a line from Kipling -- what knows he of England who only England knows? -- to make the point that one can learn much about one's own country by studying another one. Comparative studies stimulate the political imagination. They prepare us to think creatively about how we might integrate administrative institutions into traditional constitutional structures and how these structures themselves might be adapted to suit the times that lie ahead. My choice of Canadian federalism as a topic of inquiry needs a word of explanation in view of the seemingly endless string of constitutional crises that have bedeviled that otherwise pleasant land over the past three decades. I focus upon Canada for two reasons: 1. Frequent comments have been made by both Quebec sovereigntists and Ottawa federalists on the need to find administrative solutions to the Canadian constitutional crisis. Here is a bold claim that students of public administration would ignore at their peril. Since the referendum of October 1995, there has been precious little progress -- administrative or otherwise -- toward accommodating Quebec's demands within the present constitutional order, but the mere fact that serious people would even talk about administration doing the deeds of high statesmanship challenges the crabbed American view on the possibilities of administrative activity. In Canada, constitutional debates over the very survival of the regime evoke detailed discussions of such classic administrative themes as environmental management, immigration policy, public finance, civil service pensions, education, manpower and training, unemployment benefits, and control of natural resources. I hope that my article will provide a helpful, albeit rather sketchy, constitutional background for American administrationists who take the trouble to follow the dramatic events unfolding among our neighbors to the north. 2. There is a current American rediscovery of the Tenth Amendment, which promises a pronounced redistribution of authority away from Washington and to the states. There can be little doubt that we are about to enjoy (or, alas, endure) still another round of new but this time all signs point to a more profound and more lasting reprise on this theme than Presidents Nixon and Reagan were able to deliver The political culture of Canada is sufficiently similar to our own to warrant the expectation that by studying its highly decentralized federalism, we can learn something of the advantages of decentralization while avoiding its excesses. …
The apologetic tone taken by James G. Randall and other writers on the problem of arbitrary arrests in the North during the Civil War has always seemed to me to be curiously at odds with the tone Abraham Lincoln himself took. He did not apologize. In his public letter of June 12, 1863, to Erastus Corning and others, Lincoln said with characteristic toughness: '... the time [is] not unlikely to come when I shall be blamed for having made too few arrests rather than too many.' He argued that the Confederate States, when they seceded, had been counting on being able to keep 'on foot amongst us a most efficient corps of spies, informers, supplyers, and aiders and abettors of their cause' under 'cover of 'Liberty of speech' 'Liberty of the press' and 'Habeas corpus.'' Nicolay and Hay, who were not given to overstatement, noted that 'few of the President's state papers ... produced a stronger impression upon the public mind than this.'1Little wonder. Elsewhere in the letter, the president used even stronger language, saying that he could never: appreciate the danger ... that the American people will, by means of military arrests during the rebellion, lose the right of public discussion, the liberty of speech and the press, the law of evidence, trail by jury, and Habeas Corpus, throughout the indefinite peaceful future ... any more than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness, as to persist in feeding upon them through the remainder of his healthful life.2Stressing the image conjured up by Lincoln's use of the word 'emetics,' one could almost say that all the complaining about arbitrary arrests made him want to vomit.As most students of the Lincoln administration's racial policies agree, a historian must pay careful attention not only to what Lincoln said but also to what he actually did. The administration's statistical record on arbitrary arrests is persuasive testimony that Lincoln was not particularly embarrassed by the policy. No careful work on the numbers of civilians arrested by military authorities or for reasons of state has ever been done by a historian, and those historians who have attempted an estimate previously have been writing with the goal of defending Lincoln in mind. Even so, the lowest estimate is 13,535 arrests from February 15, 1862, to the end of the war.3 At least 866 others occurred from the beginning of the war until February 15, 1862. Therefore, at least 14,401 civilians were arrested by the Lincoln administration. If one takes the population of the North during the Civil War as 22.5 million (using the 1860 census and counting West Virginia but not Nevada), then one person out of every 1,563 in the North was arrested during the Civil War.4The February 15, 1862, date is significant because that is the date when authority for the arrests was switched from the State Department to the War Department. Evidence is sketchy, but this appears to have been strictly a matter of administrative convenience or logic. President Lincoln never made any high-level personnel or organizational move aimed at abating the severities of his internal security measures. The program was always in the hands of persons who were firm believers in its necessity as a means of saving the Union.William H. Seward became notorious for