Subconstitutionalism

Stanford Law Review

Volumn 62, Issue 6, 2010, Pages 1583-1628

  Ginsburg, Tom ^a   Posner, Eric A ^a  

^a UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

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EID: 77954719032     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (141)

1. THOMAS O. HUEGLIN & ALAN FENNA, COMPARATIVE FEDERALISM: A SYSTEMATIC INQUIRY 56-57 (2006) (listing federalist states); F.L. Morton, Provincial Constitutions in Canada, Address at the Conference on Federalism and Sub-national Constitutions: Design and Reform *2 & *5 n.3 (Mar. 22-26, 2004), available at http://camlaw.rutgers.edu/statecon/subpapers/morton.pdf. South Africa allows its provinces to adopt constitutions, subject to approval by the Constitutional Court, but so far only one province, the Western Cape, has successfully done so. See WESTERN CAPE CONST., available at http://www.capegateway.gov.za/Text/2003/wcape_constitution_english.pdf. The Constitutional Court failed to certify the constitution of KwaZulu-Natal. In India, only Kashmir has its own constitution. Russia's complicated federal structure involves six different types of subnational units, only some of which (republics and arguably oblasts) have the authority to adopt subnational constitutions. Robert F. Williams & G. Alan Tarr, Subnational Constitutional Space: A View from the States, Provinces, Regions, Länder, and Cantons, in FEDERALISM, SUBNATIONAL CONSTITUTIONS, AND MINORITY RIGHTS 3, 6 (G. Alan Tarr et al. eds., 2004). Other countries that might be said to exhibit subconstitutionalism include Spain and Italy, both of which have recently given powers to provincial governments and have "autonomy statutes" issued by the national government that function as constitutions in some respects.
2. See generally COMPARATIVE FEDERALISM: THE EUROPEAN UNION AND THE UNITED STATES IN COMPARATIVE PERSPECTIVE (Anand Menon & Martin Schain eds., 2006); R. Daniel Kelemen, The Structure and Dynamics of EU Federalism, 36 COMP. POL. STUD. 184 (2003); J.H.H. Weiler, Federalism Without Constitutionalism: Europe's Sonderweg, in THE FEDERAL VISION: LEGITIMACY AND LEVELS OF GOVERNANCE IN THE UNITED STATES AND THE EUROPEAN UNION 54 (K. Nicolaĩdis & R. Howse eds., 2001).
3. See ROBERT D. COOTER, THE STRATEGIC CONSTITUTION 103-06 (2000). For example, a public good such as bus service may best be produced at a local level because information is easily available on routing, traffic, and other relevant parameters. Other public goods may be better produced at a higher level. A road or train system, for example, involves coordination among numerous localities and so might be better produced at the level of the region. Finally, some public goods are best produced at the national level: national defense is a paradigmatic example. Producing public goods at the wrong level can lead to wasteful duplication, as might occur if each coastal subunit had to have its own navy or each city had to produce its own portion of a highway.
4. See infra Part I.A (discussion of agency theory).
5. See JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT: LOGICAL FOUNDATIONS OF CONSTITUTIONAL DEMOCRACY 34-35 (1962).
6. See generally TIMOTHY BESLEY, PRINCIPLED AGENTS? THE POLITICAL ECONOMY OF GOOD GOVERNMENT (2006); Michael C. Jensen & William H. Meckling, Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure, 3 J. FIN. ECON. 305 (1976); Eric A. Posner, Agency Models in Law and Economics, in CHICAGO LECTURES IN LAW AND ECONOMICS (Eric A. Posner ed., 2000).
7. See Randall Strahan, Personal Motives, Constitutional Forms, and the Public Good: Madison on Political Leadership (Madison's principal-agent theory), in JAMES MADISON: THE THEORY AND PRACTICE OF REPUBLICAN GOVERNMENT 63, 84-89 (Samuel Kernell ed., 2003).
8. THE FEDERALIST NO. 51, at 344 (James Madison) (Paul Leicester Ford ed., 1898) ("Ambition must be made to counteract ambition.").
