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Institutionalization of different governmental patterns: separation and fusion of powers in America and Europe

Sergio Fabbrini

in Compound Democracies: Why the United States and Europe Are Becoming Similar

This chapter analyzes the institutionalization of different governmental patterns in America and the European nation-states, the former based on separation, the latter on the fusion of powers ... More

This chapter analyzes the institutionalization of different governmental patterns in America and the European nation-states, the former based on separation, the latter on the fusion of powers (institutional order). Topics discussed include the logic of separation and fusion of governmental powers, the institutionalization of the American separated system, and the institutionalization of the European fusion of power systems.Less

Introduction

George C. Edwards III and Desmond S. King

in The Polarized Presidency of George W. Bush

This introductory chapter begins with a discussion of the existing legacy of George W. Bush. It then considers the divergence in views of the president and his performance, his policies, ... More

This introductory chapter begins with a discussion of the existing legacy of George W. Bush. It then considers the divergence in views of the president and his performance, his policies, decision-making, and leadership. An overview of the chapters in the volume is also presented.Less

Southern Reform and the New Deal

Kimberley Johnson

in Reforming Jim Crow: Southern Politics and State in the Age Before Brown

This chapter explores how Jim Crow reformers, energized by the New Deal and with access to its resources, attempted to further centralize government power in a political order that was characterized ... More

This chapter explores how Jim Crow reformers, energized by the New Deal and with access to its resources, attempted to further centralize government power in a political order that was characterized by a pervasive localism and general hostility toward government power. Although southern New Dealers played an important role in pushing for state-level administrative reform, university-based reformers and northern foundations also played a critical and largely overlooked role in this attempt to reshape and modernize southern state government. Their awkward position as critics of the state as well as state functionaries reflected the contradictory position in which many reformers found themselves. In the end, reformers' attempts to reorient government power toward the needs of the South's have-nots faltered on the reformers' lack of political power and their inability as servants of the state to directly address issues of power and race.Less

Prerogative Power in Rome

Nomi Claire Lazar

in Extra-Legal Power and Legitimacy: Perspectives on Prerogative

This chapter examines the history and theory of the dictatorship in the Roman Republic. It addresses the question of why Romans had such an easygoing attitude towards prerogative. It is argued that, ... More

This chapter examines the history and theory of the dictatorship in the Roman Republic. It addresses the question of why Romans had such an easygoing attitude towards prerogative. It is argued that, fundamentally, the Romans understood their constitution as flexible and evolving. Prerogative institutions, clear instantiations of flexibility, were quite at home in this context. The Roman constitution was not without fundamental, unmovable principles, but it did eschew a fixed structure to embody those principles. This serves as a stark contrast to what was, until recently, the standard view of the Constitution of the United States as a fixed, written document. If one begins with the assumption that institutions are and should be fixed, and that fixity is the means to stability, then the kind of flexibility embodied by prerogative looks not just dangerous, but illegitimate.Less

Immigration: how Parliament’s language affects central government powers

Matthew Williams

in How Language Works in Politics: The Impact of Vague Legislation on Policy

This chapter examines how Parliament's use of language affects central government powers by looking to judicial interpretation of immigration law. Using an adapted legal model of judicialisation, it ... More

This chapter examines how Parliament's use of language affects central government powers by looking to judicial interpretation of immigration law. Using an adapted legal model of judicialisation, it considers how immigration and asylum laws delegate power from Parliament to the government in order to show how well different state institutions can jointly comprehend legislative language and coordinate in its delivery. The chapter draws on discourse analysis to test the descriptive claim that immigration legislation has become more indeterminate, and logit regression analyses to test the implications of this change for judicial behaviour. The results reveal rapid increases in government losses on appeal after 1995, which coincide with similarly rapid increases in the enactment of indeterminate legislation. The chapter suggests that the effectiveness of immigration law is undermined by its indeterminacy.Less

