Concepts of Constitutional Design

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Table of Contents

Introduction
Federalism
Juristocracy
Examples of Federalism and Juristocracy
Comparing and Contrasting
Biblical Principles and a Judeo-Christian Worldview
Conclusion
Bibliography

Introduction

Constitutions are foundation laws of countries that lay out their political structure. A constitution is not always a single document as it may be scattered among many bills and legislations. According to Dickovick and Eastwood, constitutions symbolize agreement of people to “confer authority to political actors in exchange for the establishment of order and a rule of law.” Therefore, the term constitutionalism means a limitation of governments, which is closely linked to democracy. However, having formal limitations does not guarantee rights or justice in a country as governments may refuse to follow the constitution. Even though constitutions are seen as the ultimate points of reference, politicians may choose to neglect it by using lawful and unlawful methods. Landau states that in some countries, including Hungary, Egypt, and Venezuela, politicians use mechanisms of constitutional change to erode the democratic order. Therefore, it may be stated that the opportunity to diminish the principles of democracy may be embedded in the constitutional design.

Constitutional design refers to the basic features of government that help to institutionalize powers. Conventional constitutional designs are federalism and unitarism, which differ in the degree of power given to the central government. According to Hirshl, there is also another constitutional design, juristocracy, which is rising in the US, Canada, New Zealand, and Israel. The present paper aims at comparing federalism and juristocracy and evaluating both concepts and their influence in light of Biblical principles and a Judeo-Christian worldview.

Federalism

Federalism arises when there is a need to unite vast complex territories under a common rule while preserving a certain degree of sovereignty. Dickovick and Eastwood define federalism as a “system of government with the constitutional design of separation of powers between the central government and subnational governments.” According to Elazar, federal principles grow out of the idea that people can surrender a part of their freedom to maintain order and remain independent at the same time. The ideas of federalism originated in the US and Switzerland and spread into major countries around the world. Today, there are 20 official federal states that represent a large proportion of the world’s population since they include four most populous countries after China. Federalism does more than merely not letting these countries fall apart; it ensures that all the constituencies follow the same law and principles while letting the local governments have variations of these laws. In short, federalism aims at solving a seemingly unsolvable problem of making the local governments both independent and subordinate to the central government.

Federalism is beneficial for several reasons. First, it helps to accommodate diversity, as it prevents the majority from ignoring the interests of minorities. Second, federalism strengthens liberty, which can be seen in India, where it promoted equal rights and other democratic values. Finally, federalism ensures financial integrity and spreads economic development by diverting the flow of money from the central metropolitan area (usually capital cities) to regions. However, the principles of federalism weaken over time, and the series of assumptions initially embedded in the matter may no longer work. For instance, in the US, states no longer have the power to “block the federal government from invading their turf.” However, they still limit the central power as they can promote norms that were forged by local governments. In short, while federalism may be effective, there is no guarantee that it will not evolve or stop working in the future.

Juristocracy

Juristocracy is a term used to signify the increasing power of unelected judges that tend to have legislative power due to provisions of the constitutions. According to Goldstein, in the 1940s and 1950s, many countries, including Austria, Italy, France, Germany, and Japan, introduced the power of judiciary review to the constitution. The matter was later called the reconstruction of constitutionalism, as the policymaking power was no longer the jurisdiction of legislations only; instead, the power was shared by both the parliament and the judges. Ran Hirshl notes that after the introduction of judiciary review, all political and moral controversies are eventually brought to court for settlement. For instance, the Roe v. Wade decision of 1973 legalized abortion without a public discussion, which seemed unconstitutional to many critics of the power of judiciary review. While there are evident drawback of juristocracy, it is vital to look at the matter from both sides.

On the one hand, judicial review is a useful tool utilized to limit the power of the parliament. Rostow notes that the central principle of a constitution is to limit the powers of braches, which is enforced by letting the judiciary system to overrule the parliament in some cases. In other words, if the US Congress is the only institution that can pass laws, the system of checks and balances may be shattered. Moreover, legislative review asserts human rights and defends minorities by passing laws that may take a long time to process through bureaucratic channels. On the other hand, the method of passing laws through the judiciary system is actively exploited by politicians to promote their agenda. At the same time, judges are not elected representatives of the people, which often implies that decisions concerning important matters for the society (such as abortion) no longer represent the opinion of the public. Therefore, the problem of growing juristocracy is a matter open for discussion.

Examples of Federalism and Juristocracy

The United States of America is a classic example of federalism. The core idea of the country is that independent states chose to give up some of their freedom to ensure their economic and political success by creating a central government. The US constitution was initially designed to support a perfect confederation of independent states, which implied a compound structure of operations. In other words, states had the opportunity to create their own laws if they did not contradict the federal laws. However, the situation has changed over the years, and the dual federalism, which was characterized by competition between local and federal governments, evolved into centralized federalism, and then to new federalism, which is also called Federalism 3.0 by Gerken. Today, federalism in the US favors centralized government; however, it is controlled by the system of political parties, “which ensures that some power remains with local actors.” While the US is formally a federation, there are many disputed about the constitutional design of the country.

