constitutional law history midterms reviewer

7/29/2019 Constitutional Law History Midterms Reviewer

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CONSTITUTIONAL LAW HISTORY MIDTERMS REVIEWER


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settlers into gang labor and low wages.

Company switched to a headright system giving all the settlers 50 acres of land and thenshortly thereafter also political rights, in the form of it General Assembly in 1969

Similar events unfolded in Pennsylvania, Carolina, and Maryland

The chain of events ultimately leading to the declaration of Independence and the U.S.Constitution

The differences in the ways Latin America and North America were organized historicallyexplain the differences in the ways they are organized today and their different levels of

prosperity

Making Sense of the Divergence

While both culture (religion, attitudes and values) and geography (climate, topography, diseaseenvironments) are important for the ability of humans to form well-functioning societies, they

are not the main source of this divergence

o Much of Latin America likely richer than North America as late as mid-18 th centuryo DIVERGENCE IS DUE TO THE INABILITY OF THE UNITED STATES, JUST LIKE BRITAIN, TO

TAKE ADVANTAGE OF NEW ECONOMIC OPPORTUNITIES An ignorance hypothesis also unable to explain the logic of social arrangements leading to

relative poverty Cortes, Pizarro, and Ayolas did not set up forced labor and repressive regimes

because they were ignorant of the implications

Instead, central role of institutions, broadly defined the rules that govern economic andpolitical behavior

Key questions: historical roots of institutional differences and the logic of institutions do notunleash growth

Towards a Theory of Institutions

EXTRACTIVE ECONOMIC INSTITUTIONS- Lack of law and order. Insecure property rights;entry barriers and regulations preventing functioning of markets and creating a nonlevelplaying field

EXTRACTIVE POLITICAL INSTITUTIONS: in the limit of absolutism: Political institutionsconcentrating power in the hands of few, without constraints, checks and balances or rule

of law

INCLUSIVE ECONOMIC INSTITUTIONS: Secure property rights, law and order, markets andstate support (public services and regulation) for markets, open to relatively free entry of

new businesses; uphold contracts; access to education and opportunity for the great

majority of citizens

INCLUSIVE POLITICAL INSTITUTIONS: Political institutions allowing broad participation-pluralism- and placing constraints and checks on politicians; rule of law (closely related to

pluralism)

But also some degree ofpolitical centralization for the states to be able toeffectively enforce law and order

Growth Under Inclusive Institutions

Inclusive economic and political institutions (OR INCLUSIVE INSTITUTIONS FOR SHORT), createpowerful forces toward economic growth by:

o Encouraging investment (because of well-enforced property rights)


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o Harnessing the power of markets (better allocation of resources, entry of more efficientfirms, ability to finance for starting businesses etc.)

o Generating broad-based participation (education, gain free entry, and broad-basedproperty rights)

Key aspect of growth under inclusive institutions: investment in new technology and creativedestruction

Central question: Why are extractive institutions so prevalent throughout history and eventoday?

The Logic of Extractive Institutions

Main thesis is that growth is much more likely under inclusive institutions than extractiveinstitutions

Growth, and inclusive institutions that will support it, will create both winners and losers.Thus there is a logic supporting extractive institutions and their stagnation:

o Economic losers: those who will lose their incomes, for example their monopolies,because of changes in institutions or introduction of new technologies

o Political losers: those who will lose their unconstrained monopoly of power,because of growth and its supporting institutions- fear of creative destruction

o Both are important in practice but particularly political losers are a major barrieragainst the emergence of inclusive institutions and economic growth.