his alleged ability to exceed the king of England in his power to have any citizen arrested simply by ringing a little bell on his desk. The bell story appears apocryphal, but Seward's staunch belief that disloyalty in the North was a serious problem was not. When the president polled his cabinet about the Sumter crisis on March 15, 1861, the secretary of state warned that coercing the seceded states would make 'reunion ... hopeless, at least under this administration, or in any other way than by popular disavowal, both of the [resulting] war and of the administration which commenced it.' War, he feared, would arouse an opposition party that would offer peace and would profit politically from reunion. In other words, Seward's initial assessment of the possibility of civil war was that it would arouse so many people opposed to the war that the administration could never win it.5Seward was too busy to administer the arrest program and foreign policy at the same time, and as soon as Lincoln replaced the erratic Simon Cameron with Edwin M. Stanton in the War Department, Seward happily surrendered his authority over internal security. No one describes Stanton as anything but stern, and he in turn relied heavily on an even sterner man, Joseph Holt, the judge advocate general, to handle internal security. Holt's belief that the North was teeming with hundreds of thousands of traitors well organized in the Knights of the Golden Circle apparently exceeded the president's fears on this score, but Lincoln was content to allow a man haunted by such fears to exercise vast authority in internal security matters.6Given the Lincoln administration's generally consistent support of the arrest policy and given the remarkable extent of the arrests — nearly one person in every 1,500 — I have been struck by two question which never seem to have been asked about the arbitrary arrests: (1) why did the policy not cause the administration more political trouble than it did? and (2) how efficient was the policy?If the arrests had been aimed primarily at quashing dissent, so large a number would probably have threatened the fabric of what was left of the Union and would certainly have caused the administration serious political trouble. Yet the fact of the matter is that arbitrary arrests caused a minimum of social unrest. The three most famous and violent riots of the Civil War North — those in New York City in July 1863, in Baltimore in April 1861, and in Charleston, Illinois, in 1864 — had nothing to do with arbitrary arrests and the suspension of the privilege of the writ of habeas corpus. The Baltimore riot occurred before the privilege of the writ was suspended anywhere. The Charleston riot, too, was a brawl between soldiers and civilians (with no indication that the question of civil liberties was at issue). And the New York riots were sparked by the issue which had real ability to cause socially explosive, violent, even murderous behavior — the draft.Arbitrary arrests caused few remarkable disorders, no matter how sensational the case or how famous the victim. Clement Vallandigham was the most famous politician in Dayton, Ohio, but his arrest in the night — despite a mysterious shrill whistled signal and three shots the victim fired into the air to alert friends — brought few people even curious to see what was happening. True, a mob the next night set fire to the offices of the local Republican newspaper, and one rioter was shot by a soldier while trying to cut a water hose in use to douse the fire, but the riot was quickly put down without loss of life. There were indignation meetings in most of the major cities of the North following Valiant Val's arrest, but this was orderly protest organized by politicians with some stake in preserving the system.7Other arrested persons upon their release had friendly crowds to greet them, but the nature of the protest was decidedly political, that is, orderly and organized by a political party, the Democrats. The arrests produced a great amount of heated rhetoric from that party which, by and large, changed no one's mind about the Lincoln administration. According to Joel Silbey, the premier student of Democratic voting behavior in this period, the voting totals for the party were largely stable after the 1850s. Why did the policy not unseat the Lincoln administration?8Since much of the writing on the subject, from Civil War times on, has focused on discussions of the constitutional justification for the suspension of the privilege of the writ of habeas corpus, no one seems to have been tempted to assess the efficiency of the arbitrary arrests. In fact, both those who assert their rightness and those who assert their wrongness have a tendency to assume that the arrests were inefficient and abusive, the victims chosen by affiliation with the Democratic party or press, and hordes of innocent persons incarcerated in a largely useless witch hunt. Lincoln himself encouraged that view a little by arguing, '... if, as has happened, the executive should suspend the writ ..., instances of arresting innocent persons might occur, as are always likely to occur in such cases; and then a clamor could be raised in regard to this, which might be, at least, of some service to the insurgent cause.' How likely were such arrests to occur under Lincoln's administration? Were they more likely to occur than under other wartime administrations?9To answer these questions which lie to some degree outside the usual question of the legality or constitutional validity of the arrests, I have begun compiling a list of all the civilian arrests in the North during the Civil War. From the State Department's record of 'Suspicious and Disloyal Persons,' from dozens of lists of inmates in federal prisons (the notorious 'Bastilles of the North'), from