The "Design Sciences" and Constitutional "Success"

Texas Law Review

Volumn 87, Issue 7, 2009, Pages 1339-1374

  Hirschl, Ran ^a  

^a UNIVERSITY OF TORONTO   (Canada)

Author keywords

[No Author keywords available]

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EID: 69249144416     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (250)

1. Ralph Waldo Emerson, Journal Entry (1873), in 16 THE JOURNALS AND MISCELLANEOUS NOTEBOOKS OF RALPH WALDO EMERSON 293 (Ronald A. Bosco et al. eds., 1982).
2. FRANK W. LIOU, RAPID PROTOTYPING AND ENGINEERING APPLICATIONS 48 (2007).
3. A few recent notable contributions to the field include DONALD S. LUTZ, PRINCIPLES OF CONSTITUTIONAL DESIGN (2006);
4. WALTER F. MURPHY, CONSTITUTIONAL DEMOCRACY (2007);
5. EDWARD SCHNEIER, CRAFTING CONSTITUTIONAL DEMOCRACIES (2006);
6. ADRIAN VERMEULE, MECHANISMS OF DEMOCRACY (2007).
7. Montenegro A.A., Constitutional design and economic performance, The literature on this point is vast. See, (arguing that constitutional design can be predictive economically; in particular, longer constitutions indicate less stability and shorter constitutions should therefore stimulate better economic performance), 6 Const. Pol. Econ. 161, 169, 1995.
8. Douglass C. North & Barry R. Weingast, Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England, 49 J. ECON. HIST. 803, 806, 805-06 (1989) (arguing that constitutions play a critical role in establishing "rules that foster long-term growth");
9. infra notes 129-131 and accompanying text.
10. E.g., Arend Lijphart, Constitutional Design for Divided Societies, J. DEMOCRACY, Apr. 2004, at 97, 99-107 (defining the term "consociationalism, " and with regard to constitutional engineering for divided societies, suggesting joint selection of important political posts, minority veto on important issues, and other power-sharing mechanisms).
11. A good summary of relevant works on these two threads of constitutional design literature can be found in Sujit Choudhry, Bridging Comparative Politics and Comparative Constitutional Law: Constitutional Design in Divided Societies, in CONSTITUTIONAL DESIGN FOR DIVIDED SOCIETIES: INTEGRATION OR ACCOMMODATION? 3 (Sujit Choudhry ed., 2008).
12. See, e.g., Shlomo Avineri, Hegel's Theory of the Modern State 176-93 (1974) (discussing Hegel's macroconception of the modern state and its connection to his broader philosophical ideas and other spheres of life);
13. KARL MARX & FREDERICK ENGELS, THE Manifesto of the Communist Party 12 (Frederick Engels ed. & trans., Charles H. Kerr & Co. 1906) (1848) (introducing the conception of the proletariat and casting history as a perpetual class struggle);
14. NIKOLAS S. ROSE, POWERS OF FREEDOM 187 (1999) (describing the panopticon as a "diagram of political technology").
15. John Friedmann, The Future of Comprehensive Urban Planning: A Critique, 31 PUB. ADMIN. REV. 315, 315-316 (1971).
16. Id. at 316.
17. See infra notes 28-32 and accompanying text.
18. See Daniel Gavron, The Kibbutz 152 (2000) (explaining how the early kibbutz movement worked well on a small communal scalebut also noting that establishing an entire nation as "one large kibbutz" was impractical because the "kibbutz way of life" was not "suitable for the majority").
19. Cathy Forbes, The Polgar Sisters 14, 24 (1992).
20. Id. at 24-25.
21. Id. at 13.
22. Id. at 49.
23. Tex. Tech Univ., Susan Polgar Inst, for Chess Excellence, Grandmaster Susan Polgar, http://www.depts.ttu.edu/spice/Susan-Polgar.php.
24. See FORBES, supra note 12, at 120-121 (recounting Sofia's performance at the 1989 open event in Rome).
25. Robert Byme, A Spirited Polgar Pushes a Fist Through Chess's Glass Ceiling, N.Y. TIMES, Nov. 2, 2003, at N34.
26. See FORBES, supra note 12, at 162, 171 (recording Judit's successful push to break Bobby Fischer's previous record).
27. Byrne, supra note 18 (recording Judit's ascendance to the number 8 ranking);
28. FIDE World Chess Federation, Top 100 Players April 2009, *http://ratings.fide.com/top.phtml?list=men (identifying Judit Polgar as the thirty-seventh-ranked chess player in the world).
29. E.g., EUGENE BARDACH, THE IMPLEMENTATION GAME: WHAT HAPPENS AFTER A BILL BECOMES A LAW? 3 (1978) (analyzing various causes of public-policy failures);
30. JEFFREY L. PRESSMAN & AARON WILDAVSKY, IMPLEMENTATION: HOW GREAT EXPECTATIONS IN WASHINGTON ARE DASHED IN OAKLAND, at xx-xxiv, 69 (3rd ed., 1984) (arguing that the multiple steps and decision points necessary in implementing public policy may create significant obstacles to achievement).
31. E.g., Marie-Louise Bemelmans-Videc, Introduction: Policy Instrument Choice and Evaluation, in CARROTS, STICKS AND SERMONS 1 (Marie-Louise Bemelmans-Videc et al. eds., 1998) (introducing a series of quantitative and qualitative studies on policy implementation);
32. Paul A. Sabatier, Top-Down and Bottom-Up Approaches to Implementation Research: A Critical Analysis and Suggested Synthesis, 6 J. PUB. POL'Y 21, 21 (1986) (reviewing top-down and bottom-up approaches to the study of implementation);
33. Malcolm Gladwell, Wrong Turn: How the Fight to Make America's Highways Safer Went Off Course, NEW YORKER, June 11, 2001, at 50, 52-54 (discussing a study of car accidents that takes a passive approach to implementation).
34. See, e.g., Richard F. Elmore, Backward Mapping: Implementation Research and Policy Decisions, 94 POL. SCI. Q. 601, 607 (1979) ("Even when the probability of a favorable result is high at each step, the cumulative product of a large number of transactions is an extraordinarily low probability of success.").
35. See GERALD ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 35-36, 420-22 (2nd ed. 2008) (positing that courts face significant extra-judicial constraints and conditions for their contested decisions to be fully and effectively implemented).
36. See Pam Belluck & Katie Zezima, 4 Ceiling Panels in Boston's Big Dig Fall, Killing Woman in Car, N.Y. TIMES, July 12, 2006, at A16 (recounting the accident and mentioning the Big Dig's previous problems).