Growth Under Extractive Political Institutions

Though growth is much more likely under inclusive institutions, it is still possible underextractive institutions

Why?Generate output and resources to extract Two types of growth under extractive political institutions:

o Extractive economic institutions allocating resources to high productivity activitiescontrolled by the elites (e.g. Barbados, Soviet Union)

o

When relatively secure in their position, the elites may wish to allow the emergenceof relatively inclusive economic institutions under their control (e.g. South Korea

under General Park, China today)

o But big difference from growth of inclusive institutions: no creative destruction anddynamics very different. Consequently, even though growth is possible under

extractive institutions, this will not be sustained growth

Towards a Theory of Institutional Change

As a consequence of the distributional consequences of institutions conflict pervasive in society In the context ofdifferential institutional driftsmall but notable differences in institutions

across nations

Small differences that matter when critical junctures arise- confluence of actors which candetermine status quo

Institutions- drift-institutionst+1 critical juncture institutional divergence But outcomes not historically determined, partly contigent The changes that happen as a result of this interaction then become the background

institutional differences upon which new critical junctures act


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Transition to Inclusive Institutions

Extractive institutions have been the norm in world history. Where do inclusive institutions come from?

o Earlier moves towards inclusive institutions resulting from conflict and institutional drift-Roman Republic, Venice but ultimately reversed

Crucial turning point can be found in the Glorious Revolution in England in 1688o The Glorious Revolution brought much more inclusive, pluralistic political institutions

which then led to a transition towards much more inclusive institutions

This created the conditions which led to the Industrial Revolution Growth in the 19th century and dissemination of industry were conditioned by interactions

between initial institutional differences and the critical junctures created by political events and

the Industrial Revolution itself.

Institutional Divergence at Critical Junctures: Black Death and Feudalism

The divergence of Western and Eastern Europe after the Black Death- in the West the power oflandlords declines and feudalism withers away, in the East, the power of landlords intensifies

leading to the Second Serfdom in the 16th century

The institutional divergence driven by a large demographic shock interacting with initialinstitutional differences (organization of peasant communities, distribution of land holdings)

Key mechanism: increases in wages following population decline (e.g. Phelps, Brown andHopkins, 1956)

Why do nations fail?

-Because they have extractive political and economic institutions

-These are difficult to change though they can be successfully challenged and altered during critical

junctures

-The roots of modern world inequality lie in the emergence of inclusive institutions in Britain and the

fruits of this- the industrial revolution spread to those parts of the world that had similar institutions

(settler colonies) or quickly developed them (Western Europe)-Other parts of the world languished with extractive institutions which have persisted over time and

thus remain poor today

2) ON THE RULE OF LAW BY TAMANAHA

3) THE ORIGINS OF POLITICAL ORDER: FROM PREHUMAN TIMES TO THE FRENCH

REVOLUTION (2012) BY FUKUYAMA

THE ORIGINS OF THE RULE OF LAW

Law vs. legislation

Law- abstract body of rules of justice that bind a community together

-fixed by an authority higher than any human legislator, either by a divine authorityLegislation- positive law, function of political power, that is, the ability of a king, baron, president,

legislature, or warlord to MAKE and enforce new rules based ultimately on some combination of power

and authority

State building and the rule of law therefore coexist in a certain tension


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Rulers can enhance their authority by acting within and on behalf of the law vs. the law can prevent

them from doing things they would like to do, not just for their private interest but for the interest of

the community as a whole

CONTEMPORARY CONFUSIONS CONCERNING THE RULE OF LAW

Contemporary developing countries-one of the greatest POLITICAL deficits lies in the relative weakness of the RULE OF LAW

EFFECTIVE LEGAL INSTITUTIONS ARE PERHAPS THE MOST DIFFICULT TO CONSTRUCT-legal institutions, on the other hand, must be spread throughout the entire country and

maintained on an ongoing basis

-legal institutions require physical facilities as well as huge investments in the training of

lawyers, judges, and other officers of the court; including police who will ultimately enforce the

law

ESTABLISHMENT OF THE RULE OF LAW= ECONOMIC DEVELOPMENT

-absence of strong rule of law is indeed one of the reasons why poor countries cant achieve

higher rates of growth

Modern Property Rights

-those held by individuals who are free to buy and sell their property w/o restrictions imposed

by kin groups, religious authorities and the State

[property rights and contract are related to economic growth]