9. Id. ("A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.").
10. See BUCHANAN & TULLOCK, supra note 5, at 69-72.
11. See THE FEDERALIST NO. 10 (James Madison).
12. To be sure, Madison's thinking was subtler than this. He also seemed concerned that at times the people-the ultimate principal in the political system-would demand action on behalf of their short-term interests rather than longer-term ones. Madison's design also sought to insulate representatives from the people to overcome short-term thinking. The longer terms in the Senate for example, were thought to better identify with the long-term public interest, even if in contemporary terms we might see them as extending agency slack. See Strahan, supra note 7.
13. See MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS (1965). Group organization is costly, and there is no guarantee that groups will form simply because common interests are identified and aligned. This meant that some groups would have an easier time organizing than others; in particular, small groups with intensely held interests might find it easier to organize than large, more diffuse groups in which each individual member has a relatively low stake, such as consumer and taxpayer groups. Thus the problem of faction could not simply be solved through pluralism or adding more groups to the mix.
14. See generally Anne O. Krueger, The Political Economy of the Rent-Seeking Society, 64 AM. ECON. REV. 291 (1974); Gordon Tullock, The Welfare Costs of Tariffs, Monopolies, and Theft, 5 W. ECON. J. 224 (1967). Rent-seeking occurs when actors seek wealth through manipulating the economic environment rather than from generating new wealth.
15. See Russell Hardin, Why a Constitution?, in THE FEDERALIST PAPERS AND THE NEW INSTITUTIONALISM 100, 101, 102 (Bernard Grofman & Donald Wittman eds., 1989). See generally Barry R. Weingast, The Political Foundations of Democracy and the Rule of Law, 91 AM. POL. SCI. REV. 245, 245, 260-61 (1997).
16. See Torsten Persson, Gérard Roland & Guido Tabellini, Separation of Powers and Political Accountability, 112 Q.J. ECON. 1163 (1997). For skepticism, see Geoffrey Brennan & Alan Hamlin, A Revisionist View of the Separation of Powers, 6 J. THEORETICAL POL. 345 (1994).
17. THE FEDERALIST No. 78, at 382 (Alexander Hamilton) (Lawrence Goldman ed., 2008) (judicial review of the constitutionality of laws protects "intention of the people" from "intention of their agents").
18. 18. See Mathew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28 AM. J. POL. SCI. 165 (1984).
19. Ludwig Van den Hauwe, Public Choice, Constitutional Political Economy and Law and Economics, in 1 ENCYCLOPEDIA OF LAW AND ECONOMICS 603, 621 (Boudewijn Bouckaert & Gerrit De Geest eds., 2000); see also Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416, 424 (1956) ("If consumer-voters are fully mobile, the appropriate local governments, whose revenue-expenditure patterns are set, are adopted by the consumer-voters.").
20. Richard A. Epstein, Exit Rights Under Federalism, 55 Law & CONTEMP. PROBS. 147, 149-50 (1992) (citizen exit rights reduce government abuse).
21. Examples in the U.S. context include the frequent use of lawsuits by states to challenge federal regulatory authority, the Virginia and Kentucky Resolutions of 1798, and the Nullification Crisis of 1832, in which South Carolina resisted the collection of a new tariff by raising a small army. See JAMES A. GARDNER, INTERPRETING STATE CONSTITUTIONS 89, 91, 98 (2005).
22. See Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE. L.J. 1131, 1133 (1991).
23. See JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980).
24. See ROBERT D. COOTER, THE STRATEGIC CONSTITUTION 288-89 (2000); William A. Fischel & Perry Shapiro, A Constitutional Choice Model of Compensation for Takings, 9 INT'L REV. L. & ECON. 115 (1989); Saul Levmore, Just Compensation and Just Politics, 22 CONN. L. REV 285, 311 (1990). But see Daryl J. Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. CHI. L. REV. 345 (2000).
25. See Weingast, supra note 15.
26. For a recent discussion, see Rosalind Dixon & Richard Holden, Amending the Constitution via Article V and the Effect of Voting Rule Inflation (Jan. 28, 2009) (unpublished manuscript, on file with authors).
