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This chapter analyses Network Community discourses in order to better expose the causal role of its hegemonic norms. Key assumptions held by the Community about the qualities of their agenda are brought to light. Classical Anglo-Saxon conceptions of the separation of powers, checks and balances, judicial independence, and the rule of law, the utility of which has stood the test of time, are compared to the theory and practice of the Network Community’s Judiciary institutional design Template. The Network conceives of the separation of powers, checks and balances, judicial independence, and the rule of law as emanating from the autonomy and supremacy of a Judiciary so empowered as invariably to subordinate all other contestants in case of conflict with itself over constitutional meaning. The chapter ends with a systematic catalogue and critical examination of those few acts of state which the Network Community conceive as legitimate checks and balances on their Judiciary design.

The Single Power Principle specifies that there must exist, somewhere in society, a coercive monopoly of power. Adherence to this principle leads to serious risks of enforcement abuse because of problems of selection, corruption capture, and the halo effect. Various institutional features to deal with the problem of enforcement abuse by a coercive monopoly of power have been tried including elections, federalism, and free emigration. Each attempts to combat the ‘top‐down’ or hierarchical relationship between ruler and subject that is inherent to a coercive monopoly of power by establishing a more ‘bottom‐up’ or horizontal relationship. Though these three practices have largely failed in keeping a coercive monopoly of power within the constraints defined by the liberal conception of justice and the rule of law, each reflects a more fundamental principle that needs to be more robustly incorporated into institutional arrangements: reciprocity, checks and balances, and the power of secession.

Chapter Six offers a preliminary exploration of how Balanced Federalism theory would depart from the status quo, imagining the strongest judicial role within such a model. It sets forth the theoretical ideals, factors for consideration, and mechanics of how judicially-enforceable Balanced Federalism constraints could work in lieu of existing doctrine, focusing on the Tenth Amendment. It proposes replacing the bright-line anti-commandeering rule with a judicial standard for evaluating commandeering and even preemption claims. Where dual federalism asks the Tenth Amendment to police a boundary between mutually exclusive spheres of state and federal authority, Balanced Federalism asks the Tenth Amendment to patrol regulatory activity in the gray area between for impermissible compromises to federalism’s underlying values—checks, accountability, localism, and problem-solving. The chapter illustrates the balancing test through application to four concrete controversies: the regulation of stormwater pollution, climate governance, the Katrina response, and national health insurance reform. The chapter concludes with a defense of judicial balancing as a tool of constitutional interpretation in the federalism context. It rebuts the most powerful critiques of judicial balancing, including indeterminacy, judicial bias, and separation of powers. In a world with any judicial federalism constraints, explicit judicial balancing is preferable because values-balancing is inevitable—either covertly in application of a set doctrinal rule or through the initial act of balancing that produced the doctrinal rule. Nevertheless, legitimate concerns about expansive judicial discretion lay the foundation for later discussion of when the judiciary should defer to the federalism determinations of political actors.

Referring to the empirical exploration in the previous chapters, it is concluded in this chapter that real democracy – wherever it is practised with some level of success – is always hybrid democracy, resulting from a process of push and pull between competing models of democracy. Consensus democracy may be most prominent in some countries, and pendulum democracy in others, but this never occurs in an exclusive or uncontested way. A vital democracy, it is argued here, is a democracy that combines the elementary forms of democracy in a way that is both creative and contingent and, thus, manages to unite effectiveness with legitimacy: the core principles of good governance. A democratic hybrid is creative if it succeeds in making the most of the advantages of the combined models and in compensating their disadvantages as much as possible. It is contingent if the coexistence of models is sensitive to the situational and cultural context in which democracy must gain effectiveness and legitimacy.