William H. Seward's unpublished correspondence, and from the narratives of political prisoners published in book form, I have compiled a list of 866 'prisoners of state' or 'political prisoners' (as they were very frankly termed by the Lincoln administration) arrested while Seward was in charge of the program. A close look at them suggests some rather surprising answers to the questions.The most notable feature of the arrests is their geographic distribution. Of the 866 persons on the list, place of residence is noted for 582. One hundred and seventy-one were Marylanders. Thus a state with a little over 3 percent of the North's population produced 29.4 percent of the persons arrested by the Lincoln administration in the first year of the war. Kentuckians (about 5 percent of the North's population) accounted for 8.4 percent of the arrests. Because of a quirk of record-keeping, figures are not readily available for Missouri in this period (the prison-keepers in St. Louis and Alton, probably assuming that Seward would know that most of their inmates came from strife-torn Missouri, failed to report the place of residence of their civilian inmates), but records for other periods of the war indicate a percentage of arrests about as high as Maryland's. Even ignoring Missouri's obviously gross underrepresentation in these figures, the Border States alone accounted for 40.5 percent of the arbitrary arrests.Another substantial percentage of persons arrested were not Northerners at all. Seventy-nine of the 582, or 13.6 percent were Virginia residents, and another 12.7 percent were of other seceded Thus a percent of the people arrested were of Confederate persons arrested for trouble in the few of the by Union in the first year of the war or in the North when the war and arrested for trying to to the one the of as a Border on the that throughout the period of Seward's as of the administration's internal security another percent of the arrests are accounted Thus states accounted for percent or nearly of the arbitrary arrests in the first year of the war. The administration was not at war with but the suggests a for the arrests: people from were not likely to be very on the Civil War. No one would that was a serious problem in and Missouri, all of which were at one time or another to the and two of which and were of from this period one of the of arrests in this a way why civilian arrests did not cause the Lincoln administration serious political and percent of the people arrested had as their president and never in political of the Lincoln administration. well over 40.5 percent were of states Lincoln's political were never very the Border and of did not for is that Lincoln did not suspend the privilege of the writ of habeas in in the period when Seward the on the from to on April on the on military between and New York on July and on that to on law arrests in Missouri, Illinois, and other and many to the privilege of the writ had been Thus the in New the of New on writ of habeas has been ... And even when the was — — the of the arrests did not percent of the arrests were politically because they another of of these were percent of all persons after a period of time — not because they were not of serious the States but because the after its had the prisons in of and put on Seward to them No one more than Seward did the necessity of out of the war — the of many a of the One in noted in his when a ... as he is a he be as soon as the of his to have been in or any outside the of the and of the at least percent of the arrests little political to the Lincoln administration and persons from to the States at the very least, a should to make how the nature of the persons arrested put the policy of arbitrary arrests from any serious issue of quashing the of Confederate States who on the of civilian inmates in the were James M. and and their no was much about the civil liberties of these Confederate to taken from the and incarcerated without of habeas of always civil in other and some of the persons arrested were an who the Confederate States to see a and through the apparently that he had a such He was arrested on of being a and in with the because he had no from Union He to the only to be quickly when the nature of his case was the reasons for the arrests cause to appreciate their of on Lincoln's political and some of their the 866 arrests to have occurred under have some of cause of the of them have nothing to do with political — or any other which takes place on One hundred and were up in or upon from a of the persons arrested on the high were or through the to a Confederate the great in many of the over arbitrary arrests were not aimed at public In some they had no Lincoln himself to of them as being not so much for what has been as for what probably would be In fact, arrests were most made for what had been on evidence, and were not so much at as available as a for no one would and for which seemed to be no other is a case in In 1864 a by not of is, by the of to for his were in and of and and loss of were the only by the law of for of it was an the law of the state or it was and a States could not a were such The could be until brought to and to in but that was all the the States which had much and these simply them — for the they were into In this the problem was not even but a in the the arrests were some of the most of the the arrests, as they might be has made us that was a of power for and the Civil War a in the States who to be at when the war of them had been at for as as three came to to an of to the States, to their and other and their — and were arrested and in a A at a of these it appears one of the most and of this to who have made it a of to their into and their when they might have with taken them into and on their them as prisoners to the