Separation of Powers/Judicial Independence/Thoughtful Thursday

Does separation of powers help? One part of this is the separation of the executive and legislative powers. Yet there are many democracies where the people only elect members of parliament--and they choose the executives. Another part of this is an independent judiciary, and how judges are selected and how they are retained, from lifetime appointment as in the federal system to partisan elections every four or so years as in some states. The American Bar Association is concerned about judicial campaigns and the financing thereof. Special Interest cash is increasing. Several Illinois candidates raised multiple million dollars and Donald Blankenship contributed 1.7 million dollars to Brent Benjamin for Supreme Court, one dollar for every West Virginian. 76 percent of voters believe that money has "at least some influence on judicial decisions." Many Similar polling results are reported by the ABA Recommendation Retired Associate Justice Sandara Day O'Connor has exprressed very strong concern about state judicial elections--in 39 states/

Drs. Lacombe and Lacombe of New York University compared 112 countries over a twenty six years. One measure of effectiveness is keeping deficits down. Countries electing a chief executive and countries having a straight parliamentary system have less deficit. However, coalition governments whether they involve a president or a parliamentary system increase the defit. Yet I question whether Countries should even have a president/ chief executive/prime minister/premiere and proposed a dynamic system would allow at each point in time that the voters could choose to have one, have several or none at all. Of course, in fairness to the Lacombe's, they were comparing systems that were in effect rather than an optimal system.

They look at corruption--one theory is that accountability in parliamentary systems is indirect: voters elect legislature; legislature chooses cabinet. Also there are no checks and balances and no opportunity for the voters to split their vote. They found that presidential systems have more corruption than countries that use parliamentary systems. And, as one might expect, governments that were not elected by a majority or that were coalitions also have more corruption.

And yet as Przeworski put it, institutions that work in one country do not work in another. He compared the constitution left in Haiti after we left in 1934 with that left in Japan and Germany. And he noted that Franklin Roosevelt authored Haiti's Constitution as Assistant Secretary of the Navy. And he noted that Costa Rica had a civil war after a close election while United States did not after Bush vs. Gore. A beautiful piece of writing--that for which I fear I cannot do justice, other than to recommend that you follow the above link and enjoy.

Why is judicial independence important? And we can begin with the Federalist:

I agree, that "there is no liberty, if the power of judging be not spearated form legislative and executive powers." The judiciary, it is in contiual jeopardy of being overpowered, awed, or influenced by its co-Ordinate branches.. nothing can contribute so much to its firmness and independance as permancy in office. The complete independence of the courts of justice is peculiarly essentially in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legilative authority... Limitations of this sort can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or priveleges would amount to nothing."

I would go further--if a people forming an institution want to preserve some value--they must provide people who are dedicated to checking that the government does so even if a majority of the people disagree. That is distinguished from making sure that the government does not become corrupt or divorced from the current views of the people. The latter can be handled by participatory democracy and monitoring systems--if necessary, permanently strap a camera to each government official or employee and connect same to the internet for anyone to watch. In the case of rights, this may protect against a majority committing a tyranical act by commission.

We see this principle in the Iranian Constitution. Article Ninety Four says that the Guardian Council checks that all legislation si compatible with both "criterial of Islam and the Constitution." And article 108 provides for a chain of experts from the first Guardian Council. And as one might expect, Articles Two through Four state the goals and primacy of Islamic criteria. This included Article Four,

All civil, penal, financial, economic, administrative, cultural, military, politcial and toher laws and regulations must be based on Islamic Criteria. This principle applies absolutely and generally to all articles of the Constitution as well as to all other laws and regulations.

In other words, in 1979, the founders of the republic wanted to preserve certain values. They set up a mechanism to enshrine these values, even against the will of the people. I had a colleague, possible business relation, and friend who expressed concern about truly particpatory democracy. He was concerned about gay rights and a people oppressing a minority for religious reasons. He hoped and suspected that a court majority would side with the oppressed minority against the will of the people. However, enshrining values can work the other way as we have seen in the Iranian context.

I hope I have better luck in this forum than when I had some people over for dinner about a year ago. I brought up the issue, and unfortunately, it became a discussion over the merits of that religion, rather than a discussion of enshringing values in a Constitution and how to look at that in a value-neutral fashion.

The first question is whether a Supreme Court chosen by sortition from the general population would do a better or worse job than one chosen from lawyers. Such a statement has not been proven but some people accept on face value that experts do better at this tasks than regular Citizens:

"Most people lack either the mental cpaabilities or the time and inclination to master the subject. A typical citizen judging whether government has overstepped its constitutional limit might do no better than random guessing."

(Sutter, 1997) (This was a bold statement without citation. There is evidence that only some domains are experts better than random guesses, databases, or artificial intelligence programs. So which type of domain is this type of judging-- I have a plan to find out, but that is another post.) he cited Wagener and Gwartney that "procedural over substantive constraints" is better. In other words, citizens could detect better whether two thirds of the legislature overrode the president veto of a bill than whether a budget violated a balanced budget ammendment or a law violated the Bill of Rights.