This chapter examines how Deuteronomy offers an egalitarian political prescription for the shape of Israelite society and its leadership regime. The program is egalitarian in that it attenuates, in the first place, the institutional power of the monarchy as construed in the ancient Near East in the following realms: the military, the cult, the judiciary, the economy, and the harem. It further establishes a set of checks and balances that curb the power of the various seats of authority: the king, the priesthood, the judiciary and the prophet. Moreover, Deuteronomy's egalitarian program for the regime is reflected in its rejection of the institutions and language of tribal patriarchy so evidenced in the other pentateuchal texts, in favor of collective, national identity. Whereas earlier studies that examined Deuteronomy's plan for the regime have focused on chapters 16–18, this study maintains that one must read all of Deuteronomy as an integrated whole in order to perceive the full intricacy of its blueprint for a society in the land. Particular attention is paid to the role played in this regard by the so‐called narrative frames of the book—chapters 1–4, and chapters 27–30. While previous studies have noted that Deuteronomy seems to adopt a form of checks and balances, this study locates the statement it makes in this regard within the history of political thought on the subject. Scanning theories from Roman jurists through Montesquieu, this study concludes that the kernel of a theory of checks and balances that one may adduce from a reading of Deuteronomy is suggestive of formulations that we do not encounter again until the writings of the American Founding Fathers.

The partiality problem refers to the need to (1) allow persons to pursue their own partial interests including the interests of those to whom they are partial, (2) while somehow taking into account the partial interests of others whose interests are more remote to them. The partiality problem represents an independent reason to adopt the solution to the knowledge problem provided by the fusion of justice and the rule of law. The liberal conception of justice based on a decentralized regime of several property rights addresses the general problem of partiality by compartmentalizing the effects of partial decision making, requiring that persons seeking to use the resources under the jurisdiction of others take their interests into account, and permits a checks and balances system of tit‐for‐tat to operate among right‐holders. The liberal conception of the rule of law based on publicly accessible and generally applicable legal precepts addresses the acute problem of partiality that arises in the administration of justice by triggering a warning when these formal tenets are violated that a partial exercise of judgement may have occurred.

This chapter focuses on the internal ordering of executive power within the EU political system and discusses the manner in which executive power is balanced by the other ‘countervailing’ powers in the constitutional system of checks and balances. It focuses on the key ‘executive’ institutions in terms of their original conception and in terms of the interests they were representing, as well as the manner in which that has evolved to become what can be referred to as a composite executive order of sorts.

Most of the American states adopted constitutions in the decade prior to the federal constitutional convention. There were two major “waves” of state constitution-making. The first wave was hasty, generally not based on elected constitutional conventions, and the constitutions had little in the way of checks and balances. The chapter uses the Pennsylvania constitution to illustrate this wave. The second wave was more deliberate, often utilized elected constitutional conventions, and developed constitutions with more in the way of checks and balances. The Massachusetts constitution is used to illustrate this wave. Early constitution-making in each of the states is briefly reviewed, in light of these differing philosophies. Finally, the chapter reviews the influences of this “founding decade” of state constitution-making on the development of the federal Constitution, concluding that the Pennsylvania example was rejected and in Massachusetts example was adopted.

Chapter two takes on the critical question of why the Constitution establishes a federal system at all. After considering the political origins of federalism, the fraught relationship between structural federalism and first-order policy concerns, and the distinction between true federalism and decentralization, it explores the individual principles of good government on which federalism is premised. It reviews how federalism fosters: (1) checks and balances between state and federal power that safeguard individuals against overreaching or abdication by either side; (2) transparent and accountable governance that enables meaningful democratic participation at all points on the jurisdictional spectrum; (3) local autonomy and diversity that give rise to the interjurisdictional competition and innovation of federalism’s great “laboratory of ideas;” and (4) problem-solving synergy between the unique capacities of local and national government for coping with different parts of interjurisdictional problems. The chapter discusses the how the checks and balances of jurisdictional overlap establish as powerful a bulwark against tyranny as those of jurisdictional separation, and it explores the provenance of federalism’s underappreciated problem-solving value within the subsidiarity principle.