Obviously, if a government does not feel bound by a preexisting rule of law, but considers itselffully sovereign in all aspects, nothing will prevent it from taking the property of its citizens, or of

foreigners who happen to be doing business with it

It is perfectly possible however, to have good enough property rights and contractenforcement that permit economic development w/o existence of a true rule of law

Ex. Peoples Republic of China There is no true rule of law in China today, the Chinese Communist Party does

not accept the authority of any other institution in China as superior to it or able

to overturn its decisions

When the party disbanded collective forms in 1978 under the HouseholdResponsibility law, it did not restore to Chinese peasants full modern property

rightsbut it gave them usufructuary (one having the use or enjoyment of

something) rights to their land

These rights were good enough to lead to a doubling of agriculturaloutput just four years after change of property rules

The economists emphasis on modern property rights and contract enforcement under a rule oflaw may be misplaced in two aspects

In the contemporary world, where continuous technological innovation is possible,good enough property rights w/ no sovereign rule of law are at times sufficient to

produce high rates of economic growth

In a Malthusian world, such rates of growth are not achievable even presuming theexistence of modern property rights and a rule of law because the binding constraints

on growth lies elsewhere


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Another definition of RoL that likely had as great impact on economic life in premodern, as incontemporary times.

Is the security of persons, the ability to exit from the violent state of nature and goabout ones daily business w/o fear of being killed or robbed

Tend to appreciate it when it is absent rather than present Finally, it is not possible to talk about the RoL without specifying to whom should it apply = the

circle of people who are considered legal persons protected by the law

Societies seek to enforce basic social rules universally, but a rule of law that protectscitizens against arbitrary actions of the state itself is often initially applied only to a

minority of privileged subjects

THE LAW PROTECTS THE INTERESTS OF ELITES WHO ARE CLOSE TO THE STATE OR WHOCONTROL THE STATE

Ex. Mme. de Sevigne of Francesalon patron of 17th century France In a letter to her daughter describes how soldiers in Brittany were enforcing a

new tax, turning old man and children out of their houses in search of assets to

seize

60 townspeople were to be hanged the following day for nonpayment French State would not enforce such drastic penalties on Mme de Sevigne and her circle

Imposed onerous taxes on commoners precisely because it was too respectfulof the property rights and personal security of the aristocracy

So.IT IS THEREFORE NOT TRUE THAT THERE WAS NO RULE OF LAW IN 17THCENTURY FRANCE, BUT THE LAW DID NOT REGARD COMMONERS AS LEGAL

PERSONS ENTITLED TO THE SAME RIGHTS AS THE ARISTOCRACY

People lucky enough to live in countries w/a strong rule of law usually dont understand how itarose in the first place (thus failure of programs to improve rule of law in poor countries

designed by rich)

They mistake outward forms of the rule of law for its substances Ex. Checks and balances taken to be a hallmark of a strong rule of law in

society (branches of government check one another)BUT!!!!

The mere existence of a formal check is not equal to strong democratic

governance

Courts can be used to protect interest of elitesEx. 1905 Supreme Court case of Lochner vs. New York; protected business interests

against a legislative effort to limit working hours

Where did law itself- that is, a common set of rules of justice- originate? How didspecific rules regarding property rights, contract enforcement and commercial law

develop? And how did the highest political authorities come to accept the

sovereignty of law?

HAYEKS THEORY THAT LAW IS PRIOR TO LEGISLATION

Friedrich A. Hayek

godfather of contemporary libertarianism, but libertarians are not opposed to rules as such:

only the existence of common rules make the peaceful existence of individuals in society possible


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HAYEK RATIONALIST/ CONSTRUCTIVIST

-constructivism is a conceit of the last 300 years

and particularly of a series of French thinkers

including Descartes and Voltaire who thought that

the human mind was sufficient enough to

understand the workings of human society

-that it proceeded from the will of a legislator who

rationally studied the problems of society and

devised a law to establish what he thought was a

better social order

-TOP-DOWN APPROACH WONT WORK

political power, for ex. Soviet Union

HAYEK SAYS THAT THE RATIONALIST THEORY IS WRONG

1) No single planner could ever have enough knowledge about the actual workings of a society torationally re-order it