27. See generally Tom Ginsburg, Public Choice and Constitutional Design, in RESEARCH HANDBOOK ON PUBLIC CHOICE AND PUBLIC LAW 261, 268 (Daniel A. Farber & Anne Joseph O'Connell eds., 2010).
28. India's constitution has a varied level of amendment thresholds depending on the issue. INDIA CONST. art. 368, § 2.
29. Other rationalist theories of constitutionalism include the idea of precommitment, a device to impose intertemporal constraints on action. See, e.g., JON ELSTER, ULYSSES AND THE SIRENS: STUDIES IN RATIONALITY AND IRRATIONALITY 39 (1979); STEPHEN HOLMES, PASSIONS AND CONSTRAINT: ON THE THEORY OF LIBERAL DEMOCRACY 134 (1995); CASS R. SUNSTEIN, DESIGNING DEMOCRACY: WHAT CONSTITUTIONS DO 96-114 (2001); Stephen Holmes, Precommitment and the Paradox of Democracy, in CONSTITUTIONALISM AND DEMOCRACY 195, 236 (Jon Elster & Rune Slagstad eds., 1988). But see JON ELSTER, ULYSSES UNBOUND: STUDIES IN RATIONALITY, PRECOMMITMENT, AND CONSTRAINTS (2000) (revisiting the Ulysses analogy and finding it wanting). Another view of constitutional rights focuses on distributional problems. Eric Rasmusen, The Economics of Desecration: Flag Burning and Related Activities, 27 J. LEGAL STUD. 245 (1998) (discussing Texas v. Johnson, 491 U.S. 397 (1989), as addressing the distributional problem between those who desecrate the flag and those who venerate the flag).
30. See ALBERTO ALESINA & ENRICO SPOLAORE, THE SIZE OF NATIONS (2003); David Lake & Angela O'Mahoney, The Incredible Shrinking State: Explaining Change in the Territorial Size of Countries, 48 J. CONFLICT RESOL. 699 (2004).
31. We do not address agency costs that result from the relationship between the populations of the substates and the new national government of the union.
32. Technically, agency costs may be just as severe, in the sense that the public may have no less trouble monitoring and sanctioning the government. What we mean is that because the government loses powers, it can do less harm to the public, so that the constitution becomes a less important institution.
33. There are other possible reasons for convergence, such as learning, as we discuss infra Part V.A.
34. It is ambiguous as to whether the now third-tier state loses power to the subnational entity or the superstate.
35. See supra text accompanying note 10.
36. See BUCHANAN & TULLOCK, supra note 5, at 97-116.
37. John Dinan, Patterns of Subnational Constitutionalism in Federal Countries, 39 RUTGERS L.J. 837, 844 (2008).
38. Venezuela is apparently the only federal state with a unicameral parliament. Id. at 859.
39. Louis Massicotte, Legislative Unicameralism: A Global Survey and a Few Case Studies, 7 J. LEGIS. STUD. 151, 151 (2001).
40. Although we put aside this possibility for expositional purposes, we should acknowledge that a substate might strengthen rights if it fears that the superstate system will cause the substate government to act worse rather than better.
41. 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 113-14 (1991); Heather K. Gerken, The Hydraulics of Constitutional Reform: A Skeptical Response to Our Undemocratic Constitution, 55 DRAKE L. REV. 925, 929 (2007).
42. Dinan, supra note 37, at 843-45; see also Morton, supra note 1. In Australia entrenchment is weak (requiring either parliamentary consent or, sometimes, referenda) and, like in the United States, provincial constitutions are amended much more frequently than the national constitution. See John Waugh, Australia's State Constitutions, Reform and the Republic, 3 AGENDA 59, 61-62 (1996).
43. However, a government that is weak because of a structure might have trouble proposing amendments in the first place; if so, structure differs crucially from rights. A strong government might easily change rights if constitutional amendment is easy; a weak government might not be able to do the same.
44. Eric Biber, The Price of Admission: Causes, Effects and Patterns of Conditions Imposed on States Entering the Union, 46 AM. J. LEGAL HIST. 119, 128 (2004).