Executive Governance Through Enforcement

Adam B. Cox and Cristina M. Rodríguez

in The President and Immigration Law

chapter grapples with the risks associated with executive governance through enforcement, tracing them to core and undisputed executive powers whose reach has been magnified in immigration law by the ... More

chapter grapples with the risks associated with executive governance through enforcement, tracing them to core and undisputed executive powers whose reach has been magnified in immigration law by the emergence of the shadow system. Two interrelated features of executive governance should prompt vigilance. First, when executive branch officials pursue a policy agenda through their management of the enforcement bureaucracy, discretionary decision-making drives their choices about how to threaten or wield force, as well as offer forbearance. It is natural to worry that this discretion will lead to the lawless, arbitrary exercise of power. Second, discretionary decision-making processes are often opaque. This feature exacerbates the possibility of abuse and makes it difficult to hold government power accountable. After defining these risks, the chapter then focuses on how the domain of de facto delegation can be structured to preserve the virtues of executive governance while promoting rule of law values. It offers a qualified defense of the centralized, political control of enforcement discretion as a means of disciplining the Executive’s awesome power.Less

Monarch-Love; or, How the Prince of Wales Saved the Union

Elisa Tamarkin

in Anglophilia: Deference, Devotion, and Antebellum America

This chapter traces the democratic fascination with both the sacred rituals of state and the personalized authority of the British monarchy, while attempting to make sense of the symbolic value of ... More

This chapter traces the democratic fascination with both the sacred rituals of state and the personalized authority of the British monarchy, while attempting to make sense of the symbolic value of such prepolitical attachments. It considers not only the comparative aesthetics of governmental power but also how such psychic projections onto the forms and practices of a monarchy elsewhere helped to address the political moment at home. In the decades leading up to the Civil War, Americans indulged in a cult of reverence toward Britain's monarchy not to express their loyalty to Queen Victoria but to experience a compensatory and archaic sense of attachment to the idea of a state unlike their own. Redefining allegiance as a felt response to dignity and grandeur (as embodied in a queen), Americans who loved Victoria found new ways to love America: they conceived of a different sort of patriotism than that enacted by the rational bonds of democratic ideology.Less

Crisis and Legitimacy in the Administrative Process: A Historical Perspective

J. O. Freedman

in A Reader on Regulation

This chapter discusses the growth of the administrative process in the United States. The steady growth in the role of the federal government has been one of the most distinctive and important ... More

This chapter discusses the growth of the administrative process in the United States. The steady growth in the role of the federal government has been one of the most distinctive and important developments in American history. As the role of the federal government in national life has expanded, the centre of gravity of the powers it exercises has gradually shifted, from the legislature in the first half of the nineteenth century, to the judiciary in the second half of the nineteenth century, to the executive and administration in the twentieth century. The characteristic pattern that underlies this shift can be seen in the nation's assertion of public control over the railroads, first by the enactment of restrictive legislation, then by emphasis upon judicial remedies, and finally by resort to administrative regulation. This shift in the centre of gravity of governmental powers has become so pronounced that contemporary political scientists, with increasing regularity, describe America as an administrative state. The distinguishing quality of the modern administrative state is its reliance upon the administrative process as a principal instrumentality for the achievement of national policies.Less

The Development of Administrative Law in the United Kingdom (1890–1910)

Robert Thomas

in Administrative Justice Fin de siècle: Early Judicial Standards of Administrative Conduct in Europe (1890-1910)

This chapter offers some reflections and thoughts on the evolution of nineteenth-century fin de siècle administrative law in the United Kingdom. The period 1890–1910 was a time of social, political, ... More

This chapter offers some reflections and thoughts on the evolution of nineteenth-century fin de siècle administrative law in the United Kingdom. The period 1890–1910 was a time of social, political, and economic change. Administrative power was expanding and there was a need for administrative law controls over the exercise of such power. The chapter examines the following principal themes: the dominant tradition of Diceyan constitutionalism and its reaction to the growth of administrative power; the development of judicial review by the courts; and the growth of non-judicial remedies in the form of tribunals. It is argued that the period between 1890 and 1910 was a formative one for both the administrative state and administrative law. Many of the developments in administrative law during this period still provide the key building blocks on which contemporary administrative law is based.Less

The Constitution of 1818: Slavery, a Bogus Census, Feeble Executive Power

Frank Cicero Jr.

in Creating the Land of Lincoln: The History and Constitutions of Illinois, 1778-1870

Chapter 2 follows Illinois’s transition from territory to state. A territorial census was likely padded to reach the required 40,000 inhabitants. The 1818 constitutional convention wrote the state’s ... More