-the bulk of knowledge in a society was local in character and dispersed throughout the whole

society; no individual could master enough information to anticipate the effects of a planned

change in the laws or rules

2) SOCIAL ORDER IS NOT TOP-DOWN but occurs spontaneously through the interactions ofhundreds or thousands of dispersed individuals who experimented with rules, kept the ones

that worked and rejected those that didnt

3) Law itself a spontaneous order and there can be no doubt that existed for ages before itoccurred to man that he could make or alter it

individuals had learned to observe and enforce rules of conduct long before such rules could be

expressed in words

LEGISLATIONcame relatively late in the history of mankind

all law is, can be, and ought to be, the product of the free invention of a legislatoris actually

false and an erroneous product of CONSTRUCTIVIST RATIONALISM

EX. ENGLISH COMMON LAW

-cumulative decisions of countless judges

-more adaptive and market-friendly than the continental tradition of civil law

Sir Edward Coke

-common law dated from time immemorial

Legal centralists

-formal legislated laws create and shape moral

values

Legal periphalist

-simply codify existing norms

FROM CUSTOMARY TO COMMON LAW

HAYEKS INSIGHT

-based on the decentralized evolution of social rules


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-but there have been major discontinuities in the development of law that can only be explained

by intervention of political authority and not spontaneous order

TRIBALSTATE-LEVEL FORMS OF ORGANIZATION

Tribal justice between individuals is a bit like contemporary international relationsbased on

self-help of rival groups in a world where there is not 3rd party enforcer of rules

AS COMPARED TO OR DEVELOPED INTO

State-level societies- different precisely because such an enforcer exists, which is the STATE

itself

The first known compilation of Anglo- Saxon tribal

WHY NATIONS FAIL CHAPTER 11

THE CIVIL LAW TRADITION BY MERRYMAN (CHAPTER I- VII)

i. TWO LEGAL TRADITIONSii. ROMAN CIVIL LAW, CANON LAW, AND COMMERCIAL LAWiii. THE REVOLUTIONiv. THE SOURCES OF LAWv. CODES AND CODIFICATIONvi. JUDGESvii. THE INTERPRETATION OF STATUTES

THE SPANISH ANTECEDENTS OF THE PHILIPPINE CIVIL CODE BY BALANE

MESTIZO: THE PHILIPPINE LEGAL SYSTEM BY AGABIN

THE TREND TOWARDS EQUITY VERSUS POSITIVE LAW IN PHILIPPINE

JURISPRUDENCE BY JBL REYES

THE CIVIL LAW TRADITION BY MERRYMAN (CHAPTER VIII CERTAINTY AND EQUITY

viii. CERTAINTY AND EQUITYxix. PERSPECTIVES CHAPTER

THE NEW PROPERTY BY CHARLES REICH


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Property- guards troubled boundary between individual man and state

-many other institutions guard as well, like legislative institutions

-BUT our society chiefly values material well-being and power to control particular portion of well-being

is the foundation of individuality

-During the past decade, important devt in US has been that the government is a major source of

wealth

GOVERNMENT AS A GIGANTIC SYPHON

Why?

1) Draws in revenue and power2) Pours forth wealth: money, benefits, services, contracts, franchises and licenses

FUNCTION TIME IMMEMORIAL; EARLY TIMES MINORtodays distribution of largess is on a vast

imperial, scale.

-valuables dispensed by the government are steadily taking over, taking the place of traditional forms of

wealth- forms which are held as private property.