37. ROBERT FALCON SCOTT, SCOTT'S LAST JOURNEY 114 (Peter King ed., 2000).
38. For example, Oliver Stone's Alexander, featuring stars such as Colin Farrell, Angelina Jolie, and Val Kilmer, is considered a box-office flop. See A.O. Scott, A Territory Alexander Couldn't Conquer, N.Y. TIMES, Dec. 26, 2004, § 2, at 18 (noting that the film cost over $150 million to make and grossed less than $35 million in the United States in its first month and a half). By contrast, The Blair Witch Project, an independent film with an unknown cast made by unknown filmmakers in around eight days, achieved blockbuster status despite its extremely low budget.
39. See Richard Corliss, The Blair Witch Project, 1999-Top Ten Sundance Hits, TIME, http://www.time.com/time/specials/packages/article/028804, 1871821-1871830-1871842, 00.html (reporting that the film was made for only $35, 000 and grossed about $140 million in the United States and another $108 million internationally).
40. See ROGER E. BlLSTEIN, TESTING AIRCRAFT, EXPLORING SPACE: AN ILLUSTRATED HISTORY OF NACA AND NASA 37-40, 98-102, 128-31 (4th ed., Johns Hopkins Univ. Press 2003) (1965) (recounting NASA's groundbreaking aerospace achievements in the post-World War II era).
41. William J. Broad, The Shuttle Explodes: 6 in Crew and High-School Teacher Are Killed 74 Seconds After Liftoff, N.Y. TIMES, Jan. 29, 1986, at Al;
42. David E. Sanger, Loss of the Shuttle: The Overview; Shuttle Breaks Up, 7 Dead, N.Y. TIMES, Feb. 2, 2003, § 1, at 1.
43. See, e.g., R. Cowen, Reviewers See Red over Recent Mars Programs, 157 SCI. NEWS 212, 215 (2000) (citing a review by a NASA-appointed panel that attributed the failure of several U.S. Mars missions to insufficient funding, inexperienced management, and inadequate testing);
44. Todd S. Purdum, Russia's Mars Craft Fails and Crashes in Southern Pacific, N.Y. TIMES, Nov. 18, 1996, at A3 (reporting the failed launch of a Russian probe to Mars).
45. See H.R. Res. 67, 111th Cong. (2009) (enacted) (recognizing and commending the success of the Spirit and Opportunity rovers);
46. Richard A. Kerr, Pathfinder Strikes a Rocky Bonanza, 277 SCI. 173, 173-74 (1997) (describing the early successes of the Pathfinder mission).
47. In 1999, for example, both the $125 million Mars Climate Orbiter and the $165 million Mars Polar Lander were lost. William J. Broad, Experts Warn of Mars on the Cheap, N.Y. TIMES, Dec. 8, 1999, at A19 (reporting on how mistakes caused the failure of the first mission and frantic overcorrections then doomed the second). The robotic spacecraft Phoenix landed successfully on Mars's polar region in May 2008, but the mission was brought to an abrupt conclusion when contact was lost in November 2008.
48. NASA Loses Contact with Mars Lander and Ends Its Mission, N.Y. TIMES, Nov. 11, 2008, at A19.
49. See JANET FOSTER, DOCKLANDS: CULTURES IN CONFLICT, WORLDS IN COLLISION 152-57, 209-211 (1999) (summarizing the negative reactions to the Docklands Project in the 1990s).
50. See JAMES HOLSTON, THE MODERNIST CITY: AN ANTHROPOLOGIST CRITIQUE OF BRASILIA 14-23, 89 (1989) (chronicling Brasilia's architectural design plans and the government's failure to fully implement those plans);
51. JAMES C. SCOTT, SEEING LIKE A STATE 117-28 (1999) (describing the shortcomings of the Brasilia design and its failed attempt to initiate broad transformation throughout Brazil).
52. Compare PETER HALL, GREAT PLANNING DISASTERS 1-4 (1982) (providing an overview of several failed urban planning initiatives)
53. SCOTT, supra note 34, at 117-28 (documenting the failures of Brasilia),
54. ALICE M. COLEMAN, UTOPIA ON TRIAL: VISION AND REALITY IN PLANNED HOUSING 8 (1985) (suggesting that some city experiments may succeed if the design aligns with contemporary trends).
55. The term "Lamarckism" comes from the name of eighteenth-century French biologist Jean-Baptiste Lamarck, who is known for the evolutionary theory that acquired characters are inheritable, or that "modifications resulting from an organism's development of particular habits may be passed on to that organism's offspring under the appropriate conditions." RICHARD W. BURKHARDT, THE SPIRIT OF SYSTEM 1 (2nd ed. 1995). Lamarck's theories have been severely criticized at times by Darwinists, despite the presence of Lamarckian ideas in Darwin's own writings.
56. Abigail Lustig, Introduction: Biologists on Crusade, in DARWINIAN HERESIES 1, 10 (Lustig et al. eds., 2004).
57. See Charles Darwin, The Origin of Species 93-94 (Collector's Library 2004) (1859) (introducing the concept of natural selection, in which small hereditary variations in individuals contribute to their survival or destruction).
58. BURKHARDT, supra note 36, at 1-2.
59. S. Alan Stem, The New Horizons Pluto Kuiper Belt Mission: An Overview with Historical Context, 140 SPACE Sci. REV. 3, 3 (2008).
60. Id.
61. See Press Release, Dwayne Brown et al., NASA's Pluto Mission Launched Toward New Horizons, Jan. 19, 2006, available at http://www.nasa.gov/mission- pages/newhorizons/news/release-20060119.html ("[New Horizons] is the fastest ever launched, speeding away from Earth at approximately 36, 000 miles per hour....").
62. See Gerald E. Frug, The City as a Legal Concept, 93 HARV. L. REV. 1059, 1064 (1980) (pointing out that a city's power to tax is severely limited by state approval restrictions and by the Dormant Commerce Clause).
63. See id. at 1062-63 (describing how, due to a lack of constitutional protection, local governments' powers are inhibited by the broad scope of federal and state powers).
64. Newer constitutions (e.g., Brazil, India, Germany) recognize the problem and assign extended authority to local government. E.g., CONSTITUIÇ ÃO FEDERAL [C.F.] art. 30 (Braz.), translated in 3 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD (Rildiger Woltrum & Rainer Grote eds., 2009) (enumerating the powers of municipalities);
65. INDIA CONST., arts. 243W-243X (allowing states to devolve power to municipalities, including the power to tax);
66. GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GG] [Constitution] art. 28(2) (F.R.G.), translated in 7 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra ("The communes must be guaranteed the right to regulate on their own responsibility the affairs of the local community within the limits set by law.").
67. Some other big cities enjoy the status of an independent federal district (e.g., Mexico City). CONSTITUCIÓN POLÍTICA DE LOS ESTADOS UNIDOS MEXICANOS [CONST. MEX.], art. 44, Diario Oficial de la Federatión [D.O.], 5 de Febrero de 1917 (Mex.), translated in 12 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra. Others are recognized as a separate region (e.g., Tokyo).
