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In recent years, nations around the world have faced a veritable crisis of ineffective government. Basic governmental functions – preventing private violence, resolving disputes through lawful means, providing an infrastructure to enable people to meet their most elementary needs for shelter, nutrition, transportation, communication, education – go unmet. In some countries, these basic functions are met but longer-term governance issues languish, and government is perceived to be unresponsive in ways that some believe contribute to political backlashes, including those against minority groups. These failures in governance are also perceived to have contributed to a global upsurge in authoritarianism and a concomitant decline in democracy.1
Moreover, the basic freedoms protected in many democratic constitutions – freedom from state-sanctioned torture and from punishment or coercion without fair process; freedom of expression, of religion, of movement; freedom from invidious discrimination; enjoyment of property without arbitrary government interference; free exercise of the suffrage – cannot exist, in an organized society, without government effective enough to control itself and its agents and otherwise to secure the protection of those rights.
Effective governance is necessary in a successful constitutional democracy. This is not to deny that a central animating force in a democracy must be respect for the human individual. But a government that is not effective and seen as such is not likely to be able to protect individual rights. It is thus a mistake to conceptualize individual rights simply as in conflict with the collective goals of a democratic government: those goals are effective governance and rights preservation, and – in a democracy – these two are connected.
The framers of the US Constitution well understood that a constitutional state must act for public-regarding purposes – to “establish Justice, ensure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty.” To the extent that it fails to move in these directions, government will lose the confidence of the people. Effective government in constitutional democracies requires effective legislatures to promote all of these purposes.
Nations around the world are facing various crises of ineffective government. Basic governmental functions—protecting rights, preventing violence, and promoting material well-being—are compromised, leading to declines in general welfare, in the enjoyment of rights, and even in democracy itself. This innovative collection, featuring analyses by leaders in the fields of constitutional law and politics, highlights the essential role of effective government in sustaining democratic constitutionalism. The book explores “effective government” as a right, principle, duty, and interest, situating questions of governance in debates about negative and positive constitutionalism. In addition to providing new conceptual approaches to the connections between rights and governance, the volume also provides novel insights into government institutions, including courts, legislatures, executives, and administrative bodies, as well as the media and political parties. This is an essential volume for anyone interested in constitutionalism, comparative law, governance, democracy, the rule of law, and rights.
Although the US Constitution is quite short, it is also quite old. The structures it called forth – including the presidency, the bicameral Congress, the Supreme Court – survive, even as their relationships have evolved. Its brief provisions have also spawned a complex body of jurisprudence on many issues that has shifted over more than two centuries; there are now more than 560 volumes of the official ‘US Reports’, that is, of cases decided by the US Supreme Court.1