In the face of globalization, an international political system based on states is unable to meet daunting political challenges that confront our world. Is it possible to develop a global order that would enable more justifiable and effective rule for the world’s people? In particular, can the principles and practices of justice and representative democracy be extended, to answer this challenge, beyond the state contexts for which they were devised? This book argues that we should end our dubious romance with the nation-state in favour of a multi-form global system called Responsive Democracy. To this end, the book presents core components of (a) a theory of global justice that arises out of a critique of the influential political philosophy of John Rawls; (b) a theory of democratic representation that constitutes an alternative to the approach taken by Jurgen Habermas and his deliberative democratic followers; and (c) a theory of how political and moral ideals that are necessarily framed in abstract terms can help orient practice in messy, non-ideal conditions. Together, these three currents of this text form a novel approach to global justice and democracy. The concrete implications of this approach to constitutionalism, institutional design, and politics will be explored for four leading global institutions.

Sergei Rogov is director of the Moscow Institute of USA and Canada Studies. Rogov's institute is a leading think tank under the Russian Academy of Sciences, which provides advisory input on foreign policy, military, and economic issues to Russian government agencies. He points out that the adoption of a constitution toward the end of 1993 gave enormous authority to the executive without appropriate checks and balances. Yeltsin abandoned the notion of checks and balances and created a democracy for bureaucracy and operated by democracy. The legislative branch is weak and dominated by the executive authority while the judiciary is not independent.

The preceding positive account provides foundation for Chapter Ten’s critical normative claim: that federalism bargaining is not only a pragmatic solution to a problem of doctrinal uncertainty, but can itself be a legitimate way of interpreting federalism, when federalism interpretation is understood as a way of constraining public agencies to act consistently with constitutional directives. Federalism bargaining achieves interpretive status when it procedurally incorporates not only the mutual consent principles that legitimize bargaining in general, but also the fundamental federalism values that should guide federalism interpretation in any forum. After all, the core federalism values are essentially realized through good governance procedure: (1) the maintenance of checks and balances to protect individuals against sovereign excess or abdication; (2) the protection of accountability and transparency to ensure meaningful democratic participation; (3) the preference for process that fosters local innovation, variation, and competition; and (4) the cultivation of regulatory space for harnessing synergy between local and national capacity when needed to cope with interjurisdictional problems. Incorporating these values into the bargaining process allows negotiators to interpret federalism directives procedurally when consensus on the substance is unavailable. The more bargaining process incorporates mutual consent and federalism values, the more it warrants judicial deference as a means of federalism interpretation. Interpretive bargaining becomes less legitimate as factual circumstances depart from the assumptions of mutual consent—when bargainers cannot freely opt out, understand their own interests, or be trusted to faithfully represent their principals—and when procedures contravene core federalism values. When reviewing federalism challenges to such bargaining, the judicial role shifts to deferential oversight for these criteria. Drawing on the procedural application of fair bargaining and federalism values, negotiated governance opens possibilities for filling the inevitable interpretive gaps left by unilateral mandates. Indeed, it has been doing so all along. Chapter Ten’s analysis provides the missing theoretical justification for operative political safeguards while preserving a role for limited judicial review. It concludes by evaluating examples against these interpretive criteria and offering recommendations for engineering greater structural support for federalism values in bilateral governance.

This chapter critically analyzes current institutional models addressing rights' conflicts in the EU. Much of the academic debate has focused on whether state constitutions or EU Treaties should be regarded as the supreme law of the land; and whether constitutional courts or the ECJ should have the final say in case of conflict. The chapter seeks to demonstrate the shortcomings of hierarchical models relying on supremacy as the principle structuring interaction between norms protecting rights. In addition, this chapter shows that specific proposals formulated from non-hierarchical approaches are unsatisfactory as well. Even though these specific proposals are rejected, a pluralist framework regarding the structure of power in the EU is advanced. As such, a pluralist model furthers the opportunity to overcome the dangers of exacerbated state sovereignty by fragmenting public power among several institutions beyond the state. At the same time, a pluralist model limits the excesses of concentrating power at the supranational level by establishing mutual checks and balances between the national and supranational orders.