68. See KENPO [Constitution] arts. 92-95 (Japan), translated in 9 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra (providing for the authority of "local public entities" in accordance with the principle of local autonomy);
69. Local Public Entities-Tokyo Metropolitan Government, *http://www. metro.tokyo.jp/ENGLISH/PROFILE/overview05.htm (explaining that Tokyo is a metropolitan prefecture, which is a unique type of local public entity).
70. See U.S. CONST, art. V (requiring two-thirds of both houses of Congress to propose an amendment and three-fourths of the states to ratify it);
71. see also SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) 21 (2006) ("[T]he U.S. Constitution is the most difficult to amend of any constitution currently existing in the world today.").
72. See GG art. 79 (allowing laws to amend the constitution if (1) the law expressly states that it amends or supplements the constitution, (2) two-thirds of each legislative house approves, and (3) the law does not alter the basic structure of the federal government or change fundamental rights).
73. See Doni Gewirtzman, Our Founding Feelings: Emotion, Commitment, and Imagination in Constitutional Culture, 43 U. RICH. L. REV. 623, 630 (2009) (arguing that American constitutional interpretation is divisive, political, and emotional).
74. Gary J. Jacobsohn, The Permeability of Constitutional Borders, 82 TEXAS L. REV. 1763, 1773(2004).
75. See id. ("The salient contradictions will vary from place to place, but inherent in the constitutional condition, whether subtle or dramatic, is a disharmony manifest either in the disjuncture between a constitution and a society or between commitments internal to a constitution.");
76. see also Gary J. Jacobsohn, Constitutional Identity, 68 REV. POL. 362, 380 (2006) (arguing that a polity's constitutional identity can be at odds with the values favored by contemporary society in that polity).
77. See Walter F. Murphy, Designing a Constitution: Of Architects and Builders, 87 TEXAS L. REV. 1303, 1327-1330 (2009) (describing Israel's inability to draft a conventional constitutional text because of conflicting views as to the role Jewish Law should play in the new government).
78. See Gerrit Steunebrink, Liberalism and Nationalism in Europe and Turkey: On the Reception and Application of Modern European Ideas in a New Historical and Cultural Context, in CIVIL SOCIETY, RELIGION, AND THE NATION 153, 168 (Gerrit Steunebrink & Evert van der Zweerde eds., 2004) ("In new Turkey,... a large majority of traditional Muslims was confronted directly with secularism in its most acute form.").
79. See, e.g., BRUCE ACKERMAN, WE THE PEOPLE 172 (1992) (asserting that constitutional law allows the government to "play different factions off against one another so that they do relatively little damage to the rights of citizens and the permanent interests of the community");
80. CASS SUNSTEIN, DESIGNING DEMOCRACY: WHAT CONSTITUTIONS DO 114 (2001) (listing a variety of nonexclusive reasons to develop a constitution, including the solution of "problems posed by collective action," as well as the facilitation of "the protection of rights central to self government; the creation of fixed and stable arrangements; the removal of especially charged or intractable questions from the public agenda; [and] the creation of incentives for compromise, deliberation, and agreement");
81. John Ferejohn et al., Editors' Introduction to CONSTITUTIONAL CULTURE AND DEMOCRATIC RULE 25, 25 (John Ferejohn et al. eds., 2001) ("[A] constitution may also permit government to do justice to individuals and minority groups, even in the face of momentary political passions pointing in another direction.").
82. E.g., JON ELSTER, ULYSSES AND THE SIRENS: STUDIES IN RATIONALITY AND IRRATIONALITY 93 (1988) ("[FJormal requirements of unambiguous and constant laws are in many respects more important than the need for just laws, because if you can predict the decisions of the court you can take precautionary measures that will protect you from unjust laws.");
83. STEPHEN HOLMES, PASSIONS AND CONSTRAINT 272 (1995) ("[A] democratic citizenry will submit itself voluntarily to enforceable restrictions on its own whim in order to ensure that its reason will outweigh its passion in the public realm.").
84. See ROBERT A. DAHL, DEMOCRACY AND ITS CRITICS 187-88 (1991) (discussing the judiciary's role in providing quasi-guardianship within the democratic process);
85. ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 10-11 (Sanford Levinson ed., 4th ed. 2005) (recognizing a division of labor between the legislature and the judiciary);
86. MARTIN M. SHAPIRO, LAW AND POLITICS IN THE SUPREME COURT 6 (1964) (highlighting the political jurisprudence movement, which seeks to analyze the Supreme Court, in the political context, as one of many government agencies).
87. See, e.g., Howard Gillman, Courts and the Politics of Partisan Coalitions, in THE OXFORD HANDBOOK OF LAW & POLITICS 644, 645-47 (Keith Whittington et al. eds., 2008) (discussing courts as policy-making partners of the current majority party or governing coalition);
88. Tom Ginsburg, The Global Spread of Constitutional Review, in THE OXFORD HANDBOOK OF LAW & POLITICS, supra, at 81, 90-91 (recounting the insurance and hegemonic accounts of judicialization, both of which believe that electoral uncertainty serves as the primary motivator for the adoption of constitutional review as an institutional structure);
89. Mark A. Graber, Constructing Judicial Review, 8 ANN. REV. POL. SCI. 425, 427 (2005) ("Judicial review is established and maintained by elected officials. Adjudication is one of many means politicians and political movements employ when seeking to make their constitutional visions the law of the land.");
90. Georg Vanberg, Establishing and Maintaining Judicial Independence, in THE OXFORD HANDBOOK OF LAW & POLITICS, supra, at 99, 114 ("[Strategic judges may anticipate the interests of powerful political actors in specific decisions and accommodate those interests in order not to provoke a direct confrontation.");
91. Keith E. Whittington, "Interpose Your Friendly Hand": Political Supports for the Exercise of Judicial Review by the United States Supreme Court, 99 AM. POL. SCI. REV. 583, 583 (2005) ("Though federal judges are protected by such securities as lifetime tenure and guaranteed salaries from political retaliation for their decisions, the judiciary as a whole is still vulnerable to politics. Most routinely, the political appointments process creates regular opportunities for elected officials to bring the Court into line with political preferences.").
92. See Ran Hirschl, The New Constitutionalism and the Judicialization of Pure Politics Worldwide, 75 FORDHAM L. REV. 721, 746 (2006) (providing further discussion on this subject).
93. Id.
94. See J. Mark Ramseyer, The Puzzling (In)Dependence of Courts: A Comparative Approach, 23 J. LEGAL STUD. 721, 722, 722-23 (1994) (surveying modem Japan, the modern United States, and imperial Japan to "illustrate the electoral market logic to judicial independence").