45. For a detailed list, see Initiative & Referendum Institute at the University of Southern California, http://www.iandrinstitute.org/statewide_i%26r.htm (last visited Apr. 1, 2010).
46. E. DOTSON WILSON & BRIAN S. EBBERT, CALIFORNIA'S LEGISLATURE 11 (2006), available at http://www.leginfo.ca.gov/pdf/Ch_02_CaLegi06.pdf.
47. 369 U.S. 186 (1962).
48. F. Andrew Hanssen, Learning About Judicial Independence: Institutional Change in the State Courts, 33 J. LEGAL STUD. 431, 442-43 (2004).
49. 49. GARDNER, supra note 21, at 26 (noting that texts of state constitutions are similar to parallel provisions of the U.S. Constitution).
50. CAL. CONST. art. I, § 25.
51. See GARDNER, supra note 21, at 173.
52. JEFFREY M. SHAMAN, EQUALITY AND LIBERTY IN THE GOLDEN AGE OF STATE CONSTITUTIONAL LAW 54 (2008).
53. See, e.g., ALA. CONST. art. IV, § 88 (right to adequate maintenance of the poor); MASS. CONST. amend. XLVII (right to food and shelter in time of emergency); see JOHN J. DINAN, THE AMERICAN STATE CONSTITUTIONAL TRADITION 211-12 (2009).
54. The Montana right was an issue, though not dispositive, in a recent case involving a physician-assisted suicide. Baxter v. Montana, No. DA 09-0051, 2009 WL 5155363, at *1, *2 (Mont. Dec. 31, 2009).
55. N.J. CONST. art. I, para. 19 (right to collective bargaining); Hill v. Nat'l Collegiate Athletic Ass'n, 865 P.2d 633, 644 (Cal. 1994).
56. See, e.g., Adamson v. California, 332 U.S. 46, 71-72 (1947) (Black, J., dissenting) (arguing for full incorporation of the bill of rights against the majority's selective incorporation theory). The notion of incorporation is sometimes traced to Gitlow v. New York, 268 U.S. 652 (1925).
57. The major exceptions are the Second Amendment, the Grand Jury Indictment Clause of the Fifth Amendment, and the Seventh Amendment. 16A AM. JUR. 2d Constitutional Law § 422 (2010).
58. ADVISORY COMM'N ON INTERGOVERNMENTAL RELATIONS, CHANGING PUBLIC ATTITUDES ON GOVERNMENT AND TAXES 14 (1991), quoted in G. Alan Tarr, Introduction to 1 STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY 1, 4 (G. Alan Tarr & Robert F. Williams eds., 2006).
59. Robert F. Williams, Rights, in 3 STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY 7, 17 (G. Alan Tarr & Robert F. Williams eds., 2006) (discussing Michigan amendments in 1930s and 1950s).
60. FLA. CONST. art. I, § 12; see GARDNER, supra note 21, at 127.
61. Williams, supra note 59, at 17 ("[T]here have been surprisingly few serious proposals to add to or change these 'rights of the accused.'" (citations omitted)).
62. SHAMAN, supra note 52, at 46-47.
63. SHAMAN, supra note 52, at 249-53.
64. SHAMAN, supra note 52, at 230-31. Cases cited include Rasmussen ex rel. Mitchell v. Fleming, 741 P.2d 674 (Ariz. 1987); Drabick v. Drabick, 200 Cal. App. 3d 185 (Ct. App. 1988); In re Caulk, 480 A.2d 93 (N.H. 1984).
65. See DuPree v. Alma Sch. Dist. No. 30, 651 S.W.2d 90, 93 (Ark. 1983); Serrano v. Priest II, 557 P.2d 929, 951 (Cal. 1977); Serrano v. Priest I, 487 P.2d 1241, 1244 (Cal. 1971); Robinson v. Cahill, 303 A.2d 273, 277 (N.J. 1973).