Ex. 1) social insurance substitutes savings

2) Government contract = businessmans customers and goodwill3) wealth of more Americans depends upon a relationship to the government

4) Americans live on government largess- allocated by government in its own terms and held by

recipients subject to conditions which express public interest

Growth of government largess affects underpinnings of individualism and independence Influences Bill of Rights Impact on the power of private interests in their relation to each other and to

government

WHOLE ARTICLE DISCUSSES

1) EXAMINATION AND NATURE OF GOVERNMENT LARGESS2) REVIEWS THE SYSTEM OF LAW (IN RELATION TO GOVERNMENT LARGESSSUBSTANTIVE AND

PROCEDURAL3) EXAMINES SOME OF THE CONSEQUENCES, TO THE INDIVIDUAL TO THE PRIVATE INTERESTS

AND TO SOCIETY

4) CONSIDERS FUNCTIONS OF PROPERTY AND RELATIONSHIP TO THE PUBLIC INTERESTI. LARGESS OF THE GOVERNMENT

a. Forms of Government Created Wealth1) Income and Benefits

-government is a source of income for people even thought they dont have jobs

Ex. Eligibility arises from legal status; SS benefits

Unemployment compensation

Aid to dependent children

Veteran benefits

2) Jobs-more than 9 million people receive income from public funds directly employed

by federal state or local government

-size of publicly employed working forceincreased rapidly since founding of the

USand likely to increase


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3) Occupational Licenses-licenses required before anyone may engage in many kinds of work

Ex. Practicing medicine

Guiding hunters through woods

licenses which are dispensed of by the government make it possible for holders to

receive what is ordinarily their chief source of income

4) Franchises-partial monopoly-created and handed out by government

-value depends largely upon governmental power.

HOW?

by limiting number of franchises, government can make them extremely

renumerative

Ex. NY taxi medallion

-costs very little when originally obtained from the city sold for 20,000 dollars

WHY?

-city has not issued new transferable medallions despite rise in population and

trafficTV channel- handed out for free; but instead sold for many millions

* Government distributes wealth when it dispenses route permits to truckers,

charters to bus lines, routes to air carriers, certificates to oil and gas pipelines,

licenses to liquor stores, allotments to growers of cotton and wheat, concessions in

national parks

5) Contracts-individuals and business enjoy public generosity in the form of contracts

-50 billion dollars annually flows from govt in the form of defense spending

-often resemble subsidies; virtually impossible to lose money on them-businesses sometimes make the government their principal source of income and

many free enterprises are set up primarily to do business with the govt

6) Subsidieswelfare payments for individuals who cannot manage independently in the

economysubsidies = business

Ex. A. agriculture subsidized to help it survive against better organized (and less

competitive) sectors of economy

B. Shipping industry given a dole because of its inability to compete with foreign

lines

C. Local airlines

D. non-business activities like scientific research, health and education

7) Use of public resources-large part of American economy is publicly owned

-govt owns or controls hundreds of millions of acres ofpublic lands, public lands

which are valuable for mining, grazing, lumbering and recreation; sources of energy;

tideland reservoirs of oil; nuclear power; routes of travel and commerceairways;

radio-TV spectrum avenue for all broadcasting; hordes of surplus crops and


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materials; public buildings and facilitiesresources available for utilization by

private individualssuch use is often equivalent to a subsidy

RADIO-TV use scarce channels of air for free

ELECTRIC companiesuse publicly-owned water power

STOCKMEN graze sheep and cattle on public lands at nominal cost

SHIPS AND AIRPLANESarrive and depart from publicly-owned docks and airports

ATOMIC-ENERGY INDUSTRYuses govt materials, facilities and know-how

8) Servicesgovt services source of wealth

some are plainly of commercial value; postal service for periodicals, newspapers,

advertisers, mail-order houses; insurance for home-builders and saving banks;

technical infoagriculture

sewage, sanitation, police and fire protection, public transportation

Communications satelliteunusual type of subsidy through service: turning over of

government research and know-how to quasi- private organization

EDUCATION, GREATEST SOURCE OF VALUE!

b. Importance of Government Largess 1961when personal income totaled $416, 432, 000, governmental

expenditures on all levels amounted to $164, 875, 000, 000

Government payroll reached 45 billion dollars Do not take into account vast intangible wealth represented by licenses,

franchises, services and resources

PROPORTION of govt wealth increasing dependence but NOT VOLUNTARY Valuables that flow from govtsubstitutes rather than supplements, other

forms of wealth SS and other forms of public insurancesupported by taxes

Tax money no longer available for individual savings or insurance Taxpayer now a participant in public insurance by compulsion and his ability to

care for his own needs independently is reduced

NO CHOICE ABOUT USING PUBLIC SERVICES CREATING A DEPENDENCE ON THE GOVT

Dependence creates a vicious cycle of dependence

-it is hard for a business to give up government help as it is for an individual to live on a reduced income