95. See Howard Gillman, How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in the United States. 1875-1891, 96 AM. POL. SCI. REV. 511, 512, 511-12 (2002) (examining "American political development" and asserting that the late nineteenth-century expansion of federal judicial power "is best understood as the sort of familiar partisan or programmatic entrenchment that we frequently associate with legislative delegations to executive or quasi-executive agencies").
96. See TOM GlNSBURG, JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES 90-91 (2003) (contending that the insurance theory of design is an important factor in explaining the variable strength of judicial review in South Korea, Mongolia, and Taiwan).
97. See Pedro C. Magalhães, The Politics of Judicial Reform in Eastern Europe, 32 COMP. POL. 43, 45 (1999) (arguing that in contrast to judicial regimes in Southern Europe, progress in Eastern Europe "has been seriously constrained by norms, attitudes, and structural conditions inherited from the Communist regime").
98. See Rebecca B. Chavez, The Construction of Rule of Law in Argentina: A Tale of Two Provinces, 35 COMP. POL. 417, 418 (2003) (comparing San Luis and Mendoza to demonstrate "that electoral democracy can yield the rule of law under conditions of party competition").
99. RAN HIRSCHL, TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM 11-12 (2004).
100. See Ran Hirschl, The Judicialization of Mega-Politics and the Rise of Political Courts, 11 ANN. REV. POL. SCI. 93, 107 (2008) (providing a further discussion of these points).
101. Michael Mandel, A Brief History of the New Constitutionalism, or 'How We Changed Everything So that Everything Would Remain the Same,' 32 ISR. L. REV. 250, 251 (1998).
102. See generally ZACHARY ELKINS, TOM GINSBURG & JAMES MELTON, THE ENDURANCE OF NATIONAL CONSTITUTIONS (forthcoming 2009) (manuscript on file with Texas Law Review) (compiling the initial results from the Comparative Constitutions Project, examining longevity trends among constitutional texts, and offering a variety of arguments and observations derived therefrom);
103. Tom Ginsburg, The Lifespan of Written Constitutions (Univ. of Cal., Berkeley Law & Economics Workshop, Paper No. 3, 2008) available at *http://repositories.cdlib.org/berkeley-law-econ/Spring2008/3/(offering other initial observations on the interaction between constitutional design and constitutional lifespan).
104. The original Constitution of Norway, for example, was adopted in 1814. KONGERIGET NORGES GRUNDLOV [KN GRUNDLOV] [Constitution] (Nor.), translated in 14 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 44.
105. The current Mexican Constitution was adopted in 1917. CONST. MEX. One of the two centerpieces of the Canadian Constitution, the British North America Act, was adopted in 1867.
106. Constitution Act, 1867, 30 & 31 Vict. Ch. 3 (U.K.), as reprinted in R.S.C., No.5 (Appendix 1985) (Can.).
107. The constitutions of several other countries include core "old" documents that have been amended numerous times (e.g., the Austrian B-VG adopted in 1920), alongside new constitutional documents supplementing it. E.g., BUNDES-VERFASSUNGSGESETZ [B-VG] [Constitution] BGB1 No. 1/1930 as last amended by Bundesgesetz [BG] BGB1 I No. 100/2003, art. 147, ¶ 2 (Austria), translated in 1 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 44.
108. ELKINS, GINSBURG & MELTON, supra note 66 (manuscript at 1).
109. Ginsburg, supra note 66 (manuscript at 50).
110. See ELKINS, GlNSBURG & MELTON, supra note 66 (manuscript at 1) (concluding that although some outside forces may be uncontrollable, the features of flexibility, specificity, and inclusion all help to improve the chances of constitutional survival).
111. THE FEDERALIST NO. 84, at 514 (Alexander Hamilton) (Clinton Rossitered., 1961).
112. Learned Hand, The Spirit of Liberty, Address at the "I Am an American Day" Ceremony in New York City's Central Park (May 21, 1944), in THE SPIRIT OF LIBERTY: PAPERS AND ADDRESSES OF LEARNED HAND 189, 189-90 (Irving Dilliard ed., 3rd ed. 1960).
113. See Robert A. Dahl, Thinking About Democratic Constitutions: Conclusions from Democratic Experience, in 38 NOMOS: POLITICAL ORDER 175, 178 (Ian Shapiro & Russell Hardin eds., 1998) (arguing the following conditions are more important to the endurance of democracy than a constitution: a military force controlled by elected leaders; high rates of economic growth and high levels of education; and cultural homogeneity).
114. See generally Dahl, supra note 54, at 220-64, for a discussion of the social conditions favorable to the existence of a "polyarchy"-a political order where citizenship is extended to a high proportion of adults and citizenship includes the right to vote for the highest government officials.
115. ROBERT A. DAHL, A PREFACE TO DEMOCRATIC THEORY 137 (expanded 50th anniversary ed., 2006).
116. Id. at 143.
117. See CHARLES R. EPP, THE RIGHTS REVOLUTION 14 (1998) (arguing the guarantees found in bills of rights are ineffective without a well-developed support structure for legal mobilization to invoke them);
118. Charles R. Epp, Do Bills of Rights Matter? The Canadian Charter of Rights and Freedoms, 90 AM. POL. SCI. REV. 765, 766 (1996) (postulating that the greatest weakness of a bill of rights is that it "creates no automatic institutional resources for its own enforcement").
119. See Epp, supra note 76, at 767 (emphasizing the importance of organized group support, financing, and the structure of the legal profession in facilitating access to the legal system).
120. See ROBERT D. PUTNAM ET AL., MAKING DEMOCRACY WORK 99, 91-99 (1993) (presenting data suggesting that the regions of Italy with "many civic associations, many newspaper readers, [and] many issue-oriented voters" have more successful regional governments).
121. See id. at 181-185 (reporting that the success of regional governments in Italy appeared more related to local structures than national initiatives).
122. LAZA KEKIC, THE ECONOMIST INTELLIGENCE UNIT, INDEX OF DEMOCRACY 16 (2008), http://a330.g.akamai.net/7/330/25828/20081021195552/graphics.eiu.com/ PDF/Democracy%20Index%202008.pdf.
123. Id. at 18.
124. Id. at 8 tbl.2.
125. Id. at 4.
126. Id.
127. Id. at 4-8.
128. Id.
129. See generally ROBERT A. DAHL, HOW DEMOCRATIC IS THE AMERICAN CONSTITUTION? (2001) (lamenting how the Constitution does not sufficiently embody the democratic ideal and should be amended);
130. LEVINSON, supra note 45 (scrutinizing the adequacy of today's Constitution from a variety of perspectives).
131. LEVINSON, supra note 45, at 6.
132. Id.
133. See ROBERT PERRUCCI & EARL WYSONG, THE NEW CLASS SOCIETY 147 (2007) (reporting that expenditures by corporations and trade associations on lobbying the federal government reached $2.2 billion in 2005);
134. U.N. DEV. PROGRAMME [UNDP], HUMAN DEVELOPMENT REPORT 2007/2008 at 281-84 tbl.15, U.N. Sales No. 07.III.B.1 (2007), available at http://hdr.undp.org/en/ media/HDR-20072008-EN-Complete.pdf (presenting the Gini coefficients for 177 countries, with the United States having a higher inequality score than most other developed nations).