66. Richard C. Archibold & Abby Goodnough, California Voters Ban Gay Marriage, N.Y. TIMES, Nov. 5, 2008, available at http://www.nytimes.com/2008/11/06/us/politics/06ballot.html; Hawaii Kills Same-Sex Civil Unions Bill, CBS NEWS, Jan. 29, 2010, available at http://www.cbsnews.com/stories/2010/01/29/national/main6155514.shtml. A similar effort was initiated but failed in Massachusetts after Goodbridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003). See SHAMAN, supra note 52, at 250.
67. SHAMAN, supra note 52, at 247.
68. Stephen F. Smith, The Supreme Court and the Politics of Death, 94 VA. L. REV. 283, 329 n.161 (2008).
69. Bruce E. Cain & Roger G. Noll, Malleable Constitutions: Reflections on State Constitutional Reform, 87 TEX. L. REV. 1517, 1524 (2009).
70. Donald S. Lutz, Toward a Theory of Constitutional Amendment, 88 AM. POL. SCI. REV. 355, 360 (1994).
71. Id. at 361 tbl.4.
72. Lutz finds that requiring a legislature to pass an amendment proposal twice has little effect on the difficulty of adoption. Id. at 361. He also produces an index of amendment difficulty, which takes value 3.60 for Delaware and has value 5.10 for the easiest method at the federal level. Id. at 362.
73. Lutz finds that requiring a legislature to pass an amendment proposal twice has little effect on the difficulty of adoption. Id. at 367 tbl.A-1.
74. G. Alan Tarr, Introduction to 3 STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY, supra note 59, at 1, 2; see also Lutz, supra note 70, at 367.
75. Cain & Noll, supra note 69, at 1519-20 (noting that amendments are increasing in frequency and specificity, while revisions are more infrequent).
76. Christopher W. Hammons, State Constitutional Reform: Is It Necessary?, 64 ALB. L. REV. 1327, 1332 (2001) (emphasizing that "public policy" provisions in constitutions benefit narrow groups).
77. See id. at 1335-36 (discussing calls for reform); see also LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 75 (3d ed. 2001) (noting "inflated" state constitutions).
78. Hammons finds that state constitutions devote an average of forty percent of their text to such non-constitutional "public policy" issues. The comparable figure at the federal level is six percent. Hammons, supra note 76, at 1333.
79. This approach could be extended. States have lost sovereignty at other periods of U.S. history, notably at the time of ratification of the U.S. Constitution, and after the Civil War. We predict (or "retrodict") that the rate of amendment of state constitutions increased after each event.
80. Pearson's chi = 574, p = 0.00.
81. The overall rate for this set of countries is.10 before 1941,. 228 from 1941 through 1970, and. 226 after 1970. Pearson's chi = 516, p = 0.00. Our analysis here includes both amendment and revision.
82. The other subconstitutions we analyze below experienced similar increases during this period.
83. See Cain & Noll, supra note 69, at 1528-30. But see ELISABETH R. GERBER, INTEREST GROUP INFLUENCE IN THE CALIFORNIA INITIATIVE PROCESS 3 (1998).
84. Cain & Noll, supra note 69, at 1528-31.
85. The Treaty of Lisbon was ratified in December 2009. Though not styled a constitution in the same sense that the European Constitution was, the treaty has very similar provisions and is regarded as a quasi-constitutional document.
86. Philipp Kiiver, The National Parliaments in an Enlarged Europe and the Constitutional Treaty, in THE CONSTITUTION FOR EUROPE AND AN ENLARGING UNION: UNITY IN DIVERSITY? 85, 87-88 (Kirstyn Inglis & Andrea Ott eds., 2005).
87. We follow Kiiver. See id. at 88-89.
88. Ulrich Karpen, Subnational Constitutionalism in Germany, paper presented at Center for State Constitutional Studies Conference on Subnational Constitutions and Federalism: Design & Reform 14 (Mar. 22, 2004), available at http://www.camlaw.rutgers.edu/statecon/subpapers/karpen.pdf.
89. A related trend is the simultaneous push for regional representation at the European level. In 1994, the EU established the Committee of Regions to represent subnational units. This demonstrates the flexibility of subconstitutionalism, as previously rigid constitutional boundaries may give way to units of different geographic scope in response to demands for public goods.