his President ever the and the war was he had made more of these of arrests: Joseph William Simon and the in the war were all the power of the the and were nearly as well to be traitors then as had and them, the insurgent cause would be much no one of them had then any in the one of them arrested would have been on Habeas Corpus, were the writ to so, most of the were on in the some of them to Confederate on the and should be too that many of the arrests not of the political but of serious and and for the Confederate was the case in Missouri, and and times of of the The of is that the percentage of serious after as the Union more and more as it is likely that the percentage of the civilians arrested who were Confederate and not for or Lincoln other words, the population of persons arrested and being as the war Even under a substantial of those arrested were and were and or or the asked to be were The Lincoln administration the view that to be for a in Confederate hands was of on the arrests is to come but a minimum of percent of the persons arrested were by the to these the and the who were into under the of for the West and other and it could well be argued that at least percent of the arrests the state of Lincoln's in a and efficient internal security Even the percent record that of the security of arrests during War I of under the and and by the American notorious not one or was by the administration. from the West in War but was not one of or by any on the West in War Of I am arrests of persons with in the War I but given the in and nature of between Lincoln's and the it is to some to the state of Lincoln's only of the famous who were in the Lincoln administration's hands at one time or another to be with the efficiency of their internal the who for the first to on 1861, for or the of the Confederate in and the man who to Virginia on 1861, and over the protest of military arrested was as as and of but even the for which only arbitrary arrest seemed to and William for arrested at were were of two Confederate were but to the of because they to be able to to North One should not only the innocent victims of the arbitrary arrests but also the of the program who for this by obviously of the prisoners are who were to the and them two are and two all have at and the has set in they have and to a few to the State Department the and to them to them on their that of to the the were but the first a when the was to him I no such a the next was a who to know had taken and on being in the no arrests, for that of Clement throughout the Civil War a local problem at first to the Border States and then more and more to the Confederate States or a problem and persons on the high is always them arbitrary arrests the is almost a few place the the or the of this in three in on in the of the only of some had been of their liberty by military was a Republican which well have but a Democratic on in the was able to only civilians arrested about from the beginning of the war until of them were arrested as a of a riot in City which in the of the from which the was to the first for the There was no of even in one of the was because was no on the him of a when the Habeas of March 1863, the War Department to lists of political prisoners to the and Stanton the to Holt, who — and — to the were to be all the civilian prisoners in but that the had been and he all persons arrested as or or being with or as well as those who came under the of War. The fact of the matter is that most such could occur only in Missouri out the St. Louis and prisons as being of the of prisoners or the so that the list was Even so, percent of the persons on the list were of percent of them percent and percent from or There were New three one man from Ohio, and one from to its substantial of civilian prisoners percent of those in in June percent of those in in July and percent of those in in 1864 were And the The of prisoners noted that from 1862, through the end of the war at least civilian prisoners were If that as an of then at the very least percent of those arrested fact of the matter is that the Lincoln administration's internal security so well from its that the administration was to it for the of the Civil War. — by all — was in the Union by of its state in and by arresting other authorities to be in who the Department of in it and it his for in and ever The — the of the people — were replaced and to ... their made a ... occur in North in in in and If ... those States shall be by that are ... shall then have and William H. Seward it too, as this by a of state but despite in Stanton of this was a at his an of a of from New and as I an and of to him to to were at by a of The three on being by M. their by that they had to see him in to the He that those prisoners would not be are the Seward are no him on and that the of his him too much to or One it was his to keep no charge was He a they are or I by arrests, and so I to this it was that the and public of were to such arrests. a for the of he that what he was to in the and make for and then on of the are not at of their release is the of the as to me by M. and William M. out that the of the and left a that all by to internal are and to a The internal security of the Lincoln administration were those and be only by the of the in which they are of the war left on the of the Lincoln administration, and on more so than on William H. When he The of the the Seward that was to that as great feature of the first suspension of the privilege of the writ of habeas occurred in the next after that much more than those as Seward know or appreciate the of and state of of the of the in those of peace had us for any but the most of all a civil was upon and it had to be had without any for the it was at and soon to upon the A with and in the was to and