Working Group on Law and Democracy

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Now showing 1 - 20 of 39
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    On the Paradox of State Religion and Religious Freedom
    (Oxford Research Encylopedia, 2019) Elkins, Zachary
    This essay explores the well-known tension between the commitment to a state religion and expressions of tolerance for other religions. The background question concerns the consequences of state religion, the more suspect of the two commitments, at least with respect to intergroup relations. A useful conception of state religion is as a central part of an identity regime, which can take several forms in national constitutions. It seems likely that state religion—and other exclusive elements of identity regimes—threaten the national attachment of ethnic minorities in ways that unwind many of the benefits of tolerance provisions. A simple typology helps to understand the variation in these provisions across jurisdictions and over time, and original historical cross-national data on national constitutions describes this variation in some detail. The evidence suggests that the world’s constitutions are moving in strikingly divergent directions with respect to their provisions on religion.
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    On Waves, Clusters, and Diffusion: A Conceptual Framework
    (2005) Elkins, Zachary; Simmons, Beth
    This article makes a conceptual and theoretical contri- bution to the study of diffusion. The authors suggest that the concept of diffusion be reserved for processes (not outcomes) characterized by a certain uncoordinated interdependence. Theoretically, the authors identify the principal sources of clustered policy reforms. They then clarify the characteristics specific to diffusion mecha- nisms and introduce a categorization of such processes. In particular, they make a distinction between two types of diffusion: adaptation and learning. They argue that this categorization adds conceptual clarity and distinguishes mechanisms with distinct substantive consequences.
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    Baghdad, Tokyo, Kabul ...: Constitution Making in Occupied States
    (2008) Elkins, Zachary; Ginsburg, Tom; Melton, James
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    Commitment and Diffusion: How and Why National Constitutions Incorporate International Law
    (2008) Elkins, Zachary; Ginsburg, Tom; Chernykh, Svitlana
    Drafters of new constitutions face a bewildering array of choices as they seek to design stable and workable political institutions for their societies. One such set of choices concerns the status of interna- tional law in the domestic legal order. In a global era, with an ex- panding array of customary and treaty norms purporting to regulate formerly domestic behavior, this question takes on political salience. This paper seeks to describe the phenomenon of constitutional incor- poration of international law in greater detail and provide a prelimi- nary empirical test of the competing explanations for it. First, the dis- cussion focuses on the concepts of monism and dualism, which have become conventional terms used by lawyers to describe the interac- tion of domestic and international legal systems. Second, a theory of commitments as well as the advantages and disadvantages of interna- tional law are set forth. Third, empirical implications are developed for the precommitment and diffusion theories, which are then tested. Findings show that adopting international law is a useful strategy for democracies to lock in particular policies, encourage trust in govern- ments and state regimes, and bolster global reputations.
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    Military Occupations and their Constitutional Residue
    (2008) Elkins, Zachary; Ginsburg, Tom; Melton, James
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    The Citizen as Founder: Public Participation in Constitutional Approval
    (2008) Elkins, Zachary; Ginsburg, Tom; Blout, Justin
    Public involvement in constitution making is increasingly considered to be essential for the legitimacy and effectiveness of the process. It is also becoming more widespread, spurred on by constitutional advisors and the international community. Yet we have remarkably little empirical evidence of the impact of participation on outcomes. This essay examines hypotheses on the effect of one aspect of public participation in the constitution-making process—ratification— and surveys available evidence. We find some limited support for the optimistic view about the impact of ratification on legitimacy, conflict, and constitutional endurance.