90. Treaty of Amsterdam Amending the Treaty on European Union, The Treaties Establishing the European Communities and Certain Related Acts art. 1, Oct. 2, 1997, 1997 O.J. (C 340) 1.
91. T.C. HARTLEY, THE FOUNDATIONNS OF EUROPEAN COMMUNITY LAW 143-44 (6th ed. 2007).
92. 92. Helen Keller & Alec Stone Sweet, Assessing the Impact of the ECHR on National Legal Systems, in A EUROPE OF RIGHTS: THE IMPACT OF THE ECHR ON NATIONAL LEGAL SYSTEMS 677, 686 (Helen Keller & Alec Stone Sweet eds., 2008).
93. Helen Keller & Alec Stone Sweet, Assessing the Impact of the ECHR on National Legal Systems, in A EUROPE OF RIGHTS: THE IMPACT OF THE ECHR ON NATIONAL LEGAL SYSTEMS 677, 686 (Helen Keller & Alec Stone Sweet eds., 2008).
94. Helen Keller & Alec Stone Sweet, Assessing the Impact of the ECHR on National Legal Systems, in A EUROPE OF RIGHTS: THE IMPACT OF THE ECHR ON NATIONAL LEGAL SYSTEMS 677, 686 (Helen Keller & Alec Stone Sweet eds., 2008).
95. See RAN HIRSCHL, TOWARDS JURISTOCRACY 10-16 (2004).
96. The Lisbon Treaty of 2009 may change this. Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, Dec. 13, 2007, 2007 O.J. (C 306) 1, available at http://eur-lex.europa.eu/en/treaties/index.htm.
97. This has been acknowledged by national courts. For example, see the Maastricht case, Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Oct. 12, 1993, 89 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 155 (F.R.G.), in which Germany's Federal Constitutional Court said that, as a condition of transfer of powers from Germany to European institutions, those institutions must satisfy German constitutional principles.
98. Lutz, supra note 70, at 369 (demonstrating that no European country has an amendment process as difficult as that of the U.S.).
99. European Comm'n, Copenhagen Accession Criteria, http://ec.europa.eu/enlargement/enlargement_process/accession_process/criteria/index_en.ht m (last visited Mar. 3, 2010).
100. For a discussion, see Karen E. Smith, The Evolution and Application of EU Membership Conditionality, in THE ENLARGEMENT OF THE EUROPEAN UNION 105 (Marise Cremona ed., 2003).
101. See European Comm'n, Enlargement, http://ec.europa.eu/enlargement/5th_enlargement/index_en.htm (last visited Apr. 8, 2010).
102. See, e.g., Özlem Denli, Freedom of Religion: Secularist Policies and Islamic Challenges, in HUMAN RIGHTS IN TURKEY 87, 97 (Zehra F. Kabasakal Arat ed., 2007) (noting that, since 1999, "more than one-third of the original text of the Constitution was amended" to bring it into compliance with the Copenhagen conditions).
103. 103. See Loi Constitutionelle No. 93-1256 du 25 novembre 1993, Journal Officiel de la Republique [J.O.] [Official Gazette of France], 26 novembre 1993, p. 16,296.
104. See Federico Fabbrini, Kelsen in Paris: France's Constitutional Reform and the Introduction of a Posteriori Constitutional Review of Legislation, 9 GERMAN L.J. 1297 (2008).
105. See Third Amendment of the Constitution Act, 1972 (Amendment No. 3/1972) (Ir.); Tenth Amendment of the Constitution Act, 1987 (Amendment No. 10/1987) (Ir.); Eleventh Amendment of the Constitution Act, 1992 (Amendment No. 11/1992) (Ir.); Eighteenth Amendment of the Constitution Act, 1998 (Amendment No. 18/1998) (Ir.); Twenty-Sixth Amendment of the Constitution Act, 2002 (Amendment No. 26/2002) (Ir.); Twenty-Eighth Amendment of the Constitution Act, 2009 (Amendment No. 28/2009) (Ir.).
106. Raw data on file with authors. See generally Comparative Constitutions Project, http://www.comparativeconstitutionsproject.org (last visited Feb. 22, 2010).
