PHGY 502 Lecture Notes - Lecture 1: Supremacy Clause, Originalism, Xenophobia
29 Jun 2018
School
Department
Course
Professor
Comparative Federalism
Winter 2018
Professor Hoi Kong
Introduction
Jan 12, 2018
Participation - 25%
- Mandatory postings on the readings (12.5% participation; you are allowed 2 number of passes where you don't post)
- More than 2 passes: fail participation1/2 grade (12.5% of the course grade)
- Evaluation criteria: Relevant, Responsive, Respectful, neither dominating, nor checked out
- You have to post once a week: either Wednesday or Friday
- Posts are due Monday at 3PM Post length: 200-300 words ○
- No obligation to respond to others • In-class participation is worth 12.5
Final Paper - 75%
- 7500-8500 words
- If you want it to count for a major writing requirement - 8000 minimum
- Outlines and consultation (DUE: end of February)
- Suggested, not required (and not graded - just for our benefit)
- Include a thesis and theses for each part of the paper • DUE when the Faculty sets the paper due date • Paper workshop •
Post outlines and in-class you're grouped to work through with guiding questions
Constitutions
- Making: like us setting the ground rules
- What's necessary/useful/legitimizing
- Templates: Democratic participation
- Modes: Referendum, Representatives vote, Supermajorities, Ratification after drafting, convention, Group of wise people?
- Adherence to ethical norms? § Bodies Who drafts it? Who approves it? □ □
- Content Preamble § Statements of aspiration Rules and Default Rules § Division of powers Topics and a default rule ○ ○ □
Often pitched at a high level of generality - open-ended, allowing for interpretation (sometimes specific e.g. amending ○
formulas) Amending formulas References to other texts ○ ○
- Interpretation
oStatements of purpose (preamble)
oContext
oPlain meaning of the text
oPrecedent
oHistory of the provision
oStructure
oEthical norms/principles (Something to animate, a theory behind)
oDo any of these elements trump?
- Function Sets basic norms of a political community Does it reflect a pre-existing community, or does it constitute a ○ ○
community? Does it define a community? § Boundaries of belonging § Aspirations
Federations
- What is a federation? What is the point of a federation? Way of organizing human communities § Coordinate power ○
sharing between groups with some common goals, but also some separate identities they want to preserve § Subsidiarity:
prefer decision-making to be more local Responsiveness § Efficiency Scale of government Competition □ □ □
- For citizens Experiments □
- Using a province as a "lab" § Protect political Communities and Minorities E.g. Linguistic Ensure the components of the□ □
community are respected
find more resources at oneclass.com
find more resources at oneclass.com
Class 2
Jan 17, 2018
Constitution making, content, and interpretation
- Language is often high-level generalities (though sometimes higher degrees of specificity)
- In federalism, provisions re: federalisms include topics, coupled with a default rule
- Interpretation: what type of reasoning is involved? Ethical/normative reasoning? (what Stone calls moral reasoning)
oText, precedent, structure, history, ethical (norms), context (consequences) the building blocks of interpretation
Purposes of Federalism
- Issues of coordination, efficiency, value in experimentation, political community (particularly relevant for minority groups),
subsidiarity (matters be governed by the closest level of government)
- Political processes
oRisk of small political communities is risk of disregarding entrenched minorities (or persecuted)
oIn small jurisdictions, create federal institutions in which those minority voices can be heard (in ways that they
can’t in their home small jurisdictions)
E.g. African Americans in US: no political interests regarded in small southern state; advance your
interests by making political movements that are nation-wide (e.g. federal civil rights acts)
- Circumstances where national entity can’t make decisions that reflect the particularities of local communities’ interests
- Institutional design (to ensure minority groups have a seat at the table)
oNo guarantee that this gives minorities a voice from the beginning, but it’s an option that wouldn’t be at all
available in system of small states (i.e. forming coalitions at the federal level)
Individual Liberty
- Another justification for federalism
- If you’re concerned with concentrations of power (big government) will deny people’s individual liberties – one way to
handle is to divide power, so no level of government has absolute control over your individual liberties
- Basic reasoning is that power will check power – assume there’s a division of authority
Debates around Constitutional Interpretation
- General problem of political legitimacy (why should unelected judges be given power to make these decisions?)
oRepresentation
Concern of accountability (a politician makes a bad decision, they can be voted out) – most respectful of
each individual’s views (political debates happen in the open where the best argument wins) – respect for
citizen agency election cycle
oCapacity
- Arguments in favour of judicial review
oSpecific interests we want protected (regardless of what the majority thinks)
oReason-giving (decisions are subject to revision) – if an argument is implausible, it will be tested and dismissed
oAdjudication (re: individual interests)
oBargaining as an alternative? Great resource disparity
Federalism and Judicial Review
- Once you have a divided political community, you need judicial review to decide debates between the two communities
- Does it need to be a court? Agree that there will be disagreement, but couldn’t it be resolved by another sort of tribunal?
- Courts in federalism context give fully fleshed-out reasons for their decisions
Issues of Institutional Design
- A senate? (with reason-giving functions)
- Executive power structured in a way that allows for representation of minority voices
- Weak-form judicial review? (what Stone argues for) – revisable by political actors
- Agreements – work out ways in which inequalities in bargaining power can be accounted for
Class 3
Jan 19, 2018
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Mandatory postings on the readings (12. 5% participation; you are allowed 2 number of passes where you don"t post) More than 2 passes: fail participation1/2 grade (12. 5% of the course grade) Evaluation criteria: relevant, responsive, respectful, neither dominating, nor checked out. You have to post once a week: either wednesday or friday. No obligation to respond to others in-class participation is worth 12. 5. If you want it to count for a major writing requirement - 8000 minimum. Suggested, not required (and not graded - just for our benefit) Include a thesis and theses for each part of the paper due when the faculty sets the paper due date paper workshop . Post outlines and in-class you"re grouped to work through with guiding questions. Making: like us setting the ground rules. Rules and default rules division of powers. Often pitched at a high level of generality - open-ended, allowing for interpretation (sometimes specific e. g. amending formulas)
