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Governments are put in place to carry out policies. Effective governance means that they have the capacity to implement those policies. As Samuel Huntington observed, “[t]he most important political distinction among countries concerns not their form of government but their degree of government.”1 For our purposes, state capacity is the ability of a government-in-place to develop and implement policies that its leaders believe will improve national well-being. The capacity to govern includes having the required material resources, the personnel for whatever is necessary to deliver the policies to their beneficiaries, and a bureaucratic organization that enables high-level officials to implement policies.
How does state capacity feature in constitutional adjudication? And how can courts contribute to effective governance? Of course, they can interpret constitutions and statutes to authorize government officials to use whatever capacity they have to implement their chosen policies.
In this chapter, the author offers a comparative outlook on whether and how we might understand the act of “amending” America’s unwritten Constitution. Drawing upon examples from the United States and the United Kingdom, the author argues that the unwritten rule for amending an unwritten constitution is “Just Do It.” Unwritten constitutions are amended when relevant political actors simply ignore existing conventions or taken-for-granted propositions about the constitutional order. But, for such an action to lead to an “amendment,” the change must “stick” – subsequent actors must either treat the prior convention as now merely optional or, more strongly, treat the new practice as a new convention. One condition for “sticking,” he explains, is that those who breach the prior convention offer an explanation for the breach that (a) seems reasonable at the moment of breach and that (b) identifies a large enough class of similar occasions for breach in which departing from the convention would also seem reasonable. Such explanations provide the basis for the sense of obligation (or, sometimes, the sense of “optionality”) that characterizes elements of unwritten constitutions.
Scholars are increasingly taking note of a species of government institutions that fall outside the traditional separation of powers and have come to be known as the “fourth branch”: these institutions are created by constitutional design to engage in independent oversight and investigation of the other branches. Using South Africa as a case study of “fourth branch” institutions, this chapter dives deeply into the South African cases on corruption (such as the Scorpions litigation, set in its political background) before turning to the more general theme of Chapter 9 institutions in South Africa, then surveying the rise of the furth branch in constitutional systems around the world. The chapter concludes by evaluating both the value and the limits of the “deep dive” case study approach to understanding topics in constitutional design.
The Court dealt with the relation between the president and administrative agencies in several cases. It endorsed the Progressive view that agencies had to be substantially independent of the president by limiting the president’s power to remove agency members, but applied the nonfdelegatin doctrine generously in upholding a broad delegation in the field of foreign affairs and in doing the same in connection wh legal challenges to FDR’s recognition of the Soviet Union.
Crminal law cases in the Court typically arose out of the enforcement of Prohibition and mostly dealt with issues about searches, though the Court did issue one important decision on the general part of criminal law delineating the scope of the entrapment or government misconduct defense. With Prohibition discredited and repealed early in the decade, the Court’s decisions ordinarily found that the searches at issue were unlawful. Prohibition led to the rise of organized crime, and some of the Court’s decisions addressed and usually allowed legal strategies aimed at organized crime, although one important decision struck down a New Jersey statute penalizing membership in criminal gangs. The decisions sometimes led the Court to consider how the law should respond to technological innovations -- airplanes for one, but wiretapping a more important one. One theme surfaced on occasion: the importance of porfessionalism in the administration of criminal justice.
The NAACP offered strategic litigation as an alternative to labor defense. It pursued that course in supporting challenges to primary elections from which African Americans were barred, and in attacking segregated education, the latter of which reached the Supreme Court in a case dealing with Missouri’s failure to offer a law school to its African American citizens.
This Chapter deals with the Court’s decisions on the reach of the National Labor Relations Act, and its revisiting cases involving intergovernmental immunities, including a reconceptualization of them as impicating primarily questions about interpreting federal statutes rather than the Constitution. It also examines some cases raising questions related to those decided in Blaisdell and the Gold Clause Cases, and shows that the Court did not repudiate the restrictive implications of those decisions.
Having endorsed expansive exercises of government power to regulate the economy, the Court’s more liberal members had to figure out how to justify limiting that power in connection with civil rights and civil liberties. Here they were assisted by their conservative colleagues' sensibilities, an inchoate blend of libertarianism with the civil rights legacy of the Republican Party. Progrssive political theory, as articulated by John Dewey, provided the liberals with few resources, but they too had sensibilities and sympathies that made them comfortable with enforcing civil rights and civil liberties against governments even as they withdraw from doing the same in conneciton with economic regulation.
Progressive ambivalence about rights in general, and their indifference to issues of racial justice, might have led to inattention to issues of race at the Supreme Court. It did not, because of the complicated relation between liberalism in politics, conservative libertarian impulses, and the depth of outrage at gross injustices in the cases that reached the Court. Most notable were the Scottsboro cases, where the Communist Party outmaneuvered the NAACP to gain control, and then used the cases as part of a strategy of “labor defense,” mobilizing large numbers of people to place pressure on the courts, as the theory had it. The theory, though, was at war with itself: According to it, courts were tools of capitalist oppression but could be brought to heel by a mobilize public even if capitalism remained in place.
Radical political dissent on the right and left presented the Court with numerous problems. Overall, the Court developed a law of free expression that offered substantial protection to political dissidents. It invalidated a Minnesota statute authorizing courts to issue injunctions agains publication of liberlous material and a California statute banning display of the Communist red flag. It invalidated convictions of Communist organizers in Oregon and Georgia. And, protecting dissident news writers against political retaliation, it upheld the application of the National Labor Relations Act to the Associated Press and other news organizations.