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    Ancillary Powers of Constitutional Court
    (2009) Ginsburg, Tom; Elkins, Zachary
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    Lessons From the Decoding and Coding of National Constitutions
    (2010) Elkins, Zachary; Ginsburg, Tom; Melton, James
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    On the Evasion of Executive Term Limit
    (2011) Ginsburg, Tom; Melton, James; Elkins, Zachary
    Executive term limits are precommitments through which the polity restricts its ability to retain a popular executive down the road. But in recent years, many presidents around the world have chosen to remain in office even after their initial maximum term in office has expired. They have largely done so by amending the constitution, sometimes by replacing it entirely. The practice of revising higher law for the sake of a particular incumbent raises intriguing issues that touch ultimately on the normative justification for term limits in the first place. This Article reviews the normative debate over term limits and identifies the key claims of proponents and opponents. It introduces the idea of characterizing term limits as a type of default rule executives may overcome if sufficient political support is apparent. It then turns to historical evidence to assess the probability of attempts, both successful and unsuccessful, to evade term limits. It finds that, notwithstanding some high-profile cases, executives observe term limits with remarkable frequency in consolidated democracies. The final Part considers alternative institutional designs that may accomplish some of the goals of term limits, but finds that none are likely to provide a perfect substitute. Term limits have the advantage of clarity, which very likely increases their enforceability, and they should be considered an effective part of the arsenal of democratic institutions.
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    Latin American Presidentialism in Comparative and Historical Perspective
    (2011) Cheibub, José; Elkins, Zachary; Ginsburg, Tom
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    Comments on Law and Versteeg's The Declining Influence of the United States Constitution
    (2012) Elkins, Zachary; Ginsburg, Tom; Melton, James
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    Getting to Rights: Treaty Ratification, Constitutional Convergence, and Human Rights Practice
    (2013) Elkins, Zachary; Ginsburg, Tom; Simmons, Beth
    This Article examines the adoption of rights in national constitutions in the post-World War II period in light of claims of global convergence. Using a comprehensive database on the contents of the world’s constitutions, we observe a qualified convergence on the content of rights. Nearly every single right has increased in prevalence since its introduction, but very few are close to universal. We show that interna- tional rights documents, starting with the Universal Declaration of Human Rights, have shaped the rights menu of national constitutions in powerful ways. These covenants appear to coordinate the behavior of domestic drafters, whether or not the drafters’ countries are legally committed to the agreements (though commitment enhances the effect). Our particular focus is on the all-important International Covenant on Civil and Political Rights, whose ratification inclines countries towards rights they, apparently, would not otherwise adopt. This finding confirms the complementary relationship between treaty ratification and domestic constitutional norms, and suggests that one important channel of treaty efficacy may be through domestic constitutions.
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    When Constitutions Shape National Identity
    (2013) Elkins, Zachary
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    Constitute: The world’s constitutions to read, search, and compare
    (2014-07-07) Elkins, Zachary; Ginsburg, Tom; Melton, James; Shaffer, Robert; Sequeda, Juan; Miranker, Daniel
    Constitutional design and redesign is constant. Over the last 200 years, countries have replaced their constitutions an average of every 19 years and some have amended them almost yearly. A basic problem in the drafting of these documents is the search and analysis of model text deployed in other jurisdictions. Traditionally, this process has been ad hoc and the results suboptimal. As a result, drafters generally lack systematic information about the institutional options and choices available to them. In order to address this informational need, the investigators developed a web application, Constitute [online at], with the use of semantic technologies. Constitute provides searchable access to the world’s constitutions using the conceptualization, texts, and data developed by the Comparative Constitutions Project. An OWL ontology represents 330 ‘‘topics’’ – e.g. right to health – with which the investigators have tagged relevant provisions of nearly all constitutions in force as of September of 2013. The tagged texts were then converted to an RDF representation using R2RML mappings and Capsenta’s Ultrawrap. The portal implements semantic search features to allow constitutional drafters to read, search, and compare the world’s constitutions. The goal of the project is to improve the efficiency and systemization of constitutional design and, thus, to support the independence and self-reliance of constitutional drafters.
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    On the influence of Magna Carta and other cultural relics
    (2016-05-24) Elkins, Zachary; Ginsburg, Tom; Melton, James
    Magna Carta’s status as a touchstone of modern thinking about the rule of law rests on several well-known myths. This article evaluates the influence of Magna Carta on modern constitutions, both in termsof formation as well as content. The analysis confirms that Magna Carta’s relevance is, if anything, onthe rise, even if the causal chains linking it to current developments are weak-linked and distant. Wespeculate on the mysterious processes that produce influence among legal texts, arguing that championsand empire are crucial factors in the case of Magna Carta.