This chapter argues that in making a constitutional organization of violence which is relevant to the Framers' view and more useable to modern needs, there is a requirement to attend to two elements—popular unity, and checks and balances—of which the latter poses a more difficult challenge. Despite the system of checks and balances established today, most private persons and groups, law enforcement organizations, and the military still hold arms and the capacity to commit political violence. That is why this chapter suggests that the balance, perhaps, should be altered. Popular unity, on the other hand, is a much less familiar concept. Politicians invoke this idea, but most Americans view it with distrust.

This chapter looks at how far differences in public management and public administration factors seem to shape countries' divergent experiences with government IT development. It examines four key, qualitatively set dimensions: checks and balances in fundamental governance arrangements (we expect the absence of checks to worsen government IT performance); the openness of bureaucratic culture to technical expertise (again, a closed, non-technical bureaucracy should inhibit IT performance); the openness of each country to new public management (NPM) reforms (we expect NPM to inhibit government IT performance because of its direct effects in fragmenting government and its indirect effects in boosting the power of the IT industry); the presence of a strong, central, political-administrative push for e-government (we expect the absence of such an effort to impair government IT's development). The institutional explanatory variables do indeed show some influence on the expected lines, but they also show considerable country variance and highlight multiple ‘exceptions’ and explanatory problems.

Balanced Federalism encourages more thoughtful and transparent balancing between the competing values of good governance at the heart of American federalism. It more effectively leverages the distinct functional capacities of the three branches in interpreting federalism directives, in both abstract and concrete circumstances. Finally, it maximizes the input of local and national actors, not only through the conventional political safeguards of unilateral governance but through the structural federalism safeguards of bilateral intergovernmental bargaining. These initial proposals for actualizing Balanced Federalism draw on the insights of the political safeguards school by deferring to political federalism determinations that incorporate state and local perspectives. They draw on the instincts of the judicial safeguards school in preserving a limited role for judicial review to police for extreme abuses. The tailored dialectic between judicial and political safeguards would thus facilitate legislative and executive implementation of Balanced Federalism where the political branches are most able, backstopped by modest judicial review that will finally ask the right questions. However we accomplish it, moving toward a more Balanced Federalism will advance the discourse at a critical time for both federalism and regulatory law.  At stake is the ability of state and federal government to take on confounding societal problems by harnessing local innovation and interjurisdictional synergy in governance without compromising individual rights or democratic participation.  Balanced Federalism insights will help public actors maintain a healthy balance between local and national power without catapulting any one value over all competing considerations, and without foreclosing the unique interpretive capacity that any of the three branches or various levels of government offers. Whether by legislative initiative, intergovernmental bargaining, or judicial oversight, governance that safeguards rights, participation, innovation, and synergy accomplishes what it is that federalism is designed to do. In the end, the move toward a more Balanced Federalism will foster a more thoughtful and dynamic equipoise between the federalism values and institutional capacities that—by very virtue of their internal tensions—have made our system of government so effective and enduring.

The constitution of the Roman Republic featured a system of checks and balances that would eventually influence the American founders, yet it was very different from the system of separation of powers that the founders created. The Roman senate gave advice but did not legislate; the people voted directly on bills and appointments in popular assemblies; and a group of magistrates, led by a pair of consuls, proposed bills, brought prosecutions, served as judges, led military forces, and performed other governmental functions. This chapter analyzes the Roman constitution from the perspective of agency theory, and argues that the extensive checks and balances, which were intended to prevent the recurrence of monarchy, may have gone too far. Suitable for an earlier period in which the population was small and the political class was homogenous, the constitution proved unworkable when Rome acquired a vast, diverse empire. The lessons of Roman constitutionalism for the American constitution are also discussed.