Juristocracy, while being a trait of the US system, can also be observed in other countries, such as Canada, New Zealand, and South Africa. All these countries are former British colonies, which is the central matter of the development of juristocracy. According to Smith, in Canada, judiciary review was not embedded in the government system; however, the British colonial system provided for having the ability to overrule any laws that pass the parliament. Since judiciary review is alien to the Canadian constitution, it created a number of controversies concerning its limits and jurisdiction. Such uncertainties created the opportunity for the juristocracy to develop in Canada in recent years. Today, juristocracy is a matter of heated discussion in Canada, as many politicians and scholar consider it unconstitutional.

Comparing and Contrasting

On the one hand, federalism and juristocracy have several common features. First, both designs are based upon the idea that the constitution is the ultimate source of reference, which implies that their central goal is to defend people’s interests and rights. Even though the research shows that the success of both approaches is limited, the initial intention was to serve the citizens. Second, both concepts aim at challenging the centricity of power. Federalism supposes that the central government is limited by local ones, while juristocracy limits the legislative power of the parliament using the judiciary branch. Finally, both concepts are vital for defending minorities and promoting their interests. While federalism promotes diversity by ensuring the rights of cultural, tribal, and religious communities through legislation, juristocracy supports prompt reaction to immediate threats to the rights of minorities. In short, the designs are similar in their core as they are types of constitutionalism.

On the other hand, there are distinct differences that help to distinguish the designs. First, while federalism is considered a beneficial concept by the majority of scholars, the opinions about juristocracy differ considerably. The central point is that federalism supports the idea that people can choose their representative and, therefore, influence the legislation. Juristocracy, however, provides increased powers to unelected judges, which implies that citizens cannot affect the policymaking process. Second, federalism is a system that aims at balancing the power, while juristocracy is a misbalanced system that assumes the dominant power of judges. Finally, federalism has a positive impact on the economy, while a direct correlation between juristocracy and economic growth was not mentioned in any of the reviewed literature. In summary, even though both concepts are based on the idea of constitutionalism, they are different in some of the principles.

Biblical Principles and a Judeo-Christian Worldview

Judeo-Christian worldview holds that the ultimate authority that has all the power is God. However, the Scriptures promote the idea that people should obey the government by saying “let everyone be subject to the governing authorities, for there is no authority except that which God has established.” There are specific references to what is considered an acceptable governing system. The primary principle of the biblical worldview is that all people are sinners, and therefore no power should be granted to one man or institution. In Exodus, it is said “you shall select out of all the people able men who fear God, men of truth, those who hate dishonest gain; and you shall place these over them as leaders of thousands, of hundreds, of fifties and of tens” In other words, biblical principles support representation in government and promote a republican form of government. Therefore, federalism is a preferred concept as it ensures that the best people represent the interests of the rest. Since judges are not elected, the principles of juristocracy contradict the Judeo-Christian worldview. In brief, even though both federalism and juristocracy are both acceptable, biblical worldview supports federalism.

Conclusion

Constitutions may have different designs depending on various historical and political factors. The concepts of federalism and juristocracy are vivid examples of how constitutional design affects the form of government and distribution of powers. Even though these concepts have many similarities, only federalism is coherent with the biblical worldview as it is designed not to let one institution have dominant power over the other. Juristocracy is an unbalanced system and does not support representation, which implies that it contradicts the principles described in Scriptures.

Bibliography

Gerken, Heather K. “Federalism 3.0.” California Law Review 105 (2017): 1695-1724.

Goldstein, Leslie Friedman. “From Democracy to Juristocracy.” Law & Society Review 38, no. 3 (2004): 611-29.

Dickovick, Tyler J. and Jonathan Eastwood. Comparative Politics: Integrating Theories, Methods, and Cases. 3rd ed. New York: Oxford University Press, 2019.

Dickovick, Tyler J. and Jonathan Eastwood. Comparative Politics: Classic and Contemporary Readings. 1st ed., New York: Oxford University Press, 2017.

Landau, David. “Abusive constitutionalism.” UCDL Review 47 (2013): 189-260.

Rostow, Eugene V. “The democratic character of judicial review.” Harvard Law Review 66, no. 2 (1952): 193-224.

Scheiber, Harry N. “American federalism and the diffusion of power: Historical and contemporary perspectives.” U. Toledo Law Review 9 (1977): 619-680.

Smith, Jennifer. “The Origins of Judicial Review in Canada.” Canadian Journal of Political Science / Revue Canadienne De Science Politique 16, no. 1 (1983): 115-34.

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