135. See Louis Favoreu, Constitutional Review in Europe, in CONSTITUTIONALISM AND RIGHTS 38, 48 (Louis Henkin & Albert J. Rosenthal eds., 1990) (stating that while the Scandinavian countries have adopted judicial review, they have not done so as fully as the United States);
136. Nina Witoszek, Moral Community and the Crisis of the Enlightenment: Sweden and Germany in the 1920s and 1930s, in CULTURE AND CRISIS: THE CASE OF GERMANY AND SWEDEN 48, 62 (Nina Witoszek & Lars Tragardh eds., 2002) ("[l]n Sweden,... the notions of the rights of man stemming from the natural law tradition never properly took root.").
137. Martin Shapiro & Alec Stone, The New Constitutional Politics of Europe, in 2 Comparative politics: Critical Concepts in Political Science 83, 96 (Howard J. Wiarda et al. eds., 2005) (contending that although the Netherlands is one of only four Western European nations without judicial review, the courts have begun to enforce a "sort of nascent charter of rights" when national laws conflict with European agreements).
138. See KEKIC, supra note 80, at 3 (ranking the Netherlands as third in overall democracy, and the United States seventeenth). In the evaluation of civil liberties, the Netherlands scored 10 out of 10, while the United States scored an 8.53. Id.;
139. see also Ran Hirschl, The Political Origins of the New Constitutionalism, 11 IND. J. GLOBAL LEGAL STUD. 71, 76 (2004) (providing further discussion of this subject).
140. DAHL, supra note 54, at 189.
141. See ALAN G. SMITH, HUMAN RIGHTS AND CHOICE IN POVERTY 21 (1997) (arguing that the provision of security and subsistence is necessary to the enjoyment of civil-political rights).
142. See International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No.16, U.N. Doc. A/6316 (Dec. 16, 1966) (recognizing rights to health care, education, and a living wage);
143. Universal Declaration of Human Rights, G.A. Res. 217A, art. 25, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948) (declaring the right to a sufficient standard of living, including the right to health care);
144. Sudhir Anand & Amartya Sen, Concepts of Human Development and Poverty: A Multidimensional Perspective, in READINGS IN HUMAN DEVELOPMENT 228 (Sakiko Fukuda-Parr & A.K. Shiva Kumar eds., 2003) (contrasting "conglomerative" and "deprivational" perspectives in measuring human development).
145. See UNDP, supra note 90, at 225-27 (explaining the measures that go into calculating the HDI).
146. Id. at 222.
147. UNDP, Human Development Indices: A Statistical Update 2008, at 29 tbl.2 (2008), available at http://origin-hdr.undp.org/en/media/HDI-2008-EN-Tables.pdf.
148. Id.
149. See David S. Law, The Anatomy of a Conservative Court: Judicial Review in Japan, 87 Texas L. REV. 1545, 1574-87 (2009) (characterizing the Japanese Supreme Court as conservative because it almost never goes against the government, with only rare and obscure exceptions);
150. Jun-ichi Satoh, Judicial Review in Japan: An Overview of the Case Law and an Examination of Trends in the Japanese Supreme Court's Constitutional Oversight, 41 LOY. L.A. L. REV. 603, 603-06 (2008) (describing the Japanese Supreme Court's limited role in enforcing Japan's Constitution).
151. UNDP, supra note 99, at 29-32 tbl.2.
152. Id. aX 25-28 tbl.l.
153. See Christoph F. Beuchtemann & Eric Verdier, Education and Training Regimes: Macro-Institutional Evidence, 108 REVUE D'ECONOMIE POLITIQUE 291, 299-300 (1998) (Fr.) (linking underperformance in U.S. and U.K. educational institutions to low levels of standardization and centralization).
154. See William Easterly, The Middle Class Consensus and Economic Development, 6 J. ECON. Growth 317, 317 (2001) (arguing that the existence of a large middle class, combined with a lack of ethnic conflict, is tied to better education, health, and infrastructure, and generally to a more robust democracy);
155. Osman Mohamed Osman, Preface to UNDP, EGYPT HUMAN Development Report 2008: Egypt's Social Contract: The Role of Civil Society, at ix (2008) http://hdr.undp.org/en/reports/nationalreports/arabstates/egypt/ 2008-Egypt-nhdr-en.pdf (describing civil society as "a third crucial sector" that contributes both to the development process and "a range of other issues that directly affect the well-being and livelihood of citizens and society").
156. See SMITH, supra note 95, at 21 (contending that the positive provision of basic necessities is a prerequisite to enjoying negative rights).
157. HlRSCHL, supra note 63, at 100-48;
158. see also Marius Pieterse, Eating Socioeconomic Rights: The Usefulness of Rights Talk in Alleviating Social Hardship Revisited, 29 HUM. RTS. Q. 796, 797 (2007) ("[T]he transformative potential of rights is significantly thwarted by the fact that they are typically formulated, interpreted, and enforced by institutions that are embedded in the political, social, and economic status quo. This is so even in relation to socioeconomic rights ....").
159. HiRSCHL, supra note 63, at 151.
160. See, e.g., C.F. art. 6 (guaranteeing unqualified access to "[education, health, work, habitation, leisure, security, social security," and other social rights).
161. See, e.g., S. AFR. CONST. 1996 § 25(5) ("The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.").
162. See, e.g., INDIA CONST, arts. 38-39: amended by the Constitution (Forty-second Amendment) Act, 1976 and the Constitution (Forty-fourth Amendment) Act, 1978 (requiring the government to protect the social welfare and rights of all people equally).
163. UNDP, supra note 90, at 281-284 tbl.15.
164. CONST. MEX.
165. Compare ALLAN MOSCOVITCH ET AL., THE WELFARE STATE IN CANADA, at iii-iv (1983) (describing the emergence and development of a robust welfare system in Canada from the 1890s to the 1970s)
166. with HIRSCHL, supra note 63, at 127-128 (indicating that notwithstanding permissive constitutional language, Canadian courts have not protected subsistence social and economic rights).