-when one sector of the economy is subsidized, others are forced to seek comparable participation-GEOGRAPHIC government contracts can fundamentally influence economy of a region

-ex. If one form of transportation is subsidized, other types of transpo may be compelled to seek

subsidies

-when some occupations subsidized, other which help to pay bill, find themselves disadvantaged as a

class

-ex. 1) musiciansseeking subsidy to pay for food bills made artificially high because of another subsidy


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2) unemployed worker replaced by a machine seeks government funds to retainwhen machine was

created through government subsidized research and development

GOVERNMENT LARGESS

-necessarily assume greater importance as we move closer to the welfare state; the welfare state

undertakes responsibility for well-being of citizens who cant provide basic services for themselves

Responsibility can only be carred out by what was defined as government largess!

C. Largess and the Changing Forms of Wealth

More and more wealth takes the form of right and status

RATHER THAN TANGIBLE GOODS

Ex. Individuals profession

Large manufacturer physical assets not important but contracts, business arrangements and

organization

-steel companys relationships with cool and iron producers more valuable than plant and equipment

*To the individual, these new forms, such as profession, job, or right to receive income are basis of hisvarious statuses in societymost meaningful and distinctive wealth he possesses

II. EMERGING SYSTEM OF LAWWEALTH or VALUE created by culture or society vs. PROPERTY LEADS TO CREATION OF LAW

Property represents relationship between wealth and its owner

Government Largess is then wealth, not property

And has given rise to a distinctive system of lawSYSTEM VIEWED IN 3 PERSPECTIVES

1) Rights of Holders of Government Largess2) Powers of the Government over Largess3) Procedure by which holders rights and governmental power are adjustedA. Individual Rights in Largess

PRESSURE FOR PROTECTION OF INDIVIDUAL INTERESTS

Ex. Holder of a broadcast license or motor carrier permit or a grazing permit, tends to consider his land

his own and to seek legal interference w/ his enjoyment

Right vs. privilegeLegal protection of right by far greater importance

Ex. Holder of a license had a rightmay be entitled to a hearing before license could be

revoked

mere privilege might be revoked w/o notice or hearing

Gratuity principle-often considered as gratuity furnished by statestate can withhold grant or revoke largess

at its pleasure

-government considered to be in somewhat same position as the private giver


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Whole and the parts-since government may completely withhold a benefitit may grant it subject to any terms or

conditions whatsoever

-WHOLE POWER MUST INCLUDE ALL OF ITS PARTS

Internal management-government should have control over its own housekeeping or internal management functions

-government treated like private business

4 theories blurred in a single statement of judicial attitude

in accepting charity, the appellant has consented to the provisions of the law under which

charity is bestowed

-These sentiments are often voiced in the law of government largess but individual interests

have also grown up.

- the most common forms of protection are procedural, coupled w/ an insistence that

government action be based on standards that are not arbitrary or unauthorized Courts have most readily granted protection to those types which are intimately bound

up w/ individuals freedom to earn a living

Occupational licenses-courts said that occupational or professional license may not be denied or revoked w/o

affording the applicant notice and a hearing

PROCEDURE!

With regard to licenses not tied to occupation, drivers licensenot an economic right

but aspect of personal liberty

Franchises-less of a natural right than an occupational license

-confers an exclusive or monopoly position established by government

-but the courts took the position that certain types of franchises were property

protected by the Constitution

Ex. Air-route certificates

Benefits-courts have moved toward a measure of legal protection for benefits

Ex. District of Columbia CA rejected argument that a VA decision is not reviewable by

courts

Subsidies-a subsidy to a business


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constitutional law history midterms reviewer

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