107. Single European Act, Feb. 28, 1986, 1987 O.J. (L 169) 1.
108. We take this approach because countries differ in their conventions of bundling amendments within a single legislative session. Some countries will bundle discrete topics within a single amendment, while others will pass distinct amendments for each provision of the constitution amended. Treating the country-year as the unit of analysis reduces the noise introduced from this variation.
109. A simple t-test (p < 0.002) confirms that the mean rate of amendment before 1987 (0.16) is lower than the mean rate for 1987-2008 (0.34).
110. We count amendments in forty-eight of sixty-nine years from 1918-86, for an overall rate of 0.70, so the rate has not increased dramatically since 1987, even though Mexico underwent democratization in the period. See, e.g., BEATRIZ MAGALONI, VOTING FOR AUTOCRACY: HEGEMONIC PARTY SURVIVAL AND ITS DEMISE IN MEXICO (2006); Chris Gilbreth & Gerardo Otero, Democratization in Mexico: The Zapatista Uprising and Civil Society, LATIN AM. PERSPECTIVES, July 2001, at 7.
111. Turkey might be considered a European state for purposes of this analysis, since many of its amendments involved efforts to demonstrate compatibility with the EU. Since the founding of modern Turkey in 1923, it has had four constitutions, amended in a total of twenty different years. The amendment rate from 1924-86 was 0.22 (excluding years in which a new constitution was adopted). Canada's amendment rate from 1867-1986 was 0.19.
112. See CONSTITUTIONS OF THE COUNTRIES OF THE WORLD: THE FEDERAL CONSTITUTIONAL LAW OF THE REPUBLIC OF AUSTRIA, at iii-iv (Rüdiger Wolfrum & Rainer Grote eds., 2005).
113. See Fabbrini, supra note 104, at 1298.
114. See France Backs Constitution Reform, BBC NEWS, July 21, 2008, http://news.bbc.co.uk/2/hi/7517505.stm.
115. GRUNDGESETZ [GG] [Constitution] art. 3 (women), art. 20a (environment) (F.R.G.).
116. Sixteenth Amendment of the Constitution Act, 1996 (Amendment No. 16/1996) (Ir.).
117. Ir. CONST., 1937, available at http://www.taoiseach.gov.ie/eng/Youth_Zone/About_the_Constitution,_Flag,_Anthem_Harp /Constitution_of_Ireland_-_Bunreacht_na_h%C3%89ireann.html.
118. See, e.g., Daniel A. Farber, Rights as Signals, 31 J. LEGAL STUD. 83 (2002); Mark Tushnet, The Inevitable Globalization of Constitutional Law, 49 VA. J. INT'L L. 985 (2009).
119. See David S. Law, Globalization and the Future of Constitutional Rights, 102 NW. U. L. REV. 1277 (2008); see also David S. Law, Generic Constitutional Law, 89 MINN. L. REV. 652 (2005).
120. See, e.g., F. Andrew Hanssen, Learning About Judicial Independence: Institutional Change in the State Courts, 33 J. LEGAL STUD. 431, 435 (2004) (providing detail on spread of judicial elections).
121. See Eric A. Posner & Cass Sunstein, The Law of Other States, 59 STAN. L. REV. 131 (2006).
122. See GERARD V. BRADLEY, CHURCH-STATE RELATIONSHIPS IN AMERICA 20-24 (1987).
123. Lutz, supra note 70, at 356.
124. Learning does not always result in parallel change or convergence, however. Over one-third of states explicitly guarantee equality for women, but the Equal Rights Amendment failed to be adopted in the federal constitution. Similarly, several states guarantee disability rights. Robert F. Williams, supra note 59, at 7, 13.
125. GARDNER, supra note 21, at 2-6.
126. GARDNER, supra note 21, at 8.
127. In re Advisory from the Governor, 633 A.2d. 664, 674 (R.I. 1993) (citing Chadha v. INS, 634 F.2d 408 (9th Cir. 1980), aff'd, 462 U.S. 919 (1983)), discussed in GARDNER, supra note 21, at 10.