167. See Ran Hirschl & Christopher L. Eisgruber, Prologue: North American Constitutionalism?, 4 INT'L J. CONST. L. 203, 210 (2006) (providing a more extensive discussion of the role of healthcare in the Canadian collective consciousness). For polling data that reflects healthcare's primacy to Canadians
168. see for example THE STRATEGIC COUNSEL, 2008 FEDERAL PREELECTION: WHAT ARE THE PERCEPTIONS OF CANADIANS ON THE EVE OF A POSSIBLE OCTOBER ELECTION? 17 (2008), http://www.thestrategiccounsel.com/our-news/polls/Pre-Election%20 Baseline%20-%20Sep%201%20(with%20second%20choice).pdf and Press Release, Ipsos, Environment Tops the List of Priorities for Canadians-First Time Since July 1990 (Nov. 6, 2006), (on file at http://www.ipsos-na.com/news/pressrelease.cfm?id= 3252).
169. See Robert Steinbrook, Private Health Care in Canada, 354 NEW ENG. J. MED. 1661, 1661 (2006) (stating that Canada's system of health care "is often championed as a reflection of Canadian values and as an alternative that the United States might emulate").
170. Canada Health Act, R.S.C., ch. C 6 (1985);
171. see also Hon. Monique Bégin, Professor Emeritus, Univ. of Ottawa, Revisiting the Canada Health Act (1984): What Are the Impediments to Change?, Address at the Institute for Research on Public Policy 30th Anniversary Conference 3 (Feb. 20, 2002) (transcript available at http://www.irpp.org/ events/archive/020218e.pdf) ("Outside of its strict legal role and of its existence as a piece of legislation, good or bad, the Canada Health Act also certainly played an important role in rooting our public, universal health insurance system in the Canadian psyche. Medicare became deeply entrenched in our national identity.").
172. [2005] 1 S.C.R. 791, 2005 SCC 35 (Can.).
173. The Court ruled that limits on the delivery of private health care in Quebec violated Quebec's Charter of Human Rights and Freedoms. Id. at 860. Three of the judges also ruled that the limits on private health care violated Section 7 of the Canadian Charter of Rights and Freedoms. Id. The decision could have significant ramifications on health care policy in Canada and may be interpreted as paving the way to a "two-tier" health care system.
174. Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, ch. 11 (U.K.).
175. See, e.g., British Columbia (A.G.) v. Christie, [2007] 1 S.C.R. 873, 2007 SCC 21 (Can.) (holding that there is no right to counsel in cases where rights or obligations are at stake);
176. Auton (Guardian ad litem of) v. British Columbia (A.G.), [2004] 3 S.C.R. 657, 659, 2004 SCC 78 (Can.) (determining that the government's decision not to fund a medically required treatment did not infringe on the petitioners' equality rights);
177. Newfoundland (Treasury Board) v. N.A.P.E. [2004] 3 S.C.R. 381, 382, 2004 SCC 66 (Can.) (rejecting a labor union's appeal, brought under the Charter of Rights and Freedoms, and holding that the government was allowed to disregard the union's pay equity agreement);
178. Gosselin v. Quebec (A.G.), [2002] 4 S.C.R. 429, 430, 2002 SCC 84 (Can.) (dismissing appellant's claim that a different welfare base payment for individuals above and below the age of thirty violated the Charter of Rights and Freedoms and the Charter of Human Rights and Freedoms).
179. See Health Servs. & Support-Facilities Subsector Bargaining Ass'n v. British Columbia, [2007] 2 S.C.R. 391, 392, 2007 SCC 27 (Can.) (holding elements of the Health and Social Services Delivery Improvement Act unconstitutional because they "invalidated important provisions of collective agreements then in force").
180. MARK TUSHNET, WEAK COURTS, STRONG RIGHTS: JUDICIAL REVIEW AND SOCIAL WELFARE RIGHTS IN COMPARATIVE CONSTITUTIONAL LAW 264 (2007) (asserting that with regards to the enforcement of social and economic rights, "weak-form judicial review is generally attractive" and "[njervousness about extending weak-form review to first-generation rights is misplaced").
181. Part I ofthe Constitution Act § 7.
182. INDIA CONST., art. 21.
183. Gosselin, 4 S.C.R. at 437 (Can.) (remarking that neither the language of Section 7 nor common law jurisprudence warrants an application of the statute "as a basis for a positive state obligation to guarantee adequate living standards").
184. See, e.g., Unni Krishnan, JP v. Andhra Pradesh (1993) 1 S.C.R. 594, 706 (India) (pronouncing that the right to life conferred by Article 21 encompasses "all those rights which courts must enforce because they are basic to the dignified enjoyment of life");
185. Olga Tellis v. Bombay Mun. Corp. (1985) 2 S.C.R. 51, 55 (India) (stressing that the right to life conferred by Article 21 includes the right to livelihood, which is "[a]n equally important facet of [the] right" because "no person can live without the means of living"). Note that in 2002, a new Article 21A was added to the Indian Constitution. It warrants that "[t]he State shall provide free and compulsory education to all children ofthe age of six to fourteen years in such manner as the State may, by law, determine." INDIA CONST, art. 21 A: amended by the Constitution (Eighty-sixth Amendment) Act, 2002.
186. MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS 153(1999).
187. TORSTEN PERSSON & GUIDO TABELLINI, THE ECONOMIC EFFECTS OF CONSTITUTIONS 63 n.7 (2003).
188. See 2 MAX WEBER, ECONOMY AND SOCIETY 1094-1096 (Guenther Roth & Claus Wittich eds., 1978) (comparing the patrimonial and feudal systems with capitalist development and concluding that predictability, as provided by rational rules, is indispensable for economic growth in industrial capitalism).
189. DOUGLASS C. NORTH & ROBERT PAUL THOMAS, THE RISE OF THE WESTERN WORLD 1 (1973).
190. Id.
191. Id. at 1-2.
192. Douglass C. North & Barry R. Weingast, Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England, 49 J. ECON. HIST. 803, 804-05 (1989);
193. see also Barry Weingast, Constitutions as Governance Structures: The Political Foundations of Secure Markets, 149 J. INSTITUTIONAL & THEORETICAL ECON. 286, 293-94 (1993) (explaining how limits on the Crown's power over the domestic economy helped foster the Industrial Revolution in England).
194. See, e.g., Edward L. Glaeser & Andrei Shleifer, Legal Origins, Q.J. ECON. 1193, 1224 (2002) (noting the possible efficiency implications of decentralized and centralized forms of adjudication);
195. Rafael La Porta et al., Law and Finance, 106 J. POL. ECON. 1113, 1116-17 (1998) (discussing the negative correlation between ownership concentration of publicly traded companies and the quality of legal protection of investors);
196. Rafael La Porta et al., The Quality of Government, 15 J.L. ECON. & ORG. 222, 222 (1999) (demonstrating that good government has been shown to contribute to economic development);
197. Paul Mahoney, The Common Law and Economic Growth: Hayek Might Be Right, 30 J. LEGAL STUD. 503, 503-04 (2001) (referring to findings that countries with legal systems derived from common law traditions have provided superior investor protections).