Chapter 2 follows Illinois’s transition from territory to state. A territorial census was likely padded to reach the required 40,000 inhabitants. The 1818 constitutional convention wrote the state’s founding document, many of its provisions drawn from other states’ constitutions. The delegates sought to limit the governor’s role by vesting powers in the legislature, leading to an unsteady balance of governmental powers. Delegates also focused on the question of slavery, termed “indentured servitude” in the constitution and described as “voluntary.” This wording set up debate in U.S. Congress that previewed the Missouri Compromise, but ultimately the constitution was approved and Illinois became a state on December 3, 1818. The slavery debate continued in Illinois, a frontier state that blended northern and southern sensibilities.Less

The Constitution of 1848: Reconstructing Government, Balancing Powers, Oppressing Free Blacks

Frank Cicero Jr.

in Creating the Land of Lincoln: The History and Constitutions of Illinois, 1778-1870

Chapter 4 focuses on the 1847 Illinois state constitutional convention and the constitution approved by voters in 1848. Democrats comprised a majority of delegates, but Whigs built many successful ... More

Chapter 4 focuses on the 1847 Illinois state constitutional convention and the constitution approved by voters in 1848. Democrats comprised a majority of delegates, but Whigs built many successful coalitions. The new constitution sought greater balance of governmental powers, reducing the legislature’s appointive power, bestowing on the governor a weak veto power, and calling for direct election of judges. Age and residency requirements were specified for government service; citizenship was required of voters. Two contentious provisions put separately to voters were ultimately approved: one prohibiting free blacks from immigrating to the state and one calling for a property tax to relieve the state’s debt. With the 1848 constitution, Illinois transitioned from a frontier to a modern state.Less

The Constitution of 1870: Progressive Foundation for a Century

Frank Cicero Jr.

in Creating the Land of Lincoln: The History and Constitutions of Illinois, 1778-1870

Chapter 7 summarizes debates of the 1869–70 Illinois state constitutional convention, whose blend of representatives from Democratic, Republican, and People’s Parties yielded a relatively nonpartisan ... More

Chapter 7 summarizes debates of the 1869–70 Illinois state constitutional convention, whose blend of representatives from Democratic, Republican, and People’s Parties yielded a relatively nonpartisan outcome. The balance of governmental powers was adjusted so that the executive branch had a stronger veto, the legislative branch was barred from passing special-interest legislation, and the judicial system was enhanced with more courts and judges, a particular benefit to populous Cook County, home to the economic powerhouse of Chicago. Other major issues included African Americans’ civil rights and state management of railroads and warehouses. A progressive approach to minority representation sought to bridge sharp political divisions between north and south. The proposed 1870 constitution was ratified by the voters and remained in force for a century.Less

Epilogue: The Crucible of Memory

in The Specter of Salem: Remembering the Witch Trials in Nineteenth-Century America

This chapter considers the post-nineteenth-century life of Salem as a metaphor that is most familiar to modern Americans, and suggests that one can always find some appeal to Salem's example to ... More

This chapter considers the post-nineteenth-century life of Salem as a metaphor that is most familiar to modern Americans, and suggests that one can always find some appeal to Salem's example to restrain government powers or to quell popular opinion when it threatens to drive political decisions. It shows how the cultural memory of an event, such as the episode of witch-hunting in 1692 Massachusetts, often has a longer-lasting effect than the event itself.Less

Some Alexander Hamilton, but Not So Much Hamilton, in the New Supreme Court

John Q. Barrett

in Hamilton and the Law: Reading Today's Most Contentious Legal Issues through the Hit Musical

This chapter examines whether Lin Manuel Miranda's Hamilton: An American Musical will increase the impact of Hamiltonian thinking on and the deployment of Hamiltonian words by the Supreme Court ... More

This chapter examines whether Lin Manuel Miranda's Hamilton: An American Musical will increase the impact of Hamiltonian thinking on and the deployment of Hamiltonian words by the Supreme Court justices. There was, just a few years ago, reason to think that would be the case. Although in recent decades it had been conservative Supreme Court justices who tended to invoke the framers as support for narrow views of national government power, the success of the musical could give more liberal justices a newly powerful framer to follow. Alexander Hamilton had been, as Justice Antonin Scalia noted in a 1997 Court opinion, “the most expansive expositor of federal power.” In the Supreme Court as an institution, however, Hamilton is not playing. The 2018–19 Court term featured little Hamilton and little Hamilton.Less