One line of thought that is important to look at is how a constitution is amended and how that affects constitutional instability and judicial independance. Another line of thought is that initial legal traditions from many years ago, centuries, have an efect today. And State Constitutions vary in the amount of detail, what one author calls "super-legislation," that they have. Things in some states might be put in the Constitution that other states treat as ordinary legislation in station. (States with a civil-law tradition, warmer and more humid, that entered the union later had longer Constitutions at first and lnger Constitutions now.) And they noted that State Legislatures might alter their constitution in response to decisions that might anger some people such as gay rights. They found that the States that had only one party in power most of the time and where there were greater ideological differences were more likely to have merit appointment rather than partisan elections. Thus, if parties competed, they felt they could not control who would be in office--so I guess they guessed they might as well have an independent judiciary. If the party felt that it would be in power indefinitely, they went to control that judiciary.

Perhaps of most importance to this forum, is how having elections affected the quality of courts. They used three highly-correlated surveys as to "measure" court quality. And they found that those states that had partisan elections and those that frequently ammended their Constitutions ended up with poorer courts. However, sortition would be a good way to select Judges, that is choosing judges randomly from those who did well on a certain examination, or from the population of lawyers. Sortition elections would mean that judges would be elected, but only from a random sample of the people. It gives individuals more of a say in their judiciary, but eliminates the problems with judicial appointment, partisan elections the obvious corruption associated with having law firms contributing to campaigns funds for those running for office.

As Berkowitz and Clay put it, eliminating partisan elections would improve the quality of the State courts by one and a half standard deviations. And reducing the Constitutional ammendment rate would improve the quality of state courts by 0.75 standard deviation. And they cite other research that improving State Courts does improve the State's economic performance.

Giuseppe Euseppi points out that Constitutional Courts can create bizarre interpretations. Article Eighty-One of the Italian theoretical prevents the legislature from increasing the expenditure side of the ledger without increasing the revenue side. But the Constituional Court simply said that "debt was an appropriate means of coverage." As another example of the problems in Constitutional Interpretation, one can look at interpreting a State Constitution's Requirement that

The state shall provide for an efficient system of high quality public educational institutions and services. ...The State has primary responsibility for financing the system of public education

(Commissioner vs. Edgar, 174 Ill 2d One, 672 N.E.2d 1178)

Effectively, the Italian Court emasculated the requirement for a balanced budget, just as the Illinois Court dismissed an attempt to "correct" disparities in educational expenditures between districts. And the Indonesian Constitutional Court showed itself equally lacking in backbone. It found that education was not one fifth of the budget as required, in "flagrant disregard." However, the court refused to declare the budget invalid on "prgmatic" grounds. (Butt2009) He cites cases in Germany and Italy In 1993, all those in Italy who appionted the Constitutinoal Court judges were thrown out in a corruption scandal. Then, all of a sudden the constitutional court showed some backbone. And Euseppi proposed, like Roland, selecting judges by lot.

References

1. Christiane Almeida de Aguiar Lacombe and Marcelo Barroso Lacombe, "Do Constitutions Matter? The Economic and Political Impact of Presidentialism and Parlimentarism"
   Prepared for the Political Choice Society Conference, New Orleans, 2005
2. Eusepi, Guiuseppe, "Who shall Keep the Keepers Themselves? On the Moral Foundations of the Separation of Powers" (now in Beyond Conventional Economics: the Limits of Rational Behavior in Political Decision Making by Giuseppe Eusepi and Alan P. Hamlin" although I printed it out from the Internet a while back.)
3. American Bar Association Standing Commitee on Judicial INdependence, Recommendation
4. Daniel Berkowitz and Karen Clay, "The Effect of Judicial Independence on Courts: Evidence from the American States" August 2004
5. Daniel Sutter, "Enforcing Constitutional Constraints" Constitutional Political Economy Volume Eight 139 to 150, 1997.

For Future Thoughtful Thursdays

As I was reading the above, I identified the following as being worth reading and including in a future throughtful Thursday Post.

1. Butt, Simon, "Conditional Constituitonality, Pragmatism and the Rule of Law" Legal Studfies Research paper Number 09/28, May 2009
2. Hammons, Christopher W., 1999, "Was James Madison Wrong? Rethinking the American Preference for Short, Franmework-Oriented Constitutions?" American Political Science Review 93(4) 837 to 849.
3. La Porta, Rafael, Florencio Lopez-de-Silanes, Cristian Pop-Eleches and Andrei Shliefer, 2004 "Judicial Checks and Balances" Journal of Poltical Economy 112(2) 445 and 470
4. Lutz, Donald, "Toward a Theory of constitutional Amendment" American Political Science Review Volume 88 (2) p[ages 355 to 370
5. Persson, Torsten and Guido Tabellini The Economic Effects of Constitutions Cambridge
   and "Do Political Institutions Shape Economic Poicy?" working Paper 8214 National Bureau of Economic Research. April 2001
6. Adam Przeworski, "Institutions Matter?" (Manuscript, New York University, 2003)
   and Democracy and Development: Political Institutions and Well-Being in the World, 1950 to 1990, New York: Cambridge University Press 2000
7. Rose-Ackerman, Susan Corruption and Governmen New York: Cambridge University 1999
8. and, of course, the Federalist Papers (Hamilton, Alexander, James Madison and John Jay, published by the Unviersity of Chicago
9. Wagner R. E. and Gwartney,, J. D. "Public Choice and Constitutional order" In Gwartney J. D. and Wagner R. E. Public Choice and Constitutional Economics 29 to 56, Greenwich CT, JAI Press.
10. Ginsburg, Tom, Judicial Review in New Democrascies; Constitutional Courts in Asian Cases Cambridge University Pres
11. Stone Sweet, Alec, Governing with Judges: Constitutional Politics in Europe Oxford University Press