198. See Erik Heinrich, Why Canada's Banks Don't Need Help (But Got It Anyway), TIME, Nov. 10, 2008, http://www.time.com/time/business/article/08599, 1855317, 00.html (observing that due to Canada's choice of a regulatory system that enforced stricter regulations on investment dealers, Canadian banks have fared better in the current economic crisis).
199. See Constitution Act §§ 91-92 (denoting that banking falls exclusively under the legislative authority of the Canadian Parliament while securities regulation is encompassed within the provisions of the provincial legislatures).
200. See Vincent DiLorenzo, Mortgage Market Deregulation and Equity Stripping Under Sanction of Law 2-3 (St. John's Sch. of Law Legal Studies Research Paper Series, Paper No. 08-0146, 2008) (concluding that federal banking regulators preferred a free-market approach following deregulation even in the face of abusive lending practices by market participants);
201. Heinrich, supra note 136.
202. See JÜRGEN HABERMAS, BETWEEN FACTS AND NORMS 127-128 (William Rehg trans., MIT Press 1996) (1992) (discussing how the embodiment of the discourse principle through the medium of law shapes the development of a system of rights).
203. See ACKERMAN, supra note 52, at 4-5 (contending that the Constitution represents the people's solemn commitments and principles, which are not to be undermined by politicians).
204. See PHILIPP K.LIVER, THE NATIONAL PARLIAMENTS IN THE EUROPEAN UNION: A CRITICAL VIEW ON EU CONSTITUTION-BUILDING 5-6 (2006) (debating the benefits of the involvement of national parliamentary bodies in the construction of the E.U. constitution).
205. The works that propose various versions of this " consociational" approach are too numerous to cite here. A prominent exponent of this line of thought is Arend Lijphart. See, e.g., AREND LIJPHART, DEMOCRACY IN PLURAL SOCIETIES 1 (1977) (positing that plural societies are capable of achieving and sustaining a stable, democratic government).
206. But see DONALD L. HOROWITZ, ETHNIC GROUPS IN CONFLICT 573 (2000) (providing a more skeptical view of consociational power-sharing models).
207. LIJPHART, supra note 142, at 5.
208. HOROWITZ, supra note 142, at 573-578.
209. See Sujit Choudhry, Does the World Need More Canada? The Politics of the Canadian Model in Constitutional Politics and Political Theory, in CONSTITUTIONAL DESIGN FOR DIVIDED Societies: Integration or Accommodation?, supra note 6, at 141, 145 (stating that the Canadian constitutional documents have prevented the English-speaking majority from evading "unilaterally the protection offered to Quebec by federalism").
210. Agreement Reached in the Multi-Party Negotiations, U.K.-Ir., Apr. 10, 1998, 37 I.L.M. 751 (1998).
211. See John MacGarry & Brandon O'Leary, Consociation and Its Critics: Northern Ireland After the Belfast Agreement, in CONSTITUTIONAL DESIGN FOR DIVIDED SOCIETIES: INTEGRATION OR ACCOMMODATION?, supra note 6, at 369, 407-408 (reflecting on the deep political divides that persist in Northern Ireland even after the Good Friday Agreement).
212. See, e.g.. Ran Hirschl, The Theocratic Challenge to Constitution Drafting in Post-conflict States, 49 Wm. & Mary L. Rev. 1179, 1209 (2008) ("In Malaysia and Nigeria,... national high courts have drawn upon federal/provincial jurisdictional boundaries to override legislative manifestations of popular religious drift at the provincial/state level.").
213. See The BHV Question: Belgium's Governmentlessness, ECONOMIST, Nov. 10, 2007, at 38 (reporting on the inability of Belgian politicians to form a consensus government).
214. See Lebanon: Peace for a While, ECONOMIST, May 24, 2008, at 67 (discussing Hezbollah's destabilizing role amidst the current coalitions of Christians, Druze, Sunnis, and others).
215. See Lift the Siege of Gaza: Israel and the Palestinians, ECONOMIST, Dec. 20, 2008, at 16 (describing the divide between the nationalist Fatah movement and the Islamist Hamas movement).
216. See Cote d'lvoire: Country Outlook, EIU VIEWSWIRE, Mar. 1, 2009, at 2, available at 2009 WLNR 4572534 (explaining the continued instability of the power-sharing arrangement between the government and northern rebels).
217. See Johanna Mendelson Forman, Striking Out in Baghdad: How Postconflict Reconstruction Went Awry, in NATION-BUILDING: BEYOND AFGHANISTAN AND IRAQ 196, 208-09 (Francis Fukuyama ed., 2006) (emphasizing the importance of multilateral initiatives to stabilize and rebuild Iraq in the wake of a failed American effort);
218. Margin G. Weinbaum, Rebuilding Afghanistan: Impediments, Lessons, and Prospects, in NATION-BUILDING: BEYOND AFGHANISTAN AND IRAQ, supra, at 125, 125 (lamenting Afghanistan's rebuilding troubles and positing that its lack of success is due to an insecure environment and deep ethnic divisions).
219. See Barnett R. Rubin, Crafting a Constitution for Afghanistan, J. DEMOCRACY, July 2004, at 5, 5, 10 (conveying uncertainty about the long-term democratic prospects for Afghanistan despite adopting a newly written constitution);
220. Edward Wong, Iraqi Officials Declare Charter Has Been Passed, N.Y. TIMES, Oct. 26, 2005, at Al (describing how the Iraqi Constitution passed by a surprisingly narrow margin).
221. See John F. Clark, The Collapse of the Democratic Experiment in the Republic of Congo: A Thick Description, in THE FATE OF AFRICA'S DEMOCRATIC EXPERIMENTS, 96, 99-100 (Leonardo Alfonso Villalón & Peter Von Doepp eds., 2005) (describing the violence that followed the adoption of Congo's 1992 Constitution);
222. Filip Reyntjens, Constitution-Making in Situations of Extreme Crisis: The Case of Rwanda and Burundi, 40 J. AFR. L. 234, 235-36 (1996) (pointing out that the 1993 Arusha Peace Accords between the Rwandan government and the rebel groups resulted in a constitutional amendment but ultimately failed to prevent the resumption of the civil war).
223. The 2002 Machakos Protocol in the Sudan amounted to constitutional negotiations between Khartoum and the southern rebels. Christina Murray & Catherine Maywald, Subnational Constitution-Making in Southern Sudan, 37 RUTGERS L.J. 1203, 1207-08 (2006). This did not, however, stop the crisis in the western region of Darfur in the following year.
224. Samantha Power, Dying in Darfur: Can Ethnic Cleansing in Sudan Be Stopped?, NEW YORKER, Aug. 30, 2004, at 56, 60-61.