128. Christopher R. Berry & Jacob E. Gersen, The Unbundled Executive, 75 U. CHI. L. REV. 1385, 1399-1401 (2008) (direct election of multiple executives at state levels).
129. Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416 (1956).
130. Scotland Act, 1998, c. 46 (Eng.); Government of Wales Act, 1998, c. 38 (Eng.).
131. See Robert Mnookin & Alain Verbeke, Persistent Nonviolent Conflict with No Reconciliation: The Flemish and Walloons in Belgium, 72 LAW & CONTEMP. PROBS. 151 (2009).
132. Eduardo J. Ruiz Vieytez, Federalism, Subnational Constitutional Arrangements, and the Protection of Minorities in Spain, in FEDERALISM, SUBNATIONAL CONSTITUTIONS, AND MINORITY RIGHTS 133, 139 (G. Alan Tarr, Robert F. Williams & Josef Marko eds., 2004).
133. Simone Pajno, Regionalism in the Italian Constitutional System, 9 DIRITTO & QUESTIONI PUBBLICHE 625, 638 (2009).
134. Manuel González Oropeza, Federalism and Sub National Constitutions: Design and Reform-Mexico, paper presented at Center for State Constitutional Studies Conference on Subnational Constitutions and Federalism: Design & Reform 3 (Mar. 22, 2004), available at http://camlaw.rutgers.edu/statecon/subpapers/oropeza.pdf.
135. Twelve Mexican States Now Protect Right to Life in Their Constitutions, CATHOLIC NEWS AGENCY, May 22, 2009, http://www.catholicnewsagency.com/news/twelve_mexican_states_now_protect_right_to_life_in_their_constitutions/.
136. Tania Groppi & Nicoletta Scattone, Italy: The Subsidiarity Principle, 4 INT'L J. CONST. L. 131, 132-33 (2006).
137. Germany seems to be the major exception to this pattern. Perhaps it is no coincidence that German Länder are losing power to the national government and the EU. See Karpen, supra note 88, 12.
138. U.S. and Argentinean states, for example, have followed their respective federal models of a separately elected chief executive, rather than a parliamentary system. This is so notwithstanding formal discretion to choose alternative forms. CONST. ARG., art. 5 ("Each Province shall adopt for itself a constitution under the republican, representative system, in accordance with the principles, declarations, and guarantees of the National Constitution."). This discretion is lacking in some other federalisms such as Brazil, Venezuela, and Mexico, in all of which the national constitution dictates the form of state government. See Constituição Federal, arts. 27-28 (Brazil) (describing state government structures); Constitución Política de los Estados Unidos Mexicanos [Const.], as amended, art. 115, Diario Oficial de la Federación [D.O.], 13 de Noviembre de 2007 (Mex.) (same); CONST. VENEZUELA, arts. 160, 162 (describing state-level office of governor and legislature.
139. In re: Certification of the Constitution of the Province of KwaZulu-Natal 1996 (11) BCLR 1419 (CC) at 54-55 (S. Afr.).
140. See, e.g., BARDO FASSBENDER, THE UNITED NATIONS CHARTER AS THE CONSTITUTION OF THE INTERNATIONAL COMMUNITY (2009) (arguing that the UN charter has constitutional status); RULING THE WORLD?: CONSTITUTIONALISM, INTERNATIONAL LAW, AND GLOBAL GOVERNANCE (Jeffrey L. Dunoff & Joel P. Trachtman eds., 2009) (collecting papers discussing world constitutionalism); Anne Peters & Klaus Armingeon, Introduction-Global Constitutionalism from an Interdisciplinary Perspective, 16 IND. J. GLOBAL LEGAL STUD. 385 (2009) (arguing that human rights and related norms have constitutional status in international law); Ernst-Ulrich Petersmann, The WTO Constitution and Human Rights, 3 J. INT'L ECON. L. 19 (2000) (arguing that human rights norms have constitutional status in international trade law).
141. See, e.g., JEREMY A. RABKIN, LAW WITHOUT NATIONS?: WHY CONSTITUTIONAL GOVERNMENT REQUIRES SOVEREIGN STATES (2005) (arguing that trends in international governance threaten American constitutional values).