225. See Sri Lanka Says Leader of Rebels Has Died, N.Y. TIMES, May 18, 2009, at A4 (discussing the Sri Lankan government's proclamation of final victory in the conflict after a battle in which 250 rebel fighters were killed, including the rebel leader).
226. See, e.g., Dibyesh Anand, The Violence of Security: Hindu Nationalism and the Politics of Representing 'the Muslim' as a Danger, 94 THE ROUND TABLE 203, 203-04 (2005) (discussing the Hindu-Muslim rioting in the state of Gujarat that led to over 2, 000 deaths and theorizing that the Hindutva discourse is only fueling the cycle of violence).
227. The major religion-related attacks on several hotels in Mumbai (November 2008) and the turmoil surrounding the demolition of the Babri Mosque in Ayodha (December 1992) are two notable examples. See Not Just About Terrorists, ECONOMIST, Dec. 13, 2008, at 51, 51-52 (reflecting on the Mumbai attack and discussing how the Hindu-nationalist Bharatiya Janata Party is already attempting to exploit it for political advantage);
228. Celia W. Dugger, Hindu Justifies Mass Killings of Muslims in Reprisal Riots, N.Y. TIMES, Mar. 5 2002, at A4 (reporting on a fresh outbreak of Hindu-Muslim violence and discussing the decade of back-and-forth reprisals that followed the destruction of the Mosque by a mob).
229. Hirschl, supra note 148, at 1179-81, 1184-1185.
230. I elaborate on these shortcomings of consociational models in Ran HIRSCHL, SACRED Judgments: The Challenge of Constitutional Theocracy (forthcoming 2010)
231. in Ran Hirschl, Constitutional Theocracy, in THE LIMITS OF CONSTITUTIONAL DEMOCRACY (Stephen Macedo & Jeffrey Tulis, eds.) (forthcoming 2010).
232. See DAVID LAITIN, HEGEMONY AND CULTURE: POLITICS AND CHANGE AMONG THE YORUBA, at x-xi (1986) (claiming that the sociocultural division between Christian and Muslim Yoruba has not resulted in a political division between the two religious groups).
233. STEVEN I. WILKINSON, VOTES AND VIOLENCE: ELECTORAL COMPETITION AND ETHNIC RIOTS IN INDIA 17-18 (2006).
234. see, e.g., ashutosh varshney, ethnic conflict and civic life: hindus and Muslims in India 14-15, 173-80 (2002) (contrasting the cities of Hyderabad and Lucknow, and positing that the economic symbiosis that exists between Hindus and Muslims in Lucknow helps explain the relative lack of communal tension and violence in Lucknow compared to Hyderabad);
235. id. at 259, 261 (concluding that the "integrated character" of business organizations in the old city of Surat was "highly effective in keeping riots confined to the shantytowns"; "Hindu and Muslim businessmen, who had worked together for years, were able to call on each other's time, contacts, and goodwill" in order to quash incendiary rumors that would have otherwise incited communal violence).
236. I thank Gaurav Toshniwal for bringing the following examples to my attention.
237. See John R. Schindler, Europe's Unstable Southeast, 14 NAVAL WAR C. REV. 15, 29 ("The desire of ardent Albanian nationalists for union with Kosovo is hardly secret, and it took tangible and violent form in late 2000 with the emergence in Macedonia of an Albanian insurgent force, the National Liberation Army, which promptly launched attacks on Macedonian security forces.").
238. See id. (asserting that Macedonia is a nation "[c]onceived by most citizens as a state by and for Slavic Macedonians, who align more with the Serbs and Bulgarians than with the Albanian minority).
239. See Ian Fisher, Macedonia Peace Signed, but Soon After, Artillery Booms, N.Y. TIMES, Aug. 14, 2001, at A3 (reporting that "[t]he bitter and distrustful leaders of Macedonia's two main ethnic groups" finally signed the peace deal, ending months of fighting and putting Macedonia "a major step closer to a deployment of 3, 500 NATO troops").
240. See Ohrid Framework Agreement §§ 3.1-3.3, Aug. 13, 2001, available at http://faq.macedonia.org/politics/framework-agreement.pdf (providing for a decentralized government by granting more power to local officials, redistricting municipalities to accord with the census, and allowing municipal councils to select their own police chiefs);
241. id. § 6.5 ("Any other language [in addition to Macedonian] spoken by at least 20 percent of the population is also an official language.").
242. In March 2001, during the early stages of the conflict and only a few months before the Ohrid Agreement, the European Community signed the Stabilisation and Association Agreement with Macedonia, which focused on promoting regional peace, stability, free trade, and general cooperation among the signing parties. Stabilisation and Association Agreement, E.C.-Maced., pmbl., Mar. 26, 2001, available at http://ec.europa.eu/enlargement/pdf/the- former-yugoslav-republic-of-macedonia/saa03-0l-en.pdf. The Agreement also stipulated that Macedonia was a "potential candidate for EU membership" upon implementation of the Agreement. Id. The fulfillment of that goal, however, has not yet occurred.
243. See Knaus Gerald et al., The Political Economy of Interethnic Relations: Ahmeti's Village or the Macedonian Case, in NATIONALISM AFTER COMMUNISM: LESSONS LEARNED 101, 102, 144 (Alina Mungiu-Pippidi & Ivan Krastev eds., 2004) (documenting the impact of "diminishing resources and collapsing lifestyles" on Macedonia's ethnic divisions and arguing that if the European Union wants there to actually be a stable, joint polity, it will require a serious commitment to break the "zero-sum" dynamic between the two groups).
244. Approaching Europe: The Balkans, ECONOMIST, Nov. 5, 2005, at 55.
245. See S.C. Res. 541, HH 1-2, U.N. Doc. S/RES/541 (Nov. 18, 1983) (calling on "all states to withhold recognition from any Cypriot state other than the Republic of Cyprus");
246. S.C. Res. 550, U 2, U.N. Doc. S/RES/550 (May 11, 1984) (identifying the Turkish Republic of Northern Cyprus as a secessionist entity and calling on all states to refuse to facilitate or assist the TRNC in any way).
247. VAN COUFOUDAKIS, CYPRUS: A CONTEMPORARY PROBLEM IN HISTORICAL PERSPECTIVE 36, 57 (2006).
248. Amberin Zaman & Phillip Mark, Greek Cypriots Quash Plan to Reunify Island, L.A. TIMES, Apr. 25, 2004, at A3.
249. Thomson Prentice, World Health Org., Health, History and Hard Choices: Funding Dilemmas in a Fast-Changing World, Presentation at the Center on Philanthropy at Indiana University Symposium: Health and Philanthropy: Leveraging Change 7 (Aug. 24-25, 2006), http://www.who.int/global-health- histories/seminars/presentation07.pdf.
250. ROVING MARS (Walt Disney Pictures 2006).